As the fashion of keeping standing armies, which was first introduced by Charles VII in France, 1445 a.d., has of late years universally prevailed over Europe (tho 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. And it was enacted by statute (10 W. III, c. 1) that not more than twelve thousand regular forces should be kept on foot in Ireland, tho paid at the charge of that kingdom; which permission is extended by statute (8 Geo. III, c. 13) to 16,235 men, in time of peace.
To prevent the executive power from being able to oppress, says Baron Montesquieu,[49] 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, it should be wholly composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixt 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 mere 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 innkeepers 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 or 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 a court martial shall inflict, tho 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, tho by our standing laws (still remaining in force, tho 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 justices at the common law; yet, by our militia laws before mentioned, 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 tranquillity. But our Mutiny Act makes no such distinction; for any of the faults above 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 penalties by sentence or judgment of the same." 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 in 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 constitution, the nobility and the 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 free men! for Sir Edward Coke[50] will inform us 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 the state of servitude quite consistent with the maxims of sound policy observed by other free nations. For the greater the general liberty is which any state enjoys, the more cautious has it usually been in introducing slavery in any particular order or profession. These men, as Baron Montesquieu observes, 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 toward 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 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.
FOOTNOTES:
[48] From the "Commentaries on the Laws of England."
[49] Author of "The Spirit of the Laws."
[50] Noted as jurist and as the author of comments on Littleton's "Tenures," a book commonly known as "Coke Upon Littleton." The great blot on his noble reputation is the brutality with which he prosecuted Sir Walter Raleigh.