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Hidden in Plain Sight: Martial Law and the Making of the High Courts of Justice, 1642–60

Published online by Cambridge University Press:  07 November 2014

John M. Collins
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Abstract

This article traces the transformation of martial law during the Civil Wars and Interregnum culminating with the creation of the High Courts of Justice in the 1650s. The Long, Rump, and Protectorate parliaments used, adapted, and combined martial law procedures with others to solve some of the most difficult and pressing legal problems they faced. These problems included the trial of spies, traitors to the parliamentary cause, Charles I and his royalist commanders of the Second Civil War, and conspirators, plotters, and rebels during the 1650s. The Long Parliament, the English Commonwealth, and the Protectorate governments used these legal innovations to control discretion at law, and to terrorize dissidents into obedience. The Petition of Right, whose makers had demanded that English subjects only be tried by life and limb by their peers in peacetime, was overturned in order to meet these challenges.

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Articles
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Journal of British Studies , Volume 53 , Issue 4 , October 2014 , pp. 859 - 884
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Copyright © The North American Conference on British Studies 2014 

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References

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22 Some of the first protests came from Ireland in the sixteenth century. Edwards, “Ideology and Experience;” Collins, “One of Many,” chapter 2.

23 Boynton, “Martial Law and the Petition of Right.”

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25 For a full examination of these debates, see, as cited in n10, Collins, “One of Many,” 249–96. Christianson, “Arguments on Martial Law and Billeting.”

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29 A Brief Relation, Abstracted out of Severall Letters, of a Most Hellish, Cruel, and Bloudy Plot Against the City of Bristoll (e.93.3, London, 1643)Google Scholar; Journal of the House of Commons (hereafter CJ) (London, 1802)Google Scholar, 3:97. Another important court martial case in this period was parliament's attempt to try George Goring for treason by court martial. Hopper, Turncoats and Renegadoes, 46.

30 Mercurius Civicus , 18–25 May 1643 (e.104.3 [no. 3], London), 20–22.

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32 The Several Examinations, 4.

33 Gardiner, S.R., History of the Great Civil War, 1642–49 4 vols. (London, 1893)Google Scholar, 1:144–49, 156–58; Lindley, Popular Politics, 348–50.

34 Journal of Simonds D'Ewes, BL Harley Ms. 165, f. 102v.

35 Ibid, f. 103. Thanks to Jordan Downs for discussion on this matter.

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40 Journal of Common Council, London Metropolitan Archives (hereafter LMA) Jour. 40, f. 97v–98. Kingdomes Weekly Intelligencer 14–21 May 1644 (e.49.5, [no.55], London), 445. The petition was delivered on 16 May, and the Commons set up a committee to answer it. CJ, 3:498.

41 Laurence Whitaker's Diary, BL Add. Ms. 31,116, f. 138v.

42 Journal of Common Council, LMA Jour. 40 f. 102v;CJ, 3:510, 518, 554, 562.

43 Lords Main Papers, Parliamentary Archives (hereafter PA) HL/PO/JO/10/1/172. The amendments came from 29 July and were attached to a marked up bill dated 16 August 1644. Journals of the House of Lords (hereafter LJ) (London, 1767–1830)Google Scholar, 6:646, 648.

44 CJ, 3:574, 576; LJ, 6:649, 651; Journal of Common Council, LMA Jour. 40, f. 103–v; Diary of Whitaker, BL Add. Ms. 31116, f. 153–v; A&O, 1:487.

45 A&O, 1:487.

46 Sutcliffe, Practice, Proceedings, and Lawes of Armes, 310.

47 A&O, 1:486–88. Compare these articles with Essex's Lawes and Ordinances of Warre, A3–v and with Sutcliffe's treason category, Practice, Proceedings, and Lawes of Armes, 310–11.

48 The Lords agreed to extend martial law jurisdiction in London through the end of December on 5 December CJ, 3:715; LJ, 7:88–89.

49 Syppens received a respite. CJ, 3:654, 689; Mercurius Civicus 3–10 Oct. 1644 (e.12.11 [no. 72], London), 674–75; Mercurius Civicus 14–21 Nov. 1644 (e.18.5 [no. 78], London), 723–25; Mercurius Civicus 28 Nov.–5 Dec. 1644 (e.21.2 [no. 80], London), 736–38. Mercurius Civicus, 19–26 Dec. 1644 (e.22.12 [no. 83], London), 761.

50 LJ, 7:121; Gardiner, History of the Great Civil War, 2:105.

51 Everitt, Alan, The Community of Kent and the Great Rebellion, 1640–1660 (Leicester, 1966), 200–270Google Scholar; A&O, 1:692–94.

52 Mercurius Civicus 1–8 Jan. 1646 (e.315.5 [no. 137], London), 1195. The Commons also wanted to create garrison courts martial in the west, in Gloucester, Hereford, Henly, and Reading and near Oxford in Newport Pagnell, and Aylesbury, probably in the worry that fleeing royalists would infiltrate the towns.

53 The agreement for the London court martial was made last. The Lords assented to martial law in Hereford and Gloucester on 15 January 1646. LJ, 8:100–01; CJ, 4:407. On 14 February, it was agreed to grant martial law in Aylesbury and Newport Pagnell: CJ, 4:440; LJ, 8:167. On 4 March, it was agreed to provide martial law for Henly and Reading: CJ, 4:461; LJ, 8:197, 200. The debates over the London court martial and trying William Murray can be found in: CJ, 4:394–96, 399–400, 405, 412, 414, 417, 420, 433, 435, 437–39, 456, 461–62, 490–91, 493–94, 497–98, 505; and in LJ 8:83, 86, 90, 94, 96, 99, 107, 116, 122, 162–63, 168–89, 190, 197, 216, 242, 246–48. The Lords’ initial objections can be found in Lords Main Papers dated 14 February, PA, HL/PO/JO/10/1/201. Gardiner, History of the Great Civil War, 3:69–70. Smith, Royalist Agents, 93–94.

54 A&O, 1:842–45.

55 Ibid., 844.

56 Mercurius Civicus, 21–28 May 1646 (e.339.2 [no. 156], London), 2254. A copy of Murray's trial was attached to his 6 July petition for release: Lords Main Papers, PA HL/PO/JO/10/1/209. While Murray was tried by the garrison court martial, a special ordinance had to be made to try him because his supposed treasons were outside of the city of London. LJ, 8:266–67.

57 There was a fourth change, only for the 1646 court martial, where the Lords successfully forced the Commons to mandate that any conviction must be done by “full proof” or two eyewitnesses or a confession without constraint. A&O, 1:845; LJ, 8:266–67. The 1646 London court martial was unique in this respect.

58 Collins, “One of Many,” 249–96. Civilians frequently possessed summary martial law powers in Ireland as well.

59 Diary of Whitaker, BL Add Ms. 31116, f. 59v.

60 Lords Main Papers, 6 July 1646, PA HL/PO/JO/10/1/209; A&O, 1:842–45.

61 A&O, 1:486–88, 842–45. The self-denying ordinance, passed in April 1645, discharged members of parliament from all military and civil offices. A&O, 1:664–65. For the context behind the making of this ordinance, see Kishlansky, Mark, The Rise of the New Model Army (Cambridge, 1979), 26–51Google Scholar.

62 Mercurius Civicus, 3–10 Oct. 1644, 674.

63 Prynne, William, A True and Full Relation of the Prosecution, Arraignment, Tryall, and Condemnation of Nathaniel Fiennes (e.255.1, London, 1644)Google Scholar, 12.

64 The 1644 court martial had a pool of 57 commissioners, while the 1646 court martial had a pool of 46. A&O, 1:486–88, 842–45.

65 CJ, 3:144; A&O, 1:486–88, 692–94, 715–16, 842–45; Lords Main Papers, 1645–46, PA HL/PO/JO/10/1/193, 202.

66 A “High Court of Justice” in England referred to a court that sat at Westminster. See Lambarde, William, Archeion, or A discourse upon the high courts of justice in England (STC: 15144, London,1635)Google Scholar. In the army, it would have referred to the council of war that had powers of life and limb. See the 1639 articles for the Scottish army: Articles of Military Discipline (STC: 21904.5, Edinburgh, 1639)Google Scholar, 14.

67 For the politics that led to the trial, see Gardiner, History of the Great Civil War, 4; Underdown, David, Pride's Purge: Politics in the Puritan Revolution (Oxford, 1971)Google Scholar; Crawford, Patricia, “Charles Stuart, That Man of Blood,” Journal of British Studies 16, no. 2 (Spring 1977), 41–61CrossRefGoogle Scholar. For the law behind the trial of Charles I, see Holmes, Clive, “The Trial and Execution of Charles I,” Historical Journal 53, no. 2 (2010): 289–316CrossRefGoogle Scholar. For narratives of the trial, see Gardiner, History of the Great Civil War, 4:212–331; Wedgewood, C. V., The Trial of Charles I (London, 1964)Google Scholar. For the historiography of the trial, see Peacey, Jason, “Introduction” The Regicides and the Execution of Charles I, ed. Peacey, Jason (Basingstoke, 2001), 1–10CrossRefGoogle Scholar.

68 The best source for the trial is the journal of the proceedings of the High Court of Justice taken by the clerks now in the National Archives, SP 16/517, which has been transcribed as “Bradshaw's notebook” in Muddiman, J. G.'s The Trial of King Charles I (London, 1928)Google Scholar. Also see Nalson, J., A True Copy of the Journal of the High Court of Justice for the Tryal of Charles I (Wing: T2645, London, 1684)Google Scholar. I have used these two printed sources in my examination; for the contemporary printed reports of the trial see Jason Peacey, “Reporting a Revolution: A Failed Propaganda Campaign,” in The Regicides, 161–81.

69 Sachse, William L., “England's ‘Black Tribunal’: An Analysis of the Regicide Court,” Journal of British Studies 12, no. 2 (1973): 74CrossRefGoogle Scholar.

70 A&O, 1:1253.

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72 I thus share Clive Holmes's skepticism of Sean Kelsey's argument that the trial was actually a negotiation with Charles, and that parliament had not intended to kill the king. Holmes, “The Trial and Execution of Charles I,” 301. Kelsey, Sean, “Politics and Procedure in the Trial of Charles I,” Law and History Review 22, no. 1 (2004): 1–25CrossRefGoogle Scholar; Kelsey, , “The Trial of Charles I,” English Historical Review 118, no. 477 (2003): 583–616CrossRefGoogle Scholar; Kelsey, , “The Death of Charles I,” Historical Journal 45, no. 4 (2002): 727–54CrossRefGoogle Scholar.

73 The Kingedomes Weekly Intelligencer, 26 Dec. 1648–2 Jan. 1649 (e.536.33 [no. 292], London), 1206. As the Commons knew the king might refuse to plea, perhaps proof by notoriety was installed as a backup plan should a more desirable conviction by eyewitness testimony or confession fail to materialize.

74 Nalson, A True Copy of the Journal of the High Court of Justice, 92.

75 For an analysis of the trial as a propaganda campaign, see Jason Peacey, “Reporting a Revolution,” 161–81.

76 Some of the initial reports of the plans for the trial separated the judiciary from the jury. None of the proposed judiciary ended up participating in the actual proceedings. Perfect Occurrences 29 December 1648–5 January 1649 (e.527.3 [no. 105], London), 784. This interpretation can also be found in Perfect Weekly Account 27 December 1648–3 January 1649 (e.536.37, London), unpaginated; and Heads of a Diarie 27 December 1648–2 January 1649 (e.536.34 [no. 5], London), 39–40; Gardiner has accepted this original plan. History of the Great Civil War, iv. 288. Sachse, “England's ‘Black Tribunal,’” 71. For the early plans for the trial, see Kelsey, Sean, “The Ordinance for the Trial of Charles I,” Historical Research, 76, no. 193 (2003): 310–31CrossRefGoogle Scholar. We know the court had several votes to condemn Charles on 25 January and 26 January. It is not clear whether unanimity was required, although it was unanimous. Nalson, A True Copy of the Journal of the High Court of Justice, 81, 83, 92.

77 For impeachment, see Tite, Colin G. C., Impeachment and Parliamentary Judicature in early Stuart England (London, 1974), 211–18Google Scholar. Adamson, John, The Noble Revolt: The Overthrow of Charles I (London, 2007), 220–26Google Scholar.

78 Nalson, A True Copy of the Journal of the High Court of Justice, 32.

79 On 4 January, the generally reliable Kingedomes Weekly Intelligencer reported that the Commons had resolved to try Charles by court martial. Kingedomes Weekly Intelligencer 2–9 Jan. 1649, (e.537.22 [no. 293], London), [1214]. A court martial is also referenced on 1215.

80 Muddiman, The Trial of King Charles I, 198.

81 A&O, 1:1253–55.

82 The depositions of the witnesses are in Nalson, A True Copy of the Journal of the High Court of Justice, 63–79; Muddiman, The Trial of King Charles I, 213–22. For this type of confrontation procedure, see Langbein, John, Prosecuting Crime in the Renaissance (Cambridge, MA, 1974), 223–48CrossRefGoogle Scholar.

83 Kelsey, “Politics and Procedure,” 13.

84 Walker, Clement, The High Court of Justice or Cromwells New Slaughter House in England (e.802.3, London, 1651)Google Scholar, 19. Walker was a former judge advocate for Parliament. David Underdown, “Walker, Clement,” in ODNB.

85 ST, 4: cols. 1155–1250.

86 The Earl of Cambridge had led the Royalist forces unsuccessfully against Cromwell at Preston. Capel and Norwich were commanding at Colchester. Sir John Owen had a royalist command in Wales. Holland was caught in St. Neots after raising horse for the royalists. Donagan, Barbara, “A Courtier's Progress: Greed and Consistency in the Life of the Earl of Holland,” Historical Journal 19, no. 2 (1976): 317–53CrossRefGoogle Scholar; Donagan, War in England, 397–98; John J. Scally, “Hamilton, James, first Duke of Hamilton,” in ODNB; Ronald Hutton, “Owen, Sir John,” in ODNB.

87 CJ, 6:77.

88 Ibid., 126, 128, 131.

89 ST, 4: col. 1209.

90 Ibid., cols. 1208–09. The tribunal on 5 February called for all witnesses against the defendants to appear before them in private. It heard the witnesses on 6 February.

91 Donagan, War in England, 397–98.

92 ST, 4: col. 1213.

93 Capel, Holland, and Cambridge were executed. Norwich and Owen were spared. CJ, 6:159–60.

94 CJ, 6:359; Gardiner, History of the Commonwealth and the Protectorate, 1:247–48; Underdown, David, Royalist Conspiracy in England, 1649–60 (New Haven, 1960), 23–30Google Scholar.

95 See for example, Lilburne, John, An Impeachment of High Treason against Oliver Cromwell (e.568.20, London, 1649)Google Scholar.

96 Green, Verdict According to Conscience, 153–99.

97 CJ, 6:382. Both Blair Worden and Gardiner did not notice that the initial name of this bill was a court martial. Worden, The Rump Parliament, 222; Gardiner, History of the Commonwealth and Protectorate, 1:247–48.

98 A&O, 1:486.

99 A&O, 1:842.

100 For the Lines of Communication in the Civil War, see Victor Smith and Kelsey, Peter, “The Lines of Communication: The Civil War Defences of London” London and the Civil War, ed. Porter, S. (Basingstoke, 1996), 117–49Google Scholar.

101 CJ, 6:382.

102 CJ, 6:385.

103 A&O, 2:364–67.

104 Ibid., 367. An identical clause can be found in the act authorizing the 1649 High Court of Justice. Ibid., 1:1253–55.

105 Ibid., 2:367.

106 Ibid., 365.

107 Ibid., 366.

108 Ibid., 366–67.

109 Ibid., 1:1263–64, 2:245–54, 349–54.

110 Ibid., 2:120–21, 193–94.

111 Ibid., 2:364. Thus, in its justification for the trial of six royalists at the High Court of Justice in December 1650, the Commonwealth declared they were members of the “enemies party” in spite of the fact they were all born in England. An Act for the Tryal of Sir John Stowel etc. (e.1061.5, London, 1650)Google Scholar, 914.

112 ST, 5: cols. 8–13; Calendar of State Papers, Domestic Series, 1649–1660 (hereafter CSPD), (repr.,Vaduz, 1965)Google Scholar, 1650, 184.

113 ST, 5: col. 8.

114 J. T. Peacey, “Andrewes, Eusebius,” in ODNB.

115 ST, 5: col. 14.

116 Ibid., col. 21.

117 Ibid.

118 CJ, 6:434, 436–38; An Act for the Tryal of Sir John Stowel. Only one of the six, John Stawell, was tried by the High Court of Justice in December 1650, but his case was referred back to parliament without a verdict given. John Wroughton, ‘Stawell, Sir John,” in ODNB; Inderwick, Interregnum, 259–67.

119 CJ, 6:504–06; CSPD, 1650, 465; A&O, 2:4923. Accounts of the trials can be found in the correspondence of Thomas Scot, the Commonwealth's spymaster, which were printed in the eighteenth century. Nickolls, John, ed., Original Letters and Papers of State Addressed to Oliver Cromwell (STC: N62759, London, 1743), 33–39Google Scholar. Grey, Zachary, An Impartial Examination of the Fourth Volume of Mr. Daniel Neal's History of the Puritans (STC: T112827, London, 1739)Google Scholar, appendix, 105–08; A Perfect Diurnall 23–30 Dec. 1650 (e.781.19 [no. 55], London), 725; A Perfect Diurnall, 30 Dec. 1650–6 Jan. 1651 (e.781.23, [no. 56], London), 737–38; A Perfect Diurnall 6–13 Jan. 1651 (e.781.27 [no. 57] London), 752–53; 27. A Perfect Diurnall 27 Jan.–3 Feb. 1651 (e.784.1 [no. 60], London), 793. Underdown, Royalist Conspiracy, 43–45.

120 ST, 5: cols. 43–294.

121 Gardiner, S. R., ed., The Constitutional Documents of the Puritan Revolution, 1625–1660 (London, 1906)Google Scholar, 405. For narratives of the dissolution, see Gardiner, History of the Commonwealth and Protectorate, 2; Woolrych, Austin, Commonwealth to Protectorate (Oxford, 1982)Google Scholar.

122 Gardiner, History of the Commonwealth and Protectorate, 2:261–340.

123 A&O, 2:831–35.

124 Ibid., 832; 25 Edw. III stat. 5 c.2.

125 Underdown, Royalist Conspiracy, 100–02. The plot was described on the opening day of the trial. ST, 5: cols. 522–24.

126 A&O, 2:917–18.

127 CJ, 7:297, 353–54; CSPD, 1653–54, 82–84; Woolrych, Commonwealth to Protectorate, 300–01.

128 A&O, 2:780–82. The commissioner pool was almost halved to 34, and its quorum requirement was raised to thirteen.

129 ST, 5: cols. 407–60.

130 Black, “Coram Protectore,” 46–47. For the argument that Cromwell had no desire to use the High Court of Justice during the rebellion see Woolrych, Austin, “The Cromwellian Protectorate: A Military Dictatorship?” Cromwell and the Interregnum: The Essential Readings, ed. David L. Smith (Oxford, 2003), 67–68Google Scholar. Woolrych, . Penruddock's Rising, 1655 (London, 1955), 21–22Google Scholar.

131 Constitutional Documents of the Puritan Revolution, 414. For a discussion of the written constitutions of the Protectorate, see Little, Patrick and Smith, David L., Parliaments and Politics During the Cromwellian Protectorate (Cambridge, 2007), 12–49CrossRefGoogle Scholar.

132 The bill was first read on 23 September. CJ, 7:427. Firth, Last Years of the Protectorate, 1:41–42.

133 Underdown, Royalist Conspiracy, 178–93; Firth, Last Years of the Protectorate, 1:31–40.

134 CJ, 7:429, 431, 434–36; A&O, 2:1038–42.

135 A&O, 2:1041. Courts martial generally could not take the real property of convicts by 25 Edw. III stat. 5 c. 4.

136 A&O, 2:1041; CJ, 7:436.

137 Underdown, Royalist Conspiracy, 209–28; Firth, Last Years of the Protectorate, 2:69–82; Victor Stater, “Mordaunt, John, first Viscount Mordaunt of Avalon,” in ODNB; ST, 5: cols. 871–907; The Publick Intelligencer 28 June–5 July 1658 (e.753.11 [no. 132], London), 635–53; Mercurius Politicus 1–8 July 1658 (e.753.12 [no. 423], London), 657–63, 665–70.

138 Underdown, Royalist Conspiracy, 286, 254–85; Hutton, Ronald, The Restoration: A Political and Religious History of England and Wales (Oxford, 1985), 1–119Google Scholar.

139 Robert Jermy and others to William Lenthall 4 Dec. 1650 in Historical Manuscripts Commission, The Manuscripts of His Grace, The Duke of Portland, 10 vols. (London, 1891)Google Scholar, 1:545.

140 Thurloe to Pell 9 Oct. 1656 in The Protectorate of Oliver Cromwell ed. Vaughan, Robert 2 vols. (London, 1839)Google Scholar, 2:37; Firth, Last Years of the Protectorate, 1:41–42.

141 Quoted in Firth, Last Years of the Protectorate, 2:72.

142 ST, 5: cols 43–294; Inderwick, Interregnum, 287–93.

143 CSPD, 1654, 233–40. This record has been briefly discussed by Black. “Coram Protectore,” 44–46. Inderwick, Interregnum, 252.

144 CSPD, 1654, 234.

145 Ibid.

146 The Trial of Mr. Mordaunt, second son to John Earl of Peterburgh (Wing: T2203A, London, 1661)Google Scholar, 5.

147 ST, 5: cols. 918–21.

148 The Trial of Mr. Mordaunt, 36.

149 Smith, Royalist Agents, 246.

150 The Trial of Mr. Mordaunt, 39.

151 One example is William Prynne's condemnation of the conviction of John Hewitt. Prynne, , Beheaded Dr. John Hewytts Ghost Pleading . . . (e.97.4.2, London, 1659)Google Scholar.