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Military and Civilian Justice in Eighteenth-Century England: An Assessment

Published online by Cambridge University Press:  15 January 2014

Arthur N. Gilbert
Arthur N. Gilbert*
Affiliation:
University of Denver
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Extract

Opinion in the eighteenth century varied widely on whether or not “military justice” was, in fact, justice by the civilian standards of the day. Many leading legal commentators viewed the system with disdain. Blackstone dismissed military justice in these words:

Martial law which is built upon no settled principles, but is entirely arbitrary in its decisions is … in truth and reality, no law, but something indulged rather than allowed ….

Another writer, arguing along similar lines, wrote: “The moment … a gentleman enters the service, he waives the Rights and Privileges he might be entitled to as an Englishman.” It was generally believed that law in the army was deemed less important than order and discipline. A man who opted for the army or was forced into service left more than his civilian clothes behind: he abandoned the legal rights under which he had been born and bred.

Yet defenders of military justice were not lacking, particularly during the last half of the eighteenth century. Stephen Payne Adye, who had served as Judge Advocate in North America, wrote a treatise praising military justice; and at the end of the century, Alexander Tytler, drawing heavily on Adye's work, did the same. Other writers occasionally complimented the army on certain legal practices they viewed as superior to civilian court procedures. Still, then as now, the arguments of the advocates of the military system were largely ignored — a reflection of the deep distrust of all military institutions in Great Britain.

Type
Research Article
Information
Journal of British Studies , Volume 17 , Issue 2 , Spring 1978 , pp. 41 - 65
Copyright
Copyright © North American Conference of British Studies 1978

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References

1. Quoted in Tytler, Alexander, An Essay on Military Law and the Practice of Courts Martial (hereafter, Essay) (Edinburgh, 1800), p. 15Google Scholar.

2. Adye, Stephen Payne, A Treatise on Courts Martial (hereafter, Treatise) (New York, 1769), p. 18Google Scholar.

3. Tytler, Essay.

4. A major part of the disagreement on the merits of military justice stems from this problem and the debate continues to the present day.

5. PRO, W.O. 71/66, Ensign Thomas Pritchard Court Martial, 1 April 1757.

6. W.O. 71/87, Captain John McKinnon Court Martial, 5 Sept. 1778.

7. W.O. 71/83 through 71/95.

8. Ibid.

9. See my article, “Law and Honor among Eighteenth Century British Army Officers,” The Historical Journal, XIX (March, 1976), 75–87Google Scholar.

10. Ibid., and W.O. 71/67-71/80, 71/48-49, and 71/25-71/27.

11. W.O. 71/54-59 and W.O. 71/82-96.

12. Ibid.

13. Ibid.

14. Radzinowicz, L., The History of English Criminal Law, 4 vols.Google Scholar, The Movement for Reform (London, 1948), I, 145Google Scholar.

15. J. M. Beattie, “Crime and the Courts in Surrey, 1736-1753,” unpublished paper, and “The Pattern of Crime in England, 1660-1800,” Past and Present, No. 62 (Feb., 1974) 47–95Google Scholar. I would like to thank Professor Beattie for providing me with some invaluable data for this study.

16. SirHoldsworth, William, A History of English Law (Boston, 1938), XI, 553Google Scholar.

17. Adye, , Treatise, p. 19Google Scholar.

18. Ibid., p. 28.

19. Holdsworth, , English Law, XI, 554Google Scholar.

20. Adye, , Treatise, p. 20Google Scholar.

21. Tytler, , Essay, pp. 156–57Google Scholar.

22. W.O. 71/77, 71/18, 71/20, 71/22, 71/69-70, 71/77.

23. W.O. 71/83, 71/77.

24. W.O. 71/17, 71/77.

25. W.O. 71/85-86.

26. W.O. 71/70, Paul Wood and Joseph Hurst Court Martial.

27. W.O. 71/15, William Clarke Court Martial.

28. W.O. 81/6, Charles Gould to Henry Fox, 17 Oct. 1754.

29. W.O. 81/8, Charles Gould to Captain Fowler, 10 Sept. 1757.

30. W.O. 71/17.

31. Ibid., Thomas Emerton Court Martial.

32. Ibid., William Cheesman Court Martial.

33. Ibid., John Gainsley Court Martial.

34. Ibid., 71/20, 71/22, 71/51-57. The king's power over sentences was limited. He could not change a sentence — change a Court Martial verdict from death to 1000 lashes, for example — but he could offer a conditional pardon. This might involve reducing a sentence of 1500 lashes to a thousand or granting the royal pardon “on condition of transportation” or “enlisting in certain Regiments stationed abroad.” Until 1766, the right to sentence a soldier to overseas service was the king's prerogative. As Charles Gould noted in 1760,

It has ever been usual, when Courts Martial have wished that a prisoner should be turned over to serve in some Regiment in the Plantation not to make that part of their sentence … [but] to adjudge such punishment as may reasonably induce the prisoner … to petition for a consent to such service, as a condition of pardon ….

Gould went on to note that, should the Courts Martial usurp this power, the king might not accept it (W.O. 81/9, 14 Nov. 1760). Six years later, the Courts Martial were given the power to punish by transportation in desertion cases, if death were deemed too severe a punishment. Clode, Charles, The Administration of Justice under Military and Martial Law (London, 1872), p. 61Google Scholar. Transportation provided an alternative to death and the lash at home. For soldiers sent abroad, it could not be used, and this contributed to the greater number of capital sentences and the higher lash average in the Marching Regiments.

35. W.O. 71/77, 71/85-86.

36. Journals of the Honourable William Hervey in North America and Europe from 1755 to 1814, Suffolk Green Books, No. XI (Bury St. Edmonds, 1906), p. 14Google Scholar. Other cases in Hervey's journal show the same pattern of last-minute reprieves.

37. Beattie, , “Crime and the Courts,” p. 10Google Scholar. See also Thompson, E. P., Whigs and Hunters: The Origin of the Black Act (New York, 1975)Google Scholar.

38. W.O. 71/85-86.

39. W.O. 71/69-70.

40. W.O. 72/1.

41. Ibid.

42. W.O. 71/53 through 71/57.

43. Radzinowicz, , Criminal Law, I, 147Google Scholar.

44. Ibid.

45. Ibid., 45.

46. W.O. 71/54-59 and W.O. 71/82-96.

47. Beattie, , “Crime and the Courts,” p. 29Google Scholar.

48. Beattie notes that few prisoners who appeared in the criminal courts had defense counsel. On justice for the “lowest” classes, he writes: “A vagrant could expect little mercy if the case against him seemed at all clear ….” Ibid., p. 16.

49. W.O. 71/54-59 and W.O. 71/82-96.

50. Ibid.

51. Ibid.

52. W.O. 71/13, James Hamilton, William Ridall, and Denis Sion Court Martial, 21 March 1709.

53. Ibid., Richard Wilton, Patrick Connely, Thomas Gambon, and Henry Butterfield Court Martial, 21 March 1709.

54. Ibid., Isle of Wight Deserters Court Martial, 24 June 1708, and letter of 13 July 1708.

55. Ibid.

56. Ibid., 7 April 1709.

57. Ibid., 21 July 1707.

58. The lot system did continue through the eighteenth century, although on a lower level of frequency. On 15 March 1762, John Hutchinson and John Millar were sentenced to death for desertion and the Commander-in-Chief ordered that they draw lots to determine who should be executed (W.O. 71/70). As late as 1813, according to Clode, “The Duke of Wellington … having pardoned some and ordered others for execution, added to his orders, ‘… that the remainder of the prisoners should draw lots for one more to be executed by being shot according to the Sentence of the Court Martial.’” , Clode, Administration of Justice, p. 60.Google Scholar For an interesting case of British officers captured by the American army during the American Revolution and ordered to draw lots to see which would be executed, see Lamb, R., An Original and Authentic Journal of Occurrences During the late American War from its Commencement to the Year 1783 (Dublin, 1809), p. 422Google Scholar.

59. W.O. 72/1, Pelham to Judge Advocate General, 2 April 1728.

60. W.O. 71/15, Pelham to Judge Advocate General, 25 May 1728.

61. W.O. 71/84 through 71/95.

62. Radzinowicz, , Criminal Law, I, 88Google Scholar.

63. Adye, , Treatise, p. 19Google Scholar.

64. Ibid.

65. Simes, Thomas, The Military Regulator (London, 1780), p. 285Google Scholar.

66. Tytler, , Essay, p. 150Google Scholar.

67. Ibid.

68. Hay, Douglas, “Property, Authority, and the Criminal Law” in Hay, Douglas, Linebaugh, Peter, et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975), p. 38Google Scholar. Hay continues: “The cottager who appeared in court charged with theft had no illusion about being tried by his ‘equals and neighbors’, whatever the writers of law books claimed.”

69. Adye, , Treatise, p. 24Google Scholar.

70. See Hay, Linebaugh, et al., Albion's Fatal Tree and Thompson, Whigs and Hunters.

71. See my article, “The Regimental Courts Martial in the Eighteenth Century,” Albion, VIII, 1 (Spring, 1976)), 55–66Google Scholar.