Military control

Preface

The following argument was prepared years ago, while the author was a member of the staff. It was the result of his own unbiassed reflections on our military system, which he saw to be working badly ; many features of the army organization have since been altered, and many changes of the laws and regulations, have also occurred, but nothing has been done to reach what he conceives to be the radical defect of the system — indeed it has been growing continually worse, as would naturally be supposed, under a process of temporary expedients.

To discover the root of the defect, by looking beyond the laws to the Constitution, and beyond prevailing notions to the true nature of the army institution, was the motive that prompted the author's researches ; and to develop that defect and propose the remedy, is his design in the publication of these remarks. It may be that, ere long. Congress getting tired of experiments in military legislation, maylook attentively with its own eyes into the nature of the army institution, and seek to ascertain its true adjustment, under the Constitution ; then these views may suggest a thorough reformation both in the organization of the army, and in the rules and regulations for its better government.

MILITARY CONTROL,

COMMAND AND GOVERNMENT OF THE ARMY

Section I

The difficulties in the army service on the subject of rank and command, or as it may preferably be denominated, military control, are numerous, and they are important; not only in relation to its harmony as a society, and its efficiency as an arm of national warfare ; but yet more so, as being in fact the poisonous fruits of a vicious legislation, threatening the civil welfare of the country. They grow more numerous and important by reason of the delays which have taken place, of any competent decision of the principles to which they refer.

Were we to judge from the amount of fruitless controversy proceeding from this cause — from the yet unsettled opinions among our military men — from the apparent evasion on the part of the national legislature, of the questions involved — and from the peremptory decision of them, by the Executive, acting, from the necessity of the case, beyond its own legitimate sphere ; we should regard the principles, on which the solution of these difficulties depends, as veiled in impenetrable darkness. The real cause is, however, as we have said, to be found in vicious legislation, and this has proceeded mainly from the pernicious practice so prevalent with us, in military matters, of copying foreign institutions and practices, without sufficiently reflecting on the differences between their political systems and our own. In the higher departments of military arrangement, accordingly, we are pi one to regard the British as our examplar ; in the minor, the French. Our present purpose leads only to the notice of the former : and we shall proceed to develop this cause of evil by first giving, in as brief terms as possible, such an account of the nature of these difficulties, in their connexion with existing doctrines of rank and command, as will serve to introduce the subject.

The Army of the United States, as known to the laws creating it, and to the Constitution, laws and regulations, establishing its organization and defining its duties, may be described as consisting of the President of the United States as " commander-in-chief," and the officers and privates under him, divided by organization into fixed legal bodies or corps. These are : first,, the arms of service, as cavalry, artillery, and infantry, with their respective species ; second, regiments of these species of arms ; and, third, companies of these regiments. Each of these bodies, and, therefore — after adding what is called the general staff — the whole army, consists of line and staff; the former being the combatants of the army, the latter, assistants or aids of the commanders, in various ways, and providers and administrators of the means of life and of service. The staff at large, most of whom are vested with military titles, and the line, all of whose members must of necessity be so, consist each of commissioned and non-commissioned officers, inclusive of all the grades, from the President to the corporal.

The staff is divided into departments, and into branches, the former consisting of corps of officers of the various grades of rank, whose functions are alike ; the latter of corps of officers, whose grades of rank are, or may be, alike, but whose functions are various. It is in the former aspect we contemplate the staff when viewed abstractedly from the line. It consists of the following departments in our service : Adjutant General's, Inspector General's, Engineer's, Ordnance, Quartermaster's, Subsistence, Purchasing, Medical, Paymaster's. The names of these departments are, for the most part, indicative of the functions assigned to them ; while the staff titles of the officers, denote their relative rank and authority in their respective departments, as, for example, in the department first named, there is, 1st. The Adjutant General, or chief of the department ; then in order, 2d. Assistant Adjutant General ; 3d. (say) Brigade Majors ; 4th. Adjutants; 5th. Sergeant Majors ; 6th. Orderly Sergeants.

When viewing the army at large, as composed of the legal corps before mentioned, these departments of the staff are mingled and divided on the other principle into branches, comprehending, more or less, the functions of the several departments ; as, for examples, the general staff, division staff, brigade and regimental staff.

It would require a volume, as large as that in which this scheme of organization is attempted to be explained, reconciled, and enforced, to develop the almost numberless inconsistencies and extravagancies which flow from it, and to depict the paralyzing effect it must have on martial efficiency, and on the general purposes of good government of the army as a national institution. We shall, therefore, attempt no more than a brief sketch of its operation on the former, leaving the rest to be inferred from this example, and from those true principles of organization, and of command and government, which we shall set forth and enforce in the sequel.

The second article of the Army Regulations, or Institutes, purports to prescribe and explain the " base of discipline," or rank and command, and the fundamental principle of this important subject of military service, is thus clearly expressed by its third paragraph : " It is the intention of the Government, that there be established in every regiment or corps, and throughout the army as one corps, a gr-^dual and universal subordination or authority." More forcibly to express the singleness of principle, or unity of purpose, herein aimed at and promulgated, would be difficult. The propriety, the absolute necessity, of this fundamental rule of discipline, must be apparent to the slightest reflection ; since, with a steady adherence to it, all must perceive the harmony of command an<l concert of action that would follow, and that without such adherence, confusion and discord would be inevitable.

The next paragraph sets forth the grades of army rank, exemplifying the order in which this principle is designed to operate, or exhibiting that range of subordination through which this universal authority is to be exercised in command. It is in these words : — " Under the President of the United States, as commander-in-chief, the following are the grades of army rank: 1, Major General; 2, Brigadier General ; *3, Colonel ; 4, Lieutenant Colonel ; 5, Major ; 6, Captain ; 7, First Lieutenant ; 8, Second Lieutenant ; 9, Third Lieutenant; 10, Cornet or Ensign ; 11, Cadet ;

12, Sergeant ; 13, Corporal ; and the latter shall be superior to all private soldiers, including under that denomination, private musicians, artificers, and the like."

The student of these institutes, whom we will suppose to be a cadet at West Point, having read them so far, instantly feels himself on sure and plain ground ; any preconceived mystery in military subordination, that he might have had, is thus swept clean from his mind, and he now feels confident, that whatever additional rules may obtain in the details of the service, there can be none to interfere with this ; there can be nothing to obscure so luminous a principle ; all must quadrate with it, and therefore obedience to his superior in rank, is at once the guide and the guarantee of his safe and honorable career. Judge then of his astonishment, when, in a step or two further, he comes to fourth, fifth, sixth, seventh, and eighth paragraphs, and finds so sudden a departure from, and dereliction of, a principle so clear, so satisfactory, so natural, and so necessary ! What, exclaims he, are these ? " Sergeant Majors ! Quartermaster Sergeants ! Drum Majors ! Trumpet Majors ! and what are these commissioned officers with assimilated and non-assimilated rank ? What the general and non-commissioned staff with titles so diff*erent from those grades of army rank through which all authority was to pass ? What new and inconsistent principles of command, checking, restricting, and limiting each other, are here prescribed ? Are not these officers, or at least members, of the army ? Is not the staff, whether general or non-commissioned, a part of it ? What has become of the gradual and universal subordination or authority^ which was to obtain throughout the army, even as one corps ?

The staff either is, or is not, a part of the army. If it be so, all these designations of rank belonging to it, he justly thinks, should have been comprised in the statement of grades given in paragraph fourth, so that all its parts should pass under the operation of the broad rule — the universal one, laid down in the third. If not a part of the army, but a sort of independent adjunct, then certainly, on the subject of rank and command, it must be independent of the authority prevailing through it ; neither commanding nor being commanded.

To settle these unavoidable questions, he seeks to inform himself of the nature of the staff, and of course finds that its functions are indispensable to the existence of the army. They are its life-breath, in the department of orders ; its character in the department of inspection ; its food in the subsistence; its limbs in the quartermaster's ; its health in the medical ; its weapons in the ordnance ; its reward in the pay ; and its raiment in the purchasing department ; yet strange contradiction he thinks it, that while it is also acknowledged to be a part of the army, it is not comprehended in that series of gradual and universal subordination, which was to obtain throughout the army, from the highest to the lowest member.

Prosecuting this enquiry, he refers to the rule of command among staff officers as laid down in the eighth paragraph. He there observes, that while, by paragraph sixth, officers of the staff with rank assimilated to lineal rank are " considered, in respect to rank, on the same footing, as if their rank were lineal," yet by

II

this, both classes are restricted in their command over officers of the staff having neither of these kinds of rank ; that is to say, over those having what is called, with singular infelicity of phrase, unassimilated rank, within certain prescribed limits.

He sees in this a further exception to the universal rule of authority, and he thinks he sees in it, too, that while the latter are absolutely cut off, as most obviously they ought to be, from all command whatever over the former, the case is not an improbable one in service, when this rule, too, must be violated in favor of the lineal officer of inferior rank on whom the command may devolve; for, whether the chiefs of these unassimilated staff officers be present or absent, their command over their subordinates continuing, such subordinates become subject to two masters, which, it is said, from the highest of all authority, no man can serve. Their own staff chief's authority, or that of the military commander, one or the other, must prevail. These cases present, therefore, further and palpable contradictions of the principle of universal authority. The four remaining restrictions in this paragraph present as many classes of cases, of the same character.

More than ever impressed with the vital necessity of this universal principle of authority to the very existence of an army, he is willing to seek every information, or listen to any explanation, tending to reconcile these contrarieties of doctrine, and so turns to the forty-fourth article, purporting to give " the. theory of the staff, and a summary of its duties."

He here finds it stated of staff officers, that as such they have no direct command over the troops; that they are only the organs, through which their respective commanders or chiefs communicate oiders and instructions, either verbally or in writing ; yet he finds grounds for the inference, that they have the right, indirectly, to command the troops through officers of military grades inferior to their own. Attending particularly to the phrase " as such," he thinks he perceives as the doctrine intended, (though a very exceptionable one,) that while as staff officers, that is, independently of their military rank, (which he supposes to be merged or suspended while acting in that capacity,) they are thus restrained in the article of command; yet in their capacity of officers with assimilated rank, they are, as before declared, " on the same footing " with lineal officers, and in this way are comprehended in the system of universal authority, and entitled, at their option, or at least when senior to all others present, to assume command.

But next he finds, paragraph 453, that the foregoing doctrines are applicable (whatever be really intended by them) only to " chiefs of staffs," and to their assistants, and also to aides de camp and adjutants ; the officers of the administrative or disbursing departments not being within the contemplation of the article, notwithstanding its title, though many of these possess the same kind of rank. He next learns, to his utter confusion, that the chiefs of staffs are to form a chain of subordination " among themselves !"

A little reflection convinces him that these doctrines would put to hazard the most vital interests of the service, and that the indispensable principle of unity in military command, calls for the uniform military rank with which all who are indeed military officers should be invested, and the revival of the oft quoted fundamental rule obtaining throughout the army.

In short, deriving from the Institutes no instruction on the subject of his enquiries, he comes at last to the conclusion, from his own reflections, that the uncertainties and difficulties in it, proceed from this — that the two-fold connexion of the staff officers with this newfangled assimilated rank, is never sufficiently at any time, and sometimes not at all, adverted to, that even when spoken of in their staff capacity strictly, and as it were exclusively, yet the effect of the military title they bear, is such, as to cause an unwitting, or at least a forced, application to them of principles truly applicable to the lineal officers only ; and again, from the same kind of inadvertence or force, an inversion of the practice takes place, that is, a distinction where, consistently, none should exist, is made ; and we may as well add here, must, in the nature of things, be made, between lineal officers and officers of the staff holding this (so called) assimilated, but in reality, brevet rank; regarding the first as possessing command in the line, inclusive of the staff; while on the other hand, it regards such staff officers as, being merely such, possessing an empty, and worse than nugatory, military title, conferred without reason, and held accordingly without authority.

But these are not all the difficulties such supposed student would meet with in this view of the system. He finds on the statute book, to which these Institutes refer him, that this same brevet rank, though for other causes, is conferred on lineal officers also ; and since it did not confer the right to command troops in the case of staff officers, either directly or indirectly, though they are declared to be " on the same footing as if their rank were lineal," he becomes solicitous to 2 learn how it will operate in the persons of lineal officers themselves, and is thence led into that labyrinth of disputation to which the conflicting claims of its possessors have given rise. Leaving him, however, to explore his mazy way alone, his original guide and light having deserted him, we shall close this part of our task by a few obvious reflections.

So far, these difficulties are clearly owing to a departure from that fundamental rule of authority and subordination, deliberately and forcibly laid down in the outset, only it would seem to be immediately and strangely violated, by numerous restrictions on, and exceptions to, its operation. Without the full and free operation of that rule, in and over the person of every individual in the army, the martial service cannot be well conducted, for it is essentially involved in the unity of military command. Cramped and manacled as it now is, by the laws and regulations together, the army is rendered unfit for that service for which alone it is instituted.

It might, for illustration sake, be readily imagined, as a theoretical history of the matter, that at the moment the fundamental rule was laid down, and the series of military officers proper, by whom it was to be exercised, was enumerated, the martial service was the immediate, and, indeed, only object in view. Afterwards occurred the various staff agents, with their functions, principally what are called the administrative staff. To consider these among the privates of the army, besides the degradation, would be to subject their important functions to the control of very inferior officers. This would not do. On the other hand, to include them, as officers, in the series of army rank, would be to subject to them, in the measure of their rank, respectively, the martial service of the army. As little would this do. In this dilemma, what remained to be done with them as apart of the army? Nothing, but to dispose of them by the intermediate principle of restriction from military authority on the one hand, and exemption from it on the other, within certain artilicial limits ; and they became officers of rank unassimilated to that of the line. This is an instance of " that middle course, which always leads to ruin." In course of time, it may be further imagined, these gentlemen coveted military rank, and seme of them, through legislative ignorance or apathy, got it. But this revived the same difficulty in a new form, which could now only be gotten rid of, by divesting that rank itself, through a course of executive legislation quite familiar to the army, of all military power in their persons, and they became thenceforth, in the phrase of the regulations, " officers with assimilated," or counterfeit, " rank."

But the ambition Avhich sought the rank, would not so readily be deprived of the corresponding functions and privileges. Hence a conflict of claims and pretensions, on both sides of which much law, regulation,- and practice, foreign and domestic, are adduced, without the hope of an ultimate adjustment, unless recourse be had to constitutional provisions, and the reason and necessity of the case.

Meanwhile, by way of compromise with these stj^ officers, for the actual privation of that, to which the law should never have allowed them the slightest claim, nor ever have placed them in a situation to think of it, a qualified military authority is allowed, or rather pretended to be allowed, to part of them, by means of the rule, " that the chiefs of staff will form a chain of subordination among themselves." By way of exemplification of what was not easily to be conceived, it is immediately added, " thus the Colonel " (assimilated) " who occupies that station in a division, will have a direct authority over a Major," (assimilated,) " chief of one of the brigade staffs in the same division ; but should, in this example, the Colonel give an order to the Major, incompatible with the duties of the latter towards his brigade, such order would not be obeyed, until communicated to the Brigadier General for his approbation. The same rule will apply equally to any two proximate chiefs of staffs, from the Major General," (assimilated,) '' at general head quarters, down to the Adjutant of a regiment." Yes. equally well, certainly. An authority liable to be countermanded by another ! a direct authority indirectly exercised ! an authority independent of a Major General, yet not so of his dependent Brigadier General ! A chain of subordination among themselves, yet linked in with, and interrupted by, the lineal officers, by and in whom a gradual and universal subordination and authority is to take place throughout the army, the whole army, staff and all, " even as one corps ! !" This needs no comment, certainly- Enough, we trust, has been said, though much remains unsaid, to afford a pretty distinct idea of the nature and extent of the difficulties in question.

Section II

Deriving our origin from the British nation, speaking therefore the same language, accustomed so long as colonies to the same government, whose leading principles are so congenial to public liberty, it was natural, and, perhaps, at the moment of gaining our national independence necessary, that our legal institutions should, for the most part, be moulded on the same forms, and be imbued with the same spirit. However this may be, it is certain that the legal part of our military system bears a striking resemblance to the British, and contains what we regard to be the same radical defect ; what this is, we shall now endeavor to show.

The British mutiny act and articles of war constitute an anomaly in legislation, of which, probably, no similar instance can be found. Their co-existence, the sameness of their provisions, and common relation to the same ends, are owing to an accommodation (produced by the reprisals of liberty in process of time on the power of the ancient monarchy,) between the two branches of that Government, which, by a contradiction of terms, are each said to possess the supreme power, namely — the Parliament as omnipotent, with whom the act originates, and the King as sovereign, from whom the articles proceed.

This contradiction in its bearing on the military system is attempted to be reconciled by a gloss of this sort : the mutiny act is represented as being the outline of the military penal law, to be filled up by specifications furnished by the articles of war; the one, as it were, the geographical map, the other the topographical details. The former, it is said, indicates classes of crimes, for the most part by a general phraseology, designating those to which capital punishments may extend ; while to the latter it is left to define them with precision, and 2* prescribe within these limits, the penalties which shall actually attach.

However plausible at first sight this may appear, it requires no great discrimination to perceive that tlie legislative power of the King, in this matter, efFectiially supercedes that of Parliament, instead of being controlled by it, as some commentators contend. To declare what acts or omissions shall be deemed olFences, what their degrees of aggravation as such, and what particular punishment shall attach to them, thus both furnishing the rules of conduct, and prescribing for their enforcement all the requisite sanctions, is certainly to exercise the legislative power. It would be difficult to define this power, by enumerating any other functions of which it essentially consists ; and, as to the limitations of punishments enjoined by the mutiny act, if indeed limitations they can in truth be called, it must be obvious to the slightest examination that the boundaries they afford to the King's prerogative in this concern, are so very wide, that even a despot, though he might covet the power to proclaim the absence of all restraint on his will, could not desire their practical extension. In short, the mutiny act, with its ostentatious annual enactment, is but the ambiguous form in which all this power is acknowledged in the King.

The apologetic and uncandid language of a late military writer, (Samuel,) cannot avail to change this character of the British military penal law ; but, on the contrary, strongly though indirectly confirms it. After stating that " so necessary the weight and strength of the royal prerogative has, at all times, been found to the direction and restraint of the conduct of the military body, that it has been always, and is now, fraught with a concurrent legislative authority for framing obligatory regulations, in certain cases, for the government of the army, independent for a long time, if not now independent, of the other branches of the legislature," he proceeds to say — " the greatest moderation has been discovered by Parliament in the use of its legislative faculty in the affairs of the army ; and wherever and whenever it has been exercised, it has evinced a deference to the pre-existing power of the Crown. Its interference, it may be said, has been slow, considerate, and sparing ; and it has not at any time had the appearance of a clashing of rival authorities, but a silent sharing v/ith the Crown of a common right for the common benefit ; an unostentatious assumption and enjoyment of what lawfully belonged to itself, without molesting or touching the royal interests combined with it. The event has been the supercession, rather than the positiv^e abrogation of the high military prerogative of the Crown in the sole making and declaration of the law, for the higher descriptions of military offences, A result, not of adverse conflict, but of agreement or consent between the parties interested."

Without stopping to comment on the paltering language by which tbese manifest incongruities are attempted to be dimmed to the reader's observation, we would remark that these delicate and gingerly approaches on the part of Parliament to the Crown have certainly not been attended with the success here attributed to them. Its high military prerogative has not been thus seduced from it by Parliament, and it is apparent, from some of the language of this quotation? that its author was somewhat suspicious, at least, that the pre-existing power of the Crown, so necessary by its weight and strength to the direction and restraint of the military body, had not in fact been relinquished in any degree to the Parliament, notwithstanding it so lawfully belonged to the latter.

In further confirmation of our views, let us refer to the opinion of Lord Loughboro', given from the bench in the case of Sergeant Grant in Trinity term, 1792, and we think it will be apparent that, while his design in expounding the mutiny act is to show and describe a limitation on the King's power of making articles of war, which we have declared to be co-extensive with the whole power of military government, he actually shows, by the admissions he is obliged to make, that no such limitation exists ; but, on the contrary, that there is in fact and of necessity a limitation on the legislative power of Parliament of precisely the character we have imputed.

" The extensive power " says the Judge, ^' granted by the Legislature to His Majesty, to make articles of war, is limited to the making of articles for the better government of his forces." " Better," that is, we rejoin, than it was thought could be devised by the Legislature, for the remission to him of the power to do so, though called a " grant," is a plain admission of '.s own inability ; " and " continues the Judge, " they can extend to no other cases than such as are thought," by him of course, " necessary for the regularity and due composition of the army."

This regularity of the army is the result of its better government, and this due composition of it is the plan, or due arrangement of the parts, by which such government is administered ; and the whole clause, therefore, may be rendered thus, " the articles of war which the King has power to make can extend to no other cases than he thinks necessary for the government of the army." If this be limitation, what is not so ?

It being clear then, to our judgment, that in the British system it is not the King's power to govern or control the army which is limited, we shall proceed to show further, from the Judge's view, that it is the Parliament's power in that respect which, by its own admission, is so. After stating that " breaches of military duty are in many instances strictly defined, in all cases where a capital punishment is to be inflicted,'" he proceeds to say, " in other instances, when the degree of offence may vary exceedingly, it may be necessary to give discretion with regard to the punishment" to the King of course in his articles. Why, we ask, was it conceived to be necessary to give this discretion ? — What is meant by the degree ot off"ence varying so exceedingly in these instances ? And why is it that, " in some cases," as he goes on to say, " it is impossible more strictly to mark," define " the crime, than to call it a neglect of discipline ?" The one answer to all these questions is this, that that portion of the military control which consists in directing the martial services of the army resides, and must of necessity reside, in the King as commander in chief; and the classes of offences here referred to consist of violations or neglects of his orders, and those of his subordinate commanders. As these could not be foreseen, even by him or them, much less by Parliament, it was evidently impossible more strictly to define the crime of violating them, than to call it a neglect of discipline.