Lore of the Corps: The Articles of War and the American Revolution

Lore of the Corps

The Articles of War and the American Revolution

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By Dr. Nicholas K. Roland, Ph.D.

We have it in our power to begin the world over again. A situation, similar to the present, hath not happened since the days of Noah until now. The birthday of a new world is at hand . . . .1

The American Revolution has often been noted for its incongruities. The product of a highly ideological cause, the American republic was also “born in an act of violence,” in the words of one commentator.2 In other words, to secure the “new world” that Thomas Paine and other revolutionaries envisioned, the United States would have to man, train, and equip a military force capable of winning a bloody land conflict with the British Empire. The oftentimes countervailing forces of philosophical ideals and military necessity thus constituted one of the central tensions in the American War of Independence. The administration of military justice in the Continental Army is a prime example of this tension.

The Colonial View on Military Justice

The administration of military justice was a relatively common experience in colonial America. The militia system meant widespread periodic military service for adult men. Multiple wars with indigenous and imperial opponents in the seventeenth and eighteenth centuries saw the extensive use of provincial militia, and their concomitant exposure to courts-martial and military discipline.

The French and Indian War, or Seven Years War, was an important point of departure between Great Britain and her American colonies. The war caused the deployment of large numbers of British regular troops to North America for the first time and, in 1756, the subjection of provincial troops to the British Articles of War.3 At the time, the purpose of military justice was to enforce a rigid system of discipline, and aristocratic British military leadership pursued their prerogative with gusto.

The British Articles of War contained sixteen offenses that merited capital punishment and placed no limits on corporal punishment.4 This reflected the eighteenth-century British justice system as a whole, which relied largely upon terror to maintain order.5 Between 1757 and 1763, more than 24 percent of general courts-martial in the British Army resulted in capital convictions. Extreme forms of corporal punishment were often substituted for executions of convicted soldiers, with general courts-martial sentences to flogging averaging 742 lashes during the same period. This average would rise during the American Revolution to 791 lashes.6 While not common, deaths from flogging were certainly not unheard of in the British Army.

Edwin Austin Abbey’s painting depicts Baron Friedrich Wilhelm von Steuben drilling recruits at Valley Forge in 1778 (Source: Army.mil)

Provincial troops in the Seven Years War routinely sought to evade ironhanded British military discipline. Historian Fred Anderson documents that provincial officers often chose to handle disciplinary matters within the confines of their regiments rather than expose their men to a British court-martial. Instead of brutal corporal punishment, “consistency, solidarity, entreaty, and instruction” were heavily relied upon to convince militiamen to do their duty. Punishments imposed by lower-level regimental courts were ridiculously light in comparison to those commonly meted out by the regulars.7

Until they were superseded by British military law, colonial militia codes also reflected the distinctive moral and political tone of the colonies. For example, the Massachusetts Mutiny Act of 1754 did not specifically mention flogging, but the colony’s law was understood to impose a maximum of thirty-nine lashes. This reflected the Biblical limit in Deuteronomy 25:3, and was a fraction of the number of lashes commonly imposed among the regulars.8 The Massachusetts military code also required that the colonial governor approve any sentence of capital punishment prior to its execution. The British code required no such civilian oversight.

Colonial resistance to the British Army’s brutal system of discipline helped to mark a growing divide between colonists and their British cousins. Moreover, the British Army’s approach to disciplining its soldiers drew a sharp distinction in the minds of colonists between freeholding militiamen and the apparently servile “Lobsters” who took the King’s shilling.9 Seen through the lens of the republican political ideology prominent in the colonies, a standing army manned by troops from the lower classes who served for life and were driven by the lash—something akin to an army of slaves—was a mortal threat to liberty.10 In at least a small way, exposure to British military justice helped push the colonists toward rebellion and independence in the 1770s.

Enlightenment ideas also had a major impact on colonial thinking. With the outbreak of the American Revolution, America’s patriot leadership believed they had an opportunity to “begin the world over again.”11 The establishment of republican governments and the application of Enlightenment ideals would create a rational, humane New World that would break from the benighted, ancient ways of Europe. As historian Gordon Woods notes, “nearly every piece of writing about the future was filled with extraordinarily visionary hopes for the transformation of America.”12

This humanistic attitude is reflected in revolutionary notions about criminal justice. Cesare Beccaria’s On Crimes and Punishments (1767) was a particularly influential text for patriot thought leaders like Thomas Jefferson. Beccaria denounced torture, disproportionate punishments, and the death penalty. His ideas would later see their expression in the Eighth Amendment to the U.S. Constitution, reforms to state penal codes, and the establishment of penitentiaries.13

An idealistic “policy of humanity” would carry over into an approach toward both the administration of the American army and its conduct of the war. As historian David Hackett Fischer notes, “American leaders believed that it was not enough to win the war. They also had to win in a way that was consistent with the values of their society and the principles of their cause.”14 The Second Continental Congress would attempt to implement this vision in the summer of 1775.

The First American Articles of War

The opening battles of the American Revolution were fought on 19 April 1775 at Lexington and Concord, Massachusetts, near Boston. After the initial fighting, thousands of New England militiamen laid siege to the British garrison within Boston. Each colony’s militia operated under its respective provincial code of regulations, and operations were undertaken on the basis of consensus between the leaders of each colonial contingent. The American defeat at Bunker Hill on 17 June, while inflicting heavy losses on the attacking British, exposed deficiencies in the organization and discipline of the militia army.

Meanwhile, in Philadelphia, Congress was taking action to raise military forces under its jurisdiction. The creation of a regiment of riflemen on 14 June marks the founding of what would become the U.S. Army, predating independence by more than a year. The following day, Congress appointed George Washington to serve as the new Continental Army’s commanding general, charging him with “causing strict discipline and order to be observed in the army” according to “the rules and discipline of war (as herewith given you).”15

The “rules and discipline of war” mentioned in Washington’s commission referred to a military code that Congress had yet to establish. One day earlier, Congress had appointed Washington, Philip Schuyler, Silas Deane, Thomas Cushing, and Joseph Hewes as members of a committee to prepare rules and regulations for the new Continental Army. Washington apparently met with the committee at least once.16

The committee reported to Congress on 28 June. While no record of the debate seems to exist, Congress discussed the proposed regulations on the next two days before passing the first American Articles of War on 30 June.17 Its sixty-nine articles generally followed the Articles of War passed by the Massachusetts Provincial Congress in April 1775.18

The Massachusetts articles themselves were largely a carryover from the older acts passed during the French and Indian War. In a preamble stating the necessity for establishing a provincial army, Massachusetts’s Provincial Congress conveyed the revolutionaries’ hopeful views on military justice:

[H]aving great confidence in the honour and public virtue of the inhabitants of this Colony that they will readily obey the Officers chosen by themselves, and will cheerfully do their duty when known, without any such severe Articles and Rules, (except in capital cases,) and cruel punishments as are usually practised in Standing Armies, and will submit to all such Rules and Regulations as are founded in reason, honour, and virtue.19

The Articles of War as passed by Congress were similar to those of their British opponents in enumerating various military offenses and describing the composition and conduct of various courts-martial. A stark difference, however, existed in the authorization of punishment for violations of the army’s rules and regulations. Only three offenses carried the death penalty, while sentences to flogging were limited to thirty-nine lashes.20

Following precedent in establishing a new military’s justice system makes a great deal of sense given the exigencies of a war already begun. Yet the Articles of War of 1775 also reflected distinctly American attitudes and experiences with military justice, and the American Founders’ vision of an enlightened, virtuous republic defended by citizen-soldiers. Rather than simply copy their opponents, as in many things, America’s leaders in the Second Continental Congress tried to chart a new, more humane course in the history of Western military justice.

Revolutionary Idealism Versus Military Necessity

In contrast to Congress, General George Washington’s own views on military justice were more akin to those of his British counterparts. Nonetheless, in obedience to his charge “punctually to observe and follow such orders and directions from time to time as you shall receive from this or a future Congress,” Washington adhered to the initial Articles of War in 1775–1776.21 A revision passed in November 1775 added sixteen offenses, four with capital punishments authorized.22 Over time, however, Washington advocated for more punitive articles and harsher punishments to maintain good order and discipline as he struggled to forge “a respectable army.”23

Washington’s concerns about discipline were paired with his desire to create an army of adequate size and permanence to defeat the British. By the winter of 1775–1776, the militia who had initially answered the call at Boston had largely gone home. The American war effort in the campaigns of 1776 would rely upon a small Continental Army augmented with local militia called up for temporary service. This approach proved disastrous in the New York campaign of 1776, resulting in the loss of New York City and the near destruction of Washington’s army. Washington summarized his thoughts on the issue on 2 September, when he wrote to John Hancock, President of Congress, “I am persuaded . . . that our Liberties must of necessity be greatly hazarded, If not entirely lost, If their defence is left to any but a permanent standing Army, I mean one to exist during the War.”24

Along with his advocacy for a larger Continental Army, Washington began agitating for revisions to the Articles of War. William Tudor, the first Judge Advocate General and a confidant of John Adams, played a key role in conveying Washington’s wishes for stricter discipline to Congress. Adams and other members of Congress had heard complaints about the leniency of the American Articles of War since at least April 1776.25 On 7 July, Tudor informed Adams that Washington favored the wholesale adoption of the British military code, “with a very few Alterations, such as making fewer Crimes punishable capitally and limiting the Number of Lashes to 1 or 200.” In Tudor’s estimation, “If You would ever have an Army to depend upon it must be by a Severity of Discipline.”26

Taken together, Washington was arguing for the necessity of a disciplined, professional military force. This was a rejection of the idealism that had fueled the revolution in its early stage and still held sway among many in Congress. Signifying its growing recognition that the war could not be won with overreliance on patriotic militiamen, in the summer of 1776, Congress charged the Committee on Spies with revising the Articles of War and began considering a plan to expand the Continental Army.27

William Tudor visited the Committee on Spies that summer to present Washington’s views and his own experiences with military justice in the first year of the war. John Adams seems to have been a key ally and driving force behind both of Washington’s initiatives. “Discipline had become my constant topick of discourse and even declamation in and out of Congress and especially in the Board of War,” Adams would later recall. He became “convinced that nothing short of the Roman and British Discipline could possibly save Us.”28

The committee reported a revised Articles of War to Congress on 7 August 1776. Congress then debated the new code on several days in August and September. Having first gained the concurrence of fellow committee member Thomas Jefferson, John Adams later recalled:

[A]ll the labour of the debate on these Articles, Paragraph by Paragraph, was thrown upon me, and such was the Opposition, and so indigested were the notions of Liberty prevalent among the Majority of the Members most zealously attached to the public Cause, that to this day I scarcely know how it was possible, that these Articles could be carried.29

Finally, Congress passed the revised Articles of War on 20 September 1776. “Discipline I hope will be introduced at last,” wrote Adams a few days later.30

The revised Articles of War added thirty-three articles to the preexisting code and for the first time referred to “the respective armies of the United States.” Largely following Washington’s and Tudor’s wishes, the 1776 revision saw the nearly verbatim copying of the language and arrangement of the British articles. The changes in 1776 fell into three main categories: increased severity of punishment, greater protection for civilians from plunder and destruction of property, and more regulation of the court-martial process. The fine for profanity was increased, while new offenses appeared, such as desertion from the service of the United States.

Most importantly, articles bearing capital punishment increased by nine, while the limit on lashes was raised from thirty-nine to 100. A new punishment for fraud in mustering was denial of any future office or employment under the United States. The articles also resolved an ongoing issue with the militia by making them subject to the Continental Army rules and regulations when in U.S. service. The holding of courts-martial was more carefully regulated, and the Judge Advocate General “or some person deputed by him” was enjoined to “prosecute in the name of the United States.”31 Additional legislation advanced the rank of the Judge Advocate General to lieutenant colonel and established deputy judge advocate positions.32

A few days earlier, Congress had passed legislation known as the Eighty-Eight Battalion Resolve. It authorized the creation of eighty-eight battalions for the Continental Army, apportioned among the states according to population. The legislation also called for enlistments for the duration of the war, provided for a yearly clothing issue to soldiers, and established bonuses and land bounties for military service. Additional legislation in October increased pay for officers and authorized a clothing allowance. While the large army that Congress envisioned would never come to pass, and enlistments were later set at three years, the civilian leadership of the new United States had committed to raising and maintaining a regular army at least through the war’s conclusion.33

A Respectable Army

Congress’s actions in September 1776 set the stage for the army that would emerge in 1777 and beyond. While large numbers of militia would continue to be called up for periodic service, the core of the war effort now rested largely on the shoulders of men who did not fit the mold of the republican citizen-soldier. The search for recruits willing to join under long-term enlistments would prove to be a significant effort for the remainder of the war. As historians James Kirby Martin and Mark Edward Lender note, “Indeed, the majority of recruits who fought with Washington after 1776 represented the very poorest and most desperate persons in society, including ne’er do wells, drifters, unemployed laborers, captured British soldiers and Hessians, indentured servants, and slaves.”34 Officers, on the other hand, overwhelmingly came from the upper strata of American society.35

The Continental Army, therefore, had come to resemble its British opponent demographically, and now had a roughly approximate system of military justice. Washington’s quest to forge “a respectable army” would rely upon the administration of military justice just as much as on the exertions of drillmaster Friedrich Wilhelm von Steuben and other key leaders.36 One study of courts-martial at Valley Forge documents a surge in cases as new recruits entered in 1777, and another in the winter encampment in 1777–1778. Officers were not immune from Washington’s insistence on strict discipline—nearly one in twenty were prosecuted by Judge Advocate General John Laurance in the first quarter of 1778.37 Even so, Washington paired rigid discipline with mercy, and advised his subordinate commanders to follow suit. “By making Executions too common,” he wrote, “they lose their intended force and rather bear the appearance of cruelty than justice.”38

The efforts of Laurance and deputy judge advocates like John Marshall, paired with the tactical discipline and training implemented by von Steuben, had paid off by the 1778 campaign. At the battle of Monmouth on 28 June 1778, Washington’s Main Army fought the British Army under Sir Henry Clinton to a tactical draw. Although the battle was inconclusive, the performance of Washington’s “new model” army in a set-piece battle against the British demonstrated its improved tactical prowess and professionalism.39 Ironically, the Main Army under Washington would not face the British in open battle again. Yet the Continental Army’s resilience presented a difficult problem for Great Britain. With the aid of France beginning in 1778, the Continentals would later begin to find success in the Carolinas and ultimately achieve victory in the siege at Yorktown.

Conclusion

While the image of the patriotic minuteman answering the call to arms has remained an icon of the American Revolution, the historical record shows that after sixteen months of war, the Continental Congress largely compromised on its ideological investment in the primacy of the virtuous citizen-soldier. The Articles of War of 1776 did not adopt the brutality of the British code, but they represented a sterner approach toward military justice and would remain in effect with slight alteration for the next decade.40 The revised Articles of War and the Eighty-Eight Battalion Resolve were key components in the creation of a professionalized Continental Army that would serve until the war’s victorious conclusion. In later years, John Adams would reflect that the 1776 Articles of War “laid the foundation of a discipline, which in time brought our Troops to a Capacity of contending with British Veterans, and a rivalry with the best Troops of France.”41

Yet even as the American Army became trained and disciplined like a European military, the American Founders carefully navigated the vicissitudes of war to balance the principles of republican liberty and military necessity. Congress balked at Washington’s requests to remove the limit on lashes for deserters, for instance, while Washington himself enforced civilian control of the military, squelching the Newburgh Conspiracy in March 1783.42 Washington was always careful to distinguish between military necessity, foremost in a time of war, and the principles of civilian control, humanity, and forbearance that he believed ought to undergird military service.

Washington inspects the flags captured from the British during the battle of Trenton in 1776, by Percy Moran. (Source: Library of Congress)

As the war neared an end, Washington considered changes to the Army’s administration for a future “Peace Establishment.” One of the primary considerations of the board of general officers that Washington appointed to inquire into the subject was better protection for the accused in a court-martial and reforms to the role of judge advocate, “precisely delineating his duties as well with relation to the Court as with respect to the Accuser and accused.”43 General Henry Knox suggested a duty description for the judge advocate that was revolutionary for 1782:

He ought impartially to bring the whole truth before the court, whether it should support the prosecution or acquit the accused. He should assist the prisoner in his defense, and in every instance govern himself by the principles of equal justice. The judge advocate is said to be the prosecutor in [sic] behalf of the United States. But if his business ends with the prosecution, the institution is unequal and unjust. An office employed on one side only, without any counterbalance, is too absurd to be tolerated.44

Congress did not pursue substantive protections for the accused in courts-martial until the twentieth century, and military justice during much of the U.S. Army’s history appears crude from the perspective of the twenty-first century. But the legacy of the American Revolution’s policy of humanity continued to manifest itself in incremental reforms to military justice over time. Congress abolished flogging in the Army in 1812; it was reinstated for the crime of desertion in 1833 after the death penalty for the same offense was banned in 1830.45 Congress subsequently abolished flogging in the U.S. Navy in 1850, and the practice was finally completely outlawed for the Army by Congress in 1861.46 In contrast, while the United Kingdom imposed progressively greater restrictions on flogging over the course of the nineteenth century, the British Army did not forbid it until 1881; it was also administratively suspended in 1881 but not formally banned in the British Navy until 1949.47

Continued reforms to the military justice system throughout our history reflect an abiding American interest in balancing a desire for humanity and justice and the demands of good order and discipline. Washington, Adams, Tudor, Laurance, and other American Founders strove to create a system that charted a new path for our Nation. As the Judge Advocate General’s Corps celebrates its founding and reflects on a legacy of legal excellence over the past 250 years, we should appreciate that Army legal professionals are carrying on a work that was critical from our Army’s very beginning. TAL

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Dr. Roland is the Regimental Historian, Archivist, and Professor of Legal History and Leadership at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

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