Every non-commissioned officer and soldier, who shall
inlist himself in the service of the United States,
shall at the time of his so inlisting, or within six days afterwards,
have the articles for the government of the forces
of the United States read to him.
– U.S. Articles of War (1776)
Section III, Art. 1
The Corps of Volunteers for North Western Discovery, being a detachment of enlisted men who volunteered for special service, were obliged to comply with the basic military rules and regulations contained in two distinct official documents that had been written in the initial heat of the Revolutionary War. One was called Articles of War; the other, Regulations for the Order and Discipline of the Troops of the United States. Two unique circumstances compounded the difficulties of complying with those Articles and Regulations — the small size of the Corps, 23 privates, three sergeants, and two captains; and their distance from larger, permanent U.S. Army garrisons.
Articles of War
The first U.S. Articles of War, which comprised a comprehensive set of military laws concerning personal conduct and loyalty, were modeled on recently written Massachussetts articles. They were authorized by the Continental Congress on June 30, 1775, a few months after the Continental Army was officially established. The 69 Articles defined most offenses in terms of standards of personal conduct, principally on the part of officers. Penalties for petty offenses, especially by commissioned officers, consisted mostly of cash fines. More serious crimes such as mutiny, sedition, or disobedience of orders, were punishable at the will of a court martial. The severest penalty for a commissioned officer in most cases was to be "cashiered," or expelled from the army. Corporal punishment — of enlisted men only — was limited to 39 lashes (see Corporal Punishment). Only three crimes were punishable by death.
Fifteen months later, on September 20, 1776, Congress repealed the 1775 code and enacted a new and expanded one consisting of 101 Articles in 18 Sections, which brought the code more in line with contemporary British law.1 When Lewis and Clark referred to the authority of the Articles of War, it was the 1776 code they meant. A total of 16 crimes, including inciting or participating in mutiny or sedition, disobeying an officer's command, or falling asleep on sentry duty, were punishable by death, "or such other punishment as shall be inflicted by the sentence of a court martial."
Courts martial are ad hoc courts convened for the trial and punishment of violations of laws enacted by Congress for the government of its military forces. They are responsible to the Executive Branch of the Government under Article 1, Section 8, of the Constitution, which authorizes Congress "to make Rules for the Government and Regulation of the land and naval forces."2 Non-commissioned officers and privates were tried for minor offenses in a regimental or garrison courts martial. More serious offenses including those that carried a death sentence were tried in general courts martial, which required a jury of 13 commissioned officers. Even civilians who served with or accompanied a military unit in the field were subject to military laws.3Minor Changes
A need for changes in the 1776 Code became apparent within a few years after the Revolution. First to be revised was Section XIV, which outlined in 22 Articles the rules and procedures for mounting a general court martial. As the size of the postwar standing army decreased, inactivity — especially in frontier garrisons — made military life onerous. Desertion became a major problem. The outcome was Rules and Articles for the Administration of Justice, approved by Congress on 31 May 1786. "Whereas," it began, "crimes may be committed by Officers and Soldiers, serving with small detachments of the forces of the United States, and where there may not be enough Officers to hold a general Court-Martial, according to the rules and Articles of War, in consequence of which Criminals may escape punishment, to the great injury of the troops and the public service." It repealed Section XIV of the 1776 Articles of War, which covered rules and regulations for the administration of justice through a general court martial. The old Section XIV had specified that a minimum of thirteen commissioned officers was required for a general court martial, and expanded it with a more liberal procedure. Thirteen officers were still required "where that number can be convened without manifest injury to the service," but other options were available:
Every officer commanding a regiment or corps, may appoint of his own regiment or corps, courts-martial, to consist of three commissioned officers, for the trial of offences, not capital, and the inflicting corporal punishments, and decide upon their sentences. For the same purpose, all officers commanding any of the garrisons, forts, barracks,or other place where the troops consist of different corps, may assemble courts martial, to consist of three commissioned officers, and decide upon their sentences.4
Whenever Lewis and Clark mentioned the Articles of War in their journals or the Orderly Book, it was understood the Articles included the emendations of 1786 even though those changes were of no help at all on the expedition.
Evidently the needs of a detachment as small as the Corps of Discovery had not crossed anyone's mind. Since there were only two commissioned officers in it, even under the revised rules of 1786 every one of the courts martial Lewis and Clark convened was absolutely illegal. Moreover, their handling of Newman's desertion and Willard's sleeping on watch, both capital offenses punishable by death, would have been beyond their jurisdiction even if there had been a third commissioned officer present, and the sentence of a dishonorable discharge in Newman's case would likewise have been invalid. It may be that Clark's conspicuous leniency toward miscreants during the winter at Camp Dubois, as well as the playing down in the journals of the court martial of Shields and Colter on unspecified charges, reflected the captains' reluctance to extend their authority while there were other military commands nearby, such as at Kaskaskia or Massac, where the accused men could have registered grievances. Once the Corps was headed up the Missouri, however, the two officers discarded caution and came down swiftly and firmly on every offense from disobedience to desertion, placing their careers in jeopardy on at least six occasions. There was no way out of it.
The reality is that the expedition would have quickly collapsed if they had not taken those chances. Had they been prosecuted for their actions, their only justification would have been that, as they recorded more than once, their courts martial had operated "agreeable [emphasis added] to the rules and regulations of the Articles of War and Such others as may be established by the Said Cpt L. & C. from time to time." But that was shaky ground. Fortunately, the enlisted men's patriotism, loyalty to the Army and to one another, and their high regard for their commanders, ultimately discouraged any man from taking recourse in the law. As Robert Hunt has concluded, "They had the instinct to make law operative in spirit when it could not be operative by the letter."5
Lewis and Clark both knew the Articles of War very well. Clark joined a militia unit in 1789 at age 19, and was commissioned a lieutenant in Anthony Wayne's Legion of the United States in 1792. Lewis served three years in the Virginia militia, then joined the regular army in 1795. The first article in Section III of the Articles of War specified that every enlistee had to hear the Articles of War read to him, and swear before a qualified civil magistrate, or before a judge-advocate, that he would obey those orders of the Congress, "and the orders of the generals and officers set over me by them." Moreover, every officer was responsible for seeing to it that all men under his command periodically heard the document read aloud to them on parade. It wasn't merely a formality; it was the centerpiece of military life. (See also "Lewis's Fateful Misstep.")
1. The Avalon Project at Yale Law School: Journals of the Continental Congress, Articles of War, September 20, 1776. http://www.yale.edu/lawweb/avalon/contcong/09-20-76.htm. Accessed January 18, 2006.
2. Ridley McLean, "An Historical Sketch of Military Law," Journal of the American Institute of Criminal Law and Criminology (1917), Northwestern University, 27-32.
3. Maurer Maurer, "Military Justice Under Washington," Military Affairs, Vol. 18 (1964-65), 8. Lewis and Clark generally treated their civilian employees in accordance with military rules and regulations. En route up the Missouri, for example, engagés were expected to do guard duty. However, in the case of deserters Private Reed and engagé La Liberte, only Reed was ordered to be brought back dead or alive. The engagé was merely to be brought back, although he succeeded in escaping even that.
4. Journals of the Continental Congress, 1774-1789, 34 vols. (Washington: U.S. Government Printing Office, 1904-37), 30:316.
5. Robert Hunt, "Crime and Punishment on the Lewis and Clark Expedition," We Proceeded On, Vol. 15, No's. 2 & 3 (May and August, 1989).
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