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One of Many: Martial Law and English Laws C. 1500 – C. 1700 John

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One of Many: Martial Law and English Laws C. 1500 – C. 1700 John One of Many: Martial Law and English Laws c. 1500 – c. 1700 John Michael Collins Minneapolis, MN Bachelor of Arts, with honors, Northwestern University, 2006 MPHIL, with distinction, Cambridge University, 2008 A Dissertation presented to the Graduate Faculty of the University of Virginia in Candidacy for the Degree of Doctor of Philosophy Department of History University of Virginia August 2013 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. ii “We are very apprehensive that we shall not be able to report in any way satisfactory…Indeed, the time as has been employed in the endeavor to procure information which we have not attained, and with respect to that which we shall state, if we could have foreseen that our researches would have been so unsuccessful, the following opinion might certainly have been communicated in much less time.”1 Spencer Perceval (attorney general) to Charles York, 23 Jan., 1804 on the law of martial law 1 BL, Add. Ms. 38240, f. 117v. iii Table of Contents Abstract ......................................................................................................................................................... ii Acknowledgements ....................................................................................................................................... v Introduction ....................................................................................................................................1 Prologue ...................................................................................................................................................... 19 Part One: Creation: A Jurisprudence of Terror ......................................................................52 Chapter One: Arraignment by Information: Making Martial Law, 1490-88 .............................................. 54 Chapter Two: Conviction by the Senses: Making Summary Martial Law, 1560-1641 .................. 103 Part Two: Transformation: Martial Law and Military Improvement ................................160 Chapter Three: Transformations in Law Making...................................................................................... 162 Chapter Four: Transformations in Administration .................................................................................... 196 Chapter Five: Transformations in Procedure ............................................................................................ 213 Conclusion to Part Two ............................................................................................................................ 245 Part Three: Restriction: Martial Law and Time ....................................................................247 Chapter Six: Into the Hands of the Enemy: Time, Martial Law, and the Petition of Right ........... 249 Chapter Seven: Hidden in Plain Sight: Martial Law and the Making of the High Court of Justice ......... 297 Chapter Eight: A Bounded Jurisdiction: Using Martial Law in English Overseas Dominions ................ 350 Chapter Nine: Closing the Courts Down: Martial Law and Property in Jamaica ............................ 388 Chapter Ten: The Rise of Martial Law: The Mutiny Act and Beyond ..................................................... 419 Conclusion ..................................................................................................................................460 Bibliography ............................................................................................................................................. 465 iv Acknowledgements In one of my first classes as a masters student at the University of Cambridge, my professor, in a discussion on the usability of the Calendars of State Papers series, ended by stating (according to my memory), “that at some point, if we can’t trust other historians to do their jobs, we are never going to get anywhere.” By trusting the work of other historians, I have gone so many places. The depth and breadth of English historiography, and of the historiography of its dominions, is second to none. Its quality has allowed such a junior and foolish historian as me to travel from the middle ages through the end of the seventeenth century, through political, social, economic, religious, legal, and military history, across half the globe, and engage with the historiographies of the European continent. It is only through trust – a trust, I am afraid, that most within my field do not possess – of the talents of other historians that I have been able to accomplish anything. So often during my reckless wanderings, they have provided strong safety nets which have saved me from falling into an abyss. This dissertation was made possible by the generous funding of multiple institutional bodies. I would first and foremost like to thank the University of Virginia, and in particular the Corcoran Department of History, for funding me during the five years I have been a graduate student at the University. The department has, along with teaching assistant opportunities, given me funding for two summer research trips to London, and provided a completion fellowship during my last year so that I could concentrate on finishing the dissertation without distraction. The Dumas Malone/Albert Gallatin Fellowship generously provided me with enough funds for two months’ study in London. The Lilly Library at Indiana University provided me with a fellowship, where I was able to examine their manuscript collection. The Henry E. Huntington Library likewise generously provided me with a fellowship, where I was able to both research v and write in one of the most beautiful environments imaginable. The Kanner Fellowship at the William Andrews Clark Library at UCLA allowed me to research and write over the course of the summer of 2012. Likewise, the Colonial Williamsburg Foundation generously provided me with a wonderful work place for two months in the fall of 2011. Finally, the North American Council for British Studies’ Dissertation Year Fellowship in 2010 provided me with the funding I needed to conduct my manuscript research in England. Without these bodies, I would not have been able to conduct the manuscript research that is the foundation of this dissertation. Numerous scholars have provided thoughtful assistance that have made this dissertation so much better. Parts of this dissertation have been presented at the University of Virginia History Department’s Graduate Student Conference in 2010, at two meetings of the Mid-Atlantic Conference for British Studies in 2011 and in 2012 in Abington, PA, the North American Conference for British Studies in Montreal in 2012, the Southern Conference for British Studies in Baltimore in 2011, the Sixteenth Century Studies Conference in Fort Worth, TX in 2011, the Tudor-Stuart Seminar at the Institute for Historical Research in London in 2011, and the University of Virginia Law School’s Legal History seminar in 2012. Many thanks go to the participants of all these meetings. I am also very appreciative to those scholars who have read parts of this manuscript, and provided me with comments. These are Joel Halcomb, Caitlin Morris, Mark Kishlansky, Christopher Brooks, Jason Peacey, John Morrill, Rebecca Green, and David L. Smith. Many have also been very generous with their time and resources, which have helped my project immensely. Thanks go to Krista Kesselring for providing me with advice on the 1569 rebellion, to Paul Griffiths, who was enormously helpful in explaining London records for me and even providing
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