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Published online by Cambridge University Press: 11 July 2014
In the eighteenth century, most military crimes were tried at the Regimental level. In theory, the military law of the day decreed that the General Courts Martial be reserved for major offenses: those that might result in capital sentences or lashings of great magnitude. Murder, rape, robbery, and other crimes deemed capital undgr eighteenth century civil law, were tried at the General Courts Martial, as were specific military crimes that seriously affected the ongoing life of the armed forces—mutiny, desertion, and the like. As one would expect, there were many more petty crimes than major offenses. Still, the General Courts Martial books show a surprisingly small number of cases, even in wartime, when the army grew precipitously to meet a military threat.
For most soldiers, crime and punishment was administered by the Regimental Courts, yet we know very little about them. There are no Regimental Courts Martial records to speak of and few surviving accounts of their procedures. What we do know suggests that they were very important to those military officers who were responsible for the order and discipline of the British army.
Until 1718, the rules and procedures governing Regimental Courts Martial were vague and uncertain. In that year, a modest attempt was made to codify RCM procedures. It was decreed that the RCM could inflict corporal punishment for such crimes as neglect of duty and disorderly conduct in quarters, among others, and that all such trials had to be conducted by five commissioned officers. Conviction was decided by a plurality of votes. Significantly, the oath, used previously when officers were called upon to serve as judge and jury, was eliminated in Regimental Courts Martial cases. As a result, the Judge Advocate noted some years later, “since that time the Prisoner has not had the benefit of that great and I may say, only security to be fairly and impartially tried.”
1 Articles of War, 1718. W.O. 72/2.
2 Hughes to Pelham, 31 Aug. 1729. W.O. 71/17.
3 Hughes to Secretary at War, 3 Mar. 1723. W.O. 71/15.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid. “Some thoughts of Mr. Hughes the Judge Advocate General on the Martial Law humbly offer'd.”
10 Articles of War, 1728. W.O. 72/2.
11 Ibid., 1736.
12 Railton, B. J., The Army's Regulator of the British Monitor (London, 1738), p. 15.Google Scholar
13 William Britton Court Martial, 24 April 1761. W.O. 71/97.
14 Elijah Reeves Court Martial, 24 April 1777. W.O. 71/79.
15 John Ledger Court Martial, 17 Aug. 1770, W.O. 71/77, and William Turner Court Martial, 16 Aug. 1765, W.O. 71/50.
16 W.O. 71/15. Eighteenth century military punishments may be unfamiliar to modern readers. Piqueting was the practice of suspending a soldier by the arms over a sharp pointed stake. Sometimes it resulted in permanent lameness. The wooden horse was a device that resembled a carpenter's saw horse, with the crossbar suitably shaved to a sharp edge. The convicted soldier had to sit astride the horse for the prescribed period, often with weights tied to his legs to increase the pain. The piqueting punishments mentioned here may simply have involved tying a man to the stake and having him lashed.
17 A Narrative of the Life and Adventure of Levi Hanford, A Soldier of the Revolution (New York, 1865)Google Scholar. Hanford's description of the gauntlet may be found in Journal of Army Historical Research, Vol. LI, No. 168 (Dec. 1963): 220.Google Scholar
18 Simes, Thomas, The Military Medley (London, 1778), p. 252.Google Scholar
19 Tytler, Alexander, An Essay on Military Law and the Practice of Courts Martial (London, 1880), pp. 338–9.Google Scholar
20 Gross, Francis, Military Antiquities, 2 vols. (London, 1801), p. 78.Google Scholar
21 Gould to Lord Rivers, 26 Aug. 1778. W.O. 81/13.
22 Gould to Townsent, 27 Sep. 1762. W.O. 81/10.
23 Morgan to Maj. Gen. Gordon, 29 April 1799. W.O. 81/24.
24 Morgan to Gen. Johnston, 3 Aug. 1795. W.O. 81/20.
25 Turner Court Martial. 16 Aug. 1765. W.O. 71/50.
26 Ibid.
27 Duncan Court Martial, 24 April 1761. W.O. 71/47.
28 Reeves Court Martial, 23 Sep. 1777. W.O. 71/79.
29 Gould to Elliott, 28 June 1788. W.O. 71-63.
30 James Rice et al. Court Martial. 2 July 1772. W.O. 71/52. This decision was overturned by the King and the men were discharged.
31 W.O. 71/40.
32 The range of punishments at the Regimental level seems to have narrowed considerably by mid-century. Early eighteenth century devices, such as the wooden horse and the piquet, have been largely replaced by the lash by that time.
33 Ledger Court Martial. 17 Aug. 1772. W.O. 71/77.
34 Parliamentary Debates, 1st Series. Vol. 3. 1805. col. 859Google Scholar. See also Scott, P.S.. The Military Law of England (London. 1801). p. 61.Google Scholar
35 Parliamentary Debates, I st Series. Vol. 3, 1805. col. 860.Google Scholar
36 Ibid.
37 Ibid.. Vol. 4. 1805. col. 27.
38 Ibid.
39 Ibid., Vol. 3, 1805, col. 860.
40 Ibid., Vol. 4, 1805, col. 27.
41 Simmons, Thomas, Remarks on the Constitution and Practice of Courts Martial (London, 1852), pp. 73–76.Google Scholar
