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

  • John M. Collins

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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1 Eusebius Andrewes was speaking to his commissioners during his trial before a High Court of Justice in 1650. Cobbett, William, Bayly, Thomas, and Howell, T. B., eds., Cobbett's Complete Collection of State Trials (hereafter ST) 33 vols. (London, 1809–1828), 5: col. 21. This account was taken from Buckley, Francis, A true relation of the proceedings, examination, tryal, and horrid murder of col. Eusebius Andrewe. by John Bradshaw, president of the pretended High Court of Justice, and others of the same court (Wing: B4155, London, 1660).

2 Green, Thomas Andrew, Verdict According to Conscience: perspectives on the English criminal trial jury, 1200–1800 (Chicago, 1985), xiiixx.

3 Firth, C. H. and Rait, R. S., eds., Acts and Ordinances of the Interregnum, 1642–60 (hereafter A&O), 3 vols. (London, 1911), 2:364.

4 Worden, Blair, The Rump Parliament, 1648–1653 (Cambridge, 1974), 222.

5 For the general opinion of the High Courts of Justice by legal scholars, see Baker, J.H., An Introduction to English Legal History (4th ed.London, 2002), 214. There are several exceptions to this dismissal. Hast, Adele, “State Treason Trials during the Puritan Revolution, 1640–1660,” Historical Journal 15, no. 1 (Mar. 1972): 3753. Inderwick, F. A., The Interregnum (A.D. 1648–1660): Studies of the Commonwealth Legislative, Social, and Legal (London, 1891), 249–67. Black, Stephen, “Coram Protectore : The Judges of Westminster Hall under the Protector Oliver Cromwell,” The Journal of American Legal History 20, no. 1 (1976): 3264. Inderwick understood that the High Courts were related to courts martial. Interregnum, 249, 252. He did not elaborate further.

6 Gardiner, S. R., History of the Commonwealth and Protectorate 4 vols. (London, 1894–1903), 1:247–48, 2:6–8, 16–17, 301–02, 3:149–50; Firth, C. H., The Last Years of the Protectorate 1656–8, 2 vols. (London, 1909), 2:69–82. Woolrych, Austin, From Commonwealth to Protectorate (Oxford, 1982), 300–01; Woolrych, , Britain in Revolution, 1625–60 (Oxford, 2002), 582, 690–91.

7 The autonomy, or lack thereof, of juries has been often discussed and debated. Green, Verdict According to Conscience; Cockburn, J. S. and Green, Thomas Andrew, eds., Twelve Good Men and True: The Criminal Trial Jury in England (Princeton, 1988); Herrup, Cynthia, The Common Peace: Participation and the Criminal Law in Seventeenth Century England (Cambridge, 1987).

8 One among several periods of comparison is the 1530s, when state officials were often concerned about granting discretion to juries in the aftermath of the Pilgrimage of Grace. See Elton, Geoffrey, Policy and Police: The Enforcement of the Reformation in the Age of Thomas Cromwell (Cambridge, 1972), 293326.

9 These tribunals have been examined in relation to “turncoats.” See Hopper, Andrew's illuminating Turncoats and Renegadoes: Changing Sides During the English Civil Wars (Oxford, 2012), 179206.

10 Christianson, Paul, “Arguments Relating to Billeting and Martial Law in the Parliament of 1628,” Historical Journal 37, no. 3 (1994): 539–67. Two exceptions to this rule are Boynton, Lindsay, “Martial Law and the Petition of RightEnglish Historical Review 79, no. 311 (1964): 255–84; and Stearns, Stephen, “Military Disorder and Martial Law in Early Stuart England,” in Law and Authority in Early Modern England: Essays Presented to Thomas Garden Barnes, ed. Sharp, Buchanan and Fissel, Mark Charles (Newark, 2007), 106–35. I seek to further our understanding of martial law in “One of Many: Martial Law and English Laws, 1500–1700” (PhD dissertation, University of Virginia, 2013). It is under contract with Cambridge University Press.

11 Cruikshank, C. G., Elizabeth's Army (2nd ed.Oxford, 1966), 159–73; Cruikshank, , Army Royal: Henry VIII's Invasion of France, 1513 (Oxford, 1969), 94105; Firth, C. H., Cromwell's Army (3rd ed.London, 1921), 278313; Donagan, Barbara, War in England, 1642–49 (Oxford, 2008), 134–96; Childs, John, The Army of Charles II (London, 1976), 7590.

12 Sir Hale, Matthew, The History of the Common Law of England, ed. Gray, Charles M. (Chicago, 1971), 27.

13 Blackstone, William, The Commentaries on the Laws of England of Sir William Blackstone 4 vols. (London, 1876), 1:381; Maitland, William, The Constitutional History of England: A Course of Lectures (London, 1913), 267; Dicey, A. V., Introduction to the Study of the Law of the Constitution (8th ed.London, 1924), 283–84; Capua, J. V., “The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right,” Cambridge Law Journal 36, no. 1 (1977): 152–73; Bellamy, J. G., The Tudor Law of Treason: An Introduction (London, 1979), 228–36.

14 Kostal, R. W., A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford, 2005). For a classic explanation of the supposed lawlessness of martial law, see Clode, Charles, The Administration of Justice under Military and Martial Law as Applicable to the Army, Navy, Marines, and Auxiliary Forces (2nd ed.London, 1874), 46.

15 Sir William Throckmorton, written for Charles II in 1649, “A Brief Treatise of War, containing ye most essential & circumstantial parts thereof,” British Library (hereafter BL) Harley Ms. 6008, f. 19–21v; Throckmorton, “Military Observations upon Sir Julius Caesar his Commentaries,” BL Harley Ms. 4602, f. 84–85.

16 Helmholz, R. H., The Oxford History of the Laws of England, vol. 1, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004), 314.

17 The best discussion of the articles of war can be found in Donagan, War in England, 134–95.

18 Sutcliffe, Matthew, The Practice, Proceedings, and Lawes of Armes (STC 23468, London, 1593), 310. Some of these laws can be traced back to Roman Treason law and the notion of perduellio. Lear, Floyd Seyward, Treason in Roman and Germanic Law: Collected Papers (Austin, 1965), 67. Some of these laws can also be found in the great treason statute, 25 Edw. III st. 5, c.2. For treason and the medieval laws of war, see Keen, M. H., “Treason Trials under the Law of Arms: The Alexander Prize EssayTransactions of the Royal Historical Society 5th ser., 12 (1962): 85103.

19 Lawes and Ordinances of Warre (Thomason Tracts [hereafter e], e.116.34, London, 1642).

20 The idea of exemplary punishment was not unique to martial law. Martial law was simply more terrifying. See Hay, Douglas, “Property, Authority, and the Criminal Law,” Albion's Fatal Tree: Crime and Society in Eighteenth Century England, ed. Hay, Douglas et al. (London, 1975), 1763.

21 Boynton, Lindsay, “The Tudor Provost-Marshal,” English Historical Review 77, no. 304 (1962): 437–55. For the uses of martial law abroad, see Edwards, David, “Beyond Reform: Martial Law & the Tudor Re-conquest of Ireland,” History Ireland, 5, no. 2 (1997): 1621; Edwards, , “Ideology and Experience: Spenser's View and Martial Law in Ireland,” in Political Ideology in Ireland, 1541–1641, ed. Morgan, Hiram (Dublin, 1999), 127–57; Rutman, Darrett, “The Virginia Company and its Military Regime,” in The Old Dominion: Essays for Thomas Perkins Abernethy, ed. Rutman, Darrett (Charlottesville, 1964), 120; Koenig, David Thomas, “‘Dale's Laws’ and the Non-Common Law Origins of Criminal Justice in Virginia,” The American Journal of Legal History 26, no. 4 (1982): 354–75.

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.”

24 Kenyon, J. P., The Stuart Constitution, 1603–1688: Documents and Commentary (Cambridge, 1966), 8285.

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.”

26 On the relationship between London and the Houses of Parliament, see Pearl, Valerie, London and the Outbreak of the Puritan Revolution: City Government and National Politics, 1625–43 (Oxford, 1961); Pearl, , “Oliver St. John and the Middle Group in the Long Parliament: August 1643–May 1644,” English Historical Review 81, no. 230 (1966): 490519. Lindley, Keith, Popular Politics and Religion in Civil War London (Aldershot, 1997).

27 Donagan, War in England, 131.

28 For Royalist trials, see Hopper, Turncoats and Renegadoes, 185–88. For spying in the Civil Wars generally, see Smith, Geoffrey, Royalist Agents, Conspirators and Spies (Farnham, Surrey, 2011).

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); Journal of the House of Commons (hereafter CJ) (London, 1802), 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.

31 The Several Examinations and Confessions of the Treacherous Conspirators against the Cittie of Bristoll (e.104.4, London, 1643).

32 The Several Examinations, 4.

33 Gardiner, S.R., History of the Great Civil War, 1642–49 4 vols. (London, 1893), 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.

36 Laurence Whitaker's Diary, BL Add. Ms. 31116, f. 59v–60v; Rous, Francis, A Brief Narrative of the late treacherous and horrid designe (e.106.10, London, 1643).

37 CJ, 3:120, 144.

38 Hopper, Turncoats and Renegadoes, 96–97; Stirling, A. M. W., The Hothams 2 vols. (London, 1918), 1:50–91; Wright, Stephen, “Carew, Sir Alexander, second baronet (1608–1644),” Oxford Dictionary of National Biography (hereafter ODNB), eds. Mathew, C.G., Goldman, Lawrence, and Harrison, Brian (Oxford, 2004).

39 Diary of Whitaker, BL Add. Ms. 31116, f. 93–v; CJ, 3:313; Diary of D'Ewes, BL Harley Ms. 165, f. 210v.

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), 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), 200270; 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), 2651.

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), 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). 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), 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); Crawford, Patricia, “Charles Stuart, That Man of Blood,” Journal of British Studies 16, no. 2 (Spring 1977), 4161. 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): 289316. 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). For the historiography of the trial, see Peacey, Jason, “IntroductionThe Regicides and the Execution of Charles I, ed. Peacey, Jason (Basingstoke, 2001), 110.

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). 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). 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): 74.

70 A&O, 1:1253.

71 Bellamy, J. G., The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), 2358; Barton, John L., Ius Romanum Dedii Aevi (Milan, 1971), 7172; Plucknett, T. F. T., “The Origin of Impeachment,” Transactions of the Royal Historical Society 4th ser. 24 (1942): 5663. Halliday, Paul D., Habeas Corpus: From England to Empire (Cambridge, MA, 2010), 162.

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): 125; Kelsey, , “The Trial of Charles I,” English Historical Review 118, no. 477 (2003): 583616; Kelsey, , “The Death of Charles I,” Historical Journal 45, no. 4 (2002): 727–54.

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): 310–31. 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), 211–18. Adamson, John, The Noble Revolt: The Overthrow of Charles I (London, 2007), 220–26.

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), 223–48.

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), 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): 317–53; 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), 2330.

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

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 LondonLondon and the Civil War, ed. Porter, S. (Basingstoke, 1996), 117–49.

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), 914.

112 ST, 5: cols. 8–13; Calendar of State Papers, Domestic Series, 1649–1660 (hereafter CSPD), (repr.,Vaduz, 1965), 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), 3339. Grey, Zachary, An Impartial Examination of the Fourth Volume of Mr. Daniel Neal's History of the Puritans (STC: T112827, London, 1739), 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), 405. For narratives of the dissolution, see Gardiner, History of the Commonwealth and Protectorate, 2; Woolrych, Austin, Commonwealth to Protectorate (Oxford, 1982).

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), 6768. Woolrych, . Penruddock's Rising, 1655 (London, 1955), 2122.

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), 1249.

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), 1119.

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), 1:545.

140 Thurloe to Pell 9 Oct. 1656 in The Protectorate of Oliver Cromwell ed. Vaughan, Robert 2 vols. (London, 1839), 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), 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).

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

  • John M. Collins

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