A Potential Working Definition of Military Common Law

One of the obstacles to researching military law is most of the scholarship occurred prior to the digitization of law journals. Many insightful articles are found by accident, buried in a footnote and inaccessible through research sites such as Westlaw and LexisNexis. One such article is CAPT Guy Zoghby’s 1965 article, Is There a Military Common Law of Crimes.[1] While he focuses on civilian offenses found in the Uniform Code of Military Justice (UCMJ), Zoghy does give us at least a starting definition of military common law.

Zoghby begins his article with the statement, “[i]t is usually stated with dogmatic certainty that there is no military common law of crimes.” Citing Black’s Law Dictionary, Zoghby defined common law as:

the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs. . . .

One of the conundrums of military law is its courts are federal courts, but federal courts do not have common law jurisdiction. “All crimes must be defined by an act of Congress and the statute must be within the powers conferred on Congress by the Constitution.”[2]

On the other hand, Zoghby recognizes, Colonel William Winthrop–the Blackstone of Military Law–concluded military law “has also a lex non scripta or unwritten common law of its own.” In other words, customs of the service.

The Articles of War (1920) grouped murder, rape, manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, perjury, forgery, sodomy, assault, and assault with a dangerous weapon into just two Articles.[3] But it failed to define any of them.

Zoghby then offers a working definition of military common law:

In construing and applying this new Code, the Court of Military Appeals must seek sources of law to help define these crimes further and apply them to particular fact situations, presumably as Congress intended. It is submitted that since our codal system was drafted by Congress in relation to various sources of law, and interpretation of the Court of Military Appeals will be accomplished by referring to those sources and others that are available. It is those sources of law, outside of the Code, and consisting of rules or norms that the Court of Military Appeals uses to decide cases, that constitute a working definition of a “military common law of crimes.”

Zoghby’s thesis is that the UCMJ proscribed certain civilian offenses that are common law crimes, but did not define them. In the absence of these definitions, military courts generally, and the CAAF specifically, must look to the common law definitions of these offenses. This is the military common law.

The same argument appears even more applicable to military-specific offenses. Historically a small society, members or the Army and Navy did not need definitions because punishable offenses arose out of customs of the individual service.

Of course, today one would be hard pressed to find a custom of the service not captured in a law or regulation, particularly as the UCMJ has been continually amended to more closely mirror federal courts. But though the Due Process right to notice cuts against studying the military common law tradition for the courtroom, it is likely to assist scholars in understanding the history behind why these offenses were punishable, and how that intersects with military society and history.

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[1] Guy A. Zoghby, Is There a Military Common Law of Crimes, 27 Mil. L. Rev. 75 (1965).

[2] Of course, this presupposes that courts-martial, intermediate military appellate tribunals, and the United States Court of Appeals for the Armed Forces (CAAF) are courts at all. But that is for another day.

[3] Article 92. Murder—Rape. Any person subject to military law who commits murder or rape shall suffer death or imprisonment for life, as a court-martial may direct; but no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and that of Columbia in time of peace.

 

Article 93. Various Crimes. Any person subject to military law who commits manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, embezzlement, perjury, forgery, sodomy, assault with intent to commit any felony, assault with intent to do bodily harm with a dangerous weapon, instrument, or other thing, or assault with intent to do bodily harm, shall be punished as a court-martial may direct.

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