[153] Parl. Hist. v. 108.
[154] Journals, 11 and 12 Feb. 1688-9.
[155] Parl. Hist. 345.
[156] Lords' Journals, 22 Nov. 1689.
[157] The guards retained out of the old army disbanded at the king's return, have been already mentioned to have amounted to about 5000 men; though some assert their number at first to have been considerably less. No objection seems to have been made at the time to the continuance of these regiments. But in 1667, on the insult offered to the coasts by the Dutch fleet, a great panic arising, 12,000 fresh troops were hastily levied. The Commons, on July 25, came to an unanimous resolution, that his majesty be humbly desired by such members as are his privy council, that when a peace is concluded, the new-raised forces be disbanded. The king, four days after, in a speech to both houses, said, "he wondered what one thing he had done since his coming into England, to persuade any sober person that he did intend to govern by a standing army; he said he was more an Englishman than to do so. He desired, for as much as concerned him, to preserve the laws," etc. Parl. Hist. iv. 363. Next session the two houses thanked him for having disbanded the late raised forces. Id. 369. But in 1673, during the second Dutch war, a considerable force having been levied, the House of Commons, after a warm debate, resolved (Nov. 3) that a standing army was a grievance. Id. 604. And on February following, that the continuing of any standing forces in this nation, other than the militia, is a great grievance and vexation to the people; and that this house do humbly petition his majesty to cause immediately to be disbanded that part of them that were raised since Jan. 1, 1663. Id. 665. This was done not long afterwards; but early in 1678, on the pretext of entering into a war with France, he suddenly raised an army of 20,000 men or more, according to some accounts, which gave so much alarm to the parliament, that they would only vote supplies on condition that these troops should be immediately disbanded. Id. 985. The king, however, employed the money without doing so; and maintained, in the next session, that it had been necessary to keep them on foot; intimating at the same time, that he was now willing to comply, if the house thought it expedient to disband the troops; which they accordingly voted, with unanimity, to be necessary for the safety of his majesty's person, and preservation of the peace of the government. Nov. 25. Id. 1049. James showed, in his speech to parliament (Nov. 9, 1685) that he intended to keep on foot a standing army. Id. 1371. But, though that House of Commons was very differently composed from those in his brother's reign, and voted as large a supply as the king required, they resolved that a bill be brought in to render the militia more useful; an oblique and timid hint of their disapprobation of a regular force, against which several members had spoken.
I do not find that any one, even in debate, goes the length of denying that the king might, by his prerogative, maintain a regular army; none at least of the resolutions in the Commons can be said to have that effect.
[158] It is expressly against the petition of right, to quarter troops on the citizens, or to inflict any punishment by martial law. No court martial, in fact, can have any coercive jurisdiction except by statute; unless we should resort to the old tribunal of the constable and marshal. And that this was admitted, even in bad times, we may learn by an odd case in Sir Thomas Jones's Reports, 147 (Pasch. 33 Car. 2, 1681). An action was brought for assault and false imprisonment. The defendant pleaded that he was lieutenant-governor of the isle of Scilly, and that the plaintiff was a soldier belonging to the garrison, and that it was the ancient custom of the castle, that if any soldier refused to render obedience, the governor might punish him by imprisonment for a reasonable time; which he had therefore done. The plaintiff demurred, and had judgment in his favour. By demurring, he put it to the court to determine, whether this plea, which is obviously fabricated in order to cover the want of any general right to maintain discipline in this manner, were valid in point of law; which they decided, as it appears, in the negative.
In the next reign, however, an attempt was made to punish deserters capitally, not by a court martial, but on the authority of an ancient act of parliament. Chief-Justice Herbert is said to have resigned his place in the King's Bench rather than come into this. Wright succeeded him; and two deserters, having been convicted, were executed in London. Ralph, 961. I cannot discover that there was anything illegal in the proceeding; and therefore question a little Herbert's motive. See 3 Inst. 96.
[159] See several in the Somers Tracts, vol. x. One of these, a "Letter to a Member of the Convention," by Dr. Sherlock, is very ably written: and puts all the consequences of a change of government, as to popular dissatisfaction, etc., much as they turned out, though, of course, failing to show that a treaty with the king would be less open to objection. Sherlock declined for a time to take the oaths; but, complying afterwards, and writing in vindication, or at least excuse, of the revolution, incurred the hostility of the Jacobites, and impaired his own reputation by so interested a want of consistency; for he had been the most eminent champion of passive obedience. Even the distinction he found out, of the lawfulness of allegiance to a king de facto, was contrary to his former doctrine.
[160] 1 W. & M. c. 8.