Researcher's guide

Military Justice in the Civil War

The two codes a court-martial ran under, the articles a man was charged with, and the review a sentence had to survive before it was final.

A plain-language companion to the statute research behind A Soldier's Life Reports' court-martial reports. When you read a court-martial file, the single organizing fact is the article the accused was charged under — it defines the offense, sets the sentence ceiling, and dictates the review a sentence had to survive. Companion to "The Confederate Pension Laws" and "The Federal Pension Laws."

All fourteen states of the pension corpus were read from their acts; the two military-justice codes below are read the same way — the Articles of War of 1806 whole from the statute, and the 1862 Navy articles whole from the act as compiled in 1865.

1. Two services, two codes

A court-martial ran under a written code, and which code depended on the service:

  • Army — the Articles of War of 1806 (Act of April 10, 1806, 2 Stat. 359): one hundred and one Articles, enacted under Jefferson and left essentially untouched all through the Civil War (they were not recodified until 1874). Every Army court-martial from 1861 to 1865 ran under this 1806 code.
  • Navy — the Articles for the Government of the Navy (Act of July 17, 1862, 12 Stat. 600), the sailors' "Rocks and Shoals," a wartime revision of the 1800 articles. Every Navy court-martial ran under this.

Above both sat the law of war. When the accused was a civilian, a guerrilla, or a spy, the tribunal was not a court-martial under the Articles at all but a military commission, governed from 1863 by General Orders No. 100 — the Lieber Code ("Instructions for the Government of Armies of the United States in the Field"), the first modern codification of the laws of war. Telling a court-martial from a commission is the first thing to establish in any trial file.

2. What was a crime — the charging articles

Most trials turn on a handful of articles. On the Army side:

  • Desertion (Art. 20). "shall suffer death, or such other punishment as ... a court-martial shall inflict." The death penalty was real in wartime; an Act of 1830 had barred death for desertion in time of peace. So a death sentence for desertion in 1863 is squarely within the article, where the same sentence in peacetime would not have been. Most desertion cases, though, ended in imprisonment, forfeiture, and a dishonorable discharge — or, as often, acquittal, because the line between desertion and mere absence turned on intent to stay away for good.
  • Absence without leave (Art. 21). The lesser cousin of desertion: absence without the intent that makes it desertion, "punished at the discretion of a court-martial." A charge sheet that reads "Desertion" but proves only a short unauthorized absence is why so many desertion trials end in acquittal or a reduced finding.
  • Mutiny and sedition (Arts. 7–8). Beginning, exciting, or joining a mutiny (Art. 7), or being present and failing to use one's "utmost endeavor to suppress it" (Art. 8) — capital.
  • Violence to or disobedience of a superior (Art. 9). Striking a superior, drawing a weapon on him, or "disobeying any lawful command" — capital.
  • Drunk on duty (Art. 45), sleeping on or leaving a post (Art. 46, a sentinel, capital), and misbehavior before the enemy (Art. 52) — running away, abandoning a post, casting away arms.
  • Conduct unbecoming an officer and a gentleman (Art. 83). Conviction carries mandatory dismissal — no discretion.
  • The General Article (Art. 99). The catch-all: "all crimes not capital, and all disorders and neglects ... to the prejudice of good order and military discipline, though not mentioned in the foregoing articles." A charge phrased "conduct to the prejudice of good order and military discipline" is this article, not a named offense.

The Navy code covers the same ground in fewer, longer articles:

  • Capital offenses (Art. 3) gathers mutiny, striking or disobeying a superior, giving intelligence to "an enemy or rebel," deserting to the enemy, sleeping on watch, and wilfully stranding a vessel, all punishable by "death, or such other punishment as a court-martial shall adjudge" (the Navy's verb, where the Army says "inflict"). Spies (Art. 4) and murder (Art. 5) are also capital.
  • Second-tier offenses (Art. 7) — cruelty to subordinates, "profane swearing, falsehood, drunkenness, gambling, fraud, theft, or any other scandalous conduct tending to the destruction of good morals."
  • The general article (Art. 8) punishes anything "not specified in the foregoing articles," and, notably, writes the flogging ban into the code itself: "in no case shall punishment by flogging be inflicted."

3. The court itself

  • Composition (Army Art. 64). A general court-martial is five to thirteen officers, and "not less than thirteen where that number can be convened without manifest injury to the service." So a court of seven carries a recital that thirteen could not be assembled; its absence is worth noticing.
  • Who convened it. In the Army, a general commanding an army or a colonel commanding a separate department (Art. 65). In the Navy, the President, the Secretary of the Navy, or a fleet or squadron commander (Art. 11).
  • The judge advocate (Army Art. 69) prosecuted for the United States but was also, once the accused had pleaded, "counsel for the prisoner" — one officer both pressing the case and guarding the man against leading questions.
  • Testimony was on oath (Art. 73), in a fixed form; the record's verbatim charges, pleas, findings, and sentence are the load-bearing facts.

4. Sentence and review — the chain a verdict had to survive

A court-martial's sentence was never final on the court's word alone.

  • A death sentence required a two-thirds vote — Army Art. 87, Navy Art. 19 — never a bare majority. A capital sentence recorded without that concurrence is a flag.
  • The Army had a two-year statute of limitations (Art. 88) from offense to trial order, tolled by the accused's absence.
  • The reviewing authority could soften, within limits. In the Army the officer who convened the court could pardon or mitigate any sentence except death or the cashiering of an officer, which he suspended "until the pleasure of the President" (Art. 89). In the Navy the convening authority could "remit or mitigate, but not commute" a sentence (Art. 20), and a death sentence required the President's own confirmation before it could be carried out (Art. 19).
  • So a sentence commuted, remitted, or mitigated on review is the review power at work, not unexplained mercy; and a death or dismissal sentence travelling up to the President is the code's own machinery, not an anomaly. A report that stops at the court's verdict, before the reviewing endorsement, tells the story wrong.
  • Flogging was gone. The Navy abolished it in 1850, the Army in 1861 — so despite the lash provisions still printed in the old articles, no Civil War court sentenced flogging.

5. The wartime overlay

Three wartime measures sit atop the 1806 code. The Act of July 17, 1862 broadened court-martial jurisdiction; the Enrollment Act of March 3, 1863 reached spies and recruiting fraud and authorized military commissions; and General Orders No. 100 (the Lieber Code, April 24, 1863) governed those commissions and the conduct of armies in the field. A trial of a civilian, a guerrilla, or a spy belongs to this body of law, not to the Articles of War — and a report should say which tribunal it is reading.

6. Reading a court-martial file against the code

For every charge, name the article (Army) or the 1862 act (Navy) it was brought under. Then read the outcome against the code: was the sentence within that article's ceiling? Did a death sentence carry the two-thirds concurrence? Did the record run the confirmation chain the code requires — the convening authority's review, and the President's confirmation for the gravest sentences? Where the file recites an article number, quote it; where the paper is silent, name the governing article from the code. The articles are read, never remembered.

7. How we know this

The Articles of War of 1806 were read whole from the statute (2 Stat. 359, in the form used by Civil War judge advocates and reprinted in Benét's Treatise on Military Law and the Practice of Courts-Martial, 1862). The Navy articles were read whole from the Act of July 17, 1862 (12 Stat. 600) as compiled in Laws Relating to the Navy and Marine Corps (1865). Winthrop's Military Law and Precedents is the standard completeness check. As with the pension corpus, no summary was trusted for an article number, a sentence ceiling, or a review rule — each was read from the code itself.

Updated 2026-09-02 · Companion to "The Confederate Pension Laws" and "The Federal Pension Laws: A Researcher's Guide." The model-facing reference (the articles indexed with their sentence and review rules) lives in the court-martial skill.

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