Crime and Punishment in the Legion, 1792-1793
by Richard C. Knopf
From: Historical & Philosophical Society of Ohio
Volume 15, 1956
From the time of the organization of the United States Army, September 29, 1789, military
discipline has been an issue of first-rate importance. Upon its enforcement has depended the
effective operation of the entire establishment. To the soldier, adherence to it may well mean the
difference between life and death on the battlefield. To the citenzry, strict discipline in the armed
forces means adequate defense and national safety.
When the American Revolution broke into full fury, leaders of the Continental Army realized the
need for a code of military organization and justice. As a result, the Continental Congress,
September 20, 1776, established the first " Rules and Articles of War" to govern the administration
of justice of the armed forces. For thirty years, until 1806, this was the basic law of the military
services. Amendments were few, and, with the exception of a law for the "Administration of
Justice," passed May 31, 1786, it remained virtually unchanged.
Of the eighteen sections and one hundred and two articles of the basic law of 1776, Section II,
dealing with fraudulent enlistment; Section VI, concerned with desertion; and Section XIII, dealing
with the wider variety of "crimes"; are the most important for our purposes of study, for these cover
the majority of cases brought before the court martials which sat at Pittsburgh (Fort LaFayette and
Legion Ville) and Cincinnati (Hobson's Choice and Fort Washington) in 1792-1793. One might, of
course, note that from 1776-1786, certain changes were made in the court martial organization and
procedure, but the basic idea that the court had almost full power of punishment remained and
remains today intact. The law did not go further than establishing a maximum punishment.
The time limits of this study are short, but the period is representative (in court martial materials) of
that in which Wayne operated as commander-in-chief of the army of the United States. Possibly the
only exception to this statement is the note that during the active campaign of 1794, very few court
martials were convened and very few cases reached them. The primary concern is with the type of
offense committed, the persons involved, and the disposition of the various cases.
In spite of the fact that a surprising number of "crimes" carried a possible penalty of death, it is
interesting to note that in all cases, including desertion, the individual court martial was empowered
to set the exact punishment. This was in accordance with the legal ideas of the times, in both civil
and military law. Life was cheap and the general philosophy of the law prevailed that a crime which
carried with it a possible death sentence would not often be committed. Actually, the reverse
proved to be true in many instances.
Ordinary felonies, such as petty theft, assault and battery, misbehavior, and plundering officially
carried the onus of the firing squad or hangman, but one must note that few courts, military or civil,
enforced the penalties to the extreme. As a matter of fact, in civil cases where the death penalty was
legally mandatory, persons of proved guilt were often acquitted because judges or juries would not
and could not bring themselves to impose the full measure of the established law. Eventually this
practice led to legal revision, but, at the time of the establishment of military law in the United States,
reform had not yet taken place.
The rules of justice which Anthony Wayne inherited when he assumed command of the Legion of
the United States, March 5, 1792, were, then, those which had been in effect for some twenty
years. They were not new to him, for they were almost in toto those which had governed the army
during the Revolution. As commander-in-chief of the army, he had the power to confirm, reject, or
lesson the sentences of his court martials. If the judgment was too mild, he made mention of it; if it
was too severe, he reduced the sentence or granted a pardon. That the court martials Wayne
appointed varied in their judgments as they varied in their personnel is evident from the decisions
handed down in specific cases. One offender might be shot for desertion; another might receive only
a week's extra duty for the same offense. That Wayne went along with such apparent
inconsistencies is evident in his confirmation of most of the sentences of his courts. The man who
faced the firing squad was exhibited as a horrible example of what might happen to the soldier who
deserted, and the entire army was required to be present at executions and floggings as a constant
reminder to the soldiers to tread the straight and narrow way.
The study here undertaken is but a general review of the types of offenses committed and the
punishment meted out in Wayne's army. From this the reader should not only gain a notion of the
operation of military law, but a view of the soldier who served, as well. Of the various offenses
judged in court martials, desertion was, by far, the most common. Of the one hundred and ninety
cases tried before forty-one different courts in the fourteen month period covered by this study,
eighty-four were concerned with desertion, almost 44%. Another sixteen were charged with
"intention to desert," which was regarded as an equally serious offense. Thus, categorically,
approximately 52% were so involved.
This might appear to be high by today's standards. It undoubtedly is. Several factors, however,
operated to produce this state of affairs. Under Josiah Harmar and Arthur St. Clair, Wayne's
predecessors as army commanders in the West, there is sufficient evidence to prove that the men
had not been subjected to the strict discipline which was brought to bear upon the soldiery by
Wayne. The new commander-in-chief was somewhat of a martinet. Both officers and enlisted men
chafed under his iron rule. The officers who were unreconciled to the new order could resign, but
the unfortunate enlisted men had to serve out their three-year enlistment terms before returning once
again to the life of free and private citizens. Many of Wayne's men failed to realize that, essentially,
the absence of this strict discipline and rigid training had been one of the major factors in the earlier
defeats of the army in the Northwest.
Also, many men were brought into the service through the wiles of a clever recruiter. A few dollars
spent wisely in a local grog shop by a recruiting officer produced drunkenness, but, at the same
time, garnered new men for their service. Once their intoxication wore off, it was too late. They had
signed their freedom away. Such duped individuals, it may be surmised, seldom were happy
soldiers, contented with their new mode of living. Pay, also, was a contributing factor to the general
discontent, and to the "crime" of desertion. Not only was it months behind, but small at that.
Monthly pay for sergeants was seven dollars; for corporals, five dollars; and for privates, three
dollars. Likewise the daily ration, when it was forthcoming, was far from enticing: one pound of flour
and one of beef.
Naturally poor and unsanitary living conditions, lack of real opportunity for advancement, and an
isolation from outside civilization also contributed to discontent, and, finally, to desertion. "Bad
Conduct," a general category including misdemeanors ranging from disrespect to mutiny, accounted
for forty-nine or over 26% of the cases brought before the court martials. Interestingly enough,
about half of these incidences were related directly to drunkenness, and, one might guess, that
"ungentlemanly behavior" was often the result of intoxication more often than figures would indicate.
Availability of "spirits" was an important factor in this category of bad conduct and inebriation. The
court martial records bear this out when one observes that most of the twenty-five cases of
drunkenness and full two-thirds of the incidents of bad behavior occurred when the army was in the
Pittsburgh area, then one of the most populous district west of the Alleghenies. Stricter enforcement
of soldiers' pass privileges and the much less developed area around Hobson's Choice camp
curtailed such activities, to the well-being and benefit of the soldiery.
Offenses committed by sentries, about 13%, were primarily sleeping on guard or leaving post
without proper authority. In some instances, mitigating circumstances gave some excuse for these
"criminal" acts. At times men known to be ill were put on guard duty: at other times, men served on
guard several days in a row without proper rest and thus became so fatigued as to fall asleep easily.
However, the practice of leaving one's post without official relief appears more often than not, to be
associated with drunkenness. Guard duty seems, at times, to have been an excuse for riotous
"frolic." Strangely enough, absence without official leave was relatively infrequent. Only thirteen
cases, or about 7%, are noted. Other instances recorded are stealing and fraudulent enlistment,
neither of much importance quantitatively, though theft generally received the most stringent of
punishments. Actually most cases, with the exception of desertion, were a combination of two or
more charges. As heretofore noted, drunkenness appears to have been a contributing factor, though
there is, at times, also evident, a relationship between AWOL and bad conduct of one kind or
another.
Punishment was harsh, immediate, and, considering the few repeaters, effective. Only six of one
hundred and ninety were second offenders (C. 3%). Two of these six were officers, one of whom
was cashiered. Penalties ran the gamut from reprimands to hanging or death by the firing squad. Of
the twenty-three kinds of sentences, by far the most frequent was flogging. One hundred lashes,
sometime with a wire rope whip, was the standard. This was really a savage business and many
were the men who bore the scars for life. A few hardier souls boasted of their ability to withstand
the beatings.
One in particular was a member of a "Damnation Club," an organization of "heroic" souls who
prided themselves on the number of lashes they had received as punishment for stealing whiskey.
He proudly displayed the scars on his back incurred from seven hundred lashes. A physician was
generally in attendance at these sessions to keep the offender from being killed by the whip.
If flogging was the most common, hanging and the firing squad were the most severe. Exactly 10%
of the cases heard in the period under study were sentenced to death, fifteen to be shot, four to be
hanged. Of these, four were pardoned, though it is interesting to note that Wayne usually waited a
few days after the sentence had been passed and confirmed to grant mercy. Such serious retribution
was usually reserved for repeated deserters, though thieves and extremely mutinous soldiers might
also suffer the same fate. At the time, flogging was not considered cruel and unusual. However,
while the Constitution of the United States prohibited such types of penalties, the army ignored the
dictum. Besides flagellation, branding and running the gauntlet were rather common. Yet, the most
striking example of this type of severe sentence was exhibited by a court martial on September 1,
1792 (Pittsburgh), when five deserters were punished, four to be shot by the fifth. Various other
forms of sentences were designed to embarrass the convict: reprimand, drumming out of camp,
wearing coats inside out, and having one's head shaved. One will observe that confinement was not
used as punishment. Men were too badly needed to be wasted in that manner.
Cursorily considered, it would appear that the justice meted out by the court martials of the Legion
of the United States, 1792-1793, was harsh and severe, perhaps even very unfair. However, a
closer view leads one to believe that, considering the type of men who served in the army and the
exigencies of the service itself, the punishments were generally just and equitable. Certainly they
were in line with the legal procedures of the time. Wayne's success in organizing and training his
army, not to mention his battlefield victories, all of which were dependent upon a well-disciplined
force, attest to the effectiveness of the disciplinary measures used. Wayne himself was volatile
emotionally, but there is no indication that he turned his feelings toward a stronger disciplinary
course. If anything, he was generous in his treatment of his men. As one studies the court martial
actions and Wayne's reactions to them, he is led to believe that the commander-in-chief valued the
man as an individual and that each convicted soldier received his thoughtful consideration before a
sentence was confirmed. Perhaps nowhere else is Wayne's sense of honor more apparent than in
these matters.