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The On-Line Institute for Advanced Loyalist Studies
Skip to: Types of CourtsHolding a Court
               Commencing a Trial
               Adjudging Guilt and Passing Sentence
               Finding the RecordsCourts Martial On-Line

American Revolution Courts Martial

The military has always maintained its unique discipline and structure through laws governing its conduct that are separate and distinct from the civil government and the population at large. At the time of the American Revolution these laws were codified in the Articles of War. Officers and soldiers who violated these laws (or articles) were subject to punishment after a trial by a body of officers constituting a court.

A court martial traces its English ancestry back to the days of Richard II and the Court of Chivalry, with courts martial in the modern sense going back at least to the time of Henry VII. These courts were to be "restrained to things relative to war" and of "such persons only, as are subject to Martial Law, and of such crimes as are punishable thereby..."

During the American Revolution this affected the combatants in different ways. For the Rebels, courts martial were used exclusively by the military to try themselves and those civilians who may have engaged in infractions involving the military. This included spies from the British, the most famous case, of course, being that of Major John André in 1780.

With regard to the British, virtually everyone within their lines was subject to military law, civilian as well as military, due to the civilian courts being closed. While such things as desertion and neglect of duty were not charges applicable to civilians, murder, theft and harboring stolen goods certainly were.

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Types of Courts

Three distinct courts were in use during the American Revolution, each responsible for trying a certain level of crime. The lowest level was the Regimental Court, which could only try non-commissioned officers and rank & file. The Brigade or Garrison Court tried somewhat more severe crimes, and the General Court Martial could try all officers and other ranks, and issue a sentence of death.

In a General Court Martial the jury, as the officers composing it were sometimes called, consisted of thirteen officers from different regiments. These were usually a combination of field officers and captains, with a field officer as president. A Regimental Court Martial was most often one captain and four subaltern officers. A Garrison or Brigade Court Martial might have more closely resembled a General Court. Sergeants, drummers and rank & file never served on a court.

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Holding a Court

General Courts Martial were held by virtue of a warrant issued by the commander in chief of the army, while lesser courts were warranted by those commanding a district, brigade or regiment. The members of the court were given out in orders, either by name or by regiment. If orders were given by regiment, the adjutant of that corps determined who would attend.

Example of orders for a Regimental Court Martial:

Regimental Orders Jamaica 23d April 1777

Regimental Court Martial to be held to Morrow for the Tryal of George EVANS, Saml. KINGSTON, Thomas WEBSTER, George BLAKENY, Michael TOBINE, John McDONALD, and John McKENNY, privates in the Kings American Regiment. Capt. CORNWALL President. Lieut. DePEYSTER, Ensigns McKAY, CAMPBELL, and SARJENT, members. All witnesses to attend.

The prisoner was provided with the exact charge or charges against him (or her) and allowed to contact witnesses to attend at his defense.

In addition to the president and members of the court, an officer acted in the capacity of deputy (or assistant deputy) judge advocate general. This officer acted as the prosecutor in most cases, advised the court on issues of the law, and swore in the court, prisoner and witnesses, etc.

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Commencing a Trial

At the commencement of a trial an arraignment of the prisoner was held, at which time the charges were read and the judge advocate asked the prisoner to plead guilty or not guilty. The prisoner then either confessed, stood mute or pled not guilty, the most common answer.

In certain cases, he could have pled autrefois acquit, which is to say he had already been tried and acquitted for this crime (double jeopardy), or autrefois attaint or convict, that he had already been tried and convicted of the crime. Either of these situations would have been cause for immediate discharge.

If a man stood mute by choice (the exemption being by Act of God, which the court would determine), he was not automatically pled not guilty by the court. Instead, he was to be held in a very severe manner until compelled to give an answer for himself and stand trial.

As in a modern court, the accused was allowed to make challenges against the members of the jury. There were two types of challenges: peremptory and cause.

A defendant could use up to twenty peremptory challenges. The vast majority of cases had none. The second challenge was that of cause. Adye describes good cause as a juror previous to the trial declaring the defendant guilty or saying he "will be hanged;" or a juror who would benefit in a monetary or financial way by the prisoner's being convicted. The judge advocate (or his deputies) had the same right of challenge.

Opening statements were rarely given in courts martial. Generally, witnesses were immediately called and examined. At a minimum, two witnesses would be called for the prosecution. One could suffice in a pinch, but, as English Lord Chief Justice Hale explained, "must be warily allowed…for it is better five guilty persons should escape unpunished, than one innocent person should die."

Evidence normally allowed by the court included confessions, depositions that were sworn to in front of a magistrate, or official documents. Witnesses could not introduce hearsay testimony, although a defendant's prior statements could be used against him. Cross examination could occur anywhere throughout the trial, as could questioning by the members of the court.

At the close of the prosecution, the defendant, particularly if an officer, made an opening statement, often from a prepared text. Witnesses and evidence for the defense would then be called and entered. It was also very common at this point to produce Lauditores or character witnesses.

This was most important for the other ranks, as exemplified below:

Captain Cornelius MacCLEESE of the 2d Battalion of New Jersey Volunteers, having been duly Sworn Informs the Court—That the Prisoners Robert MORE and William ROGERS, had always done their duty, regularly; and behaved otherwise as became good Soldiers–before commission of that crime for which they are tryed before this Court.
MacCleese was also a witness for the prosecution in this trial. In other trials, character witnesses were even members of the court, although this practice was somewhat discouraged. Conflict of interest was not a predominant factor in 18th Century courts.

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Adjudging Guilt & Passing Sentence

In courts martial, as opposed to civil courts, the jury needed only a majority to find a guilty verdict. This was true except in a capital case, when nine of thirteen had to find the defendant guilty. There was no time limit as to how long the court could deliberate the verdict, and jurors were excused all other duty while attending court.

The question of guilt and the severity of a sentence often seemed to center around intent, especially in cases of desertion. While Adye observed "he who is guilty of any crime whatever, thro' his voluntary drunkenness, shall be punished for it, as if he had been sober," some proceedings show that this was not always the case. Many cases revolved around questioning a prisoner's sobriety as his reason for committing a crime.

Here is an example from the case of Private Thomas COLLOGHAN of the 2nd Battalion, New Jersey Volunteers, who was accused of attempting to desert over the Delaware from Philadelphia:

John ESSIG, Tide Waiter, being duly sworn, deposed that he was on the Wharf on Saturday last about the middle of the day, that he saw the prisoner on board the Sloop George, which was hauled off from the Wharf, and upon his getting into the Boat he saw him hold out his hands as if he wanted to get hold of a Stage that was alongside a Ship, but the Tide drifted him away, and he was so stupidly drunk, that he did not know how to manage the Boat, & the Witness thought he would have tumbled out of the Boat, but he had not the least reason to suspect from what he saw, that he had any intention of going over to the Jersey Shore.
Evidence like this was important and often resulted in acquittals, as it did in this case.

Another important aspect was whether or not a soldier had been properly enlisted, whether or not he received pay and clothing as a soldier, and if he had been read the articles of war concerning mutiny and desertion. In the British Army, this was known as "qualifying" and was done before a justice of the peace or other similar civilian magistrate.

The testimony and sentence of this soldier in the New York Volunteers best illustrates this:

The Prisoner being put upon his defence said that he was drunk when he quitted his post or never would have gone off, for he left his necessaries behind; that after going to see his friends, he returned to Kingsbridge, where the Queen's American Rangers stopt him, and would not let him go any further; that he never received pay in either Corps nor ever was attested or heard the Articles of War against Mutiny and Desertion read…

The Court having duly considered the evidence against the prisoner Adam RUFFE, together with what he had to offer in his defence is of Opinion that he is not guilty, no evidence having appeared of his receiving pay or being duly inlisted, as the 1st Article of War of the 3d Section directs, the Court doth therefore acquit him.

Another question often put to witnesses, again most often in cases of desertion, was whether a prisoner took away his necessaries (i.e. spare shirts, stockings, etc.), his uniform, his arms or his accouterments. This would often indicate an intent to go off, as distinguished from the drunk who may have just wandered out of the lines, as many apparently did.

The actual deliberation was kept secret, as it is today. The judge advocate recorded the vote of each member, but it was never publicly disclosed, neither was the word "unanimous" used, as that would indirectly reveal the vote of each member. Upon their returning to the court, the judge advocate inquired as to the verdict. Upon a reply of "guilty" he then asked a second question, "What punishment is to be inflicted on the prisoner whom you have found guilty?" The president, who spoke for the members much as a jury foreman would, then returned the punishment.

Punishments varied between the two armies. The Continental Army often passed very lenient sentences upon its soldiers, with punishments of fifteen and thirty nine lashes being common. Even a severe offense such as calling an officer a "son of a b----" and threatening him with bodily harm only drew a Maryland soldier one hundred lashes in June of 1777. Strangely though, the Rebels seem to have had a much higher number of both death sentences and actual executions than the British did.

The British however, in cases of a General Court Martial, often had sentences of five hundred or a thousand lashes. A return made out in 1782 shows only five soldiers executed from 1778 to that time, the tenure of Sir Henry Clinton's command. This does not take into account the fighting in the South, where others were executed both with and without official sanction.

A death sentence, as well as all other sentences of a General Court Martial, needed to be approved by the commander in chief of the army in the case of the British. Lesser courts had lesser approvals. Only upon the approval was a sentence carried out or a prisoner released from confinement if found not guilty.

Corporal punishments were usually done at the discretion of the regiment to which a soldier belonged, often in increments. Non-corporal punishments were much more common in the Continental Army or in the militia of both sides. A volunteer militiamen in Charlestown, South Carolina was charged by his battalion with leaving his arms with someone not in the service while on duty and then leaving his post. He was sentenced to be "admonished in presence of the Company, the nature of the offence explain'd, and assurance of being punctual and attentive in future."

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Finding the Records

Original proceedings, particularly for the Congressional troops, can often be found in orderly books or journals. Published works such as The Public Papers of George Clinton, The Journal and Order Book of Captain Robert Kirkwood and many others provide scores of small trials with the proceedings, not just the outcomes and sentences. Other orderly books will provide just the crime and sentence.

For the British, there are very, very few Regimental or Garrison Court proceedings to be found. However, the General Court Martial proceedings for many (but not all) of the cases tried in America can be found at the Public Record Office in Kew, England, in the War Office Papers, Class 71, Volumes 80–97.

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Loyalist Courts Martial On-Line

The following link will take you to an index of British and Rebel courts martial cases on-line. We hope that this sampling will give you a feel for the types of offenses that were tried and the manner in which the proceedings were conducted. Enjoy!

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