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 CHAPTER 1
HISTORY OF MILITARY LAW

INTRODUCTION

Military law and its civilian counterpart both have their roots in
Roman law which came into existence about the first century B.C. The
Roman law permeated western Europe during the first millennium
A.D., and was then codified in Lombardy in the 11th century as the
Libri Feudorum.
The Roman law made no distinction between civilian and military
systems of law since it was predicated upon a military society in which
a state of war was the normal condition. However, after the Roman
law was brought to England in 1066 by William the Conqueror, the
need for a separate system applying to members of the Army and
Navy began to manifest itself. A Constable's Court had existed in
England during medieval times separate and apart from other courts
of law. When William made the Constable the commander of the royal
Army, the Constable's Court was given jurisdiction over military
crimes.
Typically, the "laws" governing the acts of soldiers were promul-
gated by the King in connection with expeditions to the continent.
Richard I, Coeur de Lion, for example, issued the following proclama-
tion during the Third Crusade:
Whoever shall slay a man on shipboard, he shall be bound to the dead
man and thrown into the sea. If he shall slay him on land, he shall be
bound to the dead man and buried in the earth. If anyone shall be con-
victed, by means of lawful witnesses, of having drawn out a knife with
which to strike another, or shall strike another so as to draw blood, he
shall lose his hand.

If these punishments seem barbaric, one must remember that the nas-
cent 12th century civilian system was not much different, and, as
stated in a recent treatise on military law, the only safe conclusion
seems to be that, with the passage of some eight centuries, both the
military and civilian systems of justice have benefited from the emer-
gence of a more humanitarian jurisprudence.
Courts-martial, trials composed and conducted within the military
hierarchy rather than in national courts, began to appear in France
and Germany around the 16th century. Separate codes of military
penal law had already been compiled in those countries, and, in 1532,
the well-known penal code of Holy Roman Emperor Charles V was
enacted. This penal code became the basis for subsequent codes in all
other Western European nations. In England, commanders began
to convene courts-martial in 1642 and gradually these courts took the
place of the Constable's 'Court and its successor, the Marshal's Court.
In 1689 the Parliament entered the field of military law by passing
the Mutiny Act. The Act signaled the beginning of the practice which
has prevailed in America throughout its history, whereby military
law is exclusively a statutory enactment of the legislative body.
American military law then traces its origin through the court-
martial system and statutory pronouncements extant in England at the
time of the Revolutionary War. The key dates in its history are: 1775,
1776, 1786, 1806, 1874, 1916, 1920, 1950 and 1968. In each of these years,
Congress passed legislation which altered the relation between the in-
dividual soldier and the State. Over the long range, the trend has been
for greater protection of individual civil rights, for procedural and
substantive changes to make military law more like a civilian system of
law, and for a gradual erosion of the authority of the commander in
the disciplining of subordinates through legal process.
In a recent law review article, the following general characteristics
were considered important in tracing the evolution of American
military law: (a) statement of crimes and punishments, (b) pretrial
proceeding, (c) role of the commander, (d) membership and selection
of the court, (e) judicial functions, (f) defense counsel, (g) nature
of the trial, and (h) posttrial proceedings. Historically, the role of
the commander has been the most significant issue in the pulling and
hauling between forces who would civilianize the military system "to
strengthen the morale of servicemen and restore the confidence of the
public in military justice" and highly respected military men who
believe military law to be an entirely different system of justice whose
purpose is to complement discipline and support an effective and effi-
cient fighting force. At least two prominent lawyers have espoused the
latter view:
The prime object of military organization is Victory, not justice. In
that death struggle which is ever impending, the Army, which defends
the Nation, is ever constrained by the terrific consciousness that the
Nation's life and its own is at stake. No other objective than Victory can
have first place in its thoughts, nor cause any remission of that strain. If
it can do justice to its men, well and good. But justice is always sec-
ondary, and Victory is always primary.
In civil life each individual owes obedience to the organized government
of the community, but not to any individual civil officer as such, in the
military organization, each member owes obedience to an individual-
his commanding officer. The commander is responsible for the conduct
of the forces and in the nature of things he must have all the powers
necessary to make his authority effective.
The struggle still continues. On the one hand are the reform forces
espousing a more "democratic" system, on the other hand are the con-
servatives fighting to maintain a system of law they believe necessary
to preserve democracy as a form of government.
 THE BEGINNING: 1775-1776
After the "Intolerable Acts" self-authorized groups met in the several
colonies, and sent delegates to a "continental congress" in Philadelphia.
This body adopted a boycott of British goods, to be enforced on unwilling
Americans by local organizers of resistance. Fighting began in the next
year, 1775, when the British commander at Boston sent a detachment to
seize unauthorized stores of weapons at Concord. On the way, at Lexing-
ton, in a brush between soldiers and partisans or "minutemen," someone
fired the "shot heard round the world." The Second Continental Con-
gress, meeting a few weeks later, proceeded to raise an American army,
despatched an expedition to force Quebec into the revolutionary union,
and entered into overtures with Bourbon France.
With an upcoming military force in the field of from 184,000 to
250,000 men, the new nation needed a body of law for the government
of its Armed Forces. The Articles of War, 1775, (2 J. Cont. Cong. 111)
satisfied this need.
The first American Articles of War, enacted by the Continental Con-
gress in 1775, copied the British Articles, a body of law which had
evolved from the 17th century rules adopted by Gustavus Adolphus for
the discipline of his army, rather than from the English common law.
These first articles were repealed and replaced by Articles of War,
1776, authorized by resolution of the Second Continental Congress.
The second Continental Articles of War, adopted on 20 September
1776 (5 J. Cont. Cong. 788) were drafted by John Adams, later the
second President of the United States. Here are the reasons why this
very revolutionary American statesman simply copied the Articles
that governed the forces then arrayed against him (3 Adams D.&A.
409-410) :
It was a very difficult andl unpopular Subject; and I observed to Jeffer-
son, that Whatever Alteration We should report with the least Energy
in it, or the least tendency to a necessary discipline of the Army, would
be opposed with as much Vehemence as if it were the most perfect: We
might as well -therefore report a compleat System at once and let it meet
its fate. Some thing perhaps might be gained.
There was extant one System of Articles of War, which had carried
two empires to the head of Mankind, the Roman And the British:
for the British Articles of War were only a litteral Translation of
the Roman: it would be in vain for us to seek, in our own In-
ventions or the Records of Warlike nations for a more compleat System
of military discipline: It was an Observation founded in undoubted facts
that the Prosperity of Nations had been in proportion to the discipline of
their forces by Sea and Land: I was therefore for reporting the British
Articles of War, totidem Verbis. Jefferson in those days never failed
to agree with me, in every Thing of a political nature, and he very cor-
dially concurred in this. The British Articles of War were accordingly
reported and defended' in Congress, by me and Assisted by some others,
finally carried. They 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.
The Army practiced a rough form of justice during this period.
Corporal punishment by means of the lash was a common practice. The
fact that there were only 100 lawyers in each colony during the year
1771 is significant but not a controlling factor. In our history, the
Bar has not been in the forefront of our reform movements.
 THE "SMALL DETACHMENT" PROBLEM: 1776-1786

On July 4, 1776, the Congress adopted the Declaration of Inde-

pendence, by which the United States assumed its separate and equal
station among the powers of the earth. After the American victory at
the battle of Saratoga, October 7, 1777, the French government con-
cluded, in 1778, that the American insurgents were a good political
risk, recognized them and signed an alliance with them, and declared
war on Great Britain.
On September 3, 1783, Great Britain and the United States signed
a definitive treaty of peace. Peace brought economic and civil unrest.
A postwar depression occurred in 1784 from which the US did not
recover until 1787. Shay's Rebellion in 1786 in Massachusetts shccked
the Congress badly.
Because of the isolated position of many small military detachments,
a hole in the administration of military justice developed.
According to Winthrop:
The Articles of 1776 continued in force till after the date of the adoption
of the Constitution; meanwhile, however, undergoing certain very
considerable amendments. The most important of these was the last,
that of May 31, 1786, by which Section XIV, of the existing code, with
"such other articles as related to the holding of courts-martial and the
confirmation of the sentences thereof," was repealed and a new Section,
entitled "Administration of Justice," consisting of twenty-seven articles
was substituted. The occasion of this Amendment, as expressed in the
preamble of the Resolution of Congress, was the fact that the preexisting
Articles failed to make adequate provision for the trial of offenders
"serving with small detachments," those articles requiring that a general
court-martial should consist of thirteen members, and a regimental
or garrison court of five members: in the new section the member of the
inferior court was fixed at three and the minimum of the general court
at five.
Thus, the role of the commanding officer was enlarged under the
Articles of War, 1786, in that the smaller numbers of 6fficers required
to constitute a court enabled the commander more easily to convene his
own courts to prevent criminals from escaping justice "to the great
injury of the discipline of the troops and the public service."

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 in-
volved the US in difficulties with France, who regarded the treaty as
evidence of a pro-British policy by the US. Fighting on the sea oc-
curred 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 ad-
ditional provision relating to the punishment of spies-remained in
force, (except as amended,) for nearly seventy years, or till the enact-
ment 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 latter 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 "intime of war." For the first
time, the military law provided for the trial of soldiers by court-mar-
tial 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; thd

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, 1.916, 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 Led 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 an-
swer before a general court-martial, convened pursuant 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 the following sentence in sub-
stitution for the former one:
"That the said Alvin R. Reed, paymaster's clerk, U.S. Navy, be im-
prisoned 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 subseqently 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 Mas-
sachusetts. 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 re-
viewed 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 B1. 68, 108; Bouv L Dic. tit Courts-martial. The difference
between military law and martial law is too well known to require any
remark. 1 Kent. Coin, 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 ques-
tion 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 serv-
ice 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 ad-
judged. RS, sec 1624, art 51.
Except where the sentence is death or the dismissal of a commis-
sioned 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 sub-
mit 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 cor-
recting 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.
[23] The court had jurisdiction over the person and the case. It
is the organism provided by law and clothed with the duty of admin-
istering 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, includ-
ing 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 bat-
tery should sentence the offender to be imprisoned in the peniten-
tiary, or to suffer the punishment prescribed for homicide, his judg-
ment 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 cir-
cumstances, we must presume was properly done. If error was com-
mitted 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 serv-
icemen 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 un-
American.
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 correct-
 ness 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-
scribe maximum punishments for crimes. Commanders would con-
tinue to review court-martial convictions and sentences, but could not
review sentences upwards or return an acquittal to the court for re-
consideration. The reviewing authority (the commander) would have
to refer the records of general courts-martial to his staff judge advo-
cate for review prior to taking final action, but he would not be bound
to accept the judge advocate's advice.
Thus, the authority of the commander was left intact. This event is
significant as there would be no further revisions of the code until
after World War II.

UNIFICATION OF THE ARMED FORCES: 1920-1950

World War II was to change American military law and touch the
lives of everyone in or out of uniform.
Over 16.1 million men served in the US Armed Forces during World
War II and some of them came home with complaints concerning
military justice. Undue severity of sentences and unfairness and arbi-
trariness in the military constituted the gist of their gripes. As a re-
sult, on March 18, 1946, the Secretary of War appointed the Board
on Officer-Enlisted Men's Relationships, headed by General James
Doolittle, to investigate these charges. This board recommended a
"review of the machinery for administering military justice. . ....
Later in 1946, the Vanderbilt committee announced its particular
lindings:
the command frequently dominated the courts in the rendition of their
judgment; defense counsel were often ineffective because of (a) lack
 of experience and knowledge, or (b) lack of a vigorous defense attitude;
the sentences originally imposed were frequently excessively severe and
sometimes fantastically so; there was some discriminations between
officers and enlisted men, both as to the bringing of charges and as to
convictions and sentences; and investigations, before referring cases
to trial, were frequently inefficient or inadequate.
Most of the stories of unfairness, arbitrariness, misuse of authority,
and inadequate protection of rights could be boiled down to the criti-
cism that commanders exercised too much control over court-martial
procedures from prosecution through review. It was clear that the cen-
tral issue in court-martial reform was the commander's role in the
court-martial.
The military was opposed to any plan which would limit the indi-
vidual commander's control over the operation of the courts-martial.
Secretary of War Patterson had previously expressed the traditional
argument that the military could not operate efficiently if command-
ers could not control the courts-martial:
Many of the critics overlook the place of military justice in the army
or the navy. An army is organized to win victory in war and the organi-
zation must be one that will bring success in combat. That means
singleness of command and the responsibility of the field commander
for everything that goes on in the field.
With unification of the Armed Forces came a uniform code. The
Uniform Code of Military Justice, 1951, left the commander essen-
tially in control of the court-martial machinery.

EVENTS LEADING TO PASSAGE OF 1968 MILITARY

JUSTICE ACT: 1950-1968

Strength of the Armed Forces during this period varied from a low
of 1.46 million men in 1950 to a high of 3.55 million in 1968. Selective
Service Act Violations totalled 449 in 1950 and shot up to a total of
1,192 for 1968.
The Korean War was inconclusive as far as the new code of 1951
was concerned. The testing period was too short. Throughout the rela-
tively peaceful late 1950's and early 1960's, there was little public in-
terest in the reform of military law. This middle period was, for the
most part, a period of reduced conscription. The strength of the Army
dIropped from 1.55 million men in 1955 to .87 million in 1960. Defend-
ants in Selective Service Act Violations dropped from 719 to 239 for
those same years.
The Supreme Court, cut back the jurisdiction of military courts by
holding that former servicemen could not be returned to the military
for crimes committed during prior military service. In subsequent de-
cisions, the Court also removed jurisdiction over military dependents
and Department of the Army Civilians serving overseas from military
courts.
 Cold War tensions continued. Berlin, Cuba, the Congo and Vietnam
all contributed their share to underscore the need for a strong military
establishment. Larger and larger nuclear weapons introduced a frus-
tration into daily living difficult to access. The failure of the adult seg-
ment of society to provide a more peaceful and meaningful existence
for mankind played a major role in alienating the young people every-
where.
Mass communications made Americans the best informed people in
history and, perhaps, the most despairing. Cries for freedom clashed
with cries for law and order as 1968 approached.
The American Legion had proposed a bill which addressed itself
particularly to the problem of command influence. It proposed, among
other things, that lawyers be placed under the rating authority and
command of The Judge Advocate General rather than under the com-
mander. The net result was that the Act of 1968 forbade the commander
to consider performance as a member of a court-martial or defense
counsel in the preparation of efficiency reports or in recommendations
for assignment. The Act also provided that the prohibition against
attempting to influence the action of a court-martial would not apply
to general instructional or information courses in military justice.

CONCLUSIONS
Do away with war and the threat of war and you can do away with
military law and military justice. Due to the prolonged periods of
violence in our history, the military has been regarded as a last line
of defense for individual safety and protection both at home and
abroad. The frequency with which the Army and the National Guard
have been called upon to assist the civil authority in quelling riots and
preventing anarchy have furnished spokesmen for the military with
persuasive arguments on the necessity of maintaining well-disciplined
forces. Discipline without authority is an empty shell. How to balance
the need for this authority against the need to protect individual civil
rights will continue to challenge every thoughtful citizen.
DISCUSSION PROBLEMS-CHAPTER 1
1. In 1863 military commanders were given jurisdiction over common
law civilian type crimes, such as larceny, murder, rape, and assault and
battery, provided that they try such crimes only "in time of war, insur-
rection or rebellion." Why, based on your previous studies of military
history and American history, would you think it. was necessary to
give commanders this power?
2. Based on your analysis of chapter 1, how did military justice as
we know it today, arrive at that point? Was it the result of forward
thinking, creative analysis on the part of law makers; did military
justice evolve after the fact to fulfill a need of command; did it merely
mirror changes in civilian law? In each case, state your reasoning for
your answer.
3. You have just read a historical introduction to military law. What
is your impression of military law based on your experience or knowl-
edge? What is wrong with it? What can be done to improve it?