in a previous part of this work, the more the people, by which is meant well-selected representatives of the people, who are governed by the laws, have to do with framing and reforming them from time to time, the nearer they approach to self-made laws, and the more readily and easily they become assimilated to the thoughts and business of daily life; the more eager and satisfied all citizens are to range themselves on the side of the law and give to it their entire confidence. When this condition of things is attained, there is an end to the barbaric habit of clothing oneself in triple coats of mail, and to girding on daggers and loaded arms. Each individual, inspired with this confidence, ceases thereafter to think of anything beyond more peaceful weapons. The processes of courts, the bailiffs, and the peace officers then become to him as ample an escort, as if all the posse comitatus, the land and sea forces, were always at his side and waiting on his signal.

It was not to be wondered after the experience of the civil wars, and all that led to them and followed from them, that the champions of our constitutional freedom should have retained in their inventory of personal securities the right of each individual to bear arms. It was put prominently forward in the Bill of Rights, owing to the right of wearing arms having been previously refused to Protestants, while it was allowed to Papists. The Bill of Rights expressly declared, that thenceforth "the subjects which are Protestants may have arms suitable to their conditions, and as allowed by law." 2 Since that time, though the use of arms has been wholly discontinued, and their name almost forgotten for purposes of personal defence, the law remains unimpaired as it was then deliberately settled.

Compulsory service as a soldier.—A duty arising out of this subject of bearing arms, and in some respects a correlative duty, is that of serving the state as a soldier. That some citizens must be found able and willing to serve in that capacity is an axiom of government in modern as well as ancient nations. And how far any one can, against his will, be forced to do this duty is an important feature in every law, and closely touches every man's liberty of action. It was said by a judge in Hampden's case, that 1 See ante, pp. 37, 38. 2 W. & M. Sess. 2, c. 2.

A

every man was bound in his own person to serve the king for the defence of the realm.1 And however loose was the early practice, there seems to have been for centuries a vague acquiescence in more or less of compulsion in military service. The tenure of lands in feudal times compelled the holders of knights' fees to give forty days' service each year. The assize of arms enacted by Henry II. compelled each, according to his estate, to find arms. And commissions of array were the occasional means of seeking out men able and ready to obey the call to arms. A statute of Edward III., however, prohibited arbitrary conscription and compulsory pressing of soldiers.2 usage had sprung up of pressing soldiers for service, whether in Ireland or foreign expeditions. But the Long Parliament, reciting, that, by the laws of the realm, none of his majesty's subjects ought to be impressed or compelled to go out of his country to serve as a soldier in the wars, except in case of necessity, of the sudden coming in of strange enemies into the kingdom, or except they be otherwise bound by the tenure of their lands and possessions, passed an act authorising the crown to impress for the Irish rebellion. The Long Parliament thus condemned the practice of impressment for the army as a general rule.*

13 St. Tr. 1185.

2 The laws of Moses, like those of all subsequent legislatures, made it imperative, that all persons able to bear arms, in other words, all males above twenty years of age, should be subject, on emergencies, to give their services as soldiers, against the common enemy.Numb. i. 3-46; xxvi. 2. A few exemptions were allowed, such as those who had built a house, but not yet taken possession; who had planted a vineyard, but not eaten of the produce; who had just married, or were about to marry a wife.-Deut. xx. 5, 6, 7; xxiv. 5. Every Athenian between the age of eighteen and sixty was bound to serve in the army. Each Roman eques was allowed a horse at the public expense, the orphans and unmarried women contributing funds for the purpose.—1 Niebh. Hist. 461. Every freeborn Roman between seventeen and forty-six was liable to serve in the army, and if a defaulter he was liable to stripes or fines, or confiscation of property, or imprisonment, or even to be sold as a slave.-Smith, Dict. "Exercitus.' 3 16 Ch. I, c. 28.

4 "The commission of array arose out of a confusion of rights and duties. The duty of every man to arm himself for the purpose of defence, and for the maintenance of the public peace, a duty which, in the form of the fyrd, lay upon every landowner, and, under the Assize of Arms and Statute of Winchester, on the whole communa

By a statute of Anne, justices of the peace were authorised to press as soldiers all who had no lawful trade or sufficient to live upon:1 and the press laws have generally been defended on the ground, that such legislation is no restriction on liberty, because all are by the law of the land under an obligation to fight the country's battles.2 Attempts had been sometimes made also to compel imprisoned debtors, to compel paupers and criminals, to serve in the army. And at later dates commissioners were authorised to seize those who had no means to support themselves.3 The prerogative of pressing soldiers having thus been discontinued, an impressment was authorised by statute, when the American War in 1779 occurred, of all idle and disorderly persons, not following any lawful trade or having some substance sufficient for their maintenance. Since then bounties and the ordinary attractions by enlistment have sufficed as a means of raising sufficient soldiers for emergencies.

Enlistment of soldiers now an ordinary contract.-While impressment of soldiers for the army is now neither legal nor usually authorised even by parliament, the finding and engaging of men has become little else than an ordinary contract of service, which one may accept or refuse at discretion. But as there are some slight peculiarities attending the early stages of enlistment, which bear closely

liberorum, the duty of the sheriff to examine into the efficiency of equipment, as a part of the available strength of the shire, the right of the king to accept a quota from each community to be maintained by the contributions of those who were left at home, an acceptance which had been welcomed by the nation as a relief from general obligations, such duties and rights were of indisputable antiquity and legality. The right of the king to demand the service of labourers and machinists at fair wages, was a part of the system of purveyance, and the impressment adopted by Edward I. was probably a reform rather than an abuse of that right. Yet out of the combination of these three, the assize of arms, the custom of furnishing a quota, and the royal right of impressment, sprang the unconstitutional commission of array. This existed in full force in the worst times of Edward II. and Edward III. but dated back to William Rufus. Edward I. paid the wages of his forced levies. Under Edward II. the counties and townships had to pay them.”—2 Stubbs, C. H. 539 ; 2 Hallam Const. H. 129.

1 2 & 3 Anne, c. 13; 6 Parl. Hist. 335.

2 15 Parl. Hist. 888. 3 30 Geo. II. c. 8. 4 19 Geo. III. c. 10; 20 Parl. Hist. 114.

on personal liberty, it will be proper to notice these at this place.

When a person is enlisted into her majesty's service, he is allowed a period of ninety-six hours, and he is obliged to take at least twenty-four hours to make up his mind, whether he will go on with the engagement or withdraw, and he may within the interval, in presence of a justice, rescind his engagement by repaying his enlistment money and smart money. If he cannot make the payment, he must either be attested or be treated as a rogue and vagabond, and committed for three months to prison.2 And where an apprentice enlists, concealing his apprenticeship, he can only be reclaimed by the master in certain cases and within a month, on verifying the facts before a magistrate.3

Punishment of soldiers deserting.-Though, when a soldier has once entered the service, his subsequent conduct and all the remedies relating to it belong merely to the contract, and flow out of it as naturally as in the case of other contracts, yet there are some peculiarities, both as regards desertion of the service and the arrest and punishment for offences committed during its currency which call for special notice. And on this account alone these points are here introduced, for much of the nature, general duties, and punishments of the military service belong to the head of government, since soldiers are the sinews of war, and war is the business of government alone.

Deserters from the king's service, after being mustered and receiving wages, were declared at one time to be felons,* and are in war still liable to be sentenced by court-martial to death or penal servitude. But in a country, where the business of a soldier originates in contract, and much of the life of a soldier is spent in works of peace, life is never forfeited for such an offence. When a soldier deserts, in time of peace, he is liable to be apprehended by any person, and taken before a justice of the peace, who may send him to the head-quarters of his regiment, or keep him in prison till communication is made to the Secretary of State.

The

The smart money is

1 Mutiny Act, 39 & 40 Vic. c. 8, § 44. twenty shillings. 2 Ibid. §§ 46, 47. 4 18 Hen. VI. c. 19. 5 39 & 40 Vic. c. 8, § 34. a deserter to be apprehended is entitled to a reward of forty shillings.

3 Ibid. 57, 58. The person causing

fraudulent confession of being a deserter subjects the person to treatment as a rogue and vagabond.1 And to advise and aid desertion is a misdemeanour.2 But no one can break open a dwelling-house without a justice's warrant in order to search for a deserter.3

Arrest of soldiers for crime or debt.-A soldier has all the ordinary rights and duties of a citizen. While a soldier continues in the army, he is liable to be tried by the ordinary courts, both in civil and criminal matters. But in executing the process of the courts, he is not liable to be taken out of the service of the army, except on a charge of felony or misdemeanour. For these grave crimes he is treated like other citizens, except where the misdemeanour relates to his own particular duties. He may, however, be arrested in respect of a debt exceeding thirty pounds, where an arrest would be otherwise competent. In other cases and matters he cannot be taken away from his duties, and the process of the courts or of justices purporting to do so is altogether void. But in all cases of felony and misdemeanour, or debts above thirty pounds, officers and soldiers are dealt with as if they were ordinary citizens, and for a commanding officer to refuse to deliver up to the civil magistrate an accused person under his command, or to obstruct the course of justice, renders such officer liable to be cashiered from the service.5

Peculiar punishments in army—military flogging.—There are certain crimes punishable with death in a soldier or officer, as being of a heinous nature and peculiar to his calling. Such are exciting mutiny or sedition-misbehaviour before the enemy-abandoning or sleeping on his post-holding correspondence with the enemy-deserting the service-striking or disobeying a superior officer-and some others. And the sentence of death, if pronounced, may be commuted by her majesty into penal servitude for five years, or to imprisonment. And it is specially enacted, that no court-martial for any offence committed within the Queen's dominions during a time of peace can sentence any soldier to corporal punishment. Such a punishment may, however, be inflicted on a soldier while on active service, if he is guilty of mutiny, insubordination, 3 Ibid. § 82. 4 Mut. 7 Ibid. 16.

1 39 & 40 Vic. c. 8, § 37. Act, § 40. 5 Ibid. § 76.

2 Ibid. § 81. 6 Ibid. § 15.