Document Type

Book Chapter

Publication Date

1999

Abstract

Statutes make for appallingly tedious reading unless primitively short and to the point as, for example, this provision in the early Kentish laws of Æthelberht (c. 600): “He who smashes a chin bone [of another] shall pay 20 shillings” or this one from King Alfred (c. 890): “If anyone utters a public slander, and it is proved against him, he shall make no lighter amends than the carving out of his tongue.”1 Yet on very rare occasion a modern statute can rivet our attention and when it does, it seems to do so by mimicking some of the look and feel of legislation enacted in less lawyer-ridden times. Consider the statute presently codified in the United States Code as part of the Uniform Code of Military Justice:

Misbehavior before the enemy

Any member of the armed forces who before or in the presence of the enemy—

  1. runs away;
  2. shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
  3. through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
  4. casts away his arms or ammunition;
  5. is guilty of cowardly conduct;
  6. quits his place of duty to plunder or pillage;
  7. causes false alarms in any command, unit, or place under control of the armed forces;
  8. willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy;
  9. does not afford all practicable relief and assistance to any troops, combatants, vessels or aircraft of the armed forces . . . when engaged in battle; shall be punished by death or such other punishment as a court-martial may direct.

Making cowardice a capital offense strikes us as a kind of barbaric survival from a rougher age, a time, that is, when few doubted that courage ranked higher than pity or prudence in the scale of virtues. And if many of us today believe that capital punishment cannot be justified even for the sadistic torturer, what a shock to discover that, as an official matter at least, Congress reserves it for the person who cannot kill at all. Not to worry: although the state has the power and right to execute those who misbehave before the enemy, we are too unsure of ourselves, or maybe even too charitable, to enforce the statute maximally. We have done so but once since 1865 when Private Eddie Slovik was executed by firing squad “pour encourager les autres” in the bleak Hürtigen Forest of 1945. Still, even if only by inertia, we have preserved the option.

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