The Constitutionality of Military Jurisdiction: A Potential Starting Point

Now that my latest project on the continuing relevance of intermediate military tribunals is just about ready for submission this fall (just some proofreading and Bluebooking), I can spend a little more time musing about military law, history, and society. I have become increasingly interested in the history, and constitutionality, of military jurisdiction over service members, particularly in non-military specific offenses in the absence of a declared war. This led me to Sir William Blackstone’s monumental work on the common law.

In his still influential nineteenth century treatise on military law, Military Law and Precedents, Colonel William Winthrop begins by chronicling the history of military codes from ancient Greece to then-contemporary times. In doing so, he presented military law as a static institution independent of the society from which it emanates. “Military law proper is that branch of the public law which is enacted or ordained for the government exclusively of the military state, and is operative equally in peace and in war.”

It is certainly true that militaries across time share certain customs and traditions. Take the salute for example. Some go palm up, others go palm down. Some use the right arm, others the left. Some go up the “gig line,” others fully extend the arm to the side before bringing the hand to the brow (often painful for the individual standing next to such a person). But all agree it is the customary method to demonstrate respect for an approaching senior ranking officer (other than Robert Redford in The Last Castle, no one really knows where this started, or how). It is less clear, however adherents to this view may disagree, that military societies throughout time, or across contemporary societies, are similarly homogenous (to be fair, my early reading of Jim Locher’s work, Victory on the Potomac, raises the question of the particular military services’ belief in an independent history, regardless of reality).

Instead, it is more likely that military law is, and should be, a reflection of the civilian society within which it exists. The Declaration of Independence, Articles of Confederation, and Constitution of the United States delineate American society’s view toward a citizen’s rights viz a vie the Government. The Founding generation was well educated and well read, but American independence and subsequent society was also an evolution of English history. The Magna Carta, Petition of Right, 1679 Habeas Corpus Act, Bill of Rights, and the Act of Settlement revolutionized the concept of individual rights in English society, which influenced the Founding era’s documents establishing the American Republic. To get a sense of this evolution, I decided to revisit Sir William Blackstone’s Commentaries on the Laws of England, the leading treatise on English common law, a publication highly influential to the understanding of America’s common law’s history.

It is common to see the Commentaries referenced in academic articles and publications, as well as cited by courts as high as the Supreme Court of the United States. But it may surprise some to learn of its history. The Norman conquest brought many new traditions, including the Catholic Church and Canon Law. Clergy comprised the leading roles in society, to include sitting as judges and teaching at the two universities, Cambridge and Oxford. Every effort was made to replace the inhabitants’ customary law, the common law. Canon law ruled the courts, and the universities refused to teach the common law. But, the people persisted in preserving their common law tradition. Over time, the clergy retreated from its public place, eventually reserving itself to the ecclesiastical courts and the universities. But time, the effect of denying knowledge of the common law to subsequent generations, and the nature of the King’s courts (rather than a permanent location, proceedings were held in the aula regis, or King’s Hall, which was in the capital or whichever palace he traveled to, meant that the knowledge of the common law rested with a progressively smaller number of individuals. In time, the King decreed that the court of common pleas, which heard property disputes, would permanently sit in the city of Westminster. In response, those trained in the common law tradition, previously spread throughout the kingdom, congregated in the same general area.

These experts were still precluded from teaching the common law at either university, so they sought to establish their own. Blackstone writes that they began purchasing various houses between London and Westminster, which became known as inns of court and inns of chancery. There, these professors led students through exercises and lectures, and conferred degrees in the common law. Younger students began study at an inn of chancery, where they learned the basics and the elements of the law. They then progressed into the inns of court for greater study.

In the beginning, children of knights, barons, and other nobility joined aspiring practitioners in these inns. Blackstone wrote that “it was thought highly necessary and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. . . .” Over time, however, the custom of training future national leaders—by nature of their birth—in the law after completing their university study lost its popularity.

Blackstone believed it was the duty of all gentlemen to serve in public office and for the public good. They had the time, education, and upbringing. Interestingly, he noted that a knowledge of the kingdom’s common law tradition not only carries on English history, but also prevented the enactment of unnecessary legislation. So, Blackstone authored a series of lectures on the common law to be taught at Oxford where Blackstone taught. Each lecture covered a single topic and summarized the existing common law. This, he thought, bridged the existing gap. Now, gentlemen learned the basics of English common law without the need for specialized study in the inns of court and chancery. Blackstone later organized these lectures into a four volume work, to wildly amazing success.

The founding generation was steeped in Blackstone’s Commentaries, as well as other works by influential writers of the time (and antiquity). So a quick read of Chapter 13, Of the Military and Maritime States, in Book I, Of the Rights of Persons, is a starting point to understanding the army and navy in British society. This is necessary to a proper understanding of the American military’s place in the broader society in which it exists.

There are a number of Blackstone’s observations that no longer fit modern American military society that are part of my ongoing project on the American military society that exists within the broader American society, though these observations provide remarkable insight into the history of our military institutions. But a few statements seem to endure to the point I thought worth sharing.

  • After the Norman conquest, the King divided the kingdom into Knights’s fees. For each fee, a knight or soldier was bound to serve the King in war for up to forty days a year.
  • Every man that served was required to provide his own arms in accordance to his station in society.
  • Members of the militia are to be subject to the normal criminal code, unless they are subject to the martial law (deployed outside the kingdom or inside the kingdom during time of actual danger).
    • During time of actual war, the Crown was allowed to raise a more veteran army and subject it to more rigorous discipline. This was an emergency condition only. “For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, . . . in truth and reality no law, but something indulged, rather than allowed as a law; the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.”
  • Standing armies became common in the European experience. But, “[n]othing then, according to [British] principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people.” It should be composed of citizens, enlisted for a short and limited period of time, and the soldiers should be “intermixed with the people.”
  • But “[h]owever expedient the most strict regulations may be in time of actual war, yet, in times of profound peace a little relaxation of military rigour would not, one should hope, be productive of much inconvenience.”

Perhaps the most interesting observation, Blackstone appeared to caution against broad jurisdiction over soldiers. “[I]t may be thought worthy the wisdom of parliament to ascertain the limits of military subjection and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise.” Military jurisdiction should be limited to the minimum amount necessary to protect the country, because citizens of the country would be subject to it.

I am looking forward this next adventure.

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