Mutiny Acts - Background

Background

Military law, law governing armed forces, and martial law, military control of society, have not always been independent. This was at least in part because the civilian ruler was the military commander. European rulers began separating the control of the armed forces from the control of the population as the medieval period drew to a close. The first code that specifically regulated military personnel was the French ordonnance of 1378. Eventually, civilian codes and courts gained power at the expense of military law and control.

William the Conqueror was assisted in his legal duties by the Aural Regis or King's Court. Over time this court divided and developed specialized legal expertise. King Edward I created a Court of Chivalry headed by the Lord High Constable and the Earl Marshall, two members of the King's Court. The Court of Chivalry had authority over cases of military law, chivalry, heraldry, and murder or high treason overseas. Meanwhile courts of equity, overseen by the chancellor, and courts of common law developed. These courts governed civilians.

Although common law governed civilians it did not control military forces as such. The army was seen as the crown's personal force. Therefore its governance was the crown's royal prerogative. The crown governed the military by publishing articles of war. These articles were orders to the army for a specific war or campaign. The Court of Chivalry assisted the crown in preparing these articles and enforcing them. Although harsh, the articles were clear in their expectations for military personnel. However, these articles were used arbitrarily against civilians at various times. This encroached on the power and jurisdiction of the English courts of common law. The capricious use of these harsh laws by the crown, especially during the reign of the Tudors and Stuarts, caused an outcry against both military law and martial law which were not yet seen as separate entities. William Blackstone complained,

For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, 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.

This abuse of the crown's prerogative caused Parliament to pass the Petition of Right in 1627. This act stated that neither civilians nor soldiers and officers who were in England during peace were subject to military courts or law. In other words, only common law courts and courts of equity could exercise authority over individuals in peacetime England. Military law did not apply to anyone in England since only military courts could enforce the Articles of War.