and eaſy; but, when drawn out into actual ſervice, they are ſubject to the rigours of martial law, as neceſſary to keep them in order. This is the conſtitutional ſecurity, which our laws have provided for the public peace, and for protecting the realm againſt foreign or domeſtic violence; and which the ſtatutes[1] declare is eſſentially neceſſary to the ſafety and proſperity of the kingdom.
When the nation was engaged in war, more veteran troops and more regular diſcipline were eſteemed to be neceſſary, than could be expected from a mere militia. And therefore at ſuch times more rigorous methods were put in uſe for the raiſing of armies and the due regulation and diſcipline of the ſoldiery: which are to be looked upon only as temporary excreſcences bred out of the diſtemper of the ſtate, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no ſettled principles, but is entirely arbitrary in it's deciſions, is, as ſir Matthew Hale obſerves[2], in truth and reality no law, but ſomething indulged, rather than allowed as a law: the neceſſity of order and diſcipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all perſons to receive juſtice according to the laws of the land. Wherefore Thomas earl of Lancaſter being condemned at Pontefract, 15 Edw. II. by martial law, his attainder was reverſed 1 Edw. III. becauſe it was done in time of peace[3]. And it is laid down[4], that if a lieutenant, or other, that hath commiſſion of martial authority, doth in time of peace hang or otherwiſe execute any man by colour of martial law, this is murder; for it is againſt magna carta[5]. And the petition of right[6] enacts, that no ſoldier ſhall be quartered on the ſubject without his own conſent[7]; and that no commiſſion ſhall iſſue to proceed within this land according to martial law. And whereas, after the reſtoration, king
