captains, &c. have done or attempted any thing contrary to the King's admonitions, prohibitions, ordonnances and mandates so repeatedly directed to them, and also many times proclaimed by bayliffs, and what jurisdiction or authority in criminal cases; and also in transgressions by their soldiers or others, they have exercised contrary to our ordonnances, or more than they are legally entitled to do. Rouen, 5 May, 1421.

The supremacy of law is manifest throughout these passages.

In the orders to the army by Henry VII. before the battle of Stoke, so far from the tenure of the English soldiery being positive obedience to all orders, it is thought necessary to enjoin regard to the King's command, and those of his great officers who could not be presumed to give illegal orders.

The war statutes of Henry VIII. are more arbitrary than those of former kings, but do not enjoin unlimited subjection. Not doubting but all his obedient subjects, for the discharge of their most bounden duties, will embrace and obey the same accordingly.

1. All manner of men to be obeisant to the said Lieutenant-General. And also every of them obey and duly keep all such proclamations, ordinances and statutes, as now be, and hereafter shall be. These latter words undoubtedly contain the measure of the expect ed commands to be obeyed, and consequently the measure of the obedience.

11. Article-for keeping of watch and ward.

Also that every man be obeysant to his captain and petty captain, and truly keep watch and his ward, and do all that belongeth to a soldier to do, &c.

Here again the measure of obedience stands connected with general duties, and must undoubtedly be understood in limitation.

18. In this article we find materials for a general conclusion on the subject. It states the punishment to be inflicted on such as should resist the judgments of lawful officers, but if all resistance was in itself criminal, it would have been unnecessary to have marked any kinds as obnoxious to punishment.

20. This article directs all officers to have GOOD rule and guidings of their people, and also directs general obedience to all superiors respectively.

In the laws of war of Charles I., 1640, are the following articles: 5. Resisting against correction.

No man shall resist, draw, lift, or offer to draw or lift, his weapon against an officer correcting him orderly for his offence, upon paiu of death.

7. No man shall resist the Provost Marshal, or any other officer in the execution of his office, upon pain of death.

The title of several of these articles and ordinances suggests an

important remark: they are called the "Laws of War." This implies that the summary processes which they authorise, and the duties which they enforce, have reference to actual campaigns. It was, doubtless, little in contemplation of our ancestors that the common civil law would be superseded, even with respect to armed men in time of peace, and at home. The argument is in consequence materially strengthened, for the purpose of considering what sort of obedience the soldier would have to pay on occasions of civil duty; we see that the obedience of war was limited. And no man will doubt that the difference of the two states materially changes the necessity of the case. Our military code only assists, it does not supersede the civil power. It has already been remarked that the tendency of military habits is to disarm the judgment on points of duty; the same observation may be applied to questions of the jurisdiction which Courts Martial are perpetually exercising over offences amenable to civil authorities.

Such was the early military code in respect of obedience. It was clearly limited. The following passages from Craig on Feudal Law will illustrate the subject, by showing the secondary sources from which the principles I contend for flowed. The primary origin of them is probably the New Testament, connected with which view there is much curious and important learning.

Sane in hoc casu et ego cum jure civili et Hottomanno assentior eum qui ad patriam delendam-veniret ne a vassallo quidem suo juvandum; neque id unquam in animum Gerardus aut Obertus induxerunt:neque enim omnes injustitiæ pares sunt; et qui patriam oppugnaverit,graviore poena puniendus quam qui de finibus agrorum aut jure pascendi (qualia apud nos pleraque, unde graves discordiæ et inimicitiæ oriuntur) cum vicinis contendit; itaque minore cum scelere et leviore sceleris poena hic quam illic peccatur. Craig de Feudis, p. 383. Lib. ii, Tit. 11, & & 6..

Primo tenenda est hæc generalis propositio vassallum in bello dominum juvare debere, tam in defendendo, quam offendendo, quoties bellum est justum idem de inimicitiis, sive publicis sive privatis: nam feudum proprie ob has privatas inimicitias sustinendas ab initio constitutum fuit: quod si vassallus, dominum injusto bello vexare vicinum sciverit, opem ferre non tenetur ; et ita sentiunt Gerardus et Obertus. Si dubitet vassallus, justum sit necne bellum, adhuc juvare dominum tenetur; non est enim ejus de bello, sed domini sui judicium; neque enim hic crassa vassalli ignorantia est excusanda, si illud nesciat, quod omnes sciunt: neque diligentiam curiosam in vassallo omnino probo; nam, ut ait Augustinus, non est potestas nisi a Deo vel jubente vel sinente; ergo vir justus (ait ille) etiamsi sub rege sacrilego militet, recte illo jubente bellare potest, si quod jubetur, contra Dei præceptum non esse

certum est, vel si sit certum, tamen vassallo non sit certum; itaque ex Augustini sententia, puto vassallum domino militantem, si certum ei non sit, vel, ut ipse textus loquitur, si dubitaverit militiam suam contra Dei præceptum esse, non in eo peccare, si dominum juverit: et in jure civili, servo necessitas imponitur imperata domini exequendi, sed cum hac moderatione, ut si dominus facinus ei imperaverit excusetur; in aliis vero, quæ atrocitatem criminis non habent veluti si leviter peccetur, excusatio non admittatur, Idem ego ad vassallos trahi posse puto: si omnino bellum injustum esse nescierint, seu dubitaverint, puto domino etiam bellum inferenti et consilio et auxilio adesse debere. Quod si dominus injuriam propulsaverit, si se defenderit, sive id juste sive injuria faciat, puto vassallum debere eum ex officio juvare. Ratio duplex est, quia defensio est juris naturalis, itaque favorabilior, et quod ex regulis universi juris constet (sive illud sit naturale, sive gentium, sive civile) vim vi repellere licere; nam si dominus injuri am alicui fecerit, jure et non bello remedium petendum, et nisi imperio magistratus dominus invadatur, juste invadi non potest: contra magistrátum autem armatum fortasse, sententiam executioni mandantem, adesse auxilio non tenetur vassallus domino. Quod si is qui injuria affectus est, bello justo fortasse persequi suas inju rias statuerit, vassallus domino se defendenti, quatenus in defensione res consistit, adesse non solum potest, sed debet. Stipendiariis militibus quamdiu stipendia merentur, non permittitur de factis ejus, à quo stipendia accipiunt, nimium diligenter inquirere, neque curiosos esse decet, etiamsi in injusto bello militaverint. Cur non idem de vassallis sentiemus? quorum feuda pro stipendiis sunt; et si a domini causa tantopere abhorreant, leviter se, nempe refu tato feudo, possunt liberare. An vero quis solidarium militem, qui stipendia accipiat, de bello domini sui quod injustam esset querentem feret? neque tamen domino injustum bellum inferenti subveniendum puto, si injustum esse omnes intelligant, alioqui quamdiu stipendium miles retinet, tamdiu militare cogendum, modo in crassa ignorantia non sit, illud nimirum ignorando, quod omnes intelligunt, et intelligere debent, Et hæc multorum est opinio, quam hoc loco Gerardus et Obertus per hæc verba confirmant, Alii vero sine distinctione semper debere vassallum juvare dominum putant. Ib. 384-385.

The conditions of service may further be collected from the usual military agreements of early times, and from the forms of oaths prescribed to English soldiers since the reign of Queen Elizabeth.

Madox Formulate Angl. Ed. 1702, p. 97. This indenture between, &c. witnesseth, that the said John" est demore et retenu ovec le dit Comte pur terme de sa vie encontre

toutes gentz sauvant nostre tressovein Seigneur le Roy et ses heirs Rois d'Engleterre." 24 April. 4 Henry IV.

Again. This indenture, made between Richard Neville, Earl of Warwick, &c., on one part, and Robert Warkop, the younger, &c. on the other, beareth witness, that the said Robert is bileft and withholden with and towards the said Earl, ayenst all persons, his liegance except. And the same Robert, well and convenably horsed, armed and arraied, shall be redy to ride, come and go with, to and for the said Earl, at all times and into all places upon reasonable warning, &c. 2 Edward IV.

The agreements, save the duty owed to the King, that is to say, legal duties, are in general terms, that is, they are subject to legal construction. The oaths are more specific, and vary as we approach the present times. They now originate in, and are strictly explained by parliamentary enactments.

The oath ministered unto the Souldiers serving under the Earle of Leicester, in the Low Countries:

We do sweare and promise to do all loyall, true and faithful service unto the Queene of England, her most excellent Majesty, and unto the provinces and cities united in these countries, and their associates, under the charge and obedience of the Right Excellent the Earle of Leicester, Governor generall of the said provinces and cities, and their associates, and of her Majesties Armie and forces within the same, and all lawfull and due obedience unto the said Governor, and to any other superior that shall have charge under him for government in this armie. And further, we do promise, to endeavour ourselves to keep and fulfill all such lawful ordinances as his Excellency hath or shall set forth and establish for the better ordering of this army, as much as concerns us, so long as we shall serve underh. So help us God, by Jesus Christ. The book of Oaths. 12mo. 1649. p. 41.

The oath of the Captaines and Souldiers serving the Estates of Zealand:

We do sweare and promise to be faithful to the Queen's Majestie of England, our Sovereign, and both to the generall united provinces of the Low Countries; especially to the Estates of this province of Zeland, to the end to keepe the Town of Flushing, with the forts belonging to the same, for the assurance of her Majesty, the profit of the said Estates, and the maintenance of the true Christian Religion, as it is at this present exercised, as well in England as in the Towne and Country of Zeland, and to yield all due obedience to our Governour, Chiefe and Captains. So God us help. Ib. p. 200.

The oathe of every private Souldier in Berwick: You shall swear to be good and true to our Sovereign Lady the Queen, and to the Governor of the Town for her Majesty's Service, and truly (do as much as in you shall lie to) keep this Town always true English, and in good obedience to the Governor Marshall, and other officers thereof, and you shall be governed by your Captain, with IN any debate or rebellion, and if you shall know any thing hurtful to the state of this Town, or to any part thereof, you shall forthwith disclose the same, either to your Captain or to the Governor, or to one of the Council of the Town; you keep such Armor and Weapon as you are by your Captain limited to have, without wilful spoil or selling thereof, except it be to provide better; you shall keep all other ordinances of this Town that may in any wise pertain to you to keep. Ib. 56.

The following form of an oath is in the laws and ordinances of war established by the Earl of Northumberland for the Army of King Charles I., A. D. 1640. It is the earliest I have met with: Of the Souldier's Oath.

All Souldiers that are really and actually in his Majestie's Service shall take this ensuing oath :

Lord General and the ComTo observe the laws and ordiTo watch and ward and work

"I promise and swear to be true and faithful to my Soveraigne Lord King Charles. To obey my manders and Officers under him. nances of war established by him. in the service. To wait on my colours, and to follow them. To endure, suffer and fight to the last, as God shall help me.” 126.

Ib. p.

Under the head of duties towards superiors and commanders, the only passage applicable to the subject or obedience has relation to the act of the superior being legal.

"No man shall resist, draw, lift, or offer to draw or lift, his weapon against an officer correcting him orderly for his offence, upon pain of death."

Here is manifestly and properly an exception open to resistance, where the correction might not be orderly. Ib. p. 111.

The law of the Scots' Army, in 1643, enjoined the following form of oath to every Soldier:

"I promise and swear to be true and faithful in this service, according to the heads sworn by me in the solemn league and covenant of the three Kingdoms; to honour and obey my Lord General, and all my superior officers and commanders, and by all means to hinder their dishonour and hurt: to observe carefully all the articles of war and camp discipline; never to leave the defence of this