About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

34 N.Y.U. L. Rev. 861 (1959)
Presidential Power to Regulate Military Justice: A Critical Study of Decisions of the Court of Military Appeals

handle is hein.journals/nylr34 and id is 869 raw text is: PRESIDENTIAL POWER TO REGULATE MILITARY
AFTER remarking that the royal prerogative is not curtailed by
statute unless the king be named therein by special and particular
words,1 Sir William Blackstone listed, as an important part of this
prerogative, the powers of the king as the generalissimo, or the first
in military command, saying: In this capacity, therefore, of general
of the kingdom, the king has the sole power of raising and regulating
fleets and armies.2 From the time of Richard I the king exercised this
prerogative by issuing Articles of War. By the seventeenth century
these articles had become a code of military justice which provided for
the appointment of courts-martial, prescribed their jurisdiction and
procedure, defined offenses, and authorized their punishment.' The
Petition of Right4 declared that the power of courts-martial to impose
the death penalty within England in time of peace had been abrogated
by several medieval statutes; but, from 1689, this power was re-
stored to them by the Mutiny Acts,' several of which expressly recog-
nized the prerogative of the king to issue Articles of War and establish
courts-martial, with power to impose the death penalty for forces be-
yond the seas.' In the eighteenth century, therefore, the power to
regulate military justice was exclusively in the king, as chief executive
and commander-in-chief of the forces, except to the extent that it bad
been curtailed by express provisions of statutes.
* William F. Fratcher is Professor of Law, University of Missouri; Colonel, Judge
Advocate General's Corps, United States Army Reserve; sometime Staff Judge Advocate,
Headquarters Command, United States Forces, European Theater.
1 1 Blackstone, Commentaries *261, citing Magdalen College Case, 11 Co. Rep. 66b,
74b, 77 Eng. Rep. 1235, 1247 (K.B. 1616). CL. United States v. UMW, 330 U.S. 258,
272-73 (1947).
2 1 Blackstone, Commentaries *262.
3 2 Anson, Law and Custom of the Constitution 367 (2d ed. 1896). The English
Articles of War issued by Richard II in 1385, James II in 1688, and George MII in 1765
are printed in Winthrop, M.ilitary Law and Precedents 904, 920, 931 (2d ed. rev. 1920).
4 3 Car. 1, c. 1, §§ 7-10 (1628).
5 1 W. & M., c. 5 (1689), reenacted periodically thereafter. The Articles for Govern-
ment of the Navy were statutory from 1661. 13 Car. 2, c. 9 (1661) ; 2 Anson, supra note
3, at 370.
6 E.g., 2 & 3 Anne, c. 20, § 39 (1703). From 1715 the Mutiny Acts authorized the
king to make Articles of War governing the troops in England and his other dominions in
peace and war. 2 Anson, supra note 3, at 368. In 1879 the provisions of the Articles of
War then in force were made statutory but the power of the king to make Articles of
War and rules governing court-martial procedure was preserved. Army Act, 44 & 45 Vict,
c. 58, §§ 69, 70 (1881).

Imaged with the Permission of N.Y.U. Law Review

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most