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25 U. Kan. L. Rev. 353 (1976-1977)
Military Law in the Continental Army

handle is hein.journals/ukalr25 and id is 363 raw text is: 1977]

Francis H. Heller*
Any of four days in June, 1775, or perhaps the fourth of July of the same year,
might be considered the birthday of the army that became that of the United
States. The date generally accepted is June 14, when the Continental Congress first
authorized the muster of troops under its own sponsorship.' Barely two weeks
later, on June 30, Congress adopted Rules and Articles [to] be attended to and
observed by such forces as are or may hereafter be raised.2 These first American
Articles of War followed in spirit, and to a degree in the letter, the British Military
Code.' This was, of course, not surprising: not only had many of the leaders of
Congress and of the new army (George Washington included) experienced military
service under the British flag but most of them also believed in the basic worth of
British institutions, attributing the conflict between the colonies and the mother
country to the personal arbitrariness of the King and his advisors.
The Articles of War adopted in June 1775 consisted of 69 articles, arranged
seriatim without captions or subheads. In addition to the officers and soldiers, all
settlers and retailers to a camp, and all persons whatsoever, serving with the con-
tinental army in the field, though not inlisted [sic] soldiers were to be subject to
its provisions.
There were to be two kinds of military courts: general court-martials consisting
of 13 or more officers and, for lesser offenses, regimental court-martials, with at
least five commissioned members.' The substantive articles closely followed the
British model except that punishments were far less severe.6
The need for military courts was obvious. The new army had little concept of
the meaning of discipline and was totally without discipline training. Washington
believed that, in addition to decent food and clothing, fear of punishment would
contribute most to the building of a disciplined army. Thus, when he joined the
New England troops before Boston, he saw to it that pending court-martial cases
were quickly brought to trial,7 with their sentences well publicized.
At the same time, the organizational structure of the army was still so loose
that punishment had to be assessed in measures that would not provoke open
mutiny. Thus, on September 10, 1775, when there was a riot of Pennsylvania
riflemen in response to the arrest of one of their sergeants, the general court-martial's
sentence was only a fine of 20 shillings for each participant, with an additional six
*Roy A. Roberts Professor of Law and Political Science, University of Kansas. J.D. 1941, M.A. 1941,
Ph.D. 1948, University of Virginia.
'R. WEIGLEY, HISTORY OF THE UNITED STATES ARMY 29 (1967); 1 J. CONG. Sept. 5, 1774-Jan. 1,
1776, at 110-11 (Gov't Printing Office ed. 1934).
'For a summary description of the British Military Code, see id. at 18-20.
1775 ARTICLES OF WAR, art. XXXII, id. at 956.
' Whipping was to be limited to 39 lashes, fines to no more than two months' pay, imprisonment
to a maximum of one month. Art. LI, id. at 957. The limit of 39 lashes appears to have been derived
from the Bible, 2 Cor. 11:24: Five times received I forty stripes save one. B. KNOLLENBERO, WASH-

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