issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed, within the land, according to the justice of Martial Law, against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murder, robberies, felony, mutiny, or other outrage or misdemeanor whatsoever; and by such summary course and order as is agreeable to Martial Law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the Law Martial : 66 By pretext whereof some of your Majesty's subjects have been, by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to, have been judged and executed: "And also sundry grievous offenders, by colour thereof claiming an exemption, have escaped the punishment due to them by the laws and statutes of this your Realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretence that the said offenders were punishable only by Martial Law, and by authority of such commissions as aforesaid; which commissions and all others of like nature are wholly and directly contrary to the said laws and statutes of this your Realm: . They do therefore humbly pray your most excellent Majesty that the aforesaid commissions for proceeding by Martial Law may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land."1 10. The Commission of 1638 (issued on the occasion of Charles I. raising an Army to quell Rebellion in the North of England) was directed to Lord Arundel (as General of the Army to be raised to resist Tumult, Seditions, or Conspiracies against the Statutes of the Realm, Vol. v. fol. 24. King or State), and gave him power to Command and employ the Army for such Executions, Offences, or Services as might be ordered under Royal Sign Manual. 11. Two distinct purposes were, however, embraced in this Commission. The first was to execute against all Rebels "Martial Law," for the purpose of suppressing the Rebellion, "as to save whom you shall think good to be saved, and to slay, destroy, and put to execution of death such and so many as you shall think meet by your discretion to be put to death by any manner of means, to the terror of all other offenders; " and the second was to govern the Army under what may be termed Military Law. Thus, "as well by yourself as by your deputies, to hear all criminal causes growing and arising within the Army, as well concerning the death of any person as loss of members and all causes civil, whatsoever they be," and "to make and ordain Ordinances for the good government, rule and order of the Army," with the power of enforcing them by Capital Punishment. 12. Both purposes, so far as they were to be carried out by punishments affecting the life or limb of the offenders, were alike illegal; for Rushworth' has preserved a letter (under date of 13th July, 1640) from Lord Conway, a Lieutenant-General in the Northern Army at Newcastle, in which he thus writes of the illegality of similar powers entrusted to or, at least, executed by the Duke of Northumberland: 2 "My Lord of Northumberland did write to me, that having had occasion to look into the power he hath to give commissions, the lawyers and judges are all of opinion that Martial Law cannot be executed here in England, but when an enemy is really near to an army of the King's and that it is necessary that both my Lord of Northumberland and myself do take a pardon for the man that was executed here for the mutiny. If this be so, it is all one as to break the troops, for so soon as it shall be known, there will be no obedience; therefore put some remedy to this by all means very speedily. There are now here in prison two men for killing of men, and the Provost 13 Rush. Col., p. 1199. 2 See these Arts. of War, printed in Grose, Vol. ii. p. 107 (1788). Marshal for letting them escape out of prison, although he took them again; I do forbear to call them to a council of war, neither dare I tell the reason why I do not, being often urged, but suffer them to think me negligent. I do not think it fit that the lawyers should deliver any opinion, for, if the soldiers do know that it is questioned, they will decide it by their disobedience, as the country doth by their ship-money, and with far more dangerous consequence, for the soldier may bring the country to reason, but who shall compel the soldier? Therefore, if it cannot be helped with a commission of oyer and terminer, which must be only in the officer or officers of the army, or in some special commission of the King's, such as he gives when noblemen are arraigned; let him then give under his own hand a commission for the execution of Martial Law, to him that will hazard his life and estate upon the King's word. Sir Jacob Ashley hath no Commission for the execution of Martial Law; but if the fault deserve death, he is to advertise my Lord of Northumberland. This will absolutely undo all. The soldier must be punished by his officer; if it would come to debate, some may peradventure say, that for faults that deserve death, the soldier may be sent to the gaol to be tried by the judges. This will take away the respect of the soldier to the officer, and there will presently be no obedience or care either in soldier or officer. I think that this doth so much. more concern the King in the government of the Army, that if a lawyer should say so here, if I had a commission, I would hang him, and so I think the King ought to do others." 13. From this period no such Commission, expressly given by the King to a General Officer for the execution of his subjects under "Martial Law," has been known of in England. For the suppression of the Rebellion in Ireland a Commission, in terms nearly similar to that of 1638,1 was given by William III. to Marshal Schomberg, which he carried into execution there. But "Martial Law," as a measure of justice, has had no existence in this Kingdom since the close of Monmouth's Rebellion. 14. Leaving, therefore, the subject of " Martial Law" for the I C. M. Bk. (114), p. 96. present, but to be resumed hereafter,' an endeavour will be made to give an outline of the several Military Codes that were in force during the reigns of the Stuarts, and to explain how Justice was administered in the Army under those Military Tribunals which were first established by the Royal Prerogative, and ultimately received the sanction of Parliament. 15. The Articles of War put forth by Charles I. A.D. 1629,2 by the advice of the Council of War, were expressed to be "for the government and good ordering of the Troops in England, either in an Army, or in Regiments, or in single Companies." Dealing with moral and religious duties, the Code sought to enforce these against the Soldiers by various minor punishments, e. g., by branding with hot iron for swearing; seven days' imprisonment, with bread and water, for drunkenness; or for drunkenness on guard by strappado. Acts of violence or uncivil speech, either against his Majesty or any person in authority, were to be punished by death and without mercy. With regard to Military duties or offences, the Code was framed upon the assumption that the Soldier, and not the Officer, was the usual offender; but both Officers and Soldiers were to be sworn "to be faithful to his Majesty, both in thought, word, and deed; not to conceal anything not for his service which they saw or heard; and to obey all his lawful commandments." 16. The Administration of Justice "to hear, judge, and determine any fact done by Soldiers," was given to the Marshal's Court, having, however, "no power to put to death till they had advertised the General that shall have authority for life and death for such Troops as he shall command."3 In every Market there was to be a gibbet and strappado, and in every Borough "a Provost with a prison ordained for Soldiers apart from any other." The Code concluded with an article which probably contained a description of the Provost-General's duties as then understood. "The Provost must have a horse allowed him, and some Soldiers to attend him, and all the rest commanded to obey him and assist him, or else the Service will suffer; for he is but one man and must correct many, and therefore he cannot be beloved. And he must be riding from one Garrison to 2 Vol. I. p. 18. 3 Turner, p. 203. 1 Chap. XI., post. another, to see that the Soldiers do no outrage nor scath about the country." 17. The Laws and Ordinances of War put forth in 1639 under the authority of the Royal Commission of 1638 before referred to, were addressed to the Officers and Soldiers of the Northern Army, "which Laws being thus ordained and proclaimed, all the persons were to swear thereto, and thereupon to observe and keep them under the pains and penalties therein expressed." In one particular only, viz., in their political colouring, these Articles varied essentially from those of 1642. Each Code dealt with different subjects under distinct headings. For instance, in the Code of 1639. (1) "Religion and Moral Duties," in thirteen Articles. (2) "The Safety of the Army Royal," in twelve Articles. (3) "Captains' and Soldiers' Duties in Particular," in twenty-nine Articles. (4) "The Camp or Garrison," in sixteen Articles. (5) "Lawful Spoils and Prizes," in five Articles. (6) "The Administration of Justice," in fourteen Articles. While the Code of 16422 had twelve separate headings, as (1) "Duties to God," in three Articles. (2) "Duties in General," in five Articles. (3) "Towards Superiors and Commanders," in ten Articles. (4) "Moral," in seven Articles. (5) "Soldier's Duties touching his Arms, &c.," in seven Articles. (6) "In Marching," in four Articles. (7) "In the Camp and Garrison," in eighteen Articles. (8) "In Action," in eleven Articles. (9) "Of Commanders and Officers in Particular," in twelve Articles. (10) "Of the Muster Master," in six Articles. (11) "Of Victuallers," in four Articles. (12) "Of Administration of Justice," in nine Articles.3 18. The King's Army was enlisted to uphold his authority, then contravened by Parliament; therefore, by the Code of 1639, "whoever should presume to say or insinuate that the Army was unlawful or unnecessary should suffer as a rebel," 1 Vol. I. p. 429. 2 Vol. I. p. 442. 3 Most of the Articles of this Code "are literally the same as those issued by the Earl of Northumberland for the government of the Royal Forces, in 1640. So that both armies, though opposed to each other, were governed by the same Military Code.-See Grose's M. Ant.,' Vol. ii. p. 107, note. Chap. II. par. 46, post. The present Duke would appear to have the original Articles of 1639. See 3rd Report on Historic Manuscripts (1872), p. 81. |