1 of Array. keep arms leading from one market town to another should be widened, so that there be neither dyke, tree nor bush, whereby a man may lurk to do hurt," within 200 feet of each side of the road. The provisions of the Statute of Winchester with respect to the arming of the men of each county were more immediately directed to the preservation of internal peace, by rendering more effective the power of summoning the posse comitatus, which the sheriff, as chief conservator of the peace of the county, had always possessed. But these local forces still continued available for the purposes of National defence; and from the thirteenth down to the middle of the sixteenth century, it was customary, whenever invasion was apprehended from Scotland or France, to empower special Commissioners of Array" to muster and Commissions train all or a portion of the men of each county capable of bearing arms, and to hold them in readiness to defend the Kingdom. The ancient obligation to keep sufficient arms according to Obligation to each man's estate was enforced by statutes of Philip and Mary, enforced by and the kind of weapons changed for those of more modern Acts of fashion; but under James I. these provisions were abrogated.2 Philip and In 1638, Charles I. issued an unconstitutional Order in Council obliging every freeholder whose land was of the clear yearly value of £200 to furnish a horse-soldier when called upon to do so by the lord-lieutenant of his county. The command of the Militia, as the local forces were usually denominated, formed The Militia. the final ground of rupture between Charles and his Parliament, the latter having passed ordinances (Feb. 26 and March 6, 1642) superseding the king's commissions of lieutenancy by the appointment of fifty-five Commissioners of Array, with power to suppress “all insurrections, rebellions, and invasions." This proceeding, however necessary it may have been at the time for the peace and safety of the Kingdom, was clearly illegal. After the Restoration, an Act of Parliament declared that the sole supreme government of the Militia, and of all forces by sea and land, and of all forts and places of strength, was, and by the laws of England ever had been, the undoubted right of the kings and queens of England, and that neither House of Parliament could pretend to the same, nor lawfully levy war, offensive or defensive, 1 4 & 5 Phil. and Mary, c. 2, and c. 3. Penalties were imposed on persons absenting themselves when commanded to muster by the sovereign, or any lieutenant authorised for the same. This was a new officer, the LordLieutenant, introduced in this reign as the chief military officer of the Crown in every county. For the military purposes of each county the lord-lieutenancy may be regarded as a revival of the office of the old English earl. Thenceforward the sheriff became practically a purely civil officer. By the Army Regulation Act, 1871 (34 & 35 Vict. c. 86, s. 6), the jurisdiction and command of the Lords-Lieutenant of counties over the Militia and other auxiliary forces have been revested in the Crown, to be exercised through the Secretary of State for War, and officers appointed with his advice. 21 Jac. I. c. 25, s. 46. Mary. The ancient force super- 1757 as the Militia. [Lord High Admiral and Court of Admiralty.] against the king. By another Act, provision was made for calling together, arming, and arraying the Militia, by the king's lieutenants of counties, and for charging the cost upon the landholders in proportion to the value of their estates. But concurrently with the growth of a Standing Army, the local forces languished for a lengthened period, until revived and remodelled in 1757, in consequence of a panic caused by rumours of a French armament, as the national Militia.* Militiamen were to be chosen by ballot to serve for a limited number of years, but were not to be compelled to leave their own country except in case of invasion or rebellion. In 1829, the practice was commenced, and has ever since been continued, of passing an annual Act suspending the Militia ballot, the supply being furnished by voluntary enlistment. But the same Act which temporarily suspends the law empowers the King in Council to at once order a ballot should necessity require it. By 2 William and Mary, cap. 2 (amended by I Geo. IV. cap. 90, and 7 & 8 Geo. IV. cap. 65), the Lords Commissioners of the Admiralty are vested with all the jurisdictions and powers formerly vested in the Lord High Admiral of England. [This ancient officer of high State rank was originally, and long before a navy, as such, existed in England, president of a sovereign court, with competence to hear and determine summarily all causes relating to the sea and to take cognisance of all offences committed thereon. The "laws of Oléron" (Rôles, Jugements et Lois d'Oléron), a collection of ancient rules and usages issued by the Maritime Court of that island, lying off the west coast of France, had already been introduced into England by Henry II., and were adopted as a standard whereby maritime causes should be determined.5 But the office of Lord High Admiral is first heard of in the reign of Edward I., and the first admiral, known as "Admiral de la Mer du Roy d'Angleterre," was William de Leyburne in 1286. Yet it is only from 34 Edward II. that we find an uninterrupted succession of admirals holding this office. It does not seem to have been essential that the Lord High Admiral should be a sailor; indeed, the Duke of Richmond, natural son of Henry VIII., was made such admiral when 1 13 Car. II. st. 1, c. 6. 2 14 Car. II. c. 3. 3 [A standing army under the direct command of the Crown was, as a result of suppression of the great rebellion, regarded as a menace to free rights of the people. Hence extraordinary powers annually renewable under strict conditions were granted to the Crown by the Mutiny Act (2 Will. and Mary, c. 5). The standing army has, however, now been made a national institution by the Army Administration Act. See infra, P. 503 note.-ED.] 4 Hallam, Const. Hist., ii. 133; iii. 259. " 5 [Cf. Cleirac, les Us et Coustumes de la Mer. Bordeaux, 1647; Travers Twiss, Sea Laws," in Encyc. Brit., 9th ed.; and Reeves, Hist. of Engl. Law, iii. 369.- ED.] he was but six years of age. When the High Admiral went to sea in person, he had usually a commission under the Great Seal appointing him Admiral and Captain General of the Fleet, sometimes with powers to confer knighthood and generally to punish with life and limb." 1 The laws of Oléron (above mentioned) were supposed to be a transcript of the Rhodian laws, and were a code of maritime usages, which in process of time became observable as customary laws by the majority of seafaring nations in the Western world.2 The jurisdiction of this Court of Admiralty became so farreaching, and "encroached so much upon the domain of the common law tribunals" (Hannis Taylor, Origin of Engl. Const., p. 550), that in the reign of Richard II. and Henry IV., statutes were passed for restricting the scope of its powers. However, the High Court of Admiralty continued throughout the Middle Ages as a Court taking cognisance of all causes relating to maritime matters, which were without the pale of the common law courts of the country, and thus its jurisdiction extended over all the high seas. Formerly exercising both criminal and civil jurisdiction, it was deprived of the former on a report of a Select Committee on the High Court of Admiralty in 1833. The common law courts now take cognisance of all criminal offences which could be tried before these tribunals, and the Judge of the High Court of Admiralty, the lineal successor of the Lord High Admiral, has, although he may sit with the other commissioners of oyer and terminer, not a separate and independent criminal jurisdiction. On this, as on the kindred subject of the navy, cf. Stubbs, Const. Hist., i. 637; Hannis Taylor, iii. c. 2, p. 547, seq.-ED.] 1 Francis W. Rowsell, C.B., in article Admiral, in Encyc. Brit., 9th ed. 2 The oldest part of these laws of Oléron,, consisting of twenty-five articles, emanates from the twelfth century under the Dukes of Guyenne. A document of 1364 proves that at that time they were observed in France, after which they were again administered both in Spain and the Netherlands. Cf. Brockhaus, Konversation's Lexikon, sub Öléron. The English and after the Growth of the doctrine of hereditary right. CHAPTER VI. THE SUCCESSION TO THE CROWN. THE elective character of the old English kingship, but with the choice exclusively limited, under all ordinary circumstances, to the members of one Royal house, has been already discussed in a previous chapter.1 The Norman Conquest introduced a new dynasty, and a more comprehensive idea of Royalty, combining both the national and feudal theories of sovereignty; but it effected no legal change in the nature of the succession to the Crown. Election by the National Assembly was still necessary to confer an inchoate right to become king-a right subsequently perfected by the ecclesiastical ceremony of inunction and coronation. So strongly marked was the elective character of the kingly office that, even after the choice of the Nation had been once made, the form of election was again gone through by the clergy and people assembled in the church at the coronation. The doctrine of the hereditary descent of the Crown gradually grew up, as the territorial idea of kingship superseded the personal idea, during the two centuries after the Conquest. As the King of the English developed into the King of England, the Feudal lord of the land, the Kingdom came to be regarded by kings and courtiers as the private 1 Supra, pp. 22, 26, 27. 4 2 On the origin of coronation and unction, see Stubbs, Const. Hist., i. 162. The ancient English kings were both crowned with a helmet and anointed. "The ceremony was understood as bestowing the divine ratification on the election that had preceded it, and as typifying rather than conveying the spiritual gifts for which prayer was made. That it was regarded as conveying any spiritual character. or any special ecclesiastical prerogative, there is nothing to show rather, from the facility with which crowned kings could be set aside and new ones put in their place, without any objection on the part of the bishops, the exact contrary may be inferred. That the powers that be are ordained of God, was a truth recognised as a motive to obedience, without any suspicion of the doctrine, so falsely imputed to churchmen of all ages, of the indefeasible sanctity of royalty. The statements of Allen (Prerogative, p. 22) on this point are very shallow and unfair. To attribute the ideas of the seventeenth century to the ages of St. Gregory, Anselm, and Becket, seems an excess of absurdity.”—Ibid. p. 163 [and n. 2]. 3 See Maskell, Monumenta Ritualia Ecclesiae Anglicanae, vol. iii.; Freeman, Norm. Conq., iii. 44, 623. 4 Supra, p. 34. 5 John was the first who called himself "Rex Angliae" on his Great Seal; all his predecessors had been " Kings of the English." possession of the sovereign, to be enjoyed for his own personal profit; and by degrees the feudal lawyers, arguing from a false analogy, applied to the Crown the same principles of strict hereditary right which had already begun to regulate the descent of a private inheritance. But the forms of election and coronation still continued, and periodically, as the throne became vacant on the death of each sovereign, bore witness to the fallacy of this legal theory.1 Edward II., who succeeded in 1307, was the first king whose reign was dated from the day following the death of his predecessor. In him, then, the principle of hereditary right appeared to have finally triumphed over the old elective system. But the true nature of the Crown as an office or trust, and the continuing right of the Nation to regulate the succession to it, were signally re-asserted not twenty years later, by the formal deposition of this unfortunate king. This persistence of the national right to choose the sovereign, the same in principle whether applied to the individual king or to the selected dynasty, we shall now consider somewhat more in detail. 1066. We have seen how William the Norman found little difficulty, William the immediately after the Battle of Hastings, in procuring his Conqueror. election by the terrified Witan. After taking the ancient oath of the English kings, constituting a compact with the nation to govern with justice and equity, he was duly crowned at Westminster by the Archbishop of York. On his death-bed the Conqueror bequeathed to his eldest surviving son, Robert, Accession of the patrimonial Duchy of Normandy. The Crown of England William he would not attempt to bequeath, declaring that he held it not by hereditary right; he left the succession to the decision of God.3 He expressed, however, his ardent wish that his younger and favourite son William should succeed to the kingship of the The 1 "If the descendants of the Conqueror had succeeded one another by the ordinary rule of inheritance, there can be no doubt but that the forms as well as the reality of ancient liberty would have perished. Owing to the necessity however under which each of them lay, of making for himself a title in default of hereditary right, the ancient framework was not set aside; and perfunctory as to a great extent the forms of election and coronation were, they did not lose such real importance as they had possessed earlier, but furnished an important acknowledgment of the rights of the nation, as well as a recognition of the duties of the king. Crown then continues to be elective: the form of coronation is duly performed: the oath of good government is taken, and the promises of the oath are exemplified in the form of charters. . . . The recognition of the king by the people was effected by the formal acceptance at the coronation of the person whom the National Council had elected, by the acts of homage and fealty performed by the tenants in chief, and by the general oath of allegiance imposed upon the whole people, and taken by every freeman once at least in his life."-Stubbs, Const. Hist., i. 366, 367. 2 Supra, p. 37. 3 Neminem Anglici regni constituo haeredem, sed aeterno Conditori Cujus sum et in Cujus manu sunt omnia illud commendo: non enim tantum decus hereditario jure possedi.-Ordericus Vital., vii. 15. Rufus, 1087. |