The Solicitors' Journal and Weekly Reporter – January 16, 1915

NATIONAL MILITARY SERVICE.

The Lord Chancellor is reported to have said in the House of Lords, on the 8th inst., that by the common law it is the duty of every subject of the realm to assist the Sovereign in repelling invasion; that is, in the defence of the realm; that this rests on no statute, but on the inherent constitution of the country; and that, therefore, compulsory service is not anything which is foreign to the constitution of this country. In some quarters these words have been taken as indicating that the Government are contemplating conscription as a possible and predictable policy without any appeal to Parliament, but we do not suppose that they were uttered with any such intention.

The old books and statutes are, of course, full of military service. There was the general military service to which all the King's subjects were liable for the internal defence of the realm; and there was the particular military service which was due by reason of tenure, and might be required on foreign expeditions… The latter disappeared with the abolition of feudal tenures… The former may have existed at common law, but in practice it depended upon a long series of statutes, the first of importance being the Statute of Winchester…It was expressly provided that "no man be compelled to go out of his shire, but where necessity requireth, and sudden coming of strange enemies into the realm; and then it shall be done as hath been used in times past for the defence of the realm."

THE OLD MILITIA.

The statutes referred to above were, generally speaking, repealed in the reign of James I, and the "militia," as the national levy came to be called, "was now unsupported by any statute and founded only upon immemorial usage"…

The right to dispose of this force became a leading cause of the rupture between Charles I. and the Parliament. After the Restoration it was declared… that the command and disposition of the militia and of all forces by sea and land was vested in the Crown. From this time the raising of the militia was governed by a series of statutes which have continued to the present day. The selection was by ballot, and substitutes could be provided, but the statutes did not escape opposition… A consolidating Act was passed in 1786… and again in 1802…

In 1829 an Act to suspend the ballot… was passed, but under section 2 the ballot might at any time be revived by Order in Council. This was done by Order of 29th December, 1830, and the ballot continued in force till February, 1832. The Act, which was annual, was replaced by the Militia (Ballot Suspension) Act, 1865, which also is annual, and has been perpetuated each year under the Expiring Law Continuance Act…

THE VOLUNTARY MILITIA.

Meanwhile, provision for a voluntary militia was made by the Militia Voluntary Enlistment Act, 1875, and then by the Militia Act, 1882. Under section 18 of the latter Act the Crown can, in case of imminent national danger or of great emergency, by Proclamation (the occasion being first notified to Parliament, if sitting) order the militia to be embodied… Under section 12 of the Militia Act, "no part of the militia shall be carried or ordered to go out of the United Kingdom"; but this liability might be undertaken voluntarily…

It may be noticed that similar provision for foreign service was made in 1813, and militiamen were to be found in great numbers at Waterloo; and it is repeated in the Territorial and Reserve Forces Act, 1907, s.13. Under the last Act any specified battalion of militia might be transferred to the Army Reserve, with liability to service abroad… This contemplated the absorption of the militia into the Special Reserve, and, in fact, the militia has been transferred into that force. The conclusion seems to be that, for practical purposes, the Lord Chancellor's declaration does no more than affirm the admitted fact that throughout English history the duty of assisting in the defence of the kingdom has been recognized; service outside the kingdom, on the other hand, has, except by reason of tenure-now extinct-always been voluntary. And this duty, although by reason of its antiquity it may be said to exist at common law, has uniformly been put into practice by statute. Theoretically the ballot may be revived by Order in Council, and a new militia embodied; but this would, apparently, be so different from anything now corresponding to the old militia, that for practical purposes new legislative provisions would seem to be necessary.

Of course any such proposal would raise very serious questions, and probably serious opposition. With this aspect of the matter we need not deal further than to suggest that conscription places the population in slavery to a military and aggressive government, and we see the result in the present war. SJ