American hflilitary Law 111 the Light of the First Mutiny Act's Tricentenniai

Authorby Colonel Frederick Bernays Wiener, AUS (Retired)

Why do we celebrate an old English statute m Chariottesville, Virginia, the home of the man who articulated in the Declaration of Independence the reasons why the United States of America should no longer be subject to English sovereignty?

Why does the mstitutmn that trains the United States Army's lawyen observe the enactment of Engluh legislation that neither in. itiated courts-martial there nor first regulated their proceedings, and which for over a century has never reappeared on the En@h statute book?

What, then, E the sigmficance of England's Fimt Mutiny Act, a measure that became effective on April 12, 1689, just three hundred years ago today, to American military law and to American history generally?

Those are the questions that I shall be addressrng m this article


    We encounter the first manifestation af military law in England soon after the appearance of the first text qlarnmg the then reeently formulated English common law. That tat, known as Olanvill, was composed around 1189.L But not very long after that, during the Yorkshire eyre of 1218-1210, It was recorded that Serio, charged with maiming Thomas, "denies definitely that Thomas was ever maimed through him, on the contrary he lost his hand in the war by judg- 'This amcle 1% SA expanson of SA addreu delivered at The Judge Addroeate Genemi's

    School. Chaiiattenvdle, llrmla. onlprll 12. 1889 the 3Wfh annlieaaryofthe Finf Mutiny Act

    Seedleis 10 !ab, all ~pinians expressed are penonai to the willel who howeuer, riahei to acknowledge the inialuable _s~stance extended dunng the preparation of this ~ a ~ e r by LTC Timothy E Naccarala and XU Patrick U Liaoaikr, both af the facult5 of The Judge Adrocate General I School by MAJ Alan D Chute Editor of the .Wclzloiy Low Reaiev, and by James Stun-Smith Erq , C B Q C , The Judge Advocate General of the Forces in Great Bntain

    LL B , Haward Lnlv, 1830 LL D , Cleveland Manhall s include Bnefing and .Arguing Federal Appeal. (1061) Clilllani tinder Mlhtw Justice (1967). and many other publications on legal. milllaw and historical subjects

    'hactalui de lepbus et canruefudinibus mgni Angliae qui Glanvilla iocafur, at xxx. xxxl (G DG Hall ed 1965)


    ment of the marshal of rhe amy far a cow which he stole m a churchyard."2

    Skipping to the sixteenth century3. we know that, as has recently been demonstrated, a host of military hooks were then published in England.' Dunng the reiw of the first Queen Elizabeth, her troops in the Low Countries were attended by a clergyman and member of Doctors' Commons who served as therr 'iudge Martiaii " This worthy published in 1593 a text on the functions of that office, which espoused as the preferred method of pretrial procedure "where presumptions are sufficient. and the matter heinous,'' examination "by racke or other paine'lS Thus Dr. Matthew Sutcliffe. some time Archdeacon of Tauntan, Dean of Exeter, and Provost of the "College at Chelsey, stands as the first m a long line of those who today are colloquially characterized as "iron-pants judge advocates''e

    The laws of war remained in the civilians sphere for centuries. and in the English Civil War members of Docton' Commons served as judge advocates both 111 the ParUamentary Amy and in the Klng's.' while both forces were governed by very similar 4rticles of WarB After hostilities ceased, and the Commonwealth and Protectorate were followed by the Restoration. the standing army was iimited to garrisons and the King's guards.O But the 1628 Petition of Right had declared that military law (then called martial law) was nor permitted in time of peace, when the Kmg's courts were open for all persons to receive justice according to the laws of the land?O Thus courts^ martial of even undoubted soldiers were deemed illegal consequent^ ly, mutiny in time of peace was considered cowuzant only by a com- 'Rollrof the lusueei in Elre forlorkrhin 1218-10, arJ10-11 ID\[ Sfmfon ed 1917 Selden Sur, 561 Vo 851


    mission of oyer and terminer:' while desertion, despite some contemporary doubts, was in fact treated as a common law felony without benefit of clergy that was triable by a jury and before the judges of the common lawJ2

    In 1688 William of Orange was invited to England after the conduct of his father-in-law James I1 had become int01erable.l~ The Glorious Revolution of the year was a virtually bloodless event. But soon after William and Mary were recognized as the new King and Queen, a Scots regiment of James's army, led by Lord Dumbarton, refused to follow the new monarchs' orden, declaring James to be their kin^?^ Promnt action was necessarv. and Parliament resoonded with tKe Mutiny Act ofon April

    1689, passed on March 28th and effective

    The preamble to this measure, the Tncentennial of which we celebrate today, sets forth the dilemma then facing English lawmakers.

    And whereas nae Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law, or in any other manner than by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme. Yet nevertheless it being requisite for retainemg such Forces as are or shall be raised dureing t h ~ ~ wenee of Aff-s m themDuty an exact Discipline be observed. And that Soldiers who shall Mutw or Stirr up Sedition, or shall desert Their Majestyes Service be brought to a more exemplary and speedy Punishment then the usual1 Forms of Law will allow:

    With the passage of this Act of ten sections, which was to be m force for only six months, the constitutional as distinguished from the institutional history of the British Army begins.l' There was no

    watenhed dividing old and new pmcedures. To the contrary, the form of coun-martial proceedings prior to 1689 differed hardly at all from those conducted later" But henceforward there could be no doubt of the legality of such trials.

    At first the penodic renewal of the Mutiny Act regularly encountered, in view of its arimn, articulate opposition from the Jacabites?B But m due course, as Maitland wrote a century ago, "[)It becomes always clearer that there must be a standing anny and that a standing army could only be kept together by more stringent rulesand more summary procedure than those of the ordinary law and the ordinary co~rts.''~~

    The Mutiny Act still needed to be renewed every year, however At first this was because the memones of Cromwell's Amy were still vivid; this was the force that had overshadowed and whose major-generals had supervised local government.21 After the Glorious Revolution and the Act of Settlement, those memories faded into mere recitals, developing, however, into a continuing convention of British public law that required the Army to be legitmated annually, or, in Blackstone's words, "the annual expedience of a standing

    The last Mutmy Act, passed in 1879, contained 110 sections, and the last Articles of War numbered no less than 187.23

    Yet every eompany commander was required to familiarize himself with the detalls of both. In that year, Act and Articles were combined into a single piece of But, to ensure compliance with what then had become a constitutional tenet, that permanent enactment needed to be brought into operation annually by another Act of Parliament Thus, once more to quote Maitland, "the principle u1 still preserved

    "Clode. 11 L mpra note 8, at 5 12 (lit ed 1872) See, for the earherpmel~ce.


    M L , supm note 8, at ch I(2d ed 1874) C Waltalton myro note 16, at 536 and ch XXY1.C Cruielwhank Elv.~kfh'sAmy(2ded 1866) C hnh. CromwellsAmy14fh ed 19621

    "Clode. M L , supra note 9,sf IS, 1 Clode. M F, supro note 6 aT 151.53 2 I

    Fonescue A History af the British Amy 11899 1930) 18 20. 261 562

    Is F Unflmd The Comtnutmnd tbstory of England 325 11808) (po4rhwnous publica-tion of B series af lectures actually delnered in 1888)x Eg G Davies. The Early S u a W 1603-1660. at ch X (2d ed 18601z'ld 81 178-80 182, 306 C HdI. The Century of Rev~Iution 1603-1714 at 115-17, 136-38 188.90 118611

    ""4 81 Comm '434'841 Ylcf ch 10. 42 Ylct eh 4 see Clnlian~ sup" note 7. at 215 "Tlwllans, myro note 7 at 215-16 231*$Id at 215-16 235 374


    that the army shall be legalized only from year to year.""

    Indeed, it was not until 1855 that the British Army could be legitimated for five years at a time.2' At the moment, under the provisions of sections l(3) and l(4) of the Armed Forces Act 1986, such legitimation may be extended to the end of the year 1991 by Orden in Council, the drafts of which have been approved by resolutions of each House of Farliarnent.z8

  2. THE BEGMNINGS OF AMERICAN MILITARY LAW It IS now time to cross the Atlantic and to turn to 1775, the year of Lekiwon, Concord, and Bunker Hill, the year when the Continental Congress selected George Washington to command "the forces raiased 01 to be raised for the defense of American liberty;'lo the year when WWam Tudor became the first "Judge Advocate of the Almy."~O

    Let it always be remembered, as we approach this part of the nar. rative, that the leaders of the American Revolution were really not very revolutionary after ail To begin with, they retained the English language. Unlike the Irish Free State a century and a half later, they did not mark their new found freedom by optmg for Gaelic. Nor did they seek to substitute any other language for their mother tongue. Next, they retained the common law. Not until Louisiana was ac-quired by treaty in 1803 was there ever any vestlge of civil law on American sail, nor until the Southwest was taken from Mexico in 1848 was the doctrine of community property recogmized anywhere in the United States. Third, they retained the English system of representative government, one that continues nationally as well asin all of today's fifty states. And, finally, they adopted virtually verbatim the British system of military law,

    Americans had...

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