The Law and Practice of Courts Martial.

crimes as Civil misdemeanors, and to make statutes for their punishment by the civil legislature. Thus, by a statute of Edward II. desertion was made felony, and several other military crimes enume rated, and ordered to be punished by fines, imprisonment, &c. at the discretion of the magistrate. In the same manner, by an act of Elizabeth, all vagabond soldiers and mariners, with arms in their hands, and without furloughs, were to be apprehended as felons, and dealt with by the civil magistrates accordingly.

The Crown, however, even in this æra, still considered itself as having the prerogative of erecting and creating Courts Martial at pleasure, and exercised this prerogative in a manner totally subversive of all liberty. Thus Queen Mary issued a proclamation, that all persons possessed of heretical books, and who delayed to burn them, should be immediately seized, and tried before a Court Martial. In the reign of Elizabeth, likewise, there was still a more singular stretch of power; the LORD MAYOR and COURT of ALDERMEN were declared a Court Martial, and were authorised to administer Martial Law in the city. Charles the First, moreover, amongst many other ways of raising money, billeted soldiers on the houses of those who refused to give what his Commissioners demanded; and, if the people deemed themselves aggrieved, he ordered them to apply to a Court Martial, who was to receive their quotas, and give them an acquittance.

Such, therefore, was the state of Martial Law till the Long Parlia ment. The Lawyers deemed that all military crimes might be considered as Civil Offences, and therefore that there was no occasion for any distinct Martial Law, or any distinct Court Martial for administering it. The Crown, at the same time, considered that it was á part of its prerogative to erect these Courts Martial when it pleased, and to give them what extent of jurisdiction it pleased. And in one or in the other of these ways was all Martial Law administered, down to the contest betweeen Charles and his Parliament.

III. This brings us, therefore, to the Third Period of Martial Law, that of the Civil Wars.

The first mention of a Mutiny Act, in any thing of its present shape, was made in the commencement of this Contest. The Parliament sent

VOL. 1.

No. 1.

H

The Law and Practice of Courts Martial.

a committee to the King to solicit him to disband his Army. Lord Holland, the Commander-in-Chief, gave it as his decided opinion, that the Army could not be safely so disbanded, unless a Mutiny Act should be previously passed to punish such as should mutiny. A Mutiny Act was accordingly proposed to the Commons, but the House, preferring to give a temporary privilege, rather than a precedent for a permanent power, refused to pass the Act, but empowered the General to execute Martial Law wherever it was required.

The civil war immediately afterwards broke out. The kingdom was in consequence covered with the armies of the contending powers. People began now to learn by experience, that something more quick, and vigorous was necessary for the government of armies. Accordingly, on the petition of the Lord Mayor and Aldermen, the Parliamentary ordinance was passed, by which a commission was appointed for the due execution of Martial Law, and for a future settlement and permanent limitation in the form and extent in which it should be administered. As this parliamentary ordinance is the ground of our present Mutiny Act, it is necessary to give a more full account of it.

The ordinance began by ordaining, that the Earl of Essex, General of the Forces raised by the authority of the Parliament, together with fifty-six others named therein, (among whom were several Peers, Members of the House of Commons, and Field Officers of the Army,) or any twelve or more of them should be Commissioners, and have full power and authority to hear and determine all such causes as belonged to military cognizance, according to the articles, mentioned in the ordinance, and proceed to the trial, condemnation, and exeeution of all offenders against the said articles, and to inflict upon them such punishment, either by death or otherwise, corporally, as the said Commissioners, or the major part of them, then present, shall judge to appertain to justice, according to the nature of the offence, aud the articles here ensuing, viz.

1. No person whatever, was to go from the cities of London and Westminster, or any part of the kingdom, under the power of the Parliament, to the King or Queen, or Lords of the Council abiding with them, or any Commander or Officer of the King's army; or to give or hold intelligence by letters, messages, or otherwise, with

The Law and Practice of Courts Martial.

any in arms against the Parliament, without consent of both Houses of Parliament, or the Committee appointed by ordinance of Parliament for managing the war; the Lord General of the forces raised by the two Houses; or from the respective Officers that shall command. in chief any of the said forces, upon pain of death, or other corporal punishment at discretion.

2. Whoever plotted, contrived, or endeavoured the surrendering, betraying, or yielding up to the enemy; or contrary to the rules of war, surrendered, betrayed, or yielded up any cities, towns, forts, magazines, under the power of the Parliament, were to be punished with death.

3. No person or persons whatever, not under the power of the enemy, should voluntarily relieve any person, being in arms against› the Parliament, knowing him to have been so in arms, with money,' victuals, or ammunition, upon pain of death or other corporal punishment, at discretion; nor should voluntarily and knowingly harbour or receive any person being in arms, as aforesaid, upon pain of punishment at discretion.

4. No officer or soldier should make any mutinous assemblies, or be assisting thereto, upon pain of death.

5. No guardian or officer of any prison was wilfully to suffer any prisoner of war to escape, under pain of death; or negligently, under pain of imprisonment, and further punishment at discretion.

6. Whosoever voluntarily took up arms against the Parliament, having taken the National Covenant, should die without mercy. 7. Whatsoever officer or commander had or should desert their trust, and adhere to the enemy, should die without mercy.

And it was further ordained, that the said Commissioners, or any twelve or more of them (whereof the Members of either House of Parliament, as had commissions or commands in any of the armies or garrisons, and Sir Nathaniel Brett, were always to be three) should be authorized from time to time, so often as they should think fit, or should be ordered thereunto by both or either House of Parliament,' to sit in some convenient place within the cities of London and Westminster, or lines of communication, and to appoint a judge advocate, a provost marshal, and all other officers needful.

And all mayors, sheriffs, justices of the peace, constables, bailiffs,

The Law and Practice of Courts Martial,

and other officers, were to be aiding and assisting the commissioners in the execution of the premises; and the said commissioners, and every other person assisting them, should be saved harmless, and indemnified for what they did therein by authority of Parliament.

Provided, nevertheless, that no Member of either House of Parlia ment, or assistants of the House of Peers, should be questioned or tried: before the Commissioners appointed by virtue of the ordinance, without assent and leave first obtained of both Houses of Parliament.

It was also provided, that this ordinance, and the authority thereby given to the persons therein mentioned, should be in force for only. four months from the making thereof; and that for any offence hereafter to be committed, it should not take place until eight days after the publication thereof, and any thing contained therein to the contrary notwithstanding.

Sir John Hotham and his son were among the first who were tried by a Court Martial, under authority of this ordinance, and were sentenced to suffer death for betraying the Parliament's cause; and the warrant for their execution was directed to the Lieutenant of the Tower, the Sheriffs of London and Middlesex, the Provost Marshal, &c.

Upon the expiration of this ordinance, a new one, for the same purpose, was sent up from the Commons to the other House, but the Lords would not pass it in the manner and form they had sent it, alleging that this new law struck at several of their privileges, and concluded with this ancient adage, Nolumus leges Angliæ mutari ; and the Commons being as resolute on their part, nothing was concluded on with regard to this business at that time; but the year following (1646) the House of Lords consented to an ordinance of this sort, with some few alterations and additional provisoes, nine Peers entering their dissent against it.

By this ordinance, which was to continue in force only three months, Sir Thomas Fairfax, General of the Parliamentary Ariny, Major-general Skipton, and about forty more officers, civilians, and common lawyers, or any twelve or more of them, were appointed a Court Martial within London and Westminster, and the lines of communication, to sit on all such as should offend against the articles

The Law and Practice of Courts Martial.

contained therein; which were nearly the same as those expressed in the former ordinance, with this additional one-That whoever came from the King's quarters, or had been there for a month past, or borne arms against the Parliament, and should come into their quarters, without a pass, drum, or trumpet, and not rendering himself up within forty-eight hours, should die without mercy.

The Commissioners were likewise empowered to issue warrants, to sit at their discretion, and to appoint a judge advocate and provost marshal; and all mayors and sheriffs were ordered to be aiding and assisting, &c. but this ordinance was not to extend to any Member of either House of Parliament; and no sentence was to pass but upon the testimony of two witnesses, or confession of the party; and no execution of death was to take place, till after six days notice to both Houses of Parliament.

No new parliamentary ordinance for Martial Law passed upon the expiration of this one; for, indeed, very soon afterwards the authority of the Army, by the intrigues of Cromwell and his party, became superior to that of the Parliament.

Upon a faction being raised in the Army, by a set of men under the name of Levellers, Cromwell seized the chiefs of the mutiny, and, without waiting for the authority of parliamentary ordinances, instantly hanged them up, and the rest returned to their duty. But in March, 1649, monarchy being suppressed, and the House of Lords voted useless, a bill was brought into the House of Commons (now the only remaining branch of the legislature) for establishing a Court Martial within the cities of London and Westminster, and the lat● lines of communication, which was to be called the High Court of Justice; and it passed without a division, upon a proviso being inserted, that nothing contained therein should extend to the diminution of any power or authority formerly given to the Lord General or his Council of War, or to the Admirals at sea, by the authority of Parlia inent, for executing Martial Law.

Upon the Restoration of Charles II. one of the first steps taken by the Parliament was to disband the Army; and, to controul the Militia, fines and imprisonments were imposed upon them for particular crimes and emissions.