[Standard disclaimer: This post is made purely in my personal capacity. It should not be imputed to anyone or anything else.]
Fort McIntosh sat on a bluff high above the north bank of the Ohio River. The fort was built in 1778 under the direction of Brigadier General Lachlan McIntosh. As he wrote in December of that year, “I erected a good, strong fort for the reception and security of prisoners and stores up in the Indian side of the Ohio, below Beaver Creek.” Eight years later, that “good, strong fort” would play an important role in the development of the American military justice system.
Article 1 of Section XIV of the 1776 Articles of War adopted by the Second Continental Congress provided, “A general court-martial in the United States shall not consist of less than thirteen commissioned officers . . . .” But by 1786, the entire U.S. Army consisted of fewer than 1,000 soldiers led by about 40 officers. Some of those soldiers were stationed at Fort McIntosh under the command of Major John Palsgrave Wyllys.
Desertion was a serious problem in the Army of that era. Fort McIntosh was no exception. In 1786, a captain noted that 69 of the fort’s soldiers had deserted. That represented a huge portion of the fort’s garrison; in 1785, approximately 200 soldiers were stationed there. To deter further desertions, Major Wyllys convened a five-member court-martial to try two captured deserters. After the court-martial convicted them and sentenced them to death, Wyllys wrote to Secretary of War Henry Knox to inform him of the case and seek permission to carry out the death sentence. Major Wyllys again wrote to Secretary Knox the following month, noting that even while those two condemned soldiers were held in irons awaiting execution, three more soldiers deserted. Those deserters were tracked down, captured, and immediately executed at Major Wyllys’s direction – apparently without even the pretense of a court-martial.
Secretary Knox brought these developments to the Continental Congress’s attention, noting that “the small number of troops at present in the service of the United States, and their dispersed situation, render it difficult, and almost impossible to form a general court-martial, of the numbers required by the articles of war; therefore desertion and other capital crimes may be committed without it being practicable to inflict legally the highest degree of punishment provided by the laws.”
Congress directed that the two condemned soldiers be released due to the illegality of their trial. Congress also directed that a court of enquiry be held and that Major Wyllys be arrested.
Four months later, Secretary Knox informed Congress of the court of enquiry’s results. After delivering the facts, Secretary Knox concluded “that Major Wyllys was involved in one of those exigencies, which arise in the affairs of men, where the motives and intentions constitute in equity, the character of the action, and therefore it being apparent that his conduct was dictated by a regard for the public service, it is justifiable on military and political principles.” Congress apparently agreed, voting a week later to release Major Wyllys from arrest.
But absolving Major Wyllys was not all Congress did. Even while the court of enquiry was still considering the case, Congress voted to change the number of members required for a general court-martial. Under the revised Article 1 of Section XIV, “General Courts-Martial may consist of any number of Commissioned Officers from five to thirteen inclusively; but they shall not consist of less than thirteen where that number can be convened without manifest injury to the service.” Congress explained that without such a change, “crimes may be committed by Officers and Soldiers, serving with small detachments of the forces of the United States, and where there may not be a sufficient number of Officers to hold a general Court-Martial according to the rules and Articles of War, in consequence of which Criminals may escape punishment, to the great injury of the discipline of the troops and the public service.”
Major Wyllys was killed in action in October 1790 at the Battle of Harmar’s Ford, near what is now Fort Wayne, Indiana. But the military justice reform he provoked lived on. The 1920 Articles of War dropped any necessity requirement for a general court-martial to include fewer than 13 members, providing simply that such a court may consist of any number of commissioned officers “not less than five.” The 1948 Elston Act added a provision that an enlisted accused could require that at least one-third of a court-martial panel be enlisted members, but retained the five-member minimum for general courts-martial. And so it remained until the Military Justice Act of 2016.
Fort McIntosh has long since disappeared. A long, narrow park now occupies part of the land on which it once stood. That park is a military justice heritage site.