The History of the Common Law of England [12]
the Civil Law therein. Thirdly, The Third Court, wherein the Civil Law has its Use in this Kingdom, is the Military Court, held before the Constable and Marshal anciently, as the Judiciis Ordinarii in this Case, or otherwise before the King's Commissioners of that Jurisdiction, as Judices Delegati. The Matter of their Jurisdiction is declared and limited by the Statutes of 8 R. 2. cap. 5. and 1 3 R. 2. cap. 2. And not only by those Statutes, but more by the very Common Law is their Jurisdiction declared and limited as follows, viz. First, Negatively. They are not to meddle with any Thing determinable by the Common Law. And therefore, inasmuch as Matter of Damages, and the Quantity and Determination thereof, is of that Conuzance; the Court of Constable and Marshal cannot, even in such Suits as are proper for their Conuzance, give Damages against the Party convicted before them, and at most can only order Reparation in Point of Honour, as Mendacium sibi ipsi imponere: Neither can they, as to the Point of Reparation, in Honour, hold Plea of any such Words or Things, wherein the Party is relievable by the Courts of the Common Law. Secondly, Affirmatively: Their Jurisdiction extends to Matters of Arms and Matters of War, viz. First, As to Matters of Arms (or Heraldry), the Constable and Marshal had Conuzance thereof, viz. Touching the Rights of Coat-Armour, Bearings, Crests, Supporters, Pennons, &c. And also touching the Rights of Place and Precedence, in Cases where either Acts of Parliament or the King's Patent (he being the Fountain of Honour) have not already determined it, for in such Cases they have no Power to alter it. Those Things were anciently allowed to the Conuzance of the Constable and Marshal, as having some Relation to Military Affairs; but so restrain'd, that they were only to determine the Right, and give Reparation to the Party injured in Point of Honour, but not to repair him in Damages. But, Secondly, As to Matters of War. The Constable and Marshal had a double Power, viz. 1. A Ministerial Power, as they were Two great ordinary Officers, anciently, in the King's Army; the Constable being in Effect the King's General, and the Marshal was employed in marshalling the King's Army, and keeping the List of the Officers and Soldiers therein; and his Certificate was the Trial of those whose Attendance was requisite. Vide Littleton, ? 102. Again, 2. The Constable and Marshal had also a Judicial Power, or a Court wherein several Matters were determinable: As 1st, Appeals of Death or Murder committed beyond the Sea, according to the Course of the Civil Law. 2dly, The Rights of Prisoners taken in War. 3dly, The Offences and Miscarriages of Soldiers contrary to the Laws and Rules of the Army: For always preparatory to an actual War, the Kings of this Realm, by Advice of the Constable, (and Marshal) were used to compose a Book of Rules and Orders for the due Order and Discipline of their Officers and Soldiers, together with certain Penalties on the Offenders; and this was called, Martial Law. We have extant in the Black Book of the Admiralty, and elsewhere, several Exemplars of such Military Laws, and especially that of the 9th of Rich. 2. composed by the King, with the Advice of the Duke of Lancaster, and others. But touching the Business of Martial Law, these Things are to be observed, viz. First, That in Truth and Reality it is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, Quod enim Necessitas cogit desendi. Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so wuch indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army, had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts; but they