The Petition neither affirms nor denies the legality of martial law in time of war; although its advocates were agreed that at such a time martial law would be applicable to soldiers.
4.

A war carried on at a distance from the English shore as was the war with France in 1628, did not produce such a state of things as was described by the advocates of the Petition as "a time of war." "We have now no army in the field, and it is no time of war," said Mason in the course of the debates.

"If the Chancery and Courts of Westminster be shut up, it is time of war, but if the Courts be open, it is otherwise; yet, if war be in any part of the Kingdom, that the Sheriff cannot execute the King's writ, there is _tempus belli_," said Rolls.
I am, Sir, your obedient servant, T.E.HOLLAND.
Oxford, December 31 (1901).
THE PETITION OF RIGHT Sir,--In a letter which you allowed me to address to you a few days ago, I dealt with two perfectly distinct topics.
In the first place I pointed out that the words occurring in a recent judgment of the Privy Council, which were cited by Mr.Jenks as a clear example of an assumption "that the Petition of Right, in prohibiting the exercise of martial law, restricted its prohibition to time of peace," imply, as I read them, no assumption as to the meaning of that document, but merely contain an accurate statement of fact as to the line of argument followed by the supporters of the Petition in the House of Commons.

Can Mr.Jenks really suppose that in making this remark I was "appealing from the 'text of the Petition' to the debates in Parliament"?
I then proceeded to deal very shortly with the Petition itself, showing that while it neither condemns nor approves of the application of martial law in time of war (see Lord Blackburn's observations in R._v._ Eyre), the prohibition contained in its martial law clauses, so far from being "absolute and unqualified," relates exclusively to "commissions of like nature" with certain commissions which had been lately issued (at a time which admittedly, for the purposes of this discussion, was not "a time of war"), the text of which is still preserved, and the character of which is set forth in the Petition itself, as having authorised proceedings within the land, "according to the justice of martial law, against such soldiers or mariners," as also against "such other dissolute persons joining with them," &c.

The description of these commissions, be it observed, is not merely introduced into the Petition by way of recital, but is incorporated by express reference into the enacting clause.
Thus much and no more I thought it desirable to say upon these two topics by way of dissent from a letter of Mr.Jenks upon the subject.