THE CONSTITUTION AND ITS AFTERMATH:

1786-1806

The Articles of Confederation of 1781 being found inadequate to the needs of the new nation, the Constitution was ratified in June 1788. The new Constitution provided:

U.S. Constitution art. II, s 2: "The President shall be Commander in Chief of the Army and Navy of the United States, and the militia of the several states, when called into the actual service of the United States. . ." U.S. Constitution art. I, s 8 gave Congress the power "to declare War . . . to raise and support Armies... to provide and maintain a Navy; To make Rules for the Government and Regulations of the land and naval Forces..."

These provisions were soon put to the test. In 1794, the Whiskey Rebellion in western Pennsylvania had to be put down by the militia of Pennsylvania and other states. During the same year, England was charged with inciting the Indians to hostility, with imprisonment of American seamen, and with the capture of American merchant ships. Jay's Treaty calmed conditions with England, but immediately involved the US in difficulties with France, who regarded the treaty as evidence of a pro-British policy by the US. Fighting on the sea occurred with France and in 1800 the treaty of alliance of 1778 with France was abrogated.

Meanwhile, General Arthur St. Clair (1791) and General Anthony Wayne (1794) were fighting the Indians in Ohio.

The articles of 1806, which superseded all other enactments on the same subjects, were adopted by Congress mainly for the reason that the changed form of government rendered desirable a complete revision of the code. These Articles—one hundred and one, in number, with an additional provision relating to the punishment of spies-remained in force, (except as amended,) for nearly seventy years, or till the enactment of the revised code of 1874.

The Articles of 1806, then, extended the authority of commanders to convene general courts and substituted the President for Congress in those cases in which the later had previously been vested with final revisionary authority.

COMMON LAW FELONIES: 1806-1874

The Articles of 1806 remained in effect during four wars: the War of 1812, the Mexican War, the Civil War, and part of the Indian Wars. During this period 33 articles were added or amended, but no major changes were made. As might be expected, the Confederate States adopted these same articles, supplementing them with procedural changes of their own.

Between 1806 and 1874, a fourth court martial—the Field-Officers Court, authorized however only in time of war-was added to those previously established; the authority to order general courts was still further extended, and

their jurisdiction and powers were enlarged. The legislation by which the changes were introduced has been heretofore indicated as embraced in the code of Articles introduced in the Revised Statutes of June 22, 1874.

Until 1863, the Articles of War did not include common law felonies, such as larcency, murder, assault, battery, and rape, and after 1863 a court-martial had jurisdiction to try such crimes only "in time of war, insurrection, or rebellion."

Therefore, the role of the commander was further expanded during this period to try nonmilitary crimes "in time of war." For the first time, the military law provided for the trial of soldiers by court-martial for common law offenses even if such offenses were not per se prejudicial "to good order and discipline."

COMMON LAW FELONIES IN PEACE TIME:

1874-1916

Wars continued. There was the Spanish-American War in 1898; the Philippine Insurrection in 1809-1902; the Boxer Rebellion in China in 1900; and the start of World War I in 1914. Finally, Pershing, in 1916, led a punitive expedition against Mexico.

Under the Articles of War, 1916, a court-martial could now try common law felonies in time of peace, except that a court-martial could not try servicemen accused of murder or rape committed within the continental United States in peacetime.

During this period, the court-martial was regarded as a function of command, and the commander was expected to use it to maintain order and discipline. The commanding officer convened the court, selected the members from among the officers under his command and was called the "appointing authority" when acting in this capacity. The commander who convened the court was also the "reviewing authority" and had the power to approve or disapprove the sentence in whole or in part and to return it to the court for revision if he believed the result was improper. These principles are well-illustrated in the following US Supreme Court case decided in 1879:

EX PARTE REED

(1879) 100 US 13, 25 L ed 538

Swayne, J. . . . [19] There is no controversy in this case about the facts. The questions we are called on to consider are all questions of law. a brief summary of the facts will, therefore, be sufficient.

The petitioner, Reed, was the clerk of a paymaster in the Navy of the United States. He was duly appointed, and had accepted by a letter, wherein, as required, he bound himself "To be subject to the laws and regulations for the government of [20] the navy and the discipline of the vessel." His name was placed on the proper muster-roll, and he entered upon the discharge of his duties. While serving in this capacity, charges of malfeasance were preferred against him, and on the 26th of June, 1878, he was directed by Rear-Admiral Nichols to appear and answer before a general court-martial, convened pur

suant to the order of that officer on board the United States ship Essex, then stationed at Rio Janeiro, in Brazil. The court found the petitioner guilty, and sentenced him accordingly. The admiral declined to approve the sentence and remitted the proceedings back to the court, that the sentence might be revised. The court thereupon pronounced and following sentence in substitution for the former one:

"That the said Alvin R. Reed, paymaster's clerk, U.S. Navy, be imprisoned in such place as the honorable Secretary of the Navy may designate, for the term of two years; to lose all pay which may become due him during such confinement, excepting the sum of $10 per month, this loss amounting to $1,960; to be fined in the sum of $500, which fine must be paid before or at the end of the term of confinement. Should such fine not be paid at end of the term of confinement, to be detained in confinement without pay until such fine be paid, and at the expiration of the term of confinement to be dishonorably dismissed from the naval service of the United States."

This sentence was different from the preceding one in two particulars, and in both it was more severe. It was approved by the admiral, and ordered to be carried out. The court was subsequently dissolved. While in confinement, under the sentence, on board a naval vessel at Boston, the petitioner sued out a writ of habeas corpus, and brought his case before the Circuit Court of the United States for the District of Massachusetts. After a full hearing, that court adjudged against him, and ordered him back into the custody of the naval officer to whom the writ was addressed. The petitioner thereupon made this application in order that the conclusions reached by the circuit court may be reviewed by this tribunal.

It is supposed that courts-martial were intended originally to be a partial substitute for the court of chivalry of former times. [21] 3 Christian's Bl. 68, 108; Bouv L Dic. tit Courts-martial. The difference between military law and martial law it too well known to require any remark, 1 Kent. Com, 12th ed. 241, n a. “... The common law . . . knew no distinction between citizen and soldier: so that if a life-guardmen deserted, he could only be sued for a breach of contract; and if he struck his officer, he was only liable to an indictment or an action of battery." 2 Campbell, Lives of Ch. J., 91.

...

The constitutionality of the Acts of Congress touching army and navy courts-martial in this country, if there could ever have been a doubt about it, is no longer an open question in this court Const art 1, sec 8 and amendment 5. In Dynes v. Hoover, 20 How. 65, 15 L ed 838, the subject was fully considered and their validity affirmed.

The regularity of the original organization of the court here in question is not denied.

Three points in support of the petition have been brought to our attention. It is insisted:

1. That the court had no jurisdiction to try a paymaster's clerk.

2. That when the first sentence was pronounced, the power of the court was exhausted, and that the second sentence was, therefore, a nullity.

3. That the court could revise its former sentence only on the ground of mistake, and that there was no mistake and, consequently, no power of revision. The first of these propositions is clearly not maintainable.

Where the punishment is death, or fine and imprisonment, the jurisdiction in question is extended to all persons "in the naval service of the United States," RS, sec 1624, arts 4, 14; and it embraces, besides the frauds enumerated, “any other fraud against the United States." RS, sec 1624, art 14.

In case of conviction, adequate punishment is required to be adjudged. RS, sec 1624, art 51.

Except where the sentence is death or the dismissal of a commissioned or

warrant officer, it may be executed when confirmed by the officer ordering the court. RS, sec 1624, art 53.

The place of paymaster's clerk is an important one in the [22] machinery of the navy. Their appointment must be approved by the commander of the ship. Their acceptance and agreement to submit to the laws and regulations for the government and discipline of the navy must be in writing, and filed in the department. They must take an oath and bind themselves to serve until discharged. The discharge must be by the appointing power, and approved in the same manner as the appointment. They are required to wear the uniform of the service; they have a fixed rank; they are upon the pay-roll, and are paid accordingly. They may also become entitled to a pension and to bounty land. Navy Reg of August 7, 1876, p 95; In re Bogart, 2 Sawy 396; U.S. v. Bogart, 3 Ben, 257; RS, secs 4695, 2426.

The good order and efficiency of the service depend largely upon the faithful performance of their duties.

If these officers are not in the naval service, it may well be asked, who are. The second and third points will be considered together.

The Secretary of the Navy is authorized to establish "Regulations of the Navy," with the approval of the President. 12 Stat at L, 565; RS, sec 1547. Such "Regulations for the Administration of Law and Justice" were issued on the 15th of April 1870. Thereby it is declared as follows:

"The authority who ordered the court is competent to direct it to reconsider its proceedings and sentence for the purpose of correcting any mistake which may have been committed.

It is not in the power of the revising authority to compel a court to change its sentence, where, upon being reconvenced by him, they have refused to modify it, nor directly or indirectly to enlarge the measure of punishment imposed by sentence of a court-martial.

The proceedings must be sent back for revision before the court shall have been dissolved." Reg. ch 5, secs 262-264.

Such regulations have the force of law. Gratiot v. U.S., 4 How, 80.

The proceedings with respect to the revision of the second sentence were in conformity to these provisions.

It is clear that the court was not dissolved until after the approval of the second sentence by the admiral.

It is clear that the court was not dissolved until after the approval of the second sentence by the admiral.

[23] The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances. The exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review by an appellate court.

We do not overlook the point that there must be jurisdiction to give the judgment rendered, as well as to hear and determine the cause. If a magistrate having authority to fine for assault and battery should sentence the offender to be imprisoned in the penitentiary, or to suffer the punishment prescribed for homicide, his judgment would be as much a nullity as if the preliminary jurisdiction to hear and determine had not existed. Every act of a court beyond its jurisdiction is void. Nash ("Cornett") v. Williams, 20 Wall, 226, 22 L ed 254; Windsor v. McVeigh, 93 US 274, 23 L ed 914; 7 Wait, Act and Def, 181. Here

there was no defect of jurisdiction as to anything that was done. Beyond this we need not look into the record. Whatever was done, that the court could do under any circumstances, we must presume was properly done. If error was committed in the rightful exercise of authority, we cannot correct it.

A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be, not merely erroneous and voidable, but absolutely void. Ex parte Kearney, 7 Wheat, 38; Ex parte Watkins, 3 Pet 193; Ex parte Milligan, 4 Wall 2, 18 L ed 281.

The application of the petitioner is, therefore denied.

THE GREAT DEBATE: 1916-1920

In 1917, Germany renewed unrestricted submarine warfare. This was the spark which was to ignite the US and war was declared on Germany on April 6, 1917.

The Articles of War which applied to millions of conscripted servicemen in World War I was essentially the same code as enacted in 1775 by the Continental Congress.

General Samuel T. Ansell, the Acting Judge Advocate General of the Army, argued that the existing system of Military Justice was unAmerican.

He stated

Under such a theory, a commander exercising an almost unrestrained and unlimited discretion in determining: who shall be tried, the prima facie sufficiency of the proof, sufficiency of the charge, all questions of law arising during the progress of the trial, the correctness of the proceedings and their sufficiency in law and fact. Under such a theory all these questions are controlled not by the law but by the power of the military command.

Senator Chamberlain of Oregon attempted to enact General Ansell's ideas into law via the Chamberlain Bill. However, the bill was opposed by Major General Enoch H. Crowder, the Judge Advocate General of the Army. Opposition to the bill was voiced most vehemently by Mr. Frederick G. Bauer, a former lieutenant colonel in the Judge Advocate General's Department:

The so-called "Kernan Board," after a full examination of the question, recommended only moderate changes although the Chamberlain bill which has been introduced in Congress aimed to revolutionize our system of military justice by ... changing the Articles of War from an instrument for maintaining discipline into a prize ring wherein to display the prowess of the "guard-house lawyer."

Most of General Ansell's proposals were rejected by the Congress with only a few reforms reflected in the new Articles of War passed in 1920. However, the proposals were to pay a large role in the shaping of the next code, the Uniform Code of Military Justice, 1951.

The 1920 Articles of War made no changes in the wording of crimes from the 1916 Articles, but the President was given authority to pre