Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of the Military and Maritime States

THE military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defense of the realm.

IN a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and its laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII, that the kings of England had so much as a guard about their persons.

IN the time of our Saxon ancestors, as appears from Edward the confessor’s laws,1 the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being “sapientes, fideles, et animosi”. Their duty was to lead and regulate the English armies, with a very unlimited power; “prout eis visum fuerit, ad honorem coronae et utilitatem regni.” And because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people them selves.2 So too, among the ancient Germans, the ancestors of our Saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil state. The dukes were elective, the kings hereditary: for so only can be consistently understood that passage of Tacitus,3 “reges ex nobilitate, duces ex virtute sumunt”; in constituting their kings, the family, or blood royal, was regarded, in choosing their dukes or leaders, warlike merit: just as Caesar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defense, they elected leaders to command them.4 This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by Edric duke of Mercia, in the reign of king Edmond Ironside; who, by his office of duke or
heretoch, was entitled to a large command in the king’s army, and his repeated treacheries at last transferred the crown to Canute the Dane.

IT seems universally agreed by all historians, that king Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which enabled duke Harold on the death of Edward the confessor, though a stranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of Edgar Atheling, the rightful heir.

UPON the Norman conquest the feudal law was introduced here in all its rigor, the whole of which is built on a military plan. I shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our commentaries: but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight’s fees, in number above sixty thousand; and for every knight’s fee a knight or soldier, miles, was found to attend the king in his wars, for forty days in a year; in which space of time, before was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious.5 By this means the king had, without any expense, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the conqueror,6 which in the king’s name commands and firmly enjoins the personal attendance of all knights and others; “quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adsuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere.” This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feudal system was abolished at the restoration, by statute 12 Car. II. c. 24.

IN the mean time we are not to imagine that the kingdom was left wholly without defense, in case of domestic insurrections, or the prospect of foreign invasions. besides those, who by their military tenures were bound to perform forty days service in the field, the statute of Winchester7 obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds to see that such arms were provided. these weapons were changed, by the stature 4 & 5 Ph. & M. c. 2. into others of more modern service; but both this and the former provision were repealed in the reign of James I.8 While these continued in force, it was usual from time to time for our princes to issue commissioins of array, and send into every county officers in whom they could confide, to muster and array (or set in military order) the inhabitants of every district: and the form of the commission of array was settled in parliament in the 5 Hen. IV.9 But at the same time it was provided10 that no man should be compelled to go out of the kingdom at any race, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of king Henry the eighth, and his children, lord lieutenants began to be introduced, as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 & 5 Ph. & M. c. 3. though they had not been then long in use, for Camden speaks of them,11 in the time of queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger.

IN this state things continued, till the repeal of the statutes of armor in the reign of king James the first: after which, when king Charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some military powers which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal repture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful; but also seizing into their won hands the entire power of the militia, the illegality of which step could never be any doubt at all.

SOON after the restoration of king Charles the second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination:12 and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws: the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. They are to be exercised at stated times: and their discipline in general is liberal and easy; but, when drawn out into actual service, they are subject to the rigors of martial law, as necessary to keep them in order. This is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes13 declare is essentially necessary to the safety and prosperity of the kingdom.

WHEN the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. And therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes,14 in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land. Wherefore Thomas earl of Lancaster being condemned at Pontefract, 15 Edw. II. and condemned by martial law, his attainder was reversed 1 Edw. III. because it was done in time of peace. And it is laid down,15 that if a lieutenant, or other, that has commission of martial authority, does in time of peace hang or otherwise execute any man by color of martial law, this is murder; for it is against Magna Carta.16 And the petition of right17enacts, that no soldier shall be quartered on the subject without his own consent;18 and that no commission shall issue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his won authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from
his own civil list; it was made one of the articles of the bill of rights,19 that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

BUT, as the fashion of keeping standing armies has universally prevailed over all Europe of late years (though some of its potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defense of the possessions of the crown of Great Britain, and the preservation of the balance of power in Europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however ipso facto disbanded at the expiration of every year, unless continued by parliament.

TO prevent the executive power from being able to oppress, says baron Montesquieu,20 it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. Like ours therefore, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. And perhaps it might be still better, if, by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together.

TO keep this body of troops in order, an annual act of parliament likewise passes, “to punish mutiny and desertion, and for the better payment of the army and their quarters.” This regulates the manner in which they are to be dispersed among the several inn-keepers and victualers throughout the kingdom; and establishes a law martial for their government. By this, among other things, it is enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall desert, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.

HOWEVER expedient the most strict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigor would not, one should hope, be productive of much inconvenience. And, upon this principle, though by our standing laws21 (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offense is triable by a jury and before the judges of the common law; yet, by our militia laws beforementioned, a much lighter punishment is inflicted for desertion in time of peace. So, by the Roman law also, desertion in time of war was punished with death, but more mildly in time of tranquility.22 But our mutiny act makes no such distinction: for any of the faults therein mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. This discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offenses, has almost an absolute legislative power. “His majesty, says the act, may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict such penalties as the articles direct.” A vast and most important trust! An unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! these are indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. Perhaps on some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as
militia officers, are annually subjected to the same arbitrary rule during their time of exercise.

ONE of the greatest advantages of our English law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to arbitrary discretion: the king by his judges dispenses what the law has previously ordained; but is not himself the legislator. How much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen! for Sir Edward Coke will inform us,23 that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious: “misera est servitus, ubi jus est vagum aut incognitum“. Nor is this state of servitude quite consistent with the maxims of found policy observed by other free nations. For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. these men, as baron Montesquieu observes,24 seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to entrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the
people in general, and the only state of servitude in the nation.

BUT as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by the humanity of our standing laws, they are in some cases put in a much better. By statute 43 Eliz. c. 3. a. weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt, and maimed: not forgetting the royal hospital at Chelsea for such as are worn out in their duty. Officers and soldiers, that have been in the king’s service, are by several statutes, enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. And soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases.25 Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament.26 And thus much for the military state, as acknowledged by the laws of England.

THE maritime state is nearly related to the former; though much more agreeable to the principles of our free constitution. The royal navy of England has ever been its greatest defense and ornament: it is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful no danger can ever be apprehended to liberty; and accordingly it has been assiduously cultivated, even from the earliest ages. To so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws which are called the laws of Oleron, and are received by all nations in Europe as the ground and substruction of all their marine constitutions, was confessedly compiled by our king Richard the first, at the isle of Oleron on the coast of France, then part of the possessions of the crown of England.27 And yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen Elizabeth, Sir Edward Coke28 thinks it matter of boast, that the royal navy of England then consisted of three and thirty ships. The present condition of our marine is in great measure owing to the salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of English shipping and seamen was not only encouraged, but rendered unavoidably necessary. By the statute 5 Ric. II. c. 3. in order to augment the navy of England, then greatly diminished, it was ordained, that none of the king’s liege people should ship any merchandise out of or into the realm but only in ships of the king’s ligeance, on pain of forfeiture. In the next year, by statute 6 Ric. II. c. 8. this wise provision was enervated, by only obliging the merchants to give English ships (if able and sufficient) the preference. But the most beneficial statute for the trade and commerce of these kingdoms if that navigation-act, the rudiments of which were first framed in 1650,29 with a narrow partial view: being intended to mortify the sugar islands, which were disaffected to the parliament and still held out for Charles II, by stopping the gainful trade which they then carried on with the Dutch;30 and at the same time to clip
the wings of those our opulent and aspiring neighbors. This prohibited all ships of foreign nations from trading with any English plantations without license from the council of state. In 165131the prohibition was extended also to the mother country; and no goods were suffered to be imported into England, or any of its dependencies, in any other than English bottoms; or in the ships of that European nation of which the merchandise imported was the genuine growth or manufacture. At the restoration, the former provisions were continued, by statute 12 Car. II. c. 18. with this very material improvement, that the master and three fourths of the mariners shall also be English subjects.

MANY laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service.

1. FIRST, for their supply. The power of impressing men for the sea service by the king’s commission, has been a matter of some dispute, and submitted to with great reluctance; though it has very clearly and learnedly been shown, by Sir Michael Foster,32 that the practice of impressing, and granting powers to the admiralty for that purpose, is of very ancient date, and has been uniformly continued by a regular series of precedents to the present time: whence he concludes it to be part of the common law.33 The difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. The statute 2 Ric. II. c. 4. speaks of mariners being arrested and retained for the king’s service, as of a thing well known, and practiced without dispute; and provides a remedy against their running away. By a later statute,34 if any waterman, who uses the river Thames, shall hide himself during the execution of any commission of pressing for the king’s service, he is liable to heavy penalties. By another35 no fisherman shall be taken by the queen’s commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may choose out and return such a number of able-bodied men, as in the commission are contained, to serve her majesty. And, by other,36 especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. All which do most evidently imply a power of impressing to reside somewhere; and, if any where, it must from the spirit of our constitution, as well as from the frequent mention of the king’s commission, reside in the crown alone.

BUT, besides this method of impressing, (which is only defensible from public necessity, to which all private considerations must give way) there are other ways that tend to the increase of seamen, and manning the royal navy. Parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and if they are impressed afterwards, the masters shall be allowed their wages:37 great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty’s service:38 and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized ipso facto.39 About the middle of king William’s reign, a scheme was set on foot40 for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king’s fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be rather a badge of slavery, was abolished by statute 9 Ann. c. 21.

2. THE method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles and orders, first enacted by the authority of parliament soon after the restoration;41 but since new-modeled and altered, after the peace of Aix la Chapelle,42 to remedy some defects which were of fatal consequence in conducting the preceding war. In these articles of the navy almost every possible offense is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. Yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year; and might therefore with less danger be subjected to discretionary government. But, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. For, if from experience past we may judge of future events, the army is now lastingly engrafted into the British constitution; with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to its legal existence, by refusing to concur in its continuance.

3. WITH regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the power of making nuncupative testaments: and, farther,43 no seaman aboard his majesty’s ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount.

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    c. de beretochiis.
     2.    “Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent.” LL. Edw. Confell. ibid. See also Bede, eccl. hist. l.5. c. 10.
     3.    De morib. German. 7.
     4.    “Quum bellum civitas, ant illatum defendit aut infert, magistratus qui ei bello praesint deliguntur.” De bell. Gall. l. 6. c. 22.
     5.    The Poles are, even at this day, so tenacious of their ancient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. Mod. Univ. hist. xxxiv. 12.
     6.    c. 58. See Co. LItt. 75, 76.
     7.    13 Edw. I. c. 6.
     8.    Stat. 1 Jac. I. c. 25. 21. Jac. I. c. 28.
     9.    Rushworth. part. 3. pag. 667.
   10.    Stat. 1 Edw. III. St. 2. c. 5. & &. 25 Edw. III. St. 5. c. 8.
   11.    Brit. 103. Edit. 1594.
   12.    13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 4.
   13.    30 Geo. Ii. c. 25. etc.
   14.    hist. C. L. c. 2.
   15.    3 inst. 52.
   16.    cap. 29.
   17.    3 Car. I. See also stat. 31 Car. II. c. 1.
   18.    Thus, in Poland, no soldier can be quartered upon the gentry, the only freemen in that republic. Mod. Univ. hist xxxiv. 23.
   19.    Stat. 1 W. & M. St. 2. c. 2.
   20.    Sp. L. 11. 6.
   21.    Stat. 18 Hen. VI. c. 19. 2. & 3. Edw. VI. c. 2.
   22.    Ff. 49. 16. 5.
   23.    4 inst. 332.
   24.    Sp. L. 15. 12.
   25.    Stat. 29. Car. II. c. 3. 5. W. III. c. 21. §. 6.
   26.    Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. Cod. 6. 21. 15.
   27.    4 inst. 144. Coutumes de al mer. 2.
   28.    4 inst. 50.
   29.    Scobell 132.
   30.    Mod. Un. hist. xli. 289.
   31.    Scobell. 176.
   32.    Rep. 154.
   33.    See also Comb. 245.
   34.    Stat. 2. & 3. Ph. & M. c. 16.
   35.    Stat. 5 Eliz. c. 5.
   36.    Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. 4 & 5 Ann. C. 19. 13. Geo. II. c. 17 etc.
   37.    Stat. 2 Ann. c. 6.
   38.    Stat. 1 Geo. II. St. 2. c. 14.
   39.    Stat. 13 Geo. II. c. 3.
   40.    Stat. 7 & 8 W. III. c. 21.
   41.    Stat. 13 Car. II. St. 1. c. 9.
   42.    Stat. 22 Geo II. c. 23.
   43.    Stat. 1. Geo. II. St. 2. c. 14.