Courts-Martial in the Legion Army: American Military Law in the Early Republic, 1792-1796

• Author: Bradley J. Nichakon
• Pages: 02

1. Introduction

   From 1792 until his death m 1796, Major General Anthony Wayne was Commander-in-Chief of the Legon Army. The Legionwas the major force of the United States Army, assembled to attack and defeat the Indian tribes along the northwestern frontier of the United States-a region that ultimately would become the states of Indiana, Ohio, and Michigan. Two previous campaigns had ended m disaster, and it was left to General Wayne, a Revolutionary War hero, to drive back the indians and to make the frontier safe for further expansion. The campaign began in Pittsburgh, Pennsylvania, where General Wayne assumed command in 1792. He trained the soldiers in his tactics, led them down the Ohio River to Cincinnati, Ohio, and then north toward Detroit, Michigan, then a British outpost. The four-year campaign culminated in victorr at the Battle of Fallen Timbers, just south of Detroit. This article reviews the nature af early American military law as reflected m the court-martial records of that campaign

   Military law III the Legion reflected the need for discipline in an Army that twice had failed to subdue the Indian presence an the northwestern border of the young nation. ''Another conflict with the savages with raw recruits is to be avoided at all means," Secre-tary of War Knox wrote to General Wayne.' General Wayne's orders were to whip the Army into shape, quite literally if necessary, and to

   'Law Clerk to United Stsfel Circuit Judge Morns S Amold, Eighth Circuit

   Coun af Appeals, Little Rock, Arkan-. B.A , 1983, Reed College: J.D 1990 Umversky of Penniylvma Member State Bar of Cahforrva The author w a formerly m

   pmale practice m Callforma, and also served a B law clerk far Judge Arnold on the Unlted States District Court U'eatern Diaricf of Arkansas Thin article is baed DO a paper that the author submitted to s ~ f l s l ~

   In pan the J D requirements af the

   UnlYe131fs of Penniylvmia The author thanks Judge Morns S Amold, Alan Watson. and Bruce H. Man for their comments on earlier drafts of this article

   'Letter fmm Knox to Wayne (Aug. 7, 1782), In A\THONI WAYNE.

   A haw% lh

   ARM9 THE W*nE-KhOI-PIIXERMO-MCHEh.RI COBRESNIDENCE 61 (&chard C. Knopf ed.,

   1860) Iherelnafter AYlHOlY WHXE: A NAVE Ih ARMS] A report on the fallure of the pnac campslm under Mqor General Arthur St Clair Usted the want of diseiphne and expedence In the fcaopr as one of the causes 1 AIIIIIICAV S m n PAFEW

   Mam~nr

   AFFAIPS 38-38 (Walte~ lawtie & Matthew St C Clarke eda, 1832) ihereinsffer I A i m a e ~ ~

   STATE PAPEW]

   create an effective and disciplined fighting force out of inexperienced young soldiers Miiitary law was the means to thls end

   Additionally, this article will examme the sources of early American military law. Military law in the Legion borrowed from two traditions. Many rules and legal Custom6 were based on the traditions of the British Army. The American statute-the Ruiei and Articles of War-was borrowed wholesale from the British statute 2

   In addition, certain books on British military law were available and almost certainly read by the Legion's officers, including General Wayne Many of the officers of the Legion had served m the Continental Amy during the Revolutionary War under General Wa'ashmgton and others who had themselves served under the British m calonial mihtias Treatises, experience, and memory made up the military's "common law.'' The officer's honor code, m pamcuiar, closely followed British Army practice. The substantive rules were a simple framework, however, the interstices of which often were filled in or influenced by civilian custom.

   Military law in the Legion Army was in some ways similar to contemporary Anglo-Amencan civilian criminai law. Douglas Hay argues that eighteenth-century British ci?-ilian cnmmal law was composed of three sahent characteristics: majesty, justice, and mercy (although in one place he says justice, terror. and mercy).' klqesty consisted of the solemn rituals of the court calculated to inspire awe Terror a large component of majesty, was played out m the drama of the decision. sentencing, and execution. Mercy was the prerogative of the crown to pardon any prisoner up to the time of execution Related to the patronage system in the ability of the gentleman to nnte a letter to the judge recommending leniency, it was supposed to ensure the loyalty of the commoner to the System in general and the gentleman m particular. Justice was the disem-bodied, lofty ideal of the iaw, above any angle man or interest. It purported to apply equally to rich and poor alike.' The legal customs of the Legmn Army conformed to these categories The terror of judgment was acted out in the same kinds of rituals in sentencing

   mercy merely reflect rhe attempt of ~~vilianjudges to afhleve &are; huence m

   themawn COunI, and haie nothrngla do uifhupperclasr 'canspaaclei

   and punishment that one finds in contemporary civilian criminal law. The power of the court-martial panel or the Commander-in-Chief to show leniency to avoid extreme punishments was the direct countelpart of the mercy of the civilian court. The judge and gentleman were combined m the persona of the Amy officer who could try the prisoner and sentence him to death, or recommend mercy and spare his life.

   By contrast, justice in the Leaan Army WOE a reflection of military legal culture, and significantly different from the ciwhan concept of justice. Military justice was embodied in the Articles of War and the Commander-in-Chief's repeated demands for adherence to the Code, discipline in the army, and obedience to his orders Unlike Hay's concept of civilian justice, military justice was not only purposefully but perceptibly unequal. Whlle enlisted men were regulated by specific restrictions set forth in the Articles of War, officers were explicitly judged by a different, more vague and potentially lenient code of honor. Justice in the military under the Articles of War was a useful tool, and not an end in itself. Military legal culture emphasized using the Code and the court-martial to prepare soldiers to obey and fight, to condition officers to trust and cooperate, and to punish and remove those who could not live by the standards of the military community. Military legal culture reflected tradition as well as the necessities of the difficult task at hand.

   11. The British Military Tradition

   The military law of the Legion consisted of the Articles of War, which the Continental Congress adopted from Great Britain during the Revolution. While the founding fathers may have considered creating a new military code, they did not do so; rather, the former colonies adapted British military law wholesale. Earlier, in 1775, the Provisional Congress of Massachusetts Bay Colony adopted the 1774 British Articles of War, and passed Its awn version of the British Mutiny Other colonies similarly adopted the British cade.0 A committee including John Adam was essential to the successful passage of the Articles of War on September 20, 1776.7 Adams in

   particular took great interest in the adoption of a militaq code. bur perhaps this is not surprising. given Adams's fascination with the miiitary.8 Adams justified-actuaiiy, sanctified-the adoption of the British militaly code by reference to ancient, and therefore virtuous, roots.s FVhile Adams may have aiiuded to the allegedly classical 011- gms of the new lau to downplag the adoption of the enemy's system of miiitaryjustice, it also 1s likely that this was a rhetorical appeal to the forefathers' sense of tradition.

   There was extant one system of Articles of FVar which had carried two empires to the head of mankind. the Roman and the British, for the British Articles of War were only a literal transiation of the Roman. It would be in vain for us to seek in our own inventions, or the records of warlike nations, for a more complete system of military discipline It was an observation founded in undoubted facts, that the prosperity of nations had been in proportion to the discipline of them forces by sea and land. I was, therefore, for reporting the British Art~clesof War totidem t'erbis lo

   evidence exm5 that the British System of military justice was based directly an the Roman system in the manner Adams suggests, but the British articles probably were influenced by continental codes. which may have developed in some part from Roman influences Adams might have been as impressed by the stern discipline of the British system as he was with its ancient orians. Adams stressed the need for tough discipline in the Continental Army to attain victory over the British Army.11 Civilian legmlators chose to

   ~Seeeg.-a!lydahnE Ferlmg, "Oh niolIU'o~oSold,n" Johnldamsondtk

   colonial revalutionariei admired ancient. especiallv Roman. polltical and legal riue ' SeeGoams Wmo. C R E A T I ~ or THE .AMERICAVREPIBLIC 48-53

   (1868) For example. the United Stares Arm? m the 1780s w a Called the 'Leeon and Mqar General Anthony Wayne was called the 'Leeonam General' 1 AMEBIC*\ STATE

   Anguishof War. 36111 9 218(18841

   PAPER;,

   mpra note I at 40-41 Coming full circle some eommentalOri hwe suggested that the emphali on clancal republlcanrsm and rlnue was m reactlen ID

   the endemic rarfare of the 18th century See E Wm)ne Carp, Early American iMdz Lory Hu'tory ARemau o/Rrcml Wmh. 84 \h Mio HIST. & Blac 218 282 118861

   103 JOHI Amas %'oms 07 Jmv A~iiiS

   68-68 (ISElI Adam9 SlJO remarked 'This wa another meaure that I canntantlp urged on Wlfh all the zeal and mdustm posible coniinced that nathrng short of the Roman and British dlrclpllne could pnssrbly sa~e

   UI ' Id at 53

   " S o ~ i i d at290, Btd at403 451 AdamSrrorerahiiwiferhatIf I wre an officer I am convmced I should be the most deeawe dawplinanan m the army Disciphne ~n an arm? 1s hke the laws m a elvll melet) mere can be no liberty m L commonwealth *here the laws Ujre not reiered and molt sacred13 obiened, nor can there be happines OTsafeiyinanarm) foraringle haurihendiJeiplineanorobaen-ed

   Adamialea bared...