The Court-Martial Panel of the Founding Era

The Continental Congress enacted the first Articles of War under fire. British troops occupied Boston. The British Navy blockaded Boston Harbor. The “Shot Heard ‘Round the World” was fired at Lexington. Neighboring colonies sent militia to assist the Massachusetts response. The Siege of Boston was underway. The colonies were at war with Great Britain.

Under this emergency condition, the Continental Congress rather hastily copied Massachusetts—a rather strictly Puritanical colony that basically copied the British Articles—without much, if any, debate.[1] Recognizing some deficiencies, they were completely “revised” a year later. And by revised, I mean an even more exact replica of the British Articles.

By 1806, the Articles were once again amended.[2] The war with Great Britain had ended. But the British still held forts in the colonies. The Native American population on the frontier was still considered an immediate threat to the nascent United States of America. And it was being pulled into another European conflict that would result in the War of 1812.

The very existence of the United States remained in peril.

The court-martial of this era was the only legal mechanism whereby the “gentleman” class could control the behavior of increasingly large bodies of the “lower class” of men mostly driven by a need for steady pay, largely amateur and untrained in organized violence, many if not half from foreign countries, fighting on American soil in a time when not only political but material support was essential, without the ability to consistently pay, feed, clothe, or equip them. All during a period where discipline (read: intestinal fortitude) required standing much closer to the enemy, exposed in open space for long periods of time, with carnage and devastation all around.

The court-martial of this era looked markedly different than today, and completely foreign to our conceptions of a judicial body. They were disciplinary administrative boards . . . with the power to recommend death. A military commander of the appropriate rank and command had the authority to convene such a body to consider allegations of misconduct in violation of the Articles of War (and later the Rules for the Governance of the Navy). It heard the evidence, decided whether the misconduct occurred, reported back to the commander and recommended a sentence. He made the final call (basically).

A court-martial got its name by its authority to punish. A General Court-Martial (GCM) had the authority to recommend up to the most severe punishment; a Garrison Court-Martial was faster, smaller, and more limited in punishment options. In civilian parlance, think traffic court, courts that hear misdemeanor cases, courts that hear felony cases, etc (again, sort of).

Lets take a look at the early GCM.

It had no judge. The concept of a “military judge” did not exist until 1968. The commander issued an order to a group of men to pause their current duties (or to take on this additional duty) and report to a place at a certain time to receive evidence concerning alleged misconduct, determine whether the misconduct occurred, and recommend a particular punishment to the commander. This group was, and still is, called the panel.

Only commissioned officers sat on panels. Remember that America remained largely a class based society and officers came from the “gentlemen” class. Enlisted persons were prohibited.

Like broader civilian society, the Articles of War required GCM panels to be composed of thirteen officers—a President and twelve members. The President’s duties were part foreman-like and part manager on duty-like, and always cognizant of military (and class) hierarchy. He kept the proceedings orderly and moving along, and was the senior ranking officer in the room. The boss. Until 1828, the commander that convened the GCM specifically detailed an officer to the role. After that, the duty fell to whomever the senior ranking member of the panel was.

These panels of non-lawyers served judge-like and jury-like roles. Better said, they were administrative disciplinary boards. Decisions about the proceedings were made as a group.

By 1806, a judge advocate was introduced into these proceedings. On the government side. We’ll dip our toes into the role of advocates (advocate, really) in early courts-martial next time.  

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[1] As interesting trivia, though confinement was common between arrest and the rather speedy convening of a court-martial, it was non-existent as a post-conviction punishment. A soldier was mostly either whipped or drummed out of the camp . . . or whipped and drummed out of the camp.

[2] The Articles would not again be amended until the Civil War era.

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