Provincials and Regulars British officers had little, if any, regard for their provincial brethren, although many other foreign observers had nothing but the highest regard for the American militias. The English could counter that the others did not have to work with the provincials, but if they did, their opinions would change dramatically. The British officers in North America almost universally regarded Americans as cowards who were ill-disciplined, given to following individual preferences over the good of the whole body, and more interested in enforcing their supposed legal rights than in carrying out their obligations to the Crown.
A German professor contradicted the prevailing British view of the New England militia. "The provinces have their own militia, maintained at their own cost . . . . New England has the largest and best body of militia."clxviii One of the few sympathetic British officers noted the skill with which the New England militiamen handled their firearms. "Some Lads about 13, 14 and 15 years old . . . can shoot a Bird flying with any man in this Province. This adds to the Martial Spirit which seems to run through the whole of the country people." He judged that many of these young sharpshooters would willingly join in an expedition against the French and their Amerindian allies.clxix A Boston correspondent of the Public Advertiser boasted that four thousand Massachusetts militia marched on Crown Point; two thousand prepared to attack Fort Niagara; and that twenty thousand more militiamen were available to defend the continent against the designs of the French. "This is a right martial spirit and seems to run through the whole of their country people."clxx
Sadly, most British observers generally found exactly the opposite to be true. Some argued that the militia spent too much time in training days at leisure and too little time learning military tactics and marksmanship. Orderly books of the period often show that British officers often remarked on their gross ignorance of basic maneuvers and their lack of comprehension of basic commands. When ordered to perform certain functions that the British army considered basic and fundamental to any army, the provincials responded that they could not follow the orders because they did not understand what was required of them.clxxi
One issue that divided colonial militias from their professional British brethren concerned the ranks granted to provincial officers. British Rules and Articles of War stipulated that when any provincial militia served with British regular troops, colonial officers regardless of grade, were subordinate to their British counterparts. Superior colonial officers were, at best, regarded as senior captains when serving with British troops. Hence a colonel, even a general, in the provincial militia was inferior in rank and command to the most junior major in the British army. In order for this rearrangement of rank to occur one had only to add one detachment of British army headed by an officer of the grade of major or above to a large body of militia; the actual number of British troops or militia had nothing to do with the situation.
In 1756 acting British commander in chief for North American, and governor of Massachusetts, Major-General William Shirley appointed Major-General John Winslow, one of the most distinguished and competent New England militia commanders of the pre-Revolutionary period, to recruit New England militia for a campaign into the French-held areas around Lake Champlain. Shirley thought to express confidence in his provincial charges, and to aid in the recruitment of militia, by appointing Winslow, a veteran of the Carthagena Campaign in 1740 and of many campaigns during King George's War (1744-48). When John Campbell, Earl of Loudoun, arrived in America in July 1756clxxii he rescinded Shirley's orders and placed the militia and its officers in positions subordinate to the British regulars, thus effectively reducing Winslow in rank from major-general to ranking militia captain.clxxiii
A related issue involved the responsibility for command of the militiamen. As acting British commander in North America, following Braddock's death, Shirley had promised the New England militiamen that Winslow would be their commander.clxxivThe Lords Justices, having thought it necessary to appoint without loss of time a Commander-in-chief of his Majesty's forces in North America, in the room of the late Major-general Braddock . . . Major-general Shirley is ordered to take upon him . . . the command, with like powers, with which Major-general Braddock held . . . . The men regarded this as a contract between Shirley, acting for the English king, and themselves, and binding in both a legal and a moral sense. When Lord Loudoun and his second in command Major-General James Abercromby decided to place the militiamen under British command and British discipline, the men claimed breech of contract. To Loudoun and Abercromby this was a logical and natural move, and they certainly felt themselves immune to any contractual arrangement Shirley had made since they were now in sovereign command of all His Majesty's forces in North America. Since they regarded the provincials as unruly, contemptuous of discipline and ill-trained, and poorly prepared for war, they thought it their duty to bring them to a state of readiness equal to that expected of the British army and troops recruited from any location serving with that army. British command, in the minds of Loudoun and Abercromby, was far more professional and experienced than any provincial officers could possibly be. And, in their opinions, imposition of the British Mutiny Act and Rules and Articles of War were long overdue. Technically, the provincial laws were probably illegal, or at least superfluous, as the British laws concerned both the homeland and its provinces and Parliament had provided for no exceptions.
The first official notice the colonial officials had that the British government intended to apply to Mutiny Act to their militias came in January 1755. Privy Council Secretary Robinson wrote to the governors of the several New England provinces informing them that Parliament had inserted a clause in the Mutiny Bill "enacting that all troops in America whilst in conjunction with British Forces under the command of an officer bearing His Majesties immediate commission shall be liable to the same martial law and discipline as the British forces are."clxxv To the colonials the question was less Parliament's power to make uniform laws and create regulations for the training and discipline of all troops, whether regular army or militia, than it was of contract. The colonials had enlisted for the expedition specifically on the premise that they would be commanded by their own officers and subjected to provincial mutiny and related acts. Shirley defended his actions as reasonable and traditional: reasonable in the sense of making more men enlist; and traditional in the sense that, on previous campaigns, militiamen had been subjected to their own provincial, not British military, law. Winslow argued, in support of Shirley, that his militia was neither unruly nor mutinous and provincial law was more than sufficient to maintain discipline. Indeed, in fulfillment of contract, the men would be more likely to obey their own laws than to obey the much harsher British law, with its emphasis on brutal discipline and more than occasional executions. But Loudoun and Abercromby were adamant. In this campaign the militia was going to do things according to the book, and the British officers were not about to capitulate to the whims and desires of their poor relations in the colonies.
Winslow served as the provincial's advocate, arguing the provincial militias' case as strongly as he knew how. The men had enlisted under provincial law, in response to a provincial governor's call for provincial soldiers, in an army funded by the provincial governments. These men had made a covenant voluntarily, of their own free wills, and Winslow and other officers were "executors in trust" for the contractors. The army was a "properly organized body" under law only because the men had volunteered their services under a certain, definite and specific set of circumstances. If the current British commander changed the contract that had been legally made by his predecessor, the contract was altered and was thus null and void unless the consent of the other parties, the militiamen, was given. Winslow argued that the commander had no legal or moral right to alter a perfectly valid contract. If the commander insisted on having his way, the men could hold the contract to be invalid and were thus free to return to their own homes. Winslow added that the officers had likewise been deprived of their rights under the same contract and, unless they chose voluntarily to serve in inferior positions, their obligation to serve on the expedition was also terminated. But the officers had a moral duty to not resign until the issue of the disposition of their men had been resolved.clxxvi
Shirley sent Winslow's letter, along with a cover letter of his own, to Loudoun for a response. Loudoun was outraged, holding that Winslow had knowingly and willingly disobeyed his orders. Loudoun looked at the problem from an entirely different perspective and this marks an important difference between provincials and the British officer corps. In Loudoun's opinion since it was Shirley who had negotiated the original contract, it fell to him, not Loudoun, to respond to Winslow. Moreover, Loudoun argued that any man who enlisted in a British cause of any sort, at anytime and at any level, implicit;y agreed to serve, not a political sub-division of the empire, but the Crown. All men served to advance the king's cause and to protect his dominions. The king may command them as he sees fit and the men have no choice but to obey their sovereign. Provinces are dependencies of a sovereign state, and are not themselves sovereign, nor can they ever be, or ever act as, independent contractors. They are, and will always remain, agents of the sovereign state. Using the standard argument of the seventeenth and eighteenth centuries, Shirley reminded Winslow that sovereignty is not, and indeed cannot be, divided and so the provinces had no legal standing to dispute the Crown's best judgment. The king was the only legally constituted authority. The issue, then, was not contractual rights of the men, but of rightful and legal obedience to their king, the only legal authority. Disobedience to lawful orders and lawful authority was nothing short of insurrect, treason, rebellion, and sedition.clxxvii
Winslow was still unwilling to accept the change in conditions and legal standing of his militiamen that Loudoun required. He discussed it orally with Loudoun in early August. Neither was satisfied with the outcome of their meeting. Loudoun contented himself with extracting from Winslow, on his own behalf and on behalf of his militiamen, an oath of loyalty to the king, but agreed to defer, at least during the campaign at hand, from implementing his initial orders. He allowed Winslow to remain in nominal command of his troops for he knew that the campaign was lost without Winslow's militia. Winslow had won a technical victory, but knew that henceforth Loudoun would have his way and his orders would stand in future campaigns.
At this low point Winslow found an unexpected ally in Thomas Fitch, the popularly elected governor of Connecticut. He understood the position of the provincials and championed their cause. And he understood and endorsed wholeheartedly Winslow's arguments. Fitch was more than willing to stand firm behind Winslow and the militia he commanded.
As an aristocratic conservative, Loudoun had no use for the provincials' contractual arguments. To him Winslow was merely attempting to try to avoid his imposition of military order. It was not that he was incapable of understanding the logic. On the contrary, he understood Winslow's arguments fully. To him these arguments simply represented lawyers' tricks and pointless exercises in rhetoric. The provincials succeeded in accomplishing nothing more than buttressing Loudoun's preconceived opinion that the colonists were a lazy, insubordinate, indolent, argumentative, and mutinous lot.clxxviii
Still, the provincials had several trump cards to play. The legislatures were still sufficiently independent that they could, and often did, as in this incident, refuse to offer supplies for various expeditions. The process of procuring provisions was one of the more ponderous aspects of colonial administration. Annually, the legislatures set up committees of war which were a curious blend of private initiative and governmental interventionism. These committees procured such supplies, including arms and foodstuffs, as the legislature permitted by their funding by entering into contracts with various civilian suppliers. The committee then contracted with wagoners to haul the supplies to a central supply depot, and then to transport the same to the camp where the officers received the supplies. It was not until this last step was finished that the supplies came under military control. No commandant, provincial or British, could really do more than to make requests of the committees of war for what the provincial troops needed, for commanders had no real authority to exercise over them.
The provincial legislatures could refuse to supply men, as Pennsylvania had done until the time of the French and Indian War. They could assist or impede the recruitment of volunteers and enlistments. The British tax system in the colonies effectively raised little money, often less than the cost of the collection. Most provincial financial support that the British government did get came from the colonial legislatures and here they acted more as independent agents offering a voluntary contribution than dependencies fulfilling a legal obligation to support the home government. The home government was usually displeased with the amount of money contributed and the length of time the provinces required to actually deliver their contributions, but it seems to have imposed no real penalties against the legislatures to bring them into conformity with its wishes. This certainly was not an ideal time for a servant of the Crown to get into a fight with the provinces over supplies, men and money.
As a military man with a sense of the need for regular deliveries and distribution of supplies, Loudoun sought to compromise with the colonial authorities. He offered to purchase all the supplies that were immediately available at a standard rate and then to supply the provincial militiamen with the same items that he gave his own men. The legislatures would then be free to supplement their own men with any items not on his list. Some colonial authorities thought this to be a trick for if the king supplied the militiamen they would have to yield to the king's discipline.
The provinces seemed to have viewed this more as a power struggle between the commissioners of war, who, if the solution had been accepted would have had little to do, and Loudoun, than as a reasonable solution to a recurrent problem. They were also concerned that any reimbursements due the colonies from the home government would not be lost in the shuffling of papers among the several layers of authority. For their part, the enlisted men feared also coming under British control if they ate the king's bread; and they fully supported the contractual arguments of Winslow and Fitch, for, as mostly Puritans, they had been steeped in contractual arguments since birth. The commissioners of war had little difficulty convincing the legislatures of Massachusetts, Connecticut and New Hampshire to reject Loudoun's proposal.clxxix
Loudoun also disliked the apparent provincial disregard for hierarchy and command. As a career soldier in the British army Loudoun had no respect for any challenge to authority. Others should do as he did, which was to give full, unquestioning and complete obedience to orders received from his superiors. The enlisted men formed the base of his hierarchical pyramid and they must never question any order, if only out of fear of punishment. The men must be made to fear their officers even more than the enemy's guns and bayonets. The provincial enlisted men were lower even than their British brethren, and the provincial officers were not much better. Provincial officers were disobedient, independent and, perhaps worst of all, concerned for the welfare of their men. They fraternized with the men and their offices depended upon their election by the men, rather than upon talent, origins, birth or financial ability to purchase offices. All of these things mitigated strongly against their ever functioning as the British officers did, or integrating themselves into the British military machine. The vocabulary of the various New England officials was wasted on Loudoun and his class. Why would he be at all interested in "the rights of soldiers" when all gentlemen knew enlisted men had no rights?
Much of their behavior had to do with the fact that New England society was neither class-conscious nor hierarchical and it had no real experience with an established, professional military organization. The New England militia, as we have seen, was the only real line of defense in the colonies which had no standing armies. On the other side, Loudoun was the product of a society in which class had its privileges and success in the professional military was based on class. The British militia was, at this time, at best a relatively insignificant adjunct to the standing army. Any officer who risked his own career, court-martial or fortune in defense of his men had to be harboring some ulterior motives or democratic designs. Only an American would think of his officers and government as entrepreneurs and the enlisted men as workers and a contractual obligation between the two. And, having admitted an employer to employee relationship, if only for the sake of argument, only an American would assume that there was some reciprocity involved in that contract, or paternalistic obligation of employer to one's employees.
Against this background, and with continuing debate at a most inopportune time for the British commander, Loudoun had little choice but to back off. The main loser was Shirley, not Loudoun. To the minds of the colonists he had apparently broken his word to allow the provincials to fight under their own commanders and rules. In Loudoun's mind Shirley had undermined his orders, meaning legitimate authority, by patronizing of the colonists. Had Shirley not made the deal Loudoun would not have been stuck with trying to contradict and repudiate it. Shirley's actions had made the colonists all the more independence-minded and more likely to rebel against realistic military discipline in the future. Loudoun was a European officer forced to fight a war with a cast of Americans who knew nothing of civilized warfare. He deeply resented Shirlery's laxity for he had to depend on the provincials because his best troops were already committed elsewhere and the role assigned to them was an important and integral part of the overall campaign.
Loudoun never understood the American provincial mind, nor did ever intend to try. His job was not to understand but to coerce the recalcitrant New Englanders. To his mind, and those of most, if not all, his subordinates, it was high time to bring the Americans back into the fold. Shirley understood, if only because he had served for a quarter-century as governor of the most populous colony. He also wanted to understand his charges and that made him, arguably, the most successful and accomplished of the colonial governors.
Martial Law and Military Discipline 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.clxxx 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."clxxxi
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.clxxxii
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.clxxxiii
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.clxxxiv 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.clxxxv
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.clxxxvi
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.clxxxvii 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.clxxxviii
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 Deuteronomyclxxxix 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."cxc
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.cxci
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.cxcii 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.cxciii
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.cxciv
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.cxcv 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.cxcvi