Abstract
This dissertation provides the first history of martial law in the early modern period. It seeks to reintegrate martial law in the larger history of English law. It shows how jurisdictional barriers constructed by the makers of the Petition of Right Parliament for martial law unintentionally transformed the concept from a complementary form of criminal law into an all-encompassing jurisdiction imposed by governors and generals during times of crisis.
Martial law in the early modern period was procedure. The Tudor Crown made it in order to terrorize hostile populations into obedience and to avoid potential jury nullification. The usefulness of martial law led Crown deputies in Ireland to adapt martial law procedure to meet the legal challenges specific to their environment. By the end of the sixteenth century, Crown officers used martial law on vagrants, rioters, traitors, soldiers, sailors, and a variety of other wrongs.
Generals, meanwhile, sought to improve the discipline within their forces in order to better compete with their rivals on the European continent. Over the course of the seventeenth century, owing to this desire, they transformed martial law substance, procedure, and administration.
The usefulness of martial law made many worried, and MPs in 1628 sought to restrain martial law to a state of war, defined either as the Courts of Westminster being closed or by the presence of the enemy’s army with its standard raised. This restraint worked, at least for a while. But starting in the 1640s, MPs overturned the law of martial law as established by the 1628 Parliament in order to combat mutineers, spies, and royalist conspirators. Further, governors and generals abroad used the concept of a state of war to create a space where they could use martial law to commandeer property during emergencies. Martial law was used far more often in the eighteenth century than in the seventeenth, and is an important if controversial inheritance that the English legal tradition has bequeathed to the modern world.
