The Court-Martial: An Historid Survey

Authorby Captain (P) David A. Schlueter
Pages03

In this adicle, Captain (Pi Schlueter describes the deuelopm n t of the legal tribunal k m

(IS the court-madial.

Beginning with the use of this fmm oftrial in the annies of imperial Rome two thouaand years ago, the authm tmes its evolution t h w h the Middle Ages, to Britain from the Renaissance to the AMeanRevalutim. The focus then Shih to the United States, and the / o m then ships to the present day.

  1. INTRODUCTION

    The need for national defense mandates an armed force whose discipline and readiness is not unnecessarily undermined by the often deliberately cumbersome concepts of civilian jurisprudence. Yet, the dictates of individual liberty clearly require some cheek on military authority in the conduct of courts-martial. The provisions of the UCMJ with respect to court-martial proceed- This Prtieie ia bwed upon sn essay submitted by the author in pmid W m e n t of the requiremente of I seminar in legal hiatory conducted at the School of Lawof the Univemity of Virginia, Chariotteavilie, Virginia. The seminar w.8 eon-ducted by Rofesaor Calvin Woodard dvring the "ring eemester of the neademie year 197%18. The opinions and condudma expressed in thie Prticie am those of the author and do not neceeaprily represent the views of The Judge Advoente General's Schwl, the Department OF the h y , or my other governmental

    agency.

    *ITAGC. United States h y .

    Inetmetor, Criminal Law Diviaion, The Judge

    Ad"-te Oenernl's School, Chariottesvilie, Virginia. 1977 to pmient. Lectlver in Law, University of Virginia School of Law, Chariottesville. Virginia, 1979. B.A.. 1989, Texps A.&M. Univemity; J.D., 1971, Baylor Univemity Law Sehml, Wseo, Tern. Member of the Bmof Texw, the District of Columbia the Unifed Stotea h y

    Court of Military Review, the United States Court of Miiitpni Appeals, and the United States Supreme Court. Author of Ths Enliatmmt Cm-tmot' A Umqm A-aoh, 77 Mil. L. Rev. 1 (1877); book reviews publiehed at 78 Mil L. Rev. 206 (1977) and 84 Mil. L. Rev. 117 (1879); and utlciea published in Ths Annv Lowe?. No". 1974, st 21: Nav. 197, at 6 Jan. 1978, at 4: and Dee.1978, at 3.

    ings represent a congressional attempt to accommodate the interests of justice, on the one hand, with the demand8 for an efficient, well-disciplined military, on the other.'

    With these closing nards the United States Court of Appeals for the District of Columbia affnned the general court-martial conviction of Private Cuny He had argued frst that the present structure of the court-martial is fundamentally incompatible with the ilRh amendment guarantee of due process and would be prohibited in a civilian context. Secondly, he argued that the military had failed to produce any justification for the military justice system

    Cuny's arguments are not innovative: they typify the objections. past and present, to the forum of law commonly referred to 8s the "court-martial". As such they provide a convenient and timely cataly8t for discussing the historical traces of the court-martial A study of the historical foundations of the present system reveals the continuing threads, among others, of "due process" and the justification for a special, separate forum for administering justice in the military.

    The subject is broad and deep. Time and space prevent a more thorough historical analysis here of the court-martial. In some instances the development af the court-martial during several centunes muat af necessity be summarked in a few short paragraphs. Also omitted is discussion of the system of courts-martial employed by naval forces. But the flavor remains. The chief contributing factors or personalities are discussed. It is not the purpose of this article to defend the court-martial, but rather to briefly reflect on it8 development through literally centuries of development. The discussion is primarily threefold and centers on the statutory changes which most affect the ea&-martial. We will examine first the early origins of the court-martial in the European countries, then the development of the court-martial under the British system, and finally the maturation of that farum in the American system.

    h Curry V. Secretary of the Army, 596 € 2d 873 (D

    C Cir. 19791 at 880 Cumy had exhausted his military remedies though the Amy Court of Military Re\iex and the United States Court of hlihrary Appeals See atis 66 & 67, Uniform Code of Military Justice. 10 U S C. 9 5 866 and 867 (19iO) [hereinafter cited 8.3

    U.C.P.J.1

    11. THE EARLY EUROPEAN MODELSThe roots of the court-martial run deep. They predate written military codes designed to bring order and discipline to an armed, sometimes barbarous fighting force. Although some form of enforcement of discipline has always been a part of every military system, for our purposes wetrace the mot8 only as far back as the Roman system.

    In the Roman m e s , justice was normally dispensed by the magi& militum or by the legionary tribunes who acted either as sale judges or with the assistance of cauncils.2 The punishable offenses included cow. ardiee, mutiny, desertion and doing violence to a superior. Mile these offenses or their permutations have been cmed forward to contemporary settings, many of the punishments imposed upon the guilty have long since been abandoned: decimation, denial of sepulture, maiming, and exposure to the elements. Other punishments remain, such as dishanorable di~charge.~

    The Roman model was no doubt employed or observed by the later continental armies and is credited by most commentators as the template for later military codes. For example, the military code of the Salic chieftains, circa fifth centw, contained phrases closely approximating those in the Roman Twelve Tables. By the ninth century the Western Goths, Lombards, and Bavarians were also using written military codes.'

    The early European courts-martial took on a variety of forms and usages. Typically, the early tribunals operated both in War and in peacetime conditions, the former occupging the greater part of an m y ' s time. The Germans, in peacetime, conducted their proceedings before a count who was assisted by assemblages of freeman, and in war before a duke or military chief. Later, courts of regiments, the "regiment" being a mace or staff serving ab a symbol of judicial authority, were held by the commander or his delegate. For proceedings involving high-ranking cammanders, the King formed courts composed of bishops and nobles.6

    See W. Winfhrop, Millan. Law and Precedents 17, 45 (2d ed. 1920 reprint). See also 0.

    Sqmbb. The High Court of Chivalry (1969).

    Wmthrop, swra note 1, at 17.

    Winthmp, auym nore 2. at 18. See ala0 W. Aycock and S. Wmfel, Militmy Law Under the Uniform Code of Milltan. Juatiee 4 (19551.

    J. Snedeker. A BneP History of Courrr-Mmisi 7 (19541

    In Germany, courts-martial, or mzlitargenehts, were formally established by Emperor Frederick I11 in 1487, specifically provided for in the Denal code of Charles V in 1633, and refined still further under Maxi-kllian I1 in 1670.' In France, although a military code existed BS early

    BS 1378, courts-martial, eonseils de guerre, were not formally instituted by ordonnance until 1655.'

    But the contribution of the German and French systems to the overall development of the court-martial is overshadowed by two contributions which were very different and yet very similar: the age of chivalry and the witten military code of King Gustavus Adolphus.

    Of elusive origins, the age of chivalry is most often linked with the middle ages-those centunes after the fall of the Roman empire and before the Renaiasanee. Amidst the intense rivalries for land and power and the usual accompanqing dishonorable practices, "chevaliers" vowed to maintain order, and to uphold the values of honor, virtue, loyalty, and courage. The position and power of the chevalier rendered him an arbiter in matters dfecting his peers, and also his dependents who held his estates under the feudal system. From this informal system arose the more formal court of chivalry.

    The Duke af Normandy (William the Conqueror) vested the power and authonty of his court of chiwhy in his high officials; the particulars of this court will be discussed iater. It vas this system of military justice which he canied ta England in the 11th

    The second contributing factor, the written military code of King Gus-taws Adalphus of Sweden in 1621, was grounded on the need for honor, high morals, order, and discipline in a time when soldiers were generally considered barbarians and opportunists seeking the booty of war. King Adolphus was a barn leader, deeply religious, and a man of modern thought. During the siege of Riga, Poland, in 1621, he issued his 167 articles for the maintenance of order.' These provided for a regimental

    e Winthrap. mpm "0% 2. at 18. ' I d

    Ayeoek and Wurfel, 8upm note 4, at 4.

    see Winfhrop, sup0 note 2, at 19. The entre code is pnnied BQ an appendix LO Winthrop'a work. Wmthrap points out, and other rntera dude to the POlnr, 132

    ("lowe?') court-martial. The president of this tribunal was the regimental commander. and the court's members were elected individuals from the regiment.

    The standing court-martial (the "higher court") was presided over by the commanding general, and its members consisted of high ranking officers." If a gentleman or any officer was summoned before the lower court to answer for a matter affecting his life or his honor, the issue was referred to the higher, or standing court, far litigation.''

    The code provided a detailed guide far conducting the courts'^ and

    that the code of Adolphus contributes in large part ta later codes. He also notes that many English soldiers had selved under Adolphus. Id.. at 19. n. 16

    Article 142 provided

    In o w highest Marshall Court, shall o w General be Residenf; in his abaence OUT Field Marshall; when o w General1 is present, hie amxiate8 shall be ow Field Marshall xirat, next him OUT General Of %he Ordnance, Serjeant Major Generall, Generall ofthe Home...

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