Military Subjects:  War of 1812


 

The War of 1812 Magazine

Issue 11: June 2009

Articles

 

"Every horror was committed with impunity . . . and not a man was punished!" Reflections on British Military Law and the Atrocities at Hampton in 1813

By Donald E. Graves

Introduction

During the War of 1812, the conduct of the regular soldiers of the British and American armies -- unlike their non-regular and aboriginal counterparts -- toward the civilian population of the two combatant nations was generally very good. [1] In contrast in Europe, particularly in the Iberian Peninsula where French soldiers committed the most appalling atrocities, the North American conflict almost "seemed to look to the past" in that it largely followed the concepts and practices of the eighteenth century. [2] Unfortunately, there were exceptions and the most notorious occurred during a raid on the village of Hampton, Virginia, in June 1813 when British soldiers committed murder, rape and robbery. I have written about the outrages at Hampton at length elsewhere and my object below is fivefold. [3] I would like to

1. Place these outrages in the broader context of the conduct of war in North America;

2. Ascertain what provisions existed in British military law to punish the offenders at Hampton;

3. Ascertain whether these outrages might have been prevented;

4. Investigate why the offenders were never punished; and

5. Ascertain who bears the responsibility.

The official correspondence between the American and British commanders involved in the Hampton incident was made part of an American congressional investigation created to collect "evidence of every departure by the enemy from the ordinary modes of conducting war among civilized nations. "[4] Therefore, a discussion of these "modes of conducting war" serves as a convenient starting place.

The "Laws of War" in the Early 19th Century

During the Napoleonic period there were no international agreements -- such as the modern Hague or Geneva Conventions -- concerning the waging of war, but there were certain widely-accepted "laws," "customs" or "principles" of armed conflict. These had evolved over the previous three centuries in an effort to mitigate the horrors attendant on war and were defined by one commentator on the subject:

. . . the civilized powers of Europe, animated by a desire of diminishing the horrors of war, now acknowledge certain violences which are as destructive to both parties as contrary to sound policy, as unlawful, though not entirely forbidden by the rigour of the law of nations. Hence, those customs which are at present called the laws of war.

>These laws, which are sanctioned by custom, and in some cases even by treaty, have been observed with greater punctuality since war has been carried on by the means of regular troops: nor does any civilized nation now think itself justifiable in departing from them, except the enemy sets the example, or except an urgent necessity, arising from extraordinary circumstance, admits of exceptions authorized by reasons of war. [5]

These "laws" were based, partly on traditional usage and partly on the concept of "natural law" (the theory that there exists a law derived from nature that has worldwide validity and is superior to the laws enacted by nation states), and were generally observed by most civilized nations in the early 19th century, particularly Britain and the United States. Perhaps the most extensive codification of these "laws" at the time of the War of 1812 was found in The Law of Nations by the Swiss jurist, Emmerich de Vattel (1714-1767). First published in 1758, Vattel's work was widely read throughout the English-speaking world, going through five editions in Britain and three in the United States prior to 1812. [6] Thus, two of the major period treatises on the laws of war available in the English language agree in concept that civilians ought to be treated humanely. [7]

Given the accepted authority of Vattel's work, it is relevant to note what he has to say about the treatment of civilians during military operations:

Women, children, feeble old men, and sick persons, come under the description of enemies . . . and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretensions affect the body of society, together with all its members . . . . . . But these are enemies who make no resistance; and consequently we have no right to maltreat their persons, or use any violence against them, much less to take away their lives . . . . . .

This is so plain a maxim of justice and humanity, that at present every nation, in the least civilized, acquiesces in it. If sometimes the furious and ungovernable soldier carries his brutality so far as to violate female chastity, or to massacre women, children, and old men, the officers lament those excesses: they exert their utmost efforts to put a stop to them; and a prudent and humane general even punishes them whenever he can. [8]Overall, Vattel believes that all damage "done to the enemy unnecessarily, every act of hostility which does not tend to procure victory and bring the war to a conclusion, is a licentiousness condemned by the law of nature. "[9]       

Vattel's beliefs were echoed by another commentator on international relations, Georg Friedrich von Martens (1756-1821), whose 1789 work, Compendium of the Law of Nations, also enjoyed great popularity in the English-speaking world. In Martens's opinion:

From the moment we are at war, all those who belong to the hostile state become our enemies, and we have a right to act against them as such; but our right to wound and kill being founded on self-defence, or on the resistance opposed to us, we can, with justification wound or take the life of none except those who take an active part in the war.

So that, 1. children, old men, women, and in general all those who cannot carry arms, or who ought not to do it, are safe under the protection of the law of nations, unless they have exercised violence against the enemy. 2. Retainers of the army, whose profession is not to kill or directly injure the enemy, such as chaplains, surgeons, and, to a certain degree, drummers, fifers, trumpeters, &c ought not to be killed or wounded deliberately. . . . . . . [10]

The Treatment of Civilians by Armies during the War of 1812

The principle that the lives and property of unoffending civilians should be respected was fairly strictly observed by the American and British armies during the War of 1812 -- with some exceptions to be discussed later. Certainly, this principle is evident in the proclamations and orders issued by American and British commanders between 1812 and 1814. Thus, Major-General Isaac Brock, having accepted the surrender of the Michigan Territory in August 1812, proclaimed that not only would civilians and private property be protected but that local American law would continue in effect while the territory was under British occupation. [11] In August 1814, Colonel Edward Nicolls promised the people of Louisiana that if British troops operated in the state, they would not only protect women, children and property but also that Louisianans should have "no fear of litigious taxes" being imposed on upon them. [12] When Lieutenant-General Sir George Prevost, the commander-in-chief of British North America, invaded northern New York in September 1814, one of his first steps was to issue a proclamation stating that

The commander of His Britannic majesty's forces that have entered the state of New York, makes known to its peaceable and unoffending inhabitants that they have no cause for alarm from this invasion of their country, for the safety of themselves and families, or for the security of their property. He explicitly assures them, that as long as they continue to demean themselves peaceably, they shall be protected in the quiet possession of their homes and permitted freely to pursue their usual occupations. . . . . . .

The quiet and unoffending inhabitants, not found in arms or otherways not aiding in hostilities, shall meet with kind usage and generous treatment; and all just complaints against any of his majesty's subjects, offering violence to them, to their families, or to their possessions, shall be immediately redressed. . . . . . .

The magistrates and other civil authorities, who maintain the faithful discharge of the duties of their respective stations, shall continue to exercise their ordinary jurisdiction, for the punishment and apprehension of crimes, and the support of good order, shall not fail to receive countenance and protection. [13]

That same month, the terms of the capitulation of Washington County, Maine, to a British invading force included assurances that, during its occupation, American civilians would "have the safe and full enjoyment" of their "private Property and be protected" during the exercise of their "usual occupations. "[14]

American senior officers were no less concerned about the proper treatment of civilians. Shortly after invading Upper Canada in July 1812, Brigadier-General William Hull assured Canadians that his troops would protect their "persons, property and rights. "[15] Prior to landing at York, Upper Canada, in April 1813, Brigadier-General Zebulon M. Pike issued an order to his brigade informing them that civilian property "must be held sacred, and any soldier who shall so far neglect the honour of his profession as to be guilty of plundering the inhabitants shall, if convicted, be punished with death. "[16] Major-General James Wilkinson, before invading Canada in November 1813, assured Canadians that, if they remained "quiet at home," they would "be protected in their persons and property" -- and followed this with a General Order to his own troops threatening punishment by death for perpetrators of criminal acts toward enemy civilians, including acts of rapine, plunder or marauding. [17] Perhaps the best example of the attitude of regular officers of both sides toward civilians was the General Order issued by Major-General Jacob Brown to his division, the day before it invaded Canada in July 1814. Brown left no uncertainty as to how civilians were to be treated:

Upon entering Canada, the laws of war will govern -- men found in arms, or otherwise engaged in

the service of the enemy, will be treated as enemies; those behaving peaceably, and following their private occupations, will be treated as friends. Private property in all cases will be held sacred; public property, wherever found, will be seized and disposed of by the commanding general. . . . . . .

Plundering is prohibited. . . . . . . Any plunderer shall be punished with death, who may be found violating this order. [18]

Note that Brown's opinion of the prevailing "laws of war" regarding enemy civilians echoes Vattel's belief that invading armies should not "maltreat their persons" or "use any violence against them" if they do not engage in hostilities.

Of course, this is not to say that American or Canadian civilians were not maltreated by regular troops during the conflict. When British and Canadian troops captured Ogdensburg, NY, in February 1813, considerable looting took place although eyewitnesses state that much of it was done by Canadian civilians who crossed the frozen St. Lawrence to plunder. [19] It is a fact that there was widespread looting by the American force that occupied York in April 1813 and, despite Wilkinson's promises to Canadians and the warning he issued to his own men, there was looting by American troops on the Canadian side of the border during their progress down the St. Lawrence in late 1813. [20] Worse still, some of Wilkinson's men robbed and raped the pregnant wife of the Church of England primate of Upper Canada, the Reverend John Strachan, at Cornwall in November of that year. [21] British seamen and marines did occasionally rob American civilians during the raids conducted by Rear-Admiral Sir George Cockburn, RN, (still a much-detested figure in American historiography of the war) on the Atlantic coast of the republic in 1813-1814 although Cockburn clearly sought to follow Vattel's stricture to do no unnecessary damage to property nor unnecessarily harm civilians. [22] The point is that these acts were committed by individuals and when the culprits were apprehended, punishment was usually sure and swift. For example, Vice-Admiral Alexander Cochrane, RN, commanding the British fleet in North America, responded to the plunder of an American civilian at Benedict, Maryland, by having the perpetrator flogged "in the presence of the Inhabitant whose House they robbed. "[23] When a British soldier raped and murdered an American woman at Eastport in late 1815, he was tried by court martial, found guilty and sentenced to be hanged but committed suicide before his execution. [24]

Exceptions to the Correct Behaviour of Regular Troops during the War of 1812

Disregarding such individual acts, there were four major exceptions to the generally correct behaviour of regular troops toward civilians during the War of 1812. One is the punitive campaign waged by British troops on the American side of the Niagara during the winter of 1813-1814 which was carried out in retaliation for the actions of Brigadier-General George McClure of the New York militia, commanding in the American-occupied area of the Canadian side. In December 1813, McClure ordered the Canadian town of Newark to be burned to the ground, turning several hundred civilians out into the winter snow. McClure had orders from Secretary of War John Armstrong to destroy Newark if necessary to the defence of nearby Fort George, but, after carrying out its destruction, he abandoned the fort and withdrew his force to the American side of the Niagara River. [25] McClure's conduct deeply embarrassed the United States federal government and an infuriated Secretary of War Armstrong was forced to order Major-General James Wilkinson, the senior officer on the northern frontier, to publicly disavow it to the British government. [26] McClure, it should be noted, was not a regular officer nor were his troops regulars, but their actions were to lead to a heavy price being paid by American civilians.

British Lieutenant-General Gordon Drummond, commanding in Upper Canada, deciding that "retributive justice demanded" a "speedy retaliation," waged a two-week razing of the New York side of the Niagara which led to the burning of almost every building along 35 miles of frontier. [27] Drummond issued orders that any soldier who left the ranks to plunder during this operation would be "shot on the spot," and the discipline of his regulars seems to have been generally good although he did report that "several acts of violence" were committed by the aboriginal warriors who accompanied the British forces. [28] This punitive campaign would seem to be contrary to Vattel's belief that "every act of hostility" not necessary to gain victory and bring the war to a conclusion, is "a licentiousness condemned by the law of nature. "[29] Vattel does admit that it is sometime necessary in war to carry out reprisals if "an enemy who violates the laws of war is to be checked," but cautions that this retaliation should not "fall on innocent victims. "[30] This was clearly not the case in the Niagara, but Sir George Prevost, the senior British officer in North America, justified the retribution in a proclamation issued in January 1814. While conceding that retaliating against civilians was a "departure from the established usages of war," he blamed the United States for initiating this type of warfare and insisted that "all the awful and unhappy consequences which have hitherto flowed and are likely to result from it" were the responsibility of the republic it. [31] As Prevost saw it, the crux of the matter was the McClure's burning of Newark:

It will be hardly credited by those who shall hereafter read it in the page of history, that in the enlightened era of the 19th century and in the inclemency of a Canadian winter, the troops of a nation calling itself civilized and Christian, had wantonly and without the shadow of a pretext forced 400 helpless women and children to quite their dwellings and to be mournful spectators of the conflagration and total destruction of all that belonged to them. . . . . . .

His Excellency would have ill considered the honor of his country and the justice due of His Majesty's injured and insulted subjects, had he permitted an act of such needless cruelty to pass unpunished, or had he failed to visit, whenever the opportunity arrived, upon the inhabitants of the neighbouring American frontier the calamities thus inflicted upon those of our own. [32]

Prevost stated he had therefore taken a "full measure" of retaliation but promised not to further pursue "a system of warfare so revolting to his own feelings and so little congenial to the British character unless the future measures of the enemy should compel him to resort to it. "

The United States government, having publicly disavowed the destruction of Newark, did not engage in counter-retaliation, but an individual American officer did respond in kind. In May 1814 the USN squadron on Lake Erie landed a mixed force of regulars and militia under the command of Brevet Colonel John B. Campbell of the 11th Infantry near Long Point on the Canadian side of the lake. Campbell ordered his men not only to burn flour and saw mills, and distilleries -- legitimate targets of war -- but also the nearby village of Dover, despite the protests of his naval counterpart, Captain Arthur Sinclair, USN. [33] As Campbell explained to Secretary Armstrong, he had been informed that some of the residents of Dover had taken part in the recent British punitive campaign on the Niagara and therefore determined "to make them feel the effects of that conduct, they had pursued towards others"[34] When a demand came from the British commander in Upper Canada as to whether the destruction of Dover was authorized by the United States government, Campbell replied that what had been done "proceeded from my orders, the whole business was planned by myself & executed upon my own responsibility. "[35] In reality, Campbell had no orders to destroy Dover and, at Armstrong's direction, he was suspended from duty pending a court of inquiry into the matter. [36] The court, chaired by Brigadier-General Winfield Scott, concluded that, while the burning of mills and distilleries was justified by "the laws and usages of war," Campbell had erred in destroying the village and could

derive no justification from the fact, that the owners of these houses were actively opposed to the American interests in the present war, or from other facts, that some of them were at the conflagration of Buffalo. In their partizan services it does not appear to the court, that the inhabitants of Dover have done more than their proper allegiance required of them. [37]

Furthermore, it was the court's belief that:

Acts of retaliation, on the part of a nation proud of its rights, and conscious of the power of enforcing them, should, in the opinion of the court, be reluctantly resorted to, and only by instructions from the highest in authority. That no such instructions were given in the case under consideration, is not merely inferred from the absence of evidence to that effect, but is candidly admitted by colonel Campbell in his official report (which is in evidence) where in he express states -- "This expedition was undertaken by me without orders, and upon my own responsibility. "[38]

Having placed the blame squarely on Campbell's shoulders, the court lessened it somewhat by stating they were "fully aware of the strong incentives to a just indignation which must have been present to his mind at the time of this visit to Dover," -- incentives that included the so-called River Raisin "massacre" of early 1813 and the British actions on the Niagara during the previous winter. The court felt these events must have "aroused" Campbell's "feelings and have swayed his judgement," and added that he should be praised for "his kind and amiable treatment of the women and children of Dover, abandoned by their natural protectors. " Having received this verbal slap on the wrist, Campbell was restored to duty and shortly thereafter promoted. [39]

Another American officer was less fortunate. On 18 July 1814, New York militia under the command of Colonel Isaac W. Stone, part of Major-General Jacob Brown's Left Division, burned the Canadian village of St Davids. Although Stone protested that he gave no orders for this act and was not even in the vicinity when it occurred, this did not satisfy Brown, whose orders on the inviolability of the property of enemy civilians have been quoted above. Stone was a militia officer, as were the men under his command, but Brown determined to make an example of him and dismissed Stone from his division. As Stone complained to New York Governor Daniel D. Tompkins, this disciplinary measure was done "without notice, without inquiry, or any investigation to my knowledge" and, in fact, the first Stone knew of it was when he was handed a copy of the following General Order:

Queenston, 19 July 1814

The accountability for burning the houses at St. Davids must rest with the senior officer. It was directly contrary to the orders of the Government and those of the Commanding General published to the army.

Lieut. -Colonel Stone will retire from the army.

By order of Major-General Brown. [40]

The British devastation of the Niagara during the winter of 1813-1814 and the American burning of Dover and St. Davids were three major exceptions to the generally proper conduct of regular troops toward civilians during the war. The British action, however, was taken in direct retaliation for an American act and was limited in both time and scope while the American actions were investigated by superior authority and the offenders disciplined. Unfortunately, this was not the case with the fourth exception -- the outrages at Hampton -- which constituted the worst case of the mistreatment of civilians by regular troops during the War of 1812.

Worst Case: Hampton, 1813[41]

The perpetrators of the crimes at Hampton were soldiers of the 1st and 2nd Independent Companies of Foreigners. Recruited from French deserters and prisoners of war, with officers taken from the same source, these two companies had been raised to serve in colonial garrisons, releasing regular units for more important tasks. The 1st Company was dispatched to Bermuda early in 1813 and soon acquired a reputation for indiscipline and insubordination, one of its men being court-martialled and executed for mutiny. The 2nd Company arrived at Bermuda in May 1813 almost at the same time as Colonel Thomas S. Beckwith, who had orders to take troops from the Bermuda garrison and raid the American Atlantic coast "to effect a diversion . . . in favour of Upper and Lower Canada, which the American government have declared it to be their intention to wrest from His Majesty. "[42]

On arrival at Bermuda, Beckwith organized his command into two small brigades, placing one of the Independent Companies in each formation. Having been able to observe the state of discipline in both companies, Beckwith had serious doubts about using these units on active operations. Noting that, if the Frenchmen believed that they would have to serve in either Bermuda or the West Indies, "not a man of them, who may be landed on the Continent of America will ever re-embark," Beckwith suggested the companies be sent to Canada after the forthcoming operations in the Chesapeake had ended. [43] To encourage them in this belief, he decided to call the Foreigners the "Canadian Chasseurs" in his official correspondence. [44] One of Beckwith's brigade commanders, Lieutenant-Colonel Charles Napier of the 102nd Foot, shared his doubts about the Foreigners, describing them as "dubious" troops who would "evaporate" if they were landed on American soil. [45]

It was therefore not a very happy force that set sail from Bermuda on 8 June 1813 with the primary objective of destroying the American frigate, USS Constellation, blockaded at Norfolk, Virginia. To get to Norfolk the British had to go up the Elizabeth River and that meant capturing the American defences at Craney Island situated at the mouth of that waterway. On 22 June Beckwith and Admiral Sir John Borlase Warren, the senior naval officer, mounted what seems to have been a singularly inept attack on Craney Island which was beaten off without much trouble by the defenders. [46] During the attack, several boats containing members of the Independent Foreigners grounded near the island, well within range of its batteries, and it was the belief of British onlookers that the Americans waded out into the shallows and deliberately slaughtered the men who were helpless in these craft. This belief was buttressed by the casualty figures of the Independent Companies which had no less than 41 men missing, most of which were presumed to have died in the boats at the hands of the enemy. In fact, many of the missing Frenchmen were either prisoners or had deserted once ashore.

Rebuffed at Craney Island, Warren and Beckwith then chose the coastal village of Hampton as their next target and sailed for that place. While on passage, Beckwith re-organized his forces, placing both the Independent Companies of Foreigners in Napier's brigade. On 25 June, while Warren's sailors distracted the defenders of Hampton with a bombardment by Congreve rockets, Beckwith's troops landed two miles west of the town and had little problem in brushing aside a force of Virginia militia which withdrew after a short fight. Beckwith then established his headquarters in Hampton proper while Napier's brigade was positioned north and west of it, partially fronting the road to Yorktown, along which an American counter-attack was likely to come. As they were nominally light infantry, the two Independent Companies were placed on outpost duty and were not under Napier's direct supervision.

This was unfortunate as, almost as soon as the shooting had ended, most of the Independent Foreigners left their positions, some to desert and others to plunder or worse. The evidence is somewhat sketchy but it appears that, in the course of a 24-hour period, they killed at least one and perhaps a second American prisoner in cold blood, murdered an elderly man, wounded his wife and another older man, and sexually assaulted between five and seven American women besides robbing several civilian residences. There was never much doubt that the Independent Companies were responsible for these crimes as they spoke French and were dressed in green uniforms unlike the rest of Beckwith's troops who were clad in the more normal red or blue, and thus witnesses were able to easily identify them. Most of the crimes took place in and around isolated farmhouses outside Hampton and neither Beckwith nor Napier personally witnessed them but on learning of their behaviour, the British commander ordered the two companies re-embarked on the fleet on the following morning of 26 June. While ashore, many of the Foreigners, including one officer, had taken the opportunity to desert.

The British remained in possession of Hampton until early on 27 June. The first American soldiers to re-enter the village, a small force of Virginia militia cavalry, did so during the afternoon of that day and were immediately confronted with evidence of the Foreigners' crimes. When Brigadier-General Robert Taylor of the Virginia militia, commanding at Norfolk, learned of them, he appointed two respectable local citizens, Thomas Griffin and Robert Lively, to investigate and report. He also sent his aide, Captain John Myers, out to Warren's flagship on 29 June with a letter to that officer informing him of the outrages and urging that the admiral punish those guilty. If he did not, Taylor added, and the crimes were "passed over with impunity" the world "will suppose those acts to have been approved, if not excited" by British officers, [47] Warren passed Myers along to Beckwith who, while not entirely denying what had taken place, stated that the "excesses" were

occasioned by a proceeding of so extraordinary a nature that if I had not been an eye-witness, I could not have credited it. At the recent attempt on Craney Island, the troops in a barge sunk by the fire of your guns, clung to the wreck of the boat. Several Americans, I assure you most solemnly, waded off from the island, and, in presence of all engaged, fired upon and shot these poor fellows. With a feeling natural to such a proceeding, the men of that corps [i.e. the Independent Companies] landed at Hampton. [48]

When Taylor learned of this, he convened a board of inquiry to investigate the matter and, on 1 July, sent Myers back to Beckwith with a letter informing him of this fact and thanking the British commander for the "frankness" with which he had admitted the "excesses" that had recently taken place. [49] But, Taylor reasonably asked, if the crimes had been caused by the wrongdoing of American soldiers at Craney Island, why was the retaliation inflicted on "innocent and helpless" civilians and not against armed troops? "Worthless is the laurel steeped in female tears," Taylor chided Beckwith "and joyless the conquests which have inflicted needless woe on the peaceful and unresisting. "[50] Myers had a second interview with Beckwith and it is clear from his report that Beckwith was thoroughly embarrassed by the matter. In Myers's words:

I found that it was not his [Beckwith's] intention to give to your dispatch a written reply. By the light manner in which he glanced at the subject of your investigation [into the Craney Island incident], I could perceive that it was pressed further than was desirable to him. It was my wish, however, to be able to report to you the probability of a like course of inquiry on his part, and I enumerated the catalogue of abuses and violence at Hampton. [51]

Beckwith admitted that some crimes had been committed and that he knew who the culprits were, as he informed Myers that the Independent Foreigners had been re-embarked

with a determination that they should not land [again] and that, while, he was unable to control a past event, the responsibility of the recurrence should rest on himself; that the troops under his command were strangers to him, on his arrival here, and appealing to my knowledge of the war in Spain, in which these men (meaning the French corps) he said had been trained, told me that they could not be restrained. [52]

Beckwith concluded by stating that he was sending the Independent Foreigners away from the Chesapeake theatre and, this being the case, cheerily advised Myers that he "hoped the subject was at an end. "

It most certainly was not. On 3 July, the American board of inquiry reported on the allegations of wrongdoing at Craney Island. Its conclusion was that the British accusations were groundless, that the defenders of the island had not been firing at the men in the grounded boat but over their heads at craft behind which were moving freely. Furthermore, the defenders who had approached the grounded boats had not done so to kill the occupants at close range but to assist them to shore. There has been a tendency on the part of some British and Canadian historians to reject these findings simply because they are American in origin but the simple fact is that if the defenders of Craney Island had engaged in the slaughter of helpless men, the British casualty figures for the action would have been much higher than they were, which was 3 killed, 16 wounded and 62 missing from all services. [53] As noted above, many of the missing were from the Independent Companies and most were actually deserters. [54]

Captain Myers was soon back on his way to the British fleet with another letter from Taylor to Beckwith. It contained the report of the board of inquiry and Taylor's expressions of confidence that the British commander, for his part, would carry out a comparable investigation of the crimes at Hampton so that his subordinates would be aware of "the abhorrence you feel for such acts, and be restrained, by the fear of your indignations from similar outrages. "[55] If Beckwith neglected to take measures to punish those guilty of "admitted excesses," Taylor cautioned him, the "impunity of the past will be construed, by your troops, into an encouragement of future outrages. " This time, Myers did not see the British commander in person but, after waiting some time, was handed a brief note from Beckwith to Taylor, acknowledging his "polite communications" and expressing his wish that any future "infringement of the established usages of war will instantly be noticed and punished. "[56]

Beckwith had no doubt about the guilt of the Independent Companies. As he  reported to London, the Americans had "Grounds for their Outcry against the cruelties committed by those French Scoundrels" and "repeated circumstances have transpired since" to prove that the men of the two companies had intended to desert "in a Body to the Enemy," murdering any of their officers who "interfer'd, or endeavoured to check their horrid proceedings. "[57] He informed Warren that, since the two companies continued to be insubordinate and mutinous, he was "impressed with the Conviction" that they could no longer be employed, and advised that they be sent away from the fleet. [58] Warren needed no urging to get such incorrigible men out of his command and transported the Foreigners to Halifax, where they were stationed until September 1813 at which time they were returned to Britain and later disbanded. Thus, no attempt was ever made to apprehend and punish the men of the Independent Foreigners responsible for the criminal acts at Hampton.

The failure of Beckwith and his senior subordinate, Lieutenant-Colonel Charles Napier, to undertake any disciplinary act at Hampton is all the more puzzling as both men were veterans of the Duke of Wellington's Peninsular army. Beckwith had commanded the 1st Battalion of the 95th Rifles before being promoted to a brigade commander, while Napier had been a major with the 50th Foot. Thus, both officers would have been very familiar not only with Wellington's strict orders regarding the proper treatment of civilians but also with the procedures used to punish men who disobeyed those orders. To understand their failure, it is necessary to examine period British military law, in so far as it concerned behaviour toward civilians.

British Military Law and the Treatment of Civilians in the Napoleonic Period

In 1813 the discipline of the British army was governed by two documents -- the Articles of War and the Mutiny Act. The Articles of War were prerogative, which is to say they were drafted by royal authority (actually the Commander-in-Chief of the army, who was the Duke of York in that year), while the Mutiny Act was statutory in that it was debated and assented to by parliament. If there was a conflict between the provisions of the two documents, the Mutiny Act prevailed in England and Scotland (but not Ireland), while the Articles of War prevailed in British territory overseas. Although the Articles and the Act covered such matters as enlistment and billeting, they also had the object of maintaining discipline among both officers and enlisted men -- as well as other persons (e.g. sutlers and camp followers) who were regarded as being subject to military law -- and prescribed the offenses which were punishable and provided for legal procedures to try and punish offenders. Prior to 1803, the Articles and the Act only had validity within the "King's Dominions," but in that year parliament extended this power to any place where British troops served. At this point, the Articles of War were given a statutory basis in the Mutiny Act and became subordinate to it. [59]

British soldiers were very familiar with the Articles of War. No magistrate would certify that a recruit was legally enlisted unless the man had been read those articles that prescribed death for the crimes of desertion, mutiny or gross insubordination. [60] Once soldiers were in service, the Articles were read to them on a regular basis as regulations stipulated that they had to be read to the troops as well as any General Orders relating to discipline and behaviour:

The Articles of War are to be read once in every Two Months to the Officers and Men (agreeable to His Majesty's Orders therein expressed), in presence of the Commanding Officer [of a regiment]; the Officers are to be at the head of their respective Troops or Companies: The strictest Silence is to be kept, and that respectful Attention given, which is due to the Declaration of Orders proceeding immediately from His Majesty. In like manner, whatever parts of the present or future General Orders are meant to regulate the Conduct of the Officers and Men, are to be read and carefully explained to them, at least, once in every Two Months. The obedience of this Order is to be regularly certified by the Commanding Officer. [61]

Offenders against the Articles or the Act were punished by courts martial. According to the gravity of the offence and the power of the officer who convened them, there were three distinct levels of courts martial. At the bottom was the Regimental Court Martial, comprised of five officers from the same regiment, which could be convened by a regimental commander for infractions within his unit. A Regimental Court Martial did not have the power to inflict the death penalty and, after 1807, its ability to inflict corporal punishment was limited to 300 lashes. [62] The second type was a Garrison Court Martial which, as its name applies, was used in places where large numbers of soldiers were stationed. Convened by the garrison commander, it was comprised of five officers who could be from different regiments; it could not inflict the death penalty but could inflict up to 999 lashes (which might well accomplish the same purpose). The highest level was the General Court Martial, which could only be convened by a general officer or a senior officer of his choice. A General Court Martial consisted of between five and thirteen officers, depending on where it was held. The General Court Martial could inflict a sentence of death or a maximum of 1,200 lashes, and, in peacetime, its sentences were usually reviewed by higher authority, often King George III himself. In 1807, an act of parliament granted the authority for any officer having command of troops "beyond the seas" (in other words, outside British territory), to convene General Courts Martial. [63]

As the treatment of civilians, including enemy civilians is our interest here, it should be noted that, in regard to General Courts Martial, the Articles of War current in 1813 provided that

in any Place beyond the Seas, where Our Forces now are or may be employed, where there is no Form of Our Civil Judicature in Force, the General, Governor, or other Officer commanding in Chief for the Time being, is to appoint General Courts‑martial as Occasion may require, for the Trial of any such Persons under his Command, accused of wilful Murder, Theft, Robbery, Rape, Coining or Clipping the Coin of Great Britain, or any Foreign Coin current in the Garrison or Place under his Command, or of having used Violence against the Persons or Property of any of our Subjects, or of any others entitled to Our Protection: And the Persons so accused, if found guilty, shall suffer Death, or such other Punishment, according to the Nature and Degree of their respective Offenses, as by the Sentence of any such General Court‑martial shall be awarded. [64]

These strictures were backed up by the Regulations and Orders for the Army which made it clear that

Plundering and Marauding, at all times highly disgraceful to Soldiers, under the circumstance in which the Army would take the field . . . will become Crimes of such Enormity, as to admit of no remission of the awful Punishment [i.e. execution], which the Military Law awards against Offenses of this nature. The Provost-Marshal, in making his Rounds, will be commanded to execute it immediately, and in its greatest rigour, against all such as are detected in the fact. . . . . . .

All Officers in the Command of Guards or Detachments, are enjoined to give Assistance to the Provost-Marshal in the execution of his Duty; and any Officer or Soldier impeding him in the same, or offering him any insult, will receive the most exemplary Punishment. [65]

All courts martial followed rules of procedure and evidence (and evidence could only be given in person) and could be fairly lengthy processes as military necessity meant that witnesses might not be available or the procedure might be interupted for other reasons. They also tended to more lenient than the Duke of Wellington thought was proper. That this was the source of much frustration to him is evident in the journal of Francis Larpent, his judge-advocate:

[Frenada, 7 February 1813]

There never were known so many Courts-martial in this army as at the present moment, and as I have the whole direction of them all, I really scarcely know where to turn, and my fingers are quite fatigued, as well as my brains, with the arrangements and difficulties as to witnesses, &c. I sent out seventeen letters yesterday, and to-day I have one case of thirteen prisoners who have been committing every sort of outrage on the their march here. [66]

[Frenada, 12 February 1813]

We arrived at Guinaldo in two hours, finished a case and tried a man for shooting a Portuguese, acquitted him of murder but found him guilty of very disorderly conduct, and sentenced him to receive eight hundred lashes. . . . . . . [67]

The Courts [Martial] will not do their duty: Lord Wellington was quite angry. He swore, and said that his whole table was covered with details of robbery and mutiny, and complaints from all quarters, in all languages, and that should be nothing but a General of Courts-martial. [68]

[Frenada, 6 March 1813]

Lord Wellington gets angry about the Courts-martial, the difficulty as to getting witnesses, the inconvenience, and then at last the great lenity of the Courts. "How can you expect," he remarked to me, "a Court to find an officer guilty of neglect of duty, when it is composed of member who are all more or less guilty of the same?" He does not like the tribunal [the General Court Martial]. We have, however, hung six men within this month, broken several officers (at least their cases are gone home with that sentence), and flogged about sixteen or eighteen (pretty well, this), and we are still at work. I have now twenty-two cases left on hand, about thirty-six tried, about two or three new cases every week. [69]

At one point, apparently at Wellington's request, the government proposed amending the Mutiny Act to permit written evidence to be introduced at the court martial of any soldier who committed "acts of plunder and violence on the properties and persons" of foreign civilians, but this measure was never made law. [70] As a result, formal courts martial were not as useful during active military operations when offenders who had committed serious crimes had to be punished swiftly.

For such situations, however, there was another procedure in the British army, popularly known as a "drum head court martial. " In essence, this was summary punishment in which an officer took those measures he deemed necessary, including capital punishment, to serve as a deterrent. As one commentator defined it, this procedure was intended to punish enlisted men for an "offence that requires an immediate example," often for plundering or otherwise harming civilians. [71] At one time summary punishment was included in the Articles of War but had been removed in the early 18th century as no "law of civil society could otherwise endure it. "[72] Nonetheless, it was not infrequently resorted to -- but only in wartime it must be stressed and always "for the punishment of some offence that requires an immediate example. "[73] It was often used to deter plundering or marauding against civilians and a good example occurred in April 1794, when the Duke of York, commanding in Holland, received a report from one his generals that two soldiers, while attempting to rob the house of a Dutchwoman, had murdered her and gravely wounded her child. York's response was swift and severe:

His Royal Highness feels himself called upon, by every tie of justice, of humanity, and duty, to punish, by a signal act of severity, the perpetrators of so horrid a fact. Under this impression, he did not hesitate to order the Provost to proceed to the spot, and, by the instant execution of the offenders, to put a stop to conduct, of which too many instances have occurred lately to leave His Royal Highness any doubt of the necessity of an immediate and vigorous interposition.

The two men were executed this morning at the head of their brigade. [74]

Note that York did not convene a court martial before sentencing these men to death, and the only evidence he considered before ordering their execution was a statement by one of his senior officers. Summary punishment was used during the retreat of Sir John Moore's army in Spain during the winter of 1808, when there were serious incidents of indiscipline. Moore had one soldier, caught in the act of plundering Spanish civilians, shot on the spot for this offence. [75]

Wellington resorted to summary punishment in the Peninsular between 1808 and 1814 for serious offenses, particularly against civilians. He went to great lengths to protect the Portuguese and Spanish people as he knew that British success depended on their good will. But such was the frequency of offenses against them by his soldiers, that he was forced to complain in June 1809 that "there is not an outrage of any description, which has not been committed on a people who have uniformly received us as friends, by soldiers who never yet, for one moment, suffered the slightest want, or the smallest privation. "[76] In June 1812 he issued a General Order stressing to all officers that it was their duty "to prevent the Soldiers from plundering" and called "upon them to perform it. "[77] That same year, however, he bemoaned the fact that nearly every dispatch that came across his desk contained "an account of some outrage committed by a British soldier on the inhabitants. "[78]

Maintaining discipline and order was the responsibility of all officers but it was the particular province of provost-marshals who were usually junior officers with the temporary rank of captain who were assisted by a varying number of assistant provost-marshals who were senior NCOs. All provosts were mounted and were often assisted in their duties by small detachments of cavalry attached to them. Information on the number of provosts in Wellington's Peninsular army is somewhat scarce but informed conjecture is that there was one provost-marshal at army headquarters and at the headquarters of the seven divisions in the army, each provost-marshal having six to seven assistant provosts. [79] Their duties and powers were defined by Wellington in a General Order issued in November 1811:

The office of Provost-Marshal has existed in all British Armies in the field. His particular duties are, to take charge of the prisoners confined for offenses of a general description; to preserve good order and discipline; to prevent breaches of both by the Soldiers and followers of the Army, by his presence at those places in which breaches of either are likely to be committed; and, if necessary, he has, by constant usage in all Armies, the power to punish those whom he may find in the act of committing breaches of Orders and discipline.

The authority of the Provost-Marshal to punish, must be limited by the necessity of the case; and whatever may be the crime of which a Soldier may be guilty, the Provost-Marshal has not the power of inflicting summary punishment for it, unless he should see him in the act of committing it. If he should not see the Soldier in the act of committing the offence of which he may have been guilty, a Report must be made to the Commander-in-Chief of the Army, who would give such Orders upon the case as might be deemed expedient, either for further inquiry, for the trial of the Soldiers, or for the infliction of summary punishment, according to the nature of the case, the degree of evidence of the Soldier's guilt, and the existing necessity for an immediate example. [80]

Although Wellington generally limited his provosts' use of summary punishment, unless they caught offenders in the act (which was surprisingly common), they had authority to use it "for the sake of example, and in which the prevalent and continual commission of the particular crime may be injurious to the Public Service. "[81] As he informed the government:

By the custom of British Armies, the Provost has been in the habit of punishing on the spot (even with death, under the orders of the Commander-in-Chief) Soldiers found in the act of disobedience of orders, of plunder, or of outrage. There is no authority for this practice except custom, which I conceive would hardly warrant it; and yet I declare that I do not know in what manner the Army is to be commanded at all, unless the practice is not only continued, but an additional number of Provosts appointed. [82]

As an example, in October 1810 three rather stupid (and possibly drunk) soldiers were caught red handed plundering the inhabitants of Leyria, the town where Wellington just happened to have his headquarters. The result, as announced in a General Order, was summary punishment:

The Commander of the Forces is concerned to have been under the necessity of carrying into execution the determination which he has long announced, of directing the immediate execution of any soldiers caught plundering. Two soldiers, a British and a Portuguese, have been hanged this day for plundering in the town of Leyria, where they were contrary to order and for this criminal purpose. . . . . . . The troops may depend upon it, that no instance of the kind will be passed over. [83]

Aware that summary punishment had no formal legal basis, Wellington queried Lord Castlereagh, the Secretary of War and the Colonies in 1809, whether the "authority and duties of the Provost" resorting to it should, "in some manner to be recognized the law. "[84] Castlereagh discussed the matter with the senior law officers of the Crown (the Attorney-General, Solicitor-General and Judge-Advocate) as well as the commander-in-chief of the army, General David Dundas. Not surprisingly, Dundas favoured the use of summary punishment, particularly for marauding, and noted it had been used by all senior commanders in the present war "who felt it necessary to the discipline of their Army. "[85] Furthermore, Dundas had "no conception that any Army, more particularly a British one, can go on without it. " The law officers were somewhat less confident and Castlereagh shared their reservations, explaining to Wellington some of the legal issues involved:

There is no doubt that such a practice [summary punishment] always has existed, and has never been questioned when exercised to repress gross breaches of discipline in the progress of a campaign; but as this extraordinary remedy is supposed to arise out of and to be alone justified by the necessity of the case, it does not appear that the mode and circumstances under which it is to be exercised have ever been defined with any precision. It is that extreme remedy which never can be made the subject of enactment, and will, therefore, probably always remain to be measured by the conscientious sense of its necessity operating at the moment on the judgement of the Officer who authorizes it; and I know of no other protection he has for such exercise of authority than precedent, and the disposition all reasonable men would feel to support him, were it questioned.

As far as I can recollect any principle, it seems to be most clearly justifiable, when inflicted instanter on the commission of the offence, and the proofs are of a nature to place the guilt of the party beyond all doubt. Where time has intervened, and the offenders been committed to custody, where the guilt is to be collected from the evidence rather than from the view, there the intervention of a court-martial seems the preferable course. [86]

Since Wellington's object was to give his provosts legal protection, this was not quite the answer he wanted. In 1813, however, the British parliament did, pass legislation that gave formal recognition and legal status to this long-standing custom of the army. First, a statute was enacted to extend the provisions of the Mutiny Act to "Spain and Portugal, and all other parts of Europe where His Majesty's Forces may be serving, and to all other Places," thus reinforcing the earlier provision made in 1803. [87] Then, the Mutiny Act was amended to create the "Detachment General Court Martial," which had the same powers as a General Court Martial and which was to be used and was given the power to punish the perpetrators of "Crimes or Offence committed against the person or property of any inhabitant or resident in such Country by any person serving with or belonging to the Army in the Field. "[88] The Detachment General Court Martial was to consist of not less than three officers who could pronounce such penalties as were provided in the Article of War or Mutiny Act, including death, and whose power "rested solely upon the Prerogative of the Crown and the customs and usages of the Service as then understood in the Army. " This was the true "Drum Head Court Martial" and was to receive that designation in the Mutiny Act of 1830. [89]

Unfortunately, despite Wellington's repeated threats to order the "immediate execution of any Soldiers caught plundering" or otherwise harming civilians, British soldiers committed many such offenses between 1808 and 1814. [90] Most of them were tried and convicted by General Courts Martial and the verdicts were contained in the General Orders read out to the troops. A few examples will suffice to illustrate this point:

General Order, Vizeu, 28th February 1810

At a General Court-Martial, held at Vizeu, 22d February, 1810, were arraigned Privates C. McGuire, 3d Battalion, 27th Regiment, and G. Chalmers, 1st Battalion, 88th Regiment, "for stopping on the highway, and forcibly robbing, some Portuguese inhabitants . . . on or about the 20th of February 1810. " Plea --"Not Guilty. "

The Court having maturely and deliberately weighed the evidence, &c. &c. are of opinion, that they (the Prisoners) are guilty of the charges preferred against them, being in breach of the Articles of War; and do, by virtue thereof, sentence them . . . to be "hanged by the neck till dead" at such time and place as his Excellency the Commander of the Forces may deem fit. . . . . . . [91] 

General Order, Portalegre, 27th July, 1811

At a General Court-Martial held at Campo Mayor, 9th July, 1811, Privates, James Royston, D. O'Harran, and P. Heines of the 57th Regiment, were convicted of robbing the house of a Portuguese inhabitant, and sentenced to be hanged. Sentence confirmed. . . . . . . [92]

General Order, Frenada, 19 February, 1813

At a General Court-Martial, held at Coria, on the 18th February, 1813, was arraigned, Thomas Purcell, John Jordan, John Larkin, and Thomas Andrews, of the 1st Battalion, 28th Regiment, on the following charges, viz. --

"For being absent from Quarters, after hours, in search of plunder, taking with them their firelocks, and burglariously entering a house near Coria . . . and therein threatening the lives of the inhabitants, and with force and violence robbing them of money, wearing apparel, provisions, and other property, in breach of the Articles of War. "

The Court having maturely weighed the evidence, is of the opinion, that they are Guilty . . . and does therefore sentence them, to be hanged by their necks until they are dead. . . . . .

The Commander of the Forces trusts, that this example will have the effect of deterring other Soldiers from committing similar outrages: and that they will all be convinced of what has frequently been made known to them, in the General Orders of the Army, viz. , that they cannot commit a crime of this description, without being discovered. . . [93]

Wellington was just as strict when it came to enemy civilians. In 1813, when his army crossed into France, he reminded them in a General Order that

the inhabitants should be well treated; and that private property must be respected as it has been hitherto.

The Officers and soldiers of the army must recollect that their nations are at war with France solely because the Ruler of the French nation will not allow them to be at peace; and is desirous of forcing them to submit to his yoke: and they must not forget that the worst of the evils suffered by the enemy, in his profligate invasion of Spain and Portugal, have been occasioned by the irregularities of the soldiers, and their cruelties, authorised and encouraged by their chiefs, towards the unfortunate and peaceful inhabitants of the country.

To revenge this conduct on the peaceable inhabitants of France, would be unmanly and unworthy of the nations to whom the Commander of the Forces now addresses himself; and, at all events, would be the occasion of similar and worse evils to the army at large than those which the enemy's army have suffered in the Peninsula, and would eventually prove highly injurious to the public interests. [94]

He meant what he said. A few months later, when British soldiers robbed French civilians and their officers "took no pains whatever to prevent them," Wellington immediately dismissed these officers from his army as he was "determined not to command Officers who will not obey his orders. "[95]

Wellington's efforts to maintain discipline in his army ultimately paid benefits. He later recalled that, after six years in command of that force, he felt that

I could have gone anywhere and done anything with that Army. It was impossible to have a machine more highly mounted and in better order, and in a better state of discipline than that Army was. When I quitted the Army upon the Garonne [in 1814], I do not think it was possible to see anything in a higher state of discipline; and I believe there was a total discontinuance of all punishment. [96]

Assessing Responsibility for the Outrages at Hampton

Let us recross the Atlantic to Hampton. Since both Beckwith and Napier were "graduates," as it were, of the Peninsular army and familiar with the maintenance of discipline in that force, the question is: why they did not utilize these same methods in North America? Certainly Napier felt Beckwith "ought to have hanged several villains at little Hampton; had he so done, the Americans would not have complained: but every horror was committed with impunity, rape, murder, pillage: and not a man was punished!"[97] As the commander of the brigade in which the Independent Companies of Foreigners were serving, however, Napier bears more than a small measure of responsibility. Since he regarded the Frenchmen as "dubious" soldiers and knew that many had deserted at Craney Island, why did he not take additional precautions at Hampton. Instead, Napier placed the Independent Companies on outpost duty, and thus not under his personal supervision, giving them an opportunity not only to murder, rape and rob but also desert. Napier's excuse seems to be that he could not go forward to their position because he was too busy trying to restrain his own regiment, the 102nd Foot, from joining in the plundering. This may well have been so, but he could at least have sent a senior British officer to directly supervise the Independent Companies as their own officers seem to have been incompetent. Napier later commented that he "wished to shoot some" of the Frenchmen who "murdered without an object but the pleasure of murdering" but "had no opportunity," evidently because they were transferred out of his brigade and re-embarked on the fleet. [98]

While Charles Napier is not without some measure of blame, the greater responsibility must lie with Thomas S. Beckwith, who was senior officer. His correspondence reveals that Beckwith had been aware of the shortcomings of the Foreigners nearly three months before the incidents at Hampton and had resolved to "keep a careful eye" on them. This being the case, one questions why Beckwith even landed the two companies on American soil and, still worse, since so many had deserted during the earlier attack on Craney Island, why he decided to risk using them again at Hampton. [99] Well before Hampton, Beckwith had been forewarned that the Foreigners were likely to get out of hand, but he took no particular precautions to make sure that they did not do so -- in fact, he did nothing. When his American counterpart, Brigadier-General Robert Taylor, officially remonstrated about their behaviour, Beckwith responded that the Frenchman were taking revenge for the "slaughter" at Craney Island. As Taylor rightfully pointed out -- if this was true, why had the Independent Companies wreaked their vengeance on harmless men and women, and not on American soldiers? Beckwith did not have any credible answer for this highly relevant question or for the findings of Taylor's board of inquiry into the matter and was clearly embarrassed that the American commander had gone to such lengths to discredit his excuse. In connection with this, it is interesting to note that Napier, who kept a journal throughout the 1813 operations in the Chesapeake, makes no mention of the "slaughter" at Craney Island. [100]              

As we have seen in the discussion of military law and discipline in the Peninsular army, Beckwith had a number of options available to punish the offenders. Although he had the power to administer summary punishment, it was probably not appropriate as the Foreigners were not caught in the act. But Beckwith did not even have their packs searched for stolen goods. According to one authority on British military law, the discovery of stolen goods in a man's pack was evidence sufficient to justify the use of summary punishment. [101]

He could, however, have convened a General Court Martial or a Detachment General Court Martial. Since the British force was in possession of Hampton for two days and it was quite evident which unit had committed the outrages, it might not have been difficult to get male American witnesses to testify. Given the sensibilities of the day, the female victims of the Foreigner's assaults would have been much more reluctant but some American men did witness the sexual assaults and might have made a good case against the perpetrators. [102] A General Court Martial could have passed a sentence of capital punishment although its verdict would have required approval by a superior officer, probably Lieutenant-General Sir John Coape Sherbrooke at Halifax, and this would have taken time. Beckwith's best option, in the sense of providing quick punishment and a deterrent for the future, would have been to convene a Detachment General Court Martial, one military judicial level up from summary punishment, which could pass a death sentence, and the findings of which did not require review by higher authority. Beckwith had the power (being the senior army officer), the time (two days on shore) and the means to apprehend and punish (by convening either a Detachment General Court Martial or a General Court Martial) the guilty parties at Hampton. But he took no such action and, still worse, transferred the Independent Companies out of his command, a classic bureaucratic solution, allowing them to escape punishment.

In Charles Napier's opinion, Beckwith was "a very clever fellow, but a very odd fish" who did not like carrying out the coastal raids "and run sulky. "[103] Charles's brother, William, characterized Beckwith as "being by nature very humane; morbidly so, for he would not punish to save" and, indeed, for this reason he had been a popular battalion commander in the 95th Rifles. [104] Unfortunately, what worked with a first class unit like the 95th failed to work with the wretched Independent Foreigners. Not only did Beckwith not make the slightest effort to punish them, but he went so far as to excuse their behaviour to his opponents by claiming that they had been "trained" or brutalized by their service in Napoleon's army in Spain and that he was unable to "restrain" them. [105] This is an astonishing confession from an officer who had nearly two decades of service and was a distinguished veteran of Wellington's army. Moreover, given the discussion of the "laws of war" and British military law above, Beckwith's excuse is unacceptable, and it is hardly surprising the Americans would have none of it. As the two commissioners appointed to investigate the outrages noted, the "apology that these atrocities were committed by the French soldiers attached to the British forces . . . appeared to us no justification of those who employed them, believing, as we do, that an officer is, or should be, ever responsible for the conduct of the troops under his command. "[106]

And that is precisely the point. Although he knew beforehand that the Independent Companies were likely to get out of hand, Beckwith did not exercise proper control over these wretched soldiers who committed a series of crimes against unoffending civilians. Furthermore, he failed to take all the necessary measures in his power to apprehend, court martial and punish the offenders. Although at least one ingenious author has suggested otherwise, there really is no excuse for what happened at Hampton in June 1813 and, despite his distinguished record before and after this incident, Colonel Thomas Sydney Beckwith failed in his duties as an officer and must be regarded as the man most responsible for the outrages. [107]

Acknowledgements

The author wishes to acknowledge the assistance given to him in the preparation of this article by Robert Burnham, Guy Dempsey, John R. Grodzinski, Professor Donald Hickey, Ron McGuigan, Howie Muir and Rory Muir.

Notes:

[1]. Unfortunately, the same cannot be said of their non-regular and aboriginal counterparts but it is the conduct of regular troops that concern us here.

[2]. Robin Farbel, "The Laws of War in the 1812 Conflict," American Studies, vol 14, (1980), no. 2, 199-218, 218. For an example of the terrible behaviour of the French army in Spain, consider the atrocity that took place at Porto de Mos in February 1811 when French soldiers herded the men, women and children of that place into the village church and burned them alive, see Donald E. Graves, Fix Bayonets! A Royal Welch Fusilier at War, 1796-1815 Montreal: Robin Brass Studio, 2006, 160.

[3]. Donald E. Graves, "'Worthless is the Laurel Steeped in Female Tears;' An Investigation into the Outrages Committed by British Troops at Hampton, Virginia, in 1813," Journal of the War of 1812 (Winter, 2002), p. 4-23. This study goes into great detail on the actual events of the Hampton incident but provides much less information about the British military law under which the perpetrators could have been punished. I am correcting that omission in the present article.

[4]. American State Papers: Military Affairs (hereafter ASPMA). Washington, 1832, Vol 1, 340.

[5]. Georg Friedrich von Martens, A Compendium of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe, translated by William Cobbett, London, 1802, 286-287. The emphasis is in the original.

[6]. The dates of the British editions of Vattel were 1759, 1787, 1792, 1793 and 1811 while  those of the American editions were 1787, 1796 and 1805.

[7]. Indeed, Vattel's popularity in the United States prior to the War of 1812 has led one historian to comment that any American "who had reason to consult a code of international law" during that conflict would probably have turned to The Law of Nations. See Farbel, Laws of War in the 1812 Conflict, 201.

[8]. Emmerich de Vattel, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns. London, 1797, 351-352.

[9]. Vattel, Law of Nations, 369.

[10]. Martens, Compendium of the Law, 289-290.

[11]. Proclamation, 16 August 1812, in A.C. Casselman, ed. , Richardson's War of 1812. With Notes and a Life of the Author Toronto: Historical Publishing Co. , 1974, 69.

[12]. Proclamation, 29 August 1814 in John Brannan, ed. , Official Letters of the Military and Naval Officers of the United States during the War with Great Britain. Washington, 1823, 407-408.

[13]. Proclamation, 2 September 1814, in Niles Weekly Register, Vol 7, 44-45, 1 October 1814.

[14]. Library and Archives of Canada (hereafter LAC), Record Group 8 I, vol 685, 276, Capitulation of the County of Washington, 13 September 1814.

[15]. Proclamation, 12 July 1812, in F.B. Tupper, ed. , The Life and Correspondence of Major-General Sir Isaac Brock, K.B. Guernsey, 1847, 207-209.

[16]. Brigade Order, 25 April 1813, in E.A. Cruikshank, ed. , Documentary History of the Campaigns on the Niagara in 1812-1814, vol 5, 162-163.

[17]. Historical Society of Pennsylvania, Philadelphia, Robert Carr Diary, General Order, 4 November 1813.

[18]. General Order, 2 July 1814, in Brannan, ed. , Official Letters, 346.

[19]. Dianne L. Graves, In the Midst of Alarms: The Untold Story of Women and the War of 1812, Montreal: Robin Brass Studio, 2007, 291-292.

[20]. See Robert Malcomson, Capital in Flames. The American Attack on York, 1813. Montreal: Robin Brass Studio, 2007, 247-250, for looting at York and Donald E. Graves, Field of Glory: The Battle of Crysler's Farm, 1813. Toronto: Robin Brass Studio, 1999, 242, 251, for looting on the St. Lawrence.

[21]. D.L. Graves, In the Midst of Alarms, 365-366.

[22].  Farbel, "Laws  of War," 209.

[23]. Memorandum, Vice-Admiral Cochrane to Captains, 25 August 1814, contained in Michael J. Crawford, ed. , The Naval War of 1812. A Documentary History. Volume III, 1814-1815. Washington: US Naval Historical Centre, 2002, 230-231.

[24]. D.L. Graves, In the Midst of Alarms, 364.

[25]. The background of McClure's tenure of command on the Canadian side of the Niagara River and the destruction of Newark in December 1810 is discussed in Donald E. Graves, "Joseph Willcocks and the Canadian Volunteers: An Account of Political Disaffection in Upper Canada during the War of 1812," Unpublished MA thesis, Carleton University, 1982, 52-71.

[26]. United Stations National Archives (hereafter USNA), Record Group 107, Micro 6, Armstrong to Wilkinson, 6 January 1814.

[27]. Proceedings and Reports of the Loyal and Patriotic Society of Upper Canada. York, 1815, 391.        

[28]. LAC, Colonial Office 42, vol 341, 211, District General Order, Chippawa, 28 December 1813; and Record Group 8 I, vol 681, 265, Drummond to Prevost, 20 December 1813. It appears that these warriors murdered at least two civilians, one of them a woman, see D.L. Graves, In the Midst of Alarms, 279-282.

[29]. Vattel, Law of Nations, 369.

[30]. Vattel, Law of Nations, 349.

[31]. Proclamation, 12 January 1814, contained in E.A. Cruikshank, Documentary History of the Campaigns on the Niagara in 1812-1814, Vol 9, Welland: n.d. , 112-116.

[32]. Proclamation, 12 January 1814, contained in E.A. Cruikshank, Documentary History of the Campaigns on the Niagara in 1812-1814, Vol 9, Wellland, n.d. 112-116.

[33]. USNA, Record Group 45, Micro 125, reel 36, Sinclair to Jones, 19 May 1814.

[34]. USNA, RG 107, Micro 221, Campbell to Armstrong, 18 May 1814.

[35]. Buffalo and Erie County Historical Society, Buffalo, Riall Letter Book, Campbell to Riall, 16 June 1814.

[36]. USNA, Record Group 107, Micro 6, reel 7, Armstrong to Brown, 2 June 1814.

[37]. New York State Library, Albany, Left Division Order Book, General Order, 30 June 1814.

[38]. As discussed in the text, in his reply to the British demand to know whether the destruction of Dover had been authorized, Campbell had stated that it had "proceeded from his orders," but, in his official report to the secretary of war, produced as evidence before the court, he stated quite clearly that the expedition to Dover "was undertaken by me without orders and upon my own responsibility," see USNA, Record Group 107, Micro 221, Reel 51, Campbell to Armstrong, 18 May 1814.

[39]. Campbell was given the permanent rank of colonel, see Francis B. Heitman, compiler, Historical Register and Dictionary of the United States Army Volume 1. Washington, 1902, 296. A few weeks after his court of inquiry, he was mortally wounded at the battle of Chippawa, 5 July 1814.

[40]. Stone to Tompkins, 25 July 1814, enclosing the General Order of 19 July 1814, in E.A. Cruikshank, ed. , The Documentary History of the Campaign on the Niagara Frontier in 1814. Welland, n.d, Vol 1, 74.

[41]. Unless otherwise noted, my brief summary of the raid on Hampton is based on my article, "Worthless is the Laurel;" and J.M. Hitsman and A. Sorby, "Independent Foreigners or Canadian Chasseurs," Military Affairs, 25, no. 1 (Spring 1961), 11-17; and A.J. Nicolls, "'Desperate Banditti?' The Independent Companies of Foreigners, 1812-1814," Journal of the Society for Army Historical Research, 79 (Winter 2001), 278-294.

[42]. Bathurst to Beckwith, 20 March 1813, in W.F. Dudley, ed. , The Naval War of 1812. A Documentary History. Volume 2 Washington: US Naval Historical Centre, 1998, 325.

[43]. LAC, Colonial Office 42, vol 153, Beckwith to Bathurst, 3 June 1813.

[44]. LAC, Colonial Office 42, vol 153, Beckwith to Bathurst, 3 June 1813. He began to call them the Canadian Chasseurs, which caused confusion among historians for nearly 150 years after the Hampton incident, confusion that was only ended when two Canadian historians ascertained the correct name of the unit, see Hitsman and Sorby, "Independent Foreigners or Canadian Chasseurs. "

[45]. William Napier, ed. , Life and Opinions of Sir Charles James Napier 4 vols, London, 1857, vol 1, 212. In the text, the word "duberous" appears instead of "dubious" and many authors quote it as printed but as there is no such word in either the English or French languages, this is clearly a typographical error and "dubious" is what was intended.

[46]. The most detailed account of the attack on Craney Island is Geoffrey M. Footner, "The Battle of Craney Island, Virginia, June 22, 1813: A Reassessment," Journal of the War of 1812, vol 8 (Spring 2002), 3-10.

[47]. ASPMA, vol 1, 375, Taylor to Warren, 28 June 1814.

[48]. ASPMA, vol 1, 376, Myers to Taylor, 2 July 1813.

[49]. ASPMA, vol 1, 376, Taylor to Beckwith, 1 July 1813.

[50]. ASPMA, vol 1, 376, Taylor to Beckwith, 1 July 1813.

[51]. ASPMA, vol 1, 377, Myers to Taylor, 2 July 1813.

[52]. ASPMA, vol 1, 377, Myers to Taylor, 2 July 1813.

[53]. Nicolls, "Desperate Banditti," 289.

[54]. National Archives of Britain, Admiralty 1, vol 503, 743 and 758, cited in Nichols, "Desperate Banditti," 282n. The Independent Companies suffered one officer wounded, and 45 missing, most of whom had probably deserted.

[55]. ASPMA, vol 1, 376, Taylor to Beckwith, 1 July 1813.

[56]. ASPMA, vol 1, 376, Taylor to Beckwith, 1 July 1813.

[57]. LAC, Colonial Office 42, vol 154, Beckwith to Bathurst, 23 July 1813.

[58]. National Archives of Britain, Admiralty 1, vol 504, Beckwith to Warren, 5 July 1813.

[59]. The relevant act was 43 Geo III, c. 20. This brief overview of the foundation of British military law is based on Charles M. Clode, The Administration of Justice under Military and Martial Law, London, 1874; Ridley McLean, "An Historical Sketch of Military Law, "Journal of the American Institute of Criminal Law and Criminology, vol 8, no 1, (May 1917), 27-32; D.P. O'Connell, "The Nature of British Military Law," Military Law Review, vol 19 (1963), 141-148; and D.A. Schlueter, "The Court-Martial: An Historical Survey," Military Law Review, 87 (1980), 129

[60]. 47 Geo. III, c. 32, An Act for punishing Mutiny and Desertion; and for the better Payment of the Army and their Quarters, assented 23 March 1807. See also William Hough, The Practice of Courts-Martial, and other Military Courts . . . London, 1834, 47-48.

[61]. Regulations and Orders for the Army . . . 12th August 1811 London, 1811, 98-99. The question of language does not come into it as the Articles were available in French as there were other French-speaking units in the British army.

[62]. Instruction from the Duke of York, 1807, cited in Henry Marshall, Military Miscellany London, 1846, 165. It appears that in 1807, York suggested to regimental commanders that corporal punishment not exceed 300 lashes but that, in a confidential circular letter to commanding officers dated 25 Marcy 1812, he ordered that, "on no pretence, whatever, shall the award of a regimental court martial hereafter exceed three hundred lashes. " See Confidential Circular, 25 March 1812, contained in evidence of General Roland Hill in Report from His Majesty's Commissioners for Inquiring into the System of Military Punishments in the Army . . . , London, 1836, 309.

[63]. 47 Geo III, c. 31. On military law and courts martial in the British army during the Napoleonic period, see: Clode, Administration of Justice under Military and Martial Law, 56-59; Charles James, A New and Enlarged Military Dictionary in French and English. 2 vols, London, 1805, Vol 1, article "Courts martial;" and Alexander Tytler, An Essay on Military Law and the Practice of Courts Martial London, 1815, 4-12.

[64]. Rules and Articles for the Better Government of All His Majesty's Forces London, 1807, 81-82.

[65]. Regulations for the Army, 1811, 123-124.

[66]. Francis S. Larpent, The Private Journal of Judge-Advocate Larpent, Attached to the Head-Quarters of Lord Wellington during the Peninsular War, from 1812 to its Close Staplehurst: Spellmount, 3rd edition, 1854, reprinted 2000, 52.

[67]. Larpent, Journal, 55.

[68]. Larpent, Journal, 63.

[69]. Larpent, Journal, 69.

[70]. Bathurst to Wellington, 24 February 1813 and enclosure in Arthur Wellington, ed. , Supplementary Despatches, Correspondence, and Memoranda of Field Marshal Arthur Duke of Wellington, K.G. 11 vols, London, 1858-1864, vol 7, 559.

[71].  William Hough, The Practice of Courts-Martial, also the Legal Exposition and Military Explanation of the Mutiny Act and Articles of War. London, 1825, 381.

[72]. David Scott, The Military Law of England, (With all the Principal Authorities) Adapted to the General Use of the Army London, 1810, 57.

[73].  Scott, Military Law, 56.

[74]. General Order, St. Amand, 10 April 1794, contained in Charles Clode, Military Forces of the Crown 2 vols, London, 1869, vol 2, 665.

[75]. Charles Oman, A History of the Peninsular War. 7 vols, Oxford, 1902-1930, vol 1, 567.

[76]. Wellington to Castlereagh, 17 June 1809, in J. Gurwood, compiler, The Dispatches of Field Marshal the Duke of Wellington during his various Campaigns (hereafter GWD) 12 vols, London, 1834-1838, vol 4, 37.

[77]. General Order, 10 June 1812, in The Principles of War, Exhibited in the Practice of the Camp; and as developed in A Series of General Orders of Field-Marshal the Duke of Wellington London, 1815, 70-71,

[78]. Wellington to Bathurst, 10 February 1813, GWD, vol 10, 106. John Fortescue, in his A History of the British Army, vol 7 London, 1912, 423, suggests that the misconduct of British soldiers in the Peninsula, despite Wellington's disciplinary measures, was owing to the fact that liquor was freely available and there "an eternal craving for the means to procure wine, which was satisfied by every description of robbery, plunder and intimidation, and when sated was frequently followed by the wanton violence and brutality of the drunkard."

[79]. There is almost no information in Wellington's dispatches and general orders concerning the number and names of provosts personnel. Nearly four decades later, he stated that he had one provost-marshal and seven assistant provost-marshals, see Wellington to Lady Salisbury, 21 September 1850 in , 107-110, in Baroness Burghclere (W.A. Gardiner), ed. , A Great Man's Friendship . . . London, 1927, 107-110. This, however does not seem to be enough for an army that had a strength of about 50,000 troops by 1813 and it may be that Wellington was thinking only of his own headquarters and a similar provost staff was present at each of the seven divisions of that army which would give a total of 64, 8 provost-marshals and 56 assistant provost-marshals. On the other hand, he may have appointed a provost-marshal for the army with an assistant provost-marshal for each division, with additional personnel assigned to these officers as necessary. The subject of the discipline and the enforcement of discipline in the Peninsular army is a very fit one for full investigation.

[80]. General Order, 1 November 1811, in Principles of War, Exhibited in the Practice of the Camp, 288-290.

[81]. General Order, 1 November 1811, in Principles of War, Exhibited in the Practice of the Camp, 288-290,

[82]. Wellington to Castlereagh, 17 June 1809, quoted in Clode, Military Forces of the Crown, vol 2, 662-663.

[83]. General Order, Leyria, 3 October 1810, in John Gurwood, compiler, The General Orders of Field Marshal The Duke of Wellington, K.G. . . . 1809 to 1814 (hereafter WGO) London, 1832, 213.

[84]. Wellington to Castlereagh, 17 June 1809, quoted in Clode, Military Forces of the Crown, vol 2, 662-663.

[85]. Castlereagh to Wellesley, 17 July 1809, in Clode, Military Forces of the Crown, vol 2, 663-664. .

[86]. Castlereagh to Wellesley, 17 July 1809, in Clode, Military Forces of the Crown, vol 2, 663-664. Emphasis in the original.

[87].  53 Geo III, c. 17.

[88].  53 Geo III, c.99.

[89]. Clode, Administration of Justice under Military and Martial Law, 218n.

[90]. General Order, 3 October 1810, WGO, 213.

[91]. General Order, 28 February 1810, Principles of War, 302.

[92]. General Order, 27 July 1811, Principles of War, 314.

[93]. General Order, 19 February 1813, Principles of War, 331.

[94]. General Order, Irureta, 9 July 1813, WGO, 110.

[95]. General Order, Lezaca, 8 October 1813, WGO, 111.

[96]. Testimony of Wellington before the Parliamentary Inquiry on Military Punishments, 29 February 1836, Report from His Majesty's Commissioners for Inquiring into the System of Military Punishments in the Army . . . , 327.

[97]. Napier, Life and Opinions, vol 1, 221.

[98]. Napier to sister, n.d. [c. July 1814], in Napier, Life and Opinions, vol 1, 224.

[99]. LAC, Colonial Office 42, vol 153, Beckwith to Goulbourn, 31 March 1813.

[100]. And more to the point, the casualty figures quoted above for the attack on Craney Island reveal that only 3 soldiers were killed during the action, which suggests that the "slaughter" never took place.

[101]. William Blackstone, Commentaries on the Laws of England (4 vols, 1765-1769), vol 4, 307, quoted in Hough, Practice of Courts-Martial, also the Legal Exposition, 382n. Blackstone uses the term mainour, meaning "in the hand" as "With the mainour, that is, with the thing stolen upon him in mainu" but Hough implies that if stolen goods are found in the soldier's possession, either in his hands or in his belongings, this is sufficient evidence enough for summary punishment to be inflicted.

[102]. Indeed, one American woman wrote of the female victims of the Independent Companies' assaults that they would have live in a state shame, as they were "now rendered wretched for life, by the Bulwark of our Religion. " See Niles' Weekly Register, vol 4, 24 July 1813, 333, quoted in D.L. Graves, In the Midst of Alarms, 368.

[103]. Napier, Life and Opinions, vol 1, 221.

[104]. Napier, Life and Opinions, vol 1, 216. I attribute this statement to William Napier, Charles Napier's brother, who edited Charles Napier's papers as it appears not to be from the latter's journal of 1813 or correspondence of the time. On Beckwith's record as a battalion commander, see my article "Worthless is the Laurel," 7-8 and Mark Urban, Rifles; Six Years with Wellington's Legendary Sharpshooter. London, 2003, 29-37.

[105]. ASPMA, vol 1, 377, Myers to Taylor, 2 July 1813.

[106]. ASPMA, vol 1, 381, Griffin and Lively to Crutchfield, 4 July 1813. The emphasis is mine.

[107]. See Gareth Newfield, "The Crimes of Independent Companies of Foreigners in North America, 1813" published in The War of 1812 Magazine. Although Newfield believes that the crimes committed at Hampton "were the direct outcome of an unfortunate combination of poor troops and even worse command decisions," he suggests that a more sympathetic view should be taken of the men of the Independent Companies of Foreigners. Unfortunately he comes perilously close to putting the onus on the victims, not the guilty. Newfield's argument appears to be based on four points:

1. They were veterans of the French army in the Peninsula where reprisals or atrocities against civilians were standard practice

2. They may have been suffering from post-traumatic stress syndrome because of these experiences

3. Their morale was poor because they believed they were being sent to the West Indies which was popularly regarded as a death sentence because of disease, and

4. Their crimes were inspired by a wish to retaliate for the Craney Island "massacre. "

In my opinion, these points do not stand up under analysis.

First, whatever their experiences with the French army in Spain, the Independent Foreigners were serving in the British army in 1813 and were therefore subject to the British military law which has been discussed at length in the text. Discipline in the latter service was much more severe than in the former and, as the Independent Foreigners had certain provisions of the Articles of War read to them before enlisting and the complete Articles read to them on a regular basis while serving (as well as General Orders relating to discipline) they had no excuse to plead ignorance of the law under which they served. One might add that these two companies were not the only foreign troops in the British army in 1813, there were many such units but none misbehaved to the extent that the Foreigners did.

Second, although it is a somewhat risky thing to apply the tenets of twentieth and twenty-first century psychology to men of the early 19th century, it really does not matter whether the Foreigners were suffering from post-traumatic stress syndrome, chicken pox or the common cold. They were under British military law and a soldier who broke that law would, if apprehended, suffer the consequences.

Third, the Independent Foreigners had enlisted for universal service (otherwise they would not have been sent out of Britain), and therefore they had agreed to serve where sent -- be it Europe, North America, Africa, Australia or the East or West Indies. If they did not want to go to the West Indies, they should have thought about that before "signing on the dotted line. " Once they had enlisted for universal service, they were at the disposal of the British government.

Fourth, although Newfield does not appear to accept the results of the American board of inquiry into the Craney Island "massacre," it is not relevant in any case because the Foreigners did not retaliate against American troops but against helpless civilians. According to the provisions of the British military law under which they served, the Frenchmen's actions were criminal and could -- and usually were -- punished by corporal or capital punishment. The excuse that carrying out reprisals against civilians was the practice in the French army in Spain can not, of course, have any validity as they were now in the British army.

Although interesting, Newfield's article suffers from the fact that the he did not examine the American side of the Hampton incident which is contained in ASPMA, volume 1, nor, apparently, did he read my article on the outrages at Hampton: "'Worthless is the Laurel Steeped in Female Tears", which contains a detailed analysis of this incident.

 



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