64th-Infantryman

 

Union Army Courts Marshal

Punishments for infractions great and small were delivered through the US. Army's court-martial process.

PRIVATE JACOB MCKINSEY OF THE 1ST MARYLAND POTOMAC HOME BRIGADE MUST HAVE SQUIRMED AS HE SAT IN THE COURT-MARTIAL CONVENED TO DISCIPLINE HIM, AND LISTENED WELL TO THE CHARGES BROUGHT AGAINST HIS MORTAL SOUL. AFTER IMBIBING TOO MUCH ALCOHOL, HE HAD RAISED A DRUNKEN DISTURBANCE THAT INCLUDED EXCLAIMING TO HIS LIEUTENANT, "I WON'T BE CONTROLLED BY A DAMN S- LIKE YOU." THE ERSTWHILE PRIVATE'S MISTAKE WAS IN VERBALIZING WHAT MILLIONS OF SOLDIERS (AND PROBABLY MOST PEOPLE WHO HAVE EVER HELD JOBS) HAVE THOUGHT FROM THE DAWN OF TIME TO THE PRESENT. AS A RESULT, HALF OF HIS PAY VANISHED FOR THE NEXT TWO YEARS WHILE HE WORKED IN AN ARMY PRISON. HE SHOULD HAVE CONSIDERED HIMSELF LUCKY, FOR HIS PUNISHMENT COULD HAVE BEEN MUCH WORSE.

During the Civil War, tens of thousands of Northern men and boys like Private McKinsey left the familiar arena of farms, towns and mechanics' shops to don the uniform of a soldier. The world of military service they entered was vastly different from their often insular civilian experiences, and departing recruits undoubtedly received a barrage of prayers from loved ones that their character and morals would survive the war relatively unscathed - provided their bodies did as well.

Enlistees, however, invariably found camps seething with opportunities to embrace behavior they had not seen taught at home, and some found the temptations irresistible. Liquor, called "pop skull" or "rifle knock knee" in soldier slang, often was the catalyst for improper behavior, although some troops never acclimated to serving under a military command structure and committed their infractions while sober.

Before the war, the U.S. Army had established a court-martial system designed to deal with improper and criminal actions by its soldiery. That structure held up surprisingly well despite the strain placed upon it by the sudden influx of the North's large volunteer armies, and general courts-martial, conducted in an organized, logical way; successfully meted out a fair brand of justice during the tumultuous war years. The volunteer officers serving on the military courts proved themselves quite capable of comprehending military law and maintaining sensitivity to each unique case before them. In all, a Yankee volunteer stood an excellent chance of receiving just treatment when placed before a general court-martial.

Careful records of the proceedings for the trials "of officers and of soldiers for the higher grade of offenses," as a wartime booklet described them, are preserved in the National Archives of the United States in Washington, D.C., and every word spoken during a case can be relived due to the work of wartime judge advocates - the overseers of the military trials. At the conclusion of a trial, the judge advocates were obligated to write, as one military manual put it, "without delay a fair copy of the proceedings to the officer having authority to confirm the sentence " A scrutiny of dozens of judge advocate reports reveals that volunteer court members closely adhered to law manuals, yet tailored their decisions to reflect key facts emerging during testimony.

Published military works provided officers with complete information pertaining to the courtroom. The Articles of War, The United States Army Regulations of 1861 and Stephen Benet's A Treatise on Military Law and the Practice of Courts-Martial were among the materials available for perusal prior to serving on a court. In 1863, Henry Coppée, a West Point graduate and Old Army veteran of the Mexican War, published a small handbook, Field Manual of Courts-Martial, to help new officers understand the Army system. Coppée's preface stated, "This little book is...to put into the hands of the unskilled, a pocket manual for immediate use at any moment; so that an officer recently appointed, being unexpectedly ordered to act as a member, recorder, or judge advocate of a court may, by consulting it, know how to proceed at once." Crammed with practical information, the manual even included two diagrams depicting recommended seating arrangements for the judge advocate, the prisoner, counsel and others involved in a trial.

Before discussing actual courtroom procedure, books like those mentioned above defined general courts-martial and explained how they were convened. Major William Gilham, another Old Army soldier who taught at the Virginia Military Institute, wrote Manual of Instruction for the Volunteers and Militia of the United States in 1861. In it he explained, "A general court martial is competent to take jurisdiction over any offense of a military nature, that can be committed by military persons...." That meant that officers as well as enlisted men accused of serious infractions faced this type of court. Only the highest-ranking individual in a given area had the authority to create a court session. Depending on the circumstances, that individual might have been a colonel commanding a department, a general commanding an army, or even the secretary of war.

When the court assembled, the members (officers who made up the jury), the prisoner and the judge advocate situated themselves around a large table. Ideally, 13 members decided the fate of the prisoner, but courts at times functioned with as few as five officers if no greater number could be convened due to the demands of wartime service, Gilham described a procedure similar to Coppée's diagrams: "The members of the court martial take their places at the table according to rank, on the right and left of the president, the latter at the head of the table. The judge advocate is seated opposite to the president. The prisoner and his counsel (if he has any) have a place assigned, with the necessary accommodation for writing, on the right hand of the judge advocate. The witness stands near the judge advocate on his left hand The court being seated and called to order, no member can leave his seat without permission of the president." If necessary, an interpreter sat to the right of the judge advocate.

The central figure in a general court-martial was the judge advocate. Prior to the trial's commencement he spoke to witnesses and the accused individual in order to familiarize himself with facts pertaining to the case. He assembled prosecuting witnesses and also, oddly enough, assisted in the development of the prisoner's defense. While locating any requested witness for the defense, the judge advocate made certain the prisoner knew who was slated to be a witness for the prosecution. Throughout the actual trial, the judge advocate orchestrated the proceedings and recorded every word spoken by all involved.

Coppée articulated the potential problems that could arise from the unusual circumstance of having the judge advocate both building the case against and aiding the prisoner. He warned, "The danger in most cases is, that as prosecutor he is inclined to be too severe upon the accused; to accept his guilt as a foregone conclusion, and rather to aim to prove it, than simply, as is his sole duty, to exhaust all the evidence pro and con, and let that determine the guilt or innocence of the accused." Fortunately, the judge advocate's possible temptation to sway the court's thoughts was tempered by the fact that procedure forbade him from expressing opinions during the trial, and he did not vote on the question of guilt or innocence.

The senior officer in attendance at a court-martial received the title of president. He acted as a member of the court as well as the presiding officer. During deliberations, however, he had the same voice as any other court member. In an attempt to eliminate the president's potential influence on members' voting, votes were stated in order of seniority from the lowest to the highest ranking officer.

Following assembly and the appropriate oath taking, the convened court listened to the judge advocate read aloud the alleged crimes. Each wrongdoing was reported in two parts: the charge and the specifications. The presentation of the charge explained the crime in general terms, while the specifications revealed the finer details of the alleged behavior. Divulging the charges and specifications at times took several minutes because some men amassed three or four charges with specifications varying in length.

The cases that were conducted in and around Harpers Ferry, W.Va., provide an interesting snapshot of the Federal Army's court-martial process. Between 1862 and 1865, 71 general courts-martial occurred in and around the town that sits at the confluence of the Potomac and Shenandoah rivers. For most of the war, Harpers Ferry remained under Union control, though Confederate advances resulted in the town's changing hands eight times.

The individuals under trial ranged in age from their late teens through their mid-30s, and amassed a total of 97 charges. The soldiers were charged with an interesting, and often entertaining, list of crimes varying in complexity and gravity. Most of the men faced one or two charges, but some of the more fractious members of Mr. Lincoln's army had to endure discussion on as many as four. Accusations ranged from the common "sleeping on post," to a more bizarre "refusal to put down a bayonet," to a comical "disobeying of an order not to get drunk."

The 1862 case of Frederick W. Saurwill provides a typical example of a charge and the accompanying specifications. Saurwill, a private in the 7th New York Volunteers, was charged with "conduct to the prejudice of good order and military discipline." Case details surfaced during the reading of the two accompanying specifications. The first stated that Saurwill "feloniously took from the mail box of the 66th New York certain letters deposited for the mail of the regiment." Specification number two accused the soldier of opening "the seals with intent to steal the contents of, and burn certain letters belonging to the outgoing mail of the soldiers of the 66th New York." Testimony during the trial described the private hunched over a fire, tearing open letters, and mumbling in broken English, "Me make a little money tonight."

Reading charges and specifications illustrates the colorful language to be heard in Civil War camps. A Marylander named Charles Crosby was charged with violating the 9th Article of War, threatening or committing a violent act against a superior officer. He must have truly loved a game of cards, for when ordered by his captain to fall in for drill, he saucily remarked, "I'll not go till I am done this game, if I do God damn me." Another case involved Jamie Wix, a shoemaker by trade, who had risen to captain during his enlistment. In 1865, a judge advocate recorded: "The said Captain James W. Wix Company A, 49th P.V. did say in the presence of ladies of the family of Mr. Wilson I will 'kick your arse' or words to that effect to Private John Eusig Company A 49th Regt. P.V. and then went into his tent or quarters and said to someone there 'you son of a bitch' or words to that effect. This within hearing of Mr. Wilson's family who were seated on the porch within 15 yards, compelling the ladies to go into the house...."

A surprising specification explained some of the alleged actions of an incredibly drunk Ohio infantryman named Mariman Gray. He asked a civilian named John Emerson if any sisters were present in the man's house. "If you have," Gray said, "I should like to f- them. That was my business before I came into the Service, and now I'm f-ing for Uncle Sam."

Following the reading of the last specification and the prisoner's plea, the judge advocate assumed his role as chief prosecutor and began questioning the first witness. His questions usually amounted to asking the witnesses what they knew of the incident being investigated and how they perceived the character of the prisoner. More probing questions originated from the court members. In this manner, no necessary question was omitted.

A closer look at what the judge advocate recorded about Mariman Gray's trial reveals how judge advocate and court member questions complemented each other. The charges against Gray accused him of the improper comments mentioned above as well as being absent beyond the time limit of his pass, getting drunk and striking John Emerson. Interestingly, the first witness was Mariman's brother, David: "Judge advocate: Do you know of any difficulty or fighting that occurred between the accused and John Emerson...? David: I don't know of any difficulty or fighting that occurred between them.... Judge advocate: Do you know whether the accused went beyond the time limited in his pass...? David: Yes sir he remained absent about 2 or 3 hours after his pass expired. Court: If you heard any words of an improper nature spoken by [the] accused...to John Emerson...state all you know about it. David: I did not hear him say anything to him at all. Judge advocate: Did the accused become intoxicated...? David: He had been drinking a little I did not consider him drunk. Court: Where did the accused get the whiskey? David: He got it in Maryland. Court: Had the accused a pass to go to Maryland on that day[?] David: He did not have a pass to go to Maryland. Judge advocate: Was it required for enlisted men to have a pass to go into Maryland? David: No, it was not required to the best of my knowledge. Court: Are you the brother of the accused? David: Yes Sir."

Emerson stated in a letter that he could not attend the trial because he had too much farm work, but claimed to have lost five workdays recovering from the alleged beating. Without his key testimony, the more sordid charges in the case remained unproven. The court found Gray innocent of the specifications as stated, but still guilty of "conduct prejudicial to good order and military discipline." Gray spent the next 30 days performing hard physical labor in the regimental camp.

Accused soldiers all possessed the right to cross-examine witnesses. That seldom occurred, however. Many remained silent during the prosecution testimony and then seized the opportunity to present their own witnesses, to recall witnesses used by the prosecution, or at least offer a prepared statement to explain their actions. A number of cross-examinations turned out to be little more than pathetic attempts to refute an accusation.

Joseph Rassman, a German immigrant in the 30th New York Independent Battery, did nothing to relieve his poor image with his single cross-examination question. In September, Private Rassman was charged with becoming "crassly intoxicated" and unleashing a stream of vulgarity down his company street. First Sergeant F. W. Brenner explained what happened: "Well, Private Rassman was standing before the tent, and he said Lieut. Grasse was the best Lieutenant in the whole battery; he kept on and Lieut. Grasse came along, saw that Rassman was drunk and told him to go to his quarters; Rassman then wanted the Lieut. to go to camp with him arm in arm and Lieut. Grasse...fetched Rassman up in his (Rassman's) quarters - put him in his tent. Rassman didn't want to stay in his tent, went out of his tent, and called to the whole Battery, two different times, - 'Lieut. Grasse f--ed me in mine arse.'"

When prompted to continue, Brenner explained, "The Officer of the Day told me to tie Rassman to a wheel. I told the Sergeant of the Guard, and he put him on the wheel. After that, standing on the wheel, he called it [his offensive accusation regarding the lieutenant] much more." At that point, Rassman interjected his cross-examination and asked, "Whether it was not true that the Lieut. ordered him first to his tent, and that he did not get out of it, nor use profane language...?" Did Rassman truly expect Brenner to respond to the judge advocate's questions and then later add that he had been fabricating his recently spoken statements? Subsequent witnesses supported Brenner's testimony and revealed that Rassman's actions had been even more inappropriate than the first sergeant had reported.


A sketch of the type of punishment endured by Private Joseph Rassman from Hardtack and Coffee.

Most trials were nearly finished once the prosecution closed, and in 75 percent of the Harpers Ferry cases, the prisoners failed to produce defense witnesses. More than half of them made little or no attempt to offer any explanation for their alleged actions. The majority of prosecutions presented information from numerous eyewitnesses and company record books. Therefore, many soldiers may have considered a not guilty decision unobtainable. A soldier with a real possibility of either gaining victory or lessening a sentence, however, would often defend himself with the aid of the judge advocate.

Late one night, an exhausted teen named William Alexander drifted off to sleep while guarding a powder magazine on Maryland Heights. The corporal of the guard had to physically shake the boy before he returned to consciousness. Although falling asleep on post constituted a grave offense, Alexander had help in putting together an effective defense.

Key individuals spoke on the boy's behalf. The captain of Alexander's company stated that the willing soldier was "not naturally bright or quick to learn...[but] when he understands his duty he tries to perform it." Alexander's corporal added, "The morning he went on guard I told him he was not able to stand it. He had been mostly on fatigue duty... ." Finally, it became apparent that guard duty had never been fully explained to young Alexander. Due to such testimony, the court handed the private a lenient sentence of six months performing hard labor in the regimental camp. In addition, he was to be read the lengthy Articles of War once a week. Alexander later gained freedom when Assistant Adjutant General Max Weber disapproved the sentence on grounds that it was improper to consider listening to the Articles of War a punishment.

Prisoners with or without defense witnesses sometimes attached a defense statement onto the trial's end that the Judge advocate read aloud to the court. Such statements varied in length from a couple of pages to a single sentence. Some men managed to pull out a victory with a well-written statement, and some received a lesser sentence because of it, but others succeeded only in further tarnishing their reputation.

Private Thomas Burt, facing a desertion charge, saved himself serious punishment and suffered only a loss of pay following the reading of his plaintive plea for mercy. The naive boy wrote: "I was drunk when I left camp. I went with two other men...I suppose they took me off for the purpose of getting my money....  I had no intention of deserting...will be sixteen years old next March." A Marylander named John Brunner was more stoic, penning only one sentence. At the conclusion of a trial charging that he had "deliberately and premeditatedly stab[bed] with a pocket-knife Private John Trew," Brunner explained, "I hope the gentlemen of the court will be lenient with me I committed the offense whilst under excitement and was sorry for it directly after I did it." That did not impress the court, which sentenced him to pass the remainder of his enlistment at hard labor, forfeit all pay and to eventually receive a dishonorable discharge.

Martin Kennedy, a private in the 5th New York Artillery, fought his desertion charge with a defense witness and paragraph long defense summation. He employed the witness to prove his fine character and his written summation to relate the odd circumstances associated with his absence: "I wish to state to the Court that prior to my leaving the regiment...I often received visits from my wife who was incessant in her entreaties that I should desert. On or about the date specified I received a visit from her and accompanied her to the ferry on her return. While there at her solicitation I entered a house in which there were several people who induced me to drink. The liquor was drugged and after three weeks of almost total unconsciousness I recovered my senses in New York City. Immediately after I was seized with rheumatism which did not leave me until after my return to the regiment.... I never intended to desert but my prolonged absence was owing to circumstances over which I had no control...."

Kennedy did not fare well because he had made no attempt to contact his superiors and describe his strange experience and health problems. The New Yorker was sentenced to two years hard labor with a ball and chain attached to his leg, and he lost all pay. Upon completion of the sentence, Kennedy faced more Army service because he still owed the military the year and seven months he had been absent without leave. Five months into his sentence, his company commander and the prison commandant completed a successful letter-writing campaign on his behalf, and Kennedy was returned to his company.

Having devoted their attention to all aspects of the prosecution and defense, the court members would retire to determine a verdict and, if needed, a sentence. Courts generally handed out sentences involving hard labor, forfeiture of pay or both. Similarities existed in the sentences given for certain crimes, yet court members sometimes fine-tuned sentences to fit individual cases.

Deserters commonly faced one to three years of hard labor unless circumstances demanded otherwise. A deserter named Oliver Wharff remained clear of prison because testimony proved him "physically unable to perform his duty...on account of disease of the eye and spine, and also [being] mentally incapacitated " In early 1865, a cavalry recruit named Thomas Burns fled with 16 other men after being involved in an incident in which a corporal was shot at and threatened with drawn sabers. That unacceptable behavior warranted a stiff sentence, and young Burns served five years at hard labor and lost all pay.

It is difficult to generalize about sentences dealing with Articles of War violations. Some soldiers received a month's punishment; others were incarcerated until their enlistments expired. Edward Runkles violated the 99th Article of War, a catchall that stipulated "all disorders and neglects which...soldiers might be guilty of" should be brought to court-martial. He was convicted of entering the regimental sutler's tent by slicing a hole in the canvas with a knife and stealing some tobacco. The court hoped that 90 days of hard labor would encourage him to pay for items sought from the sutler in the future. After Private Lewis Roberts disobeyed the 46th Article of War, which prohibited sleeping on post, he performed hard labor for a single month. Though death was the recommended sentence for his offense, he escaped with a light sentence because he frequently suffered from epileptic fits.

A number of men who violated the Articles of War received at least as much punishment as they deserved. Pocketknife-wielding John Brunner was sensibly punished for the rest of his enlistment following his stabbing incident.

At times, general court-martial sentences included additional, less standard punishments. It is difficult to deduce why this occurred. Perhaps court members were aware of additional pertinent information not surviving to the present, or they decided to make an example of a particular individual. It is also certainly possible that some courts allowed a collective mean streak to manifest itself. The trial of John Jones concluded rapidly after he pleaded guilty to a desertion charge. Besides losing pay and being sentenced to hard labor, Jones was "branded with the letter 'D' one inch in length on [his] left hip by indelible ink." The trial report leaves no clue as to why the court believed Jones deserved that additional painful and embarrassing experience.

It may be naive to suggest that every soldier on trial faced fair treatment, and that all courts exposed every piece of evidence necessary for members to make a well-educated decision. Most trials, however, seem to have developed a fairly complete story of a prisoner's actions, and many sentences were as lenient as possible. The cases examined for this study revealed the use of court procedures that adhered closely to contemporary law texts.

Besides providing an opportunity to assess the military justice system, digging through general courts-martial exposes the historian to material with which to further expand the literature on Civil War soldiers' lives. It takes little effort to discover eyebrow raising tales rarely associated with mid-19th century people. Those incidents do not smear the character of Civil War armies, but instead further humanize and bring closer the troops who served 140 years ago.

Samuel R. Cathey spent several summers as a ranger at Harpers Ferry. He writes from his pre-Civil War stone home near Hagerstown, Md.


Who's Being Punished?

Being sentenced to listen to a reading of the Articles of War was no laughing matter - for the listener or the reader. The Articles of War, approved by Congress in April 1806, were of no insignificant length, and consisted of 101 different articles, mostly specifying how soldiers should not behave, Article 35 provides a good example of the tenor of the material:

Art. 35. If any inferior officer or soldier shall think himself wronged by his captain or other officer he is to complain thereof to the commanding officer of the regiment, who is hereby required to summon a regimental court-martial for the sake of doing justice to the complainant; from which regimental court-marshal either party may, if he thinks himself still agrieved, appeal to a general court-marshal. But if, upon a second hearing, the appeal shall appear vexatious and groundless, the person so appealing shall be punished at the discretion of the sail court-martial.

Not very exciting, and an oration of the complete Articles of War could leave the victim with numb ears and the orator with a parched throat and heading to the sutlers to buy a drink - even if it was late in the evening.  Which, of course, was a violation of Article 29, "No sutler shall be permitted to sell any kind of liquors...after nine at night or before the beating of reveille...," and could lead to yet another punitive reading of the articles....


This article was taken from: Cathey, Samuel R.  “Disciplining the Yankee Volunteers.” (American’s Civil War, January 2004), 34-40. It is used with permission.

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