Advisory Opinions and Military Jurisdiction: New Light on Sackville's Case (1760)

My colleague Christian Burset is an outstanding legal historian, and he sent along this splendid revisionist account of Sackville's Case (1760). If you have advisory opinions on the mind, you'll be interested.

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Every year since 1967, the British consulate in Chicago has received an anonymous delivery of roses on August 1. The mysterious flowers commemorate the Battle of Minden (1759), when British and German forces defeated the French army. Some British regiments still celebrate Minden, which helped set the stage for Britain's victory in the Seven Years' War. But it was an unhappy occasion for Britain's senior commander, Lord George Sackville, who was accused of cowardice when he failed to pursue and decisively 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 U.S. constitutional law. Because Sackville was no longer an officer, it wasn't clear that he could be judged under military law. George II asked the twelve common-law judges for their advice on the matter, and they complied. Their terse opinion found "no ground to doubt of the legality of the jurisdiction of a Court-Martial" in Sackville's situation—i.e., an ex-officer being tried "for a military offence lately committed by him while in actual service and pay as an officer." For that reason, courts, lawyers, and scholars have cited Sackville's Case to illuminate Founding-era understandings of military jurisdiction over former servicemembers.

The decision has also been also cited as the last advisory opinion that English judges delivered to the Crown. Although the judges answered the King's request for an opinion, they did so grudgingly, asking to be spared from such tasks in the future. The judges' response has been used to illuminate the boundaries of justiciability under Article III of the U.S. Constitution. (I've previously written about Sackville's Case in that context.)

Despite its potential importance, Sackville's Case can be a frustrating source to use. The operative part of the reported opinion consists of a single sentence that sheds little light on the ratio decidendi. Indeed, the judges' reasoning is so opaque that some lawyers have refused to treat it as authority.

As often happens, however, the published opinion isn't the only version of the case. Sir Thomas Parker, Chief Baron of the Exchequer and one of the judges who participated in Sackville's Case, wrote a summary of the discussion among the judges before they gave their opinion. His notes of the conversation are now among the Parker Manuscripts at the Lilly Library, Indiana University Bloomington.

I've transcribed the document below, and readers can draw their own conclusions about its significance. But it might be helpful for me to note three possible implications—related to military jurisdiction, to advisory opinions, and to eighteenth-century approaches to legal argumentation.

First, Chief Baron Parker's notes reveal a broad judicial consensus in 1760 that discharged military personnel could be court-martialed for offenses committed during their active service. That's contrary to the Supreme Court's decision in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), which held that military jurisdiction over ex-servicemembers violated a number of constitutional provisions. To the extent that the Constitution reflects eighteenth-century English understandings of military jurisdiction, Quarles might require reexamination. (Justice Reed cited Sackville's Case in his Quarles dissent, but he only had access to the short published opinion, not the judges' underlying reasoning.)

Second, the issue didn't strike the judges as difficult. To be sure, some politicians and pamphleteers at the time expressed qualms about extending military jurisdiction over a discharged officer. But the Crown's law officers had already concluded that a court martial was proper, and the judges treated the case as an easy one. It seems from Parker's notes that only one judge, Sir Richard Adams, "had some doubt" about the outcome; and even he "was soon satisfied" by a citation to relevant precedent. Thus, when the judges expressed reluctance about giving an advisory opinion in Sackville's Case, it wasn't because they thought it was unusually hard or controversial. It was, more likely, because of structural concerns about advisory opinions in general (as I've argued elsewhere).

Finally, it's interesting to observe the judges' reasoning. The case principally concerned the construction of the Mutiny Act, and the judges paid close attention to the "penning" of the statutory text. But they also considered the statute's purpose (court-martialing a discharged officer, they reasoned, would "contribute to" the "exact discipline" at which the act aimed), as well as judges' prior interpretations of analogous statutes. It's a neat 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's possible that he misreported or misremembered the conversation. But I see no reason to doubt his accuracy. In 1760, when Sackville's Case was decided, Parker had been a judge for nearly two decades, and he would continue to serve as Chief Baron of the Exchequer for another twelve years. During that time, he developed a reputation as a respected judge who took particular care with law reporting. There's another factor that lends credibility to Parker's notes. It's part of a volume of opinions that he prepared for his son. And even lawyers know how to give good gifts unto their children.

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What follows is a transcription of a document found at pp. 227–28 in a volume catalogued as "Attorney's Reports, [Vol. 4?], 1701–3 March 1760," in the Parker Manuscripts, Lilly Library, Indiana University Bloomington. Some notes on the transcription:

• I have silently expanded some abbreviations and contractions (e.g., "C.J." becomes "Chief Justice").
• I have omitted some notes made on the manuscript in a different (and presumably later) hand.
• Hyperlinks and text in brackets reflect my own editorial comments.

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Lord Mansfield, T. P. [Thomas Parker, who wrote this document] Denison, Foster, Smythe, Adams, Bathurst, Wilmot, Noel, and Lloyd, Justices 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], most of them having considered it before, upon a common report that it would be sent to them. They thought it depended upon the penning of the Mutiny Act 32 K. G. 2d [cited today as the Mutiny Act 1758, 32 Geo. 2 c. 5]. If any Person being mustered or in pay as an officer or who is or shall be listed or in pay as a Soldier, and on the 24 March 1759 shall remain in such service or shall during the continuance of this act herein after mentioned voluntarily enter himself in his Majesty's service as a Soldier shall at any time during such continuance of this Act within the Realm of Great Britain etc begin excite cause or join in any mutiny and sedition etc (mentioning the other offences) all and every Person so offending in any of the matters before mentioned shall suffer death or such other punishment as by a Court [228] Martial shall be inflicted. The King may grant Commissions to hold Courts Martial for the Tryal of the several offences in the said Act.* The Judges thought that it was only necessary that the party should be an officer at the time of Committing the offence, the words having relation to that time, but not to the time of Tryal; and if a different construction was to take place, a dismission before Tryal would in effect amount to a Pardon. The opinion of the Judges given upon a reference from Q. Ann. 15 December 1713 was cited upon the act 13 Car: 2. cap. 9 article 19 which enacts that no person in or belonging to the fleet should utter any word of sedition or mutiny etc when they held persons punishable for mutiny or other offence specified in the Act, if in service at the time of committing the offencewhich opinion was entered in the Court of Admiralty . . . ; So in Petit Treason by a Servant, the service need not continue, though the Relation constitutes the offense. So Governor Douglass was prosecuted by Information in the King's Bench in the Reign of K. Geo: 1st, for oppressing the People under his Government on the Stat. 11 & 12 W. 3. ca. 12 after he was recalled from his Government and being convicted was severely fined and imprisoned. Brother Adams had some doubt upon the words of the preamble of the Act, that an exact discipline should be observed, and thought that the punishing of a dismissed officer would not contribute to it, but the other Judges thought that the example would have a proper effect [cf. Voltaire on Admiral Byng!], and he laid some stress upon the words shall remain in such service, but it is clear they only relate to 24th of March 1759, but he was soon satisfied, and principally by the opinion of the Judges in 1713. Lord Chief Justice Willes was indisposed, and could not attend, but agreed in opinion with the rest of the Judges, and Brother Clive was upon his Circuit at York.

[After this document, there follows the letter to the King and accompanying opinion as reported in 97 Eng. Rep. 940.]

I'm grateful to Christopher Linfante for transcription assistance and to Professor Robert Leider for his comments about military jurisdiction.