Courts Martial on the Trail

Drafting Guidelines at Camp Dubois

Records of the courts martial that took place after the expedition got under way were written in the Orderly Book. Otherwise, all we know of discipline problems at Camp Dubois is contained in the brief remarks in Clark’s journals concerning certain men’s drinking and fighting, and cryptic remarks such as “Collins–Blackgard,” or Whitehouse “wishes to return,” or Fraser “has don bad.” However, sometime that winter, probably in January, Clark drafted a sort of guideline statement about courts martial on the expedition, indicating that he and Lewis had already discussed their dilemma and had agreed on a basic course of action. Indeed, Lewis evidently had confided to Clark that his position as co-captain was “Calculated to authorise punishment to the soldiers if necessary.”^[1]Jackson, ed., Letters, 2:572. After all, the older officer had gained some experience along that line under General Anthony Wayne in Indiana Territory. With due regard for the Articles of War, they would proceed according to the circumstances inherent in their unique situation.

. . . the rules to be observed is Strictly such as Cap. L. & C shall from time establish, and a violiation or Disobediance shall be Subject to Such punishment as derected by the articles of War, in like Cases and Such other punishments, as Shall be inflicted by the Sentence of a Court Martial which Shall are to be formed in the following manner, Viz; one Intptr or Sergt. to act as president and at least 1 n Comd. officers & 5 privates members The Court to Consist of not less then 7 members, in Capital offenses and at other times when Convenient one of the Capts. will preside at the Court in that Case the Court will have an addition to their number of a presdt. who will have 2 votes (but in all Cases Capt L. & C doe reserve to themselves the right rudcing N C officers at will of inflicting such punishment as they may thing right agreeable to Law at any time which from the nature of the offence & the good of the Service require it) This Court will act agreeable to the rules and regulations of the Articles of War and Such others as may be established by the Said Cpt L. & C. from time to time.

On 3 March 1804 Lewis directed a withering 452-word reprimand aimed toward Reuben Field for refusing to mount guard; John Shields for exciting “disorder and faction among the party”; and Colter, Boley, Weiser and Robinson for going AWOL. The basic issue was their mutual defiance of orders relayed through Sergeant Ordway during the two captains’ temporary absence in St. Louis.^[2]In his journal Ordway noted that “nothing occcured worthy of notice this day.” Ordway was directed to read the order to the men on parade the following morning. Unfortunately, Lewis’s eloquence had little effect, for before the month was out the first court martial had to be ordered.

Courts of Record

March 29, 1804

The first court martial took place on 29 March 1804, when John Colter, Robert Frazer, and John Shields were called before the court. Discreetly, Clark committed no details of this one to his journal, and no record of it was entered in the Orderly Book. He merely remarked that (perhaps having expected trouble) he had loaded a “small pr Pistols,” and that he had “red the orders on Parade” that afternoon. Shields and Colter, he wrote, “asked the forgivness & . . . promised to doe better in future.”

May 17, 1804

On Thursday, 17 May 1804, Clark (Lewis was still in St. Louis) ordered a court martial convened on the quarter deck of the barge (called the ‘boat’ or ‘barge’ but never the ‘keelboat’), which was anchored 13 miles up the Missouri River opposite St. Charles. The jury, with Sergeant Ordway presiding, consisted of four enlisted men: Reuben Field, John Potts, Joseph Whitehouse, and Richard Windsor. “In behalf of the Capt.” they heard charges against Privates William Werner, Hugh Hall, and John Collins for being absent without leave the previous night, “it being a breach of the Rules and articles of war.” Werner and Hugh Hall pleaded guilty and were sentenced to 25 lashes apiece, but the sentence was suspended and they were recommended, “from their former Good conduct, to the mercy of the commanding officer.”

Collins was also charged with “behaveing in an unbecomeing manner at the Ball last night,” and for “Speaking in a language last night after his return tending to bring into disrespect the orders of the Commanding officer.” He pleaded guilty to the first charge but not guilty to the second and third. He was found “Guilty of all the charges alledged against him it being a breach of the rules & articles of War and do Sentence him to receive fifty lashes on his naked back– The Commanding officer approves of the proceedings & Desicon of the Court martial and orders that the punishment of John Collins take place this evening at Sun Set in the Presence of the Party.–”

June 29, 1804

At the mouth of the Kansas River, 29 June 1804, the captains called a court martial at 11 o’clock in the morning. Nathaniel Pryor presided; the jury consisted of John Colter, John Newman, Patrick Gass, and John Thompson. John Potts was named judge advocate. The apparently incorrigible John Collins was charged “with getting drunk on his post this morning out of whiskey put under his Charge as a Sentinal and for Suffering Hugh Hall to draw whiskey out of the Said Barrel intended for the party.” Collins pleaded not guilty, but the court disagreed, and sentenced him “to recive one hundred Lashes on his bear Back. Hall was charged with “takeing whiskey out of a Keg . . . Stored on the Bank (and under the Charge of the guard) Contrary to all order, fule, or regulation.” He pleaded guilty and was sentenced to fifty lashes. “The Commanding Officers approve of the Sentence of the Court and orders that the Punishment take place at half past three this evening, at which time the party will Parrade for inspection–”

According to the Articles, a judge advocate was supposed to be an officer; his duty was to supervise the prosecution, administer the necessary oaths, and prepare a written report to be forwarded to the Secretary of War.

July 12, 1804

On 12 July 1804 at Camp New Island, near today’s Rulo, Nebraska, a court martial consisting of the two commanding officers—one of them serving as judge advocate–convened at 1:00 p.m. for the trial of Alexander Willard, who was charged with “lying down and Sleeping on his post whilst a Sentinal.” It was a capital crime, “under the rules and articles of War punishable by death.” Although Willard pleaded guilty of lying down, but not guilty of sleeping, the court, “after Duly Considering the evidence aduced, are of oppinion that the Prisoner . . . is guilty of every part of the Charge exhibited against him. it being a breach of the rules and articles of War (as well as tending to the probable distruction . . . of the party) do Sentence him to receive One hundred lashes on his bear back, at four different times in equal propation.– and order that the punishment Commence this evening at Sunset, and Continue to be inflicted, (by the Guard) every evening untill Completed.” Dividing the flogging into four parts on four successive days was a common way of increasing the severity of the punishment.

August 18, 1804

No official record exists of the trial of Moses Reed on 18 August 1804, although Clark mentions it in his journal. On the night of the third, Reed had told the captains he had left his knife at the previous night’s campsite, and set out as if to retrieve it. It was a ruse, as the captains discovered on the 6th. Moreover La Liberté, one of the engagés, had apparently left with him. A four-man detail was dispatched to bring them back–Newman, dead or alive. La Liberté tricked the posse and got away, but Reed was at last returned to camp (near today’s Salix, Iowa) after a 12-day pursuit by a detail of 4 men the captains had dispatched to apprehend him. At his trial “in the after Part of the Day, . . . he Confessed that he “Deserted & Stold a public Rifle Shot-pouch Powder Bals and requested we would be as favourable with him as we Could consistantly with our Oathes–which we were and only Sentenced him to run the Gantlet four times through the Party & that each man with 9 Swichies Should punish him and for him not to be considered in future as one of the Party.” That the court “only” sentenced him to run the gauntlet four times was not really very “favourable.” Customarily, anyone who appeared to be holding back in delivering his blows could be ordered to run the guantlet himself. In this instance, if only the privates comprised the gauntlet, or “running-course,” Reed could have suffered a total of 828 strokes. Running the gauntlet was his punishment for stealing the rifle, shot-pouch, powder and bullets; dismissal from the Corps, and presumably the Army too, was the price he paid for desertion.

October 13, 1804

Obviously, Private John Newman’s service on a jury had left no impression on him. At high noon on 13 October 1804 the captains convened a court martial for the trial of Newman, charging him with “having uttered repeated expressions of a highly criminal and mutinous nature; the same having a tendency not only to distroy every principle of military discipline, but also to alienate the affections of the individuals composing this Detachment to their officers, and disaffect them to the service for which they have been so sacredly and solemnly engaged.” As was typical in most trials, the prisoner pleaded not guilty to the charges.

The court after having duly considered the evidence aduced, as well as the defense of the said prisonor, are unanimously of opinion that the prisonar John Newman is guilty of every part of the charge exhibited against him, and do sentence him under the articles of the [blank] Section of the agreeably to the rules and articles of war, to receive seventy five lashes on his bear back, and to be henceforth discarded from the perminent party engaged for North Western discovery; two thirds of the Court concurring in the sum and nature of the punishment awarded. the commanding officers approve and confirm the sentence of the court, and direct the punishment take place tomorrow between the hours of one and two P. M.– The commanding officers further direct that John Newman in future be attatched to the mess and crew of the red Perogue as a labouring hand on board the same, and that he be deprived of his arms and accoutrements, and not be permited the honor of mounting guard untill further orders; the commanding officers further direct that in lue of the guard duty from which Newman has been exempted by virtue of this order, that he shall be exposed to such drudgeries as they may think proper to direct from time to time with a view to the general relief of the detachment.

Despite Newman’s pleas for mercy, the captains refused to back down. Notice that they started to cite the Articles of War, then crossed it out without entering “Section II.” This may be interpreted as an indication that they did not have a copy of the Articles at hand to refresh their memories. Otherwise, they may have refrained from a specific citation because they had reservations about the strict legality of the trial.

February 10, 1805

One more trial completed the record of courts martial during the expedition, although it was not mentioned in the Orderly Book. At Fort Mandan on 10 February 1805, Private Thomas Howard was tried for climbing over the palisade instead instead of calling for the guard to open the gate (see guard duty regarding a guard’s responsibilities). That set a potentially dangerous example, for the Indian who accompanied him followed him over the wall. Lewis scolded and warned the Indian, and sent him away. Howard was tried and sentenced to fifty lashes, but on the court’s recommendation of mercy, the penalty was set aside.

The tally of seven courts martial in nine months was a low average in those days. The orderly books for the garrison at Fort Wayne, which consisted of about 70 men, recorded an average of at least one, and sometimes three, trials per week.^[3]Bert Joseph Griswold, “Fort Wayne, Gateway of the West, 1802-1813, Garrison Orderly Book, Indian Agency Account Book,” Indiana Historical Collections (Indianapolis: Historical Bureau of … Continue reading

Corporal Punishment

The thin rope “tails” symbolized a feline’s proverbial nine lives, derived from its ability to land on its feet after a fall, claws outspread. Once the guilty man was bound in position, hands above his head around a whipping post or tree, the sergeant of the guard “let the cat out of the bag” and began to claw at the man’s back with its blood-stained knots, ten per tail.

At the time of the American Revolution, the British Army’s limit on lashes was flexible—up to as many as 500, 1,000, or even 2,000 lashes.^[4]Maurer Maurer, “Military Justice Under Washington,” Military Affairs, Vol. 28 (1964-65), 11. The Massachusetts legislature, however, imposed the New Testament maximum of 39 strokes, and that standard was established in the Continental Congress’s Articles of War of 1775.^[5]II Corinthians, 11. 24: “five times received I forty stripes save [minus] one.”

George Washington was commissioned to develop a Continental Army, but at first he found himself in tenuous command of an unruly mob of colonists fiercely proud of their independence from authority, and determined not to yield it to anyone. Washington’s solution was to literally whip his army into shape; he encouraged Congress to raise the limit to 100 lashes, which they did in the 1776 update of the Articles of War. Out of his own frustration he tried to persuade the Congressmen to raise it to 500 strokes in 1781, but they declined. Nevertheless, courts martial managed to wring the maximum pain from the 100-stroke allowance by spreading out the process over a period of four successive days, as Lewis and Clark did in Alexander Willard’s case.

In the next revision of the Articles (1806) the limit was reduced to 50 lashes.^[6]Theodore J. Crackel, Mr. Jefferson’s Army: Political and Social Reform of the Military Establishment, 1801-1809 (New York: New York University Press, 1987), 43, 85. It was not a significant change, inasmuch as flogging had never really been very effective as a deterrent. On the contrary, as John Francis Hamtramck, commander at Fort Wayne, Indiana Territory, wrote to General Anthony Wayne in 1794: “The . . . allowance of one hundred lashes, allowed by government, does not appear a sufficient inducement for a rascal to act the part of an honest man.” The scars had become badges of macho stoicism and psuedo-heroic endurance.^[7]Letter of 5 December 1794, “The Letters of Col. John Francis Hamtramck,” Historical Collections: Collections and Researches Made by the Michigan Pioneer and Historical Society, 34:734. … Continue reading

Flogging was abolished in the Union Army in 1861, partly to encourage recruitment, and partly in response to persistent humanitarian objections from the general public.^[8]Russell F. Weigley, History of the United States Army (New York: Macmillan, 1967), 231. The British Army and Navy kept it up until 1881.

Running the Gauntlet

The other punishment Washington favored was “running the gauntlet.” British Army and Navy traditions had reserved this form for thieves. The offender was forced to run between two rows of men who struck him with ropes, clubs, switches, or bundles of switches. A subaltern or a sergeant would walk backwards in front of the prisoner with a sword—or an espontoon—pressed against the man’s belly to keep him from running, while forcing him forward with a rope tied to the man’s wrists. The word gauntlet is said to be a variant of the 18th-century Swedish gantlope, meaning “a running course.”