By 1806, judge advocates were introduced as a mandatory aspect of courts-martial. Sort of. And only on the prosecution side. Sort of. Military defendants were, though, allowed to hire a civilian lawyer to represent them. Not really. But when they could, the lawyer usually wasn’t allowed to speak. . . .
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.
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.
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. 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.
Today, rarely anyone questions the military’s ability to prosecute a service member for any state or federal (military or civilian) offense simply due to his status as a member of the military. This is so regardless of where the offense occurred, who it involved, or whether there was any discernable (however remote) connection to military duty. It also does not matter whether the service member has been previously prosecuted in state court, or will be subsequently prosecuted in such court. This is an extraordinary deference by the Court and Congress during a period of equally extraordinary reverence for the military. It is also completely divorced from American history and experience—And may also be unconstitutional.