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at the hazard of their lives and fortunes, ought not, and in fact do not thereby lose their native rights. There is a power in the crown to grant a continuance of those rights to such subjects, in any part of the world, and to their posterity born in such new country; and, for the farther encouragement and reward of such merit, to grant additional liberties and privileges, not used in England, but suited to the different circumstances of different colonies. If then the grants of those additional liberties and privileges may be regularly made under an English constitution, they may be enjoyed agreeably to that constitution.
Y. But the act is very short; there are numberless circumstances and occasions pertaining to a body of armed men, which are not, as they ought to have been, expressly provided for in the act.
X. It is true, there are not express provisions in the act for all circumstances; but there is a power lodged by the act in the governor and field-officers of the regiments, to make all such provisions, in the articles of war which they may form and establish.
Y. But can it be right in the legislature, by any act, to delegate their power of making laws to others ?
X. I believe not, generally; but certainly in particular cases it may. Legislatures may, and frequently do, give to corporations power to make by-laws for their own government. And, in this case, the act of Parliament gives the power of making articles of war for the government of the army to the King alone, and there is no doubt but the Parliament understands the rights of government.
Y. Are you sure the act of Parliament gives such power ? X. This is the act. The power I mention is here
I in the 55th section. “ Provided always, that it shall and may be lawful to and for his Majesty, to form, make, and establish articles of war for the better government of his Majesty's forces, and for bringing offenders against the same to justice; and to erect and constitute courts-martial, with power to try, hear, and determine any crimes or offences by such articles of war, and inflict penalties by sentence or judgment of the same.” And here you see, bound up with the act, the articles of war, made by his Majesty in pursuance of the act, and providing for every circumstance.
Z. It is, sure enough. I had been told that our act of Assembly was impertinently singular in this particular.
X. The governor himself, in a message to the House, expressly recommended this act of Parliament for their imitation, in forming the militia bill.
Z. I never heard that before.
X. But it is true. The Assembly, however, considering that this militia would consist chiefly of freeholders, have varied a little from that part of the act of Parliament, in favor of liberty ; they have not given the sole power of making those articles of war to the governor, as that act does to the King; but have joined with the governor, for that purpose, a number of officers to be chosen by the people. The articles, moreover, are not to be general laws, binding on all the province, nor on any man who has not first approved of them, and voluntarily engaged to observe them.
Z. Is there no danger that the governor and officers may make those articles too severe ?
X. Not without you can suppose them enemies to the service, and to their country; for, if they should make such as are unfit for freemen and Englishmen
to be subjected to, they will get no soldiers; nobody will engage. In some cases, however, if you and I were in actual service, I believe we should both think it necessary for our own safety, that the articles should be pretty severe.
Z. What cases are they?
X. Suppose a sentinel should betray his trust, give intelligence to the enemy, or conduct them into our quarters.
Z. To be sure there should be severe punishments for such crimes, or we might all be ruined.
X. Choose reasonable men for your officers, and you need not fear their making reasonable laws; and if they make such, I hope reasonable men will not refuse to engage under them.
Y. But here is a thing I do not like. By this act of Assembly, the Quakers are neither compelled to muster, nor to pay a fine if they do not.
X. It is true; nor could they be compelled either to muster or pay a fine of that kind, by any militia law made here. They are exempted by the charter and fundamental laws of the province.
Y. How so?
X. See here; it is the first clause in the charter. I will read it. “Because no people can be truly happy, though under the greatest enjoyment of civil liberties, if abridged of the freedom of their consciences as to their religious profession and worship; and Almighty God being the only lord of conscience, father of lights and spirits, and the author as well as object of all divine knowledge, faith, and worship, who only doth enlighten the minds, and persuade and convince the understandings of people; I do hereby grant and declare, That no person or persons inhabiting in this province or territories, who shall confess and acknowl
edge one Almighty God, the creator, upholder, and ruler of the world, and profess him or themselves obliged to live quietly under the civil government, shall be, IN ANY CASE, MOLESTED OR PREJUDICED in his or their PERSON or ESTATE because of his or their conscientious persuasion or practice, nor be compelled to frequent or maintain any religious worship, place, or ministry, contrary to his or their mind, or to DO OR SUFFER any OTHER ACT OR THING, contrary to their religious persuasion.” And, in the 8th section of the same charter, you see a declaration, that “neither the proprietor, nor his heirs or assigns, shall procure or do any thing or things, whereby the liberties in this charter contained or expressed, nor any part thereof, shall be infringed or broken; and if any thing shall be procured or done by any person or persons, contrary to these presents, it shall be held of NO FORCE OR EFFECT." This liberty of conscience granted by charter, is also established by the first law in our book, and confirmed by the crown. And, moreover, the governor has an express instruction from the proprietaries, that, in case of making any militia law, he shall take especial care that the charter be not infringed in this respect. Besides, most of our petitions for a militia from the moderate part of the people requested particularly, that due regard might be had to scrupulous and tender consciences. When taxes are raised, however, for the King's service, the Quakers and Menonists pay their part of them, and a great part; for, as their frugality and industry make them generally wealthy, their proportion is the greater compared with their numbers. And out of these taxes those men are paid who go into actual service.
As for mustering and training, no militia are anywhere paid for that. It is by many justly delighted in, as a manly exercise. But those who are engaged in actual service for any time, ought undoubtedly to have pay.
Y. There is no provision in this militia act to pay them.
X. There is a provision, that no regiment, company, or party, though engaged in the militia, shall be obliged “to more than three days' march, &c., without an express engagement for that purpose, first voluntarily entered into and subscribed by every man, so to march or remain in garrison.” And it is to be supposed, that no man will subscribe such particular engagement without reasonable pay, or other encouragement.
Y. But where is that pay to come from?
X. From the government to be sure; and out of the money struck
struck by the act for granting £60,000. Z. Yes; but those who serve must pay a share of the tax, as well as those who do not.
X. Perhaps not. It is to be supposed, that those who engage in the service for any time, upon pay, will be chiefly single men, and they are expressly exempted from the tax by the £60,000 act. Consequently those who do not serve, must pay the more ; for the sum granted must be made up.
Z. I never heard before, that they were exempted by that act.
X. It is so, I assure you.
Y. But there is no provision in the militia act for the maimed.
X. If they are poor, they are provided for by the laws of their country. There is no other provision by any militia law that I know of. If they have behaved well
, and suffered in their country's cause, they deserve, moreover, some grateful notice of their service, and some assistance from the common treasury ; and if any particular township should happen to be over