Again, 2. The Constable and Marshal had also a Judicial Power, or a Court wherein several Matters were determinable: As 1st, Appeals of Death or Murder committed beyond the Sea, according to the Course of the Civil Law. 2dly, The Rights of Prisoners taken in War. 3dly, The Offences and Miscarriages of Soldiers contrary to the Laws and Rules of the Army: For always preparatory to an actual War, the Kings of this Realm, by Advice of the Constable, (and Marshal) were used to compose a Book of Rules and Orders for the due Order and Discipline of their Officers and Soldiers, together with certain Penalties on the Offenders; and this was called, Martial Law. We have extant in the Black Book of the Admiralty, and elsewhere, several Exemplars of such Military Laws, and especially that of the 9th of Rich. 2. composed by the King, with the Advice of the Duke of Lancaster, and others.
But touching the Business of Martial Law, these Things are to be observed, viz.
First, That in Truth and Reality it is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, Quod enim Necessitas cogit desendi.
Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so wuch indulged as intended to be (executed or) exercised upon others;for others who were not listed under the Army, had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts; but they were to be order'd and govern' d according to the Laws to which they were subject, though it were a Time of War.
Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the King's Courts are open for all Persons to receive Justice, according to the Laws of the Land. This is in Substance declared by the Petition of Right, 3 Car. I. whereby such Commissions and Martial Law were repealed, and declared to be contrary to Law: And accordingly was that famous Case of Edmond Earl of Kent; who being taken at Pomsret, 15 Ed. 2. the King and divers Lords proceeded to give Sentence of Death against him, as in a kind of Military Court by a Summary Proceeding;which Judgment was afterwards in 1 Ed. 3. revers'd in Parliament:
And the Reason of that Reversal serving to the Purpose in Hand, Ishall here insert it as entered in the Record, viz.
Quod cum quicunq; homo ligeus Domini Regis pro Seditionibus, &c. tempore pacis captus & in quacunque Curia Domini Regis ductus fuerit de ejusmodi Seditionibus & aliis Felonius sibi impositis per Legem & Consuetudine Regni arrectari debet & Responsionem adduci, Et inde per Communem Legem, antequam fuerit Morti adiudicand' (triari) &c. Unde cum notorium sit & manifestum quod totum tempus quo impositum fuit eidem Comiti propter Mala &Facionora fecisse, ad tempus in quo captus fuit & in quo Morti adiudicatus fuit, fuit tempus Pacis maximae, Cum per totum tempus praedictum & Cancellaria & aliae plac. Curiae Domini Regis aperte fuer' in quibus cuilibet Lex Sebatur sicut Seri consuevit, Nec idem Dominus Rex unquam tempore illo cum vexillis explicatis Equitabat, &c.
And accordingly the Judgment was revers'd; for Martial Law, which is rather indulg'd than allow'd, and that only in Cases of Necessity, in Time of open War, is not permitted in Time of Peace, when the ordinary Courts of Justice are open.
