Modern day accusations of using the military for social experimentation appear unprecedented to modern readers. But this is just another example of the ever growing divide between the civilian population and military society. Since the early days of the Republic, military society has grappled with the most difficult social issues of the day well in advance of the broader public. Unlike broader society, the need for discipline forced the difficult questions debated in broader society into courts-martial. These stories have largely been relegated to a few academically minded military members. And our holistic understanding of our history has suffered. Until now. I am truly honored to review Dr. Chris Bray’s recent excellent book, Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond.
I loved this book. I wish I could just say, “it was awesome. You should read it.” But book reviews need more than that. Especially book reviews on books touching on military criminal law. It’s hard to garner civilian interest in this topic. Few civilian publishers and law review editors (in my case) are interested in topics not as sexy as military commissions, at least so long as these commissions are in the news. So I have spent some time trying to figure out how to present my thoughts on a book I thoroughly enjoyed and feel is integral to the understanding of not only our military criminal justice system, but to our society as a whole. I hope, in the following paragraphs, I do it proper justice.
This book could easily have been twice as long, if not more so. There certainly was enough substance for it. The story it tells is not that of a steady stream of progress from 1775 to present day. It is a series of vignettes, if you will, that together tell the story of a society that had to address societal changes and questions of identity in the face of a distinct need for order and discipline. It is a story of duty and justice. Of struggle and, in hindsight, often coming up short. Of honor, and doing what is right. But it is a story of a community trying to figure out how to handle the evolution of society, often well ahead of the conversations going on in broader American society.
There is so much to say about the stories in this book. I wanted to tease readers with a few select stories, but it was incredibly difficult to pick a small enough number. I chose the three below. I am not sure I picked the best ones, because there were so many stories worth telling that are found in the pages of Dr. Bray’s work. But I hope the following entices the readers of this blog to pick up this important book and explore military legal history.
Court-Martial as Social Enforcer
“Without clear boundaries, the personal lives of citizens were sometimes policed as military business.”
As Dr. Bray writes, civilian courts after the Revolution began recognizing an early conception of personal privacy in the household, but not the conception championed today. The sharp decline in wife-beating trials was not the result of a more enlightened male population. Free men in the early republic found themselves increasingly able to keep family conflicts private, and out of local courts.
Major General (MG) David Whitney, of the Vermont militia, was one of these men. In addition to abusing his wife, he “debauched” a friend’s wife, apparently attacked an old man and refused to make amends, and kept the company of “riotous and disorderly persons.”
But communities were smaller then, and more involved. MG Whitney faced a social public shaming by his neighbors known at the time as skimmington. He was “taken and placed by two or three persons astride a pole, or rail, between two horses, with a rope around his neck holden by a boy,” without fighting back. MG Whitney was then marched in public for several miles on public streets.
Disgusted by his personal behavior, and perhaps not satisfied with the civilian community’s response to punish that behavior, the militia looked to another forum to fill a perceived void—the court-martial. As Dr. Bray concluded, “[a] drunk neighbor could be construed as a disorderly soldier; a neighborhood quarrel could become military disobedience.” The subsequent court-martial convicted MG Whitney of “unofficerlike behavior” and sentenced him to be stripped of his rank and command.
Those who disagreed pushed back. The state’s Council of Censors, an elected watchdog committee, argued the citizen David Whitney may be a shameful person, but his misconduct had nothing to do with his military duties.
Modern day commanders and military lawyers grapple (or should grapple) with where to draw the line between citizen and military member. But Dr. Bray’s work shows us that our society has grappled with this question since the early days of the Republic; it behooves practitioners, commanders, military members, and the civilian population from which the military gains its members to be cognizant of this history.
Citizen-Soldier or Conscript
“Militiamen signaled that they were yeoman farmers under arms, freemen assembled consensually in the common defense; courts-martial answered that they were privates in the army.”
Throughout American military history, enlisted members served for a period of enlistment—a contract for service. So it was for 200 Tennessee militiamen serving in General Andrew Jackson’s federal army during the War of 1812. As the end of three months of service neared—the longest period militia could be held in service under earlier law and custom—these citizen-soldiers planned to go home. General Jackson refused to let them leave. Instead, he ordered these soldiers to serve six full months in the army. So they left.
But they did not just run off. They discussed their circumstances openly, asking their officers if it was appropriate to leave after three months. The response may surprise some modern commanders. As Dr. Bray writes, “[o]ff the battlefield, the officers of the antebellum militia, and especially the company officers, were more likely to give their men advice than orders.” Orders were for battle; here they spoke as gentlemen, “on purely personal terms.”
About as polite as the colonies announcing their revolution and independence from Great Britain through the Declaration of Independence, these soldiers turned in their weapons and went home. Some were run down and marched back to camp. Others made it home, only to return voluntarily, upon hearing their departure was contested, in order to argue the lawfulness of their actions.
Desertion during time of war was, and is, punishable by death. But these men did not feel they were deserters. They were citizens whose commitment had reached its end. They had not snuck away in the dark of night—they left camp and went home in the daylight.
As the Industrial Revolution dawned in later years, the young Republic would grapple with questions concerning the citizen and individual liberty in an age of centralization, both in Government and business. But here, in 1812, the custom of consensual service and willing obedience ran headlong into the harshness of a large, centralized federal army.
In an army, this question could not be debated over time—it went to court-martial. Those convicted were not kicked out of the service (the option most sought in courts-martial today). Instead, they were ordered to serve a full six months of military duty. Upon conclusion of this service, most had their heads half-shaved and “drummed out of camp in shame.” Dr. Bray describes drumming a soldier out of camp as a public “message that he’s unmanly and not fit to stand in the company of soldiers. . . .” More junior soldiers were subsequently pardoned. An officer had his sword broken over his back and drummed out, “ [t]he symbol of his status as an officer . . . destroyed against the anvil of his body. . . .” Six were condemned to die by firing squad. The story of one of these men is worth pulling direct from Dr. Bray’s excellent book:
“A colonel encouraged the condemned to die manfully, and five rose to that hard task. One, Henry Lewis, loudly announced to the crowd that he had served with honor, and fought with courage; loudly conceding his point, the colonel in charge took care to be heard by their shared audience. Then the men were forced to kneel on their own coffins, and six firing squads did their job. Or they almost did: Five men fell dead, but Lewis, the most respected of the condemned soldiers, was left without a wound that could quickly kill him. He fell off his coffin, then crawled back onto it. The commander of the firing squads approached him, and Lewis demanded that the colonel take note of his courage: ‘I am not killed, but I am sadly cut and mangled. Did I not behave well?’
Colonel Russell, whose first name doesn’t appear in the records of the execution, replied ‘with faltering voice,’ offering the clearest social verdict he could give: “Yes, Lewis; like a man.’ For a nineteenth-century military audience, this was the highest theatre, a spectacular demonstration of manhood: Shot four times, a soldier climbed back up to the place he’d been officially posted, and resumed a spirited defense of his personal character.”
Long before the civilian world struggled to understand the role of the citizen in an increasingly centralized and industrialized society, military society struggled to balance these competing interests. Courts-martial records are rich with amazing stories such as Henry Lewis—and they are worth studying.
A Civil Rights Movement, Before the Civil Rights Movement
“The question of equal pay became a matter for courts-martial, which had to decide if a refusal to serve under unjust conditions was forgivable protest or simply the dire and harshly punishable act of mutiny.”
The Emancipation Proclamation and the later Thirteenth Amendment freed four million slaves, but neither addressed what should happen next. As Dr. Bray writes, “in the rapid course of a very few years, freed slaves were dumped into an economy and an environment in which no place had been prepared for them.” Many ended up in the Army, so wrestling with where African-Americans fit within American society fell to an institution bound by the need for swift discipline. Thus, this struggle played out in the court-martial.
Army privates during the Civil War received $13 a month, plus a clothing allowance. Before Congress enacted the Militia Act of July 1862, a law specifically aimed at the formal recruitment of African-Americans, a number of African-American men enlisted at that promised rate. But the new authorized $10 a month, $3 of which may be in clothing, and one ration. Over time, enough was enough. “Empowered by their service and their sacrifice, the soldiers of African American regiments didn’t tolerate the real personal loss and symbolic insult of lower pay.”
In one example, soldiers of the 3rd South Carolina Colored Infantry protested this inequity by laying down their arms and refused duty unless they were treated equally. Their commander, Lt Col Augustus Bennett, warned them of the consequences of mutiny—execution. Undeterred by almost certain death, Sergeant (Sgt) William Walker instructed his fellow soldiers “not to retake their arms.” The Army that freed him from slavery, that he volunteered to serve, subsequently convicted him in a court-martial and executed him. “Eleven men in the first firing squad managed to hit him a total of one time with their coordinated volley, flinching from the task. A second firing squad finished the job.”
But the story is much more complex. This is a story of the Army’s struggle to address this social issue far in advance of broader society. On the day of Sgt Walker’s arrest, Lt Col Bennett and every officer of the regiment present signed a letter to the War Department, protesting “the injustice of giving unequal pay to men who had been recruited with a promise that they would be treated like soldiers of the US Army.” Soldiers did their duty, but they felt it unfair.
Read this book. It is full of these stories. There is so much here that I feel I still do it injustice to limit my examples to three. There are so many fascinating individual stories that, at times, the theme does not always come through. But it introduces us to our history, the history the military contributed to our broader society. Practitioners must read this. But so should commanders, military members, civilians interested in military law, and scholars interested in American history.