in British polity, is one of the three divisions of the laity. This state includes the whole of the soldiery, or such persons as are peculiarly appointed for the safeguard and defence of the realm.

In the time of the Anglo-Saxons, the military force of England was in the hands of the dukes or heretochs, who were constituted throughout every province and county in the kingdom, being taken from the principal nobility, and such as were most remarkable for being sapientes, fideles, et animosi. Their duty was to conduct and regulate the English armies with unlimited power, proinde eis victum fuerit, ad honorem coronae et ad utilitatem regni. And because of this great power, they were elected by the people in full assembly, that is, by folkmeate, in the same manner as sheriffs were elected; according to the fundamental maxim of the Saxon constitution, that where any officer was to be intrusted with such power as, if abused, might tend to the oppression of the people, that power should be delegated to him by the vote of the people themselves. The ancient Germans, the ancestors of our Saxon forefathers, had also 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; reges ex nobilitate, duces ex virtute sumunt. In constituting their kings, the family or blood royal was regarded; in choosing their dukes or leaders, they had respect to warlike merit alone. Caesar relates of their ancestors in his time, that whenever they went to war, either offensively or defensively, they elected leaders to command them. This 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. Accordingly we find that, in the reign of King Edmund Ironside, a very bad use was made of it; by Edric, duke of Mercia, who, by his office of duke or heretoch, was entitled to a large command in the king's army, and by his repeated treachery at last transferred the crown to Canute the Dane.

It seems to be universally agreed by all historians, that Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominions soldiers. But we are unfortunately left in the dark as to the particulars of this celebrated regulation; although, from what has been observed, the dukes seem to have been left in possession of a power so large and independent that, on the death of Edward the Confessor, it enabled Duke Harold, though a stranger to the blood royal, to ascend the throne of this kingdom, in prejudice of Edgar Etheling, the rightful heir.

Upon the Norman conquest, the feudal law, in all its rigour, was introduced into this country, the whole of that system being built on a military plan. Hence all the lands in the kingdom were divided into what were called knights' 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 annually; in which time, before war was reduced to a science, 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. Accordingly we find one amongst the laws of William the Conqueror, which commands and enjoins the personal attendance of all knights and others, quod habeant se tenent se semper in armis et equis, ut decet et opertet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feudis et tenementis suis de jure nobis facere. This personal service in process of time degenerated into pecuniary commutations or aids; and at last the military part of the feudal system was at the Restoration abolished, by statute 12 Car. II. c. 24.

Military or Martial Law, is that branch of the laws of war which respects military discipline, or the government and control of persons employed in the operations or for the purposes of war. Military law is not exclusive of the common law; for a man, by becoming a soldier, does not cease to be a citizen or a member of the commonwealth. He is a citizen still, capable of performing the duties of a subject, and answerable in the ordinary course of law for his conduct in that capacity. Martial law is, therefore, a system of rule superadded to the common law, for regulating the citizen in his additional character of soldier; a temporary character assumed for a special end, and to be laid aside when that end has been attained, and when the disturbance which gave occasion to it has subsided. For, as the law knows nothing of a mere soldier, or one bred up to no other profession than that of arms, so a perpetual standing army is against the principles of the constitution, and, if without consent of parliament, is clearly against law.

Throughout all Europe, in the feudal times, property was commonly held upon condition of military service; and the possessors of land were, by virtue of their right, at once its cultivators in peace and its defenders in war. But the fetters of land under the feudal system were incompatible with a state of commerce, and the arbitrary power of lords over their vassals was adverse to civil liberty; its strictness declined; the services of tenants were commuted for money, and with money were purchased the services of mercenaries, who were ready to make war a trade. The disorders incident to the disbanding of these troops, the changes which had taken place in the mode of warfare, and the necessity of attending to the balance of power in Europe, all concurred to suggest the idea of a disciplined standing army, which was formed first in France, and then in the other states of Europe. The military despotism, however, which ensued on the Continent was in this country happily prevented by the spirit of a free people; and at the Revolution it was asserted and declared, that the raising or keeping up a standing army within the kingdom, in time of peace, without consent of parliament, is contrary to law. The expediency of a standing army is admitted, and at the same time the liberties of the people are maintained. A standing army therefore exists, but primarily for the benefit, because only with the consent, of the people.

In early times the king's justiciar was capitul legis et militiae; at the head not only of the law, but also of the military force of the kingdom. But in England, on the division of the curia regis, the constable and marischal presided over a court of chivalry for the determination of matters of honour and arms. From time to time, however, other tribunals were subsequently instituted for the administration of martial law; and at length, after the Revolution, when, in addition to the militia and other local troops of the kingdom, a regular standing army was judged necessary for the safety of the realm, the defence of the possessions of the crown, and the preservation of the balance of power in Europe, acts were passed for the maintenance of military order and discipline. Scotland differed from England in this respect, that there was here no distribution of the powers of the lord justiciar, such as took place in England, nor was there ever any court of chivalry. In other respects the two countries were, in as far as concerns martial law, very much alike.

The first of the military acts which passed after the Revolution was occasioned by a mutiny in a body of English and Scotch troops (amongst whom were the regiment of dragoons now called the Scotch Greys, and the royal Scotch regiment of foot), on being ordered to Holland to replace some of the troops of that country which King William had brought over with him. The circumstance was communicated to parliament, and on the 3d April 1689 an act was passed for punishing mutiny, desertion, &c. It authorized the king to grant commissions to certain officers to hold courts martial, for the trial of crimes committed by officers and soldiers; and this act, which has been renewed from time to time, has since the Union been extended to Scotland.

An act of the same nature was passed in the parliament of England, 13 Cha. II. stat. i. c. 9, authorizing the lord high admiral to grant commission to inferior vice-admirals, &c. to assemble courts-martial for the trial of offences committed at sea by officers, marines, or others in the king's naval service. But this statute was in many points altered by subsequent enactments, till at last all the laws relating to courts-martial for the sea service were reduced into one act, applying equally to the whole united kingdom, namely, 22 Geo. II. c. 30, explained and amended by 19 Geo. III. c. 17.

The more recent statutes for the government of the forces, naval and military, are 1 Will. IV. c. 14, 15; 2 and 3 Will. IV. c. 23, 28; 3 and 4 Will. IV. c. 5, 6; 4 and 5 Will. IV. c. 4, 5, &c. To detail the provisions of these acts would extend this article beyond the limits allowed to it; and it is not necessary to do so, as the acts themselves, which are very full and explicit, must be in the possession of those interested in them. We shall only observe, that the judgments of courts-martial, like those of other courts, are liable to be taken cognizance of in the superior courts of common law, and the members punished for illegal proceedings, and for all wilful and corrupt abuse of authority against the known, obvious, and common principles of justice.

(See Tytler on Courts-Martial; Adye on Courts-Martial; and M'Arthur on Courts-Martial.)