Military and Civilian Justice in Eighteenth-Century England: An Assessment

Abstract

Opinion in the eighteenth century varied widely on whether or not “military justice” was, in fact, justice by the civilian standards of the day. Many leading legal commentators viewed the system with disdain. Blackstone dismissed military justice in these words:Martial law which is built upon no settled principles, but is entirely arbitrary in its decisions is … in truth and reality, no law, but something indulged rather than allowed ….Another writer, arguing along similar lines, wrote: “The moment … a gentleman enters the service, he waives the Rights and Privileges he might be entitled to as an Englishman.” It was generally believed that law in the army was deemed less important than order and discipline. A man who opted for the army or was forced into service left more than his civilian clothes behind: he abandoned the legal rights under which he had been born and bred.Yet defenders of military justice were not lacking, particularly during the last half of the eighteenth century. Stephen Payne Adye, who had served as Judge Advocate in North America, wrote a treatise praising military justice; and at the end of the century, Alexander Tytler, drawing heavily on Adye's work, did the same. Other writers occasionally complimented the army on certain legal practices they viewed as superior to civilian court procedures. Still, then as now, the arguments of the advocates of the military system were largely ignored — a reflection of the deep distrust of all military institutions in Great Britain.