Note 158 — Chapter XV · ON THE REIGN OF WILLIAM III.

It is expressly against the petition of right, to quarter troops on the citizens, or to inflict any punishment by martial law. No court martial, in fact, can have any coercive jurisdiction except by statute; unless we should resort to the old tribunal of the constable and marshal. And that this was admitted, even in bad times, we may learn by an odd case in Sir Thomas Jones's Reports, 147 (Pasch. 33 Car. 2, 1681). An action was brought for assault and false imprisonment. The defendant pleaded that he was lieutenant-governor of the isle of Scilly, and that the plaintiff was a soldier belonging to the garrison, and that it was the ancient custom of the castle, that if any soldier refused to render obedience, the governor might punish him by imprisonment for a reasonable time; which he had therefore done. The plaintiff demurred, and had judgment in his favour. By demurring, he put it to the court to determine, whether this plea, which is obviously fabricated in order to cover the want of any general right to maintain discipline in this manner, were valid in point of law; which they decided, as it appears, in the negative.

In the next reign, however, an attempt was made to punish deserters capitally, not by a court martial, but on the authority of an ancient act of parliament. Chief-Justice Herbert is said to have resigned his place in the King's Bench rather than come into this. Wright succeeded him; and two deserters, having been convicted, were executed in London. Ralph, 961. I cannot discover that there was anything illegal in the proceeding; and therefore question a little Herbert's motive. See 3 Inst. 96.