The Army Lawyer
The Past is the Present
What Two 19th Century Trials Can Tell Us About Court Martialing Senior Leaders Today
|A wooden engraving depicting the view from the Potomac River in Washington, D.C. as the city was under attack by British forces. (Credit: Library of Congress).|
Specification 3d. In declaring, in the open street, in front of the marine barracks, on or about the 1st of September, instant, in the presence of a number of his officers, that he did not care a damn for the president, Jesus Christ, or God Almighty.1
Misconduct by senior leaders in the U.S. armed forces always makes the news—invariably accompanied by a discussion of whether senior leaders receive more lenient treatment than the junior members of their services.2 It might be surprising, then, to learn that both the third and fourth3 Commandants of the Marine Corps were court-martialed while in office. The charges against the third commandant, Lieutenant Colonel (LTC) Franklin Wharton, arose from his leadership during the War of 1812, specifically, his failure to personally lead Marines against the British force advancing on Washington in 1814. The charges against the fourth commandant, LTC Anthony Gale, involved personal misconduct, namely public drunkenness. Wharton was acquitted, and Gale was convicted and dismissed.
The man who would succeed Gale, Archibald Henderson, known as the “Grand Old Man of the Marine Corps” because he served as commandant for thirty-nine years, played an instrumental role in bringing about Wharton’s court-martial. In his quest to become commandant, Henderson preferred the charges against Wharton and served as prosecutor at his court-martial. He also did his best to undermine Gale, but failed to prevent Gale’s appointment.
Wharton did not deserve to be court-martialed. Gale did. Today, the prospect of a Service’s highest-ranking officer being court-martialed, much less dismissed as Gale was, is unlikely. There are good reasons for this. For instance, it is doubtful an officer such as Gale would survive the modern selection and confirmation process for general and flag officer.4 Also, courts-martial of senior officers used to be more common, and were not necessarily career-ending.5 On the other hand, there is some validity to the critique that the modern military justice system loses its potency when the accused wears stars.6
Despite two centuries of reform to military law, the trials of Franklin Wharton and Anthony Gale still have lessons to teach today’s judge advocate about court-martialing general and flag officers. First, convening authorities in such cases should consider selecting members from other services. Both Wharton’s and Gale’s panels consisted primarily of Army officers who were senior to the accused.7 Second, a court-martial should be convened if—and only if—the charges and evidence warrant one, regardless of the political consequences of prosecution. The Marine Corps’s very existence was far less secure in the early nineteenth century than it is today.8 Yet, it managed to survive the dismissal of one of its earliest commandants and, indeed, was better for it.
The Old Corps
In 1798, the Marine Corps was born into an ambiguous administrative position that plagued its leaders and formed the backdrop of the courts-martial of two of its commandants. The Continental Navy and Marines had not survived America’s victory in the Revolutionary War.9 Tensions with Great Britain and France soon convinced the new republic it needed a Navy once again and, following the British model, Marines to go with it.10 The Department of the Navy was established on 30 April 179811 and the Marine Corps shortly thereafter, on 11 July.12 Congress authorized a Corps of 881 Marines,13 who would serve on ship and shore, and be subject to the Articles of War or the Rules for the Government of the Navy, depending on “the nature of the service in which they shall be employed.”14
The Corps was neither formally part of the Department of War nor the new Department of the Navy.15 Moreover, the commandant had little statutory authority. Aside from authorizing him to organize a headquarters staff, the law was silent on what the commandant could or should do and how, if at all, he would exercise command over Marines not on his staff.16 For his leadership of this Corps—small in size, serving with both the Navy and Army, subject to two different codes of military justice, and administered by a commandant with unspecified powers—Wharton would find himself put on trial.
Background and the War of 1812
Born in 1767 and a native of Philadelphia, Franklin Wharton received his commission in 1798.17 He was the next senior officer in the Corps when Lieutenant Colonel William Ward Burrows resigned in March 1804.18 So, just six years after becoming a Marine, Wharton became commandant.19 As the nation headed into the War of 1812, its Marines (about 1,000 in number) were distributed throughout its newly vast territory, from Louisiana to New England, and served as shipboard guards on some sixty vessels.20
In June 1812, Congress declared war on Great Britain, apparently more out of a sense of honor than confidence that the United States could win.21 The British—still fighting Napoleon—did not deploy significant forces to America until the defeat of the French Empire in the spring of 1814.22 On 19 August, a British force landed in Maryland and began to march on Washington.23
For his part, Wharton had previously carved a “battalion” of a little over 100 men out of the 150 to 200 Marines under his personal command in Washington, and placed it under the command of his adjutant, Captain Samuel Miller.24 These Marines fought as part of the American Army at Bladensburg, Maryland, on 24 August, just a few miles away from Washington.25 They fought well, but the Marines could not change the battle’s course: principally a militia force, most American troops at Bladensburg fled on contact with their professional British counterparts,26 who were in Washington that evening.27
The federal government had already evacuated.28 Before making his escape, Wharton offered the commander of the Washington Navy Yard assistance, which he declined.29 British troops famously burned the capital,30 but the two countries, realizing they had more to lose than gain from the war,31 reached a peace agreement the following winter.32
Marines had done well in the war, though they were too few in number to have made much of a difference.33 One Marine, however, was particularly dissatisfied with the commandant’s performance: Major Archibald Henderson, an intensely ambitious man chafing against a strictly seniority-based promotion system.34 Henderson, who had been in neither Washington nor Bladensburg,35 believed Wharton should have taken the field to fight the British personally. That such a gesture would have achieved nothing was beside the point—to Henderson, it was a matter of honor and perhaps “the chance to maneuver into Wharton’s job.”36 So, in 1817, he preferred charges against his commandant.37
The Wharton Court-Martial
The court-martial assembled in Washington on 10 September 1817.38 The panel consisted of eleven members—nine Army officers, two Marines—with an Army colonel presiding.39 Remarkably, one of the Marines detailed to the court, Captain Wainwright, was a prosecution witness and named in two of the specifications.40 Pointing this out, he sensibly requested to withdraw, but the court-martial retained him as a member anyway.41
Henderson himself served as the prosecutor.42 He charged Wharton with five specifications of neglect of duty and three specifications of conduct unbecoming an officer and a gentleman.43 Each charge had one specification concerning Wharton’s leadership during the War of 1812. One specification alleged neglect of duty for not having “taken command in the field.”44 The other alleged conduct unbecoming for not defending his “military character,” which had been “assailed in its tenderest point, in consequence of the course he pursued at the time of the capture of the city of Washington.”45 In other words, even if Wharton had not been wrong to flee the capital, he had wrongfully failed to defend that decision, presumably by way of a duel, which would have violated the Articles of War.46
Two specifications under neglect of duty related to Wharton’s management of the Corps in general, alleging he had not “taken command of any parade,” nor while “in the uniform of the corps, reviewed or inspected any part of the [M]arine [C]orps.”47 The last two specifications under neglect of duty alleged that he had mismanaged the cases of three enlisted Marines.48 Finally, the two remaining specifications of conduct unbecoming alleged Wharton had “use[d] harsh and ungentlemanlike language towards [Major] John Hall” by calling him a liar and that Wharton had then “refuse[d] to make satisfactory reparation.”49
These charges could be seen not only as an expression of Archibald Henderson’s ambition and dissatisfaction with Wharton’s leadership, but also as a symptom of a personnel system under strain. Wharton had the unenviable task of downsizing the Corps pursuant to the Peace Establishment Act, which required the involuntary separation of many of the Service’s officers, including the aforementioned John Hall.50 For those who survived the downsizing, like Henderson, it seemed the only chance at promotion was by way of the removal of higher-ranking officers. Wharton pleaded not guilty to the charges.51
There being no such thing as a military judge, courts-martial of the time resolved questions or issues arising at trial through majority vote.52 Likely, it was fortunate for Wharton that most of the members on his court-martial were Army officers with little reason to care about Marine Corps politics. The court effectively dismissed the charge of conduct unbecoming by deciding not to hear any evidence on its specifications. Calling Major Hall a liar, the court reasoned, was not a crime under the Articles of War, and the other specifications were “too general.”53 Consequently, the court only heard evidence concerning Wharton’s alleged neglect of duty.
The members cut to the heart of the matter of Wharton’s alleged failures to take command in the field, preside over parades, or conduct inspections. They asked the prosecution’s first witness, Major Samuel Miller, who had led the Marines at Bladensburg, whether there “was any regulation or order in existence requiring the [commandant] to attend parades, to command the corps in the field, or to inspect or review it.”54 The answer: “none.”55 In short, he could not have neglected a duty he did not have.
Wharton did not rely solely on this defense, however. He argued that he had, in fact, gone out to Navy yards to inspect Marines and was present at parades; if not in the manner Henderson thought he should have.56 Wharton simply was not “in full uniform” for the parades, reviews, and inspections.57 Moreover, the Service’s shortage of manpower meant that there were often not enough Marines off guard duty for ceremonies.58
Much of the prosecution’s case consisted of testimony by one of the members, Captain Wainwright, about Wharton’s alleged failure to properly exercise his duties as a court-martial convening authority. Two Marines were convicted in Boston, but the officer ordered to execute their sentences, Wainwright, did not receive their sentences.59 It was a post-trial paperwork mix-up. The most interesting detail is that the president of the court-martial, who had ordered Wainwright to execute the sentences, was the prosecutor.60 On cross, and in his closing argument, Wharton blamed Henderson for the mess, which could have been averted had Henderson not left Boston before “the dissolution of the court-martial.”61 The final specification concerned a deserter who was confined in Boston without charges for about four months.62 There was little testimony on the matter, but Wharton claimed he had not known of the prisoner and the charge would not have warranted a court-martial anyway.63
The trial concluded with Wharton recalling Miller as a character witness. Miller testified that Wharton’s “character as commandant of the corps has been marked for promptness and humanity.”64 When asked if the Service suffered due to Wharton’s failure “to command parades in person, and to review and inspect the troops,” Miller answered: “In no instance.”65 There it was. Henderson had failed to make his case. The court fully acquitted Wharton on 22 September 1817.66
There had been no testimony specifically about Wharton’s absence from Bladensburg or his decision to flee Washington, but it is difficult to fault him for either. Miller had ably commanded the Marines at Bladensburg. It would have made about as much sense for Wharton to take command as it would for a lieutenant colonel today to take command of a company. Once the battle had been lost, remaining in the capital would have done nothing to alter the consequences of the British victory at Bladensburg: Washington would burn, whether Wharton was in it or not.
Overall, the charges and the evidence given at trial combined to give the impression that Henderson accused Wharton of not running the Corps how Henderson would run it. That, of course, is no crime, but once Henderson preferred charges, the matter had to be resolved through a court-martial, as was customary at the time.67 Henderson had failed. Because there was no retirement system to incentivize officers to leave,68 Wharton could be expected to stay on as commandant for the rest of his life. That turned out not to be a long time; he died the following year on 1 September 1818.69
So, despite his failed prosecution, Henderson became commandant anyway, if only temporarily. He was the acting commandant until the appointment of a replacement.70 Even with Wharton out of the way, there was one man, and therefore one resignation, death, or court-martial, between Henderson and seniority. That man was Major Anthony Gale.
A native of Dublin, Ireland, Anthony Gale immigrated to the United States in 1793 and commissioned as a Second Lieutenant of Marines in 1798, shortly after the Service’s creation.71 Thus, by the time of Wharton’s death, Gale was the senior Marine in the Corps. He had, by then, a mixed reputation. His most noteworthy accomplishment as a company grade officer was to kill a Navy officer in a duel for mistreating one of his Marines.72 As a major, his alleged mismanagement of the barracks in Philadelphia prompted Wharton to convene a court of inquiry, which cleared him of wrongdoing.73
While acting commandant, Henderson lobbied to make his position permanent by supplying a succession of Secretaries of the Navy—there were three during this five-month span—with adverse information about Gale,74 who was then serving in New Orleans.75 Finally, Secretary Smith Thompson convened another court of inquiry to take a second look at Gale’s command in Philadelphia and to investigate his reputation for drunkenness in New Orleans.76 Once again, Gale was cleared and became commandant on 3 March 1819.77 For the second time, Henderson had failed. Gale subsequently banished him to New Orleans, where he could influence little that happened in Washington.78
Nevertheless, Gale’s time in office would be short. He had inherited Wharton’s problems—namely, the Corps’s awkward administrative position within the government, and the Commandant’s unspecified command authority.79 The latter problem particularly bedeviled Gale. Wharton had reached something of an accommodation with civilian leadership concerning his authority.80 Gale, by contrast, had to contend with a President and a new Secretary of the Navy who were receptive to officers applying to them directly for leave or assignments.81 At wit’s end, Gale wrote to the Secretary in August 1820 to define the limits of his authority.82 At the same time, he and his wife separated.83
With both his professional and personal life in disarray, Gale spent most of August 1820 drunk.84 Eventually, the second-ranking Marine in the capital, Samuel Miller, convinced the Secretary of the Navy to put Gale under arrest.85 When Miller informed Gale of his arrest, Gale guessed another Marine, First Lieutenant Richard Desha, was somehow behind his predicament.86 Gale insulted Desha, challenged him to a duel, and declared “that he did not care a damn for the president, Jesus Christ, or God Almighty” in the street outside Marine Barracks, Washington.87 Apparently not content he had sufficiently damaged his case, Gale violated the terms of his arrest.88 He would wait for his court-martial confined to his quarters.89
The Gale Court-Martial
The trial began on 18 September 1820, at Marine Barracks, Washington.90 As in Wharton’s court-martial, the members were principally Army officers, with a few Marines.91 Remarkably, Lieutenant Desha, who was named in the charges, had been assigned as an alternate.92 When other members failed to show up, Desha had to sit on the panel.93 Like Captain Wainwright in Wharton’s trial, Desha objected to sitting on a court-martial in which he would have to testify.94 And, like Wainwright, Desha became a member anyway. When asked, Gale declined to challenge Desha, so he stayed.95
The prosecutor, Major Miller, had preferred four charges against Gale.96 The two specifications under the charge of habitual drunkenness alleged he was “disgracefully intoxicated” to the point of not being able to perform his duties for much of August.97 The three specifications of conduct unbecoming alleged he had “visit[ed] a house of ill-fame, near the Marine Barracks, in an open and disgraceful manner,” insulted and challenged Desha to a duel, and made the aforementioned declaration concerning the President, Jesus, and God.98 The third charge was for making a false claim, but Miller abandoned it when new evidence came to light during the trial.99 Finally, the fourth charge alleged Gale had broken or violated his arrest.100
The record of proceedings depicts a man who, less than eighteen months after ascending to the highest office in the Marine Corps, had plummeted to the lowest point in his personal life. The prosecution’s case was straightforward. Miller called a series of witnesses to testify to Gale’s persistent drunkenness throughout the month of August. The first witness’s testimony was representative: “[H]e could as well designate the days when the prisoner was not drunk as he could those days on which he was under the influence.”101 That is, Gale was drunk as often as not, “and seemed generally too much stupefied to know what he was about, or to perform any duty properly.”102
Gale’s defense was that he had been ill, not drunk, that the alleged conduct unbecoming was not sufficiently serious to warrant a court-martial, and that Major Miller had exceeded his authority in confining him to his quarters, rather than placing him under arrest as the Secretary had ordered.103 Gale claimed to suffer “frequent and sudden propulsions of blood into the head, which produce[d] temporary giddiness and prostration of strength.”104 He asked the witnesses whether they had seen him drinking excessively, rather than just seen him in a state they believed to be drunkenness.105 He also asked the witnesses whether they knew he suffered from “giddiness” and dizzy spells.106
This was not an effective line of questioning. Many of the witnesses had, in fact, observed the commandant drink too much.107 For instance, Lieutenant Desha testified that he saw Gale, already drunk, at a tavern between noon and 3 p.m., “take four or five glasses, perhaps more, in that time of punch, whisky and water, and . . . wine bitters.”108 When asked about his mental condition, the witnesses invariably testified the only evidence they had of Gale’s affliction was that Gale had told them about it.109
However, one witness did relate he had seen Gale have what appeared to be a “fit, from the rolling up on his eyes.”110 And another witness, called by the defense, testified he had observed Gale undergo a dramatic change in behavior in the preceding two or three months from “correct” to “that of a drunkard or a madman—or rather that of a man partially deranged.”111 This witness, a doctor, also testified Gale had told him he suffered from “vertigo proceeding from fullness of blood,” which, naturally, was treated by bleeding.112 Unhelpfully for Gale, the doctor concluded his testimony with his opinion that Gale only suffered “that kind of derangement which accompanies intoxication.”113 In other words, Gale was not acting drunk because he was crazy, he was acting crazy because he was drunk.
In his closing argument, Gale conceded the facts underlying the charges of conduct unbecoming and violating the terms of his arrest. Though he had insulted Desha and declared his contempt for the President, he argued that he had retracted the insults and did not intend any disrespect to the President.114 He also admitted to having visited a brothel, but contended that did not rise to the level of “disgraceful turpitude and meanness” required—according to him—to be considered conduct unbecoming.115 Finally, he did not deny having gone outside the limits of his arrest, as specified to him by Major Miller, but argued, apparently without any factual basis, those limits were more restrictive than had been authorized by the Secretary of the Navy.116
Generally speaking, the proceedings were fair, at least by the standards of the day. Gale was represented by counsel, who sometimes cross-examined witnesses rather than the accused doing it himself.117 This was a privilege the accused did not often enjoy in courts-martial at the time.118 When Gale complained that his confinement impaired his ability to prepare a defense, the court granted him liberty within Washington, subject to a curfew.119 When Gale took advantage of this shortly before resting his case in order to talk with some witnesses who might be helpful for his case, he was arrested for a private debt and was consequently absent from court when it came to order.120 It was an ignominious conclusion to the defense case. The court recessed until Gale returned, at which time his counsel read aloud to the members the closing argument Gale had prepared.121
The court found Gale guilty of one specification of habitual drunkenness, the three specifications of conduct unbecoming, and the sole specification of violating the terms of his arrest.122 The court found him not guilty of the charge of submitting a false certificate, which the prosecutor had attempted to withdraw, and the other specification of habitual drunkenness.123 In view of the weight of the evidence, these were reasonable findings.
The next day, 29 September, the court concluded by sentencing Gale to be “cashiered”—that is, dismissed.124 It was the minimum sentence the court could adjudge. The Articles of War required dismissal for conviction of conduct unbecoming.125 President Monroe approved the sentence the following month, thereby ending Gale’s twenty-two-year career.126 While the sentence might seem harsh today, it should be kept in mind that his dismissal did not deprive him of retirement benefits. Today’s military retirement system did not exist, though the Department of the Navy did eventually grant him a modest pension.127 And, regardless of whether Gale’s behavior was attributable to some undiagnosed illness, he simply had no business being a commissioned officer any longer, much less the commandant.
The rule of seniority now benefitted Henderson, whom the Secretary of the Navy quickly picked to replace Gale.128 Henderson would go on to become the second most famous commandant (after John A. Lejeune). Gale would die in obscurity, without even an official portrait to commemorate his brief time as the Corps’s senior officer.129
What We Can Learn from These Trials
Aside from their historical interest, it might seem at first that the trials of Wharton and Gale have little to offer to today’s military justice practitioners and convening authorities. Neither trial was presided over by a judge. Both trials had a member called as a prosecution witness. And, not only were the prosecutors not attorneys, they both stood to benefit directly from victory at trial because they were leading candidates to become the next commandant. Nevertheless, there are two key lessons to be learned from these cases. First, convening authorities should draw on other Services for members when the accused is a general or flag officer. Second, such an officer should be court-martialed if—but only if—the charges and evidence warrant a trial.
In both trials, the panels were made up mostly of officers not in the accused’s Service. This was essential to justice in each case, both in fact and in appearance. The accused’s status as the senior officer in the Marine Corps made it both unlikely that other Marine officers could evaluate the evidence objectively and, as happened in both cases, more likely that Marine members would have personal knowledge of the facts. In today’s legal terms, any Marine available to sit on these cases would probably be subject to challenge for actual or implied bias.130
By contrast, the Army officers who heard these cases had nothing to lose or gain from either Wharton’s acquittal or Gale’s dismissal. Had the panels been comprised solely of Marines, one might suspect the case outcomes were more expressions of intra-Service politics than justice. But because a decisive proportion of the panels were Army officers, one could be confident that the verdicts were reached in the right way.
Selecting members who could be objective does not appear to have been a motivating factor behind the selection of members in either Wharton or Gale’s trials. Indeed, the President detailed Marine members to Wharton’s trial after the court objected to their absence. Nevertheless, convening authorities for senior leader cases should consider following the example set in these trials with respect to the selection of members.
A recent case that might have benefitted from having members from other Services was the general court-martial of Army Brigadier General Jeffrey Sinclair in 2013. Due to his rank, finding members who were both senior to the accused and unbiased proved tremendously difficult—out of the twenty-four Army general officers originally detailed to hear the case, only two survived the first round of voir dire.131 The military judge even advised the prosecution “that upper-ranked personnel from other branches of the military [could] serve on the panel.”132 That ultimately proved unnecessary. Five major generals survived a voir dire process that churned through more than forty general officers, most of whom “were rejected because they knew Sinclair or other key potential witnesses.”133 Were Sinclair higher-ranking than a brigadier general, or if today’s rule requiring eight members for a general court-martial applied, it is possible the convening authority would have had no other choice but to use members from other Services.
This article does not contend that members from other Services are—or should be—per se required in the courts-martial of general or flag officers. However, convening authorities should consider selecting members from other Services anyway, and the Department of Defense should facilitate, perhaps by requiring the Services to make general and flag officers available for court-martial duty. The pool of eligible members is extremely small in such cases, not only because of the member seniority requirement, but also because most generals and admirals develop personal relationships, friendly or not, with other such officers in their respective Services over the course of the three decades or so it takes to attain their rank.
Moreover, eligible members from the accused’s Service will typically be more keenly attuned to their Service’s political interests and correspondingly sensitive to the impact the case outcome will have on them. Accordingly, convening authorities should consider obtaining members from other Services as a structural safeguard against that political sensitivity, even if it does not rise to the level of implied bias that would justify excusal from the panel. Members from other Services should be more objective due to their lack of personal knowledge of the accused and their lack of concern with the parochial Service interests implicated by the court-martial of such a senior officer. Thus, as in the trials of Wharton and Gale, the members will be better able to render a verdict based on justice, whichever way it leans.134
The second lesson of these trials is that the decision to court-martial a general or flag officer should be based on the charges and evidence, and nothing else. The ideal number of senior leader courts-martial is, of course, zero, or something very close to it. But how the Services reach that number makes all the difference. Is it because those promoted to general or flag rank are adequately screened? Or is it because their cases are resolved under a different set of rules dependent on rank?
The courts-martial of Franklin Wharton and Anthony Gale should not be dismissed as mere relics of a time when courts-martial were used to vindicate the accused’s honor. The resolution of Gale’s case seems severe by today’s standards, but it showed the man was not afforded more lenient treatment on the basis of his rank. While Wharton’s alleged failings would today be more appropriately handled through an administrative investigation,135 his trial by court-martial brought a public and transparent end to accusations concerning his leadership during and after the War of 1812.
Wharton’s trial also demonstrates the importance of avoiding a court-martial unless the evidence warrants one. Henderson’s charges were arguably made in bad faith. Wharton was fortunate, then, to have been judged by a panel made up mostly of officers who did not care whether he, or Gale, or Henderson, would be commandant of the Marine Corps.
Holding generals and admirals accountable can be difficult. Court-martialing can be a cumbersome process. Nevertheless, when a general or flag officer commits serious misconduct, a court-martial is an option, regardless of administrative difficulty or public embarrassment. Though the trials of Franklin Wharton and Anthony Gale show how it should be done—with members from other Services. The military justice system has changed a great deal since the early nineteenth century; the principles of justice, discipline, and accountability have not, no matter the accused’s rank. TAL
1. Charge II, Specification 3 of the charges referred to general court-martial against Lieutenant Colonel Anthony Gale, fourth Commandant of the Marine Corps. Adjutant and Inspector Gen.’s Office, Court Martial [sic], 19 Niles’ Wkly. Reg. 129, 132 (1820).
2. See Craig Whitlock, In Rare Spectacle, Army Court-Martials a Retired General, Wash. Post (Aug. 25, 2017), https://www.washingtonpost.com/world/national-security/in-rare-spectacle-army-court-martials-a-retired-general/2017/08/25/473fc440-89ac-11e7-a50f-e0d4e6ec070a_story.html (“It is extremely rare for senior military officers to face court-martial proceedings. The Air Force has never court-martialed a general. The Navy has court-martialed just one admiral since the end of World War II.”).
3. By convention, Samuel Nicholas, the ranking officer of the Continental Marines, is considered the first Commandant of the Marine Corps even though, strictly speaking, he never held that title. Preface to Commandants of the Marine Corps vii (Allan R. Millett & Jack Shulimson eds., 2004). Technically, Wharton and Gale were the second and third Commandants. This article follows the Marine Corps conventional numbering, under which Wharton and Gale were the third and fourth Commandants, respectively.
4. See U.S. Dep’t of Def., Instr. 1320.04, Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation, encl. 2, para. 2.b. (3 Jan. 2014) (requiring the secretaries of the military department to “[c]ertify that officers identified in [General/Flag Officer] personnel actions are mentally, physically, morally, and professionally qualified for promotion or appointment”).
5. See Walter T. Cox III, The Army, the Courts, and the Constitution: The Evolution of Military Justice, 188 Mil. L. Rev. 1, 7 (1987) (In the context of the American Revolution, “[m]any general and senior officers were subjected to court-martial—it was one method by which the good name of an officer could be vindicated.”).
6. E.g., Craig Whitlock, Pentagon Investigations Point to Military System That Promotes Abusive Leaders, Wash. Post (Jan. 28, 2014), https://www.washingtonpost.com/world/national-security/pentagon-investigations-point-to-military-system-that-promotes-abusive-leaders/2014/01/28/3e1be1f0-8799-11e3-916e-e01534b1e132_story.html (“Most military commanders are upstanding and well-respected . . . [b]ut in recent months, the armed forces have been shaken by an embarrassing number of generals and admirals who have gotten into trouble for . . . ethical lapses.”); Tom Vanden Brook, Senior Military Officials Sanctioned for Cases of Serious Misconduct, USA Today (last updated Oct. 25, 2017, 1:48 PM), https://www.usatoday.com/story/news/politics/ 2017/10/24generals-sex-misconduct-pentagon-army-sanctions-hagel-gillibrand/794770001/ (discussing “500 cases of serious misconduct among its [the Department of Defense’s] generals, admirals, and senior civilians” from 2013–17); Stephen Losey, ‘Different Spanks for Different Ranks’: Lawmaker Questions Lack of Courts-Martial for Air Force Generals, A.F. Times (Feb. 21, 2018), https://www.airforcetimes.com/news/your-air-force/2018/02/21/different-spanks-for-different-ranks-lawmaker-questions-lack-of-courts-martial-for-air-force-generals/ (discussing fact that the Air Force has never court-martialed a general officer). For a more nuanced perspective, see James Joyner & Butch Bracknell, Why ‘Different Spanks for Different Ranks’ Are Often Justified, Def. One (Mar. 6, 2018), https://www.defenseone.com/ideas/2018/03/officer-misconduct-military-justice/146423/.
7. U.S. Dep’t of Navy, Trial of Franklin Wharton, Lieutenant Colonel of Marines (Apr. 4, 1818), in 1 American State Papers: Class VI: Naval Affairs 505 (Walter Lowrie & Walter S. Franklin eds., 1834) [hereinafter Trial of Franklin Wharton]; United States v. Anthony Gale, at 4 (President of the United States, Washington, Sept. 18, 1820).
8. In 1830, Congress considered President Andrew Jackson’s proposal to abolish the Marine Corps. Robert Debs Heinl Jr., Soldiers of the Sea: The United States Marine Corps, 1775–1962, at 39 (2d ed. 1991).
9. Id. at 8-10.
10. Allan R. Millett, Semper Fidelis: The History of the United States Marine Corps 32 (rev. and expanded ed. 1991).
11. Act to Establish an Executive Department, to be Denominated the Department of the Navy, ch. 35, 1 Stat. 553 (1798). Prior to this legislation, the Department of War was responsible for the country’s naval affairs. Three frigates had already been constructed pursuant to legislation passed in 1794. Millett, supra note 10, at 27–29.
12. Act for the Establishing and Organizing a Marine Corps, ch. 72, 1 Stat. 594 (1798).
13. Id. § 1. This was only the Corps’s authorized strength. In reality, the Corps had difficulty maintaining even half this number. Millett, supra note 10, at 31.
14. Act for the Establishing and Organizing a Marine Corps, ch. 72, §§ 2–4, 1 Stat. 594, 595 (1798).
15. Millett, supra note 10, at 30. Indeed, the Corps would not be assigned to the Department of the Navy until 1834. Act for the Better Organization of the United States Marine Corps, ch. 132, 4 Stat. 712 (1834); William Winthrop, Military Law and Precedents 74 (2d ed. 1920) (“The Act of June 30, 1834 . . . while assimilating [the Corps] to the army in respect to organization, discipline, and pay, permanently attached it to the naval establishment for administrative and jurisdictional purposes.”).
16. See Act for the Establishing and Organizing a Marine Corps, ch. 72, § 2, 1 Stat. 594, 595 (1798). The Act specifies the President as the authority for how Marines would be employed. Id. § ٣. In practice, the Commandant’s job was not unlike what it is today: recruit and train Marines for service with the operating forces. Heinl, supra note 8, at 10.
17. Gerald C. Thomas Jr., Franklin Wharton: 1804–1818, in Commandants of the Marine Corps, supra note 3, at 36, 36.
18. Brendan P. Ryan, William Ward Burrows: 1798–1805, in Commandants of the Marine Corps, supra note 3, at 27, 34.
19. Millett, supra note 10, at 38.
20. Id. at 46–48.
21. To be sure, America’s grievances against Britain were substantial, and valid. They included “impressment [that is, conscription] of American sailors, provocation of Indian unrest on its frontiers, and the outright seizure of its commercial ships.” Walter R. Borneman, 1812: The War That Forged A Nation 45 (2005). Nevertheless, the nation was “militarily unprepared” for conflict with the British Empire. Id.
22. Id. at 177.
23. Id. at 222.
24. Millett, supra note 10, at 48.
25. Id. at 49.
26. Borneman, supra note 21, at 227.
27. Id. at 229.
28. Millett, supra note 10, at 49.
30. Borneman, supra note 21, at 230–32.
31. Id. at 268–70.
32. Id. at 296.
33. Millett, supra note 10, at 50.
34. Joseph G. Dawson, With Fidelity and Effectiveness: Archibald Henderson’s Lasting Legacy to the U.S. Marine Corps, 62 J. Mil. History 727, 729–30 (1998).
35. Henderson spent the war at the Boston Navy Yard and aboard the U.S.S. Constitution. Id. at 730.
36. Id. at 731.
37. Id.; Trial of Franklin Wharton, supra note 7, at 503, 505–06.
39. Id. at 505. Initially, the members were all Army officers who, before arraignment, questioned whether the Articles of War required Marine representation on the panel. Id. at 504. Article 68 of the Articles of War required officer(s) of the same Service as the accused “[w]henever it may be found convenient and necessary.” Articles of War, art. 68, 2 Stat. 359 (1806), reprinted in Winthrop, supra note 15, at 976, 982 [hereinafter Articles of War]. Though the Attorney General and President Monroe believed Marine representation was not required, the President detailed Marine members anyway. Trial of Franklin Wharton, supra note 7, at 504–05.
40. Trial of Franklin Wharton, supra note 7, at 505. The Articles of War expressed a strong preference for members to outrank the accused, but did not require it. Articles of War, supra note 39, at 983 (art. 75). Winthrop wrote that this provision was “directory only upon the convening commander”—that is, the accused could not object on the basis of being tried by officers junior to him. Winthrop, supra note 15, at 72.
41. Trial of Franklin Wharton, supra note 7, at 505.
42. Thomas Jr., supra note 17, at 44.
43. Trial of Franklin Wharton, supra note 7, at 505–06.
44. Id. at 505.
45. Id. at 505–06.
46. Thomas Jr., supra note 17, at 44; Articles of War, supra note 39, at 978 (art. 25).
47. Trial of Franklin Wharton, supra note 7, at 505.
49. Id. at 506.
50. Thomas Jr., supra note 17, at 43.
51. Trial of Franklin Wharton, supra note 7, at 506.
52. Winthrop, supra note 15, at 172.
53. Trial of Franklin Wharton, supra note 7, at 506–07.
54. Id. at 506.
56. Id. at 509.
57. Id. at 506.
59. The record does not specify what the Marines were convicted of, or their sentences. Id. at 506–07.
60. Id. at 507.
61. Id. at 507, 509.
62. Id. at 507.
63. Id. at 507, 509–10.
64. Id. at 507.
67. Many matters were referred to court-martial in the 19th century that would be handled through administrative measures today. Thomas Jr., supra note 17, at 44. For instance, a militia colonel was court-martialed twice for not cutting off his queue—that is, the traditional British hairstyle whereby the hair is grown out and pulled back in a single braid. Frederick Bernays Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 18 (1958).
68. Dawson, supra note 34, at 748.
69. Thomas Jr., supra note 17, at 44.
70. Dawson, supra note 34, at 731.
71. Merrill L. Bartlett, Anthony Gale: 1819–1820, in Commandants of the Marine Corps, supra note 3, at 45, 45.
72. Id. at 46. Unlike the Articles of War, the rules for the government of the navy, to which Gale was subject at the time because he was serving aboard a ship, did not explicitly prohibit duels, though Article 27 prohibited “quarreling or fighting between ship mates.” Act for the Government of the Navy of the United States, ch. 24, 1 Stat. 709, 712 (1799). In any event, dueling was an unfortunately prominent aspect of U.S. naval tradition at the time. Ross Drake, Duel!, Smithsonian Mag. (Mar. 2004), https://www.smithsonianmag.com/history/duel-104161025/ (The antebellum “Navy lost two-thirds as many officers to dueling as it did to more than 60 years of combat at sea.”). It is therefore not surprising that Gale was not punished for killing a naval officer, but instead commended by the Commandant at the time, William Ward Burrows. Bartlett, supra note 71, at 46.
73. Id. at 47.
74. Dawson, supra note 34, at 731.
75. Bartlett, supra note 71, at 48.
77. Id. at 48–49.
78. Joseph H. Alexander, Archibald Henderson: 1820–1859, in Commandants of the Marine Corps, supra note 3, at 54, 59.
79. Millett, supra note 10, at 54–55.
80. See Thomas Jr., supra note 17, at 41 (“[E]ach of the four secretaries under whom Wharton served in his fourteen years as commandant extended him respect.”).
81. Bartlett, supra note 71, at 50.
83. United States v. Anthony Gale 77 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
84. United States v. Anthony Gale 11 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
85. Letter from Samuel Miller to Smith Thompson, Sec’y of the Navy (Aug. 23, 1820) (on file with author).
86. United States v. Anthony Gale 40 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
87. Id. at 42.
88. Id. at 50–51.
89. Samuel Miller wrote to Gale: “I am now compelled therefore, unless you lock the front door of your present residence and send the key to me, to place a sentinel at the front of the house.” Letter from Samuel Miller to Anthony Gale (Sept. 14, 1820) (on file with author).
90. United States v. Anthony Gale, (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
91. Id. at 4.
92. Id. at 2.
93. Id. at 5.
95. Id. The court overruled Desha because the accused had no objection, and Desha maintained that he had no “undue bias.” Id.
96. Id. at 6-9.
97. Id. at 6-7. The first specification alleged specific dates in August on which he had been intoxicated, the second that he had been intoxicated to the point of not being able to perform his duties “at various other times” during the month. Id. It may be that the second specification, being more general in terms of dates, was charged in the alternative in case the members were uncertain of the days on which the accused was too drunk.
98. Id. at 7-8.
99. Id. at 47-48. The court refused to allow the prosecutor to withdraw the charge so that the trial could resolve the allegation definitively. Id. at 48.
100. Id. at 9.
101. Id. at 11.
103. Id. at 79, 82-84.
104. Id. at 79.
105. E.g., id. at 12, 14-15, 16-18.
106. E.g., id. at 12, 24-27.
107. E.g., id. at 17-18.
108. Id. at 18.
109. E.g., id. at 25-26, 57.
110. Id. at 52.
111. Id. at 57.
112. Id. at 59.
113. Id. at 61.
114. Id. at 81.
115. Id. at 82–83. The testimony was that Gale had been wearing nothing but a shirt and “possibly” slippers and had actually been denied entry to the brothel, presumably because he was too drunk. Id. at 28. Alexander Macomb, who had served as the judge advocate for courts-martial in the early nineteenth century (and would go on to become the Commanding General of the U.S. Army), observed that conduct unbecoming “is a crime of great latitude of interpretation, and admitting both of an infinite variety of the acts from which such misbehavior may be inferred, and possibly often of a difference of opinion with regard to the degree of guilt that may be attached to such acts.” Alexander Macomb, A Treatise on Martial Law, and Courts-Martial; as Practised [sic] in the United States of America 63 (1809). In other words, whether a specific act constituted conduct unbecoming was largely a matter for the members’ judgment. For what it’s worth, Gale’s conduct would not be out of place in Winthrop’s list of “instances of offences charged” as conduct unbecoming. Winthrop, supra note 15, at 713-18.
116. United States v. Anthony Gale 83–84 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
117. See e.g., id. at 26.
118. Fred L. Borch, Lore of the Corps: Defending Soldiers at Early Courts-Martial, Army Law., May 2017, at 1, 1. In his treatise, Alexander Macomb wrote that lawyers were not, and should not be, allowed to personally participate in court-martial proceedings, though the accused could have an attorney’s assistance in preparing his case. Macomb, supra note 115, at 93-95.
119. United States v. Anthony Gale 45-46 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
120. Id. at 66-69.
121. Id. at 68-70.
122. United States v. Anthony Gale 87–88 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author). The panel convicted Gale of the specification of habitual drunkenness, which had specific dates. See supra text accompanying note 98. The panel also excepted some language from the specification concerning Gale’s visit to a brothel. United States v. Anthony Gale 87 (President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
123. United States v. Anthony Gale 87 President of the United States, Washington, Sept. 18, 1820) (unpublished court-martial record) (on file with author).
124. Id. at 89–90. The terms “cashier” and “dismiss” were used interchangeably in American military law. Winthrop, supra note 15, at 405-06. See also Macomb, supra note 115, at 147 (“cashiering, that is, depriving an officer of his commission”) (emphasis in original).
125. Articles of War, supra note 39, at 983 (art. 83).
126. Letter from Samuel Miller to Anthony Gale (Oct. 19 1820) (on file with author). Article 65 of the Articles of War required Presidential approval for the dismissal of a commissioned officer. Articles of War, supra note 39, at 982.
127. S. Comm. on Naval Affairs, 28th Cong., Rep. on Petition of Catharine Gale, reprinted in 5 Public Documents Printed by Order of the Senate of the United States, First Session of the Twenty-Eighth Congress pt. 323, at 1 (1844). The Senate Committee on Naval Affairs concluded that Gale had been granted his pension illegally. Id. at 2.
128. Dawson, supra note 34, at 732.
129. Bartlett, supra note 71, at 45, 52.
130. See United States. v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (distinguishing between actual and implied bias).
131. Paul Woolverton, Jury Selection for Brig. Gen. Jeffrey Sinclair’s Court-Martial Set to Resume, Fayetteville Observer (last updated Aug. 6, 2013, 6:59 AM), https://www.fayobserver.com/764f1e92-4b86-5eca-820a-8259e3aeedc5.html.
132. Paul Woolverton, More Potential Jurors Dismissed in Brig. Gen. Jeffrey Sinclair’s Court-Martial, Fayetteville Observer (last updated July 19, 2013, 7:54 AM), https://www.fayobserver.com/article/20130719/news/307199816.
133. Craig Whitlock, Sordid Details Spill Out in Rare Court-Martial of a General, Wash. Post (Aug. 14, 2013), https://www.washingtonpost.com/world/national-security/sordid-details-spill-out-in-rare-court-martial-of-a-general/2013/08/14/f6c89c68-008d-11e3-a661-06a2955a5531_story.html. Sinclair ultimately pleaded guilty pursuant to a pre-trial agreement. Craig Whitlock, Disgraced Army General, Jeffrey A. Sinclair, Receives Fine, No Jail Time, Wash. Post (Mar. 20, 2014), https://www.washingtonpost.com/world/national-security/ disgraced-army-general-jeffrey-a-sinclair-receives-no-jail-time/2014/03/20/c555b650-b039-11e3-95e8-39bef8e9a48b_story.html.
134. Similar considerations apparently motivated the Court of Appeals for the Armed Forces to order a military judge from outside the Navy and Marine Corps to conduct a Dubay hearing in a Navy case that implicated the Judge Advocate General (TJAG) of the Navy in an allegation of unlawful command influence. United States v. Barry, 78 M.J. 70, 74 (C.A.A.F. 2018). As a result, the Dubay judge’s career would not be affected by finding the TJAG committed unlawful command influence, which is what he did. Id. at 76.
135. See, e.g., Kate Brannen, 2 Marine Generals Out After Probe, Politico (Sept. 30, 2013, 5:38 PM), https://www.politico.com/story/2013/09/marine-generals-attack-investigation-097583 (discussing the investigation and consequent retirement of two Marine major generals in the aftermath of the Camp Bastion attack).