Declaration of tive of the statutes by which the Militia was settled, laid down in the preambles the great constitutional doctrine which these the Preroga- words embody: "Forasmuch as within all His Crown. Majesty's realms and dominions, the sole supreme government, command, and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was, the undoubted right of His Majesty and his royal predecessors, Kings and Queens of England; and that both or either of the Houses of Parliament cannot nor ought to pretend to the same, nor can nor lawfully may raise or levy any war, offensive or defensive, against His Majesty, his heirs or lawful successors; and yet the contrary thereof hath of late years been practised, almost to the ruin and destruction of this kingdom; and during the late usurped Governments many evil and rebellious principles have been instilled into the minds of the people of this kingdom, which, unless prevented, may break forth to the disturbance of the peace and quiet thereof." Militia of each county Lords-Lieu tenant. 10. It then placed the Militia of each County under the Government and Command of a Lieutenant to be placed under appointed by the Crown,' and gave to him the appointment of Deputies and of all Officers, with a power reserved to the Crown of commissioning or of displacing them at any time. The force, though strictly local, could be led to any county for the suppression and defeat of insurrection, reCavalry and bellion or invasion. It was to consist of horse and foot infantry. Numbers indefinite. soldiers, provided by or at the expense of the owners of property-not of land exclusively-in the proportions set out in the Act. Its numbers, as dependent upon the wealth of the inhabitants, were undefined, nor does it appear from the Commons' Journals that any exact estimate of the probable number that would be available under these statutes was ever laid before Parliament.2 11. The pay of the soldier was fixed by statute, and when the soldier was called out for actual service had to be provided for one month in hand, by his master or pro Pay fixed by statute. 1 Blank forms 1662, July 6, vol. lvii. Cat. of State Papers Chas. II., p. 430. 2 In the Debate of 15 Mar. 1688-9, the number of the Militia is spoken of as 150,000 men, 5 Parl. Hist., p. 181. CHAP. III. Constitution of the Militia Force. 35 vider, but to be recouped to him out of the King's public treasury or revenue, and until so recouped no further charge Expense of it could be legally made by the Crown for Militia service.1 how borne. The pay earned, and the ammunition used during the fourteen days' annual muster or exercise, was borne by the master or provider, and not by the Crown.2 Arms, what vided. 12. The arms to be provided were specified and described, but by an Act of the next reign the Lieutenants and their deputies had power to direct the length and and how prosize of the infantry soldier's musket.3 If arms were lost in service, there was no obligation imposed on the subject to replace them until the expiration of a year. "4 13. The County was charged with making provision for a fund afterwards known as "trophy money," which was to be Trophy appropriated to ammunition and other "necessaries," Money. and afterwards, as the Lieutenant should see fit, to the Inferior Officers employed on the force for their pains and encouragement. Its offences the Civil Ma 14. All the offences of soldiers were to be punished by the civil magistrate: the power to make Articles of War being advisedly excluded from the Act. The officers punished by had, however, power to inflict pecuniary mulets, and gistrate. upon default of payment to imprison-a feeble punishment for the crime of desertion or neglect to attend Military duty. Bands (ex London) to be 15. One of the great objects which Parliament had in view being to organize, under lawful authority proceeding Trained from the Crown, all men trained and arrayed in the cept those of use of arms, a direct prohibition was laid down in the discontinued. 14 Car. II. against the continuance of Train Bands beyond the 25th March, 1663; the Train Bands of the city of London and their auxiliaries only excepted. 5 16. The Lieutenant of the Crown thus became, with the 11 Geo. I., st. ii. c. 14. 9 Geo. I., c. S, sec. 7. 7 Geo. II., c. 23. 29 Geo. I., c. 8, sec. 7. 5 Sec. 20 & 27, and see note N, on the Honourable Artillery Company of London. 6 Some confusion arises as to the nature of the office of a Lord-Lieutenant, by reason of the same person usually, but not necessarily, holding the highest civil office in his county--that of Custos Rotulorum-in respect of which office he is a Justice of the Peace and quorum. Probably this confusion was in the mind of the compiler of the regulations for the discipline of the army, as Her Majesty's Lieutenant is not, though the Lord Warden of the Cinque Ports-a co-ordinate authority-is entitled to the courtesy of a salute from the troops. (Edition 1868, par. 119 et seqq.) 31 Geo. I. & II., c. 14. 4 Parl. Hist., p. 54. Lord-Lieutenant thus constituted a military sanction of Parliament, a Military Officer of the highest rank within his County; and, for better securing the peace of the kingdom, he had entrusted to him the power officer of the of ordering a search (to be executed by the joint agency of a Commissioned Officer and a Civil Constable) for, and of seizing arms as were in the possession of persons whom he judged to be dangerous to the peace of the kingdom. highest local rank. Militia so enjoyed pub 17. Such was the basis on which the militia force was placed by the legislature in Charles II.'s reign for the security constituted of the people from military oppression on the one lic confidence. hand, and from foreign enemies on the other. During the time these acts were in operation many attempts were made to frighten the civil community, as represented in Parliament, into mistrust of the militia; but the Parliament ever withstood alarm, and evidenced its confidence in the militia by readily increasing its strength. Militia trusted and standing army mistrusted by Parliament. 18. In examining the history of the Militia and of the Standing Army during the reigns of Charles II. and James II., it will be seen that Parliament reposed its confidence in the Militia when it declared its mistrust of the Standing Army. The reason for this difference of feeling towards the two forces is apparent. The militia was under the immediate influence of the English aristocracy, and made up of men having other means of subsistence than their pay. The officers were not courtiers, and they owed their allegiance rather to the institutions of the country in Church and State, as established, than to the King seeking to overthrow them. The Militia was so far beyond the control of the Crown that its numbers could not be reduced by it, nor could the influence of the Crown be exercised except through the Lords or Deputy Lieutenants, or in abrogation of their statutory rights. With regard to the Army, the case was the converse to that of the militia. Its existence was wholly dependent on the 1 4 Black. Com., p. 272. * Attorney General's Opinions, Bk. 722, p. 41; 33 Parl. Hist., p. 1494; Sloane v. Pawlett, 8 Modern Rep., p. 19; Gerard's case, 2 W. Black, Rep., p. 23. CHAP. III. Militia sanctioned by Parliament. 37 pleasure of the Crown, whose Subjects would have been pleased by reduction. The promotion of the officers and men rested exclusively in the breast of the King. Their pay and subsistence came from a Treasury having many other unsatisfied claims upon it. The army, therefore, became as dependent upon the Crown as the Crown was upon the army, and the Militia became a counterpoise to the Standing Army and a National Security. Parliament, therefore, firmly held the Militia within its own control, as a protection against the encroachments alike of the Crown and the Standing army upon the Liberties of the People. of this feel out the Charles II. 19. This feeling strongly developed itself throughout these reigns. In 1673 the Commons made their first appeal Development to the King to have the Militia ready at an hour's ing throughwarning for suppressing any tumultuous meeting of reigns of papists. In 1678, when the Commons discovered that and James II. papists had been admitted through the connivance of the secretary Williamson 3 into the command of the army, they proposed an address to the Crown, setting forth "the imminent dangers arising from popish practices," and desiring that the Militia might be drawn out, considering that nothing can so well resist these attempts as some part of the Militia-the settled legal forces of the kingdom-" actually in arms. The concurrence of the Lords being desired, that House discovered and apprised the Commons at a conference that the proposals of their address could only be carried out by a special order from the Crown, and that if carried out, the Militia Acts gave no power to raise money for the pay of the force. To remove these difficulties both Houses readily passed a bill, to which the King however refused to give the royal assent, alleging that it encroached upon his prerogative. 4 5 6 20. After the Revolution of 1688 the attention of many people was very strongly given to the reorganisation of Militia at the militia force as a substitution for the Standing th Army, but no measure was passed for that purpose 7 the Revo reorganised. 7 See vol. ii. State Tracts of William III.'s reign. "The Argument against the Standing Army," p. 565, et seq.; "The Militia Reformed," p. 595; "The History of Standing Armies," p. 656. 1 until the middle of the next century. An Act-which became for some time an annual one, and an authority from Parliament to the Crown-was passed for raising "the Militia for one year, though the month's pay formerly advanced be not paid." A.D. 1752. remodel Militia. 21. In the year 1752 the Commons gave a ready assent to the introduction of a bill to make the Militia more useProposal to ful, brought in by an Independent Member, and which they carried through all its stages up to the third reading, when, by the adjournment of the House, the bill was lost.3 22. The apprehension of a French invasion led to an increase in the Standing Army, amounting to 34,263 men in 1755, and 49,749 men in 1756; but, notwithstanding this increase, the House of Commons in the latter year 62,000 Mili- readily passed a measure (which was ultimately rejected by the House of Lords) for establishing a Militia force, consisting of nearly 62,000 men. A.D. 1756. Commons sanction an establishment of tiamen. Proposal re Lords-and reasons for their rejection. 23. This rejection of the Militia Bill, though promoted by the Ministry, was owing to the decided opposition of Jected by the the Lord Chancellor (Hardwicke), upon the ground that it would, if passed, endanger the prerogative of the Crown in many ways. The Bill repealed the declaratory preamble in the Militia Acts of Charles II.,-obliged the Crown, before calling out the Militia, to apprize Parliament of a previous intention to do so,-provided no pay, as the existing Acts did, for the men when called out;-and, lastly, placed the execution of the Act in the hands of the Land Tax Commissioners-a body of men solely appointed by the House of Commons, and to which no Peer was ever appointed. "The scale of power," said the Chancellor, "in this Government has long been growing heavier on the democratic side; and I think this would add a great deal of weight to it. What I contend for is, to preserve a limited monarchy entire; and nothing can do that but to preserve the counterpoise." 5 12 William and Mary, c. 12; 10 Com. Journ., pp. 102, 163, 212, 279. 214 Parl. Hist., pp. 1199, 2007. 415 Parl. Hist. p. 706 to 770. |