Page:History of England (Macaulay) Vol 2.djvu/256

 village. The government appears to have had no hold on such a man, except the hold which master bakers and master tailors have on their journeymen. He and his officers were, in the eye of the law, on a level. If he swore at them he might be fined for an oath. If he struck them he might be prosecuted for assault and battery. In truth the regular army was under less restraint than the militia. For the militia was a body established by an Act of Parliament, and it had been provided by that Act that slight punishments might be summarily inflicted for breaches of discipline.

It does not appear that, during the reign of Charles the Second, the practical inconvenience arising from this state of the law had been much felt. The explanation may perhaps be that, till the last year of his reign, the force which he maintained in England consisted chiefly of household troops, whose pay was so high that dismission from the service would have been felt by most of them as a great calamity. The stipend of a private in the Life Guards was a provision for the younger son of a gentleman. Even the Foot Guards were paid about as high as manufacturers in a prosperous season, and were therefore in a situation which the great body of the labouring population might regard with envy. The return of the garrison of Tangier and the raising of the new regiments had made a great change. There were now in England many thousands of soldiers, each of whom received only eightpence a day. The dread of dismission was not sufficient to keep them to their duty: and corporal punishment their officers could not legally inflict. James had therefore one plain choice before him, to let his army dissolve itself, or to induce the judges to pronounce that the law was what every barrister in the Temple knew that it was not.

It was peculiarly important to secure the cooperation of two courts; the court of King's Bench, which was the first criminal tribunal in the realm, and the court of gaol delivery which sate at the Old Bailey, and which had jurisdiction over offences committed in the capital. In both these courts there were great difficulties. Herbert, Chief Justice of the King's Bench, servile