The History of the Army.
Maitland on the Revolution of 1688.
The Constitutional History of England.
Cambridge University Press 1909.
“ The last topic with which we can deal before passing to a new period is the history of the army—a matter of which we have hitherto said too little. After the Conquest the feudal tenures had supplied the king with troops; but the feudal array was an extremely clumsy weapon. The tenant by knight service was only bound to serve for forty days in the year—and there was constant friction between the king and his barons as to the conditions of the service—were they bound to serve in Normandy? were they bound to serve in Germany?—on more than one famous occasion these questions were raised, and the embarrassed king had to make concessions. Already in 1159 Henry II took the first scutage, by way of composition for personal serviced It is explained that his object was to spare the lives of his subjects and get
^ Traces of scutage have been found as early as the reign of Henry I. Round, Feudal England, p. 268. See M<:Kechnie, Magna Carta, pp. 86—90.
his foreign wars fought for him by mercenaries. Towards the end of his reign, in 1181, he revived and reorganized the ancient national force by his Assize of Arms. Apparently the idea of such a force had never ceased to exist; it had never become law that military service, at all events defensive military service, was limited by the system of military tenure. Every man, according to his degree, is to have suitable weapons—even the poorest free man is to have his spear and helmet. A national force, organized by counties, was thus created.
Henry III reissued the assize in an amplified form, and it forms the base of one of his son's great statutes, the Statute of Winchester. Its date is 1285, so there is just a century between it and the Assize of Arms\ Every free man between the ages of fifteen and sixty is to have armour according to his wealth. There are five classes, ranging from him who has £\^ of lands and 40 marks of goods, a habergeon, iron helmet, sword, knife and horse, down to him who is merely to have his bow and arrows. Twice a year the arms are to be viewed in each hundred by two elected officers called constables. These provisions occur in close connection with others enforcing the ancient duties of watch and ward, of hue and cry. If this national force is to be useful against the public enemy, it is to be useful also for police purposes, for apprehending malefactors and the like. Its officers you will, observe are 'constables'—the title is originally a military title, which spreads downwards from the king's constable, who along with the king's marshall arrays and leads the royal forces. Even the lowest officers in the national force become constables; the constable of the township looks after the armour of the township, above him are the constables of the hundred; they again are below the constable, the high constable (as he comes to be called) of the county. The military duties of the constable of the township are from the first allied with the duty of keeping the peace and apprehending malefactors—the ancient village officers, the reeves, the headboroughs (chiefs of the frankpledge), become also the constables, and lose their older names.
^ Select Charters^ pp. 154—6, 469—74.
To return. The obligation of this armed force, defined by the Statute of Winchester, to take part in war offensive or defensive, is for a long while very indefinite. Of course it could not be contended that the king might send every able-bodied man out of the realm to serve in France. We find that Edward I commissions certain of his servants to choose out a fixed number of able-bodied men from their respective counties. In other words, he issues commissions of array. The forces thus levied he pays at his own cost. The troops from a county are under the command of a royal capitaneiis or captain, in whom we may see the forerunner of the lord-lieutenant of later times. The sheriff would naturally be the head of the county force, and so in theory he remains; it is he who can raise the power of the county, the posse comitahis, for the pursuit of malefactors; but for actual warfare an annual officer (and permanent sheriffs the country will not stand) is not a good commander. So the sheriff loses his military functions at a time when the institution of permanent justices of the peace is sapping many other of his powers. Commissions of array become common under Edward II and Edward III, and the king does not always pay the soldiers whom he levies—he expects the counties to pay them ; the counties were required to provide arms not prescribed by the Statute of Winchester, to pay the wages of men outside of their own area and even outside of the kingdom. Complaints of this become loud. In 1327 the commons petition that they be not compelled to arm themselves at their own cost contrary to the Statute of Winchester, or to serve beyond the limits of their counties, except at the king's cost. The petition was granted by statute (i Edw. Ill, Stat. 2, c. 5) in this modified form. ' The king wills that no man be charged to arm himself otherwise than he was wont in the time of his (the king's) progenitors, 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.' But Edward had to make a further concession. By statute (25 Edw. Ill, Stat. 5, c. 8) it is accorded and assented that no man shall be constrained to find men-at-arms, hobblers nor archers, other than those which hold by such services, if not by common assent and grant made by parliament. Apparently those statutes were habitually broken or evaded. In 1402 they were confirmed by statute (4 Hen. IV, c. 13), and they seem to have been observed during the Lancastrian reigns. The Welsh and Scottish wars of Henry VI were regarded as defensive, resistances of invasion, and the county forces could lawfully be called to meet them. The army whereby Henry V won his victories in France consisted partly of soldiers voluntarily enlisted who had the king's wages, partly of forces raised by lords who served the king by indenture, by special bargain. During the Wars of the Roses both sides used the king's name for commissions of array, and the country got thoroughly accustomed to intestine war,compulsory service, and extorted loans and benevolences. The statutes of Edward III remained on the statute book ; so did the Statute of Winchester.
The Tudor despotism was not enforced by any standing army; that is one of the most noticeable things in the history of the time. One or two hundred yeomen of the guard and a few guards in the fortresses were the only soldiers that the king kept permanently in his pay. Commissions of array, however, were issued from time to time; the counties were compelled to provide soldiers even for foreign service, and the statutes of an earlier time seem to have been disregarded and perhaps forgotten. An important act of 1557 (4 and 5 Philip and Mary, c. 3) tal^es no notice of the old acts, but speaks of mustering and levying men to serve in the wars as a recognized legal practice, and, as it seems to me, implicitly sanctions impressment by means of commissions of array, even impressment for foreign service. Certain offences when committed by the soldiers when mustered and levied are to be tried by the king's lieutenant,'the lord-lieutenant' as he is here called. The usage of appointing a permanent lord-lieutenant for each county is said to date from this reign.
Another statute of this same year 1557 (4 and 5 Philip and Mary, c. 2) expressly repealed so much of every statute of earlier date as concerned the finding or keeping of horse or armour; and it enacted a new scale of armour, which replaced that ordained by the Statute of Winchester. But this statute was itself repealed in 1603 by I James I, c. 25, an act which repealed in a wholesale fashion a large number of the Tudor statutes. No reason is given for the repeal; Hallam suggests that the accession to the English throne of the king of Scotland had removed the chief necessity for a defensive force. But the repeal had a perhaps unexpected effect. Until 1850 it was our law that if statute A be repealed by statute B, and then statute B be si mply repealed by statute C, statute A is thus revived—so the Statute of Winchester came to life once more^ Then in the days of Charles I it became matter of hot debate whether the armed force which the old statutes created was at the king's disposal. This force was just acquiring the new name of militia, and the control over the militia became one of the chief points of controversy between crown and parliament. Meanwhile no standing army is kept up; for foreign warfare a temporary army is got together partly by virtue of feudal obligation, partly by voluntary enlistment, partly by impressment. However, in James's reign we find that the troops are not always disbanded immediately on their return to England, and we find that commissions of martial law are issued for their governance. Thus at the end of the reign, December, 1624, there are troops at Dover. A commission is issued to the Mayor and others empowering them 'to proceed according to the justice of martial law against such soldiers... and other dissolute persons joining with them...as commit any robberies, felonies, mutinies or other outrages or misdemeanours...and then to execute and cause to be put to death according to the law martial' Of the very questionable legality of such commissions we have before spoken : here let us notice that only by such means could a standing army be held together. This, I think, has been the verdict of long experience, that an army cannot be kept together if its discipline is left to the ordinary common law. These commissions, you will observe, went far beyond matters of military
^ 13 and 14 Victoria, c. ii. 5.
^ Pat. Roll, 22 Jac. I, part 4, printed in Prothero, Statutes and Constitutional Documents (1559—1625), pp. 398—9.
discipline—they empowered the commissioners to try soldiers 'and other dissolute' persons for robberies and other felonies, as well as for mutinies. The difficulty of keeping a standing army was, as James's successors found, a double difficulty— (i) that of maintaining any discipline without having recourse to illegal commissions, (2) that of paying troops without having recourse to illegal modes of raising money.
As regards the legality of pressing soldiers, we have this to remember in the king's favour, and it is too often forgotten, that the legality of pressing sailors seems to have been fully admitted. From an early time, certainly through the fourteenth century, we find that the king presses sailors and presses ships for transport and for naval warfare. This is done by means of commissions closely similar to the commissions of array. But while the commissions of arraying soldiers excited much opposition, and parliament was constantly petitioning about them and sometimes succeeded in getting statutes passed limiting the king's power, the pressing of sailors and ships seems not to have been a great grievance. All one hears by way of protest is that the sailors ought to be at the king's wages from the time when they are on board ship. A statute of 1378 (2 Ric. II, c. 4) distinctly recognizes the lawfulness of the practice—it speaks of sailors arrested and retained for the king's service, and provides a punishment for them if they run away. Many later statutes speak of pressing as a lawful process. There are several from the last century which do so by making exceptions; in these and those circumstances sailors are not to be impressed. No word in the Petition of Right or the Bill of Rights is directed against this prerogative; the class affected by it was, I suppose, too small to make its voice heard, or else the necessity of manning a navy was considered so great that the king's power was never called in question…”.
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