Kidnapping As A Military Offense

Pages01

Major Melburn N. WashburnI. IFTRODUCTION

In 1960, tao prisoners escaping from B military stockade at Fort Carson, Colorado, kidnapped R guard. Their subsequent trial by genaral court-martial stnrted a judicial process culminating in holdings by thernited States Court of Military Appeals' that theoffense of kidnnpping, in violation of Colorado statutes, is d m an offense under the Uniform Coda af JIilitarp Justice? The opinions in these cas89 focused the attention of militan. lawyers on general considerations of kidnapping as nn offense triable before military courts under militnri law

Although such offenses nt one time hnd been prosecuted under tha Articles of War,' this ras the first conviction under the Uniform Cod8 of Military Justice. Them can be littls doubt that such offanas have occurred since enactment of the Code. That they were not tried as kidnapping i n s probably because they invalved other offenses which were proscribed, either specifically or by castom, by military law and becnnss of the lawper's natural reluctance to face appellatetribunds on new issues nhen old principles, perhaps somewhat imdqjuats but already tssted in ths appellate crucible, am available far use.

Whatever may have besii ths muon for disinclination of the military to make use of the xmrious legislative enactmentS against kidnapping, it hsa been memome. The wall having beeen breached, B second case '

has followd the first into the field and together they appear to hare Bstablished a film foothold in military criminal hw.

It 1s the purpose of this article generally to discuss the nature af this n e i ~ tool of military la>\--its background, its future, its uses,

*This srtlrle UBE adapted from a theair Dresented to The Judge AdlOeate Geneml.9 School. E S. Im3, Chsdottesrille. Y~rglniB,while the author R86 a member of the Tenth Career Course The o~lnlone and eonelualans Dresented

Seienrh Infantry Dlrl~lan (Korea) : LL. B.. 1419,

Un&ersltr oi lll~iouri;

M CMR 186 and Onlted States 7.

ber of the Mlrsoud Bar.

'Umted States I

Plcotte. 12 USCllA lM.

Xem-

mtnriond. W i n r IS Intended 1% not nn ex1 of

n

Se, bur IdThP1. 21 bBFP ,,I'O" \VIliCI, the 1" nttome) ran build.

11. HISTORY OF THE OBI'

A GESERBL

societies. slarery \x-as a predominant institation. and linked to slnre tmde. TVith the rize of feodalism, e offense chnnped nnd only vith rile groiirh of capitnl-iem has the offense we commonly think of as kidnapping come into being.

me renioii or >miother. there is no common tlireed b? torirnl foiiii of rhe offense may be linked to nnather liuinm greed.

Iltlrooglr nmi IIRSnln nys iened and made off rnth h

R. THE HEBRElT LAW'

In the Hebrex lair "manstealing" was a eapitnl affenss? Ha the proscription was somewhat 1Its object protection of Hebrewsand endared.' By its term, theing of Hebrews. Capture andnations 7w1.e not prornbod.

Presumably. the head of a housshold could sell his O I I ~

sans and

daughters vith impunity,' md the one sold was bound TO ssrvice subject to cmnm laws gowmmng rrentmenr mid length of S ~ I T X ~ . ~

It may be concluded tlmt the prohibition agmnst "ninnsrenlmp" did not appl>- to the steeling of wmen. As orher iar~sdealing hitli senitude refer expressly to mal* and female." the o ~ m ~ s m ~ of the

female from the protection of this earliest of kidnnppin,o lar~s

17.13

provided that:

' Emlls 21 18 : nevteronomp 7"Deuteronom.? 24'7. "If a man be lovnd stealing any a l hi, brethren OP the ehlldren of Ierael. and makelh merchandlre of him. or Eelleth hlm. then that

apparently intentional.

C. BABYLO.VI.4.V LAT

The Inn of Babylon, 3e.t forth in die fnrnoue Code of Hiimmurali~,:

It B man era1 a man's son, who Is a 11111101, he eilnll be put I D death

KIDNAPPING

The precise mennings of the terms used are not clear, as they hare been variously translated.'z Howver, it is svident that kidnapping xas considered i~ form of larceny and that the Ian i n s limited m its spplmatmn." Students of ancient laws beliere the bnsio evils aimed at wwe enslamment of free men'' and inrerferenee with f d a l rights.lB D. GROWTB OF R0.YA.T LAW

If Rome was not built in a dt!-, neither were her laws rellating toths offense of kidnapping. In Hebrw and Bhbylonian law the offense ,,-as early eryitallized by a sovereign pronouncement but in Roms the law ebbed and flowed, developing through the centuries of Rome's wirer and gaming mfinaments along the way.

Members of rhs Roman household-the wife, the children, and the slaves-were subject in varying degrees to the power of the head of the household.' In earlj- Roman law, kidnapping =-as a civil offense in the nature of larceny. The gist of the offense xas not theft of property, BS in B%bylonian law, but interference n r h the power of the head of the household, and TTW accionable by him BS & private wrong soanding in tart.'8 Even after che criminal aspect of the offense P ~ S

reoogmzed, It was linked to the institution of slavery and teetered uncertainly bstween trims and tort far msny years.a0 It appaars more lairs providing methods and means for recovery of kidnapped pelsons s> vere enacted than nere ever enacted to deal directly with theotiensitdf.

With the growth of Romm law into &n advanced legal system, the criminal aspect of kidnapping emerged as the dominant consideration. Early enactmrnts in ths field punished the offense by moneyIt wa8 not until the natural law theories of mdividud freedom entered

the I n n that more severe punishments, somitimes extending to deeth,Zs sere authorized.

Humamtnrian considerations in connection with the offsnse had become well rooted in Roman Ian by the time of the Emperor Constan-tine. who expressed deep concern for the parents of kidnapping rictims and specified that B convicted kidnapper, if a slave, was to be exposed to wiid kars or, If a free man, slain with no pririlege of rankcansidered." E. BRITISII COMN0.V LAW

Despite Fortescue's Rsaertion that the laws and customs of England had remained unchmged sincs the earliest times 88 proof that they vere ",dmv.e all exception good," sc the offense of kidnapping did not make an early appearance among them. Even false impnsanment. the only offense of this nature known to early common law, wag not mentioned by Glnnrille, writing abut 1188."

False imprisonment first appears in B reported o w of abut the

year 1202.2- This offense was a felony, and thus the subject of Bn

appeal of felony. exposing the complainant to tha dangers of trial by battle. Undoubtedly, that risk deterrsd many would-be complainants, accounting for the dearth of reported cases during the thirteenthcentury.Z8 Late in that csnturg, the rise of the arit of tmpas3 afforded a safer, if milder, remedy. Although false imprisonment \T&S still regarded as felony it apparentlg was mom often tmated as a misdemennor.2g under the arit, h-nd at the end of the century Britron gnve the following very praotical deice concerning the off BnSB :

Appeals of felony mag also be bronght for uaunds. and for irnpfiiionrnent

s hetter to proceed by our writs of treapRsE than b l at freemen and for ever? other enomoua treapass: but for aroiding the appeals =

Exactly vhen kldnnppmg became ii separate offense 1s not clear. bur \le find Blackstone referring to rhr offense by name as B misde~ meanor ivhich he defined as :

KIDNAPPING

the forceable abduetlon or dteallng away of a man, woman, or child, from their own couotri. and aendlng them info another . . . .!

Most courts md vriters have follaned this definition.

The offense commonly thought of today 8s kidnapping bears some s of certain types of false imprisonment, a felony de- senbed by Blackstone as sending any Britieh subject "a prisoner into parts beyond the SCBS" or carrying one by force out of ths four north-ern counties or holding him within said counties to ''ransom him or make apoil of his person or goods."s' However. these aspects of the affeiise were rooted in the law against banishment or transportation, as pumshment, of a British subject and not in deprirntion of liberty.

F. EARLY HlSTORY I S B.llERlCA

The law of kidnapping took raping forms and provided punishments of varying severity in the American calomes. The enactment-or lack of then-of colonial govsrnments probably reflect the influ-eneea of puntanism niid the eonsequent regard in which the colonists held the institution of slawry. Thus, a Ynssmhuserts law of 1646 prorided that ". . , . [I]f B man stenleth B man, or mankind. he shall surely bs put to death."" Other colonies had less severe statutes or follovred the common In the latar eoloiiinl and post revolutianary periods, rhera ans ci general return to the common laxoften modified to require only an intent to carry tha rictim out of his own state (a8 contrasted to country).

G. UNITED STATES. 1800 TO 1932

During the nineteenth century, comparatirely few kidnapping eases ere tried. This probably is not an indication of the numbar of oflenses committed, but rather of failure to report offenses and pnmi. tire police methods.i8 In the early part of the century, tvo cases appear. One of these resulted from an attempt to sell a nega boy in a free state I' and the othw from n youngsrer'a desire to find adventure on the high seas and a ship captain's \~illingmless to The first w s tried under cornon IB>\- nnd th8 second under R Statute substantially repenting the common law.

BLACH6T06EI COMMEXTABIES 218.

ILid"See States. Rollins, 8 N.H. 660 (18371,* See Da~enport

T Commonaealth. 1 Leigh 588 (Ve 18281See Cam~b~11 T. Renkin 11 Lle 108 (1833) ; Stare s Ralllnr. 8 S H 6% 'See hirhsr & LlcGuire. Kidnoppini end tho 6a.Called Lindlrrgn Lmc, 12"State F. Rallina, 8 N.H.

(1837).

S.Y.U L. R~r.646

(1935).

Campbell s Rankin, I1 LIe. 103 (1838)

530 118371

Mox of the stares enacted kidnapping statutes during th8 first half of the lBth eentur>-. Soms of these early statutes were openly directed at slave trade, but most simply modified ihe common la= by prohibiting kidnapping wth intent to rem"\-e the...

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