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Arguments on billeting and martial law in the parliament of 1628

Published online by Cambridge University Press:  11 February 2009

Paul Christianson
Paul Christianson
Affiliation:
Queen's University, Kingston
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Abstract

Debates over billeting and martial law arose in the parliament of 1628 in conjunction with such other grievances as the forced loan and discretionary imprisonment employed by royal servants from 1626 onward to keep alive the war effort against the monarchs of Spain and France. Both houses dealt with billeting rather quickly, the Lords by resolving a dispute among magistrates and military officers in Banbury, Oxfordshire, and the Commons by hearing general and particular complaints from civilians, expelling a member who signed an order for billeting, and petitioning the king. Attacks upon the employment of military law internally when a state of war did not exist in England originated in the Commons, reawakened fears over the perceived threat of Roman or civil law superiority to the common law, and set off fierce debates in which royal servants and civil lawyers supported and leading common lawyers denounced as illegal the commissions of martial law issued by the privy council. Underlying these debates, as with those over discretionary imprisonment, were conflicting interpretations of England's ancient constitution with practical consequences for the governance of the realm.

Type
Articles
Information
The Historical Journal , Volume 37 , Issue 3 , September 1994 , pp. 539 - 567
Copyright
Copyright © Cambridge University Press 1994

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References

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8 Commons 1628, II, 172, 183; for the full debate see 171–85, 188–209; this maxim appeared in SirCoke, Edward, La Dixme Part des Reports (London, 1614), fo. 139Google Scholar. Heath studied at Clifford's Inn and the Inner Temple; he was called to the bar in 1603 and became a bencher in 1617; an experienced M.P., Heath had served as recorder of Guildford and London before becoming solicitor general in 1621, attorney general in 1625, chief justice of the common pleas in 1631 and, after dismissal from his previous position, chief justice of the King's Bench in 1642; see Kopperman, Paul E., Sir Robert Heath 1575–1649: window on an age (Woodbridge, 1989)Google Scholar. Nethersole received his B.A. from Trinity College, Cambridge in 1606, became fellow there in 1609 and the public orator of the university in 1611; in 1619 he became secretary to James Hay, later earl of Carlisle, and in 1620 secretary to Elizabeth, the Electress Palatine and Queen of Bohemia, whose adviser he remained until 1632; he was an experienced M.P.; see the D.N.B.

9 Commons 1628, II, 119, 170; see 127–8, 168, 169–70. Bysshe studied at Lincoln's Inn, was called to the bar in 1612, became a bencher in 1630, and served as a justice of the peace [henceforth J. P.] in Surrey; see Prest, Wilfrid R., The rise of the barristers: a social history of the English bar 1590–1640 (Oxford, 1986) [henceforth Prest, Barristers], p. 348.Google Scholar

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12 Lords 1628, pp. 105–7, 108. For the incident in Witham see Aylmer, ‘St. Patrick's Day 1628’ and Quintrell, ‘Gentry factions’. Saye and Sele attended New College, Oxford and was a vigorous member of the Lords; see the D.N.B. For Buckingham see Lockyer, Buckingham.

13 Lords 1628, p. 139; see 137–8, 141. For Conway, an experienced M.P. before being raised to the peerage, see the D.N.B. and Cogswell, Thomas, The blessed revolution: English politics and the coming of war, 1621–1624 (Cambridge, 1989), pp. 80–3, 90–2, passim.Google Scholar

14 Lords 1628, pp. 139–40; see 141–2, 143. Montagu studied at Christ's College, Cambridge and the Middle Temple; he was appointed recorder of London in 1603, a king's sergeant in 1611, chief justice of the King's Bench in 1616, lord treasurer in 1620, lord president of the council in 1621, master of the wards in 1624, and lord privy seal in 1628; he was raised to the peerage as Lord Kimbolton in 1620 and became earl of Manchester in 1624; see the D.N.B.

15 Ibid. pp. 143–4, 140. Spencer attend Magdalen College, Oxford and was an experienced M.P. before succeeding to his title; see Complete peerage. Williams studied at St John's College, Cambridge, receiving a B.A. in 1601, B.D. in 1613, and D.D. in 1617; he became dean of Westminster in 1620, bishop of Lincoln in 1621 and lord keeper in 1621, resigning the last in 1625; see the D.N.B.

16 Ibid. p. 138.

17 Commons 1628, II, 254, see 252–4, 263–4. Cf. Barnes, , ‘Deputies’, pp. 69–74Google Scholar. Eliot attended Exeter College, Oxford, was knighted in 1618, was vice-admiral of Devon from 1622 to 1628, and was an experienced M.P.; see Hulme, Harold, The life of Sir John Eliot, 1592 to 1632 (London, 1957)Google Scholar. Giles attended Exeter College, Oxford and the Middle Temple, was knighted in 1603, and was a very experienced M.P.; see A.O. p. 566. Rodney studied at Magdalen College, Oxford and the Middle Temple, served as a J.P. and D.L., and was an experienced M.P.; see Keeler, , L.P. pp. 324–5Google Scholar. Wallop received his B.A. from St John's College, Oxford in 1588, attended Lincoln's Inn, had estates and experience in Ireland, and was a very experienced M.P.; see Keeler, , L.P. pp. 376–8.Google Scholar

18 Commons 1628, II, 254, see 255, 264. George Browne studied at Magdalen College, Oxford and the Middle Temple, receiving his B.A. in 1602, being called to the bar in 1609, and becoming a bencher in 1628; he was also a J.P., the recorder of Lyme Regis and Taunton, and an experienced M.P.

19 Commons 1628, II, 279–80; cf. 286–7, 290–1, 292. In notes prepared on this topic, Selden stressed that ‘Tenures by knight service some testimony is in the Book of Ely and in the laws of the Saxons’, but that there were ‘Divers more such’ after William I became king; he had ‘Conquered not the kingdom so much as the king only’ and ‘made laws in Parliament’; Bodleian, Selden MSS, supra 123, fo. 210. Hakewill studied at Exeter College, Oxford, Staple Inn and Lincoln's Inn, being called to the bar in 1606 and becoming a bencher in 1618; he was appointed to a commission for law reform in 1614 and was a very experienced M.P.

20 Ibid. p. 280.

21 Ibid. p. 281. For Spelman see Pocock, J. G. A., The ancient constitution and the feudal law: English historical thought in the seventeenth century, a reissue with a retrospect (Cambridge, 1986), pp. 65–8.Google Scholar

22 Commons 1628, II, 281. Shelton studied at Clement's Inn and the Inner Temple, was called to the bar in 1606 and became a bencher in 1622; appointed solicitor general in 1625, he also served as a J.P. and was an experienced M.P.

23 Commons 1628, II, 281, 287–8, 291, 292–3. Digges received his B.A. from University College, Oxford in 1601, was knighted in 1607, served as a diplomat to Russia and Holland, and was a very experienced M.P.; he became a member of the high commission in 1633 and master of the rolls in 1636; see the D.N.B. Pym attended what is now Pembroke College, Oxford and the Middle Temple, was a receiver of Crown lands for Wiltshire, Hampshire and Gloucestershire, and was an experienced M.P.; see the D.N.B. and Russell, Conrad, ‘The parliamentary career of John Pym, 1621–9’ in Clark, , ed., English commonwealth, ch. 8.Google Scholar

24 Commons 1628, II, 281, 287, 288, 293. Earlier in the debate, Wentworth had suggested establishing a committee to examine this issue.

25 Ibid. pp. 368, 371; see 360–71. Erie attended Queen's College, Oxford and the Middle Temple; knighted in 1616, he was a very experienced M.P.; see Keeler, , L.P. pp. 165–7Google Scholar. Knightley was a leading country gentleman and experienced M.P.; see the D.N.B. Sherland received a B.A. from Queen's College, Oxford in 1610 and studied at Gray's Inn; he was called to the bar in 1617 and became a bencher in 1623, the year he became the recorder of Northampton. A feoffee of impropriations and active member of the Providence company, he was an experienced M.P.; see Prest, , Barristers, pp. 390–1.Google Scholar

26 Commons 1628, II, 371. Mason attended Balliol College, Oxford and studied at Lincoln's Inn, being called to the bar in 1617 and becoming a bencher in 1633; recorder of Winchester and counsel for Winchester cathedral, he became the recorder of Southampton in 1633 and served as a J.P. An M.P. in 1626, he was one of the managers of the impeachment of the duke of Buckingham; see the D.N.B. and Prest, , Barristers, p. 379.Google Scholar

27 Commons 1628, II, 383–4; for Baber's suspension, see 375; for Rich's speech, see 391; for the passage of the petition, see 376, 397. Later in the session, Selden supported the readmission of Baber into the house; see Commons 1628, IV, 19. Baber received his B.A. from Lincoln College, Oxford in 1611, studied at Lincoln's Inn, was called to the bar in 1621, became a bencher in 1639, was recorder of Wells by 1628 and counsel to Wells cathedral by 1636. In 1628 he was a new M.P.; see Prest, , Barristers, p. 342.Google Scholar

28 Commons 1628, II, 452; for the text of the petition, see 451–2.

29 Ibid. p. 453.

30 In the early seventeenth century, English common law advocates perceived a serious threat to the jurisprudence which they practised from the Roman or civil law tradition which had become increasingly pervasive throughout Europe during the course of the previous centuries. For a variety of reasons, the English common law courts did not handle all cases of dispute in England; even after the Reformation, matters such as morals, wills and aspects of ecclesiastical property were tried by canon law in the church courts and naval matters were tried in the admiralty courts, while in Ireland, civil law arguments were having a strong impact upon cases in common law courts. See Baker, J. H., ‘English law and the renaissance’ in his The legal profession and the common law: historical essays (London, 1986)Google Scholar, ch. 23, Christianson, Paul, ‘Political thought in early Stuart England’, H.J. XXX (1987), 955–70Google Scholar, Levack, Brian P., The civil lawyers in England 1603–1641: a political study (Oxford, 1973)Google Scholar [henceforth Levack, Civil lawyers], ch. 4 and such treatises by civil lawyers as Fulbecke, William, A parallele or conference of the cwill law, the canon law, and the common law of this realme of England (London, 1601)Google Scholar, The second part of the parallele or conference (London, 1602)Google Scholar, and Ridley, Thomas, A view of the civile and ecclesiastical law (London, 1607)Google Scholar. For Ireland see Pawlisch, Hans S., Sir John Davits and the conquest of Ireland: a study in legal imperialism (Cambridge, 1985)CrossRefGoogle Scholar. For disputes over the ancient constitution see Christianson, Paul, ‘Royal and parliamentary voices on the ancient constitution, ca. 1604–21’, in Peck, Linda Levy, ed., The mental world of the Jacobean court (Cambridge, 1991), pp. 71–95, 289–98Google Scholar, and ‘Ancient constitutions in the age of Sir Edward Coke and John Selden’, in Sandoz, Ellis, ed., The roots of liberty: Magna Carta, ancient constitution, and the Anglo-American tradition of rule of law (Columbia, 1993)Google Scholar [henceforth Christianson, ‘Royal and parliamentary voices’ and ‘Ancient constitutions’] and Burgess, Glen, The politics of the ancient constitution: an introduction to English political thought, 1603–1672 (London, 1992)CrossRefGoogle Scholar [henceforth Burgess, Politics of the ancient constitution].

31 Commons 1628, II, 416, see 412–13, 420, 423.

32 Ibid. pp. 413, 417. As Boynton pointed out, the initiative for commissions of martial law normally came from local authorities who were experiencing difficulties in disciplining troops by normal means; see ‘Martial law and the petition of right’, pp. 256–72. Beecher was also a J. P. in Northamptonshire; see Gleason, J. H., The justices of the peace in England 1558 to 1640: a later EIRENARCHA (Oxford, 1969) [henceforth Gleason, Justices], pp. 173, 177Google Scholar. Edmondes was a diplomat, crown official, privy councillor, and a very experienced M.P.; see the D.N.B.

33 Commons 1628, a, 415.

34 Ibid. pp. 461–2, 463; see 466–7, 469–70. An experienced courtier, May attended St John's College, Oxford and the Middle Temple, held a number of crown offices, was made a privy councillor and a member of Gray's Inn in 1625, and was a very experienced M.P.; see the D.N.B.

35 Commons 1628, II, 462–3; see 467–8, 471.

36 Ibid. p. 463; see 468.

37 Ibid. pp. 463–5. Also see the speech made 16 April by John Bankes, another common lawyer who eventually became attorney general, against the legality of the recent commission; ibid, pp. 481–2; see 484–5, 487–8, 489–90.

38 For this great debate see Commons 1628, II, 490–503, 524–38, Lords 1628, pp. 273–300, and Christianson, , ‘Five knights' case’, pp. 77–82Google Scholar, and ‘Ancient constitutions’, pp. 129–31. My account here overlaps somewhat with these. Ashley studied at Magdalen Hall, Oxford, and at the Middle Temple; called to the bar in 1596, he became a bencher in 1616, a sergeant in 1617, and a king's sergeant in 1625; see Prest, , Barristers, p. 340Google Scholar. Coventry studied at Balliol College, Oxford and the Inner Temple, was called to the bar in 1603, became a bencher in 1614, and was appointed solicitor general in 1617, attorney general in 1621, and lord keeper in 1625; see the D.N.B. and Prest, , Barristers, p. 352Google Scholar. Littleton studied at Christ Church, Oxford and the Inner Temple; he was called to the bar in 1617, became a bencher in 1629, recorder of London in 1631, a sergeant in 1640, and lord keeper in 1641; an experienced M.P., he defended Selden in his trial after the dissolution of parliament in 1629; see the D.N.B. and Prest, , Barristers, p. 376.Google Scholar

39 Lords 1628, pp. 282–3. ‘n 1616, Ashley had presented a law reading at the Middle Temple on Magna Carta, c. 29; see Thompson, Faith, Magna Carta: its role in the making of the English constitution 1300–1629 (Minneapolis, 1948), pp. 286–93, 343–5.Google Scholar

40 Lords 1628, pp. 284, 287. For Manwaring, see Cust, , Forced loan, pp. 62–7.Google Scholar

41 Ibid. pp. 301, 303, 311, 316.

42 Commons 1628, II, 541–61. Marten received his B.C.L. from New College, Oxford in 1587 and his C.C.L. in 1592 and h a d a very successful career in the ecclesiastical and admiralty courts; he was a n experienced M.P.; see t he D.N.B. and Levack, , Civil lawyers, pp. 252–3.Google Scholar

43 Commons 1628, II, 541–2, see 547–8, 551–2, 556. Rolle studied at Exeter College, Oxford and the Inner Temple; called to the bar in 1618, he became a bencher in 1633, recorder of Dorchester in 1636, a sergeant in 1640, ajustice of the King's Bench in 1645, and chief justice in 1648; he was a very experienced M.P. and a writer of law treatises, see the D.N.B. and Prest, , Barristers, p. 388.Google Scholar

44 Commons 1628, II, 542, see 548, 552, 558, 560. Eden received his LI.B. from Trinity Hall, Cambridge in 1600 and his LI.D. in 1614; he was a J.P. and had a successful career as an official in the ecclesiastical courts; see the D.N.B. and Levack, , Civil lawyers, pp. 227–8.Google Scholar

45 Ibid. pp. 542–3, see 548–9, 552–3, 556–7, 558–9, 560–1.

46 Ibid. p. 543.

47 Ibid. p. 553, 543, 544. Ball studied at Lyon's Inn and the Middle Temple, was called to the bar in 1623, and became a bencher in 1642; he became recorder of Exeter in 1632, solicitor general to Queen Henrietta Maria in 1636, and later her attorney general; see Prest, Barristers, p. 342.

48 Commons 1628, II, 549; since many of t h e commissions were published and there were enemies in the field in France, this statement was not entirely accurate. Noy studied at Exeter College, Oxford and Lincoln's Inn; called to the bar in 1602, he became a bencher in 1618; a very experienced M.P., he had refused the forced loan; he became attorney general in 1631; see the D.N.B.

49 Commons 1628, II, 558.

50 Ibid. p. 567. Jephson went to Ireland with the earl of Essex, married there, and remained a member of the Irish privy council as late as 1628; he was a deputy lieutenant in Hampshire; see Keeler, , L.P. p. 234.Google Scholar

51 Commons 1628, II, 566, 568, 572; this quotation is a composite text drawing mainly upon the versions found in proceedings and debates and in Stow MS 366.

52 Ibid. pp. 569, 573, 577.

53 Ibid. p. 568; see 566, 568–9, 572–3. Noy's precedents came from the reigns of Edward II and Edward III.

54 Ibid. pp. 569, 573; see 575.

55 Commons 1628, II, 24; see 27–8, 31–2, 34–5, 36–7, 38.

56 Ibid.

57 Ibid. pp. 28, 25; see 24–5, 32–3, 35, 37, 39.

58 Ibid. p. 25. He was wrong; see Boynton, , ‘Martial law a nd the petition of right’, p. 276Google Scholar n. 5. Hoby attended Trinity College, Oxford and Gray's Inn and was knighted in Ireland in 1593; an active J. P. in the North Riding of Yorkshire, he was a member of the council of the north from 1603 onward and a very experienced M.P.; see Gleason, , Justices, pp. 37–41.Google Scholar

59 Commons 1628, III, 28. The stress upon custom and statute had formed the basis of Selden's interpretation of the ancient constitution in a series of works from 1610, and especially from 1616, onwards; see Christianson, Paul, ‘Young John Selden and the ancient constitution, ca. 1610–1618’, Proceedings of the American Philosophical Society, CXXVIII (1984), 271–315.Google Scholar

60 Commons 1628, III, 72–4, 79–80, 83–5, 86–7, 88–9. For the Lords' propositions, the debates within and between the Commons and the Lords, and the move to a petition of right, see Christianson, , ‘Ancient constitutions’, pp. 134–8.Google Scholar

61 Commons 1628, III, 302–7, 312–14.

62 Ibid. pp. 314–15; see 307.

63 Ibid. p. 315; see 307. As Boynton pointed out, most executions of soldiers in England in 1624–8 took place under commissions of oyer and terminer and were carried out by local magistrates.

64 Commons 1628, III, 316, 308.

65 Ibid. pp. 318, 319. Glanville studied at Lincoln's Inn, was called to the bar in 1610 and became a bencher in 1627; he was a very experienced M.P. and the recorder of several boroughs; see the D.N.B. and Prest, , Barristers, p. 364.Google Scholar

66 Commons 1628, III, 325–31; also see Lords 1628, pp. 394–7.

67 Ibid. p. 372; see 369, 371–3, 374, 378–9, 379–80, 382; for the consideration of the petition by the peers see Lords 1628, pp. 399–403, 405–6, 409–13, 421–36, 438–42, 445, 447–8, 451–7, 460–9, 473, 475–7, 479–87, 489–96, 499–500, 507–17, 520–8, 532–3, 536.

68 Lords 1628, p. 405 and Commons 1628, III, 341; for the text of the petition proposed by the Commons see Commons 1628, III, 339–41 and see p. 379 for another text of the Lords’ amendments.

69 Commons 1628, III, 391, 395–7, 398–9.

70 Ibid. p. 407, see 404, 406–9, 411–14, 417, and Lords 1628, pp. 409–13, 422–3, 424–36.

71 Commons 1628, III, 452; see Lords 1628, pp. 445, 447–8, 451–7, 475–6, 479–80, 483–4, 486–7.

72 Commons 1628, III, 464, see 465, 467–8, 470–1, 475–8, 482–7, 491–2, 493–508, 512, 515–16, 517–18, 520, 527–54, 558–90, 595–8, 599–600, 601–4, 604–7, 611, 612–13, 614–15, 618, 623–5, and Lords 1628, pp. 507–8, 509–13, 515–17, 520–1, 522–4, 526–7, 527–8, 532, 540. For the debates in the Lords and their attempt to save the royal power of discretionary imprisonment see Flemion, , ‘Lords and the petition of right’, pp. 36–43.Google Scholar

73 Commons 1628, III, 486.

74 Ibid. pp. 471, 467; see 467–8, 470–1, 474–5, 475–7. 482–7.

75 Lords 1628, pp. 460–1, 524. Flemion uses this speech in her argument that discretionary imprisonment was the chief issue of disagreement between the Lords and the Commons; see Flemion, , ‘Lords and the petition of right’, pp. 37–8Google Scholar. Smith quotes this speech to show how Dorset sought a middle way to uphold both the royal prerogative of discretionary imprisonment and the liberties of the people; see Smith, D., ‘4th earl of Dorset’, p. 48. Dorset attended Christ Church, Oxford, served as an M.P. in the parliaments of 1621 and 1624, was very active in the Virginia and Bermuda Island companies, served in Vere's army in the Palatine, and was appointed lord chamberlain to the queen in July 1628; see the D.N.B. and D. Smith, ‘4th earl of Dorset’.Google Scholar

76 Commons 1628, III, 611, 623 and Lords 1628, p. 541.

77 Christianson, , ‘Discretionary imprisonment’, p. 65Google Scholar; ‘Ancient constitutions’, pp. 116–17. Christianson, ‘Royal and parliamentary voices’ and ‘Ancient constitutions’ add further evidence and interpretative refinements to the interpretation first put forward in ‘Discretionary imprisonment’.

78 Christianson, , ‘Royal and parliamentary voices’, p. 95.Google Scholar

79 See Chesler, Robert Douglas, ‘Crown, lords and God: the establishment of secular authority and the pacification of lower Austria, 1618–1648’ (unpublished Ph.D. thesis, Princeton, 1979).Google Scholar

80 Burgess, , Politics of the ancient constitution, chs. 5–7.Google Scholar

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