The practice, proceedings, and lawes of armes described out of the doings of most valiant and expert captaines, and confirmed both by ancient, and moderne examples, and præcedents, by Matthevv Sutcliffe.
Sutcliffe, Matthew, 1550?-1629.
Page  339

CHAP. XXI. Part 9. Wherein certaine orders are conteined concerning the execution of Lawes and administration of iustice.

1 THat the auctours of disorders may be detected and punishment awarded accordingly, it shalbe lawfull for the iudge Marshall, or others that haue commission from the Generall, or lorde Martiall to do iustice, to enquire of the auctours, and circumstances of offences committed, by the othes of such, and so many as they thinke conuenient, and shal further vse all meanes for examination, and triall of persons accu∣sed, dilated, suspected, or defamed.

2 All causes and controuersies arising betweene Captaines, and souldiers or others within the campe, or townes of garrison, shalbe heard and discussed summarily, and execution done accor∣ding to military lawes without appeale or relation, vnlesse ye great∣nes of the cause, or other circumstance require stay, or deliberation.

3 If any Captaine, Gentleman, or souldier declare or make his testament, or last will of goods he hath in campe, or fortresse, or which he hath gotten in seruice, the same shall be enrolled in the iudge Martials office, and executed by those that are named exe∣cutors: if no will be made, then shall his goods descend to his next kinred, or wife if he haue any. If he haue none, or if none come to demaund his goods, within one yeere: then shall his goods be be∣stowed on the poore souldiers of the regiment, or company, the di∣uision being made by two or three deputed to administer them.

4 The Prouost Martiall shal see all iudgements, sentences, and commandements of the General, high Martiall, or iudge Martiall put in execution.

5 Euery souldier, and other person shall assist the Prouost Mar∣tiall, and his Officers apprehending of malefactors, and executing of iustice, vpon paine of imprisonment, neither shall any rescue a prisoner taken, or to be taken for any capitall crime, vpon payne of death.

6 No man shall interrupt or trouble the iudge Martiall or Of∣ficers of iustice, doing their office, but vpon request made shall be ready to assist them vpon paine of imprisonment.

Page  3407 No gaoler nor prison keeper shall refuse to keepe a prisoner committed to his charge, or dismisse him being once receiued with∣out warrant, vpon like paine as hee should haue suffered, that is so dismissed▪ or suffered to escape.

8 Wheresoeuer there is not speciall order set downe in lawes already written, and published, there the ancient course of milita∣ry discipline shall be obserued, vntill such time as the Generall or the Officers appointed for the administration of iustice, cause or∣der to be taken, and by sound of drumme to be published, which shall afterward stand in force.

9 If any that is culpable of any notorious disorder do flie ouer into England, hoping thereby to escape the danger of martiall lawes; the same party vpon request made to the Iustices, Sherifes, Maiors, Baylifes, or Constables, shalbe sent backe to the campe to the Prouost martiall. And euery of them shall doe their endeuour to assist those that are sent for the apprehension of him. But if re∣quest be made for the punishment of him, then shall the same of∣fender be tryed before the Iudges, at the next assises, and by them be punished.

10 Although the warres be ended, yet are those that offend a∣gainst the lawes of armes and during that time are not punished, to be apprehended, and punished according to the same either by the Iudge Martiall, and Prouost Martiall, whose commissions are to be extended so farre, or by the Iudges of the Realme; that notorious faultes doe not passe without punishment.

Annotations.

1 [That the authours &c.] If neither state nor house can stand without iustice; much lesse can any armie be gouerned without it. Most necessary therefore are the lawes of this section: and so much the rather, for that lawe is nothing without execution. But because iustice cannot be executed vnlesse offenders be detected, therefore the first care of those that purpose to proceede orderly, is to finde out the authours of offences, and persons culpable. This is by examination and othe both of the parties principall, as farre as they are bound by lawe to answere, and of witnesses also: further where presumpti∣ons are sufficient, and the matter heinous; by racke or other paine. Page  341The administration of iustice belongeth to the Generall, and lord Marshal, or those to whom they shall giue aucthoritie: where there is no superiour commander, to Captaines ioyning together, as it is euident by our practise, and also by the examples of the Greekes returning from the voyage with Cyrus, whichaappointed certaine Captaines iudges, and gaue them aucthoritie to determine of mat∣ters, and to punish offenders.

2 [All causes &c.] Whether the causes arise of specialties, or other contract, or act, if the parties be in campe or garison, they are there to be heard and determined.

3 [If any Captaine &c.] Many inconueniences do fall out for want of order in this behalfe. The goods of the dead are either lost, or spoyled; yea many poore men lying sicke, and in distresse, are hastened to their endes by those that gape for that they haue: the next friends of the dead haue nothing, fewe are better for any thing they haue. which I thinke would be in part remedied, if order were taken for the bestowing of their goods. Therefore were it good not that any newe inuention, but that old lawes herein should take place. By the lawes of thebRomanes, soldiers goods went to their next kinred: if they had no wife, nor kinred: yet came they not to the Prince, but were bestowed on the regiment wherein they serued. By the lawes ofcSpaine, the pay & reward that is due vnto souldiers at their death, commeth to their sonnes. And howsoeuer practice ouerruleth lawe, yet in this point the lawes of nations require, that mens last willes be perfourmed. The which that they may take effect, nothing is more requisite, then that they be enrolled, and kept in recorde, and inuentaries of their goodes likewise, whether they die testate, or intestate.

4 [No man shal interrupt &c.] The interrupting of iustice is commonly the beginning of sedition, mutiny, and rebellion. There∣fore doe thedSpaniards in their orders, decree such to bee punished with death. But because the interruption may be with wordes one∣ly, or noyse without further matter; the rigour of the lawe is by dis∣cretion to bee moderated. If any doe interrupt the ministers of iu∣stice doing their office, with force and in tumultuous maner, he fal∣leth within the compasse of lawes ordeined against sedition, and mu∣tiny, and in that degree is to be punished.

The rest of the lawes of this section are plaine, & neede execution, Page  342rather then further exposition. Therefore what neede wee seeke for knots in rushes, or looke for stumbling blocks in so playne a way? this is the summe of all, that warres can not be managed without ex∣ecution of military orders, and obseruance of the orderly practice of armes: that maketh our forces effectuall, that mainteineth them, en∣courageth them, and maketh them victorious, victory maketh an end of warres, and assureth vs of peace, if it he followed and vsed. Peace is the end not onely of this labour of mine, but of all their labours that wish the good of their countrey. And therefore to obteine peace, we are to desire him that is Lorde of armies, that once we may see our warres artificially, and iudicially managed. Before which time he that looketh for peace with the Spaniards, vnlesse God doe worke extraordinarily: he neither vnderstandeth what belongeth to peace, nor warre.