My colleague Christian Burset is an outstanding legal historian and has sent in this splendid revisionist account of the Sackville case (1760). If you have advisory opinions in mind, you will be interested.
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Every year since 1967, on August 1, the British consulate in Chicago receives an anonymous delivery of roses. The mysterious flowers commemorate the Battle of Minden (1759), when British and German forces defeated the French army. Some British regiments still celebrate Minden, who helped prepare the ground for Britain’s victory in the Seven Years’ War. But it was an unfortunate occasion for Britain’s senior commander, Lord George Sackville, who was accused of cowardice when he failed to decisively pursue and destroy the retreating French. After the battle, Sackville resigned his commission and returned to England, where he decided that the only way to recover his reputation was to have a court-martial judge his actions and (he hoped) exonerate him.
The subsequent proceedings left a small but significant mark on US constitutional law. Since Sackville was no longer an officer, it was unclear whether he could be tried under military law. George II asked the twelve common law judges for their advice on the matter, and they obeyed. Their concise opinion found “no reason to doubt the legality of the jurisdiction of a court-martial” in Sackville’s situation – that is, a former officer being tried “for a military offense recently committed by him while on actual duty and paid as an officer.” For this reason they cited courts, lawyers and scholars The Sackville case to illuminate era interpretations of the establishment of military jurisdiction over former service members.
The decision was also cited as the last advisory opinion that English judges gave to the Crown. Although the judges responded to the king’s request for opinion, they did so reluctantly, asking to be spared from such duties in the future. The justices’ response was used to clarify the boundaries of justiciability under Article III of the United States Constitution. (I’ve already written about The Sackville case in that context.)
Despite its potential importance, The Sackville case can be a frustrating source to use. The dispositif of the reported opinion consists of a single sentence which provides little clarification on the issue reason for the fall. In fact, the judges’ reasoning is so opaque that some lawyers have refused to hold it up as an authority.
As often happens, however, the published opinion is not the only version of the facts. Sir Thomas Parker, Chief Baron of the Exchequer and one of the judges who attended The Sackville case, wrote a summary of the discussion between the justices before they gave their opinion. His notes of the conversation are now among the Parker manuscripts at the Lilly Library, Indiana University Bloomington.
I have transcribed the document below and readers can draw their own conclusions about its meaning. But it might be helpful for me to note three possible implications: related to military jurisdiction, advisory opinions, and 18th-century approaches to legal argumentation.
First, Chief Baron Parker’s notes reveal a broad judicial consensus in the 1760s that discharged military personnel could be court-martialed for offenses committed while on active service. This is contrary to the Supreme Court decision United States ex rel. Toth vs. Quarles, 350 US 11 (1955), which held that military jurisdiction over former military personnel violated a number of constitutional provisions. To the extent that the Constitution reflects the 18th century English conception of military jurisdiction, Quarles may require review. (quoted by Judge Reed The Sackville case in his Quarles dissent, but had access only to the brief published opinion, not to the judges’ underlying reasoning.)
Secondly, the question did not seem so difficult to the judges. To be sure, some politicians and men of letters of the time expressed qualms about extending military jurisdiction over a discharged officer. But Crown law officers had already concluded that a court-martial was appropriate, and the judges considered the case an easy one. It appears from Parker’s notes that only one judge, Sir Richard Adams, “had any doubt” about the outcome; and he too “was soon satisfied” by the citation of relevant precedents. Thus, when judges expressed reluctance to give an advisory opinion The Sackville case, it wasn’t because they thought it was unusually difficult or controversial. This occurred, more likely, because of structural concerns about advisory opinions in general (as I have argued elsewhere).
Finally, it is interesting to observe the reasoning of the judges. The case was primarily about the construction of the Mutiny Act, and the justices paid close attention to the “writing” of the statutory text. But they also considered the statute’s purpose (the court-martial of a discharged officer, they reasoned, would “contribute” to the “exact discipline” the act aimed at), as well as judges’ previous interpretations of similar statutes. It is a clear distillation of common law orthodoxy regarding the interpretation of statutes on the eve of the American Founding.
Of course, Chief Baron Parker’s version of the meeting is just that: Parker’s version, and it is possible that he misreported or remembered the conversation. But I see no reason to doubt its accuracy. In 1760, when The Sackville case Once decided, Parker had served as a judge for nearly two decades and would continue to serve as Chief Baron of the Exchequer for another twelve years. During that time, he earned a reputation as a respected judge who paid close attention to legal reporting. There is another factor that lends credibility to Parker’s notes. It is part of a volume of opinions that he prepared for his son. And even lawyers know how to give good gifts to their children.
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The following is the transcription of a document found on pp. 227-28 in a volume cataloged as “Lawyers’ Reports, [Vol. 4?]1701–3 March 1760,” in the Parker Manuscripts, Lilly Library, Indiana University Bloomington. Some notes on the transcription:
- I’ve quietly expanded some abbreviations and contractions (e.g., “CJ” becomes “Chief Justice”).
- I have omitted some notes made on the manuscript by a different (and presumably later) hand.
- Hyperlinks and text in parentheses reflect my editorial comments.
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Lord Mansfield, TP [Thomas Parker, who wrote this document] Denison, Foster, Smythe, Adams, Bathurst, Wilmot, Noel and Lloyd, judges and barons met at Lord Mansfield’s House in Bloomsbury Square to answer this question [i.e., the King’s request for an advisory opinion], as most of them had considered it before, based on a common report that would be sent to them. They thought it depended on the drafting of the Mutiny Act 32 KG 2d [cited today as the Mutiny Act 1758, 32 Geo. 2 c. 5]. If a person is recruited or paid as an officer or who is or shall be listed or paid as a Soldier, and March 24, 1759 will remain in that service or shall during the continuance of this act hereinafter mentioned enter voluntarily into His Majesty’s service as a Soldier; shall at any time during such continuation of this Act within the Kingdom of Great Britain etc begin to foment causes or join in any mutiny and sedition etc (mentioning the other offences) in all respects Such an offensive person in any of the above-mentioned matters will suffer death or other punishment determined by a court [228] A martial act will be inflicted. The King may grant commissions to hold courts martial for the trial of the various offenses provided for in the said law.* The judges held that it was only necessary that the party be an officer at the time of the offence, the words having relation to that time, but not until at the time of the Trial; and if a different construction were to take place, a dismissal before trial would effectively amount to an amnesty. The opinion of the Judges rendered upon referral by Q. Ann. On 15 December 1713 he was cited in act 13 Car: 2. cap. 9 article 19 which provides that no person in or belonging to the fleet should utter words of sedition or mutiny etc. when they detain persons punishable for mutiny or other crime specified in law, if in service at the time the crime was committedwhose opinion was presented to the Court of Admiralty. . . ; So in the Servant’s Little Betrayal the service need not continue, although the relationship constitutes the offense. Then Governor Douglass was prosecuted by information in the king’s bench during the reign of K. Geo: 1st, for oppressing the people under his rule over the state. 11 and 12 W. 3. approx. 12 After being recalled by his government and being convicted, he was severely fined and imprisoned. Brother Adams had some doubts about the words of the preamble of the Act, which precise discipline must be observed, and they thought that punishing a dismissed officer would not contribute to this, but the other judges thought that the example would have the right effect [cf. Voltaire on Admiral Byng!]and placed a certain emphasis on the words will remain in that servicebut it is clear that they refer only to the 24th of March 1759, but it was soon satisfied, and chiefly by the opinion of the judges in 1713. Lord Chief Justice Willes was indisposed, and could not attend, but concurred in opinion with the other of the judges, and the brother Clive was on his circuit in York.
[After this document, there follows the letter to the King and accompanying opinion as reported in 97 Eng. Rep. 940.]
I am grateful to Christopher Linfante for assistance in transcription and to Professor Robert Leider for his comments on military jurisdiction.