desertion, drunkenness on duty, disgraceful conduct, or any breach of the Articles of War. When this punishment is lawfully inflicted, it must not exceed fifty lashes.1 Marine service on shore, how controlled.-The marines when on shore are subject to rules like those of the army in respect to the matters specified.2 Corporal punishment is prohibited except during actual service in war, and then limited to fifty lashes.3 A marine cannot be kept in solitary confinement more than fourteen days at a time, or more than eighty-four days in any one year without equal intervals between.4 Militia service how far compulsory.-The great questions of policy, arising out of the relations between the crown, the parliament, and the militia, on which the civil war was said finally to turn,5 belong to the head of government, and need not be noticed here; but as the theory, on which the militia service is maintained, is described in the Militia Act of 1802 to be, that " a respectable military force, under the command of officers possessing landed property, is essential to the constitution," it is important for all citizens to know how far they are liable to be called upon against their will to take part in this force. If it is a compulsory duty, and such a theory could not be acted out without some compulsion, there must obviously be a mode defined by which part of the inhabitants are singled out from the rest, and withdrawn from all other employments to follow only this; or if it is an occasional and temporary employment, then that occasion and its usual conditions require to be known and considered. The mode of bringing compulsion to bear for militia purposes is this. The numbers of men to be supplied are assigned to each county by the privy council, and the meetings of lieutenancy, when the occasion arises, can call on the constables to return lists of all the men dwelling in the county, between the ages of eighteen and forty-five. The truthfulness of these lists is secured under heavy penalties. And when the returns have been duly settled, then the names are to be chosen by ballot. The person balloted shall be compelled to serve, subject to this proviso, that, if 1 Mutiny Act, § 22. 2 Marine Mutiny Act, 39 5 2 Hall. Const. H. 128. See further, post, Chap. viii. "Punishment." 6 42 Geo. III. c. 90, § 25. he shall produce a substitute, able and fit, and who shall have not more than one legitimate child, then such substitute shall be accepted. There are some exemptions expressly established, such as peers, those serving in other capacities as soldiers or sailors, clergymen, teachers licensed to teach in separate congregations, and any poor man having more than one legitimate child. And he who has once served is exempted, till his turn in rotation again arrives. He who, when chosen, refuses to serve, is fined ten pounds; and if such sum is not paid, he shall be treated as duly enrolled, and shall be liable to the same punishment as others are for desertion.1 While this compulsory service is one of the contingencies to which all men of a certain age are liable, still the occasion of enforcing a ballot with its compulsory levies has been rare, and is seldom again likely to arise, except in case of an invasion by a foreign enemy, or a similar extraordinary urgency. And accordingly the balloting of the militia and the raising of a sufficient domestic force in this way has long been suspended by statute. This Suspension Act has been annually renewed since 1865 as a matter of course.2 But while the compulsory part of the militia service has been practically suspended and abolished, there is a voluntary service of the same kind still kept up by means of enlistment. The rule as to enlistment and desertion is the same as that relating to the army.3 One characteristic of the militiaman's service is, that he cannot be forced against his will to serve in any place out of the United Kingdom, though with such consent he may serve in the Channel Islands, Man, Gibraltar, and Malta.1 In consideration of the importance of his duty, the militiaman is excused from serving the office of constable, and when a militia officer is appointed sheriff, the under-sheriff is bound to act for him while the militia force is embodied.5 Impressment of seamen, how far legal.-Though compulsory service in the army was abandoned in the time of Charles I. as a doctrine and as a practice untenable, except when parliament comes forward in the common interest 1 42 Geo. III. c. 90. 2 28 & 29 Vic. c. 46; 39 & 40, Vic. c. 3 38 & 39 Vic. c. 69, § 31. 4 Ibid. §§ 49, 50. 5 Ibid. 69. §§ 94, 95. and passes an act to legalise it during a pressing emergency and no longer-though service in the militia is in its worst form softened by the equality of the ballot, yet as regards the sea service a doctrine has prevailed, which in its gross injustice and inhumanity seems not to be surpassed in the most barbarous countries. This is the doctrine and practice of impressment for the navy, which has often been proudly pointed to as having flourished in England from the earliest times, and as having survived all the assaults of the wisest statesmen and sagacious legislators, and as having been recognised in all the courts for centuries as an unassailable axiom of the common law.1 Yet this is none other than a practice under which any government of the day, without the least authority from parliament, can, whenever sufficient men are not forthcoming to man her majesty's fleet, authorise any person who has lived a seafaring life to be seized in the street, or wherever he may be found, and carried off at a moment's notice by force, severed from his family and his occupations, and made to fight the country's battles in whatever part of the world the demon of war beckons. It is no wonder that Sir Mathew Decker, in 1756, wrote, that impressment put a free-born British sailor on the footing of a slave.2 By this practice free men have been entrapped in taverns, or while on board merchant ships, or on leaving churches, by a press-gang (often assisted by a military force), who have committed the grossest outrages on individuals, and whose atrocities have been the terror of country villages and towns, but have been extenuated 1 Justice FOSTER's elaborate argument, or rather apology, "upon the foot of reason and public utility," for impressment being part of the common law is founded on the essential fallacy, that, because some people have voluntarily chosen the seafaring life, therefore it is less unjust that the crown should seize upon them and make them do the work of defending the country than to seize on any of the other classes who did not choose the seafaring life. He first says, all men are equally liable to serve the country in an emergency, and then concludes that therefore a few of them only ought to be made against their will to serve, and that all the rest should go scot free. What possible difference it can make that some unfortunate people choose the seafaring life, no intelligent person can point out. The strong common sense of Benjamin Franklin, though unlearned in the law, refuted this illogical reasoning with masterly irony.-2 Franklin's Works, 331. 2 Decker on Trade, quoted 2 Parl. Deb. (3rd) 639. VOL. I. G G and protected by the courts against all question1 It has been held again and again to be sound policy as well as sound law. When, however, in 1559, the subject was maturely examined by a commission, it was agreed that such a system could no longer be successfully enforced.2 Authorities as to the law of impressment.-Coke asserted the law to be, that those only were liable to be pressed, who held lands on such a tenure, or who had covenanted so to serve, or who were the king's prisoners.3 Hale thought the legality of impressment doubtful; at least be expressly said he gave no opinion. Lord Camden said it was wholly illegal. Lord Mansfield admitted that usage alone supported it, and gave no better reason for it thẩn the trite maxim, that private mischief should rather be submitted to than that public detriment and inconvenience should ensue—a maxim which is too vague to challenge either assent, or acquiescence. Lord Chatham's British instincts recoiled from it. Lord Kenyon repeated, that impressment was founded on the common law, but was confined to persons whose employment is on the sea and on navigable rivers.7 Sir Mathew Foster is credited with the distinction of being the champion of this anomalous doctrine, and he has refined and strained law (which has on other subjects sometimes been called the perfection of reason) to such an extent, that its best friends can in modern times scarcely recognise it. That impressment had prevailed from the earliest times seems to have been undisputed, and yet this, the leading idea, has carried all before it. Though we know this phrase is but a flourish of rhetoric, and points to an epoch posterior to Tacitus and Cæsar, posterior to Canute and Alfred, wonderful has been the respect to the unknown and unsearchable wisdom it is taken in this instance to indicate and embody. The legality of impressment was again defended by Mr. C. Butler, who had the benefit of former championship, on the following grounds. It is said, that the navy must be supplied with men, because it is essential to the existence of the nation; and 1 19 Parl. Hist. 81. 2 Rep. Com. Navy, 1859, p. 11. 71. 1 Hale, P. C. 678. 5 R. v Tubbs, Cowp. 512. Hist. 602; 20 Parl. Deb. (3rd) 678. 7 R. v Fox, 5 T. R. 8 Foster, Cr. L. 178; 18 St. Tr. 1323. 3 1 Inst. 6 15 Parl. 276, 417. that to get men by bounties is extravagantly costly, and impracticable. It is no great hardship to seize seamen and to single them out for a compulsory service, because all law is full of inequalities, and one equality more cannot make much difference. When a seaman is made to serve in the king's ships, it is only slightly varying his own occupation. Besides, it has been the custom in all ages of our history for the admiralty or the crown to authorise seamen, and often landsmen generally, to be seized and impressed; and many statutes expressly refer to the practice as part of the common law. Moreover it must be a right inherent in every government to call on particular citizens to act for the public interest as they may be required.1 Such is the apology offered. Essential injustice of impressment. That many nations, especially ancient and mediæval nations, have in the desperate turns of fortune resorted to impressment in order to man their ships, should scarcely be deemed a lawful or meritorious origin for any English rule of law. That those who have the power should compel and force those who are at their service to do anything they please, is an axiom of history. But all the wisdom invoked from the 1 According to Thucydides, the Athenians in an emergency pressed sojourners as well as citizens into their ships.—Thucyd. b. iii. In the latter days of the Roman republic force was used to obtain recruits. Sallust; Gibbon, Decl. and F. c. i. In a later age Arcadius and Honorius laid down the rule, that individuals may keep vessels, but must always be at the call of the public--Cod. Theod. b. xiii. tit. 7, c. 2. In all periods of Venetian history, on the eve of war, it was the practice for the government to arrest merchant ships and all hands on board, and use them for the public service. Danegelt was a tax of one shilling on every one in the kingdom to fight or buy off the Danes.-Chron. Sax. 136. Domesday Book mentions places bound to find the king with seamen and materials for ships.-Seld. Mar. Cl. The merchants of the Cinque Ports were bound to find and equip at their own expense a certain number of ships.-4 Inst. As early as the reign of Edward I. the admiralty had powers conferred by writ to compel merchants and mariners to find and serve in ships.-Bac. on Gov. pt. ii.; Scobell, Coll. ; 2 Stubbs, C. H. 288. From the reign of John orders used to be issued by the crown to arrest all ships and men, and the public service was treated as paramount. And express authority by statute has sometimes been conferred on the lord admiral to impress various classes of persons for the navy.-16 Ch. I. c. 5; 16 Ch. I. c. 23, § 26. |