Courts-martial in The United States - Historical Development

Historical Development

From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its British predecessor, predates the Articles of Confederation and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.

Tribunals for the trial of military offenders have coexisted with the early history of armies. The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces. Both the ancient Greeks and the Romans had military justice codes, although no written versions of them survive. Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.

The greatest influence on the modern court-martial comes from the Court of Chivalry in England and the military code of Sweden's King Gustavus Adolphus. These courts both struck a balance between the demands of good order and discipline and the concepts of due process. This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War. The early British Articles of War reflected a concern for due process and panel member composition.

When war broke out between the American Colonists and the British in 1775, the British were operating under the 1765 edition of the Articles of War. This version would serve as the template for military justice in the Continental Army. When the United States declared independence and fought the Revolutionary War, "it had a ready-made military justice system." Despite the Colonists' dissatisfaction with the British, they still recognized the intrinsic value of the British military justice system in providing good order and discipline to its own armed forces.

While the 1765 British Articles of War were the template for the American military justice system, the Founding Fathers decided to break away from the British system in significant ways. First, the American Articles of War were created by a legislative enactment and not by an executive order. In the American system, the legislature undertook the government of the armed forces from the beginning - military justice was not going to be left to the executive. Second, Congress demonstrated its flexibility and willingness to change the Articles as necessary. The top military lawyer, Colonel William Tudor, informed Congress that the Articles were in need of revision. Congress would go on to revise the Articles several times to reflect the realities of a small military force. Nonetheless, the commander retained his role in the administration of justice.

The Founding Fathers perceived the weaknesses and merits of the British Articles of War. They updated, revised, and provided flexibility to a rigid legal system, with concerns for due process and the importance of providing good order and discipline to its own armed forces. The Founding Fathers maintained the role of the commander in military justice. Once independence was achieved, the Founding Fathers could create a "more perfect Union" and assign the military its proper place within it.