Abolishing Obsolete Crown Prerogatives Relating to: Martial Law, Conscription and Billeting

This article indicates that there are various rights, or privileges, of the Crown (so called ‘Crown prerogatives’) which still exist under English law and which are at variance with modern society and human rights. Indeed, one would assert the Crown prerogative is the biggest impediment in English based legal systems to an extension of human rights at present, since it is so ample in scope and yet so indeterminate in nature. This article argues that martial law that is, the right of the Crown to apply military law to civilians (which often resulted in their summary trial and execution in past rebellions) should be abolished. It is unnecessary and contrary to modern human rights. Also abolished should be the right of the Crown to billet members of the armed forces on the public now governed by legislation. Finally, the Crown prerogative to forcibly conscript able-bodied male subjects into the army and navy should be abolished. It was replaced by legislation during World War I and II since it was thought to be too uncertain, legally. In conclusion, if these Crown prerogatives were abolished throughout the Commonwealth it would remove much old law and help human rights. It would also allow legislation enacted by Parliament to cover the field, as and when required in the case of martial law.


Introduction
A previous article in the Nottingham Law Journal advocated the abolition of various obsolete Crown prerogatives relating to the military. 1 As noted in that article, a vast number of decisions are taken in the name of that mysterious -and amorphous entity -'the Crown', although the Queen herself, today, only retains a ceremonial role and she is not held accountable for such decisions. Thus, such decisions often result in a distinct lack of Parliamentary oversight and control. The House of Commons, Public Select Committee, in 2004 -in a report entitled 'Taming the Prerogative: Strengthening Ministerial Accountability to Parliament' 2 -expressed concern that many Crown prerogatives had come to be delegated by the sovereign to ministers and that they could be exercised without Parliamentary approval or scrutiny. The report also indicated that various Crown prerogatives were in need of reform and that others were obsolete. 3 This article argued for the abolition of prerogatives of the Crown to:  impress subjects for the navy (no longer applied after 1814);  issue letters of marque (obsolete after 1856); 4  issue letters of safe conduct (obsolete c. 1836);  prohibit subjects from leaving the realm (in abeyance pre-1688); 5 Treason Act 1351 (still extant). 45 This Act specified various individual treasons; these were then extended by subsequent legislation and by judicial constructive interpretations. The fact that desertion was not enshrined in legislation at any early stage 46 is explicable by the fact that deserters were likely dispatched on (or near) the field of battle. 47 As for senior commanders, they were impeached in Parliament in the period 1376-1559 for surrendering castles without the consent of the sovereign (after 1559, to surrender a castle for a bribe was treated as treason under the Treason Act 1351). 48 In respect of the enforcement of these statutes and ordinances of war, they would likely have been enforced by the king in person -as commander-in-chief -as well as by the Court of Chivalry (also called the court military or the court of the constable and marshal), a court which was operating prior to Richard II (1377-99). 49 Adye (writing in 1769) summarises this court thus: The court of chivalry, or marshal's court, the judges of which were the high constable, and the earl marshal, is the fountain of marshal law [i.e. martial or military] in England. 50 The marshal (or earl marshal) comprised an office which existed since the 12 th century. It has been held since 1672 by the Howards, Dukes of Norfolk. 51 Another office was that of lord high constable -albeit it was placed in abeyance after 1521 so no such person sat in the Court of Chivalry after that date. 52 This Court of Chivalry functioned in medieval times. However, its jurisdiction started to fall away after trial by battle became obsolete 53 and after the common law encroached more and more on its civil jurisdiction concerning military contracts etc. 54 (1799), 20 (fine and imprisonment). See also Bruce,n 4,263 and Tytler,n 30,. 47 Samuel,n 27,60. 48 McBain (2011b) 858-9. For the position during the Civil War (1642-9), see Samuel, n 27, 606 (Articles of the Earl of Essex, see n 71, 'if any town, castle, or fort, be yielded up, without the utmost necessity, the governor thereof shall be punished with death.').This punishment prevailed after the Civil War, see eg. Bruce, n 4, 259 (writing in 1717). 49 Walker, n 30 (court of chivalry) 'A judicial body dealing with military disputes and questions of the law of arms. In most countries courts-martial regulating the conduct of persons involved in war came first. They were presided over by monarchs or great officers of state such as earls marshal. In time heralds became the principal officers of and practitioners before these courts and the law of arms became more and more concerned with rights to armorial bearings. In England the court of chivalry or court military, also known as the court of the constable and marshal, was held before the Lord High Constable and Earl Marshal of England. It had jurisdiction, civil and criminal, in deeds of arms and war, armorial bearings, matters of precedence, and, held before the earl Marshal alone, as a court of honour.' This court last sat in 1737. However, it was temporarily revived in 1955 to deal with armorial matters. 50 Adye (1769) 1. See also Hawkins (1739), bk 2, ch 4 and Grazebrook (1895). 51 Walker, n 30 (definition of earl marshal). Adye (writing in 1769), n 50, 2 'The office of earl marshal still subsists, but his right of being one Of the offences in the royalists' one hundred and fifty-three articles, fifty-four (35 per cent) merited death; of these the penalty was mandatory for thirty and discretionary for twenty-four. In parliament's one hundred and two articles, forty-eight offences (47 per cent) merited death but the penalty was mandatory for only fourteen and discretionary for thirty-four. 75 Finally, it may be noted that -in the Civil War -on the royalist side, persons fighting for Parliament were often executed -as 'traitors and rebels' -not on the basis of any ordinance or statute of war, but on the basis of the law of treason under the Treason Act 1351, since it was a sub-crime under that Act: if a man do levy war against our lord the king in his realm. 76 Perhaps bizarrely, Parliamentarians often executed royalists on the same basis -arguing that its soldiers were engaging in war against Parliament and that this comprised rebellion and treason against the king pursuant to the laws and statutes of the realm. 77 As to the meaning of 'martial law' -by the time of the Civil War -it was being used synonymously with 'military law', as Donaghan notes: Contemporaries referred to the articles of war indiscriminately as martial law or military law… 78 Donaghan also refers to occasions when Parliament applied martial law to civilians. Thus, in 1644, Parliament gave power to a commission of soldiers and MP's to apply martial law to civilians accused of plotting with the enemy (i.e. with Charles I). 79 Also, in 1645, a council of war (against the background of a possible seizure of Dover castle) was empowered to punish all cases that came under military cognizance. Both these powers were only temporary. 80 In conclusion, the statutes and ordinances of war -from Richard I in 1189 to the end of the Civil War in 1649evidence that the Crown's exercise of the royal prerogative to impose martial law was plenary. The clear intent of these statutes and ordinances of war were to impose the death penalty (and more severe and unusual punishments) on military personnel in cases where the common law did not. 81 Thus, martial law prior to 1688 was ill framed, extensive (prodigal) and designed to apply 'in terrorem'. 82

Military Law post-1660
Although, on the restoration of the monarchy, Charles II (1660-85) abolished military tenure, 83 he retained a standing army of 5,000 men. James II (1685-8) increased this to some 15-20,000 men after the Monmouth rebellion of June -July 1685. 84 The paramount control of the Crown in respect of military matters was re-stated in the Preamble to the Militia Act of 1661which declared that: themselves from sermons, and public prayer, shall be proceeded against at public discretion: And all such who shall violate places of public worship, shall undergo severe censure.'(Spelling modernized). 75 Donaghan,n 39,170. 76 'si home leve de guerre contre nre dit seignr le roi en son roialme.' See generally, McBain, n 44 and Donaghan, n 39, 130-1. 77 Dongahan, n 39, 130-1. 78 Ibid,171. Cf. 173,'It is important to remember that in the war years 'martial law' was more likely to bear the neutral meaning of military law than the constitutionally loaded modern sense. ' Holdsworth,n 19,120 'It became known not as martial but as military law.' 79 See Tytler, n 30, 71-9. Also, Cobbett (1812), vol 13, 270. 80 Donaghan,n 39,172. See also Brand & Nelson,n 37,. 81 Samuel, n 27, 97-8 refers to military punishments such as dis-memberment, maiming (or fracturing) of limbs, boring the tongue with a red hot iron, cutting off the left ear, branding the cheek, running the gauntlet (gantlope), riding the wooden horse and the whirligig (a circular wooden cage which was whirled round). See also Donaghan,n 39,179,182. 82 Donaghan,n 39,142,'Military punishments for breaches of military law were shaped by principles of flexible, exemplary, and 'in terrorem' administration of justice.' See also 194. Some of the ordinances applied not only to military personnel but to those who trafficked with them.
For example, the ordinances of Henry V (1413-22) provided that common women (prostitutes) who came within the king's army (or within 3 miles of the same) were to be burnt on the right cheek (first offence) and -for a second offence -to be imprisoned as long as should please the marshal. Such a woman who remained in any fort, or garrison, after being ordered to quit the same was to have her left arm fractured. See Samuel,n 27, See n 30.See Clode, n 19, vol 1, 446-9 (Orders and Articles of War, 1666). 84  The sole supreme government command and disposition of the militia and of all forces by sea and land and of all forts and places of strength is and by the laws of England ever was the undoubted right of his majesty and his royal predecessors kings and queens of England. 85 However, lasting change to this -and to the unfettered control of the military by the Crown -occurred when James II abdicated andWilliam andMary (1689-1702) were chosen by Parliament as king and queen. Indeed, the foundations of modern military law commence with the provision in the Bill of Rights 1688 that: The raising and keeping a standing army within this kingdom in time of peace unless it is with the consent of Parliament is against law. 86 In 1688, in order to deal with a mutiny that had taken place, 87 Parliament enacted the first of the Mutiny Acts, to punish mutiny and desertion (these Mutiny Acts were annually renewed thereafter). 88 This Mutiny Act of 1688 also authorised the Crown to establish courts martial, replacing any Crown prerogative in respect of the same with legislation. 89 Samuel, in his Historical Account of the British Army (1816), noted: From the exercise of the power of legislation over the higher order of offences, and from the assertion of a like right in all, the step to the actual assumption of an authority by the parliament over military offences in general, was short and in the usual course of things. From year to year this legislative power was manifested in successive mutiny acts, each discovering some new accession of influence, until it became universally prevalent. 90 Martial law (military law), therefore, after 1688 became a separate body of law which governed the armed forces alone and not civilians. Samuel stated: Military or martial law…is a particular rule of conduct, prescribed by the legislative authority of the state, for the government of the military force of the nation, in contra -distinction to the law, which regulates, or is intended to regulate the general conduct of the people in their civil relations. 91 85 13 Car II st 1 c 6 (1661) (rep) (king's sole right over the militia). See also 14 Car II (1662) c 3 and 15 Car II (1663) c 4. These three Acts remained the statutory authority for the militia until 1757. See also Blackstone, n 12, vol 1, 399;Samuel, n 27, 162;Robertson (1935), 28 and Tytler, n 30, 95-6. 86 Samuel, n 27, p 149 'The declaration…made the parliament, in effect, a constituent power in the creation of the army; which, thenceforward, could not look to the Crown, as in foregoing seasons, as the sole author of its being.' See also Blackstone,n 12,vol 1,401;Forsyth,n 5,207;Tytler,n 30,101 and Clode,n 19,vol 1,499. 87 This was a mutiny among troops quartered at Ipswich. They disarmed their officers, seized the regimental chests and declared for James II (1685-9). Also, about 500 troops attached to the Royal Scotch and Dumbartons' regiments deserted. The mutiny was soon quelled. See also Tytler,n 30,p 102;Scott,n 19,58 and Clode,n 19,vol 1,142. 88 1 Will & Mar c 5 (rep) 'every person being …mustered and in pay as officer or soldier who shall… excite cause or join in any mutiny or sedition in the army or shall desert their majesties service in the army, shall suffer death or such other punishment as by a court-martial, shall be inflicted.' See also Samuel,n 27,138 and Robertson,n 85,. The Mutiny Act became the Army Act in1881, see Anson,n 20,vol 2,pt 2,203. 89 It authorized (s 3) their Majesties or the general of their army to grant commissions to any lieutenant general (or other officers not under the rank of colonel) to call, and assemble, courts-martial. See also Samuel,n 27,. In 1718, courts martial were allowed to punish mutiny and desertion with death, see Hallam,n 5,vol 2,261. It may be noted that, in the 1 st World War (but not the 2 nd World War), desertion was still punishable with death. 90 Samuel, n 27, 139. In Grant v Gould (1792) 2 H Bl 69 (126 ER 434) per Loughborough CJ at 98, 'Where martial law prevails, the authority under which it is exercised claims a jurisdiction over all military persons, in all circumstances…' See also Samuel,n 27,184. Forsyth,n 5,553 'These regulations [passed under the Mutiny Acts] form a code which is sometimes called martial, but more properly military law'. 91 Ibid, Introduction. Also, 'It will be seen, in the progress of the inquiry, that the military regulations, obtaining in the earlier periods of our history, were not formed, as now, for the control of a separate class of men, but for the whole mass of the people; not operative on a particular body, but on the members of the community at large, each one of whom being liable, when capable of bearing arms, to the burden of military service. These regulations enjoined certain duties on citizens, under described penalties, when acting in the capacity of soldiers; but as such capacity was occasional only, the regulations having reference to it, had but occasional force.'Wolton v Gavin (

Martial Law -Military Law Imposed on Civilians in Peacetime
As well as comprising an early reference to military law in general, the term 'martial law' was often more specifically used to describe the application of military law to civilians in peacetime. Legal writers in the 17 th and 18 th centuries asserted -in strong terms -that this was not possible for the Crown to do, since it was made illegal by the Petition of Right 1627 (still extant).

Deprecation of Martial Law by Legal Writers
Martial law -in the context of legal writers such:  Lord Coke (his Institutes of the Laws of England were published between 1628-41);  Hale CJ (his History of the Common Law of England was written between 1640's -1660's but first published in 1713); and  Blackstone (his Commentaries on the Laws of England were published between 1765-9) 92 OED n 20, (military law) 'the body of enactments and rules for the government of an army. ' Bruce, n 4, (writing in 1717) refers to military law and not martial law eg. 3 'Since war then is the occasion of the military law…' Tytler (writing in 1806), n 30, 1 'The foundation of the military or martial law, is that which is common to all law whatever -the necessity of things. ' Dodd,n 19,152 'martial law …down to the end of the seventeenth century, if not later, is what we now call military law.' 93 Samuel, n 27, xv deprecates 'imaginary resemblances, or from abuse of terms, fancied to be synonymous, but certainly not convertible, in assuming the law military to be the same thing with what commonly passes under the denomination of martial law; which will appear, on examination, to be nothing more than the offspring of necessity, covering itself with the clothing and taking the name and place of law, though in reality it be, if not a subversion, at least a temporary supercession of all that is sound in legislation, justified and justifiable only in perilous and critical conjunctures, when social order is vitally threatened; when violence can only be resisted by violence; when the sense of danger is so imminent, as to overwhelm every other consideration; where the end or existence of society is sustained, in a natural and spontaneous preference, to the means by which it is brought and held together; when the public safety is preserved at the expense of the public ordinances.' 94 Brewster (1725) ; Burn, n 46. Cf. Sullivan (1779)(treats martial law the same as military law, eg 2 'the law martial of England is indisputably authorized by an act of the legislature.'). 95 Adye (1769), n 50;Tytler, n 30, Hardesty (1718), Samuel,n 27 and Bruce,n 4. 96 See n 91.See also Stephen,n 19,vol 1,208. Referring to Victorian legislation he states 'They form a code, which is sometimes called martial, but more properly military, law.' 97 Heuston, n 16, 151 'martial law includes first, military law. ' Samuel (writing in 1816), n 27, 186 'The law military,whatever might have been its range in older times, is now restricted in its obligatory force to the definition and declaration of the duties of soldiers, and the enforcement of them, under appropriate penalties.' At 187 'At the commencement of the reign of Queen Anne [ie. 1702,] the Mutiny Act had made a large stride towards a general jurisdiction, not only in primary but in secondary acts of crime; so as to leave little that is essential to complete the exercise of the ordinary legislative power over the entire list of offences, peculiar to the military state.' At 203-4 'Towards the end of the reign of George the Second [1727-60], nearly the whole mass of the offences, of which officers or privates, might be guilty, is embraced by the Mutiny Act; not, perhaps, so distinctly or precisely as at this day, but enough to show that the legislature had the intention of exercising, and were actually exercising, a full and general authority therein.'(Spelling modernized). www.ccsenet.org/ilr International Law Research Vol. 1, No. 1; tended to comprise a reference both to military law imposed by the Crown prerogative prior to 1688 98 and, in a narrower context, to military law applied to civilians in peacetime. In both senses, these legal writers strongly dis-approved of it. The first, because it was excessive and arbitrary in comparison with the common lawdepending solely on the will of the sovereign (see 2). The second, because it was made illegal by the Petition of Right 1627. Blackstone (in 1765) stated: For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions is as sir Matthew Hale [ie. Hale CJ] observes, in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the other thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the law of the land. 99 Blackstone referred to Hale CJ who stated, in his History of the Common Law: 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, desendit. 100 Secondly, this indulged law was only to extend to members of the army, or to those of the opposite army, and never was so much indulged as intended to be (executed or) exercised upon others; for those 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 were to be order'd and govern'd according to the laws to which they were subject, though it were a time of war. 101

Proclamations and Commissions Imposing Martial Law -Pre-1625
The background to the Petition of Right 1627 is that martial law was applied to civilians in the course of English history during peacetime -albeit this was relatively rare. Cases cited by Coke of important persons being tried by martial law in peacetime -besides Edmund, the Earl of Kent in 1330 (see above) -are:  Thomas, Earl of Lancaster. The cousin of Edward II (1307-27), in 1322, he was tried for treason for levying war against that sovereign ('with banners displayed', explicatio vexilli regis). 108 It seems he was tried before the sovereign and some other great men of the realm and condemned on the basis that his crime was notorious. He does not have appeared to have been given the opportunity to defend himself. 109 In 1327, judgment against him was set aside -in part -because it was in time of peace and, also, he had not been judged by the correct legal procedure. 110 Cockburn CJ, in his address to the jury in R v Brand and Nelson (1867), was dubious whether this was a case of martial law. More likely, it was one of summary trial before the king and some peers -as opposed to a required full trial before the lords in Parliament; 111  Roger Mortimer, Earl of March. The lover of Isabella -the mother of Edward III (1327-77) -he was brought before Parliament on 24 November 1330. Fourteen charges were preferred against him including 'accroaching royal power'. With no opportunity being given to defend himself, Mortimer was condemned on the basis that his crimes were notorious and executed. 112 Judgment against him was reversed in Parliament in 1354.
These three cases -including that of Edmund, Earl of Kent -however, are rather special since they concern a common law crime (treason) rather than a specifically military one. Also, at the trial of the Earl of Lancaster, at least, a common law judge was present (Sir Robert Malberthorp). Thus, it is uncertain whether these are examples of civilians being tried under martial law in peacetime -or they were cases of judgment on the sovereign's record, the crime also being 'notorious.' 113 Leaving aside these cases of famous individuals allegedly tried by martial law, as to the rank and file -in the case of peacetime rebellions in medieval times -it is likely that many civilians were tried and executed after the battleby some sort of military tribunal or pursuant to a royal commission which authorised the application of martial law to the rebels. 114 (1549), Wyatt's Rebellion (1554) and the rising in the North (1569) -were usually treated as rebellions in which banners (standards) were raised against the sovereign. Hence, the rebels were held to have committed treason (in levying war against the sovereign) with the common law courts often trying the main offenders. 120 That said, it is also likely many rebels were also dispatched pursuant to martial law.
In conclusion, it is likely that many civilians caught up in these rebellions -whether in (or near) places of armed resistance or just after the fighting -were summarily executed under martial law, including those executed by ad hoc (or drum head) military tribunals. In Tudor times, the picture is clearer. Edward VI (1547-53), Mary (1553-8) and Elizabeth I (1558-1603) all issued proclamations in which martial law was imposed on civilians. Such impositions of martial law were mainly at times of rebellion or with the threat of foreign invasion hanging over the country. However, Elizabeth I had a particular dislike of 'vagabonds' and 'vagrants' 121 and she was happy to issue proclamations for their being tried by martial law, as opposed to the normal common law process. A list of these proclamations is as follows:  Edward VI. A proclamation of Edward VI (1547-53) issued in July 1549, ordered martial law to be applied against those who rioted against enclosures; 122  Edward VI. Cockburn CJ in his address to the jury in R v Brand and Nelson (1867) refers to a proclamation in 1552 in which the king gave a commission to John, Earl of Bedford to try rioters according to martial law; 123  Mary. The historian Hallam maintains that Mary (1553-8) had executed some of those taken in Wyatt's rebellion in 1554 by martial law. 124 In 1558, Mary issued a proclamation imposing martial law on those who imported heretical, or seditious, works; 125 116 Brand & Nelson, n 37, 26 refers to 5 Ric c 6 (1381, rep)(the King's pardon to those who repressed and took revenge of his rebels). See also Tytler,n 30,49;Finlason,n 19,n 19, On 26 January 1450, Cheyney and others rebelled, attacking an abbey in Canterbury. Cheyney was later executed for treason. See McBain, n 44, 100-3. Also, Kaufman (2009). For the use of commissions to try persons under martial law in the reign of Henry VII (1485-1509) see Baker,n 56,n 37,27. Cockburn CJ also refers, 28-9, to the practice of Henry VII (1485-1509) after the battle of Stoke in June 1487 of holding commissions and martial law tribunals in order to execute rebels for treasons but then offering them a way out by fines and ransom, a practice Cockburn CJ called 'utterly illegal'. See also Hume,n 4,vol 3,19 (Stoke) and 45 (execution of Perkin Warbeck prisoners in July 1495).
See also Bellamy, n 53, 215 re the military style execution of Richard Woodville, 1st Earl Rivers, Sir Richard Grey (nephew to Earl Rivers) and Sir Thomas Vaughan in 1483, likely on the orders of Richard III (1483-5). See ODNB, n 52 for biographies of these people. 119 Finlason, n 19, 77 & 83. Also, Lyle (1950  Elizabeth I -1558-95. In June 1558, a proclamation of Elizabeth I (1558-1603) imposed martial law on the possessors of heretical, or seditious, books -although this does not seem to have been enforced. 126 In 1569, Maitland refers to a commission appointed after the insurrection of the northern earls, when 'six hundred persons were, it is said, executed by the Earl of Sussex.' 127 In July 1588 (when there was a threat of invasion from the Spanish Armada), Elizabeth I issued a proclamation declaring those who issued traitorous libels (or papal bulls) against her were to be proceeded against by martial law; 128  Elizabeth I -1595-1603. In November 1589, a proclamation of Elizabeth I placed vagrant soldiers under martial law 129 and, one in November 1591, placed vagrants under martial law. 130 In July 1595, after riots in London, Elizabeth granted a commission to Sir Thomas Wilford to try, and execute, rioters according to martial law -although it seems this was not utilised in practice. 131 In September 1598, London vagabonds were placed under martial law and a provost marshal was appointed. He was empowered to apprehend 'all such as shall not be readily reformed and corrected by the ordinary officers of justice, and them without delay to execute upon the gallows by order of martial law.' 132 Maitland refers to commissions issued by James I (1603-25) in 1617, 1620 and 1624 which empowered commissioners to try civilians by martial law -even those who had been guilty of ordinary felonies. 133 It is unclear whether many people were executed pursuant to these commissions. In respect of these, Maitland states: There can, I think, be no doubt that, according to the opinion of lawyers of the time, such commissions were illegal. The government may put down force by force -but when there is no open rebellion, or when the rebellion is suppressed, it has no authority to direct the trial of prisoners, except in the ordinary courts and according to the known law of the land. As to what was this 'law called martial law' we know little, and probably there is little to be known; it means an improvised justice executed by soldiers. 134 124 Hallam, n 5, vol 1, 240-1. See also 43 (proclamation of 1557). See generally Loades (2001).For a threat by James I to invoke martial law against poachers in the royal forests, see 170. See also Baker, 56, 217-8. 125  In war time, and in the field the prince has also an absolute power, so that his word is a law, he may put to death, or to other bodily punishment, which he shall think so to deserve, without process of law or form of judgment.
This has been sometime used within the realm before any open war in sudden insurrections and rebellions, but that was not allowed of [i.e. assented to by] wise and grave men, who in that their judgment had consideration of the consequence and example, as much as of the present necessity, especially, when by any means the punishment might have been done by order of law.
This absolute power is called martial law, and ever was and necessarily must be used in all camps and hosts of men, where the time nor place do suffer the variance of pleading and process, be it never so short, and the important necessity requires speedy execution, that with more awe the soldier might be kept in more straight obedience, without which never no captain can do anything valuable in the wars. 135 (Italics supplied and wording divided for ease of reference).
In conclusion -particularly in Tudor times -the Crown extended the concept of martial law to cover civilians caught up in rebellions. Also, to vagrants and vagabonds. Doubtless, this was an unwarranted extension of a prerogative once limited to the Court of Chivalry and the field of battle. However, it was (see below) the wide ranging commissions of martial law of Charles I (1625-49) which provoked Parliament into making martial law in peacetime illegal pursuant to the Petition of Right 1627.

Commissions Imposing Martial Law -1625-7
The Petition of Right 1627, s 7 (still extant) refers to commissions having been issued under the great seal for proceedings according to martial law and people being executed thereunder. 136 These commissions were issued by Charles I (1625-49) in the period 1625-7. 137 The background to this is that, in May 1625, some 8,000 soldiers were levied to be employed in the service of Frederick V -the Elector Palatine (James I's son -in -law) -and to rendezvous at Plymouth on 25 May 1625. A further 2,000 soldiers were levied to rendezvous for service in Hull. The historical commentator Rushworth states: The remembrance of the late violence committed by count Mansfield's army in their passage to Dover, 138 occasioned a proclamation to repress and prevent the like attempts of soldiers, as they now passed through the counties to the places of rendezvous, threatening the offenders with the strictest proceedings against them, for an example of terror; and straitly commanding the officers, who have charge of their conduct, for the removing of all occasions and pretences of disorders, to see their companies duly paid, and provided of all necessaries and to be always present with them, and carefully to conduct them from place to place.
In like manner to prevent their outrages, when they should come to Plymouth, or the parts adjoining, a commission was sent, empowering persons of trust, upon any robbery, felony, mutiny, or other misdemeanours (punishable with death by martial law) committed by the soldiers, or other dissolute persons joined with them, to proceed to the trial and condemnation of all such delinquents, in such summary course and order, as used in armies in time of war, according to the law martial; and to cause 135 Smith (1562-5), 85-6. There is no doubt that, in the early Stuart period, under pressure from James I (1603-25) and Charles I (1625-49), the courts allowed an increasingly inflated view of the Crown prerogative. See eg. Holdsworth, n 19, 124 referring to the Ship Money Case (1624) 3 ST at 1234 per Finch CJ 'The opinion of the majority of the judges was in favour of allowing to the Crown a power to proclaim martial law whenever the country was in danger; and of the existence of that danger they held that the Crown was the sole judge.' 136 3 Cha 1 (1627) '…of late time divers commissions under your majesty's great seal have issued forth, by which certain [persons] have been assigned and appointed commissioners with power and authority to [proceed] within the land according to the justice of martial law against such soldiers or mariners or other dissolute [persons] joining with them as should commit any murder robbery felony mutiny or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law and as is used in armies in time of war to proceed to the trial and condemnation of such offenders, and to cause them to be executed and put to death according to the law martial. By  A further commission of martial law was issued in December 1625 when there was a threat of invasion from Spain. Thus, on 28 December 1625, Charles I (1625-49) issued a commission to Lord Wimbleton (lord marshal) and to Sir William St Leger (sergeant major of the Army) empowering them to use martial law against public enemies, traitors etc. 140 The commission stated that -Charles I wanting not to disband his soldiers returning from Cadiz and intending to billet them in Plymouth and its surrounds 141 -they would be subject to martial law: and to the end that all disorders and outrages, to the disturbance of our peace and the prejudice of our loving subjects, may be timely prevented, we, being more desirous to keep our people from doing mischief than to have cause to punish them for doing the same; have, of the special trust and confidence we have reposed in your approved wisdoms and fidelities, appointed you to be our commissioners, and by this presents do give unto you, or any three or more of you, full power and authority in all places within our said counties of Devon and Cornwall and either of them, as well within the said town of Plymouth or any other town or liberty or place as without, within our said counties of Devon and Cornwall or either of them, to proceed according to the justice of marshall laws against such soldiers or other dissolute persons joining with them or any of them, as during such time that any of our said troops or companies of soldiers shall remain or abide thereabouts, and not be transported thence, shall within any the places or precincts aforesaid at any time after the publication of this our commission, commit any robberies, felonies, or mutinies, or other outrages or misdemeanours, which by martial law should or ought to be punished with death, and by such summary course and order as is agreeable to marshall law, and is used in armies in time of wars, to proceed to the trial and condemnation of such delinquents and offenders, and them to cause to be executed and put to death according to the law marshall for an example of terror to others, and to keep the rest in due awe and obedience. 142 (italics supplied and wording divided for ease of reference).
A further Commission was issued on 4 October 1626 after the Forced Loan of 1626 (in which Charles I billeted soldiers on citizens who failed to lend him money). 143 This commission was similar to that of December 1625. 144 139 Rushworth, n 25, vol 1, 168. 140 Ibid, 'And for the defence of this realm, threatened with a powerful invasion, extraordinary commissions were given to the lords lieutenants of the several counties, to muster the subjects of whatsoever degree or dignity, that were apt for war, and to try and array them, and cause them to armed according to the degrees and faculties, as well men of arms as other horsemen, archers and footmen, and to lead them against publick enemies, rebels, and traitors, and their adherents, within the counties of their lieutenancy, to express, slay, and subdue them, and to execute martial law, sparing and putting to death according to discretion. And in case of invasions, insurrections, rebellions, and riots, without the limits of their respective counties, to repair to the places of such commissions, and, as need required, to repress them by battle, or any forcible means or otherwise, either by the law of this realm, or the law martial' (spelling modernized and italics supplied). For the text of this Commission see Rymer, n 33, vol 18, 254 and Samuel, n 27, 421. See generally, McBain (2011c) 97. See also Boynton (1964) 255-84 and Boynton (1962), 255-84. Lord Wimbelton (Sir Edward Cecil, 1572-1638 was appointed commander-in-chief of the ill fated expedition to Cadiz, see Rushworth,n 25, and ODNB, n 52. See also William St Leger (d. 1642), ODNB, n 52 and Hume, n 4, vol 5, 11. 141 Ibid. 'Whereas upon the return of our fleet, we have already directed that none of the soldiers employed in that service, and which shall return in any of those ships, shall be disbanded or depart from their colours, but shall continue under the command of those under whom they then served, we having present occasion to use their services again, and yet we shall be enforced for a time to lodge and billet the said soldiers in several places in and about our town of Plymouth and in our counties of Devon and Cornwall, where with most convenience for the soldiers and the least trouble to the country it may best be performed, until we shall have opportunity to employ them, which we intend to do with all expedition…' (spelling modernized). 142 Ibid.'To which purpose our will and pleasure is that you cause to be erected such gallows and gibbets, and in such places within the said counties or either of them, as you shall think fit, and thereupon to cause the same offenders to be executed in open view, that others may take warning thereby to demean themselves in such due order and obedience as good subjects ought to do, straitly charging and commanding all mayors, sheriffs, justices of peace, constables, bailiffs and other officers, and all other our loving subjects whatsoever, upon their allegiance to us and our crown, to be aiding and assisting to you, or such three or more of you as aforesaid in the due execution of this our royal commandment; and this presents shall be unto you and every of you a sufficient warrant and discharge for the doing and executing, and causing to be done and executed, all and every such act and acts, thing and things, as any three or more of you as aforesaid shall find requisite to be done concerning the premises.' (spelling modernized) 143 Ibid, 419. 'To the imposition of loan was added, the burden of billeting of soldiers formerly returned from Cadiz, and the moneys to discharge their quarters were for the present levied upon the country, to be repaid out of sums collected upon the general loan. These commissions provoked the wording in the Petition of Right 1627 which sought to end such Crown attempts to apply martial law to civilians. Section 8 of the Petition stated: And that the aforesaid commissions for [proceeding] by martial law may be revoked and annulled. And that hereafter no commissions of like nature may issue forth to any [person] or [persons] whatsoever to be executed as aforesaid, lest by colour of them any of your majesty's subjects may be destroyed or put to death contrary to the laws and franchise of the land. (spelling modernised). 145 That said, even after the Petition of Right 1627, it seems Charles I issued commissions of martial law -in 1637 and 1639. 146 It would not appear that either Charles II (1660-85) or James II (1685-8) issued commissions of martial law (martial law was imposed on the military, however). 147 After the Glorious Revolution, the Mutiny Act 1688enacted to punish mutiny and desertion -stated in its Preamble: No man may be forejudged of life or limb, or subjected to any kind of punishment by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of this realm. 148 (italics supplied) This wording -repeated in later Mutiny Acts with the addition of the words 'in peace' -149 re-states Magna Carta, chapter 29 150 as well as confirms the Petition of Right 1627, s 8. As it was, no commissions of martial law were issued by the Crown after 1688 (at the latest). Halsbury notes: the issue of commissions of martial law has long been discontinued. 151 Finally, Lord Halsbury LC in Ex p Marais (1902) stated: The framers of the Petition of Right knew well what they meant when they made a condition of peace the ground of the illegality of unconstitutional procedure. 152 (italics supplied) In conclusion, any Crown prerogative to impose martial law on civilians in peacetime was made illegal by the Petition of Right 1627, s 8 (still extant). Thus, any abolition of the Crown prerogative to this extent will simply confirm present law.
were scattered here and there in the bowels of the kingdom, and governed by martial law: the king gave commissions to the lords lieutenant and their deputies, in case of felonies, robberies, murders, outrages, or misdemeanours, committed by mariners, soldiers, or other disorderl;y persons joining with them, to proceed according to certain instructions, to the trial, judgment, and execution of such offenders, as in time of war; and some were executed by those commissions.' (spelling modernised). See also Forsyth,n 5,193. 144 Rymer,n 33,vol 18,763 'to proceed according to the justice of martial law against such soldiers or mariners, or other dissolute persons joining with them or any of them, as within the said county [of Kent] or any part thereof, shall at any time, after the publication of this our commission commit any robbery, felony, mutiny, or other outrage or misdemanour, or which shall withdraw themselves from their places of service or charge as aforesaid, or shall be found within the said county or any part thereof, which by the martial law should or ought to be touching commissions, to proceed to the trial and condemnation of offenders, and causing them to be executed and put to death by the law martial, in times and places, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by none other ought to be adjudged and executed.' See also 558 and Blackstone, n 12, vol 1, 400 'And the petition of right enacts…that no commission shall issue to proceed within this land according to martial law.' See also Hallam, n 5, vol 1, 389. 146 Forsyth,n 5,193

Martial Law -Military Law Imposed on Civilians in Time of Great Riots or Rebellion
Halsbury notes that the ambits of the Petition of Right 1627 are obscure and that they can be made to bear a wider interpretation. 153 Thus, it was never clear whether the Petition of Right 1627 was also intended to make it illegal to exercise the Crown prerogative to declare martial law during:  Internal insurrection -such as in the case of great riots or rebellion; or  War time.
Thus, Anson (in its 4 th edition, in 1935) states: The Petition of Right, 1628, negative the legality of such action in peace in undoubted terms, leaving it arguable whether it contemplated such law as valid in the case of war. 154 The historical position as to riots and rebellion will now be considered. However, the conclusion may be stated at the outset. By 1714 -as a result of the Riot Act 1714 -it was no longer necessary in any case to apply martial law to rioters. Further, in England, after 1688 there were no major rebellions in which martial law was needed (in the Jacobite rebellions of 1715 and 1745, the normal courts dealt with rebels). Martial law was still applied, however, in respect of rebellions in various colonies. But, because of the uncertainly as to the lawfulness of exercising such a Crown prerogative, invariably Acts of Indemnity were subsequently passed by Parliament to indemnify the military for their actions. The position is as follows:

Martial Law: Riots and Rebellions up to 1745
The position of Coke  The fact that -in the past -the Crown had purported to impose martial law on civilians during peacetime -by virtue of commissions and proclamations -was the very reason why these legal writers deprecated martial law and declared it to be 'no law'.
Thus, to the time of Blackstone at least (ie. 1765) the legal position as to the imposition of martial law, as stated by these legal writers, was clear: (i) Martial law only covered civilians on the battlefield (or close to) 158 and not away from it. 159 Only the former was war time -whether the war was against a foreign, or an internal, enemy; (ii) Martial law could not be imposed in peacetime. This included all riots and rebellions unless (i) applied (i.e. martial law could be applied against rebels in open armed resistance).
A similar perception in the 19 th century was that of Cockburn CJ in R v Nelson & Brand (1867). 160 In that case a rebellion in Jamaica (a settled colony) occurred in October 1865 and a British subject and civilian called Gordonthought to be one of the ringleaders -was apprehended by Governor Eyre. He was later executed for treason by a military court assembled by order of one Colonel Nelson and presided over by one Lieutenant Brand. It was argued that this court had no jurisdiction 161 and that -even if it had -such had been exercised corruptly. In his address to the jury, Cockburn CJ reviewed at length the history of martial law. He was careful to distinguish between cases where rebels (civilians) were put to death on the battlefield as the enemy (effectively, during war time) and where civilians were put to death not on the field of battle -which he treated as martial law as such. 162 Even in the case of rebel soldiers, Cockburn CJ noted a practice that prevailed up to Tudor times of executing prisoners after a battle was over, which he took to be barbarous and illegal. He concluded: if it be true that you can apply martial law for the purpose of suppressing rebellion, it is equally certain that you cannot bring men to trial for treason under martial law, after a rebellion has been suppressed. 163 (italics supplied) Thus, Cockburn CJ clearly limited martial law to the battlefield and all attempts by the Crown to extend itwhether by proclamation or commission -he adjudged (rightly, it is asserted) to be illegal. Cockburn CJ also reviewed many of the commissions for martial law granted by the Crown granted in the reigns of Edward VI (1547-53), Mary (1553-8), Elizabeth (1558-1603) and James (1603-25); he regarded them also as illegal. He also referred to the Petition of Right 1627 and concluded: certain it is that from that time [i.e. 1627] martial law has never been attempted to be exercised in the realm of England by virtue of the prerogative. 164 applying it had in their opinion existed.' Cockburn CJ also quotes Rolle (later CJ) 'If a subject be taken in rebellion, and be not slain at the time of his rebellion, he is to be tried after by the common law.' See also Rushworth,n 25,vol 3,79 and Forsyth,n 5,211. See also R v Eyre (n 127), at 74 per Blackburn J. 158 Forsyth, n 5, 207. At 213 'there is no legal necessity for any form of trial at all when the rebel is met with arms in his hands, flagrante bello, for he may be killed on the spot. But if, instead of being killed in open resistance, he were to be arrested, the gravest responsibility would be incurred if he were to be put to death without some form of trial, and analogy would suggest a trial by court martial.' 159 Hale (1820), 13 'The king may punish his subjects by martial law during such insurrection or rebellion, but not after it is suppressed.' Where a sheriff in Tipperary, Ireland, flogged a man at a time of rebellion in 1798 but there was no pretence that the man had been involved in same, While this was true -as regards England post-1627 (with some exceptions) 165 -martial law was sought to be exercised in some colonies and in Ireland up to 1920, see 5. Cockburn CJ concluded that: no such thing as martial law has ever been put in force in this country against civilians, for the purpose of putting down rebellion. 166 (italics supplied) This is a bit of a tall statement. It is only true if one treats as illegal all executions of civilians pursuant to proclamations, commissions etc prior to 1688 (ie. prior to the first Mutiny Act 1688) -including the execution of vagrants and vagabonds in the time of Elizabeth. 167 That said, it should also be remembered that, in many of these rebellions where civilians were executed other than on the field of battle, often a civil judge was present and the crime was treason. Therefore, the law being enforced (at least, claimed to be enforced) was legislation -the Treason Act 1351.  Thus, civilians who were rebelling were hung, drawn and quartered (or, more speedily, hung) on the basis that there were 'traitors and rebels'. This point was important since it legitimised the actions of army officers acting under the command of the sovereign or his commander-in-chief. 168 This rationale was preserved during the Civil War (1642-9) -both sides executing 'rebels' on the basis they had committed treason, a normal criminal offence as opposed to being a specific military one;  Further, the Treason Act 1351 was expanded by the courts in the period 1517-1710 with a constructive interpretation of 'levying war' being made to cover great riots. 169 The Act was also constructively expanded so that 'levying war' not only covered levying war against the sovereign (le roi) but also against the State. 170 As a result, in all these cases, those who administered justice against rebels -whether common law judges, persons appointed by the Crown under commission or military officers -would probably have said: In conclusion -after 1627 -there were no major riots or rebellions in England which required the imposition of martial law against civilians (even if legal). 175 However, martial law was imposed in Ireland and the colonies.

Martial Law: Irish Riots and Rebellions: 1795-1833
In Ireland, in 1795, rebellion against the Crown occurred and the civil authorities (it seemed) instituted martial law -exercising an asserted prerogative without proclaiming it as such. Because it was uncertain whether such a prerogative was legal or not, acts committed in suppressing the rebellion were sanctioned by an Irish Act of 25 March, 1799 and an indemnity was provided by an Irish Act of 1801 indemnifying acts from that date. 176  In 1798, there were more rebellions in Ireland, with insurrection breaking out in the counties of Kildare and Carlow. On 30 March 1798, Lord Camden (the lieutenant general) issued a proclamation declaring martial law. 177 Many people were executed under it;  A relevant case is that of Wolfe Tone (1798) 178 although he was not executed, but committed suicide.
Tone, an Irishman, was captured on board a French ship. Although Tone claimed to be a French officer and was dressed in the uniform of the same, he was sentenced to death for rebellion by a court martial in Ireland. An application was made to the court of King's Bench in Dublin for a habeus corpus on the ground he had been sentenced to death by an illegal court martial since the king's courts were still sitting and, thus, their ordinary jurisdiction had not been superceded (also that Tone, being a civilian, was not subject to a military court). A writ of habeus corpus was prepared, to prevent his execution. However, Tone committed suicide, dying some days before he could be brought before the court of king's bench.
His case gave rise to further concern about the legitimacy of the Crown to impose martial law when the courts were still open. As Cockburn notes, after this it was thought desirable to supersede the proclamation of the lord -lieutenant appointing martial law, and to have statutory authority for its exercise, so as to preclude the intervention of martial law. 179 This statutory authority was the Irish Rebellion Act 1803 (also called the Suppression of Rebellion Act 1803). 180 Further, it seems clear that legal opinion at the beginning of the 19 th century was turning against the legitimacy of civilians being tried by military courts -even in the case of rebellion.
such riotous persons failed to disperse then they could be seized. If killed or maimed, the persons seizing them were indemnified. See also Dicey,n 16,290. 173 In the Jacobite rebellion of 1745, an Act empowered the sovereign (George II) to issue commissions for trying rebels in any county of the  In 1798, in Ireland, one Grogan, a commissary general in the army of the rebel United Irishmen was seized by the forces of the Crown when they took Wexford. Tried by court martial, he argued he had committed no overt act but had been forced to take a nominal lead. Found guilty -along with two othershe was executed on 28 June 1798 181 and later attainted for treason by an (Irish) Act of 6 October, 1798. 182 Grogan was executed pursuant to a proclamation of martial law imposed in Wexford in April 1798 -but prior to any Irish Act sanctioning it, which happened in 1799; 183  When it came to seeking a repeal of the Act of Attainder against him, the jurist Hargrave, when consulted professionally, indicated that, had he been consulted prior to the Act of Attainder, 'I should have deemed it fully open to me to express at least a doubt, -whether, under martial law, to try persons seized in rebellion, or seized upon suspicion of being rebels, before a court -martial constituted by the king's authority, and to punish them by death or otherwise, at the discretion of the members of such a court, was not an extension of martial law beyond its real object; and being so, was not an infringement of the law of England in a point of the most serious kind;' 184  Hargrave made it clear that he thought such a purported Crown prerogative offended against the Petition of Right 1627. 185 Thus, he was endorsing the opinion of Coke in 1641 that -if a rebel was executed in peacetime (ie. when the courts were still open) pursuant to military law (including pursuant to a trial before a court martial or other military court) -it was murder. 186 The only exception was where Parliament expressly sanctioned the imposition of martial law. 187 In 1833, when Ireland was again in a disturbed state, the Irish Coercion Act 1833 (also called the Insurrection Act 1833) was passed. It empowered the Lord Lieutenant to proclaim any county (or district) to be in a state or disturbance or insubordination. Also, for the same to order the convening of courts martial with a sergeant at law or barrister of not less than 5 years standing to act as judge advocate. 188 As Cockburn CJ notes: These instances of the application of martial law were therefore either under statutory powers, with which no man has, judicially speaking, a right to quarrel, or, when exercised by virtue of the prerogative of the crown, were followed by Acts of Indemnity; which, to say the least of it, sufficiently implies a doubt of the legality of the exercise of the power. 189 After 1838, the need for imposing martial law in Ireland was obviated by the Treason Felony Act 1848. This was sufficient until large scale rebellion broke out prior to the independence of Southern Ireland in 1922. 190 It may be noted that, in the troubles in Northern Ireland which occurred since 1969, martial law was never invoked. 191 In conclusion, in the period 1798 -1838, the imposition of martial law in Ireland was supplemented by legislation, due to doubts as to the legality of the exercise by the Crown of its prerogative.

Riots and Rebellions in the Colonies
Martial law was also imposed by the Crown in various colonies, in order to deal with rebellions. 192   In respect of a rebellion in Canada in 1837 -8, 197 reliance was not placed on the right of the Crown prerogative to impose martial law but on an Act of Parliament which authorised the imposition of martial law. This point was made in a Joint Opinion delivered in 1838 by the Attorney General (Sir John Campbell) and the Solicitor General (Sir RM Rolfe) as to the power of the Governor of Canada to proclaim martial law. 198 Noting that -whether a proclamation of martial law was made or not -was irrelevant to the state of affairs, 199 the law officers stated: In any district in which, by reason of armed bodies of the inhabitants being engaged in insurrection, the ordinary course of law cannot be maintained, we are of opinion that the Governor may, even without any proclamation, proceed to put down the rebellion by force of arms, as in the case of foreign invasion, and for that purpose may lawfully put to death all persons engaged in the work of resistance; and this, as we conceive, is all that is meant by the language of the statutes referred to in the report of the Attorney and Solicitor General for Lower Canada, when they allude to the 'undoubted prerogative of his Majesty for the public safety to resort to the exercise of martial law against open enemies and traitors.' 200 They continued by emphasizing that the power of the Crown to so act could now only be conferred by Parliament.
The right of resorting to such extremity is a right arising from and limited to the necessity of the casequod necessitas cogit, defendit.

For this reason we are of the opinion that the prerogative does not extend beyond the case of persons taken in open resistance, and with whom, by reason of the suspension of the ordinary tribunals, it is impossible to deal according to the regular court of justice. 201
When the regular courts are open, so that criminals might be delivered over to them to be dealt with according to law, there is not, as we conceive, any right in the Crown to adopt any other course of proceeding. Such power can only be conferred by the legislature, as was done by the Acts passed in consequence of the Irish rebellions of 1798 and 1803, and also the Irish Coercion Act of 1833. 202 (wording divided for ease of reference)

In conclusion, by 1838, England's law officers (opining on behalf of the Crown) had restricted the application of martial law to rebellions where (i) persons were taken in 'open resistance' and (ii) the courts were not open to enable rebels to be dealt with 'according to the regular court of justice.' This situation was treated as akin to war (see 7)
. 196 Anson, n 20, vol 2, pt 1, 316 Forsyth,n 5,[198][199][200][201][202][203][204][205][206] Ibid, 198 'such proclamation confers no power on the Governor which he would not have possessed without it. The object of it can only be to give notice to the inhabitants of the course which the Government is obliged to adopt for the purpose of restoring tranquility.' In a Legal Opinion of the Attorney General (Sir Robert Henley) and the Solicitor General (Hon Charles Yorke) in respect of an anticipated invasion of Jamaica (a settled colony) in 1757, they indicated that a proclamation of martial law did not stop the execution of legislative authority by the civil authorities. 'Nor do we apprehend that by such proclamation of martial law, the ordinary course of law and justice is suspended or stopped, any further than is absolutely necessary to answer the then military service of the public and the exigencies of the province.' See Forsyth, n 5, 188-9 and Anson, n 20, vol 2, pt 1, 318 'It is clear also that the declaration of martial law makes no real difference to the situation, save that it serves to warn the people of the locality where martial law is proclaimed of the intentions of the government.' See also Bradley & Ewing,n 16,633. 200 Ibid. 201 The Legal Opinion continues, 199, 'the question, how far martial law, when in force, supercedes the ordinary tribunals, can never, in our view of the case, arise. Martial law is stated by Lord Hale to be in truth no law [see n 100], but something rather indulged than allowed as a law, and it can only be tolerated because, by reason of open rebellion, the enforcing of any other law has become impossible. It cannot be said in strictness to supercede the ordinary tribunals, inasmuch as it only exists by reason of those tribunals having already been practically superseded.
It is hardly necessary for us to add that, in our view of the case, martial law can never be enforced for the ordinary purposes of civil or even criminal justice, except, in the latter, so far as the necessity arising from actual resistance compels its adoption.' 202

Riots and Rebellions -Position Today
By 1838, at the latest, legal opinion accepted that any Crown prerogative to impose martial law on civilians -even in the case of riots or rebellions (cf. where war prevailed) -was contrary to the Petition of Right 1627. 203 In more modern times Dicey (in 1948) stated: Soldiers may suppress a riot…but they have no right under the law to inflict punishment for riot or rebellion... 204 More explicitly, Holdsworth (writing in 1938) stated: Though the military jurisdiction of the court [ie. the court of the constable and marshal] has ceased to exist, the limitations placed upon it by the Petition of Right, and the subsequent development of courts martial exercising jurisdiction over the soldiers of the crown, have had a very permanent constitutional result. Their joint effect has been to vest jurisdiction over civilians in times of riot and rebellion in the ordinary courts of common law, and not in military courts.
Civilians are even then governed by the rules and processes of the common law, and not by the rules and processes applicable to the soldier…[the] victory over the constable and marshal's court has left the case of riot or rebellion to the common law, and has caused the 'state of siege' to be practically unknown in England. 205 (italics supplied and wording divided for ease of reference) This statement, which reflects that of Coke in 1641, applies a fortiori, today, for a number of reasons.  Unlike previous centuries, there is now a permanent, and well-equipped, police force to deal with riots.
There is also distinct legislation on the offence of rioting as well as related offences; 206  Where the police needed re-enforcements post -1848, usually special constables were used and not the army; 207  Levying war against the sovereign is still treason under the Treason Act 1351; and there is no reason why the courts cannot handle the (highly unlikely) case today of people rebelling, in an attempt to overthrow Elizabeth II; 208  The Treason Felony Act 1848 still exists to deal with large crowds who seek to use violence to require Parliament to change laws or to change to the monarchy;  If the army is required to assist the police in the realm, they (like any other citizen) may use such force (including shooting) as is reasonable in the circumstances; 209  The Crown has a separate prerogative to act in the case of emergencies (see 6), such that there is no need in modern times to subject civilians to martial law and to military courts;  The Civil Contingencies Act 2004 (see 7) empowers the Crown to act in the case of emergencies and to make regulations. These may subject civilians (including rioters and rebels) to special civil courts for criminal offences. Thus, subjecting civilians to military courts is not necessary.
Thus, there is no reason whatsoever to subject civilians to martial law in the case of riots and rebellions today. In any case, imposing martial law would be a brutum fulmen in modern times since the whole purpose of subjecting civilians to martial law in past centuries was to impose the death penalty -or harsher military penalties(whipping etc) -than were otherwise possible pursuant to the common law. However, in England, the death penalty has been abolished since 1998 for all offences. Harsh military penalties have also long been abolished. 203 Also, martial law was treated as being limited (as per Coke) to acts committed in the heat of battle, and not afterwards. 204 Dicey, n 16, 293. 205 Holdsworth, n 55, vol 1, 578. It is to be remembered that Hale held that martial law was only allowed 'in cases of necessity, in time of open war.' See n 107. 206 Public Order Act 1986, s 1 (6). There is also separate legislation dealing with firearms, knives, appearing in military dress etc. 207 Stephen, n 19, vol 1, 206 (writing in 1883), 'Happily the employment of military force for the suppression of a riot is a matter of rare occurrence in this county. When there is reason to fear any tumult with which the common police establishment cannot deal, the course usually taken is to swear in special constables…On one memorable occasion, however (April 10, 1848), the swearing in of a vast number of special constables in London and elsewhere, as an answer to threats of revolutionary disturbance, was of much use, as a proof of demonstration of the fact that the great bulk of the population were at the time opposed to any resort to violence for political objects.' 208 The attempt would be worthless anyway since…the Bill of Rights 1688 establishes that Parliament can determine who is sovereign.

In conclusion, the general principle of Coke that civilians cannot be subject to martial law in peacetime still prevails (the same to include riots and rebellions not amounting to open war). This leaves, however, some Irish cases in the 1920's, when opposition to colonial rule led to the formation of the Irish republic.
In these -at firstthe Crown prerogative to impose martial law was asserted. However, it was soon re-enforced by legislation. These are now considered.

Martial Law -Military Law Imposed on Civilians in War Time
Today, any assertion by the Crown of a prerogative to impose martial law on civilians in time of peace (including riots and rebellion) is illegal. However, does the Crown retain such a prerogative in time of war? That is, in the case of foreign invasion or civil war? Statements in Halsbury on this are confused because they conflate war with riots and rebellion. They also confuse martial law with quite separate Crown prerogatives to:  act in the case of emergency;  keep the peace.
Halsbury states: The Crown may not issue commissions in time of peace to try civilians by martial law; but when there exists a state of actual war, or of insurrection, riot or rebellion amounting to war, the Crown and its officers may use the amount of force necessary in the circumstances to restore order. 210 This use of force is sometimes termed 'martial law'. 211 (italics supplied) This statement is confused in that 'insurrection, riot or rebellion' only 'amount' to war in the case of civil war.
Thus, only civil war should be referred to. It is the lack of such definition -and the uncertain meanings of 'insurrection' and 'rebellion' in a general context (as well as the fact that they are not legal terms) 212 -which is the source of one of the problems in respect of martial law, and any legal analysis of it. Halsbury also states: Once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities, but it is for the civil courts to decide, if their jurisdiction is invoked, whether a state of war exists which justifies the application of martial law. 213 The powers, such as they are, of the military authorities cease and those of the civil courts are resumed ipso facto with the termination of the state of war; 214 and, in the absence of an Act of Indemnity, 215 the civil courts may inquire into the legality of anything done during the state of war. 216 210 R v Hampden (1637) 3 ST 826 at 976 (Holbourne's argument) 'the general law of necessity, which is above all laws, for the public good private good doth yield on all parts.' At 1162, per Croke J, 'Royal power, I account, is to be used in cases of necessity, and imminent danger, when ordinary courses will not avail…as in cases of rebellion, sudden invasion, and some other causes, where martial law may be used, and may not stay for legal proceedings. But in time of peace, and no extreme necessity, legal courses must be used and not royal power.' See also Brand & Nelson,n 37,85;Forsyth,n 5,n 19,vol 1,5. 211 Halsbury, n 13, vol 8(2), para 821. See also Forsyth,n 5,  Molony CJ at 329 'this court has the power and the duty to decide whether a state of war exists which justifies the application of martial law'. [1923] 1 IR 5 (the applicant was arrested and charged with possessing a pistol. On an application for habeus corpus, it was held the writ must be refused, as a state of war being proved, the military to whom the duty of repelling force by force was committed, were the sole judges of how it should be exercised). See also Heuston,n 16, Wolfe Tone's Case (1798) 27 ST 613 at 625 (counsel to Tone) 'no court martial could have cognizance of any crime imputed to him, while the court of king's bench sat in the capacity of the great criminal court of the land. In times when war was raging, when man was opposed to man in the field, courts martial might be endured; but every law authority is with me, while I stand upon this sacred and immutable principle of the constitution -that martial law and civil law are incompatible; and that the former must cease with the existence of the latter.' See also Stephen,n 19,212. 215 Halsbury, n 13, vol 8(2), para 821, n 12, notes that Acts of Indemnity may be passed, in part, to obviate the uncertainty as to the Crown's prerogative to declare martial law. Heuston, n 16, 162-3 quotes Dicey (2007) (1914-18) andII (1939-45), the Crown did not declare martial law. 218 In particular, it did not seek to submit civilians to courts martial. 219  If there were any prospect (or actuality) of an invasion today, there is no reason why the Crown should need to declare martial law in any case. And, if it were required, emergency legislation could be enacted to so provide (see 7);  Further, the Crown has a general prerogative to act in an emergency (see 6). This could include the establishment of war zone (or summary) courts to administer criminal justice to civilians. Thus, any Crown prerogative to submit civilians to martial law is unnecessary even in the event of foreign invasion -whether actual or anticipated;  Finally, even if an invasion was so sudden that Parliament was unable to assemble to pass legislation, the Crown has authority to take emergency action act under the Civil Contingencies Act 2004 (see 7).This would include the establishment of courts to deal with criminal acts by civilians. Thus, there is no need to impose martial law (and military courts of whatever nature) on civilians in the event of invasion. 220

Internal Insurrection
Riots and rebellions have already been considered in 4. There are, however, instances which Halsbury cites as akin to war. It refers to a notice issued in:  South Africa in 1902 during the Boer war when it was part of the British Empire; 221  Ireland in 1920 when it was part of the British Empire. 222 There are some important points to note in respect of these precedents:  These precedents are now nearly (or more than) 100 years old and they will not occur again since South Africa and Southern Ireland are no longer part of the British Empire. Today, the Crown could only apply, in any case, martial law -besides in the realm -to the British Overseas Territories (formerly called Crown colonies or British Dependent Territories). These are few and far between; 223  In the 19 th century, the courts were forced to re-look at Coke's definition of war and peace for the purposes of martial law -as to whether the courts were open or shut. 224 This was due to modern warfare giving rise to the situation that the courts might be technically open -but unable to operate due to security concerns or there being unable to cope (in some way) with handling criminal offences committed by civilians of a military nature; 225  In Elphinstone v Bedreechund (1830) 226 and -more particularly -Ex p Marais (1902), it was held that martial law could still be declared even if the courts were not physically shut, provided war was 'raging'. 227 The effect of this, however, was problematic since there was then no hard and fast line between when civilians could be tried by military courts and when not -something of great import when the life of a man was at stake and when military justice could be summary and haphazard;  The effect of martial law being held to exist was that the normal courts could not question the acts of military courts -however improper. 228 Thus, citizens could be put to death without a trial -or pursuant to a perfunctory trial (or a biased one);  In the case of Ireland in the 1920's, special legislation accorded the military powers the right to put down the rebellion. Unlike the Crown prerogative -in the case of this legislation -the courts held they were able to compel the military authorities to act in accordance with its terms, see Egan v Macready (1921)  As Anson notes, in all of these colonial cases, the general policy of the Crown was to pass Indemnity Acts ex post facto. As a result, this deprived the courts of the opportunity to declare more fully the principles of martial law. Thus, it left many legal issues largely unresolved. 230 In Ireland, the Restoration of Order in Ireland Act 1920 (passed by the Westminster Parliament) empowered the use of the Crown prerogative to declare martial law. 231 Anson notes: In the difficulties of 1920 -1 the Restoration of Order in Ireland Act, 1920, was held 232 to authorise very drastic measures, but also to restrict the operations of the military to those provided under the Act, as constituting a statutory regulation of the prerogative. But in other cases 233 a much wider view was taken, perhaps more correctly. In the later struggle it was held that there were no statutory limitations. 234 Today, there is little doubt that -if situations such as in the Boer War or Irish rebellions were to re-occurlegislation would be used to impose any martial law over citizens because of all the uncertainly as to the legality of the Crown prerogative. Be that as it may, in the case where the courts have no power to question military jurisdiction over civilians -including their being judged by military courts -it is debatable whether this can be said to be 'martial law' at all.

Martial Law is no Law, Military Courts are no Courts
Cockburn CJ in R v Nelson & Brand (1867) -following Hale and Blackstone -did not think martial 'law' could be termed as such. It was a state of no law at all 235 -the application of military force in a legal vacuum -albeit the normal courts might determine the legality of such actions once peace was restored. 236 Endorsing this, Halsbury LC stated in Tilonko v AG of Natal (1907) that: It is by this time a very familiar observation that what is called 'martial law' is no law at all. The notion that 'martial law' exists by reason of the proclamation…is an entire delusion. The right to administer force against force in actual war does not depend upon the proclamation of martial law at all. It depends upon whether there is a war or not. 237 If martial law is no law -as a corollary -military courts do not comprise 'courts'. Halsbury LC also stated: It is clear that so called military courts set up under martial law are not really courts at all. 238 230 Anson, n 20, vol 2, pt 1, 317.
231 See generally Bradley & Ewing, n 16, 634. Also, Campbell (1994) and Jones (1969), vol 3, pt 1. 232 Egan v Macready (n 229). 233 R v Allen (n 222). In December 1920 -although the Restoration of Order in Ireland Act 1920 was in force (providing for civilians to be tried by properly convened courts martial and prescribing the maximum penalties) -martial law was proclaimed in areas in Ireland, (including that in which Allen was) and the general officer commanding the army declared that any unauthorized person found in possession of arms would be subject to the death penalty. The general also established informal military courts for administering summary justice to those alleged to have committed the prohibited acts. The King's Bench division in Ireland refused to intervene in the case of a death sentence imposed by such a military court on Allen for possession of arms. It was immaterial, the court held that Parliament had not imposed the death penalty for such an offence. See also Bradley & Ewing,n 16,634. 234  See also Forsyth, n 5, 211 who quotes Earl Grey on the same occasion 'what is called martial law is no law at all, but merely for the sake of public safety in circumstances of real emergency, setting aside all law, and acting under the military power.' Anson, n 20, vol 2, pt 1, 315 '[Martial law] is also used for the rules enforced in enemy territory under British occupation, the sense in which it is defined by the Duke of Wellington as being no law.' See also Finlason,n 19,[9][10]140;Halsbury,n 13,vol 8(2), para 821, n 16 and Holdsworth, n 16, 128. See also Clode,n 67,n 5,558 (Sir Robert Peel, martial law is a rule of necessity). 236 R (Ronayne and Mulchay) v Strickland (n 228) per Molony CJ at 334 'We hold that when a state of things does exist which justifies the 'execution of martial law', and such is proved to our satisfaction, our hands are tied…When the state of war is over, the acts of the military during the war, unless protected by an Act of Indemnity, can be challenged before a jury; and in that event even if the king's command would not be an answer if the jury were satisfied that the acts complained of were not justified by the circumstances then existing and the necessities of the case.' 237 [1907] AC 93 at 94.

Effect of No Law and No Courts
The effect of martial law being no law -and military courts being no courts -produces an unsatisfactory situation where the lives of civilians can be forfeit pursuant to the decisions of extra-legal courts which are wholly unaccountable to anyone at the time -and from which there is no system of appeal. Thus, in Clifford v O'Sullivan (1921), a proclamation had been issued by the Lord Lieutenant in Ireland on 10 December 1920 that certain counties (including county Cork) were under martial law. This was followed by another proclamation two days later in which the commander-in-chief in Ireland declared the unauthorised carrying of arms to be punishable by death. He also authorised the general officer commanding Cork to issue orders for the holding of military courts such as might be necessary. In May 1921, the appellants (civilians) were sentenced to death by a military court for the unauthorised carrying of arms. However, since the sentencing body was not a court or judicial tribunal in any legal sense according to the Judicial Committee of the Privy Council, it did not see how it could review any decision it made. Cave LC stated: The so-called 'military court'…was not and did not claim to be a court or judicial tribunal in any legal sense of those terms. It was not a court martial, that is to say, a tribunal regularly constituted under military law, but a body of military officers entrusted by the commanding officer with the duty of enquiring into certain alleged breaches of his commands contained in the proclamation, and of advising him as to the manner in which he should deal with the offences, and its 'sentences' if confirmed, will derive their force not from the decisions of the military court, but from the officer commanding his Majesty's forces in the field. Its true position was described by Lord Halsbury in Tilonko (see above)… 239 One would assert that this logic -principally emanating from Lord Halsburyin Tilonko -is flawed.  When civilians are tried by a military court or tribunal for what might rightly be called criminal offences (even if not specifically termed as such) that body is purporting to act as a 'court'; 240  Further, since all criminal courts can only emanate from the Crown or pursuant to legislation -these military courts are purporting to act in a judicial capacity. As such, they should be subject to the oversight of the higher civil courts (for example, decisions of the Court of Chivalry are subject to appeal to the Judicial Committee of the Privy Council). 241 It should also be noted that, in Tilonko (1907), -whether the military court was a court as such (or not) was irrelevant, since legislation provided for the legality of its sentences in any case. 242 The effect of letting military courts do as they like is to effectively annul the general law. Thus, a jurist, Earle Richards, commenting on the Marais case (1902) opined: To suspend the law in such circumstances is in general to annul it altogether. To refuse to interfere at any rate in the case of a prisoner condemned to death is not suspension of law but abrogation; it is not a postponement of justice but a denial of the only remedy. 243 One would agree: martial or courts at all. They are merely committees formed for the purpose of carrying into execution the discretionary power assumed by the Government.' See also Forsyth, n 5, 560 (not courts, mere committees). 239 Clifford v O' Sullivan [1921] 2 AC 570 at 581. At 583 'it is plain that it is in law not a court or judicial tribunal of any kind.' 240 Tytler, n 30, 109 refers to a 'Court martial, which is in the highest sense a court of honour, are themselves appointed the sole judges, or rather the legislators: For it is in their breasts to define the crime, as well as to award the punishment. the military tribunal in question, which was not a regularly constituted court-martial, as merely an advisory committee of officers to assist the commander in chief; moreover its duties had already been completed…It followed that the army's decision to take the life of a citizen did not become subject to judicial control merely because an informal hearing had been given to the civilian by a military tribunal.' www.ccsenet.org/ilr Vol. 1, No. 1;  The Court of Chivalry, originally, only applied to the execution of men on the actual battle field, because force -not law -there prevailed, as a matter of fact and necessity. This principle of necessity was then illegally extended to the summary trial and execution of prisoners off the battle field; 244  More recently, it was extended -in the colonies -to the application of military justice to civilians after open resistance had ended. This was resisted by persons such as Cockburn CJ in R v Brand and Nelson (1867);  In the Boer war and in Irish cases in 1902 and 1920, the courts effectively abandoned civilians to military justice -even though the courts were (physically) still open. This was quite wrong and an abdication of responsibility.
However, these cases do establish that -at least by 1920 -martial law can only be applied to civilians by virtue of the Crown prerogative (if at all) if there is a state of actual war existing and the courts -although open -are not able to handle these matters as normal criminal cases.
In conclusion, today, the Crown prerogative to impose martial law on civilians could only apply in war time (ie. foreign invasion or civil war) and not in the case of riots and rebellion. In the latter case, there is also confusion with two other Crown prerogatives concerning: (i) emergencies; and (ii) maintenance of the peace. This is now considered.

Confusion between Martial Law and Crown Prerogatives to Act in an Emergency and to Keep the Peace
There is considerable confusion in legal analysis (especially in the 19 th century) between martial law and other Crown prerogatives -notably the right of the Crown to:  act in an emergency; and  keep the peace. This is, perhaps, not that surprising since martial law has not been applied in England since 1627 (with some exceptions). Thus, it is understandable how it might be confused with situations where the military have been called in to deal with large riots and other major social disturbances. Examples of confusion in separating out these distinct prerogatives may be seen in writers such as Dicey and Stephen. Thus, Dicey (in 1948) -likely following Stephen (writing in 1883) -created a new definition of martial law -confusing it with these other prerogatives. Dicey stated: Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. [ie. to act in an emergency]. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognised in the most ample manner by the law of England. The Crown has the right to put down breaches of the peace. 245 [ie. to keep the peace].
Today, one would assert the courts would clearly distinguish between these prerogatives and martial law -which only applies where military law is imposed on civilians in war time. Thus, martial law does not occur simply when the military is used to quell riots and civil disturbances. As to these other prerogatives, and why they are different to martial law:

Crown Prerogative -To Act in Emergencies
Halsbury states: The Crown has the same power as a private individual of taking all measures which are absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency. 246 The Crown 244 See n 118. 245 Dicey, n 16, 288. Heuston, n 16, 151 '[martial law] means the right to use force against force within the realm in order to suppress civil disorder.' Phillips & Jackson, n 16 refers to one interpretation of martial law being to 'the common right and duty to maintain public order by the exercise of any degree of necessary force in time of invasion, rebellion, insurrection or riot.' See also Gross & Aolain, n 19, 32-3. 246 Halsbury, vol 8(2), para 820 refers to R v Hampden (1637) 3 ST 826 at 975, 1011-3. Also, to the Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (HC Paper, 1995-6, no 115 further has prerogative power to take action to maintain the peace 247 … the Crown has certain discretionary powers in time of war or emergency, for example the power of requisitioning ships. 248 Thus, two prerogatives are involved; the first is the right of the Crown to undertake certain extraordinary measures to deal with an emergency. This would include emergencies arising from foreign invasion or major civil disturbance. However, this prerogative is separate to the application of martial law. Nor can it be used to justify the application of martial law in peacetime (including riots and rebellions) since the same is illegal by virtue of the Petition of Right 1627. Bradley and Ewing, in their text on Constitutional and Administrative Law (14 th ed., 2007) state: In the present context, martial law refers to an emergency amounting to a state of war when the military may impose restrictions and regulations on citizens in their own country. In such a situation of civil war or insurrection, the ordinary functioning of the courts gives way before the tasks of the military in restoring the conditions which make normal government possible.
Unlike the use of armed force for restoring order during riots, when the military are subject to direction by the civil authorities and to control by the courts, if excessive force is used, under martial law the military authorities are (for the time being) the sole judges of the steps that should be taken. These steps might involve taking drastic steps against civilians, for example, the removal of life, liberty or property without due process of law, but possibly accompanied by the creation of military tribunals to administer summary justice. Such tribunals are not to be confused with the courts -martial which regularly administer military law. 249 (italics supplied and wording divided for ease of reference) One would agree with the basic tenor of this. However, martial law is best seen as a distinct prerogative, part of a larger Crown prerogative to act in the case of emergency. And the latter, itself, is part of the most basic Crown prerogative of all -the duty to maintain the peace. Thus, Halsbury states, as to the prerogative to act in an emergency: Whether this power of using extraordinary measures is really a prerogative of the Crown or whether it is merely an example of the common law right and duty of all, ruler and subject alike, to use the amount of force necessary to suppress disorder, is not quite free from doubt. 250

Crown Prerogative -To Maintain the Peace
One would assert that this Crown prerogative to maintain the king's (or queen's) peace is the earliest, and most basic, Crown prerogative of all. 251 However, this prerogative is not martial law, as Cockburn CJ noted in his address to the jury in R v Nelson and Brand (1867): 247 Harrison v Bush (1855)  However, the crowd growing ugly, the troops fired on them within the hour, injuring various people, two of whom died. A report of a Committee was issued (Bowen LJ was chairman of the Committee). The Report says, 9 'By the law of this country everyone is bound to aid in the suppression of riotous assemblages. The degree of force, however, which may lawfully be used in their suppression depends on the nature of each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained…Officers and soldiers are under no special privileges and subject to no special responsibilities as regards the principle of the law.' The Report felt that the force used by the soldiers was reasonable in the circumstances. It recommended that the law on the suppression of riot should be consolidated and codified. Forsyth,n 5,196 (quoting a Legal Opinion of 1824) 'If the military, obeying the lawful commands of the magistrate, be so assailed that resistance cannot be effectually made without sacrificing the lives of the rioters, they would in law be justified in so doing. It is obvious, therefore, that each case must depend upon its own circumstances, and that the only rule that can be given is that the force, to be legal and justifiable, must in every instance, as far as the infirmity of human passion will admit, be governed by what the necessity of the particular occasion may require.' See also Holdsworth, n 55, vol 10, 709-13 and n 19, 130. www.ccsenet.org/ilr International Law Research Vol. 1, No. 1; It is a right paramount to all law, and which the law of every civilised country recognises -that life may be protected or crime prevented by the immediate application of any amount of force which, under the circumstances, may be necessary. 252 This most basic prerogative -founded on necessity (salus populi suprema est lex -the safety of the people is the supreme law) -originated (at least) from Anglo -Saxon times when all able-bodied men could be summoned by the sovereign to fend off foreign invasion or internal rebellion. It was part of the 'three necessities' (trinoda necessitas) imposed on the same. 253  The prerogative to act in the case of emergency is a sub-set of this most basic of Crown prerogatives -the right of the Crown to call on its citizens to protect society (the common weal). And, doubtless, one specific aspect of both of these prerogatives is the prerogative of the Crown to impose martial law. However, the former does not necessarily involve the latter -which is why they must be distinguished;  Even in olden times, in the case of riots or emergencies, martial law was not necessarily imposed. It was only imposed by the Crown (by way of proclamation or commission) in rare situations. Thus, if the Crown prerogative to impose martial law is abolished, this will affect these other prerogatives only to the (very limited) extent they embrace martial law. It will not prevent, for example, the military being called in to quell domestic disturbances; or the right of the Crown to requisition ships etc.
Finally, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR), incorporated into English domestic law by the Human Rights Act 1998, art 2(2)© provides: (1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. (italics supplied).
Thus, art 2(c) justifies the use of force (including, where necessary, the deprivation of life) in order to quell riots or insurrections (rebellions) and the ECHR does not treat the same as martial law.
In conclusion, martial law is a sub-set of two wider Crown prerogatives -to take measures to deal with emergencies and to maintain the peace. 254 However, the latter have been (invariably) exercised down the centuries, in most cases, without the need to also invoke martial law -which is restricted to the application of military law to civilians. As it is, the ECHR does not treat the application of force needed to quell riots or rebellions as martial law. Finally, the Crown prerogative to impose martial law has, in modern times, been superceded (it is asserted) by legislation. This is now considered.

Emergency Powers Act 1920 (rep)
In the 20 th century, legislation was enacted to deal with emergencies -such as to almost obviate the need to resort to any Crown prerogative to impose martial law in any case. Thus, the Emergency Powers Act 1920, s 1(1) provided that -if it appeared to the sovereign that events of a specified nature had occurred -or were about to occur -he 251 Finlason, n 19, 73 'There is no prerogative of the Crown so ancient, so important, and so undoubted, as that of preserving the peace of the realm. It is one of those things which prove themselves, which rest on first principles, and arise out of a manifest and unavoidable necessity. It lies at the very origin of society, and is the main object for which Government exists, and the law was established…It is ...the first and most sacred duty of the Crown, and it was its earliest and most important prerogative, for it involves, as a necessary consequence, the prerogative of levying war, or using armed force, if necessary, for the purpose.' 252 Brand & Nelson,n 37,85. See also Forsyth, n 5, p 553 (martial law applied improperly to the right of Crownto repel force with force). 253 Hallam, n 5, vol 2, 132, 'By the Anglo-Saxon laws, or rather by one of the primary and indispensable conditions of political society, every freeholder, if not every freeman, was bound to defend his country against hostile invasion. ' Ibid,In the imminent peril of hostile, in the case of intestine rebellion, there seems to be no room for doubt that the king, who could call on his subjects to bear arms for their country and laws, could oblige them to that necessary discipline and previous training, without which their service would be unavailing.' Childers (n 213), at p 14 per O'Connor MR 'Suprema lex, salus populi must be the guiding principle when the civil law has failed. Force then becomes the only remedy, and those to whom the task is committed must be the sole judges how it should be exercised.' 254 A good way (one would suggest) to perceive this is to compare these prerogatives to a Russian doll. The largest is the Crown prerogative to maintain the peace. Inside it, is a lesser prerogative to act in the case of emergencies. And inside it, is a prerogative to impose martial law. www.ccsenet.org/ilr International Law Research Vol. 1, No. 1; might, by proclamation, declare a state of emergency. 255 The events envisaged were those of such a nature as to be calculated -by interfering with the supply and distribution of food, water, fuel or light, or with the means of locomotion -to deprive the community (or a substantial portion of it) of the essentials of life. 256 Once an emergency had been declared, it had to be communicated to Parliament who must sit. 257  Further, the Act provided that, where a proclamation had been made, regulations might also be made 258 which might confer (or impose) on a Secretary of State (or other Government department or any other person in the service of the Crown or acting on behalf of the Crown) such powers and duties as the Crown might deem necessary for, inter alia, the preservation of the peace and other purposes essential to the public safety and life of the community. 259 However, such regulations might not impose any form of compulsory service or industrial conscription; 260  Regulations might also provide for the trial of civilians by courts of summary jurisdiction. The maximum penalty was imprisonment for 3 months or a fine not exceeding level 5 on the standard scale or both. 261 The Act provided that the existing procedure in criminal cases was not to be altered; nor was there to be any fine or imprisonment without trial. 262 This legislation -replaced by the Civil Contingencies Act 2004 (see below) -is useful since it indicates that -even in emergencies -the legislative intent, since 1920, has been to use criminal courts of summary jurisdiction -and not military courts or tribunals -to try civilians. Since this Act specifically refers to trying civilians in such courts, it supersedes (to the extent of the application of the Act) any attempt to try civilians in military courts pursuant to the exercise of the Crown prerogative.

Emergency Powers (Defense) Acts 1939 & 1940
Separate to the above Act, during World War II , power was granted under the Emergency Powers (Defence) Acts 1939 and 1940 to establish special civilian courts for the trial of offenders in areas within the UK where -by reason of actual (or apprehended) enemy action -the military situation might be such that criminal justice could not be administered by the ordinary courts. The power was never exercised and it expired on 23 Feb 1946. 263 This legislative power also manifests a clear legislative intent to use special civilian courts to try civilians -even during wartime -obviating any need to resort to a Crown prerogative to invoke martial law in order to submit civilians to military courts.

Civil Contingencies Act 2004 264
This Act covers emergencies. It is wider in ambit that the Act of 1920 (see 7.1 above). It defines an emergency 265 to include war and terrorism. 266 In an emergency, regulations can be made without a state of emergency having to be declared -or Parliament having to agree to the same -although there is an opportunity for Parliament to consider any regulations made thereunder. 267 The ambit of these emergency regulations is extensive 268 and they include the power to confer jurisdiction on a court or tribunal, including one established pursuant to the regulations. 269 The regulations can also create new criminal offences arising from a failure to comply with the regulations. However, s 23(4) of the Act provides that such regulations may not create a criminal offence other than one which:  is of the kind described in section 22(3) (i); 270  is triable only before a magistrates' court; or  is punishable with imprisonment for a period exceeding three months (or a fine exceeding level 5 on the standard scale); or  will not alter procedure in relation to criminal proceedings.
Further, such offences may not contravene the Human Rights Act 1998 (see below) or require a person (or enable a person) to provide military service. The net effect of all this -it is asserted -is to replace the need to rely on any Crown prerogative to impose military law on civilians in wartime -including subjecting civilians to military courts. This Act has effectively supplanted it, since it specifically covers 'war' and -more importantly -it provides for civil courts to deal with criminal offences arising out of emergency and war time regulations. Thus, this legislation (like the others discussed) effectively rules out (as well as the need for) military courts judging civilians even in war time.

Human Rights Act 1998
Finally, there are various articles of the ECHR (articles 5-7) which militate against martial law, since the latter is unlikely to satisfy their requirements. Article 5provides, inter alia: (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) The lawful detention of a person after conviction by a competent court; (b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on suspicion of a having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (2)… (3) Everyone arrested or detained in accordance with the provisions of paragraph 1 v of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Article 6 provides: (1) In the determination of…any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly… (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty; (3) Everyone charged with an offence has the minimum rights: 269  (a) To be informed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) To have adequate time and facilities for the preparation of his defence; (c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7 provides: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
The trial of a civilian by a military court during peacetime would not likely meet a number of these requirements:  Article 5 provides that a person shall not be derived of their liberty unless in respect of the 'lawful arrest or detention of a person…for the purpose of bringing him before the competent legal authority on suspicion of a having committed an offence'. Further, such person must be 'brought promptly before a judge or other officer authorised by law to exercise judicial power'. He must also be tried before 'an independent and impartial tribunal established by law;'  A military tribunal will only be a 'competent legal authority' if the Crown proclaims it as such, pursuant to martial law. 271 So too, the authority of any military personnel to exercise 'judicial power' since military law does not otherwise provide for the trial of civilians by court martial. However, since martial law is 'no' law and military tribunals summoned under martial law are no 'courts' (as established by cases of high English authority, see 5.2.1 & 5.2.2), it is dubious whether they can be argued to exercise 'judicial' power. Instead, they are exercising a non-judicial power 'on the field of battle' as it were, where force and not law prevails;  Article 6 requires 'an independent and impartial tribunal established by law.' In the case of a military court, military officers -untrained in law and assembled to dispense summary justice -will be unlikely to be 'independent and impartial'. Indeed, they will be likely judging persons who have perpetrated (or intended to perpetrate) acts of violence against them and, thus, be emotionally involved. Further, it is unlikely that the conditions of Article 6(3) as to the trial process will be met.
In conclusion, it is unlikely the trial of a civilian by a military tribunal under martial law in peacetime would satisfy the above articles of the ECHR. As to war time or great civil commotion, Article 15 provides: (1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law; (2) No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1), and 7 shall be made under this provision; 272

Abolishing the Crown Prerogative to Impose Martial Law
Today, martial law can only comprise a reference to military law 273 being imposed on civilians. 274 The Petition of Right 1627, section 8 prevents martial law being imposed on civilians in peacetime, which includes all riots and civil disturbances. Thus, today, at most, the Crown only has a prerogative to impose martial law on civilians in war time and when the courts are not otherwise open. War time would cover both foreign invasion and civil war. The essential issue, therefore, is whether the Crown should have and/or needs this prerogative. In the past, subjecting civilians to martial law was, principally to enable the Crown: (a) To impose the death penalty in circumstances not otherwise permitted by the common law. This is no longer relevant since the death penalty has been abolished for all purposes anyway; (b) To subject civilians to harsher military punishments (whipping etc). 275 This is also no longer relevant since they have long ended; (c) To try civilians in military courts -mainly to enable (a) and (b) to be applied. 276 Thus, the main purposes of subjecting civilians to martial (military) law in the past no longer apply. Be that as it may, one would assert that such a draconian power has no place in a modern democracy and that -if ever required in the future -it should be applied by Parliament and not by the Crown and unaccountable Crown servants. The following may also be noted:  Legislation in 1920 and World War II -as well as the Civil Contingencies Act 2004 -envisaged (and envisages) civilians being tried in civil courts and not military ones -even in war time situations. The latter, in particular, supplants the application of any Crown prerogative to impose martial law with the intent to subject civilians to military courts;  The Crown prerogative to impose martial law does not apply where the king's criminal courts are open.
Thus, it was not required in two World Wars, the courts remaining open. There is no reason to envisage any change in any future wars and -if the courts do have to close because of fighting -Parliament can make provision for military law being extended to civilians if required;  The history of the implementation of martial law by the Crown down the centuries has been uniformly dreadful since it was grossly extended beyond the general premise that courts (per force) cannot sit on battle fields. Its extension to permit the military to try (and execute) rebels off the field of battle -often without trial or a perfunctory trial -was not law but savagery which has no place in modern society. English history provides vivid proof that -where the usual criminal courts abstain or are too scared to protect the rights of civilians and leave them to military personnel -the inexperience of the latter (and, doubtless, a high degree of emotionalism) has resulted in the gross abuses of human rights and no impartial trial. 277 273  In conclusion, there are no good grounds for subjecting civilians to martial law during war time and -if it is ever were required -Parliament, and not the Crown, should impose this. As it is, the right to impose martial law is, ultimately, based on a very flimsy ground, summed up in the maxim said to have been contained in the final paragraph of the Roman Twelve Tables: Et silent leges inter arma [and amidst the clash of arms the laws are silent] 278 As with all maxims this is pithy and memorable. However, as with many maxims in the legal context, it is also a tabula in naufragio (to use another maxim). Further, it betrays a lie -that the law, must be, in the end, subservient to war. However, as with many maxims one would suggest there is a better -and a greater one -more suitable to modern times. One on which civilised society and democracy has been built. Fiat Justicia! Let justice be done! Thus, it is absolutely essential, in a modern democracy, that civilians should be tried fairly and impartially in their own courts -even at personal risk to the lives of criminal judges themselves. The courts should remain open to the last -even when all the other bulwarks of democracy topple and fail. This should have happened in Ireland in the 1920's. Mercifully, it did during the Troubles. 279 Otherwise, civilians are exposed to a military justice which history has vividly proved can be wholly arbitrary, summary and unjust. What would be the consequences of abolishing the Crown prerogative to impose martial law? Very few, for the following reasons: (a) Martial law is severely restricted in ambit anyway, only applying in war time and when the courts are not open. However, the Civil Contingencies Act 2004 makes provision for the use of civil courts to try civilians even during war. In any case, Parliament could legislate to apply martial law, if so required; (b) It would only affect the other Crown prerogatives to act in an emergency and to maintain the peace to the extent of (a). 280 This is negligible, in practice, since martial law has not been imposed in England since 1627 (with a few exceptions up to 1688).
Abolition of this Crown prerogative would also clear out a large amount of bad law. And it would make re-dress for the fact that -at various periods in English history -the courts failed to protect the rights of civilians when they most needed their aid.
In conclusion, the Crown prerogative to impose martial law is obsolete and unnecessary. The imposition of military law on civilians is too detrimental to human rights to be left to so uncertain a prerogative. It should be abolished and -if ever required in future -it should be left to Parliament to curtail one of the most fundamental liberties of the individual -the right to be tried in the king's courts by the general laws of the realm.

Crown Prerogative to Impress Subjects in the Case of Sudden Invasion or Dangerous Rebellion 281
Halsbury states: The Crown may also demand, and is entitled to, the personal services of every man capable of bearing arms in case of sudden invasion or dangerous rebellion, but except on such occasions it has no power, unless such a power is conferred by statute, to compel enlistment.(italics supplied) 282 The authority for this proposition is scant. Further, it is an unwarranted extension of the Crown prerogative to forcibly impress subjects for the navy -which prerogative has never been abolished although it is clearly obsolete. This proposition of Halsbury derives from an observation made by Sir Michael Foster in Broadfoot (1743)  I think the Crown hath a right to command the services of these people [ie. to impress mariners into the royal navy], whenever the public safety called for it. The same right that it hath to require the personal service of every man able to bear arms in the case of a sudden invasion or formidable insurrection. The right in both cases is founded on one and the same principle, the necessity of the case in order to the preservation of the whole. 284

(italics supplied)
A note to this in the English Reports states: This personal service in cases of extreme necessity is a principal branch of the allegiance every subject owes to the Crown. 285 Thus, to Foster, the rationale for impressing subjects (that is, compulsorily conscripting them into the armed forces) in the case of 'sudden invasion' or 'formidable insurrection' (which Halsbury re-translates as 'dangerous rebellion') was analogous to the right to impress sailors (mariners) into the royal navy. And that both were predicated on the principal of allegiance to the Crown -as well as the need to preserve public safety. Prior to considering whether the Crown still requires such a prerogative, it is important to note that the legal basis for the Crown prerogative to impress mariners into the navy -as well as to impress male subjects to become soldiers -is flimsy. As a result, to claim that there is a general right of the Crown to impress any British subject who is an 'able bodied man' (but not woman or child) capable of bearing arms is -quite frankly -dubious. It may have been correct in Anglo -Saxon times, when there was a general obligation of trinoda necessitas, 286 but not today -and not after 1688 when the realm had a permanent standing army to deal with invasions and rebellions.

Impressing Sailors into the Royal Navy 287
In Broadfoot (1753), in respect of the legal right of the Crown to impress mariners into the navy, 288 Foster admitted there was no legislation in force which permitted it 289 nor any case in point. 290 Instead, he based his argument on 'immemorial usage' at common law -a usage, itself, based on public policy and the defence of the realm. In support of this immemorial usage, Foster referred to mandatory writs and commissions dating from the time of Edward III (1327-77). 291 A previous article has considered in detail the validity of this argument 292 and it is not necessary to re-hearse it in detail. Suffice to say that the impressment of sailors (mariners) for the navy, which was bitterly resented over the centuries, was abandoned after 1814, nearly 200 years ago. 293 Also, as long ago as 1859, a Royal Commission report on the Manning of the Navy stated: The evidence of the witnesses, with scarcely an exception, shows that the system of naval impressments, as practised in former wars could not now be successfully enforced. 294 Thus, the Crown's chances of successful arguing that it retains a general prerogative to forcibly conscript male civilians -some 200 years after it gave up the attempt to do so in the case of civilian sailors -is remote. If ever required, legislation is appropriate -as was used to conscript civilians into the armed forces in World War I  and World War II . 295

Impressing Subjects into the Army
Whether the Crown ever had the right to press British subjects into the army is dubious. Chitty, writing in 1820, thought not. 296 For his part, in Broadfoot (1743), Foster did not specifically deal with the legal basis for impressing subjects into the army. 297  Foster did refer to several pieces of legislation of an early date (now repealed) which (he said) referred to the practice of pressing soldiers for foreign service. 298 Also, to the pressing of soldiers for service in Ireland. 299 However, these instances are not relevant to the present case since they were the result of legislation and not the exercise of the Crown prerogative;  It seems clear Foster was also dubious whether impressment for land service ever existed, due to the system of military tenure which prevailed, at least, since the Norman Conquest in which land was held of the Crown in return for providing military service (see 1). This system ended in 1660; 300  This prerogative is far too extensive and nebulous to be legally sustainable. What invasion is 'sudden' and what not? What rebellion is 'dangerous' and what not? Thus, the prerogative should be restricted to warincluding civil war. However, in the case of the latter, the Crown forcibly conscripting men to fight against their fellow countryman would only likely exacerbate the situation -and there is no precedent. Also, how can the courts determine the legitimacy of this prerogative and whether its terms are satisfied? 301 As to any Crown right to press in the case of war time or dire necessity, an Act of 1640(repealed) states that: Whereas by the laws of this realm none of his majesties subjects ought to be impressed or compelled to go out of his country to serve as a soldier in the wars except in the case of necessity or the sudden coming in of strange enemies into the kingdom or except they be otherwise bound by the tenure of their lands or possessions. 302 (italics supplied) The words in italics are otiose since military tenure was abolished 1660. Further, in the case of impressment of subjects into the army by virtue of legislation, this ended in 1780. 303 So, was there ever a Crown prerogative to impress subjects into the army?  One would suggest the answer is 'no' -which is why legislation was employed in the few cases this occurred. Therefore, the statement in Halsbury that there is a Crown prerogative to impress any British man capable of bearing arms in the case of 'sudden invasion or dangerous rebellion' 304 is based on little more than the observation of Foster that this prerogative can be exercised in the case of 'sudden invasion or formidable insurrection', itself unsupported save in respect of an Act of 1640 (now repealed) which (it appears from the context) to refer to the obligation of soldiers (not civilians) to serve abroad in the case of 'necessity or the sudden coming of strange enemies into the kingdom';  Further, when there were rebellions within the realm in the past (see 2) there appears to be little, or no, evidence of the Crown forcibly enlisting men (tenure, indenture and commissions of array being relied on). 305 And after, 1689 when there was a standing army, professional soldiers were used to deal with the Jacobite uprisings of 1715 and 1745.
Thus, it is doubted whether the proposition of Halsbury that the Crown has a prerogative to compel the forcible enlistment of civilians in times of sudden foreign invasion, or internal rebellion, holds water. In any case, today, it is unnecessary and would likely be wholly ineffective in practice. For example, if the United Kingdom was suddenly invaded and the military proved ineffective (as well as, one assumes, the police and voluntary enlistees) is it credible that the Crown could force able bodied men to take up arms against their will? One thinks not -not least because the legal right of the Crown to so act is so uncertain. 306 As it was, in two World Wars, legislation provided for conscription and not reliance on any Crown prerogative.
In conclusion, any Crown prerogative to impress male subjects in the case of 'sudden invasion or dangerous rebellion' should be abolished. It is unnecessary and the matter should be left to legislation if ever required.

Crown Prerogative to Billet 307
The word 'billet' -which derives from the French word meaning a 'note' -is a military order to the recipient to provide board, and lodging, for military personnel. 308 In early medieval times, it was also common for officials of the king's household and important foreign visitors to be billeted in the homes of citizens in the City of London, During the continuance in force of this Act, so much of any law as prohibits, restricts, or regulates the quartering or billeting of soldiers on any inhabitant of the UK without his consent is hereby suspended so far as such quartering or billeting is authorised by this Act. 317 The unpleasantness to ordinary citizens of having soldiers billeted on them ended by 1688 since billeting was then restricted to inns etc. 318  Current legislation, the Army Act 1955, suspends the prohibition in the Petition of Right 1627 -although this is not strictly necessary since the Petition was designed to cover the billeting of 'soldiers' and 'mariners' on private citizens and the Army Act 1955 ( as well as the Air Force Act 1955) 319 restricts billeting to inns etc. 320 Similar powers are available to the naval authorities so long as the billeting provisions of the Army Act 1955 are in operation; 321  The provisions in the above Acts are of no effect until it appears to the Secretary of State for Defence that the public interest so requires and he makes an order directing that these provisions are to come into force. 322 The provisions remain in force for only one month. However, they can be extended by a resolution of each House of Parliament that the same is required in the public interest. 323 Thus, is the Crown prerogative to billet still required? One would argue not, for the following reasons:  Legislation now covers the billeting of soldiers, sailors and air force personnel. Thus, the Crown prerogative has been superceded in respect of the first two -and it probably never applied to air force personnel in any case (the air force being only established in 1918, long after billeting was no longer utilised in practice); 324  The armed forces now occupy extensive military accommodation and so billeting is no longer required. If billeting were ever required in the future, the Secretary of State for Defence can rely on legislationalthough it is most unlikely inns and pubs would ever need to be availed of (or be of much use). Doubtless, these legislative provisions could be supplemented by emergency powers legislation, if required.
In conclusion, the Crown prerogative to billet members of the armed forces on the general public should be abolished. This would enable the repeal of the provision in the Petition of Right 1627 which prohibits the billeting of soldiers, or mariners, on citizens.
In the body of your petition, you usurp upon our royal prerogative, and meddle with things far above your reach. 325 It is unlikely the Queen would use such words today. Rather, one suspects, like the House of Commons, 326 she would welcome the modernisation of the law on the Crown prerogative as well as the abolition of obsolete ones. In this article the conclusion may be stated simply:  The Crown prerogative to impose martial (military) law on civilians -whether in peace or war timeshould be abolished since: (a) exercise of the same in peacetime is illegal as result of the Petition of Right 1627, s 8 (which section would be interpreted, today, to cover all riots and rebellions not amounting to civil war); (b) the exercise of the same is prohibited in war time unless the criminal courts are not open; (c) legislation now covers the field since -even in the case of (b), the Civil Contingencies Act 2004 (and earlier legislation, now repealed) provides for civil courts to be established to deal with criminal offences, and not military courts; (d) in any case, the purpose of subjecting civilians to military law -to impose the death penalty and harsher punishments -has gone, both having been abolished;  The Crown prerogative to impress (ie. forcibly conscript) subjects into the army or navy should be abolished for the following reasons: (a) such a prerogative was dubious anyway; (b) impressing in the navy ended after 1814; (c) impressing in the army by virtue of prerogative -even it existed -ended before 1688 (it ended in 1780, when pursuant to legislation); (d) in both World Wars, legislation was used, rather than reliance on any Crown prerogative;  The Crown prerogative to billet members of the armed forces on the public should be abolished, since legislation now covers the field.