W. W. Norton - Court-martial: how military justice has shaped America from the revolution to 9/11 and beyond

THE PUBLICATION OF A BOOK INVOLVES MORE PEOPLE THAN I CAN properly thank. First, though, I have to offer my thanks to the small army of archivists and librarians who have made it possible to research the topic of military justice, starting with the staff of the Charles E. Young Research Library at UCLA. I spent many productive hours at the American Antiquarian Society; the Huntington Library; the state archives in Connecticut, New Hampshire, and Rhode Island; the historical societies of Connecticut, Rhode Island, Massachusetts, New Hampshire, and Newport; and (especially) the Massachusetts National Guard Museum and Archives in Worcester.

I am particularly grateful to Keith Vezeau at the Massachusetts National Guard Museum and Archives, Jeannie Sherman at the Connecticut State Archives, Frank Mevers at the New Hampshire State Archives, and Kenneth Carlson at the Rhode Island State Archives. The director of the Massachusetts National Guard Museum and Archives, Len Kondriatuk, offered years of encouragement and insight. I owe them all many thanks.

A similar army of professors have offered their guidance and support throughout the years. My thanks to Stuart McConnell, Rita Roberts, Andre Wakefield, Jonathan Petropoulos, and Albert Wachtel at the Claremont Colleges. At UCLA, Joan Waugh began to guide my course as a graduate student before I even arrived on campus, and was generous with her time and insight for many years. My thanks also to Michael Meranze and Geoffrey Robinson. John Hall at the University of Wisconsin offered important early encouragement, and the late Ralph Luker was an endless source of support and inspiration, as was Bill Deverell at USC.

When it came time to think about writing a book, my longtime newspaper and magazine editor Chris Lehmann guided me to my literary agent, Melissa Flashman, at Trident Media Group. At W. W. Norton, Matt Weilands thoughtfulness and endless patience made this a far better book than I could have written alone. Rachelle Mandiks exceptional skill as a copyeditor helped to produce a clear and coherent manuscript, and Helene Berinsky turned that manuscript into a beautifully designed book. My thanks also to Remy Cawley for her generous help with the work of getting a book into print.

I was a soldier before I was a historian, and I couldnt begin to mention everyone in the US Army who deserves my thanks. But Drill Sgt. Rodney Flores and Command Sgt. Maj. George Stopper showed me what it means to have integrity and a work ethic, and Im grateful, especially when I fall short of their examples.

Finally, and most importantly, I thank my family for their love and patience.

THOMAS BEVINS DIDNT DENY THE ACCUSATION: HE REALLY DID say those things to his company commander. But it didnt matter, he added, because he wasnt a military officer when he spoke.

I distinctly admit, Bevins told his Connecticut court-martial, that in the evening of the 31st of August named after the officers were dismissed I did say in answer to Capt Isaac Beachs remark to me that I was a d-d Irish buggarthat he was not fit to command a company any more than my dog. If this be abuse of Capt Isaac Beach I have abused him. But I beg leave to remark that this was in the evening after we were dismissed, + when as men + gentlemen, we were on the same footing.

Who are you, and when? If, in a society that intends to defend itself with a militia, every farmer and clerk and merchant is an occasional member of the armed forces, then when does the man set aside his identity as a citizen and take on his identity as a soldier? More important, when does he not? On that August day in 1814, Ens. Thomas Bevins trained all day under Capt. Isaac Beach; then the militia was dismissed and they sat down to dinner together, and they began to trade insults. But who was trading those insultsCaptain Beach and Ensign Bevins, or Mr. Beach and Mr. Bevins? An important implication follows, and it was one that militiamen constantly contested: Who can punish you, and for what, and when do they have the power do it?

Through a long round of witnesses, the court-martial trying Bevins pursued exactly this point. A subaltern had cursed his superior, but they may not have occupied those military identities at the moment of their fight; what was the moment when they went from being one thing to being the other? Two often-repeated questions shaped the trial: Had the sun set? And had candles been lit for the evening meal? If a group of militia officers had been dining together at night, the training day was over; maybe they were citizens again, and only that, and maybe they could call one another whatever they wanted without implicating military jurisdiction.

Question by the court, the transcript of the trial says, halfway through the testimony of Capt. David Baldwin, a witness to the exchange. On what account did he call him a D-d rascal, was it in respect to his military or private capacity? Baldwin couldnt answer, unable to identify the precise portion of Beachs collective identities Bevins had intended to curse. The handwritten transcript of the trial makes the captains answer emphatic: Answer. I cannot say! A portion of Isaac Beach had been damned as a rascal, but no one was sure which portion.

It was a distinction men actually tried to draw in practice. Another captain also witnessed the angry exchange between Beach and his most junior company officer; after they had cursed each other, Capt. Eldad Bradley testified, Beach warned Bevins that he was still expected to turn out for training, and Bevins replied without hesitation: He said he would obey him on all such days, Bradley told the court. A subordinate insulted a superior but drew a line against refusing to honor the official authority of the man he had insulted: Youre unfit for command, and I honor your command authority without question.

Over and over again in the records of early militia courts, we can watch men try to figure out where the citizen ends and the soldier begins. The distinction mattered for many reasons, making neighbors into commanders and subordinates, but one was most important: When a man became a soldier, he became liable to military authority.

The persistent blurring of that boundary made men like Jonathan Meredith wild with irritation. In 1808, the prominent Maryland Federalist stood up at a private dinner and offered a toast to his fellow gentlemen: Damnation to Democracy. But Meredith was also the adjutant of the states 39th Regiment, and a court of inquiry was convened to determine whether he should face military charges for the expression of treasonous sentiments. Other gentlemen present at the dinner filed a statement with the court, insisting that the adjutant appeared as a private citizen, and not in a military character. A man could talk politics at dinnerand end up in front of a military tribunal.

Cleared of wrongdoinghe had, he explained, intended to damn French democracy, the bad kindMeredith resigned his commission in disgust. If an officer could be dragged before a military court on such thin allegations, he told the court, then men of little status had been given the power of condemning before an unauthorized and illegal tribunal, any officer who may chance to differ from them in political opinion. It wasnt enough that the court had cleared him; it had been convened to police political statements made at a private dinner, and should never have existed. Looking back, its hard to argue that Meredith was wrong.

Relying on the militia for their defense, the citizens of the early republic were supposed to be imposing restraints on power. There wouldnt be a substantial group of men who had a greater ability to deliver coercive force than the rest of society; strength would be balanced and diffused, a common property managed by consent and mutuality. The late colonial militia had purged Loyalist officers in standing companies and regiments to prepare for a confrontation with British central authority, with men choosing the officers they would and wouldnt follow. Obedience had been a choice. In other instances, starting over, men had covenanted to form their own military organizations: militias of association, created by the authority of neighbors with signatures on subscriber lists. As political tension turned to open war, militiamen in Pennsylvania formed a committee of privates to negotiate the terms of their service with higher authority. Men at the lowest levels of the militia expected to obey rules, and commanders, that first won their consent.