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land, since the abolition of military tenures, render great modifications in their application necessary. A review of the history of our military system from the Norman conquest will render this perfectly clear.
The Norman constitution, based on the feudal law, was essentially military. All the lands in the kingdom were divided into what were called knights' fees, in number above sixty thousand; and for every knight's fee a knight or soldier, miles, was bound to attend the king in his wars for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious. By this means the king had without any expense an army of sixty thousand men always ready at his command. And accordingly we find one among the laws of William the Conqueror,1 which in the king's name commands and firmly enjoins the personal attendance of all knights and others: quod habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et quod sint semper pro mpti et bene parati ad servitium suum integrum nobis explendum etperagendum, cum semper opus adfuerit quod nobis debent de feodis et tenementis suis de jure facere."2
The military tenants were often called out in expeditions against Scotland, and last of all in that of 1640; but the period of their legal service rendered them almost useless in war on the Continent. And even when they formed the more important part of the army, or heavyarmed cavalry, a body of archers, who served on foot, was absolutely necessary; and these were not regularly supplied by the system of feudal tenures, though this was the species of troops for which our English armies were 1 Co. Litt. 75, 76.
* L. of Wm, the Conqueror, c. lviii.
most celebrated. It seems very doubtful how far the king's prerogative extended, for two centuries or more after the Conquest, to compel his subjects to serve him, independently of tenure, in foreign war. On this subject, owing to the imperfection of our knowledge concerning the boundaries of constitutional law at that early period, we can do little more than look to precedents, which, however, are frequently more matter of fact than of law. But it would seem that the duty incumbent on every citizen to defend his country, as well from foreign agression or injury, as from intestine disorders, was fully recognised by the common law. The king, as the head and representative of the nation, appears to have been especially entrusted with the duty of providing for these emergencies. Thus there are several instances under Edward I. and Edward II., sometimes of proclamations to the sheriffs, directing them to notify to all persons of sufficient estate, that they must hold themselves ready to attend the king whenever he should call on them; sometimes of commissions to particular persons in different counties, who are enjoined to choose and array a competent number of horse and foot for the service of the crown.' But this branch of the prerogative was defined by stat. 1 Ed. III. c. v., whereby it is enacted, “that no man from henceforth shall be obliged to arm himself, otherwise than he was wont in the time of his progenitors, the kings of England; and that no man be compelled to go out of his shire, but where necessity requireth, and sudden coming of strange enemies into the realm; and then it shall be done as hath been used in times past for the defence of the realm.” This statute shews clearly, that there existed a prerogative to call for the military services of the subject in cases of necessity, * Rym. temp. Ed. I. and Ed. II.
and, at the same time, circumscribes the discretionary power vested in the crown, of deciding on the existence of this necessity. An arbitrary power of enlisting compulsorily seemed, indeed, to be at variance with the liberties guaranteed by the great charter. The statute 1 Ed. III. c. v., which is of no slight consequence in our constitutional history, put an end to these arbitrary conscriptions. But king Edward III. would not be deprived of the means of carrying on his military operations; and he accordingly recruited his armies by requiring the counties and principal towns to furnish a certain number of troops. The parliament, however, checked this proceeding, by enacting1 "that no man shall be constrained to find men-at-arms, hoblers, nor archers, other than those who hold by such service, if it be not by common consent and grant of parliament." Both this statute and the 1 Ed. III. c. v. were recited and confirmed by stat, 4 Hen. IV. c. xiii.
It appears that these statutes produced the discontinuance of compulsory levies for foreign service. But Edward III. and his successors, in their wars with France, recruited their armies by contracts with men of high rank or military reputation, whose influence enabled them to procure voluntary enlistments when the royal authority was insufficient for that purpose. This was, however, a very expensive mode of raising an army. Under the house of Tudor, a more effectual, though less constitutional method was resorted to. Henry VIII. sometimes obliged counties to furnish men; and the prerogative of pressing soldiers, even to serve out of the kingdom, became established so far as it could be by mere usage. That prerogative was sanctioned by stat, 4 and 5 Phil, and Mary, c. iii., which 1 Stat. 25 Ed. III. c. viii.
imposes penalties upon persons absenting themselves from musters commanded by the king's authority, for the purpose of levying men for service in war. No regular army had hitherto been kept up, though our kings had their body-guards of military attendants, of which something should here be said. King Richard I. instituted a guard of sergeants-at-arms, in imitation of a body-guard formed by Philip Augustus, king of France, when on a crusade, to guard himself against the subjects of the old men of the mountain, famous for their daring assassinations." The number of these sergeants is limited to thirty, by stat. 13 Ric. II. st. 1, c. vi.; and the two houses of parliament, the lord chancellor, and the lord high treasurer of England, have each the attendance of one sergeant, by allowance of the crown. They are called in the old books virgatores,” because they carried silver wands, or rods, gilt with gold, as they now do maces. Henry VII. established another species of household force,—namely, the yeomen of the guard, whose number was at first fifty, and seems never to have exceeded two hundred. They have always been commanded by a person of high rank or quality, with the title of captain, who is always of the privy council, and attends in the royal palace. To this body king Henry VIII. added a guard called the band of gentlemen pensioners. They consist of forty gentlemen, who have the rank of esquires, and are commanded by a captain, who is always a privy councillor and a person of high rank. But this institution has fallen into decay, having been filled, for the most part, with persons of very inferior condition, who have never been soldiers. And such a departure from the
| Grose, Mil. Antiq. vol. i. p. 175. * Fleta, lib. ii. c. xxxviii. Crompt, Jur. 9.
original design of the body is more especially to be regretted, because it might be made an honourable retirement for officers who have served their country.
These, bodies of guards were, however, quite insignificant, except as part of the household, and attendants of the sovereign. The few fortified places in the kingdom, such as the Tower of London, Portsmouth, the castle of Dover, the fort of Tilbury, and, before the union of the crowns, Berwick, and some other places on the Scottish border, were garrisoned with troops trained to the use of artillery; but their numbers were probably small.
Such were the strictly military forces serving whether by virtue of tenure or enlistment. The more domestic and defensive force, designed for the preservation of tranquillity, and the defence of the several counties from external attacks, was perfectly distinct.
The Anglo-Saxon laws required every freeman, or at least every freeholder, to defend his county against the invasion of an enemy; and the earlderman, or earl, was the proper commander of this militia, so long as that officer retained the government of the county. It was rendered more effective by the assize of arms, 27 Hen. II.,1 whereby every freeman, according to his degree, and the value of his estate, was obliged to provide a determinate quantity of such arms as were then in use, in order to keep the peace. The statute of Winton, 13 Ed. I. c. vi., extended and enforced these regulations. It was thereby provided, that every man between the ages of fifteen and sixty was to be assessed, and sworn to keep armour according to the value of his lands and goods; for fifteen pounds and upwards in rent, or forty marks in goods, a hauberk, an iron breastplate, a sword, a knife, and a horse; for smaller property, less expensive arms. A view of this armour was to i Hoveden, A.d. 1181.