To understand courts-martial at the time of the Founding, one must also understand the military (or organized violence more broadly) of the same period and the greater society within which it existed. And to do that, one must forget all you know of the modern military and instead imagine a completely foreign idea.

The very concept of nation-states delineated by geographical boundaries was, at best, an adolescent idea. The Treaty of Westphalia was a little over a hundred years old and nation-states were still working out monopolizing and centralizing the affairs of state and the organization of violence.

Painting this picture adequately is a major part of my ongoing research agenda (aka doing a lot of reading). But, basically, national patriotism virtually did not exist yet. Military recruiting–and loyalty–was much more personal. Those who led were politicians or “gentlemen” of status rather than military minds of merit. Those who were led had few other options for meaningful—or steady—employment. And a fairly large number were foreign born. Food, equipment, and pay were inconsistent an often inadequate.

Communication was limited and slow. It would be about another century before the railroad. Autonomy was just a fact of life in extended campaigns.

A smattering of state militias had responded to Massachusetts’s call for help after the British occupied Boston in an effort to stamp out the growing insurgency in the mid 1770s. The Continental Congress subsequently “re-christened” this ragtag, uncoordinated collection of independent armed groups of men the “Continental Army,” placing George Washington in charge.[1]

Along with creating the Continental Army, Congress enacted a statute to govern the conduct of the Army and to discipline misconduct, known as the Articles of War—a literal carbon copy of the British Articles of War.

This was not a criminal code in any sense of modern imagination. Its sixty-six articles essentially prohibited:

• Indecent or irreverent behavior at (required) Divine Service;
• Any “profane oath or execration” (blasphemous use of “God” or just your regular cursing);
• Lying;
• Contemptuous or disrespectful behavior toward a general;
• Striking, attempting to point a weapon at or violence toward a superior officer;
• Disobeying any lawful command of a superior officer;
• Mutiny or sedition;
• Desertion or absenting oneself without approved leave;
• Abandoning your post;
• Reproachful or provoking speeches or gestures;
• Dueling;
• Losing equipment assigned to you;
• Failing to go to your quarters (officer) or tent (enlisted) when Retreat is played;
• Failing to report to the parade or exercise ground;
• Being drunk while armed;
• Sleeping while on or leaving early from sentinel duty;
• Causing a false alarm;
• Letting the wrong person know the “watch-word;”
• Basically helping the enemy;
• Improperly releasing a prisoner or allowing one to escape;
• Committing violence toward or insulting or abusing anyone bringing provisions to the camp;
• Plundering while on duty.

And then there were two of my favorites that still largely exist to this day. Commissioned officers “shall be convicted . . . of behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman. . . .” Also, any non-capital crime—or any disorder or neglect—that prejudices good order and military discipline.

In an age long before modern due process notice requirements, the crime was in the eye of the beholder—command.

An interesting aside, two other groups of individuals were subjected to military discipline under the Articles of War. One is anyone involved with the artillery service and will take too long to describe its relationship to the regular army. The other was:

• “All sutlers and retailers to a camp, and all persons whatsoever, serving with the continental army in the field, though not enlisted soldiers. . . .”

But that’s another story for another time.

Courts-martial were the medium whereby punishment was inflicted (it would take a number of years for the development of alternative methods);[2] guilt or innocence was rarely the issue. These were more administrative boards than judicial institutions. Customary for the period, they were harsh, focusing exclusively on discipline rather than justice.[3]

Next time, I’ll explore the early players in these boards. Unless, of course, I get distracted by another rabbit hole . . .

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[1] The Navy as we know it today did not exist at this time. Over the course of the war, George Washington commissioned a few ships but mostly the “navy” consisted of privateers operating under letters of marque (private ship owners with a “pass” to attack British military and merchant ships and keep part of the booty).

[2] Or, if an officer, one’s “honor could be restored.”

[3] Jonathan Lurie, Arming Military Justice, Volume I: The Origins of the United States Court of Military Appeals, 1775-1950 3 (1992).