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MILITARY JUSTICE 30 30 3 Military Justice The decision of Congress to take charge of the New England forces resisting the British military invasion seemed the logical step for American patriots. Now, resources and personnel from all the colonies could be mobilized and employed under the direction of a single command system. A large-scale federalized military establishment was viewed as a temporary expedient, one that could be reduced or even disassembled during peacetime . The grim reality, however, was that a wartime standing army required its own legal system to attend to the governance and discipline of members of the federalized armed forces. Soldiers forfeited civil liberties, and every action of an individual in military service was subject to close scrutiny. While a well-led and disciplined army would bring victory, securing independence and liberty, it could also pose the danger of becoming so powerful as to usurp civilian authority. This was a fear shared by many patriot leaders, who yet were the very ones who supported a federal army. Congressman Samuel Adams wrote in January 1776 that a standing army “is always dangerous to the Liberties of the People. Soldiers are apt to consider themselves as a Body distinct from the rest of the Citizens.” Troops under “severe” discipline become “disposed to yield implicit Obedience” to the commands of officers. “Such a power should be watched with a jealous eye.”1 It was decided that, like civil society, the armed forces should establish a basic code that would provide guidelines for dispensing justice. An irony was that the code of rules for the Revolutionary army contained a lengthy categorization of liabilities and punishments to be incurred from misbehavior of officers and soldiers, with very slight attention given to creating a fair legal process. It was also an irony that the military code of an army fighting for American liberty was grounded in the denying of liberty in military society. 31 MILITARY JUSTICE It was fitting for an emerging republic to have its military code created by congressional legislation. Historically, in Great Britain, articles of war were issued by the Crown. Parliament, however in the Mutiny Act of 1689, reserved for itself authority to establish military law during peacetime; the Crown continued to declare military rules and regulations during wartime. By a law of 1712, the Crown was given authority to extend its military code to troops abroad. Six years later, Parliament conferred on the British sovereign the responsibility of declaring articles of war for troops at home and abroad and during times of war and peace. A plenary power for establishing articles of war, however, was assumed by Parliament in 1803.The British rules and regulations for war were derived substantially from Roman practice.2 There is a continuum in the use of articles of war by the late colonial and American Revolutionary forces. As already noted, the American provincial regiments of the French and Indian War served under the British Articles of War. The military codes governing New England militia at the start of the Revolution were copied directly, with only minimal alteration, from the British Articles of War of 1765, and in turn, the code established by Congress for American forces during the war was mainly borrowed from the military law proclaimed by the New England states. On April 5, 1775, Massachusetts led the way in establishing a military code, followed by Connecticut and Rhode Island in May and New Hampshire in June.3 The fifty-three articles of the “Rules and Regulations for the Massachusetts Army” differed from its British counterpart in the severity of punishment ; there were fewer death penalties, and flogging was limited to thirtynine lashes. It was anticipated that the American troops about Boston were patriotically devoted to duty and delinquency would not be a serious problem . A death penalty under the Massachusetts code existed only for abandonment of a post under one’s command, or inciting others to do so, and for revealing “the watchword to any person not entitled to receive it.” For all other “crimes not capital” and “all disorders and neglects . . . not mentioned in the Articles of War,” punishment was to be at the discretion of general or regimental courts-martial.4 Other states followed suit in duplicating the military codes of New England (and Congress). An ordinance of the Virginia Convention in July 1775 provided for a code whose only major difference was the manner of selecting members of a general court-martial. Whereas the appointment of thirteen...

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