An Introduction to Xilitary Justice in France

• Author: Gerald L. Kock
• Pages: 04

I. ORIGINS AND COMMON DEVELOPMENTI

In their feudal origins the French and Anglo-Norman systems of military justice were identical.% The offlcer who was the king's principal military agent, whether it ww seneschal, constable, gen-eral. or marshal, had, in addition to his command responsibilities, judicial authority in the armed force.3 This authority extended to summary proceedings "to punysh all manner of men that breken the statutes and ordannaunce by the King made to be keped in the (Armvl.'" The ordinances thus enforced were. as a rule. estab- . ..

*Thin article is adapted from the author's introdnetion to his tranilation of the French Code of Ptlitary Juatice. The opinion% and conelmima presented herein %re fhore of the author and do not ne~esiaiily represent the viewe of The Judee Advocate General's School or any other z0v~rnmentBI

'*Asnintant Profinaor of Law, Emory University Sehaoi of Law; A.B.. 1956, 1956, Univemity of Chicago, J.D., 1958, University of Chiesgo. LL.M., 1961. New York Oniverritv: Membey of the Bar of the State of Illinma.

LThm article will not deal with the steps in a military proaeeutian or a cornpariaon of American military and civilian praetm, beesuse both of these things have been done 10 admirably by Judge Latimer in his srtiele in 29 TEMPLE UW

QUUITERLY 1 (1955). Alno, no attempt i$ made here ta ComPBIe

American practice8 with thoae in France. For a genemi eOmparBtiVe sketch, see Rheinatein, Comporolive Mzlitwz Jutice, 15 Fm. B. J. 276 (1955). For

B mmparison of American and British systems, see Pasiey, Comporaliw Studu of Mihtorv Justice Reforms. 6 YAND L. REV. SO5 (1953).

lished for the governance of the troops as they set out upan each expedition.' As the occasional army of the feudal period gave way ta the standing armies of later times, the early ordinances devei-aped into more or less stable articles or ordinances of war. By the seventeenth century the practice had changed from the summary proceedings of the earlier period to trial before a board of officers commissioned to render justice.' These boards were indiscriminately labeled war councils, courts-martial, or courts military.'

The development of military justice institutions for the professional (mercenary) armies of the period continued in the same vein in France and in England until the French Then the mw ideas of equaiity and fraternity forced a new direction in France. It was the duty of all citizens to The citizen soldier took a view of his rights and privileges that was quite different from that af the professionai. While the latter put up with discipline and authority as a part of the job for which he was paid, the farmer was jeaious of his rights as a ci$izen and saw no reason ta surrender any of them to one who wa8 only a brother tohimself. The conscript army created to meet the special problems of republican France needed a different kind of justice, and, in response to thia need, French military law taak a direction of it8

om.10 o n g m for courts-martial are unfolrded. It IS quite clear that BE the beginning what was enviiaged was no more than B delepatian. by caminisrmn, of the Xing's prerogative to punish ~ummarilyany and all offenders in hie armed force. SPUIBB, THE HXGB COLRI OF CXIIALRY (19391 For the development, in France. of the Tribunal de le Conretablie et .Wareheussee de Fronor, see,MITCHELL. THE COURT OF THE CosurrasLIE (1947).

L See WI~TBROP.op mf. supra note 3, at 1411, far an ordinance of Richard

I addressed "to all his subject. shout to proceed by ~ e s to Serunalem." We

see as early as the ninth year af Richard 11, though, a ret of articles of war

ordamd by the King on the advice af his great men far application "in the army:' W-IVTBROP, op. E l t *lrprv note 3, *t 1612,

~WI+THROF,op oit mpro note 3, at 18, 2 BRIT. Y i l u ~ L

S I. BL 6 (19611

ilbid*The parliamentary reb~llian i1640-1660) did not lead ta the same attitude toward the old waye 8s did the French Reimlutron later. 'The psrllamsntary and Commonweslth farces %ere governed by articles mue. like thore operative for the Royalist forces. See rd. at 3.

S This IS still B part of the French view af full democratic eitizenship. See

Mennard, National Security and F?m~ce, 241 ANNALB 0" THE AMERICAX ACADEMY OP POLITICAL *no SOCIAL SClElCl 160 (19451.

10 See pp 126-29 I ~ ~ I V

120 IC0 l0liB

FRENCH MILITARY JUSTICE

11. THE DEVELOPMENT OF MILITARY JUSTICE IN GREAT BRITAIN AND THE UNITED STATES

A. THE ARTICLES OF WAR

In England, after the "glorious Revolution," what had begun as a crown prerogative in war areas developed into a statutory power over armed farces everywhere." The councils of war common to the English and French systems became the courts-martial of the Anglo-American tradition. The change was one of name rather than of substance and probably grew partly aut of a faulty analogy from martial law and partly from a desire to simplify matters by using the same form for both the military and martial branches of the military jurisdictian.12 In 1640 compulsory military service was declared illegal by statute,>$ and the army of professionals continued to be the rule until World War II." It is from that tradition that American military justice has been drawn.

At the outbreak of war in 1775, the Continental Congress adopted the first American articles of war.lS In 1716, the articles were revised with the result that they became almost a copy of the articles of war then in farce among the British.16 The articles of 1776 (with some amendments) were continued in force under the new constitution until 1806," when modifications appropriate to conform them to the new form of government were adapted." Further revisions of the articles of war were effected after the Civil War," World War I,1o and Worid War ILZ1 The last of these

16 2 JOURKALS OF THE

CONTISENTAL COFGRESS 111 (1905). l e 6 JOURNALS [IF THE ConTlaENTaL COBORES8 788 (1860). John Adsms reported in his Autabiagmphi that he ' ' ~ 8 9 for reporting the British artides

of j l s ~ totidem u d t s . . . , The British articles of war were, aecordmgly, rcgorted, and defended in Congreas by me amited by some others, and finally earned." 3AOAMs. WORKS 68-69 (18511.

IT see WINIHROP. op. oat. Swro note 3, at 14 n.43, for a list Of acta

2ongren. see 1 CRUJSYEY, POLITICS *ID THE COISTlTUTlON

eontinume these articles m force.

~~

WBI powers of I 413-15, 422-25 (1953).

'e18 Stat. 228 (1874).

*o 41 Stat. 787 (1920).1162 Stst. 627 (1948): 64 Stat. 108 (19481, reenacted with only formal changer ai Chapter 47, Title 10, URlTED STATES CODE, 70.4 Stat. 36 (1856).

18 Far an enlightening diaeursion of the constitutions1 provi~ions for the

revisions is that now in force, the Uniform Code of Militav Jw-tice, which was enacted for all the armed forces of the United States.

Except during World War I the British and American armies remained professional armies until the outbreak of World War 11. Not having a need to police colonial possessions the United States maintained only a small number of men under arms.12 In the years after the American Revolution the United States had a very small national army, reliance being had almost entirely on state militia to provide whatever forces were needed to maintain the peace and restrain the Indians.23 The militia were called to serve for such short periods and were, apparently, so little subjected to discipline that military justice gained no notice.#' The sudden expansion of arms after 1940 brought military discipline to nearly every household in the United States. Even men who had no immediate contact with military justice became aware of the ways in which it differed from civilian justice. Rumor invented even more differences. As the pace of war slowed and popular involvement in the good cause receded, attention was more and mare directed to ways in which the war machine fell short of civilian ideals.26

B. THE UNIFORM CODE OF IMILITARY JUSTICEAs a result of the widespread concern with failings of military justice, studies af the court.martia1 system were undertaken both in Congress and within the National Military Establishment.26 In 1948, Congress amended the articles of war in an attempt to cure some of the abuses that had been exposed,z' and the executive branch rewrote the Manual for Courts-Martial to account far the statutory changes and aim to correct other Raw8 revealed in the twenty years the old manual had been in use.19 Further study of military justice was undertaken within the National Military Es- 21 Until 1940 the avthorised strength of the army was under 300,000 men, 28 See 2 MARSBALL,

except during World War I.

EXISCR, THE CIVILIAN *AD MlLIIUII 4647, 16675 il056).

Walstein. Reviaion oi the Cou7t-M.lort;al 26 See, e+., the itema listed in

26 Predecessor of the Department of Defense.

11 See Wslrtein, supranote 25, at 218, 221-231.18 Executive Order 10020. MANUAL FOR COURTS-MARTIAL. U. S. ARMY, 1949,

2s Introduction, MAIUAL FOR COURTS-MARTIAL U. S. ARMY, 1948.

LIFE OF GEOROE WAS HIND TO^- 21e-26 (2d ed 1836) i

14 see, W. EKIRCH, OP.

System, 48 CoLuIl L. REY. 219 n.1 (194%)

st il.

122 AGO s o i m

FRENCH MILITARY JUSTICE

tablishment. The Secretary of Defense appointed a committee of military personnel with a civilian chairman to study the system and make recommendations.80 In line with the effort that was then going into a unification of the armed forces, the committee a1 pr'oduced a draft of a code of military justice that was to replace the three different badies of law then used by the United States' armed forces.8e That draft became the Unifwm Code of Military Justice.

There was a good deal of doubt among the officers charged with maintaining an effective armed force whether the civilianizing provisions of the new code left the commander with effective control of the organization for whose performance he was responsible.88 The court-martial system had existed as long as it had outside the usually considered necessary procedural scheme...