CHAPTER 1 HISTORY OF MILITARY LAW INTRODUCTION Military law and its civilian counterpart both have their roots in Roman law which came into existence about the first century B.C. The Roman law permeated western Europe during the first millennium A.D., and was then codified in Lombardy in the 11th century as the Libri Feudorum. The Roman law made no distinction between civilian and military systems of law since it was predicated upon a military society in which a state of war was the normal condition. However, after the Roman law was brought to England in 1066 by William the Conqueror, the need for a separate system applying to members of the Army and Navy began to manifest itself. A Constable's Court had existed in England during medieval times separate and apart from other courts of law. When William made the Constable the commander of the royal Army, the Constable's Court was given jurisdiction over military crimes. Typically, the "laws" governing the acts of soldiers were promulgated by the King in connection with expeditions to the continent. Richard I, Coeur de Lion, for example, issued the following proclamation during the Third Crusade: Whoever shall slay a man on shipboard, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land, he shall be bound to the dead man and buried in the earth. If anyone shall be convicted, by means of lawful witnesses, of having drawn out a knife with which to strike another, or shall strike another so as to draw blood, he shall lose his hand. If these punishments seem barbaric, one must remember that the nascent 12th century civilian system was not much different, and, as stated in a recent treatise on military law, the only safe conclusion seems to be that, with the passage of some eight centuries, both the military and civilian systems of justice have benefited from the emergence of a more humanitarian jurisprudence. Courts-martial, trials composed and conducted within the military hierarchy rather than in national courts, began to appear in France and Germany around the 16th century. Separate codes of military penal law had already been compiled in those countries, and, in 1532, the wellknown penal code of Holy Roman Emporor Charles V was enacted. This penal code became the basis for subsequent codes in all other Western European nations. In England, commanders began to convene courtsmartial in 1642 and gradually these courts took the place of the Constable's Court and its successor, the Marshal's Court. In 1689 the Parliament entered the field of military law by passing the Mutiny Act. The Act signaled the beginning of the practice which has prevailed in |