MILITARY JUSTICE. Military justice during the Revolutionary War played an important role in making the military subordinate to civilian authority and in making soldiers out of ordinary citizens. For the soldiers, military law not only enforced discipline on the field of battle and in camp but also enforced the respect for rank necessary for military discipline. In developing the policies and practices of military justice, officers, soldiers, and policy makers drew on their experience of observing the British army, the experiences of organizing militia and colonial troops for imperial wars, and accepted civilian practices. They established a system of military justice that through courts-martial and corporal and capital punishment helped make the Continental army into an effective fighting force.
THE COLONIAL TRADITION
When the colonists came to North America, they brought a distrust of standing armies with them from Britain. A standing army is one that exists at all times, not just when there is war with an external enemy. Many British people thought that a standing army was a potential threat to liberty because when it was not engaged in fighting an enemy, it might be used by a monarch against the citizens. In British law, one of the important ways that a standing army was kept under civilian control was to require soldiers to surrender some civil rights when they enlisted. Soldiers were brought to trial very quickly; they could receive a capital sentence handed down with only a two-thirds majority rather than the unanimous verdict needed in civilian life; and most importantly, they lost the right to a jury trial. They became subject to courts-martial, where the presiding panel was both judge and jury. And, finally, soldiers could be sentenced to corporal punishments much more brutal than anything a civilian court was likely to hand down.
The colonists adapted these practices in organizing their local militias and the provincial troops that they raised to fight alongside the British in imperial wars. Militia regulations usually avoided corporal punishment since many militiamen were taxpayers and voters, so instead offenders were punished by fines. But in those colonies where slaves, indentured servants, or apprentices were allowed to serve, corporal punishment was used, as those men had no money.
For their provincial armies, colonial governments felt that service in faraway places for long periods of time and often involving large numbers of poor men meant that sentences had to be tougher. Most colonies used punishments that reflected their civilian practices and held to a maximum punishment of thirty-nine lashes. The thirty-nine-lash limit came from the biblical injunction in Deuteronomy, "Forty stripes he may give him, and not exceed," (Deut. 25:3) and in Paul's Second Letter to the Corinthians. In the latter Paul noted "Of the Jews five times received I forty stripes save one" (2 Cor. 11:24). Therefore, most civilian courts held to the thirty-nine-lash limit, occasionally going over it for multiple offenders. New England colonial assemblies followed this practice for their provincial armies, but some southern colonies, such as Virginia, allowed more severe punishments. In 1757, during the Seven Years' War, the British decided that all provincial troops would come under British military law when they were operating with the British army. From that date on, colonial troops came under a system many saw as barbaric.
The British Army used the lash freely, supplemented by a wide range of other punishments, such as running the gauntlet. There was no limit to lash sentences, which were commonly for more than seven hundred lashes and sometimes as high as fifteen hundred. For these sentences prisoners would be lashed in installments. Colonists were appalled, and even some British officers had come to question the usefulness of these sentences. Consequently, some colonial officers did what they could to prevent their men from being subject to British military justice.
By the time the Revolutionary War began in 1775, then, colonists had gained a great deal of experience with writing articles of war, the codes that laid out military regulations. Naturally, in the first weeks colonial assemblies quickly produced legislation that looked very much like the codes they had written for their provincial armies. Massachusetts passed its legislation first, setting up the usual courts-martial system but limiting the number of lashes to thirty-nine. In the preamble, the assembly indicated it was avoiding the "severe articles and rules (except in capital cases) and cruel punishments as are usually practised in standing armies," hoping instead that soldiers and officers would obey the rules for "their own honor and the public good." The Rhode Island, Connecticut, and New Hampshire assemblies quickly passed articles modeled on those of Massachusetts, and so did the Continental Congress when it organized the Continental Army in June 1775.
THE CONTINENTAL ARMY
The Continental Congress accepted that the way to subordinate the army to civilian authority was that its servicemen had to surrender some civil liberties. The first judge advocate general, William Tudor, a Boston lawyer and a friend and former clerk of John Adams, stated that "When a man assumes a Soldier, he lays aside the Citizen, & must be content to submit to a temporary relinquishment of some of his civil Rights" ("Remarks on the Rules"). It quickly became clear to some in Congress, to Washington and other military leaders, and to Tudor that the thirty-nine-lash limit was too lenient and that the army needed harsher punishments if it was to become a disciplined body.
The first changes to the Continental articles of war came in November 1775 when sedition, mutiny, giving information to the enemy, and desertion were made capital offenses. Massachusetts' objections to "cruel punishments" soon disappeared. In the summer of 1776, as the army faced a string of military setbacks, Congress set to work revising the articles and Tudor, on behalf of Washington and others, lobbied Congress for change. On 20 September 1776, Congress passed new articles of war. The legislation was modeled closely on the British articles of war but limited the number of lashes to one hundred.
For New England soldiers, the new legislation was a radical departure from previous military practice. For the first year of the war, courts-martial sentencing New England soldiers had rested heavily on fining, shaming punishments such as having to walk around camp wearing humiliating signs, and lash sentences well below the thirty-nine-lash limit. By the end of the year, once the new regulations had been distributed and officially read to the assembled troops, one-hundred-lash sentences became common and shaming punishments, although still occasionally used, became much less frequent.
A different kind of transition took place for the troops from South Carolina. The South Carolina assembly had decided to adopt the British articles to regulate its troops from the beginning of the conflict. Courts-martial had handed down sentences as high as eight hundred lashes, and although most of these had been partially remitted and lesser sentences given, punishments were usually well above one hundred lashes. South Carolina was very different from New England, which was a collection of homogeneous societies where for the first year of the war at least, men of property served as ordinary soldiers. With a large slave population and a small wealthy planter class, South Carolina had some difficulty finding soldiers for its forces. Young planters competed for the officer corps but soldiers were poor farmers, laborers, and recent immigrants. The legislature saw these as men in need of a firm hand and so adopted harsh punishments. For these soldiers, when their regiments were transferred into the Continental army, the new Continental articles meant their conditions of service became less harsh as one hundred lashes quickly became their standard punishment, too.
The articles of September 1776 stood without alteration for the duration of the war. There was only one other serious attempt to try to change them. In 1781, after the mutiny of the Pennsylvania line, Washington asked Congress for the lash limit to be increased to five hundred. The lower limit, Washington felt, forced court-martial panels to hand down too many death sentences. Although a congressional committee recommended the change to the higher number, it was voted down in Congress. The one-hundred-lash limit stayed.
The fast acceptance of the 1776 articles and the regularizing of court-martial practices was part of a number of changes within the army. That fall, Congress reorganized the army and allowed for longer terms of enlistment that enabled soldiers to develop a greater sense of professionalism. Some states introduced drafts in 1777 that drew many poorer men into the army, men who accepted their subordinate status more readily. The skills of soldiers and officers improved, especially after the arrival of Baron Von Steuben in 1778 to help in training. A standardized and predictable system of military justice was a critical part of these changes.
Men in the militia continued to be largely free from corporal punishments. In the September 1776 articles of war, Congress tried to make the militia subject to harsher punishments when it was "joined, or acting in conjunction with" the Continental Army. However, there was a provision that court-martial panels could only be made up of officers from the militia corps with which the offender served, so in practice, little changed. Courts-martial were few and sentences other than fines were rare. When a lash sentence was given, it was to someone who was an outsider to the community, such as a transient or a recently arrived immigrant who might be serving as a substitute.
THE DEATH PENALTY
The death penalty was widely used in the military, most commonly for desertion. It was also used for mutiny, aiding the enemy, or leaving the field of battle without authority, but these were rare cases compared to the number of sentences for desertion from camp or on the march. All executions were carried out in front of all troops in the area so they could be suitably awed by military authority and threatened by what their own fate would be if they transgressed. However, reprieves were common. Washington used the death penalty sparingly. His soldiers were mostly volunteers who served for short terms. His goal was to instill discipline but not to appear so brutal that punishment actually encouraged further desertions or that men declined to reenlist when their terms were up. At the most, no more than 30 percent of capital sentences were carried out and possibly much less.
A DISCIPLINED ARMY
Central to military justice was the hierarchy of army life. Only officers, who were by legal definition gentlemen, sat on court-martial panels, yet it was mostly soldiers who stood charged before them with crimes. Thus, the panel members were not peers of the accused. Only soldiers were ever subject to corporal punishment. When officers were convicted of crimes, their punishments ranged from a private reprimand to being cashiered, or dismissed, from the service. When corporal punishment was inflicted, it was carried out by other soldiers supervised by officers. An important part of military regulations was that soldiers had to show appropriate deference to officers, saluting them and otherwise being respectful to them. Courts-martial were critical in forcing soldiers into habits of respect.
Courts-martial were busiest and handed down their most severe sentences when the army was in a difficult position, for example, during the bad winter at Valley Forge or on the disastrous expedition to Florida in 1778, when too many unhappy soldiers were deserting. But more commonly, military justice was concerned with the discipline of camp life, and panels focused their attention on soldiers' drunkenness, sleeping on duty, and petty theft.
Colonists blended military traditions, civilian practices, and experience to create an effective fighting force. The system of military justice established during the Revolutionary War continued with only minor revisions until after World War II, when Congress passed the Uniform Code of Military Justice in 1950.
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Cox, Caroline. A Proper Sense of Honor: Service and Sacrifice in George Washington's Army. Chapel Hill: University of North Carolina Press, 2004.
Heller, Francis H. "Military Law in the Continental Army." University of Kansas Law Review 25 (1977): 353-360.
Tudor, William. "Remarks on the Rules and Articles for the Government of the Continental Troops" (c. August 1775). In Papers of the Continental Congress. Vol. 1, pt.1, item 41. National Archives Microfilm Publication M247, r48.
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