The Yet-Unpaid Debt of King Gustavus Adolphus: The Development of Military Law in
Europe During the Cinquecento
By
Colonel William R. Hagan, U.S. Army, Ret.
As the ordinances of war and martial regulations of our early kings, so far as they can be
recovered, give great insight into our Military History; I shall lay before my readers such as I have
been able to procure.
2 F. Grose, Military Antiquities Respecting a History of the English Army 57 (London 1786-88)
For many decades, it has been regularly asserted that the articles of war enacted in 1621 by King
Gustavus Adolphus of Sweden constituted an innovative code. While recognizing his legitimate
and substantial contributions, this paper questions the conclusions of those—especially in the U.S.
military-legal community—who see Gustavus Adolphus as the major source of original change to
military law. While the whole story may never be known, this forum is a useful means to attempt to
dispel the seemingly fixed but erroneous view that Gustavus Adolphus created modern military law
from whole cloth.1
The explanation for Gustavus Aldophus's high standing in the development of military law is at
least partly attributable to what may be called the "Winthrop gap." Colonel William Winthrop
(1831-1899) was a U.S. Army judge advocate who served from the U.S. Civil War until the end of
his distinguished career as Assistant Judge Advocate General in 1895. His scholarly treatise,
Military Law and Precedents, was first published in 1886, and has been reissued many times since,
most recently by W.S. Hein Company, in 2000.2 “Winthrop’s,” as it is simply called, is the required
starting point for anyone who seeks to understand American military law. The United States
Supreme Court still uses the treatise in its opinions, and Winthrop’s authority is virtually
unquestioned. This paper is not intended to denigrate Colonel Winthrop or his great treatise, but
rather questions the findings of those who have—quite understandably—relied upon that great
soldier-scholar’s conclusions without examining his not unlimited sources.
1
This paper is an update of an article by this author that appeared in a scholarly U.S. Army legal periodical in 1986.
See Hagan, Overlooked Textbooks Jettison Some Durable Military Law Legends, 113 Mil.L.Rev.163 (1986) Readers
interested in more details and sources than are included here may find additional authorities in that earlier article. That
much lengthier piece may be found in printed form in many law libraries worldwide, and also, at least, on LEXIS, one
of the web-based legal-research services. Notwithstanding that original showing, subsequent writers continue to recite
the legend rather than the reality, thus this restatement of the truth, i.e., that soldiers and scholars of the Renaissance on
Continental Europe brought about the modern origins of military law. [NB: Citation form in this article conforms
generally to the legal strictures of “the Harvard Bluebook,” the U.S. rulebook for legal citation in business and academic
circles, rather than to Turabian or other formats more familiar to academic readers, at least to those in the United States.
I regret any inconvenience, but have been too long a lawyer to change my stripes now!]
2
W. Winthrop, Military Law and Precedents (2d ed. 1896 & official government reprint 1920), W.S. Hein Co.,
Buffalo, N.Y., 2000. I am honored to have written the introduction to this reprint of this classic treatise of military law.
Col. Winthrop was—and remains—the “Blackstone” of military law. All serious study of military-legal issues begins
with Winthrop. Notwithstanding my criticism in this article of those who have relied too heavily on Winthrop’s epic
Military Law and Precedents, I am an unabashed devotee of the late colonel.
Gustavus Adolphus was a remarkable man in a remarkable time. In addition to his tactical
innovations and strategic successes, he was keenly interested in discipline. As do fine leaders in all
armies, he probably liked soldiers. Of course, a group of uniformed people with weapons is but a
well-dressed and dangerous mob. The bond that converts the mob into an effective fighting force is
discipline.3 Gustavus Adolphus has gained considerable renown for more than his battlefield
exploits, as many have declared his articles of war of 1621 to have been a groundbreaking military
legal code.
The evidence is nevertheless convincing that Gustavus Adolphus's articles of war did not spring
fully grown from his able mind. Instead, that code had many sources: the classic writers of
antiquity, the rebirth of unfettered thinking, new weaponry and tactics, Continental and English
military writers of the Renaissance, earlier Swedish articles, and the experienced European officers
and soldiers who served with Gustavus Adolphus.
Most discussion of the development of military law, especially by lawyers looking to the roots
of military legal codes, has overlooked the period from 1385 to 1621. Colonel William Winthrop
skipped that era in the appendices to his treatise published in 1896. He included two primitive
codes drafted before 1400,4 and then leapt centuries to Gustavus Adolphus's articles of 1621.5
According to Winthrop, the origin of British and American courts-martial may properly be traced to
earlier codes, especially the articles of war of Gustavus Adolphus. Winthrop's omissions have
tended to conceal an evolutionary period of military law from scholarly attention. The most
significant appendices, from the perspective of this paper, are the Articles of War of Richard I of
1190;6 those of Richard II, of 1385;7 and the Code of Articles of King Gustavus Adolphus, issued in
1621.8
The code of Richard II had 26 articles that were considerably more detailed than those of
Richard I two centuries earlier. These are primitive, however, when set beside the 167 articles of
Gustavus Adolphus. But, as the passage of 195 years may explain the difference between the codes
of the two Richards, the 236 years separating the rules of Richard II from the elaborate articles of
Gustavus Adolphus would seem to warrant an inference other than that the Swedish king's
undeniable genius was solely responsible for this improved code. We need not, however, rest on
that inference alone.
Even enthusiastic admirers of Gustavus Adolphus's contributions to military justice agree that
there were many military legal codes before the Swedish articles of 1621, but little is known of the
actual administration of justice in the armies of antiquity. Winthrop, among others (although the
others usually copy or quote from Winthrop), notes the Salic codes of the German tribes, the code
of Emperor Charles V, and briefly mentions other Continental codes.9
3
British Major Samuel Adye, deputy judge advocate “to his Majesty’s Troops serving in North America,” knew this
when he referred to problems that royalist and parliamentary commanders confronted with their often rowdy forces
during the English Civil War. Without a needed bow to Cicero, Adye observed that, “They soon found that armies
without discipline and military subordination were like bodies without souls.” S. Adye, Treatise on Martial Law 15 (2d
ed. London 1810).
4
Winthrop, supra note 2, at 903 and 904.
5
Id. at 907.
6
Id. at 903.
7
Id. at 904.
8
Id. at 907.
9
Id. at 17-18.
2
Renaissance writers also filled pages with their knowledge, captured from experience or their
own reading, and their books filled the saddlebags of soldier-readers. These works were
encyclopedias of the military art that nearly always included some, and often much, guidance about
disciplining the armies that the other chapters had created, wielded, and sustained.
There was little new here, but heavy borrowing—indeed, outright stealing—from everywhere,
especially of Italian and Spanish works.10 It is to these books and the codes they included that we
should turn to test the originality of Gustavus Adolphus. There is little need to analyze every line
of Gustavus Adolphus's articles of war, and to compare each provision with all known previous
codes. Instead, we may make our point merely by examining some Swedish articles that have been
heralded as marking the originality of Gustavus Adolphus's code.
I must add that ignorance of the truth about Gustavus Adolphus's articles of war may be more
limited to lawyers looking at history than to professional historians. At least one historian knew
better. Prof. Michael Roberts remarked in his exhaustive, two-volume work on Gustavus Adolphus
that the Swedish armies were not so well-behaved, nor was Gustavus Adolphus the innovator in
military discipline, as has been claimed.11 Roberts tells us that the Articles of War were based on
familiar continental models, and had had many forerunners in Sweden.12 But now to the devil and
the details.
It has been said that Gustavus Adolphus's religious fervor caused him to be the first to
commission chaplains and that his zeal is the reason that his code begins with articles about
religion.13 He was not the first, however, to begin his military code with articles that protected and
forced the exercise of religion.
Matthew Sutcliffe in his 1593 book, The Practice, Proceedings, and Lawes of Armes, noted that
sometimes soldiers had "lived almost without exercise of Religion . . . . If there were to every two
Regiments one or two Ministers allowed, it would be a very commendable course. The Papists
have their priests in their armes."14 Sutcliffe lamented that "the name of Religion, I know, will
seem strange to most of our lusty young soldiers."15
We have also been told that Gustavus Adolphus was the first to punish commanders who
withheld subsistence from soldiers.16 Sutcliffe noted that the Romans had had similar problems and
had dealt with them severely. He added that, “He therefore that desires to bring things into order,
must begin with reformation of Officers, who both first brought in, and since have continued many
disorders, in the proceedings and practice of armies.”17
That Gustavus Adolphus valued the law should not be doubted. He apparently carried a copy of
De Juri Belli by Grotius in his pocket.18 And, it is true that the Swedish articles “encouraged
discipline by prohibiting plunder, abuse of churches, colleges, schools, or hospitals.”19
10
11
12
13
14
15
16
17
18
19
See, e.g., Spaulding, Early Military Books in the Folger Library, J.Amer.Mil.Hist.Foundation 93, at 98.
2 M. Roberts, Gustavus Adolphus at 240-41.
Id.
Cooper, Gustavus Adolphus and Military Justice, 92 Mil.L.Rev. 129 at 132.
M. Sutcliffe, The Practice, Proceedings, and Lawes of Armes (London 1593), at 308.
Sutcliffe at 305.
Cooper, supra note 13, at 132.
Sutcliffe, supra note 14, at 336.
Cooper, supra note 13, at 130-31, n.4.
Id. at 132.
3
Nonetheless, the earlier works were not silent in this regard, as a number of these prohibited the
desecration of churches, and all earlier codes made punishable crimes against defenseless persons.20
Moreover, decades before Grotius wrote, there were sophisticated and well-known works on
international law. One of the first, in 1563, was Pierino Belli's De Re Militari et Bello Tracticus.21
Replete with classical and contemporary examples, Belli's book made it clear that sixteenth-century
minds had put much thought into the law of war.
One of the more glaring errors is the claim that the Swedish code contained the first forerunner
of Article 134 of the Uniform Code of Military Justice [UCMJ], the penal code of the U.S.
military.22 This mistake is quite forgivable given the Winthrop gap and the astonishing similarity of
the old with the new. Commonly known as the general article, Article 134 punishes, among other
offenses, "all disorders and neglects to the prejudice of good order and discipline in the armed
forces."23 Yet, Article 37 of the Lawes and Orders of Warre issued in 1599 by Lord Essex for use in
Ireland, provided that "all other faults, disorders and offences that are not mentioned in these
articles shall be punished according to the Customs and Laws of War."24
Providing for appeal from courts-martial was a salutary feature of Gustavus Adolphus's code,25
but it was not novel. In a provision dealing with special procedures for "justice within the retinue of
the artillery, ordnance, and trains,” the articles of war of Henry VIII stated that “always provided if
any man find himself aggrieved after any final sentence, that he be at his appeal before the marshall
at all seasons.”26
On a less significant point, it has also been said that the UCMJ “even parallels Gustavus
Adolphus’s concern with dueling" by forbidding the practice.27 Again, Gustavus Adolphus was not
the first to forbid dueling. Sutcliffe's model code prohibited dueling and challenges. He explained
the provision by saying that, "the Romans contended among themselves rather who should kill most
enemies, than who could overcome most of their fellows. Those that stroke their fellows with their
sword died for it."28
A final claim of material innovation to be discussed here is that Gustavus Adolphus’s code
provided that every regimental commander read the Articles of War to the troops once a month.29
That statement is correct, but the practice did not originate with Gustavus Adolphus. The Lawes
and Ordinances of the Earle of Leycester, used in the Dutch Wars in 1586 were "Meet and fit to be
20
W. Garrard & R. Hitchcock, The Arte of Warre (London 1591) at 36 [as to churches], & Earl of Leicester, Lawes
and Ordinances, set downe by Robert Earle of Leycester, the Queenes Maiesties Lieutenant and Captaine General of
her armies and forces in the Lowe Countries 10 (London 1586) [as to defenseless persons].
21
2 P. Belli, De Re Militari et Bello Tracticus (n.p. 1563 & photo reprint 1936).
22
Uniform Code of Military Justice (UCMJ), 10 U.S. Code § 801 et seq.
23
Art. 134, UCMJ, 10 U.S. Code § 934. A useful “catch-all” provision, perhaps, to commanders and military
prosecutors, but detractors (including many an accused soldier!) have referred to art. 134 and its predecessors in the
U.S. and British articles of war as “the devil’s article,” as the broad language essentially permits commanders to
legislate.
24
See, e.g., Earl of Leicester’s articles, note 20, supra, at 10.
25
See, e.g., arts. 151 & 153, Code of Articles of King Gustavus Adolphus of Sweden (1621), reprinted in Winthrop’s,
n. 2, above, at 917.
26
See Leslie, The Printed Articles of War of 1544, 7 J. of the Society for Army Historical Research 222 (1928),
reproducing in facsimile certain articles of war of English King Henry VIII, at 235.
27
Cooper, supra note 13, at 135.
28
Sutcliffe, supra note 14, at 325-26.
29
Cooper, supra note 13, at 136.
4
observed by all such as shall serve her Majesty under him in the said Countries, and therefore to be
published and notified to the whole Army."30 Sutcliffe tells us that the ancient Romans and the
Spanish in the Low Countries also announced their laws so that no soldier could plead ignorance.31
One of the most significant improvements of Gustavus Adolphus's code over earlier codes has
rarely been noticed. Winthrop, of course, overlooked few points of law. He noted that, "The code
of Gustavus Adolphus makes punishable, as a specific military offence, the giving of an unlawful
command.”32 Gustavus Adolphus also seems to have made genuine and original progress by
improving procedures for determining guilt or innocence, and in determining an appropriate
punishment. He established on-call regimental courts-martial and a permanent general courtmartial. Courts-martial were not new, yet Gustavus Adolphus's dual system was a noticeable step
forward from the presumably more arbitrary methods that had been used before.
There is another, telling explanation of the true origin of Gustavus Adolphus's code beyond his
direct reliance on contemporary treatises. One writer said that the large number of foreign officers
in the Swedish army later spread the Swedish articles because they were so practical and just.33 No
doubt they did. It may also be that the officers and soldiers who served with him were responsible
for giving much of Gustavus Adolphus's code to him, rather than solely the reverse, as has been
believed. Just as it seems reasonable to believe that Gustavus Adolphus was aware of military
treatises and that he adopted and modified what he found useful, it also seems reasonable to
conclude that his foreign officers brought him manuals of military art.
The preceding analysis places the military code of Gustavus Adolphus in perspective. Some
believe that Gustavus Adolphus was the father of modern military justice. It is more likely, given
comparison with earlier codes, that he was a good son. Gustavus Adolphus recognized the worth of
existing codes and modified them to suit his purposes. Gustavus Adolphus's code was not the
beginning of modern articles of war. It was, instead, but one of a succession of such codes, each
relying heavily on those that had been used before. It was an improvement over previous codes, but
it was more of a refinement rather than a dramatic departure.
Gustavus Adolphus was thus an important, but not revolutionary, figure in the development of
military law. The progression seems clearer now. Roman military law was detailed and
sophisticated. The decline of the rule of law and the rise of the feudal legal and social order made
complex written codes unnecessary to govern the relatively small military organizations of the time.
The Renaissance brought about a rebirth of new thinking and a return to the Classics. It is still
unknown what code first brought together the Roman models, later experience, and fresh thought.
Clearly, however, the renewal first occurred on the European Continent and was refined throughout
the sixteenth century. Gustavus Adolphus profited from that which had gone before.
None of this dulls the luster of Gustavus Adolphus as a military leader or, for that matter, as a
significant contributor to the law. It is in the best tradition of military leadership to find what works
and use it, and to change or discard what does not. Furthermore, by dint of personality if nothing
else, Gustavus Adolphus did stamp his imprimatur on the specific provisions and operation of "his"
code. It is probably unfair to say that previous military leaders were not interested in justice; it is
30
31
32
33
See, e.g., Earl of Leicester’s articles, note 20, supra, at 1.
Sutcliffe, supra note 14, at 303; see also Garrard & R. Hitchcock, The Arte of Warre, supra note 20, at 50.
Winthrop, supra note 2, at 575 n.26.
Cooper, supra note 13, at 133.
5
nonetheless clear that Gustavus Adolphus realized that true discipline requires justice, and that true
justice results in discipline.
It is now up to us, as scholars of history, law, and the profession of arms, to ensure that those
long-forgotten soldiers of the Cinquecento in Continental Europe get their due. I am grateful to the
Archivio di Stato di Roma for providing a forum to sound this trumpet call in their honor.
6