¹ A useful modern account of the history of martial law is the short historical introduction to Fairman, C., The Law of Martial Rule (Chicago, 1943).Google Scholar The later seventeenth-century confusion about the origins and nature of martial law is reflected in Hale, Sir Matthew, History of the Common Law of England, Gray, Charles M., ed. (Chicago, 1971), pp. 25–28.Google Scholar (Cf. John Selden, Opera Omnia, III, ii (London, 1726), pp. 1986–1990.) Hale's account of martial law influenced William Stubbs, Constitutional History of England, III (Oxford, 1880), pp. 63, 302, Holdsworth, Sir William, The History of English Law, I (London, 1924), pp. 573–576,Google Scholar“Martial Law Historically Considered” (1902)Google Scholar 18 Law Quarterly Review 177–188, and Maitland, F. W., The Constitutional History of England, Fisher, H. A. L., ed. (Cambridge, 1919), pp. 266–269.Google Scholar Valuable, in spite of its extreme nineteenth-century tory bias, is W. Finlason, Martial Law (London, 1867). Two articles by Boynton, L., “The Tudor Provost Marshal” (1962) 77 English Historical Review 437–455CrossRefGoogle Scholar and “Martial Law and the Petition of Right” (1964)Google Scholar 79 English Historical Review 255–284, contain much very useful material. The former, though its primary interest is in the Tudor, and especially the Elizabethan, provost marshals and has therefore very little on martial law in the Middle Ages, does place the first use of martial law against civilians in the reign of Mary Tudor.

² Hale, History of the Common Law, p. 27. A fuller account by Hale is Chap. XII of The Prerogatives of the King (Selden Society), Vol. 92, pp. 117–132. At p. 119 he defines martial law jurisdiction as “nothing but the power of executing some law which by usage or express provision is made or introduced for the well-ordering of the army and those that have relation to the same.”

³ For examples of the army ordinances, see The Black Book of the Admiralty, I, Rolls Series (London, 1871), p. 281, and F. Grosse, Military Antiquities, II (London, 1786), pp. 81–107. See also the patents appointing English army commanders in the early fourteenth century in Rotuli Scotiae, I, Record Commission (London, 1814), pp. 137, 213.

⁴ Sir Thomas Smith, De Republica Anglorum (London, 1589), pp. 44, 45.

⁵ See the account of the aftermath of the war of 1173–74 in Warren, W. L., Henry II (Berkeley, 1973), pp. 136–148.Google Scholar On the settlement following the Barons's War of 1264–65, see Powicke, F. M., The Thirteenth Century (Oxford, 1953), pp. 209–215.Google Scholar

⁶ Bellamy, J. G., The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), pp. 44, 45.CrossRefGoogle Scholar

⁷ Martial law could only be invoked when these conditions were met. The unfurling of the King's banner signified the existence of a state of war and activated the jurisdiction of martial law over traitors who waged war against the King. The displaying of hostile banners, though this act might be later cited as proof of treason, did not create a state of war. On this point in the Parliament of 1327 Henry of Lancaster was able to nullify the conviction by the King's record of his brother, Earl Thomas, in 1318. Thomas had raised a standard in rebellion, but Edward II had not unfurled the royal banner and hence there was no tempus belli. See Keen, M. H., “Treason Trials Under the Law of Arms.” Transactions of the Royal Historical Society, 5th series, XII (1962), pp. 96, 102, 103.Google ScholarCf. Plucknett, T. F. T., “The Origin of Impeachment,” Transactions of the Royal Historical Society, 4th series (1942), p. 58.Google Scholar

⁸ The summary trials and executions of Thomas of Lancaster, of his allies after Boroughbridge, and of the Despensers when their turn came, may also represent proceedings under martial law. In Keen, Treason Trials, p. 99, it is suggested that these all were trials under the Law of Arms, in spite of the fact that the Court of Chivalry was not yet in regular operation. The waging of war against the King was a treasonable offence by common law as well as under the Law of Arms, and no recourse to the Law of Arms was necessarily required by the tribunals which convicted these individuals. Martial law was equally applicable. This is no mere semantic distinction. Trial under the Law of Arms suggests trial under a settled substantive law and according to the pro tribunali form of civil law procedure; martial law suggests a drumhead tribunal. At this early date, before the Court of Chivalry was operating, it is more likely that the ad hoc assemblies of magnates, justices and knights in these cases proceeded by what we would now identify as martial law.

⁹ Thomas Walsingham. Historia Anglicana, T. Riley, ed., II (London, 1868). pp. 6 and 7. Oman, C., The Great Revolt of 1381, new ed. (Oxford, 1968), p. 234.Google Scholar

¹⁰ Bellamy, Law of Treason, p. 103.

¹¹ Calendar of Patent Rolls, 1381–1385, p. 79. Note that this commission demonstrates that the King need not be personally present to exercise martial law. The authority to execute rebels and traitors under martial law in time of war could be delegated to field officers.

¹² 5 Richard II, Stat. I, c. 5.

¹³ 2 Richard II, Stat. I, c. 6. A similar statutory approach to a problem which later was dealt with under martial law is the legislation to deter vagabonds, 7 Richard II, c. 5.

¹⁴ See the case of Sir John Oldcastle's rising, Walsingham, Historia Anglicana, II, pp. 325–328. also Beliamy, Law of Treason, pp. 106–108.

¹⁵ Bellamy, Law of Treason, p. 103.

¹⁶ Ibid., p. 81.

¹⁷ Ibid., pp. 183, 184.

¹⁸ Infra. p. 157.

¹⁹ Keen, M. H., The Laws of War in the Later Middle Ages (London, 1965), p. 147Google Scholar, Hay, D., “The Division of the Spoils of War in Fourteenth Century England,” Transactions of the Royal Historical Society, 5th series, IV (1954), p. 99.Google Scholar

²⁰ Infra, pp. 167–168.

²¹ Squibb, G. D., The High Court of Chivalry (Oxford, 1958), pp. 13–19.Google Scholar

²² Two restrictive statutory delineations of the jurisdiction of the Court of Chivalry, 8 Richard II, c. 5, and 13 Richard II, Stat. I, c. 2, suggest efforts to expand the court's jurisdiction in the later fourteenth century. See also Rotull Parliamentorum III (London 1767–1777), p. 420.

²³ Keen, Treason Trials, pp. 85–104. As well as being a common-law treason, the levying of war against the King was treason under the Law of Arms, hence the court's jurisdiction in such cases.

²⁴ Barton, John L., “Roman Law in England,” Ius Romanum Medii Aevi (Milan, 1971), pp. 71 and 72.Google Scholar

²⁵ Squibb, High Court of Chivalry, pp. 29, 30.

²⁶ Holdsworth, History of English Law, I, p. 575.

²⁷ Francis Bacon, “The History of the Reign of King Henry VII,” The Complete Works of Francis Bacon, J. Spedding, et al., eds., VI (London, 1858), p. 60.

²⁸ Ibid.

²⁹ Calendar of Patent Rolls, 1494–1509, pp. 115, 118: Bacon “History of Henry VII,” pp. 193, 194; Fisher, H. A. L., The Political History of England, 1485–1547 (London, 1924), pp. 74, 75.Google Scholar

³⁰ Calvin's Case, 1607, 7 Co.Rep. I, f.6b, The Reports of Sir Edward Coke, J. H. Thomas, J. F. Fraser, eds. (London, 1826), p. 10.

³¹ Tudor Royal Proclamations, I, P., Hughes and J., Larkin, eds. (New Haven, 1964), pp. 244, 245.Google Scholar

³² Letters and Papers Foreign and Domestic of the Reign of Henry VIII, XI, 894.

³³ Ibid., 468.

³⁴ Dodds, M. and Dodds, R., The Pilgrimage of Grace, II (Cambridge, 1915), p. 110.Google Scholar

³⁵ Ibid., p. 119.

³⁶ Ibid.

³⁷ Letters and Papers, XII, i, 479.

³⁸ For a strongly-argued view that the government adhered to regular legal process in the enforcement of the Reformation, see Elton, G. R., Policy and Police (Cambridge, 1972), passim, esp. pp. 296–325.Google Scholar

³⁹ Fletcher, A., Tudor Rebellions (London, 1968), p. 45,Google Scholar Dodds, Pilgrimage of Grace, II, p. 119.

⁴⁰ Cheyney, E. P., A History of England From the Defeat of the Armada to the Death of Elizabeth, II (New York, 1926), p. 248.Google Scholar

⁴¹ Ramsay, P., Tudor Economic Problems (London, 1963), pp. 113–120.Google Scholar

⁴² Bindoff, S. T., Tudor England (London. 1966), p. 140.Google Scholar

⁴³ Fletcher, Tudor Rebellions, p. 62; Jordan, W. K., Edward VI, The Threshold of Power (Cambridge, 1970), pp. 56–60, 457–494.Google Scholar

⁴⁴ Langbein, John H.. Prosecuting Crime in the Renaissance (Harvard, 1974), pp. 5–162.CrossRefGoogle Scholar

⁴⁵ For a summary of the three rebellions see Fletcher. Tudor Rebellions, pp. 48–90. On the Western Rebellion see Rose-Troup, F., The Western Rebellion of 1549 (London, 1913)Google Scholar; for the executions following the suppression see pp. 306–355. On Wyatt's Rebellion see Loade, D. M.s, Two Tudor Conspiracies (Cambridge, 1965)Google Scholar, and J. A. Froude, History of England From the Fall of Wolsey to the Death of Elizabeth, VI (New York, 1870), pp. 144–210. See pp. 184 and 185 in Froude for executions under martial law.

⁴⁶ Jordan, Edward VI, pp. 62–69.

⁴⁷ J. Strype, Ecclesiastical Memorials, II, ii (Oxford, 1822), p. 201. On the Lords Lieutenant see Thomson, G. S., Lords Lieutenants in the Sixteenth Century (London, 1923).Google Scholar

⁴⁸ Ibid.

⁴⁹ Calendar of State Papers, Ireland, 1509–1573, p. 134.

⁵⁰ Acts of the Privy Council, 1556–1558, p. 370.

⁵¹ Ibid., pp. 336, 337.

⁵² Calendar of State Papers, Domestic, 1547–1580, p. 98.

⁵³ Ibid., p. 99.

⁵⁴ 1 & 2 Philip and Mary, c. 10.

⁵⁵ Acts of the Privy Council, 1554–1556, p. 349. Although it is difficult to determine whether a particular individual was responsible for the council's adoption of martial law, Thomas Radcliffe, 3rd Earl of Sussex, was a councillor who seems to have shown considerable interest in the measure. Sussex had been present in the council sessions in April of 1556 when the first authorisation for the Marshal of the Irish army to employ martial law must have been discussed. (See the rolls of councillors in attendance, Acts of the Privy Council, 1554–1556, pp. 261–267). Then in september of that same year we have his request from Ireland to employ martial law against seditious critics and opponents of the Queen. Finally in a 1562 report “For the Ordering of Ulster,” he suggested to Elizabeth that a President of English birth be appointed for Munster who “should have authority to execute the martial law in times of necessity, but only against persons that have no possessions.” Calendar of the Carew Manuscripts, 1515–1574, p. 336.

⁵⁶ This is also the conclusion of Loades, D. M., The Oxford Martyrs (London, 1970), p. 240Google Scholar, n. 24.

⁵⁷ Boynton, Tudor Provost Marshal, p. 440.

⁵⁸ Strype, Ecclesiastical Memorials, III, ii, pp. 130, 131.

⁵⁹ A Bibliography of Royal Proclamations of the Tudor and Stuart Sovereigns, R., Steele, ed., I (Oxford, 1910), p. 461.Google Scholar

⁶⁰ Fletcher, Tudor Rebellions, p. 100.

⁶¹ Calendar of State Papers, Domestic, 1566–1579, p. 188.

⁶² Calendar of State Papers, Additional, 1566–1579, p. 172.

⁶³ Ibid., p. 169.

⁶⁴ Ibid., p. 201.

⁶⁵ See, for example, the Queen's recommendations that provost marshals be appointed in turbulent counties as the best means of preserving public order, Acts of the Privy Council. 1597, pp. 88, 89, 92, 93.

⁶⁶ Boynton, Tudor Provost Marshal, pp. 442–443.

⁶⁷ On the activities of provost marshals in later Elizabethan England see Ibid., pp. 442–455.

⁶⁸ Bibliography of Royal Proclamations, Steele, ed., p. 802.

⁶⁹ William Camden, Annals, printed in G. W. Prothero, Statutes and Other Constitutional Documents Illustrative of the Reigns of Elizabeth and James I (Oxford, 1894), p. 176, my translation.

⁷⁰ Boynton, Tudor Provost Marshal, p. 450.

⁷¹ Ibid., p. 447.

⁷² Foedera, T. Rymer, ed., XVI (London, 1727), p. 280.

⁷³ Cheyney, History of England, II, p. 248.

⁷⁴ 18 Henry VI, c. 19, 7 Henry VII, c. 1, 3 Henry VIII, c. 5. See also Cruickshank, C. G., Elizabeth's Army, 2nd ed. (Oxford, 1968), p. 165.Google Scholar

⁷⁵ On the period immediately preceding the Petition of Right see the detailed account in Boynton, Martial Law and the Petition of Right, pp. 255–272. For a threat by James I to invoke martial law against poachers in the royal forests see Calendar of State Papers, Domestic, 1580–1625, pp. 451, 452.

⁷⁶ Foedera, XVII, p. 225, see also pp. 254, 751, 763.

⁷⁷ Following the Petition of Right, questions arose over what exactly had been prohibited. Undoubtedly martial law as employed in the later sixteenth century against civilians was the target of the prohibition, and the debates in the Commons seem to suggest that the framers of the Petition did not intend to prohibit the use of martial law in the army when it was actually in the field. (See note 79 below.) However, probably to a very large extent due to the atmosphere of tension and distrust which existed between the Commons and the Crown in the years before the outbreak of the Civil War, parliament was loath to concede any circumstances existed in which martial law could be invoked. With the outbreak of war with Scotland the question of army discipline inevitably arose, and in spite of early reluctance the mood in parliament by 1641 seems to have been shifting in favour of the use of martial law. (See Boynton, Martial Law and the Petition of Right, pp. 281, 282). During the Civil War the parliamentary army and navy were subject to martial law. The problem of military discipline was eventually solved by the passage of the Mutiny Acts following the Glorious Revolution. But martial law as a peacetime law-enforcement measure remained proscribed.

⁷⁸ Sources of English Constitutional History, C., Stephenson, F., Marcham, eds. (New York, 1937), pp. 451, 452.Google Scholar

⁷⁹ During the debates over the Petition, Banks, later Chief Justice of the Common Pleas, argued that authority to proceed by martial law, “ought to be awarded in time of war or inevitable necessity … we have no time of war when the courts of justice are open in Westminster and other jurisdictions.” Rolle, afterwards Lord Chief Justice declared, “Martial law is merely for necessity, when the common law cannot take place … if the chancery and the courts of Westminster be shut… it is time of war, but if the courts are open it is otherwise; yet if war be in any part of the kingdom, that the sheriff cannot execute the King's writ, there is tempus belli.” Historical Collections of Private Passages of State, J. Rushworth, ed., II, ii (London, 1721), App. 76–81. Selden admitted, “It is true there is a martial law in England. If an army were gathered together against an enemy, martial law might be used, which is known to the common law and incorporated in the common law.” John Selden, Opera Omnia, III, ii (London, 1726), p. 1990. Coke, and later Hale shared this view. Both regarded it as murder if a man were executed under martial law in time of peace, yet accepted the legality of martial law in time of war. See Sir Edward Coke, Third Institute (London, 1809), p. 52, and Sir Matthew Hale, History of the Pleas of the Crown, II (London, 1736), pp. 499, 500. In his Brief Animadversions no less a supporter of the Petition of Right than William Prynne upheld the validity of martial law in time of war, Brief Animadversions on … the Fourth Part of the Institutes of the Laws of England… Compiled by Sir Edward Coke (London, 1669), pp. 59, 60.

⁸⁰ Boynton, Martial Law and the Petition of Right, pp. 276, 284.

⁸¹ On Selden's view of history see Fussner, F. Smith, The Historical Revolution, English Historical Writing and Thought, 1580–1640 (New York, 1962), pp. 275–298.Google Scholar

⁸² Cf. Boynton, Martial Law and the Petition of Right, p. 275: “Selden obscured the pertinence of his argument by wrapping it in a cocoon of medieval cases of doubtful relevance which may safely be ignored.” See also pp. 276–278. Selden's evidence gleaned from the Public Records did demonstrate that in the Middle Ages martial law was restricted to army discipline and the suppression of rebellion. He erred in associating martial law with the Court of Chivalry, and failed to carry his research forward into the sixteenth century. Selden, Opera Omnia, III, ii, pp. 1986–1990.