ation 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[o], 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 Edmond earl of Kent being taken at Pontefract, 15
Edw. II. and condemned by martial law, his attainder was reversed 1
Edw. III. because it was done in time of peace. And it is laid
down[p], 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_[q]. And the petition of right[r] enacts, that no soldier shall
be quartered on the subject without his own consent[s]; and that no
commission shall issue to proceed within this land according to
martial law. And whereas, after the restoration, king Charles the
second kept up about five thousand regular troops, by his own
authority, for guards and garrisons; which king James the second by
degrees increased to no less than thirty thousand, all paid from his
own civil list; it was made one of the articles of the bill of
rights[t], that the raising or keeping a standing army within the
kingdom in time of peace, unless it be with consent of parliament, is
against law.

[Footnote o: Hist. C.L. c. 2.]

[Footnote p: 3 Inst. 52.]

[Footnote q: _cap._ 29.]

[Footnote r: 3 Car. I. See also stat. 31 Car. II. c. 1.]

[Footnote s: Thus, in Poland, no soldier can be quartered upon the
gentry, the only freemen in that republic. Mod. Univ. Hist. xxxiv.
23.]

[Footnote t: Stat. 1 W. & M. st. 2. c. 2.]

BUT, as the fashion of keeping standing armies has universally
prevailed over all Europe of late years (though some of it's
potentates, being unable themselves to maintain them, are obliged to
have recourse to richer powers, and receive subsidiary pensions for
that purpose) it has also for many years past been annually judged
necessary by our legislat