by a jury and before justices at the common law; yet, by our militia laws before-mentioned, a much lighter punishment is inflicted for defertion in time of peace. So, by the Roman law alfo, desertion in time of war was punished with death, but more mildly in time of tranquillity. But our mutiny act makes no fuch diftinction: for any of the faults above-mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. This dif cretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to mili tary offences, has almost an abfolute legiflative power. "His "majefty, fays the act, may form articles of war, and constitute "courts martial, with power to try any crime by such articles, "and inflict penalties by fentence or judgment of the fame." A vast and most important trust! an unlimited power to create crimes, and annex to them any punishments, not extending [416] to life or limb! These are indeed forbidden to be inflicted, except for crimes declared to be fo punishable by this act; which crimes we have juft enumerated, and, among which, we may obferve that any difobedience to lawful commands is one. Perhaps in fome future, revifion of this act, which is in many respects haftily penned, it may be thought worthy the wisdom of parliament to afcertain the limits of military fubjection, and to enact exprefs articles of war for the government of the army, as is done for the government of the navy especially as, by our prefent conftitution, the nobi lity and gentry of the kingdom, who ferve their country as militia officers, are annually fubjected to the fame 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 afcertained and notorious: nothing is left to arbitrary difcretion: the king by his judges dispenses what the law has previously ordained; but is not z Ff. 49. 16. 5. a A like power over the marines is given to the lords of the admiralty, by another annual act "for the regulation "of his majesty's marine forces while « on shore." himself himself the legislator. How much therefore is it to be regretted that a set of men, whofe bravery has fo often preserved the liberties of their country, should be reduced to a ftate of fervitude in the midst of a nation of freemen! for fir Edward Coke will inform us, that it is one of the genuine marks of fervitude, to have the law, which is our rule of action, either concealed or precarious: "mifera eft fervitus ❝ ubi jus eft vagum aut incognitum." Nor is this ftate of fervitude quite confiftent with the maxims of found policy obferved by other free nations. For, the greater the general liberty is which any ftate enjoys, the more cautious has it usually been in introducing flavery in any particular order or profeffion. These men, as baron Montefquieu observes", feeing the liberty which others poffefs and which they themfelves are excluded from, are apt (like eunuchs in the eastern feraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to deftroy thofe 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 flaves: while, in abfolute and defpotic governments [417] where no real liberty exifts, and confequently no invidious comparisons can be formed, fuch incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments: 1. To prevent the introduction of flavery at all; or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themfelves an overmatch for the freemen. Much lefs ought the foldiery to be an exception to the people in general, 'and the only state of fervitude in the nation. BUT as foldiers, by this annual act, are thus put in a worfe condition than any other fubjects, fo by the humanity of our ftanding laws, they are in fome cafes put in a much better. By ftatute 43 Eliz. c. 3. a weekly allowance is to be raised in every county for the relief of foldiers that are fick, hurt, b. Sp. L. 15.. 12. * 4 Inft. 332. and maimed: not forgetting the royal hospital at Chelsea for fuch as are worn out in their duty. Officers and soldiers, that have been in the king's fervice, are by several statutes, enacted at the clofe of feveral 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 (7). And foldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, folemnities, and expenses, which the law requires in other cafes. Our law does not indeed extend this privilege fo far as the civil law; which carried it to an extreme that borders upon the ridiculous. For if a foldier, in the article of death, wrote any thing in bloody letters on his shield, or in the duft of the field with his fword, it was a very good military teftament". And thus much for the military flate, as acknowleged by the laws of England (8). e Stat. 29 Car. II. c. 3. 5 W. III. pulwere infcripferint gladio suo, ipfo tem, § 6. C. 21. & Si milites quid in clypeo literis fanguine fuo rutilantibus adnotaverint, aut in pore quo, in praelio, vitae fortem dereltn'quunt, bujufmodi voluntatem ftabilem effe oportet. Cod. 6. 21. 15. (7) By the 24 Geo. III. feff. 2. c. 6. all officers, foldiers, and mariners, who have been employed in the king's fervice fince 1763, and have not deferted, and their wives and children, may exercise any trade in any town in the kingdom without exception, and fhall not be removed till they are actually chargeable. The fame privilege is extended to all officers and foldiers who have been drawn by ballot, and have been honourably discharged, after three years actual fervice in the militia, But the employment of a husbandman is not a trade, and therefore he may be removed before he is chargeable. 3 T. R. 133. (8) It is now fully, established, that both the full pay and half pay of an officer, or any person in a military or naval character, cannot in any inftance be affigned before it is due; as the object of fuch pay is to enable those who receive it always to be ready to serve their country with that decency and dignity which their respective characters and ftations require. 47. R. 258. H. Bl. 628. THE THE maritime state is nearly related to the former: though much more agreeable to the principles of our free conftitution. The royal navy of England hath ever been it's greatest [418] defence and ornament; it is it's antient 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 affiduously cultivated, even from the earliest ages. To fo 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 fubftruction of all their marine conftitutions, was confeffedly 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. And yet, fo vaftly inferior were our ancestors in this point to the prefent age, that even in the maritime reign of queen Elizabeth fir Edward Coke' thinks it matter of boaft, that the royal navy of England then confifted of three and thirty fhips. The prefent condition of our marine is in great measure owing to the falutary provisions of the statutes, called the navigation acts; whereby the constant increase of English fhipping and feamen was not only encouraged, but rendered unavoidably neceffary. 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 merchandize out of or into the realm but only in fhips of the king's ligeance, on pain of forfeiture. In the next year, by ftatute 6 Ric. II. c. 8. this wife provifion was enervated, by only obliging the merchants to give English fhips (if able and sufficient) the preference. But the most beneficial statute for the trade and commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in 1650, with a narrow partial view: being. intended to mortify our own fugar iflands, which were difaffected to the parliament and still held out for Charles II, by stopping the gainful trade which they then carried on with the Dutch; and at the fame time to clip the wings of thofe our opulent and aspiring neighbours. This prohibited all ships of foreign nations from trading with any English plantations [419] without licence from the council of state. In 1651 the prohibition was extended alfo to the mother country: and no goods were fuffered to be imported into England, or any of it's dependencies, in any other than English bottoms; or in the fhips of that European nation, of which the merchandize imported was the genuine growth or manufacture (9). At the restoration, the former provisions were continued, by ftatute 12 Car. II. c. 18. with this very material improvement, that the mafter and three-fourths of the mariners fhall also be English subjects (10). MANY laws have been made for the fupply of the royal navy with feamen; for their regulation when on board; and to confer privileges and rewards on them during and after their fervice. 1. FIRST, for their supply. The power of impressing feafaring men for the fea fervice by the king's commiffion, has been a matter of fome difpute, and fubmitted to with great reluctance; though it hath very clearly and learnedly been fhewn, by fir Michael Fofter), that the practice of impreffing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular feries of precedents to the prefent time: whence he concludes it to be part of the common law. The difficulty arifes from hence, that no ftatute has exprefsly declared this h Mod. Un. Hift. xli. 289. j Rep. 154. * See alfo Comb. 245. Barr. 334 No privileges are to be al (9) By the 26 Geo. III. c. 6o. lowed to any fhips which are not part of his majesty's dominions: and every fuch fhip must be registered in the port to which the belongs, according to the direc tions of that ftatute, and the 27 Geo. III. c. 19. (10) Under forfeiture of the fhip, and all the goods imported or exported. power |