Esquires and *Esquires and gentlemen are confounded together by sir Edward [*488] Coke, who observes(s), that every esquire is a *gentleman, and [ *489] a gentleman is defined to be one qui arma gerit, who bears gentlemen. coat armour, the grant of which was thought to add gentility to a man's family. It is indeed a matter somewhat unsettled, what constitutes the distinction, or who is a real esquire; for no estate, however large, per se confers this rank upon its owner. Camden, who was himself a herald, reckons up four sorts of esquires(t): 1. The eldest sons of knights, and their eldest sons in perpetual succession (u). 2. The eldest sons of younger sons of peers, and their eldest sons in like perpetual succession: both which species of esquires sir Henry Spelman entitles armigeri natalitii(x). 3. Esquires created by letters patent from the crown, or other investiture, and their eldest sons. 4. Esquires by virtue of their offices: as justices of the peace, and others who bear any office of trust under the crown. To these may be added the esquires of knights of the bath, each of whom constitutes three at his installation: and all foreign peers; *for not only these, but the eldest sons of peers of Great [ *490] Britain, though frequently titular lords, are only esquires in the law, and are so described in legal proceedings (y). As for gentlemen, says sir Thomas Smith(z), they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. A yeoman is one having free land of forty shillings by the year; who was anciently thereby qualified to serve on juries, vote for knights of the shire, and do any other act, for which the law requires one who is probus et legalis homo(a). Yeomen. Labourers. (8) 2 Inst. 668. (t) 2 Inst. 668. (u) 2 Inst. 667. (x) Gloss. 43. The rest of the commonalty are technically designated labourers. Barons' younger sons. Knights bannerets. Various Orders. Knights of the bath. Baronets' eldest sons. Yeomen. Tradesmen. Artificers. Labourers. (4) As to the precedence of serjeants at law, see 7 Car. & P. 371, note (a). (5) See stat. 8 & 9 Vict. c. 100. [ *491] *CHAPTER XIII. THE MILITARY AND MARITIME STATES. THE military state will here be taken to include all such persons as are peculiarly appointed for the safeguard and defence of the realm, by service upon land. Military state. Our laws and constitution did not originally know any such state as that of a perpetual standing soldier, bred up to no other profession than Yeomen of the that of war(a): and it was not till the reign of Henry VII. that the kings of England had so much as a guard about their guard. persons. (123) In the time of our Saxon ancestors, the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every On the Saxon province and county in the kingdom; and were taken out of the military force. principal nobility. Their duty was to lead and regulate the English armies, with a very unlimited power. And because of this great power they were elected by the people in their full assembly, or folkmote, following still that old fundamental maxim of the Saxon con (a) Regular troops, however, of some sort must have been maintained in those fortified places, where some show of defence has been always kept up; 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. Little is now known as to the nature of these garrisons; except that they were chiefly accustomed to the use of artillery, and that their whole number was insignificant, and probably at no time equal to resist any serious attack. (123) In a country like ours, where the right to keep and bear arms is unquestioned, and where the volunteer forces are so efficient, a large standing army is entirely unnecessary. The settled principles of the nation and the will of the people upon this subject have been incorporated into the fundamental law. * * * "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." U. S. Const. Amendments, art. 2. "No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law. U. S. Const. Amendments, art. 3. "The congress shall have power to raise and support armies; but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." U. S. Const., art. 1, § 8. "No state shall, without the consent of congress, * keep troops or ships of war, in time of peace * * * * * or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." U. S. Const., art. 1, § 10. "The president shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States." U. S. Const., art. 2, § 2. The constitutions of the several states have many of the foregoing provisions inserted in them. And besides this, congress has enacted a large body of laws relating to the army and the navy. So in each of the states there are laws relating to the military service. And to them resort must be had when it is important to ascertain the provisions of any of these statutes. stitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power *was delegated [ *492] to him by a vote of the people themselves (b). So, too, the ancient Germans, the ancestors of our Saxon forefathers, had their dukes as well as kings, with an independent power over the military, as the kings had over the civil state. The dukes were elective, the kings hereditary: or in the words of Tacitus(c) "reges ex nobilitate, duces ex virtute summunt;" in constituting their kings, the family or blood-royal was regarded, in choosing their dukes or leaders, warlike merit: just as Cæsar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defence, they elected leaders to command them (d). The large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown; and we find a very ill use made of it by Edric, duke of Mercia, in the reign of king Edmund Ironside, who, by his office of duke or heretoch, was entitled to a large command in the king's army, and by his repeated treacheries at last transferred the crown to Canute the Dane. King Alfred is by some thought first to have settled a national militia in this kingdom, or, at all events, by his prudent discipline to have made all the subjects of his dominion soldiers; but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power; which enabled duke Harold, on the death of Edward the Confessor, though a stranger to the royal blood, to mount, for a short space, the throne of this kingdom, in prejudice of Edgar Atheling, the rightful heir. Upon the Norman conquest, the feudal law was introduced here in all its rigour, the whole of which was built *up on a military plan. I shall [ *493] The military part not now enter into the particulars of that constitution, of the feudal system. which belongs more properly to the next volume of our Commentaries; but shall only observe, that in consequence thereof all the lands in the kingdom were divided into what were called knight's 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 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 a special clause(e) in the charter of William the Conqueror, which in the king's name commands and firmly enjoins the personal attendance of all knights and others; "quod habeant et teneant se semper in armis et equis, ut decet et oportet: et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere." This personal service was, in the reign of Henry II., first allowed to be commuted into a pecuniary payment, and military tenures were abolished by 12 Car. 2, c. 24. In the mean time we are not to imagine that the kingdom was left wholly (b) See Bede, Eccl. Hist. 1. 5, c. 10. (c) De Morib. Germ. 7. (d)" Quum bellum civitas aut illatum de fendit aut infert, magistratus qui ei bello præ- of armour. without defence in case of domestic insurrections, or the prospect of foreign invasion. Besides those who by their military tenures were bound to perform On the statutes forty days' service in the field, first the assize of arms, enacted(ƒ) 27 Hen. 2, and afterwards the statute of Winchester (g), under Edward I., obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace; and constables were appointed in all hundreds by the latter statute to see that such arms were provided. These weapons were *changed by [ *494] the statute 4 & 5 Ph. & M. c. 2, into others of more modern service; but both this and the former provisions were repealed in the reign of James I.(h). While they continued in force, however, it was usual from time to time for our princes to issue commissions of array, and send into every county officers in whom they could confide to muster an array (or set in military order) the inhabitants of every district; and the form of the commission of array was settled in parliament in the 5 Hen. 4, so as to prevent the insertion therein of any new penal clauses(i). But it was also provided (k) that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in case of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of king Henry VIII., or his children, lieutenants began to be introduced(), as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 & 5 Ph. & M. c. 3, though they do not seem to have been then universal, for Camden speaks of them (m) in the time of queen Elizabeth, as *magistrates con[*495] stituted in "troublesome times especially; but the introduction of these commissions of lieutenancy, which contained in substance the same powers as the old commissions of array, caused the latter to fall into disuse. In this state things continued, till the repeal of the statutes of armour in the reign of king James I.(n): after which, when king Charles I. had, during his The militia under northern expeditions, issued commissions of lieutenancy, and Charles I. exerted some military powers, which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which perhaps might be somewhat doubtful(0); but also seizing into (f) Hoved. A. D. 1181. (g) 13 Edw. 1, c. 6. (h) Stat. 1 Jac. 1, c. 25; 21 Jac. 1, c. 28. (2) Rushworth, part 3, pp. 662, 667; see 8 Rym. 374, &c. (k) Stat. 1 Edw. 3, stat. 2, cc. 5, 7; 25 Edw. 3, stat. 5, c. 8. The former of these enactments was intended to put a stop to the proclamations, which, especially in the reigns of Edw. I. and Edw. II. (Rym. Fœd. passim), had been issued 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 require their service. These arbitrary conscriptions being thus checked by the parliament, Edw. III. had recourse to another mode of levying sol diers, without his own cost, by calling on every county and principal town to furnish a specified number of troops. Against this, the parliament provided a remedy in the latter of the above-cited statutes, which enacts, "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 in parliament." Both these statutes were recited and confirmed by 4 Hen. 4, c. 13. See Hall. Const. Hist. vol. ii. 11th ed. p. 130. (4) 15 Rym. 75. (m) Brit. 159, edit. 1610. (n) 1 Jac. 1, c. 25, s. 7; 21 Jac. 1, c. 28, s. 11. (0) It was clearly contrary to the statutes of Edw. 3 and Hen. 4, though it seemed to be, their own hands the entire power of the militia, of the legality of which step there could never be any doubt at all. Soon after the restoration of king Charles II., when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recogThe abolition of nize the sole right of the crown to govern and command them, military tenures. and to put the whole into a more regular method of military subordination(p); and the order in which the *militia now stands by [ *496] law is principally built upon the statutes which were then enacted. It is true that each of these statutes has, for the most part, been repealed; but many of their provisions have, with the addition of some new regulations, been re-enacted. The present militia system is mainly regulated by 42 Geo. 3, c. 90, as altered and amended by many subsequent acts, the last of which is 32 & 33 Vict. c. 13. The present The general scheme of the legislature has been to discipline a militia laws. certain number of the inhabitants of every county, chosen by lot for five years(q); and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm (or any of its dominions or territories(r) ), nor in any case compellable to march out of the kingdom. They are to be exercised at stated times; and their discipline in general is liberal and easy; though, when called out into actual service, they are subject to the rigour of martial law, as necessary to keep them in order. This is the constitutional security which our laws provided for the public peace, and for protecting the realm against foreign or domestic violence.(124) in some degree, sanctioned by the 4 & 5 Ph. & M. c. 3; which, without repealing or adverting to those statutes, seems to recognize the right of the crown to levy men for service in war, by imposing penalties on all who absent themselves from the musters held for that purpose. See Hall. Const. Hist. 11th ed. vol. ii. pp. 128-135. (p) 13 Car. 2, st. 1, c. 6; 14 Car. 2, c. 3; 15 Car. 2, c. 4. (9) The militia is now raised by voluntary enlistment, and the power of enrolling by ballot has not been exercised for many years, having been suspended from time to time by various acts, from 10 Geo. 4, c. 10, to 31 & 32 Vict. c. 111. (7) 16 Geo. 3, c. 3. (124) In pursuance of the constitution of the United States, congress has provided, "That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state, or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officers of the militia as he shall think proper. And in case of an insurrection in any state, against the government thereof, it shall be lawful for the president of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other state or states as may be applied for, as he may judge sufficient to repress such insurrection." Act of Congress, Feb. 28, 1795; 1 Stat. at Large, 421, § 1. "Whenever, by reason of unlawful obstructions, combinations or assemblages of persons, or rebellion against the authority of the United States, it shall become impracticable, in the judgment of the president of the United States, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any state or territory of the United States, it shall be lawful for the president of the United States to call forth the militia of any or all the states of the Union, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever state or territory thereof VOL. I.-41 |