Military Justice in North Carolina, 1865: A Microcosm of Reconstruction

MILITARY JUSTICE IN NORTH CAROLINA, 1865: A MICROCOSM OF RECONSTRUCTION· Kenneth E. St. Clair The framers of the first rules and articles of war for the United States did not anticipate civil conflict or the deployment of American troops on foreign soil. At least they made no provision in the first rules and articles for the adjudication of capital crimes or crimes against person or property committed beyond the jurisdiction of American courts by or against members of the armed forces of the United States.1 The legal and disciplinary problems engendered by this omission first were apparent during the war with Mexico. Generals Scott and Taylor found that in the case of crimes involving American soldiers and Mexican civilians, the accused could not be tried by Mexican courts; they also were beyond the jurisdiction of American courts; and they could not be tried under the articles of war, which dealt solely with army discipline.2 General Scott, after fruidess efforts to secure the advice or assistance of the government in Washington, issued, on February 19, 1847, his famous General Order No. 20, which authorized the establishment of military commissions to try American soldiers and Mexican civilians for criminal acts varying from theft to murder. He found his authority in the "unwritten code [which] all armies in hostile countries are forced to adopt"—the code of "Martial law."3 *This paper was read in a slightly abbreviated form at the eighth annual Missouri Valley Conference of Collegiate Teachers of History, held at the Municipal University of Omaha, March 20, 1965. It was made possible in part through a Faculty Research Grant from the Social Science Research Council. !Clifford J. Mathews, "Special Military Tribunals, 1775-1865" (M.A. thesis, Emory University, 1951), pp. 43-44. This work is an able study of the origins and early development of American military justice. 2 Ibid., pp. 44-50; Ralph H. Gabriel, American Experience With Military Government," American Historical Review, XLIX (1944), 633-634. 3 Mathews, "Special Military Tribunals," p. 56; hfs analysis of Scott's order and its application is given on pp. 53-57. Cabriel, "American Experience With Military Government," 634-635, treats this subject as part of a brief, but valu341 342CI VIL W AR H ISTO R Y In September, 1861, General Henry Halleck adapted Scott's Mexican War order to the chaotic legal and military conditions of the Missouri border; under this authority the first military commission trials of the Civil War were held in St. Louis. This procedure subsequently was utilized by Federal military authorities throughout the border states and in areas of the Confederate states occupied by the Federal forces. President Lincoln recognized the practice in late September, 1862, and again in his "Instructions for the Government of the Armies in the Field," issued in April, 1863. Congress also recognized the existence of these commissions in 1863. Throughout the war, military commissions tried large numbers of people, principally in the South; during Reconstruction they became the principal courts in military administration of justice.4 The military commissions were neither civil courts nor courts martial . They were composed of five to thirteen members, including a judge advocate who was both a prosecutor and a member of the court; a majority vote of the commission was sufficient to convict (but a twothirds vote was required for death sentence). In general, their composition , powers, and practices were similar to those of courts martial, but each military commander was free to decide such matters as he pleased. Decisions of the commissions, while subject to review by the commanding officer and, in many cases, by the President of the United States, were not subject to judicial review.5 After the cessation of hostilities, the Federal military authorities imposed martial law as a matter of course upon the defeated Confederate states. Politicians might argue regarding the status of these states—had they committed suicide, were they conquered territories, or were they still in the Union but out of their right relations with it?—but the army followed Scott's dictum of a "constitution" older than that of the United States: the "customs of war." The civil authority of the Confederate States of America...