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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

well-known penal code of Holy Roman Emperor 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 courts-martial 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 America throughout its history, whereby military law is exclusively a statutory enactment of the legislative body.

American military law then traces its origin through the court-martial system and statutory pronouncements extant in England at the time of the Revolutionary War. The key dates in its history are: 1775, 1776, 1786, 1806, 1874, 1916, 1920, 1950 and 1968. In each of these years, Congress passed legislation which altered the relation between the individual soldier and the State. Over the long range, the trend has been for greater protection of individual civil rights, for procedural and substantive changes to make military law more like a civilian system of law, and for a gradual erosion of the authority of the commander in the disciplining of subordinates through legal process.

In a recent law review article, the following general characteristics were considered important in tracing the evolution of American military law: (a) statement of crimes and punishments, (b) pretrial proceeding, (c) role of the commander (d) membership and selection of the court, (e) judicial functions, (f) defense counsel, (g) nature of the trial, and (h) post-trial proceedings. Historically, the role of the commander has been the most significant issue in the pulling and hauling between forces who would civilianize the military system "to strengthen the morale of servicemen and restore the confidence of the public in military justice" and highly respected military men who believe military law to be an entirely different system of justice whose purpose is to complement discipline and support an effective and efficient fighting force. At least two prominent lawyers have espoused the latter view:

The prime object of military organization is Victory, not justice. In that death struggle which is ever impending, the Army, which defends the Nation, is ever constrained by the terrific consciousness that the Nation's life and its own is at stake. No other objective than Victory can have first place in its thoughts, nor cause any remission of that strain. If it can do justice to its men, well and good. But justice is always secondary, and Victory is always primary.

In civil life each individual owes obedience to the organized government of the community, but not to any individual civil officer as such, in the military organization, each member owes obedience to an individual-his commanding officer. The commander is responsible for the conduct of the forces and in the nature of things he must have all the powers necessary to make his authority effective.

The struggle still continues. On the one hand are the reform forces espousing a more "democratic" system, on the other hand are the

conservatives fighting to maintain a system of law they believe necessary to preserve democracy as a form of government.

THE BEGINNING: 1775-1776

After the "intolerable Acts” self-authorized groups met in the several colonies, and sent delegates to a "continental congress" in Philadelphia. This body adopted a boycott of British goods, to be enforced on unwilling Americans by local organizers of resistance. Fighting began in the next year, 1775, when the British commander at Boston sent a detachment to seize unauthorized stores of weapons at Concord. On the way, at Lexington, in a brush between soldiers and partisans or "minutemen," someone fired the "short heard round the world." The Second Continental Congress, meeting a few weeks later, proceeded to raise an American army, despatched an expedition to force Quebec into the revolutionary union, and entered into overtures with Bourbon France.

With an upcoming military force in the field of from 184,000 to 250,000 men, the new nation needed a body of law for the government of its Armed Forces. The Articles of War, 1775, (2 J. Cont. Cong. 111) satisfied this need.

The first American Articles of War, enacted by the Continental Congress in 1775, copied the British Articles, a body of law which had evolved from the 17th century rules adopted by Gustavus Adolphus for the discipline of his army, rather than from the English common law. These first articles were repealed and replaced by Articles of War, 1776, authorized by resolution of the Second Continental Congress.

The second Continental Articles of War, adopted on 20 September 1776 (5 J. Cont. Cong. 788) were drafted by John Adams, later the second President of the United States. Here are the reasons why this very revolutionary American statesman simply copied the articles that governed the forces then arrayed against him (3 Adams D.&A. 409410):

It was a very difficult and unpopular Subject; and I observed to Jefferson, that Whatever Alteration We should report with the least Energy in it, or the least tendency to a necessary discipline of the Army, would be opposed with as much Vehemence as if it were the most perfect: We might as well therefore report a compleat System at once and let it meet its fate. Some thing perhaps might be gained.

There was extant one System of Articles of War, which had carried two empires to the head of Mankind, the Roman And the British: for the British Articles of War were only a litteral Translation of the Roman: it would be in vain for us to seek, in our own Inventions or the Records of Warlike nations for a more compleat System of military discipline: It was an Observation founded in undoubted facts that the Prosperity of Nations had been in proportion to the discipline of their forces by Sea and Land: I was therefore for reporting the British Articles of War, totidem Verbis. Jefferson in those days never failed to agree with me, in every Thing of a political nature, and he very cordially concurred in this. The British Articles of War were accordingly reported and defended in Congress, by me and Assisted by some others, finally carried. They

laid the foundation of a discipline, which in time brought our Troops to a Capacity of contending with British Veterans, and a rivalry with the best Troops of France.

The Army practiced a rough form of justice during this period. Corporal punishment by means of the lash was a common practice. The fact that there were only 100 lawyers in each colony during the year 1771 is significant but not a controlling factor. In our history, the Bar has not been in the forefront of our reform movements.

THE "SMALL DETACHMENT” PROBLEM:
1776-1786

On July 4, 1776, the Congress adopted the Declaration of Independence, by which the United States assumed its separate and equal station among the powers of the earth. After the American victory at the battle of Saratoga, October 7, 1777, the French government concluded, in 1778, that the American insurgents were a good political risk, recognized them and signed an alliance with them, and declared war on Great Britain.

On September 3, 1783, Great Britain and the United States signed a definitive treaty of peace. Peace brought economic and civil unrest. A postwar depression occurred in 1784 from which the US did not recover until 1787. Shay's Rebellion in 1786 in Massachusetts shocked the Congress badly.

Because of the isolated position of many small military detachments, a hole in the administration of military justice developed.

According to Winthrop:

The Articles of 1776 continued in force till after the date of the adoption of the Constitution; meanwhile, however, undergoing certain very considerable amendments. The most important of these was the last, that of May 31, 1786, by which Section XIV, of the existing code, with “such other articles as related to the holding of courts-martial and the confirmation of the sentences thereof," was repealed and a new Section, entitled "Administration of Justice," consisting of twenty-seven articles was substituted. The occasion of this Amendment, as expressed in the preamble of the Resolution of Congress, was the fact that the preexisting Articles failed to make adequate provision for the trial of offenders "serving with small detachments," those articles requiring that a general court-martial should consist of thirteen members, and a regimental or garrison court of five members: in the new section the member of the inferior court was fixed at three and the minimum of the general court at five.

Thus, the role of the commanding officer was enlarged under the Articles of War, 1786, in that the small numbers of officers required to constitute a court enabled the commander more easily to convene his own courts to prevent criminals from escaping justice "to the great injury of the discipline of the troops and the public service."

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