Note 22 — Chapter II
Reading edition
“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 continuance: ‘quod enim necessitas cogit defendit.’ Secondly, This indulged law was only to extend to members of the army, and never was so much indulged as intended to be executed or exercised upon others. For others who are not listed under the army had no colour or reason to be bound by military constitutions applicable only to the army, whereof they were not parts. But they were to be ordered and governed only according to the laws to which they were subject.”—Hale’s Common Law of England, vol. i. p. 54.
“The Admiralty Court is not bottomed or founded upon the authority of the civil law, but hath its power and jurisdiction in such matters as are proper for its cognizance. The Court of Admiralty has no jurisdiction of matters or contracts done or made on land; and the true reason for their jurisdiction in matters done at sea is because no jury can come from thence.”—Ibid. p. 51.