My colleague Christian Burset, who is a great legal historian, sent me this wonderful revisionist account of the Sackville case (1760). I would be interested if you have an advisory opinion on psyche.
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Every year since 1967, the British Consulate General in Chicago received Anonymous Roses delivered on August 1st. The mysterious flower commemorates the Battle of Minden (1759), where British and German forces defeated the French army. Some British regiments still celebrate Minden's role in setting the stage for Britain's victory in the Seven Years' War. However, it was an unfortunate turn of events for British military commander Sir George Sackville. be accused of being a coward when he failed to pursue and decisively destroy the retreating French army. After the battle, Sackville resigned his commission and returned to England, deciding that the only way to restore his honor was to have his actions tried by a military court and exonerated. did.
The legal proceedings that followed left a small but important mark on the U.S. Constitution. Since Sackville was no longer an officer, it was unclear whether he would be tried under military law. King George II asked twelve common law judges for advice on the matter, and they responded.their simple words opinion The Sackville situation, in which a former officer was being tried „for a military crime recently committed while on active duty and in the pay of an officer,“ found „grounds for questioning the legality of the court-martial's jurisdiction.“ „No,“ he admitted. Therefore, court, lawyerand scholar quoted sackville incident Clarifying the founding-era understanding of military jurisdiction over former military personnel.
This judgment is also cited as the last advisory opinion submitted to the Crown by a British judge. The judges complied with the king's request for an opinion, but reluctantly asked to be relieved of such duties in the future.Judge's reaction is used Clarifying the boundaries of justice under Article III of the U.S. Constitution. (Previously written about sackville incident In that context. )
Despite its potential importance, sackville incident Using it can cause irritation. A substantial portion of the reported opinion consists of single sentences that shed little light on the issue. Reason for judgment. In fact, the judge's reasoning is so opaque that some lawyers I refused treat it as an authority.
as happens oftenHowever, the published opinion is not the only version of the incident.Sir Thomas Parker, Lord Baron of the Exchequer, and one of the judges who took part in the trial. sackville incident, wrote a summary of the arguments between the justices before issuing their opinion. His notes of the conversation are now parker manuscript At the Lilly Library at Indiana University Bloomington.
I have posted the document below. Readers can draw their own conclusions about its significance. However, it may be helpful to note three possible influences of his related to military jurisdiction, advisory opinions, and his 18th century approach to legal argument.
First, Chief Justice Parker's memo reveals a broad judicial consensus in 1760 that discharged soldiers could be court-martialed for crimes committed while on active duty.it is contrary to the Supreme Court's ruling America former relative. Toth vs. Quarles, 350 US 11 (1955), held that military jurisdiction over former military personnel violated numerous constitutional provisions. insofar as the Constitution reflected his 18th century British understanding of military jurisdiction; Quarles Re-examination may be required. (Quoted by Judge Reed) sackville incident in him Quarles However, he had access only to the brief published opinion and not to the judge's underlying reasoning. )
Second, the issue was not very difficult for the judges.Indeed, some politicians and brochure creator At the time, he expressed concern about expanding the military's jurisdiction over discharged officers. However, the royal praetors The conclusion has already been reached He argued that a court martial was appropriate and that the judge treated the case as a simple one. According to Parker's notes, only one of the judges, Sir Richard Adams, seemed to have „some doubt“ about the outcome. And even he was „quickly content“ to cite relevant precedents. Therefore, when a judge expresses reluctance to issue an advisory opinion; sackville incident, it's not because they thought it was unusually difficult or controversial. It was probably due to structural concerns about advisory opinions in general (as I have argued) elsewhere).
Finally, it is interesting to observe the judge's reasoning. The case was primarily concerned with the enactment of the Insurrection Act, and the judges paid close attention to the „writing“ of the statute. But they also considered the purpose of this statute (they reasoned that court-martialing discharged officers would „contribute“ to the „precise discipline“ for which the law was aimed) and the judicial review of similar statutes. The government's previous interpretation was also taken into consideration. This is a nice distillation of common law orthodoxy. Interpretation of laws and regulations The eve of America's founding.
Of course, Chief Baron Parker's version of the meeting is just 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, sackville incident Parker had been a judge for nearly 20 years and would continue to serve as Lord Chancellor for a further 12 years. During that time, he developed a reputation for: respected judge Someone who took special care of me legal report. There is another element that lends credibility to Parker's notes.That's part of a slew of opinions he said prepared for my son. And even lawyers know how to give good gifts to children.
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Below is a transcription of the document found on pages 227-28 of the volume cataloged as „.Attorney's Report, (Vol. 4?), 1701 to March 3, 1760.,” published in Parker Manuscripts, Lilly Library, Indiana University Bloomington. Some notes about transcription:
- I silently rolled out some abbreviations and contractions (for example, „CJ“ becomes „Chief Justice of the Supreme Court“).
- I have omitted some notes that were added to the manuscript in a different (and possibly later) hand.
- Hyperlinks and text in parentheses reflect my own editorial comments.
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Lord Mansfield, TP (Thomas Parker, who wrote this document) Judges and barons of Denison, Foster, Smythe, Adams, Bathurst, Wilmot, Noel and Lloyd, will be at Lord Mansfield's house in Bloomsbury Square to answer this question. assembled (i.e., at the request of the King's advisory opinion), most of whom had been considering it for some time, having received a common report that it would be sent to them. They considered it dependent on the enactment of the Insurrection Act 32 KG 2d (today cited as the Insurrection Act 1758, 32 Geo. 2 c. 5).if there is someone be called up as an officer or receive a salary or any person listed as a soldier on March 24, 1759, or who is or will be paid as a soldier; shall continue to provide such services. or during the continuation of this Act as hereinafter referred to, shall voluntarily engage in the service of His Majesty as a soldier, and shall at any time during the continuation of this Act, within the British Territories or elsewhere, incite a cause, or take part in rebellion, sedition, etc. (Also mentions other crimes) All sorts of things. very unpleasant person In any of the foregoing matters, the death penalty or other punishment by the courts shall be imposed (228) on military personnel. The King may authorize the Commission to hold court martials to try some crimes under the Act. * The judges considered that it was only necessary for the party to be an officer at the time of the commission of the crime, and this term was relevant to the following points: There was a time, but not until the time of the trial. And if another construction were to take place, dismissal before a trial would effectively amount to a pardon.of Judge's opinion Q. Given based on reference from Ann. December 15, 1713 was cited in Act 13. Car: 2. Cap. 9 Article 19 provides that no member of a fleet or any person belonging to a fleet shall utter any words of incitement or rebellion if he or she has detained any person punishable for rebellion or any other crime prescribed by law. It has established. If you were working at the time you committed the crimeThis opinion was submitted to the Admiralty Court. . . therefore, in petit treason by a servant, the relationship constitutes a crime but does not require continued service.So governor douglas Indicted by the intelligence services of the King's Bench during the reign of K. Geo. The reason is the crime of repressing the people under his government. 11 & 12 W. 3. ca. 12 days after he is recalled by the government and convicted of a felony. fined and jailed. Brother Adams had some doubts about the language of the preamble to the law. Strict discipline should be observed; and considered that the punishment of the dismissed officer would not contribute to that, although other judges thought that this example would have the appropriate effect (cf. Voltaire talks about Admiral Byng!) And he added some emphasis to the word shall continue to provide such services., but it is clear that they relate only to March 24, 1759, but he was immediately satisfied, and mainly by the opinion of the judges of 1713. The Chief Justice, Lord Willes, was unable to attend due to suspension, but agreed with the remaining judges. Brother Clive was on the York circuit.
(After this document, letter to the king 97 The accompanying opinion reported in Eng. Member of Parliament 940)
We thank Christopher Linfante for assistance with transcription and Professor Robert Leider for comments regarding military jurisdiction.