Leider Cont'd

Half a Precedent Is No Precedent At All

Why the application of military law to half-pay officers in Britain from 1749 to 1751 does not support the perpetual application of military law to retirees of the Armed Forces of the United States

​In Larrabee, the D.C. Circuit supported its holding that military retirees are subject to status-based military law jurisdiction with references to eighteenth-century historical practice.  The majority’s primary historical example is that of half-pay officers.  According to the majority, the subjugation of half-pay officers to military law in Britain from 1749 to 1751 demonstrates the Framers’ acceptance that military justice may be applied to members of the land and naval forces who are not in active service.  In this post, I will make two critiques of the court’s analysis.  First, the majority improperly discounts the vigorous debates over whether to subject half-pay officers to military justice.  The majority treats these debates as policy questions.  But these debates were, in fact, constitutional debates about the legitimacy of applying military law to those not in active service.  Second, although Parliament briefly subjected half-pay officers to military justice, the majority fails to establish that this brief action settled the legitimacy of applying military law to retired officers in Britain.  If anything, the debates surrounding half-pay officers show the opposite:  that after a period of vigorous debate, the British rejected applying military law to retired officers.  A fortiori, the majority fails to show that our Framers accepted the constitutional legitimacy of applying military law to those not in active service.  Unlike in Britain, neither Congress nor state/colonial legislatures subjected military personnel to military law when they were not in active service.  I am not aware of any evidence (and the majority provides none) suggesting that the Framers accepted the legitimacy of such a practice. ​

In a recent Second Amendment decision, the Supreme Court said that lower courts should evaluate the constitutionality of gun control laws by looking at the “text and historical understanding” of the right to bear arms.  To examine historical understanding, the Supreme Court instructed lower courts to examine whether the challenged law has “a well-established and representative historical analogue” (slip op. at 21).  Although the Supreme Court announced this test for Second Amendment cases, the D.C. Circuit majority followed that analytical approach in Larrabee.

On the legitimacy of applying military law to retirees, the majority’s best historical analogue is eighteenth-century half-pay officers in Britain (op. 18–22).  Half-pay officers were individuals who held military commissions and had served as officers in the army.  But they received only half pay because they were no longer performing active service.  Nevertheless, the Crown could recall half-pay officers, particularly if they were needed during wartime.  Parliament, thus, debated whether the half pay was technically intended as remuneration for prior service or as a retainer for future service.  In either case, half-pay officers were living primarily as civilians, although they retained the obligation to perform active service if ordered to duty.

Eighteenth-century Britain struggled to determine the amenability of half-pay officers to military jurisdiction (see op. at 19–20).  From the adoption of the Mutiny Act until 1748, their status was ambiguous.  The Mutiny Act only applied to officers “mustered or in pay,” and it was not clear whether half-pay officers fell into the category of those “in pay.”  (This led some in Parliament to debate the proverb “half a loaf is no bread.”)  Despite the ambiguity, half-pay officers were occasionally court-martialed.  The most notable incident occurred during the Jacobite rising in 1715.  For their participation, several half-pay officers were taken prisoner, tried, and shot according to military law.

Between 1749 and 1751, Parliament debated the half-pay issue.  In 1749, Parliament made explicit that half-pay officers were subject to military law under the Mutiny Act.  But that amendment produced a firestorm of controversy in Parliament and among officers of the army and navy.  In response, Parliament abandoned the half-pay provision in the Mutiny Act of 1751, and half-pay officers were not thereafter subject to military law. 

Parliament also addressed officers not in active service in 1786.  Parliament debated whether the Mutiny Act’s applicability to officers should be changed from “mustered or in pay” to “commissioned or in pay.”  By substituting “commissioned” for “mustered,” the amendment brought all brevet officers within the Mutiny Act, including those out of service and drawing no pay.  Again, there was a firestorm of controversy.  But this time, proponents of expanded military jurisdiction prevailed.  The purported reason for the distinction between half-pay officers and brevet officers was that half-pay officers, while technically amenable to recall, were primarily retirees, while brevet officers were more likely to be called into service and command.  As a result, many in Parliament thought that brevet officers should have to meet the same standards of conduct as active officers of the military.  See 1 M’Arthur, Principles and Practice of Naval and Military Courts Martial 195–96 (1805).

Although this history appears to cut against subjecting retirees to military law, the majority in Larrabee reaches the opposite conclusion.  In support, the majority makes two points.  First, the majority contends that “although it was contested throughout the eighteenth century whether half-pay officers should be legislatively subject to court-martial, it was beyond controversy that they were part of Britain’s armed ‘forces’ amenable to military jurisdiction” (op. at 20–21).  Second, the majority claims that “[t]he Americans who ratified the Constitution were familiar with the structure of the British military generally, and with the half-pay system specifically” (op. at 21).  The majority then provides the example of Charles Lee, an American general who had been on the British half-pay list until 1775.  In what follows, I will argue that the majority’s first point is wrong, while the second point is irrelevant.

As a threshold issue, the Larrabee majority’s first point starts with a mistaken view of the British constitution.  Consider two curious statements by the majority: 
 
(1) Parliament’s “authority to [make half-pay officers subject to courts-martial] was undisputed” (op. at 21 n.8);
(2) Although the Court of Exchequer Chamber opined in 1785 “that half-pay officers did not come within the scope of the Mutiny Act’s original terms . . . that judicial decision did not limit the legislature’s authority to subject half pay officers to military jurisdiction” (op. at 20). 
 
These statements presuppose a mistaken view of the British constitution.  In eighteenth-century Britain, Parliament had total legislative supremacy.  No British court (and especially not the Court of Exchequer Chamber) could limit Parliament’s authority over half-pay officers.  In Britain, the constitution is by convention, and “legal but unconstitutional” is not an oxymoron.  (The easiest example of “legal but unconstitutional” is if the Queen vetoed a bill against the advice of her government.)  Because of Parliamentary supremacy, Parliament could legalize unconstitutional acts.  Indeed, Parliament had done just that when it created and perpetuated the standing army by annual Mutiny Acts.  See John Phillip Reid, In Defiance of the Law 45–46 (1981) (explaining that the standing army was both unconstitutional and made lawful by Parliament).  So, of course, Parliament had the raw power to subject half-pay officers to military law.

Just because Parliament had the authority to subject half-pay officers to military law did not mean that Parliament exercised its authority constitutionally when it did so.  The scope of military jurisdiction was considered a serious constitutional matter in Britain.  A person who enters military service is stripped of his civil freedom and common-law rights.  For reasons of military necessity, Britain permitted this regime to exist for professional soldiers and sailors.  And Britain subjected ordinary citizens to military law when, and only when, they were actively performing military service (i.e., in their status as nonprofessional soldiers/militiamen).  Moreover, in Britain military service came with the added complication that the army and navy were under the authority of the Crown.  The larger the military establishment, the more influence the Crown had vis-à-vis Parliament.  Thus, because subjecting individuals to military law encroached on their common-law rights and increased the power of the Crown, Parliament jealously guarded the boundaries of military jurisdiction. 

The debates about whether half-pay officers should fall within the Mutiny Act were fundamentally constitutional disputes, not policy disputes as the majority suggests.  Those who objected to including half-pay officers made several constitutional arguments:  that half-pay officers should retain their common-law rights, including to trial by jury; that military law was only justified by military necessity, which did not exist if the officer was not in actual service; and that subjecting half-pay officers to military law would increase the power of the Crown.  Parties to the debate expressly referenced the British constitution.

Ironically, William Pulteney, the Earl of Bath, came out against the applicability of military law to those on half-pay.  As Secretary of War in 1715, he had transmitted the orders to execute the half-pay officers who participated in the Jacobite rising.  When the legal issue arose in Parliament three decades later, he expressed his regret.  Upon further investigation, he was convinced that military law did not apply to those not in active service and that he had acted unlawfully by applying military law to the half-pay officers in rebellion.  During the debates, he said:

But what was thus done in the heat and hurry of a dangerous rebellion, can never be an argument for proving that half-pay officers were, or ever ought to be subjected to martial law:  for at such times many illegal things are done, and often must be done; for which reason an act of indemnity is always passed . . . .” 

Debate on a Clause in the Mutiny Bill, 22 Geo. II, 14 Parliamentary History of England 476 (1813).

As Will Baude explains, constitutional liquidation is the idea that constitutional indeterminacies may be resolved through a course of deliberate practice that settles the constitutional question.  In the words of Justice Story, the resolution should receive “the deliberate assent of the nation,” including those who formerly held the opposite opinion.  The applicability of military law to those not in active service fits the first part of this description:  it was a disputed and difficult constitutional question.  This constitutional indeterminacy was the subject of repeated Parliamentary debate.  By many descriptions, the half-pay question produced a “most violent contest” and the inclusion of half-pay officers was subject to “vehement opposition in both Houses [of Parliament].”  3 Tobias Smollett, The History of England 41 (1836 ed.); 4 Lord Mahon, History of England from the Peace of Utrecht 7 (1844).  

Yet, this history does not support the majority’s claim that Parliament had recognized constitutional authority to subject retirees to military jurisdiction.  Half-pay officers were only clearly subjected to military jurisdiction for two years, after which Parliament did not include them again because of fierce opposition.  Inactive brevet officers were included after 1786—but only ten years after the United States had separated from Britain.  Moreover, brevet officers were only included because they might reasonably assume future command.  The Parliamentary debate expressly distinguished officers who would reasonably be expected to assume command in the future from those who were essentially being paid for prior service.  This hardly evidences that the applicability of military law to retirees received “the deliberate assent of the nation.”  To the contrary, if the legal question settled at all in Britain, it appears to have settled the other way—against the susceptibility of retired officers to military law.

Worse, the majority has no reason to believe that the constitutional legitimacy of applying military law to those not in active service was settled in America.  Before the Revolution, Virginia and Pennsylvania adopted Mutiny Acts that limited the applicability of military law to those officers and soldiers in active service.  Virginia’s 1752 Mutiny Act only applied to officers who were “mustered, or in pay” and to those who were “enlisted or in pay as a soldier, and shall remain in such service.”  Virginia adopted another Mutiny Act in 1762 that applied to officers “mustered, or in pay” and to those “enlisted or in pay as a soldier.”  Pennsylvania passed a Mutiny Act in 1756 that only applied to officers “commissioned and in pay” and to soldiers “regularly enlisted . . . [who are] paid and maintained by the Crown.”  I have not exhaustively surveyed all the colonies.  But I have yet to find one that applied military law to anyone not in active service.  And when the colonies broke from Britain, the federal government followed the traditional course.  As this recent dissertation from Marc Emond explains (at 27–28), early Congresses only subjected those “in pay” to military law. 

The best the majority can say is that the Framing generation was “familiar . . . with the half-pay system” and early American Congresses thought about adopting it.  But so what?  The majority offers no evidence that early Congresses intended to require half-pay officers to forfeit their common-law rights and be perpetually bound to military law.  Without such evidence, the mere consideration of a half-pay system does not prove that these Congresses accepted that those on half pay could be subjected to military law.  Moreover, unlike in Britain, Congress and the state legislatures operated under written constitutions that legally prevented the legislature from doing unconstitutional acts.  While the British Parliament may have had the raw power to subject half-pay officers to military law in violation of the British constitution, American legislatures could not do the same in violation of the written constitutions governing them. 

In sum, there is no evidence that American legislatures had the authority to subject inactive, half-pay officers to military law.  Furthermore, there was no practice in America—let alone a settled practice—demonstrating that subjecting inactive officers to military law had “the deliberate assent of the nation.”   

Faced with this lack of evidence, the majority then tries to bolster its analysis with another example:  court-martialing furloughed troops at the close of the Revolutionary War.  But this example is unsatisfactory for two independent reasons.  First, the majority may be wrong on the facts.  As Emond’s dissertation explains (at 34), the soldiers who were court-martialed may have remained on active service by rejecting their furloughs.  Second, even if they were furloughed, it would not matter; these soldiers were in a transitional state from active service to civilian life.  The British had surrendered but had not yet signed the peace treaty.  The war was likely over, and these soldiers were probably done fighting.  But they had not been formally discharged because there was some chance that hostilities would resume.  When determining who is in active service, there will always be borderline cases.  The existence of such borderline cases hardly stands for the robust proposition that Congress may universally court-martial those not in active service. 

​I will close with the majority’s own example of an American who was a half-pay British officer—that of Charles Lee (op. at 21).  The majority uses Lee as an example to show that Americans were familiar with the British half-pay system.  But the majority omits the best part of his story.  When Lee decided to join the American cause in 1775, he had to resign his British commission and give up his half pay.  Lee made a public display of his resignation by drafting a letter to Lord Viscount Barrington, the Secretary of War, which he then had published in colonial newspapers.  His nominal reason for resigning?  The “erroneous and absurd” opinion “that an officer in half pay is to be considered in the service.”

Robert Leider

Assistant Professor, George Mason University, Antonin Scalia Law School