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 Historical Overview of: Martial Law and Military Discipline
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   Militia discipline was never as severe in the colonies as it was in the British army. In New England the emphasis was on correction rather than punishment. With typical Calvinist religious teachings as a background, New England's militia leaders thought that punishment would not make a good man better, so they saw little use to the application of the cat o'nine tails to man's bare back. Emphasis was on spiritual rehabilitation rather than corporal punishment. When a militia unit was faced with flagrant abuses, typically an officer would assemble the men and deliver a puritanical sermon on the dangers of leading a dissolute life-style and recommending that men correct their evil ways. There were exceptions to the emphasis on spiritual rebirth. Some crimes were so heinous that officers approved physical punishment for their performance. Fornication, adultery, blasphemy (which included profane and obscene language), homosexuality, bestiality, and indulgence in any "unnatural abuses" invited brutal discipline. Blasphemers could have a hole bored through their tongues with a red hot iron. One known case of attempted homosexual seduction brought symbolic, although not real, execution. The man who attempted to entice another into "unnatural acts" was beaten and driven from camp with a noose tied about his neck. The New England militiamen and officers were much shocked by the sinful behavior of others, thinking that officers should discourage fornication and swearing.
 
   After 1757 the New England militia was subject to their own provincial laws because in that year Lord Loudoun placed all New England men in arms under the Rules and Articles of War and the British Mutiny Act, thus subjecting them to a wholly different system of punishment and courts-martial. The awful punishments which New England militiamen had witnessed when they were inflicted on unfortunate British soldiers were now regular fare for the militiamen as well. Loudoun would have preferred placing the provincials under British law immediately upon his arrival in America, but found that practically he could not because his predecessor William Shirley had promised the colonists that they might fight under their own laws and according to their established customs. When Loudoun could finally implement British style discipline, he did so with a vengeance. He was undoubtedly looking hard for examples of provincial misbehavior precisely so that he could show that he meant to implement the English laws that were already well-established in the regular army.
 
   Central executive control over all military forces had been well established in British law long before Loudoun's time. William Blackstone, the greater authority on English law, argued that the Lord Protector Cromwell's Instrument of Government of 1653 had established the principle of executive control of all militia. Likewise, Blackstone argued, both Charles I and Charles II of England had rightfully claimed control over the nation's militia. The king alone may command, discipline and order the militia, army and sea power, that is, "all the forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his Majesty and his royal predecessors, kings and queens of England." Moreover, Blackstone argued, "both or either house of Parliament cannot nor ought to pretend to the same." Control of the militia is an executive, not a judicial, function. The principle was well established in the legislation governing the order and discipline of the militia, the Mutiny Act. Executive control of the militia "is immemorial" and can only be disputed "contrary to all reason and precedent" as Thomas Hobbes had argued a century earlier. The king appoints all officers who then serve in his name, and they carry with their appointments the full color of his authority. No mere provincial law could interrupt this long-standing precedent.
 
   The Mutiny Act has interesting English historical roots in the seventeenth century. When William III of Orange assumed the throne, accompanied by his Dutch guards, he chose to send to Holland those troops he suspected of harboring loyalty to James II, under a treaty of alliance with "the United Colonies" dated 8 March 1689. Some 800 of those being deported arrived at Ipswich, accompanied by four cannon, declared James II to be the true king and that they were willing to die for him. Commons, in order to be able to punish these rebellious men, enacted a Bill to Punish Mutiny and Desertion, to be in force only for a limited time. The bill cleared the House of Lords and was granted royal assent on 3 April 1689. In this, its earliest form, the bill still granted certain protections, meaning that a subject upon becoming a soldier does not cease to have rights. "No man may be prejudged of life or limb, or subjected to any kind of punishment by martial law .. . in any manner than by the judgment of his peers."
 
   Under George I, the Mutiny Act expressly applied to troops within the kingdom and in the colonies overseas. Lords objected that the act seemed to grant to the king the exclusive power to determine what acts in peace as well as in war were punishable by courts martial and in peacetime. George's response was to incorporate the Articles of War under the Mutiny Act, increasing both the number of crimes punishable in peacetime and the severity of the penalties. In 1748 Lords declared that no person should suffer any punishment under the Articles of War in peacetime except as were noted expressly as punishable offenses under the Mutiny Act. Despite this legislative wrangling, as the Mutiny Act appeared in America, all persons who were subject to the Mutiny Act were also held to be subject to the Articles of War, and vice-versa, and thus could be punished for offenses under either act, even in peacetime. George I's Mutiny Act authorized the summoning of courts martial for any of a long catalogue of offenses, with punishment to include whipping and execution. This was the first authorization of capital punishment in the army in peacetime, although offenses that might be punished by forfeiture of life in civilian life, such as murder, carried that potential punishment but it was imposed heretofore in the civilian not in the military courts.
 
   The crime of desertion in wartime had long been punished by execution, but the Mutiny Act extended capital punishment to desertion in peacetime. Another capital crime was refusal to obey an order from a superior officer, without any restriction placed upon the legality of the order. Between 1718 and 1749 the language of the law provided for obedience to "lawful commands," although the few cases of record show preference was universally given to the word of the officer issuing the order. The principle of law was clear: "no soldier may judge the danger, propriety, expediency, or consequence of the order he receives; he must obey." The crown was most anxious, however, to allow it to offer extensive physical punishment, usually whipping, in place of execution. Lords especially opposed granting the crown the power to override courts martial and extend clemency, preferring to have the board that held the hearing and knew all facts in the case be the final judge of punishment.
 
   In the British army and in most other militias discipline was enforced against obvious abuses which no military would permit, such as desertion, desertion in the face of the enemy, sleeping on watch duty, giving false alarm of enemy action, disobedience to a lawful order, striking an officer and theft of company property. Theft of civilian property, gambling, and rape were among the acts which the army would not tolerate. Conversely, the British army, and the militias of states south of New England, rarely punished adultery, fornication or blasphemy, and swearing.
 
   It is a well established principle of law that courts martial must distinguish between those offenses that are purely military, and thus within the provenance of military tribunals, and those which are civil and political, and thus are properly the jurisdiction of civil courts. Lord Loughsborough commented on this point. "All the delinquencies of soldiers are not triable by courts-martial, but where they are ordinary offenses against the civil peace they are triable by the common law courts." He pointed out that even treason committed by the soldiers in England against William III were tried by common law courts. Nonetheless, under the Mutiny Act, such non-military offenses as immoralities, misbehavior, disgraceful conduct, swearing and denying some religious tenet, have been tried by the military. Courts martial commonly tried soldiers for all offenses committed against the person, estate or property of any subject. Technically, the Mutiny Act applied only to offenses soldiers committed in their military capacity, but the theory was far removed from practice.
 
   In his excellent study of the New England militia during the Seven Years' War, Fred Anderson recorded twenty incidents of mutinous behavior by provincial troops between 5 July 1755 and 13 November 1759. Of these, five might be considered serious cases of desertion or riot, and all occurred before the full imposition of the British Mutiny Act upon the Americans, that is, during the time that the officers and men had delayed Loudoun's orders and while the discipline was still covered by the provincial laws. In the other cases, men had refused to carry out special, additional duties unless granted additional pay. Still, under the British Mutiny Act they might have been severely whipped, shot, or hanged for refusing to carry out a lawful order, irrespective of their reasons. Such had been the case for many unfortunate regular soldiers. The principal difference between New England and British discipline lay in the severity of sentences administered.
 
   There were two levels of courts-martial which could be held, corresponding to the different levels of authority. Regimental courts-martial exercised jurisdiction over relatively minor matters, such as neglect of duty or minor cases of theft. Proceedings here were convened by the commanding officer, ordinarily a colonel or lieutenant-colonel, and consisted of a captain and three or four lieutenants or ensigns. Their authority extended to whipping and other corporal punishment. In an army which had, on occasion, assigned as many as 900 to 1200 lashes of the whip, regimental courts-martial usually gave out less than 200, and more likely, less than 50 lashes. A general court-martial was convened at the command of a general and was comprised of a colonel and as many as 14 other officers, usually ranking captain or above. These proceedings covered major infractions, such as striking a superior officer; refusing to obey his commands, especially in battle; desertion and cowardice in the face of the enemy; or murder or major incident of theft. General courts-martial rarely imposed sentences of less than 300 lashes of the cat o'nine tails and could impose the death sentence. Rarely was a man found not guilty, there were no appeals, and sentences were imposed almost immediately after pronouncement.
 
   English criminal law generally, and martial law specifically, was based on three principles: justice, terror, and mercy. In the English-speaking world the law assumes a life of its own, reigning above all other considerations and factors. Based on human understanding of divine law, English law has the characteristic of immutability. Justice requires that the law be universally applied to all by a constant and perpetual will. At least theoretically, the same penalties and punishments must be made to apply to all men irrespective of class or position. Judges, steeped in the majesty of the law, spoke with the voice of God. The criminal stood naked and helpless before the law. His was the role of the tragic actor, the center of a great melodrama while being able to do anything for himself to better his role.
 
   The military represented class interests well, in apparent defiance of the principle of universality. Officers were never flogged or made to ride the wooden horse. If an officer was executed, it would be unlikely that he would be subjected to any public humiliation before the enlisted men. Crimes that brought severe punishment for enlisted men would more likely bring censure, demotion, or forced retirement among the officer class. But this was understood, even if it seemed unfair. In New England most officers associated freely with their men. Strong fraternal bonds were commonplace if only because New England militiamen generally elected their own officers, and elections were as much a recognition of popularity as of competence. After 1757 the system faced a crisis for Loudoun's unification of military and militia-volunteer standards worked only when there was an unbridgeable gao between enlisted men and officers, yet the militiamen thought it their absolute right to continue to elect their officers.
 
   In the military, flogging and whipping, being forced to run the gauntlet, confinement in the stocks, branding, and other physical mutilation and being shackled were among the punishments permitted to local militia companies, with virtually no right of appeal to any higher authority. The higher level of courts-martial could inflict even more terrifying punishments, including capital punishment almost at will. Whatever his punishment, the accused man would suffer it in front of his peers. He was to be the example to all others that, if they wished to avoid his awful plight, they must avoid making his mistakes or committing his sins. The impact of seeing a man fall from the gallows or being shot (and thus be sent to his maker and final judge) was designed to strike terror in the hearts of all enlisted men. Perhaps even more sickening was seeing a man whipped, even unto death. The British officer corps was dedicated to the proposition that their men must be forced to obey their orders in combat, no matter how absurd the orders, only if it was because they feared the officers more than they feared the enemy.
 
   Physicians or military surgeons often, but certainly not always, attended the imposition of physical punishment. They were officers, and with typical class consciousness, rarely sympathized with the men. One of their principal obligations lay in keeping a man sensible while he was being whipped. The surgeons might use a stimulant to revive a man who had fainted. It did not take long for a man being struck simultaneously by the nine strands of the whip to have his flesh stripped from his entire back. Still, he could expect no greater mercy from the physician in attendance than from other members of the officer corps. It was a rare instance when the application lash was stayed before sentence had been carried out.
 
   The law had the power to offer mercy. Reprieves and pardon were possible. The law could, if it chose, delay, mitigate, even forgive the harsh sentence. Many regarded the extension of mercy as a sign of inherent goodness in the state. One always had hope that, even on the gallows or before the whipping post, one might be excused from the punishment. On occasion, a punishment was carried out symbolically. For example, as we have seen in the provincial militias, a man condemned to the gallows might have a noose tied about his neck and then be drummed out of camp instead of actually being executed.
 
   New England militia officers found their own way of following the dictates of conscience and religion while nominally accepting Loudoun's orders. The easiest way to practice justice was to consider the punishment that the officers thought truly fitted the crime and then charging the evildoer with a crime that carried that punishment. It became a sort of game, one in which the officers' sense of Christian ethic and morality set the rules. Thus, if an enlisted man fell asleep on duty, a capital crime under British law, he might be charged only with neglect of duty, which brought only physical punishment. Even with this, many officers thought that the least punishments required under the Mutiny Act were still too great.
 
   Most New England colonial rules, like those used in Massachusetts, allowed the imposition of no more than thirty-nine lashes, whereas even minor infractions, as we have seen under British rules, brought perhaps one or two hundred lashes. A well circulated pamphlet, allegedly authored by a "prominent clergyman," argued that Deuteronomy limited corporal punishment to forty strokes and that to ensure one did not violate God's law, one ought to remit one stroke. This anonymous author reasoned that God had placed this limitation "lest their brother should seem vile unto them, even as if he was a dog." If a number of strokes in excess of forty was offensive to God, how must one interpret the imposition of "1000 or 1500 lashes?" The preacher noted that he personally knew of men who committed suicide or who had begged for death rather than yield to a vast number of lashes of the whip. "When such punishments are decreed as threaten life," the man of God wrote, "the Sixth Commandment is broken and all concerned are guilty of killing the victim, tho' he should not die under the operation." He lamented that God's law "with regard to whipping" was "religiously observed by the civil authority" was violated in large scale by the military who relied upon the argument of necessity of maintenance of discipline. But that argument in support of "military cruelties" failed because it is "always necessary to keep God's laws" and necessity "can never be introduced to break them."
 
   On 13 May 1755, the British authorities at Fort Cumberland, Maryland, convened a court martial against three soldiers of the 48th Regiment, James Fitzgerald, James Hughes, and Thomas Connelly, for having stolen a jog of beer. The officers imposed 900 lashes on Connelly and 800 each on Fitzgerald and Hughes, to be imposed at the rate of 300 lashes per day until punishment was complete. Sentence was passed on 14 May and punishment commenced on 15 May just outside the fort. Reaction among the local inhabitants and provincial militiamen ranged from disgust to outrage to anger.
 
   During the time between the Seven Years War and the Revolution the use of corporal punishment was a major issue among the people of New England. They objected both to its severity and its continuance in peacetime. The Boston Evening Post made many references to the harshness of whipping, both of provincial militia and the regular British soldiers stationed there. On 14 October one Rogers, "a New England man" was condemned to receive a thousand lashes at the hands of a black drummer. The Evening Post editorialized that the spectacle of Rogers being whipped was "shocking to humanity" even though he received "only 170 lashes" on that occasion. It quoted one observer as judging that "only 40" of the strokes were laid on as hard as the typical stroke he had seen when men had received 500 lashes in one session in other regiments. It seemed as outraged at the indignity of having a black drummer apply the whip as the fact that the man had been sentenced to receive a thousand strokes.
 
   In December 1768 in Winchester, Massachusetts, after a British sergeant of the Fourteenth Regiment had received one hundred and ninety lashes, the surgeon warned that if he suffered more he would surely die. He was released and carried to the guard house "where having languished a few days, his back began to mortify, and the mortification soon reaching his kidneys, he died delirious." The coroner held an inquest and chose to indict the officer for willful murder. The officer escaped punishment, having claimed that he had acted within the scope of the Mutiny Act.
 
   In February 1769 a black drummer was sentenced to receive one hundred and fifty lashes for the offense of having "adventured to beat time at a concert of music given at the Manufactory House." He passed out at the hundredth stroke and the remainder was remitted. This whipping was only one of many administered in the winter of 1768-69. It was abundantly obvious that the people of Boston, not accustomed to seeing such levels of physical punishment imposed, were outraged by the British system of military discipline. Doubtless, they were moved by charity and humanitarianism, and by a generalized moral outrage, but they probably thought also that, when war came again, it would be their sons and brothers who would receive the same levels of whippings.
 
   In Boston on 31 October 1768 the first soldier in memory was executed in peacetime for having deserted his post. Richard Ames [or Arnes] had taken refuge among the tradesmen of a town just outside the city where the king's men in disguise located him. He was court-martialed and sentenced to death. To the Americans, the temptation, let alone the opportunity, for desertion would not have existed had not the English stationed troops in the homes of the local citizenry.
 
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"Legislation begets Statutory, possibly Rape,
in and of it's purest and original formula."
You have been forewarned. -©2005 David Lee Ion