At Volokh Conspiracy, Christian Burset (Notre Dame) (guest-blogging): Advisory Opinions and Military Jurisdiction: New Light on Sackville's Case (1760). From the introduction:
Every year since 1967, the British consulate in Chicago has received an anonymous delivery of roses on August 1. The mysterious flowers commemorate the Battle of Minden (1759), when British and German forces defeated the French army. Some British regiments still celebrate Minden, which helped set the stage for Britain's victory in the Seven Years' War. But it was an unhappy occasion for Britain's senior commander, Lord George Sackville, who was accused of cowardice when he failed to pursue and decisively destroy the retreating French. After the battle, Sackville resigned his commission and returned to England, where he decided that the only way to recover his reputation was to have a court-martial judge his actions and (he hoped) exonerate him.
The subsequent proceedings left a small but significant mark on U.S. constitutional law. Because Sackville was no longer an officer, it wasn't clear that he could be judged under military law. George II asked the twelve common-law judges for their advice on the matter, and they complied. Their terse opinion found "no ground to doubt of the legality of the jurisdiction of a Court-Martial" in Sackville's situation—i.e., an ex-officer being tried "for a military offence lately committed by him while in actual service and pay as an officer." For that reason, courts, lawyers, and scholars have cited Sackville's Case to illuminate Founding-era understandings of military jurisdiction over former servicemembers.
The decision has also been also cited as the last advisory opinion that English judges delivered to the Crown. Although the judges answered the King's request for an opinion, they did so grudgingly, asking to be spared from such tasks in the future. The judges' response has been used to illuminate the boundaries of justiciability under Article III of the U.S. Constitution. (I've previously written about Sackville's Case in that context.)
Despite its potential importance, Sackville's Case can be a frustrating source to use. The operative part of the reported opinion consists of a single sentence that sheds little light on the ratio decidendi. Indeed, the judges' reasoning is so opaque that some lawyers have refused to treat it as authority.
As often happens, however, the published opinion isn't the only version of the case. Sir Thomas Parker, Chief Baron of the Exchequer and one of the judges who participated in Sackville's Case, wrote a summary of the discussion among the judges before they gave their opinion. His notes of the conversation are now among the Parker Manuscripts at the Lilly Library, Indiana University Bloomington.
I've transcribed the document below, and readers can draw their own conclusions about its significance. But it might be helpful for me to note three possible implications—related to military jurisdiction, to advisory opinions, and to eighteenth-century approaches to legal argumentation. …
(Thanks to Samuel Bray for the pointer.)
Posted at 6:08 AM