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“Terror of Example” Crime and Punishment in the British Army in 1812
Part One: Capital Punishment
By Robert Henderson

 

 
Executions at La Prairie, south of Montreal in October 1813.  The timing was important here.  Two American armies were moving on Montreal and these executions were likely a message to the rest of the British and Canadian soldiers of the consequences of deserting in a time of need. (Library and Archives of Canada)

            Punishments were designed in theory to fit the crime.  However the time and place were also significant determining factors.  In times of war, punishments became harsher and military justice grew more subjective as the need to send a message sometimes overrode the search for guilt or innocence.  The commanding officer’s will sat as the invisible president of many court martials and his wishes swayed many decisions. 

             However by the end of the 18th century this began to change.   Military officials began to question the heavy handed ways of the past were soldiers were whipped over trivial matters such as the way their hair was dressed.  Instead contemporary scholars suggested programs of merit and more minuet attention of officers into each soldier’s well being.   Still this movement was in its infancy and change to the way military punishment was delved out took time.   By 1812, both approaches battled with each other and it often came down, again, to personality of the commanding officer of the company, regiment, garrison, and/or army.   

             This article will explore the various types of crimes committed by a soldier and the levels of punishment he faced for his transgressions.   Each soldier acting unlawfully ran the risk of execution, corporal punishment such as flogging (whipping), transportation to a disease-ridden colony, or imprisonment in the black hole.   There was other less harsh punishments introduced at this time and will also be discussed.  Lastly a brief description will be offered of the three types of court martials a soldier could face along with the laws which guided them as decreed by the Mutiny Act and the Articles of War. 

 Civil Law and the Soldier

             In the early 1800s, each British soldier was in the unenviable position of being answerable to two sets of laws.   According to the Mutiny Act, being part of the army did not exempt a soldier from the civil laws of the locality he was stationed in. [1]   In committing a crime a soldier ran the risk of both civil and military legal consequences for the same unlawful act.   Take for example the case of Private John Mitchell who in July 1811, while stationed in Quebec City, was caught with money and goods that were not his.  The stolen goods must have been substantial because the Regimental Court Martial ordered 600 lashes which were twice as many as other theft cases.  In addition all the lashes were inflicted and none were pardoned. [2]   A few months later in civil court, Mitchell was found guilty of burglary and was hanged. [3]   Officers also faced the risk of execution in civil courts for, as an example, the crime of duelling. [4]  

             In this time, both military and civil punishments for crimes were designed “to deter by the terror of example.” [5]   In civil courts a guilty verdict for crimes like theft, forgery, embezzlement, treason, and murder, often ended with a trip to the gibbet (hangman’s scaffold or gallows).  Once there, usually on a Monday morning, a white cap was placed on the criminal’s head, the arms and legs were bound and the hangman tied the noose around the guilty party’s neck.   The trap- door opened and the sentenced individual was dispatched to the hereafter. [6]    Likely because of a common belief that the lifeless individual could be resuscitated shortly after being hung, the executed person was left to hang for an hour.  After this the corpse was cut down and, since 1752, was sent to the local medical academy to be dissected. In extreme cases of treason, the hangman was sometimes ordered to sever the head and display it to the crowd watching as a warning to others.   The gibbet was England’s chief deterrent for keeping order in society and became a spectacle of perverse entertainment to the curious. 

Military Capital Punishment

             When it came to hanging as a capital punishment, the military often copied the civil traditions.  However the military also used the firing squad for executions, and, in the East India Company, the horrific practice of executing the convicted by placing him in front of the muzzle of a cannon and firing. [7]     When a soldier was executed for a capital offence, regulations ordered that the punishment be always in the day light and that a label was fixed to the prisoner stating the crime he is being put to death for. [8]   However the regulations and the Mutiny Act were less clear on when a soldier was to be shot and when he was to be hung.  One contemporary military law author wrote: “The appropriate capital punishment of a soldier is to be shot to death; but capital crimes, when attended with peculiar infamy, are expiated by the more infamous punishment of hanging by the neck.” [9]    In studying the various military executions, it appears theft or plundering was considered of “peculiar infamy” and produced the majority of military hangings. [10]   

            When in a foreign country like Spain and Portugal, the provost marshal and his deputies, acting in the role of military police, served to deter unsanctioned looting, plundering and other civil abuses, along with executed sentences for military abuses that required a General Court Martial.   When a British Army was on active service in a foreign land for a protracted period of time, such as Wellington ’s Army in Spain and Portugal , the more the role of the provost marshal expanded.  Indeed the Article of War stipulated that when a civil judiciary was absent, the military was to fill the void. [11]    By 1813 it was necessary to form the first British military police unit, called the Cavalry Staff Corps (but referred to by some soldiers as the mounted police corps) to arrest, imprison, and execute to sentences of army court martials.   The Cavalry Staff Corps service only in Great Britain and Europe .

            The provost marshals were both feared and despised by many soldiers in Wellington’s Army:

We were often inclined to think that the provosts marshals were possessed of more power than they ought to have had, particularly as they were generally men of a description who abused it, and were guided more by caprice and personal pique then any regard to justice.  In fact, they seemed to be above all control, doing what they pleased, without being brought to any account, and were often greater robbers then the men they punished. [12]

In one occurrence, a soldier, after being provoked, pointed his empty musket at a Sergeant of the Cavalry Staff Corps.  To the surprise of his comrades, the soldier was court martialled and shot by firing squad without any clemency. [13]     The crime of theft, that warranted a General Court Martial in Wellington’s Army, often ended with a trip to the gallows: “many in the Peninsula were hung for plunder” [14]   Private John Green of the 68th Regiment noted one such occurrence for two soldiers sentenced to death for robbing an officer’s tent.

We…saw the two poor wretched culprits at their prayers, surrounded by the whole of the women of that regiment, who were bitterly lamenting the sad condition of the unhappy men.  The prisoners were dressed in white, and were preparing for death in the midst of their kind-hearted country-women… The Provost Marshal had pitched upon a tree which had a large arm, something like a gallows, he had also prepared two ladders, one on each side of the tree, having a plank from one ladder to the other, thereby forming a kind of drop.  He had a number of men to assist him; and ropes were fixed to the foot of each ladder, so that the moment the signal should be given, the men, by pulling the ropes, were to liberate the plank, and thus let the men drop.… The prisoners…were ordered now ordered forward to the gallows, and assisted on to the plank, and the ropes were adjusted; they confessed their guilt, and hoped that their fate would be a warning to the soldiers not to be guilty of the like crime; the signal was then given, and the unhappy men were launched into eternity.” [15]

 During the campaign in Holland in the early 1790s, soldiers after being executed were suspended with the feet upwards, called clubbing, which mimicked the civil practice of hanging “certain malefactors” in chains. [16]   Other serious offences to the civilian population such assault and murder were handled by hangings.  Outside the Peninsula , the Regiment [17]   or garrison usually handled the details of a military execution.   

             In studying the various hangings in Regency England , it is surprising how often a hanging initially did not work.  There were cases of the ropes breaking, being too long, not tied properly, and the scaffolding falling apart.   This also occurred with military hangings.  During the capture of Monte Video in Uruguay in 1807, a deserter was caught serving with the enemy and sentenced to be hanged:

But his life was not destined to end here, for the rope was not altogether a strong one, and he was fortunate enough when he fell to break it.  Directly his feet touched ground, he begged hard for mercy: and the rope had made such a terrible mark on his neck that I suppose the general thought he had been hanged enough: so he was… transported for the rest of his life. [18]

The punishment of transportation will be discussed later.  The latter hanging was quite unusual because those deserting to the enemy were usually shot, and when an error happened in a hanging, the prisoner was simply re-hung.

            For capital offences of a more military nature, especially in wartime, the preferred method of execution was to be shot to death by firing squad.  While military hangings in North America appeared less common, the use of firing squads during the War of 1812 was more frequent.   Soldiers receiving these sentences were usually found guilty of either deserting with their firelock and ammunition, deserting towards the enemy, or deserting and found in the ranks of the enemy.  Others included mutiny and cowardice.  Executions by firing squads were organized much in the same way as one execution of a soldier of the 64th Regiment in Barbados in 1805:

The Garrison is to be under arms…to form three sides of a Square, the fourth side to the sea being left open; each Corps in Garrison… will furnish one Sergeant, one Corporal, and a private from which the firing party for the Execution of the prisoner… is to be formed; the Senior Sergeant will take the Command of this party, the privates will be formed at a small distance in front of the spot where the prisoner will Suffer,  in one Rank, the Corporals in their rear as a Reserve, the Sergeants in rear of the Corporals except the Commanding Sergeant who will be on the flank opposite the Brigade Major.  Corporals and privates to load with Ball Cartridges, immediately after they are formed… one Subaltern, one Sergeant, one Corporal, and 10 privates…. to escort the prisoner to the place of Execution. [19]

With the band playing the Death March, the prisoner was lead out with his hands tied behind him.  The accompanying chaplain read the condemned man the Prayer for Condemned Malefactors [20] prior to being ordered to be shot by his comrades.

             Even when the provost marshal was coordinating the execution, the firing squad was always to be composed, in part or whole, by members of the regiment the convicted belonged to.  In some cases, even the prisoner’s accomplices, who had been pardoned, made up the group of executioners. [21]   If the provost marshal was present at the execution, he usually had a case of loaded pistols, just in case the condemned soldier did not die by the volley from the firing squad. [22]  This seemed to happen often. [23] The purpose of the reserve was also to finish off the prisoner.

             After the criminal is declared dead by the regimental surgeon:  “it is the custom to carry the mangled body three times round the parade or place of execution, in order to render the example the more striking, and to impress the greater terror on the minds of the spectators.” [24]    In 1810, Sergeant Cooper of the 7th Regiment recounted a slightly different approach after two deserters were shot: “Being laid side by side in the grave; we marched close past it in file; took a look at the bloody remains, and marched away to quarters.” [25]    As for the Cavalry, up until the 1790s, cavalrymen were executed by firing squads armed with pistols.  The accuracy of the pistol was not the best and certainly not appropriate for an execution.  This issue was rectified with the adoption of cavalry carbines. [26]                               PART 2: CORPORAL PUNISHMENT  to come….

 

Endnotes

[1]Great Britain. Laws.  An Act for Punishing Mutiny and Desertion, and for the Better Payment of the Army and their Quarters. (London, 1808) Art. XIII, pp. 22-23.

[2] Public Records Office (PRO) WO 27/105 Return of Regimental Court’s Martial held in the Canadian Regiment Since Last Inspection ( 15th June 1811 ).

[3] Quebec Mercury January 13th, 1812 .   On the same day his sentence was reported in the newspaper, the 23 year old John Mitchell was baptized in the Anglican Cathedral.  Whether it was common to baptize condemned prisoners before their execution is unknown.   Quebec City . Anglican Cathedral Registers 1803-18. MGM-0113.

[4]    There are a number of cases were a duel ended badly for both parties ,with the surviving duelist meeting his end at the gallows.  The following is one such case.  “Alexander Campbell was tried at the Armagh Assizes, 13th of August, 1808, for the wilful and felonious murder of Alexander Boyd, captain in the same regiment, by shooting him with a pistol bullet, on the 23rd of June, 1808 , in the county of Armagh , in the kingdom of Ireland . This murder was committed in a duel.
   The first witness called was George Adams, who deposed that about nine in the evening of the 23rd of June he was sent for in great haste to the deceased, Captain Boyd, who had since died of a wound he had received by a pistol bullet, which had penetrated the extremity of the four false ribs and lodged in the cavity of the belly. This wound, he could take upon himself to say, was the cause of his death. He was sitting on a chair vomiting blood when witness was sent for; he lived about eighteen hours afterwards. Witness stayed with him till he died. He was in great pain, and tumbled and tossed about in the most extreme agitation. Witness conceived his wound to be mortal from the first moment he examined it. The witness then stated the circumstances which led to the duel.
   John Hoey, mess-waiter to the 21st Regiment, swore that he went with a message from Major Campbell to Captain Boyd, by means of which they met.
   Lieutenant Macpherson, surgeon, Nice, and others, proved the dying words of Captain Boyd.
   John Greenhill was produced to prove that Major Campbell had had time to cool after the altercation had taken place, inasmuch as he went home, drank tea with his family, and gave him a box to leave with Lieutenant Hall before the affair took place…..
   The jury then retired, and, after remaining about half-an-hour out of court, returned with their verdict -- guilty of murder; but recommended him to mercy on the score of character only. Sentence of death was immediately passed on the unfortunate gentleman, and he was ordered for execution on the Monday; but, in consequence of the recommendation of the jury, was respited till the Wednesday se'nnight. In the meantime every effort was made by the friends of the unfortunate man to procure the Royal mercy. The respite expired on the 23rd of August, and an order was sent from Dublin Castle to Armagh for the execution of the unfortunate gentleman on the 24th. His deportment during the whole of the melancholy interval between his condemnation and the day of his execution was manly but penitent, and such as became a Christian towards his approaching dissolution. When he was informed that all efforts to procure a pardon had failed he was only anxious for the immediate execution of the sentence. He had repeatedly implored that he might be shot; but as this was not suitable to the forms of the common law his entreaties were of course without success.
   He was led out for execution on Wednesday, the 24th of August, just as the clock struck twelve. A vast crowd had collected around the scene of the catastrophe. He surveyed them a moment, then turned his head towards heaven with a look of prayer. As soon as he appeared, the whole of the attending guards, and such of the soldiery as were spectators, took off their caps; upon which the Major saluted them in turn. This spectacle was truly distressing, and tears and shrieks burst from several parts of the crowd. When the executioner approached to fix the cord, Major Campbell again looked up to heaven. There was now the most profound silence. The executioner seemed paralysed whilst performing this last act of his duty. There was scarcely a dry eye out of so many thousands assembled. The crowd seemed thunderstruck when the unfortunate gentleman was at length turned off. After hanging the usual time the body was put into a hearse which was waiting.”    Wilkinson, George Theodore The Newgate Calendar Improved  ( London 1822), and recounted at  Newgate Calendar online.

[5] Williamson, John  The elements of military arrangement, and of the discipline of war adapted to the practice of the British infantry. ( London , 1791) Vol. 2  p. 153

[6] Trap door scaffolds were relatively new and could only be found in larger cities.  Most hangings used a simple gallows and had a moving wagon instead of a trap door to complete the sentence.

[7] Williamson, John  The elements of military arrangement…. Vol. 2  p. 162

[8] James, Charles  The Regimental Companion; containing the pay, allowances, and relative duties of every officer in the British Service.  7th Edition ( London , 1811) Vol. 1, p. 43.

[9] Tytler, Lord Alexander Fraser An Essay on Military Law, and the Practice of Courts Martial. (Edinburgh, 1800)  p. 334.

[10] It should be noted here that during Martial Law in Ireland following the Rebellion in 1798, numerous civilians were hung by the military for sedition and high treason.   In this circumstance, the military often acted as judge and jury, but applied civil punishment to these civil crimes.  If a soldier committed the capital crime of mutiny or high treason, he was usually shot to death.  

[11] “…where there is no form of our civil judicature in Force, the…Officer commanding in Chief…is to appoint General Courts martial as Occasion may require, for the trial of any such persons…accused of willful Murder, Theft, Robbery, Rape, Coining or Clipping the Coin of Great Britain, or any Foreign Coin current in the Garrison…or of having used Violence or committed any Offence against the Persons or Property of any of Our Subjects, or of any others entitled to Our Protection”  Great Britain. Laws. Rules and Articles for the Better Government of All His Majesty’s Forces. (London, 1808)  Sect. XXIV p. 82.

[12] Donaldson, Joseph Recollections of the Eventual Life of a Soldier. (Edinburgh, 1847) p. 222

[13] Ibid., p. 221.

[14] Bankes, George ed. The Autobiography of Sergeant William Lawrence. ( London , 1886), p. 86. “Marched next morning, and passed one of our poor fellows, who had stolen some flour, hanging on a tree.”  Cooper, John Spencer  Rough Notes of Seven Campaigns in Portugal , Spain , France , and America .  ( London , 1869) p. 112.

[15] Green, John  The Vicissitudes of a Soldier’s Life. (Louth, 1827) pp. 175-176.

[16] Williamson, John  The elements of military arrangement,….  Vol. 2 p. 163.

[17] Two soldiers were hanged by the 27th Regiment in France for robbing a farmer: “The Men were allowed a week to prepare themselves for their awful doom, and at the end of that time the brigade was called together to take warning from their unhappy fate.  It was on a Monday morning that we formed square round the gallows which had been erected for the occasion; and all being ready, the men were brought under the gallows in a spring wagon guarded by a sergeant and twelve men of their own regiment, one of which latter having adjusted the ropes, the chaplain read the service.  Then the question usual in these cases was put, but all they had to say was that they were both guilty and hoped this would be a warning to their comrades.   The chaplain then left them, and on the wagon being moved along they were left dancing on nothing.   The poor fellows were not long in expiring, but they were left on hour before they were cut down, during which time we had to retain our post.  Bankes, George ed. The Autobiography of Sergeant William Lawrence… p. 229.   

[18] Bankes, George ed. The Autobiography of Sergeant William Lawrence… pp. 28-29.

[19] Major Patrick Stuart’s Order Book of the 96th Regiment 14th Sept. 1804- 13th April 1805 .  Sometimes the prisoner was blindfolded and kneeled on his coffin over an open grave.  Cooper, John Spencer  Rough Notes of Seven Campaigns…  p. 73.

[20] Prayer for Condemned Malefactors:  “O, most gracious and merciful God, we earnestly beseech thee to have pity and compassion upon our unhappy brethren _______ who now lie under sentence, and are appointed to die,.  Vis it them, O Lord, with thy mercy and salvation; convince them of the miserable condition they are in by their sins and wickedness; and let they powerful grace produce in them such a godly sorrow and sincere repentance, as thou wilt be pleased to accept.  Give them a strong and lively faith in thy Son, and blessed Saviour and make it effectual to the salvation of their souls.  O Lord, in judgement remember mercy, and whatever sufferings, they are to endure in this world, yet del iver them, O God, from the bitter pains of eternal death.  Pardon their sins, and save their souls, for the sake and merits of thy dear Son, our blessed Saviour and Redeemer.  Amern.”  Carol M. Whitfield, Tommy Atkins: The British Soldier in Canada , 1759-1870 p. 165 quoted from Library and Archives of Canada (LAC) RG 8 I, vol. 74, p. 159.

[21] Williamson, John  The elements of military arrangement,….  Vol. 2, p. 178.

[22]   Ibid.

[23] Cooper, John Spencer  Rough Notes of Seven Campaigns  pp. 26, 73.

[24]   Williamson, John  The elements of military arrangement,….  Vol. 2, p. 181.

[25] Cooper, John Spencer  Rough Notes of Seven Campaigns  pp. 73.

[26]   Williamson, John  The elements of military arrangement,….  Vol. 2, p. 162.

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