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Limitations to Marital Law

Article 28 (1780)

No person can in any case be subject to law-martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.

Precedents, Following Law, and Quotations

“The Background of the Uniform Code of Military Justice” , Prepared at the Judge Advocate General’s School, U.S. Army (1959):

“On 5 April 1775, the Provisional Congress of Massachusetts Bay adopted the first written code of military justice in the Colonies. This Code was known as the Massachusetts Articles.”

Provisional Congress of Massachusetts Bay, April 5, 1775, American Archives, 4th series, vol. 1, 1837, p. 1350-1356:

“Whereas, the lust of power, which of old oppressed, persecuted, and exiled our pious and virtuous ancestors from their fair possession in Britain, now pursues with ten fold severity, us, their guiltless children, who are unjustly and wickedly charged with licentiousness, sedition, treason and rebellion…Resolved, That the following Articles, Rules, and Regulations for the Army, that may be raised for the defense and security of our lives, liberties, and estates, be, and are hereby earnestly recommended to be strictly adhered to, by all Officers, Soldiers, and others concerned, as they regard their own honour and the publick good. . .”

United States Constitution, Article I, Section 8, Clauses 12 -1 6, “Powers of Congress:”, went into effect March 4, 1789, with 11 states having ratified it:

“Congress shall have the power to…

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”

Joint Service Committee on Military Justice, About the JSC”, accessed Nov. 10, 2018:

“The Joint Service Committee on Military Justice (JSC) is an inter-agency, joint body of judge advocates and advisors, dedicated to ensuring the Manual for Courts-Martial (MCM) and Uniform Code of Military Justice (UCMJ)  constitute a comprehensive body of criminal law and procedure.  The Judge Advocates General and the General Counsel of the Department of Transportation established the JSC on August 17, 1972, to keep the Manual for Courts-Martial (MCM) and Uniform Code of Military Justice (UCMJ) current.”

Governor Charles D. Baker to the Honorable Senate and House of Representatives, December 13, 2017:

“Massachusetts [is] one of only a handful of states that do not have a state Code of Military Justice. . . This legislation is modeled on the American Bar Association’s Model State Code of Military Justice. It establishes a series of military crimes that parallel those found in the Uniform Code of Military Justice. “

“An Act establishing the Massachusetts Code of Military Justice”, Senate Bill no. 2611 in the 190th General Court (2017-2018).

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