The first Mutiny Act was passed in 1689 in response to the mutiny of a large portion of the army which stayed loyal to James II upon William III taking the crown of England. Today, mutiny by British forces is punished under the Armed Forces Act 2006.
During the middle ages, European rulers applied the same laws to both civilian and military populations. Because of this, military law (law governing armed forces) and martial law (control of society by the military) were not independent legal approaches. Rulers began separating the laws governing the civilian population and the laws for the armed forces as the medieval period drew to a close.
In England, William the Conqueror's Aural Regis (or King's Court) assisted him in ruling both his armed forces and the English population. 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. This Court of Chivalry was given authority over cases of military law, chivalry, heraldry, and murder or high treason overseas. The army was seen as the crown's personal force. Its governance, as a military force, was the crown's royal prerogative. The crown governed the military by publishing articles of war. These articles applied to the army during a specific war or campaign. The Court of Chivalry assisted the crown by preparing these articles and enforcing them. Therefore, military law could and would change depending on the campaign or war. Although harsh, the articles were clear in their expectations for military personnel.
Meanwhile, courts of equity and courts of common law developed and were given authority to govern civilians. Common law did not have rules specific to military forces and common law courts could not apply military rules. However, the crown's articles of war were applied against civilians at various times in Britain encroaching on the power and jurisdiction of the English courts of common law. The arbitrary and capricious use of these harsh laws by the crown against civilians, 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 legal approaches. 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 (the crown's ability to make and enforce rules for the military) 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 could not be applied to anyone in England, whether soldier or civilian, since only military courts could enforce the Articles of War.
Passage of the first Mutiny Act
King William III replaced King James II in 1688 during the Glorious Revolution. A number of Scottish troops felt James II was still the true monarch. They refused to obey orders from William III to fight in Holland, but instead marched home. Mutiny was not a common law crime, and because mutinous troops were located in England during peacetime, so the military laws, which did make mutiny a crime, could not be enforced against them. No legal action could be taken to stop or punish them.
Renewal of the Mutiny Acts
Because the Bill of Rights prohibited the existence of a standing army during peacetime without the consent of Parliament, the Mutiny Act was expressly limited to one year's duration. As a result, Parliament was asked annually to approve a new Mutiny Act for the coming year. The Articles of War, published by the crown, continued to govern military forces overseas.
A new Mutiny Act was passed each year until 1879. The Mutiny Act was soon modified to allow courts-martial for other crimes besides mutiny, sedition, and desertion. Modifications to the Mutiny Act soon allowed courts-martial trial of soldiers for acts prohibited by the Crown’s articles of war, as long as the articles conformed to the Mutiny Act in 1718. Civilians who were closely associated to the military, such as victuallers, could also be tried by courts-martial.
The Quartering Acts
The Mutiny Acts of 1765 and 1774 are known as Quartering Acts because of the amendments in them adding quartering requirements for British troops in the American Colonies.
- William Winthrop, Military Law and Precedents, 19 (2d ed., Government Printing Office 1920)
- William Winthrop, 45.
- Henry Wager Halleck, Military Tribunals and Their Jurisdiction, Mil. L. Rev. Bicent. Issue 14, 15 (1975). Civilian codes and courts eventually gained power at the expense of military law and control. The first code that specifically regulated military personnel (as opposed to civilians) was the French ordonnance of 1378.
- "Edward I", History of the Monarchy, Royal Household at Buckingham Palace, retrieved November 24, 2008
- John Stuart-Smith, Military Law: It’s History, Administration, and Practice, Mil. L. Rev. Bicent. Issue 24, 28 (1975).
- Sir Matthew Hale, The History of the Common Law of England, 26 (Charles M. Grey ed., U. Chi. Press 1971).
- William Winthrop, 18.
- William Blackstone, Commentaries on the Laws of England vol. I, 413–14 (Garland Publishing 1978).
- The English Petition of Right art. VII, 1627, retrieved November 26, 2008
- William Blackstone, Commentaries on the Laws of England vol. IV, 436–7.
- William Winthrop, 1446. (The Petition of Right ensured, “[t]hat the exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the King’s Courts are open for all Persons to receive Justice.”)
- William Winthrop, 19.
- Henry Wager Halleck, 18-19.
- David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l. L. 5, 12 (2005).
- William Winthrop, 20.
- British Articles of War of 1765 § VIII, art. I, II.
- "Slavery reparations: An historian's view". BBC Caribbean Service. 2007-03-30.