What Are The Origins of American Military Court Martials?

For as long as there has been war, there has been a need for military forces to maintain discipline within the ranks. The history of the American courts martial dates back to the Roman Empire, where the earliest known written code of military justice is found.1 The Roman Army addressed many of the same disciplinary infractions as the modern U.S. military, including desertion, disrespect to a superior officer, and cowardice. Punishment under the Roman code was often severe, and included decimation (death), denial of sepulture (burial rights), maiming, and exposure to the elements. The Roman code served as the foundation for later military justice codes in Europe and the Americas.2

The original American military justice code, which predates the U.S. Constitution and the Declaration of Independence, was called the Articles of War.3 This early system was modeled after the 1774 British Articles of War, which was shaped by the Medieval court of chivalry and the written military code of King Gustavus Adolpus of Sweden in 1621. These two historical developments identified the need for honor, high morals, and discipline in the military. More importantly, both recognized the need for the modern concept known as due process.4

The United States military justice system remained virtually unchanged until after World War II.5 During World War II, approximately 2 million service members were court martialed, resulting in over 80,000 felony convictions. After the war, many bar associations and veterans’ groups demanded a system that was similar to the civilian criminal courts. In 1947, the first secretary of defense, James Forrestal, led the charge in establishing a uniform system of military justice for all branches of service. Prior to 1947, each service had a separate, although similar, military justice system. As a result, the first Uniform Code of Military Justice (UCMJ) was enacted in 1951.6 From 1950 through today, the military justice system has undergone major changes that have helped create an open and fair judicial system for America’s service members.

Some of the major changes include: a requirement that defense counsel be licensed attorneys; the adoption of military rules of evidence based on the Federal Rules of Evidence; and an independent trial judiciary.7 The modern UCMJ is a comprehensive criminal code. It covers conduct affecting good order and discipline in the military, such as being absent without leave (AWOL), disrespect toward superiors, disobeying orders, desertion, dereliction of duty, conduct unbecoming an officer and gentleman, malingering, misbehavior before the enemy, spying, and many other military-related offenses.

The UCMJ also includes crimes that are commonly punished in civilian court, such as rape, murder, larceny, drug offenses, and assault.8 For a more comprehensive study of the History of the American Court Martial, you should read Military Criminal Justice: Practice and Procedure (6th ed. 2004), written by David Schlueter. Mr. Schlueter is the foremost expert in the field.

 

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