COURTS 
COURT of MARSHALSEA. 
This is a court of record, to hear and determine 
caufes between the fervants of the king’s houfehold and 
others within the verge ; and hath jurifdidtion of all 
matters within the verge of the court, and of pleas of 
trefpafs, where either party is of the king’s family ; and 
of all other actions perfonal, wherein both parties are 
the king’s fervants; and this is the original jurifdidtion 
of the court of marfhalfea. i Buljl. 211. But the curia 
palatii , erected by Charles I. by letters patent, in the 
iixth year of his reign, and made a court of record, hath 
power to try all perfonal adtions, as debt, trefpafs, 
/lander, trover, adtions on the cafe, &c. between party 
and party, the liberty whereof extends twelve miles 
about Whitehall ; 13 Rich. II. ft. 1. c. 3. which jurif¬ 
didtion was confirmed by Charles II. The judges of 
this court are the fieward of the king’s houfehold, and 
knight-marihal for the time being, and the fieward of 
the court, or his deputy, being always a lawyer. Kite A. 
199. 2 Inji. 548. 
This court is holden once a week, in Southwark: and 
the proceedings here are either by capias or attachment; 
which is to be ferved on the defendant by one of the 
knight-marfhal’s men, who takes bond with fureties for 
his appearance at the next court; upon which appear¬ 
ance, he mu ft give bail, to anfwer the determination of 
the court; and the next court after the bail is taken, 
the plaintiff is to declare, and fet forth the caufe of his 
adtion, and afterwards proceed to iffue and trial by a 
jury, according to the cuftorn of the common-law courts. 
If a caufe is of importance, it is ufually removed into 
the king’s-bench or common-pleas, by an habeas corpus 
cum caufa ; otherwife caufes are here brought to trial in 
four or five court-days.. The inferior bulinefs of this 
court hath of late years been much reduced, by the new 
courts of confcience in and near London ; for which the 
four counfel belonging to the court were indemnified by 
falaries during their lives, by 23 Geo. II. c. 27. 
By 28 Edw. I. c. 3. the fieward and marfhal of the 
king’s houfe are not to hold plea of freehold, See. Error 
in the marfhalfea court may be removed into the king’s- 
bench. 5 Edw. III. c. 2. 10 Edw. III. ft. 2. c. 3. And 
the fees of the marfhalfea are limited by 2 Hen. IV. c. 2.3. 
This marfhalfea is that of the houfhold ; not the king’s 
marfhalfea, which'belongs to the king’s-bench. 
COURT MARTIAL. 
This is a court for trying and punifhing the military 
offences of officers and foldiers. Though the authority 
of the court of chivalry, with regard to matters of war, 
both within and without the realm, not determinable by 
the general municipal law, was firft eftablifhed by the 
common law, and afterwards confirmed by feveral fta- 
tutes ; and was never objedted to, even in criminal cafes, 
till the poll of high conftable was laid afide ; yet we 
find its jurifdidtion encroached upon much earlier; for 
by 18 Hen. VI. c. 19. defertion from the king’s army was 
made felony, and by 7 Hen. VII. c. 1. 3 Hen. VIII. c. 5. 
benefit of clergy is taken away, and authority given to 
juftices of peace to enquire thereof, and hear and deter¬ 
mine the fame. And Rapin quotes an inftance of Henry 
VII. having ordered thofe accufed of holding intelligence 
with the enemy after the battle of Stoke, 1487, to be 
tried by commiffioners of his own appointing, or by 
courts-martial, according to the martial law ; in Head of 
the ufual court of juftice, which was not fo favourable 
to his defign of punifhing them only by fines. This 
however f'eems to have been an avaricious, arbitrary, 
and illegal, exertion of power, not authorized by any law 
of the land. 
From the time the court of chivalry was abridged of 
its criminal jurifdidtion, by the fuppreffion of the poll of 
high conftable, until the revolution, there appears to 
have been no regular eftablifhed court for the adminif- 
O F LA W. 303 
tration of martial law. For although the court of chi¬ 
valry Hill continued to be held from time to time by the 
earl marfhal, its authority extended only to civil mat¬ 
ters; and notwithflanding defertion was by 2 & 3 Edw. 
VI. c. 2. made felony without benefit of clergy, and 
other military crimes were made punifhable by fines, 
imprifonment, &c. and by 39 Eliz. c. 17. idle and wan¬ 
dering foldiers and mariners were to be reputed as felons, 
and to fuffer as in cafes of felony, without benefit of 
clergy, with fome exceptions; and the juftices of affife 
and gaol-delivery were to hear and determine thefe of¬ 
fences ; yet there are inftances during this period, cf 
other courts being ere died for the. adminiftration of mar¬ 
tial law ; and not only military perfons made fubjedt to 
it, but many others punifhed thereby ; fome entirely at 
the diferetion of the crown, and others by appointment 
of the parliament only ; and it was a circumflance of 
nearly a fimilar nature, that occafioned the enadting the 
Petition of Rights, 3 Car.I. c.i. one claufe of which was, 
that the commiflions for proceeding by martial law thou Id 
be diflblved and annulled; and no fuch commilTion be 
ifilled for the future. 
Though undoubtedly thefe commiflions were illegal, 
yet the neceflity of fubordination in the army, and the 
impofiibility of eftablifhing that fubordination without 
martial law, foon became apparent; and the two houfes 
of parliament, in the beginning of their rebellion aguinft 
Charles 1 . palled an ordinance, appointing commiffioners 
to execute martial law ; which was certainly at lead as 
unconflitutional an act without the alfent of the king, 
as any proceedings of his had been without confent of 
parliament. So true is it that neceffity has no law ; and 
that ufurped power is always obliged to have recourfe to 
means to fupport itfelf, at leaft as fevere as, and gene¬ 
rally more violent than, thofe which it previoufly con¬ 
demns in a lawful government; which it may fora while 
fucceed in overturning on falfe and fpecious pretexts of 
undefined liberty. This ordinance was palled in 1644, 
and afterwards renewed by the parliament ; and in pro. 
cefs of time it was adopted as a model for the mutiny 
adt pafled after the revolution: as many other regula¬ 
tions made during the powerful but tyrannical ufurpa- 
tion of fovereign authority, were afterwards modified to 
the true genius of the Britilh conliitution. 
At the reiteration, one of the firft fteps taken by the 
parliament was, to difband the army, and to regulate the 
militia, among whom a military fubordination was efta¬ 
blifhed, whenever they were drawn out; and fines and 
imprifonments impofed on them for particular delin¬ 
quencies. Charles II. however, kept up five thoufand 
regular troops, for guards and garrifons, by his own au¬ 
thority ; which his fuccelfor, Jac. II. by degrees in. 
creafed to thirty thoufand, and more numerous armies 
were occafionally raifed by authority of parliament; yet 
we find no flatute for the government of thefe troops; 
nor was it until after the revolution, that a regular adt of 
the whole legiflature pafled for punifhing mutiny and de¬ 
fertion, &c. by courts-martial. 
This adt was originally occafioned by a mutiny, in a 
body of Engliffi and Scotch troops, upon their being or¬ 
dered to Holland, to replace fome of the Dutch troops 
which William III. had brought over with him, and in¬ 
tended to keep in England. The king immediately 
communicated this event to the parliament, who readily 
agreed to give their fandtion to punifh the offenders; 
and on the third of April 1689, (1 Will. & Mary,) they 
pafled an adt for punifhing mutiny and defertion, which 
was to continue in force only until November following. 
It was however renewed again in January', and has with 
the interruption of about three years only, from April 
1698 to February 1701, been annually renewed ever 
fince, with fome occafional alterations and amendments, 
as well in times of peace as of war. 
Martial law, as formerly exercifed at tire diferetion of 
the crown, and too often made fubfervient to bad pur- 
