General Pirabhakaran in the Foot-steps of General Washington

by Sachi Sri Kantha

Fourteen years ago, in the pages of now-defunct Asiaweek (Hong Kong) magazine, I engaged in a ‘duel’ with a spineless, anonymous correspondent on the purported ‘anti-social’ activities of the LTTE.  In my letters to the magazine editor, I compared the LTTE’s performance as a peoples’ militia as nothing different from that of the performance of George Washington’s army during the Revolutionary War of Independence in America.  My correspondent (an anti-LTTE guy, who appeared illiterate on American history) needled me and, within the constraints of the ‘Letter to the Editor’ page as well as the tolerance threshold of the editor, I set out to educate this anonymous guy and the readers at large, though it was an exercise in futility.  When the ‘duel’ began in the pages of Asiaweek [Aug.31, 1990], I was in Philadelphia.  When it was brought to a close by the editor [March 15, 1991], I had moved to Japan.

First I provide below excerpts of the exchanges I had with this anonymous correspondent.  Then, I present an excellent research paper which appeared in the Military Affairs journal in 1964, which confirms the stance I took in this ‘duel.’  Kindly note that what appeared in print under my name in the Asiaweek pages was not necessarily the original texts I sent.  What I wrote was often mangled to suit the ‘in-house style’ of the magazine.

"The Tigers murder anyone – Sinhalese, Tamil, Muslim, Indian – who blocks their path.  They have not hesitated to execute even former comrades who gave up the mad pursuit.  So please do not divulge my identity."

"Only a minority of Americans supported the revolution in the 1770s.  John Adams noted that about a third of the population were hostile to the idea and a third were quite indifferent.  That did not deter America’s founding fathers from fighting British colonialism."

"Citing John Adams, Sachi Sri Kantha of Philadelphia implies that America’s founding fathers, like the Tamil Tigers, represented a minority when they fought British colonialism.  It would be interesting to know whether they, like the Tamil Tigers, summarily executed fellow citizens who did not share their revolutionary fervour.  Sri Kantha does not deny that the Tamil Tigers murder anyone in their parth, including other Tamils."

"Perhaps the reader who wrote ‘Sri Lanka’s Tamils’ should read more history instead of musing whether America’s founding fathers, ‘like the Tamil Tigers, summarily executed fellow citizens who did not share their revolutionary fervour.’  As many as 100,000 people who supported British rule (almost 1 in 30 of the people in the original thirteen states) chose to leave the newly formed U.S. for England, Canada and the West Indies.  Why?  Historians say countless loyalists were tarred and feathered.  Why are there hardly any versions of the loyalist point of view?  Simply because they were not tolerated by the founding fathers.  Consider the fate of hero-turned-traitor Benedict Arnold.  After the war he had to leave Philadelphia for London, where he died in obscurity."

"Thanks to Sachi Sri Kantha of Philadelphia I now know the difference between Sri Lanka’s Tamil Tigers and America’s founding fathers.  The fathers merely tarred and feathered dissidents; the Tigers summarily execute them."

"The naïve and anonymous reader who thinks America’s founding fathers ‘merely tarred and feathered dissidents’ and did not execute them is wrong.  In many cases tarring and feathering was only the preliminary phase of the punishment of loyalists and was followed by hanging.

For example, in 1774 one John Malcomb, an officer of the Customs at Boston, was ‘tarred, feathered and led to the gallows with a rope about his neck.’ (Oxford English Dictionary, 1989).  On June 27, 1776, Thomas Hickey became the first American soldier to be executed in New York City.  He was condemned as a traitor for conspiring to deliver George Washington to the British (The Encyclopedia of American Facts and Dates, Harper & Row, New York, 1987).  In March 1779 John Mason of the Loyal American Rangers warned that the loyalists would henceforth hang six rebels for every loyalist so dealt with (Secret History of the American Revolution, Viking Press, New York, 1941).

Trying to portray America’s founding fathers as paragons compared to the Tamil Tigers is preposterous.  One should not forget that almost all the leaders of the American Revolution owned black slaves.  One of them, George Washington, kept 200.  Is it not a paradox that they fought for liberty while owning slaves?"

"Sri Kantha does not deny that the Tamil Tigers have massacred thousands, including other Tamils, in their fight for a separate state.  He defends them by arguing that the Tigers are no different from the likes of George Washington.  One cannot argue against such a value judgement.  Your comment on Sri Kantha’s latest exercise in comparative history says it all: George Washalingam indeed!"

There ended my ‘duel’ with this anonymous correspondent.  Though I did send my rebuttal to the above ‘Letter 7’, it went unpublished.  My criticism was focused on the Asiaweek’s sophomoric portrayal of LTTE fighters as ‘George Washalingam’.  I’m happy to note that while I still stand in the ring to defend the LTTE, the Asiaweek magazine has folded into history, partly due to its sophomoric journalism in educating its readers.  But my ‘duel’ with that spineless correspondent to the Asiaweek in 1990-91, prompted me to study American revolutionary history with much interest, and I have dug up more similarities between the leadership of General Washington and General Pirabhakaran.

On January 8 of this year, I contributed a commentary entitled ‘George Washington and Prabhakaran’ to the Sangam site.  The first two sentences of this commentary stated, "This year, in November, Velupillai Prabhakaran – the leader of Liberation Tigers of Tamil Eelam (LTTE) reaches 50 years.  Come November, there will be cautious appraisals, left-handed compliments, snide editorials and even vapid curses from his political adversaries and critics who prostrate at the feet of these adversaries."  What is presented below is a sequel to my January commentary.

I consider two needs to provide this sequel.  First, due to the legacy of British influence in the educational curricula of the 20^th century, in Ceylon (and later Sri Lanka), teaching and studying American history was a neglected field.  Thus the current crop of historians, academics and journalists in Sri Lanka and India are nothing but dim-witted on General Washington’s record as the Commander-in-Chief of the American revolutionary army.  Secondly, my January commentary appeared before Karuna and his select coterie deserted the commands they had.  [In General Washington’s words, this was an act of "quit his Ranks, or retreat, unless the Retreat is ordered by proper Authority."]  And after deserting the LTTE, to save his skin, Karuna unabashedly questioned some past decisions made by the LTTE leader.  Thus, the following study on how General Washington conducted military justice is a recommended tutorial for all Pirabhakaran’s critics, including Karuna.

Having read the criticism on Pirabhakaran penned by the voluble critics for years, I can vouch that not a single one of these prattling critics – perched in Colombo, Chennai, Singapore, Bangkok, Melbourne, London, Toronto and Washington DC - have had the mind or the will to compare the military careers of General Washington and General Pirabhakaran.  This is due either to shoddy scholarship or intentional obfuscation.  Thus, to celebrate Pirabhakaran’s achievements as a military leader on par with General Washington, I provide below a research paper authored by Dr. Maurer, which appeared in the Military Affairs journal 40 years ago.  When his study appeared in print, Dr. Maurer was a professor of military history at the Air University and Chief of the Historical Studies Branch of the USAF Historical Division.

Though 200 years separated General Washington and General Pirabhakaran in time, there are some unusual parallels in the experiences they shared in the battlefield.  First, both fought their wars in their homelands.  Secondly, both led their battalions against two armies [Washington in the French-Indian Wars and with the British; Pirabhakaran with Sri Lankans and Indians].  Thirdly, both had to manage with only land and sea divisions in their military cards.  Fourthly, both experienced treachery from their leading commanders [Washington by Arnold Benedict; Pirabhakaran by Mahattaya] and saved their overall Command by swift retaliation.  Fifthly, both experienced mutiny as well [Washington by Thomas Hickey; Pirabhakaran by Colonel Karuna and his sibling Reggie].  Sixthly, both administered military justice without fear; mutineers Thomas Hickey and Reggie were executed in 1776 and 2004 respectively.

Concurrently, one cannot ignore the differences in conditions (mainly due to the passage of time) faced by General Pirabhakaran, compared to that of General Washington.  While Washington’s adversary didn’t employ aerial bombing in their encounters with his army, Pirabhakaran’s adversaries did so.  Thus, Pirabhakaran had the necessity to devise pre-emptive and retaliatory counter-strikes to blunt aerial bombing.  Secondly, while Washington’s combat army was an ‘all men army’ [if we exclude the use of women spies], Pirabhakaran’s army incorporated young women as well in combat duties, due to societal and strategic needs.  Incorporation of young women into the army resulted in the need for additional strengthening of mental discipline among the sexes so that the mission and morale of the army wouldn’t suffer due to understandable hormonal rages of some idling young minds.  Quite a number of strict disciplinary actions General Pirabhakaran had to take in the past – highlighted recently by deserter Karuna as a perverse act in one of his radio interviews - in protecting his army has to be sympathetically viewed from this angle.

When one completes reading Maurer’s study [of original documents emanating from General Washington’s command], it should become evident that the military justice practised by General Washington hardly differed in degree or in details, from the treatments meted out by the LTTE to traitors amongst Tamils and those who jeopardized the community interests of Tamils for selfish gains.  Thus, denigrating the LTTE’s justice system as ‘kangaroo courts’ for propagandistic purposes is untenable, since military justice – when there exists a need for it – practised in Eelam has not markedly differed from the one recorded in colonial America in the 1770s under General Washington’s command.

Footnotes cited by Maurer are presented at the end of the paper, and what follows [including the dots indicating omissions from the originally quoted text] is a verbatim copy of the original paper.  One distinguishing feature of Maurer’s study is that mostly paragraphs are designated with each footnote.  What is significant is the information detailed in the paragraph designated with footnote 33. Here are three of Washington’s commands:

(1) "Prompt, and therefore arbitrary punishments are not be avoided in an army."

(2) "Any Officer, or Soldier…,who (upon the Approach, or Attack of the Enemy’s Forces, by land or water) presumes to turn his back and flee, shall be instantly Shot down, and all good officers are hereby authorized and required to see this done, that the brave and gallant part of the Army shall not fall a sacrifice to the base and cowardly part, or share their disgrace in a cowardly and unmanly Retreat."

(3) "to shoot any Officer, or Soldier, who shall presume to quit his Ranks, or retreat, unless the Retreat is ordered by proper Authority."

When Karuna, his coterie and his ghost writers squeal about the actions of the LTTE’s leader, that shows General Pirabhakaran is following the foot-steps of General Washington perfectly and only Karuna is in need of more education on military justice.  Here is Dr. Maurer’s study on General Washington.

The army was in a sad state when George Washington assumed command on July 3, 1775.  In the camp there were many brave and ardent patriots, good men who would make good soldiers.  But they lacked uniforms and equipment.  They needed training.  They had to be brought under control.

Soldiers wandered about, shooting their guns into the air, wasting precious ammunition and raising false alarms.  Many neglected their duties and refused to obey orders.  They got drunk, fought, rioted, mutinied, and deserted.  Some of the officers were no better.  In short, the General found himself in command of a disorganized and undisciplined mob that scarcely deserved to be called an army.¹

Although conditions began to improve within a short time, Washington was to learn that a disciplined fighting force could not be developed in "a day, a month or even a year."  These Americans were "accustomed to unbounded freedom."  They could not "brook the Restraint which is indispensably necessary to the good order and Government of an Army."  Yet, somehow or other, "Subordination and Discipline," which Washington regarded as "the Life and Soul of an Army," had to be established and maintained, for these were qualities which would "make us formidable to our enemies, honorable to ourselves, and respected in the world."  Without "Order, Regularity and Discipline," he said, an army "is no better than a Commissioned Mob."²

The Commander in Chief told his troops that he required "exact disciplines." He pleaded "the importance of the cause…and the necessity there is of their behaving like men, who are contending for everything that freemen should value."  He held up recognition and honor as rewards for the good and the brave.  He threatened, and promised, to "punish every kind of neglect, or misbehaviour."  And he warned that "no Connections, Interests or Intercessions…will avail to prevent strict execution of justice."³

Justice, which often was found in the "Cat o’Nine Tails" or the hangman’s noose, was administered in accordance with a code derived from British law and custom.  It was natural that the Revolutionists should turn to Britain for laws to govern their army.  Washington and many others who had served during the colonial wars were familiar with the British military code.  Some, like Daniel Morgan, whose back carried the scars of 499 stripes laid on for striking an officer, had first-hand experience with British justice.⁴

The articles of war in effect at Cambridge when Washington took command had been enacted by the Provincial Congress of Massachusetts two weeks before Minutemen and Redcoats had met at Lexington.  Most of these articles had been copied from British law, but in many instances they had been modified to make the punishment less severe.  The military code adopted by the Continental Congress on June 30, 1775, and placed in effect on August 10, 1775, was derived more from the Massachusetts articles than from the British.  Congress amended this code on November 7, 1775, and revised it completely on September 20, 1776, bringing it more in line with British law.⁵

Military law, one of the most powerful instruments available to Washington for establishing and maintaining discipline, extended over both enlisted men and officers, as well as over civilians who served with or accompanied the army in the field.  Americans, however, cherished the privileges of the common law and objected to a legal system in which indictment by grand jury and other fundamental rights were unknown.  They were familiar with the long struggle of the English people against military law, and the war they were fighting was itself a protest against arbitrary government.  Thomas Jefferson and other Americans had read Sim Matthew Hale’s History of the Common Law of England, in which the Lord Chief Justice had asserted that military law was "something indulged, rather than allowed as law."  Hale explained, "The necessity of Government, Order and Discipline in an Army, is that only which can give those laws a Countenance."⁶  Military necessity, then, was justification for military law.  As Washington’s judge advocate said, "when a man assumes the soldier he lays aside the citizen, and must be content to a temporary relinquishment of some of his civil rights."⁷

An enlisted man accused of an offense against military law was taken into custody by the provost and held under guard for trial by court-martial.  An officer was arrested and restricted to his tent, or to some particular area of camp, until his case had been decided.  Courts of inquirty were convened on occasion to investigate complaints against officers. If the enquiry produced evidence of a violation of military law, the officer was brought to trial by court-martial; if not, the charges were dropped and the officer was "honorably acquitted."

Under the law, an officer or soldier who had been arrested or confined had to be brought to trial within eight days, or as soon thereafter as a court could be conveniently assembled.  Movements of the army and enemy actions made it impossible at times to obtain prompt hearings, but Washington insisted that every effort be made to bring the accused to trial without undue delay.  As the need arose, officers were designated to sit as a court to try a specific case or to hear such cases as might be brought before them.

A person charged with a minor offense was tried by a regimental or garrison court, consisting normally of five officers appointed by the commander of the regiment or garrison.  One accused of a more serious offense was tried by a general court-martial, which normally was made up of thirteen officers.  Although the articles of war did not give Washington power to convene general courts, he did so, presumably under the authority of his commission, which made him responsible for order and discipline in the army.  General courts also were convened by brigade and division commanders, by generals commanding in the various departments and states, and, on occasion, by Congress or the Board of War.  If the accused believed that a member of the court was prejudiced against him, he was permitted a challenge, in which event the convening officer designated another member to take the place of the one rejected.

When a general court had been convened and the members sworn, the judge advocate, who served as prosecutor, called his witnesses and presented his evidence.  These witnesses testified under oath and could be cross-examined by the accused, who also could call other witnesses to testify in his behalf.  The defendant was permitted to bring a lawyer or some other person into court to give him advice either in writing or in a quiet voice, but the counselor was not permitted to address the court.  Responsibility for making the defense rested with the accused.  Sometimes his inept pleading had disastrous results.⁸

When the evidence was in and the vote had been taken, the court announced its verdict.  The officer who had neglected his duties, disobeyed orders, behaved in a manner unbecoming a gentleman, or committed some other offense against military law, might escape with no more than a reprimand which might be given in private, delivered in public, or published in a general order.  For example, a captain guilty of speaking disrespectfully to a major was reprimanded before the officers of his regiment and required to ask the major’s pardon.⁹

Sometimes the offender was fined, as in the case of an ensign who was mulcted one month’s pay (the maximum permitted by the Continental articles) for being absent without leave.  An enlisted man who was found guilty of stealing and of using abusive language to the quartermaster was assessed twenty shillings.  A deserter was given fifteen lashes and fined one month’s pay "to defray the expense of apprehending and bringing the Prisoner to Camp."¹⁰

Confinement on bread and water was a common sentence for enlisted men.  One man received six days for raising a disturbance in the streets.  Another received eight for threatening the life of a lieutenant.  Another, a deserter, was put on bread and water for a month.¹¹

Noncommissioned officers frequently were "reduced to ranks" for their crimes.  A deserter was demoted from corporal and fined one month’s pay.  A sergeant who deserted was whipped and broken to private, as was another who was convicted of abusing and striking a captain.  For mutiny a sergeant was reduced to private and fined forty-eight shillings, while a corporal involved in the same affair was whipped and demoted.¹²

Tried for misbehavior at the Battle of Bunker Hill, one colonel was cashiered, two colonels were acquitted, a lieutenant was dismissed and prohibited from further service in the Continental Army, and a major was cashiered but was not rendered incapable of holding a commission if the general officers recommended him to the Commander-in-Chief.  Officers were dismissed for such offenses as leaving their posts, disobeying orders, and, among other things, defrauding their men.  The sentence of a captain dismissed for cowardice stated that his name, place of residence, and punishment were to be published in the newspapers of his state, "After which, it shall be deemed scandalous for any officer to associate with him."  In a few cases, officers were suspended, three months being the period specified for a captain convicted of conduct unbecoming an officer and a gentleman.¹³

A lieutenant was sentenced "to have his sword broke over his head on the grand parade at guard mounting" before he was dismissed from the service.  One who was to be dismissed "with Infamy" was to be "drummed out of Camp tomorrow morning by all drummers and Fifers in the Army and never to return."  A man convicted of theft was to be "mounted on a horse back-foremost, without a Saddle, his Coat turn’d wrong side out, his hands tied behind him, and drummed out of the Army (never more to return) by all of the drums of the division to which he belongs and that the above sentence be published in the News-Papers."  A sergeant was drummed out "with a Label on his back, with the word Mutiny on it."  Another was "to be deprived of his Arms and Accountrements, put on a Horse Cart, with a Rope round his neck, and drum’d out of the Army."¹⁴

Early in the war, men sometimes were sentenced to "ride the wooden horse,"¹⁵ but this cruel punishment was not authorized by the Continental articles.  Flogging, on the other hand, was common all during the war.  British courts-martial could, and did, impose sentences of five hundred, one thousand, or even two thousand lashes,¹⁶ but both the Massachusetts code and the Continental articles of June 30, 1775, limited the number of stripes to thirty-nine.  Disobedience, neglect of duty, drunkenness, theft, sleeping on guard, and desertion were some of the offenses that could lead to an enlisted man’s being whipped before his regiment.  Sometimes the flogging was administered in increments, as it was in the case of a corporal who, for "speaking disrespectfully and villifying the Commander in Chief," was given thirteen lashes on three successive days.¹⁷

The threat of thirty-nine lashes was insufficient, however, to preserve order.  In October 1775, Judge Advocate William Tudor suggested that the limit be raised to one hundred.  He said that "Nine-tenths of the officers…think this addition absolutely necessary."¹⁸  When Congress complained about the lack of discipline, Washington replied that the articles of war were "Relaxed, and unfit,…for the Government of an Army."  For one thing, the limit on the number of lashes made "this punishment inadequate to many Crimes it is assigned to."  Some of the men who had been whipped were so tough that "for a bottle of Rum they would undergo a Second operation."¹⁹

In revising the articles of war on September 20, 1776, Congress increased the number of stripes to one hundred.  This maximum often was imposed, sometimes in increments.  A soldier found guilty of deserting and re-enlisting was sentenced to "one hundred lashes on his naked back, to be inflicted at four different times."  Another sentence called for fifty stripes to be administered on each of two successive days, with the culprit’s "Back to be well washed with Salt and water after he has received the last fifty."²⁰

Courts sometimes tried to get around the limitation on the number of lashes by awarding a hundred for each of two or more charges against a man.  For example, a soldier found guilty of deserting and of attempting to escape to the enemy was sentenced to received two hundred.  Washington regarded such sentences as illegal and would not approve more than one hundred lashes, the number he authorized for a man who had been sentenced to receive three hundred.²¹

There were times when one hundred lashes apparently were not enough, but there was no penalty between that and death.  To fill this gap, Washington suggested in 1781 that the limitation on whipping be removed or that the maximum number of stripes be raised to five hundred, but Congress rejected the idea.²²

Whipping often was accompanied by some other penalty, such as fine or imprisonment.  A man convicted of desertion was given a hundred lashes and sent to the navy, where opportunities to desert were fewer.  Another, found guilty of being drunk and asleep while he was supposed to be guarding prisoners, was sentenced to receive one hundred lashes and "to have the hair from the front part of his head shaved off without soap, and tar and feathers substituted in the room of the hair."  A matross also had his head tarred and feathered, after which he was forced to "run the Gauntlope in the company to which he belongs."  A man who deserted after having been decorated for faithful service was sentenced "to have his honorary Badge taken off by the Drum Major at the head of the regiment and receive fifty lashes on his naked back."²³

Under the British articles of war, the death penalty could be invoked for many crimes, including mutiny, striking a superior, disobeying an order, deserting, sleeping on guard, raising a false alarm, corresponding with the enemy, plundering, misbehaving in battle, revealing the watchword, and forcing a commander to abandon his post to the enemy.  Only the last three of these were capital offenses under the Massachusetts code and the Continental articles of June 30, 1775.

When a charge of corresponding with the enemy was brought against Dr. Benjamin Church, Director General of Hospitals, in the autumn of 1775, Washington found that the punishment available for the crime was inadequate.  He laid the case before Congress with the suggestion that some alteration of the law was needed.  Judge Advocate William Tudor believed that the offense called for capital punishment.  He also wanted the death penalty for mutiny and desertion, of which there had been many cases.  On November 7, 1775, Congress amended the articles of war to provide sentences of death for the crimes mentioned by Tudor.  The following year, after Washington and others had complained about the ineffectiveness of the military code, Congress revised and re-enacted the articles of war, extending the death penalty to all those offenses for which the British military law provided capital punishment.²⁴

The first instance in which Washington approved a sentence of death came nearly a year after he assumed command.  The culprit was Thomas Hickey, a member of the General’s guard, who was involved in a plot to enlist soldiers of the Continental Army into British service, and to start an uprising when the British army arrived at New York.  There were rumors that the plot had also included the assassination of Washington.  At any rate, when a court-martial sentenced Hickey to death, Washington submitted the matter to a council of generals, who unanimously advised the Commander-in-Chief to approve the sentence.  Accordingly, Washington ordered Hickey hanged the following day, June 28, 1776, at eleven o’clock in the morning.²⁵

During the war, military courts sentenced many persons to death by hanging or shooting.  Many of the sentences were carried out, but Washington frequently granted stays and often pardoned the offenders.

The sentence of a court-martial actually was no more than an opinion, for the proceedings and sentence was subject to review and approval by the officer who had ordered the trial.  If Washington found irregularity in the constitution of the court or in the proceedings, he ordered a new trial.  In most cases he approved the sentence, but he often exercised his power to pardon offenders or mitigate punishment.

When an artillery officer was sentenced to be reprimanded for cowardice at Brandywine, Washington could not find sufficient evidence to support the verdict; he ordered the captain "discharged from arrest without Censure."  Discovering that a man who was under sentence for sleeping on his post was a "good orderly, well-behaved soldier, and was probably unwell when on sentry," the Commander-in-Chief remitted the sentence of twenty-five lashes.  In awarding two men fifty lashes each for quitting their posts, the court recommended mercy because the prisoners were young and did not understand their duties; Washington pardoned the men but warned that "such a crime will not meet with Mercy in the future."²⁶

Cases involving capital punishment received a special attention.  On October 26, 1777, Washington ordered the execution of a man sentenced to death for desertion.  Later the same day he granted postponement for three days.  On the 30^th he granted another stay.  On November 1 he pardoned the man, saying that he expected him to "show himself worthy of this act of clemency."  In pardoning a number of men who were under sentences for various offenses Washington said that he hoped that "Gratitude to his Clemency will induce them in the future to behave like good soldiers."  In 1779, on the "Anniversary of our glorious Independence," the Commander-in-Chief pardoned all prisoners then under sentence of death.²⁷

While Washington could pardon an offender or reduce the sentence of a court-martial, he did not have the authority to increase the punishment set by a court.  He was free, however, to express his displeasure if he believed a sentence was inadequate for a crime.  When a court sentenced a captain to be reprimanded privately for refusing to comply with an order, Washington said, "The mutinous and dangerous spirit which actuated Captn. Norwood merited in his opinion the most exemplary Punishment.  He is to be released from Arrest."  In another instance, a colonel charged with failure to obey an order was acquitted because the order had not been issued properly; although Washington regarded the order as valid, there was nothing he could do but release the colonel from arrest.²⁸

In rare instances the Commander-in-Chief sent a case back to a court for reconsideration.  An example concerns an ensign who, with a group of men, robbed a house, carried off "four large Pier looking Glasses, Women’s Cloaths, and other articles which one would think could be of no Earthly use to him."  When a brigade major ordered the goods returned, the ensign "swore he would defend them at the hazard of his Life."  Washington had the ensign arrested and tried.  The court found him not guilty of plundering but guilty of insubordination and disrespect to his superiors.  His sentence was to apologize and be reprimanded before the regiment, a sentence that "appeared so exceedingly extraordinary" that Washington "ordered a Reconsideration of the matter."  With some new evidence, the court "made Shift to Cashier him."  Washington ordered the ensign turned out of the army immediately.  Congress directed the Commander-in-Chief to obtain the names of the men who had voted for acquittal, but the court, asserting its independence, refused to supply the information.  Washington suggested to Congress that the matter be permitted to "rest where it is."  Some months later, when Washington found himself "under the disagreeable necessity of directing a reconsideration" of another case, the court held to its verdict.²⁹

Appeal from a regimental to a general court was permitted but seldom taken.  When two men, convicted of theft, appealed in September 1775, one was acquitted and the other sentenced to receive thirty-nine lashes.  An officer tried by a brigade court sometimes appealed to a general court-martial of the line.  A lieutenant under sentence to be dismissed from the service was acquitted on appeal, but in another case the appellate court affirmed the trial court’s finding that a captain was guilty of acting in a cowardly manner.³⁰

A lieutenant colonel who was cashiered in August, 1779, carried his case to Congress.  In December 1780, Congress referred it to Washington.  The following April the Commander-in-Chief informed the ex-officer that a new trial could not be granted.  The proceedings of the court had been fair and regular, and the judgment was well supported by the evidence.  If a new trial were granted in this case, similar relief could not be denied others.  Washington pointed out that "no determination can ever be final, if, months after the sentence is passed and approved, a cashiered officer, under the plea of fresh evidence…, can by demanding a new trial, take the chance of a second decision by a court composed of officers different from the first."  A cashiered officer had nothing to lose but everything to gain from a new trial.  The government, however, would be subjected to "great, unnecessary, and probably frequent expenses," and officers would be involved in the "unnecessary and irksome duty" of re-hearing such cases.³¹

All through the war the courts were busy.  It is no wonder that the judge advocate complained that his duties were "ardous and difficult."  Officers sometimes found, however, that discipline could not be "maintained by a regular course of proceedings."  Consequently, they were "tempted to use their own discretion," which, Washington said, "sometimes occasions excesses."  The Commander-in-Chief intervened when a brigadier was about to dismiss a major "without his having had a fair trial, and the charges against him being properly proved."  When two captains were tried for beating a sentry and the corporal of the guard, the court-martial saw justification and delivered an acquittal.  Washington disagreed.  The sentry and corporal "were insolent and merited punishment," but their punishment "ought not to have been of an arbitrary kind."  Holding that the two men should have been "confined and punished in a regular way," Washington said, "The Idea of inflicting personal punishment for personal insult was, in this instance, carried too far, and if the principle was established it would be subversive of all military discipline."  At another time, a court-martial sentenced a captain to be reprimanded for "immoderately beating" a soldier "without sufficient cause to Justify such correction."  Washington expressed "dissatisfaction at any instance of conduct where violence is made use of without sufficient cause," but he went on to say that "the laudable motive of preserving public property from abuse" had been responsible for the captain’s action and was "a palleation for the Deed."³²

Washington found that "Prompt, and therefore arbitrary punishments are not to be avoided in an army."  On several occasions he deemed it necessary to dispense with legal proceedings and resort to summary action.  At Valley Forge he ordered: "Any soldier who shall be found discharging his musket without leave, and in an irregular manner, is to receive 20 lashed immediately on the spot."  Straggling, a "Practise subversive of all discipline and pernicious in every point of view," also called for strong measures.  Officers were authorized to order as many as fifty lashes on the spot.  To suppress marauding, Washington directed that each "delinquent [be] punished immediately on the spot with any number of lashes not exceeding one hundred."  While attempting to hold his position on Harlem Heights in September, 1776, Washington took the view that a coward was not entitled to his day in court: "Any Officer, or Soldier…, who (upon the Approach, or Attack of the Enemy’s Forces, by land or water) presumes to turn his back and flee, shall be instantly Shot down, and all good officers are hereby authorized and required to see this done, that the brave and gallant part of the Army shall not fall a sacrifice to the base and cowardly part, or share their disgrace in a cowardly and unmanly Retreat."  Ten days later he ordered his brigadiers to select some good officers and place them at the rear of the battalions with orders "to shoot any Officer, or Soldier, who shall presume to quit his Ranks, or retreat, unless the Retreat is ordered by proper Authority."  When Major General Anthony Wayne had some of the mutineers of the Pennsylvania line shot in May, 1781, Washington agreed that "Sudden and exemplary Punishments were certainly necessary."³³

Washington had to act carefully in attempting to establish and maintain discipline, for drastic measures might discourage re-enlistments or provoke disorders greater than those he was trying to correct.  He had to use great care, for example, in dealing with the insolent and arrogant riflemen from Pennsylvania.  When thirty-three were tried for mutiny, each was fined twenty shillings, with the ringleader being sentenced also to six days in prison.  If the penalty had been fitted to the crime and the men had been whipped, Washington might have been faced with mutiny on a much larger scale.³⁴

The General distinguished "between enormous and premeditated crimes and slight offenses…committed through Levity and inconsideration."  The latter required special treatment in order to "reclaim those who are not lost to all sense of virtue and military pride."  The Commander-in-Chief was "more desirous to reclaim than punish Offenders."³⁵

Although Washington sometimes regarded punishment as retribution for a crime committed, or as an instrument for reforming an offender, he more often regarded it as a deterrent against crime.  In fact, he stated that he did not "wish to inflict punishment, especially capital, but for the sake of example."  On June 28, 1776, he told his men he hoped that the "unhappy Fate of Thomas Hickey, executed this day for Mutiny, Sedition and Treachery…will be a warning to every Soldier, in the Army."  The spectacle of the guardsman swinging from the gallows would, he believed, "produce many salutary consequences and deter others from entering into like practices."  When three men were sentenced to death for desertion, he said, "Examples must be made, to put a stop to that prevailing Crime; or we may as well disband the Army at once."  Shocked by the number of men who engaged in plundering, he was "determined to make Examples which will deter the boldest and most harden’d offenders."³⁶

Washington was aware, however, that restraint was necessary "lest the frequency of punishment should take off the good effects intended by it."  He warned one brigadier "not [to] introduce Capital executions too frequently," and he told another that if executions were too common they would "lose their intended force and rather bear the Appearance of cruelty than Justice."³⁷

Washington, who took no pleasure in punitive measures, begged his men to "save him the anguish of giving Guilt the chastisement it demands."  He could not understand why some men misbehaved as they did.  "Why," he asked, "will Soldiers force down punishment upon their own heads?  Why will they not be satisfied to do their duty, and reap the benefits of it?… Why will they abandon, or betray so great a trust?  Why will they madly turn their backs upon glory, freedom and happiness?"³⁸

He expected too much, however, for no commander, in any age, has attained the goal that Washington set for himself, that of having "the business of the Army conducted without punishment."  It was with "inexpressible regret" that he invoked military law to do those "severe, but necessary acts of Justice" which he believed were required if he were to discharge his responsibilities as Commander-in-Chief of the Revolutionary Army, an army which, he said, was "engaged in the greatest cause men can defend."³⁹

1. Nearly everyone who has written about the army of 1775 has commented on the lack of discipline. See, for example, Douglas Southall Freeman, George Washington: A Biography (New York, 1948-1954), III, 489, et seq. Washington’s views are found in his correspondence and military papers, which constitute the primary sources for this article. In the notes which follow, the author has cited the primary documents, all of which, unless indicated otherwise, may be found in chronological order in John C.Fitzpatrick (ed), The Writings of George Washington (Washington, 1931-1944).

2. Washington to President of Congress, Sept.24, 1776; General Orders (hereafter cited as GO), Jan.1, 1776. For improvement in discipline, see Freeman, Washington, III, 544.

3. GO, July 4, 1775; Oct.1, 1776; July 7, 1775; Jan.1, 1776; July 7, 1775.

4. Washington to Dinwiddie, April 29, 1757; North Callahan, Daniel Morgan; Ranger of the Revolution (New York, 1961),24-25. Referring to the British articles of war, John Adams said, "It would be in vain for us to seek in our own invention, or the records of warlike nations, for a more complete system of military discipline." Journals of the Continental Congress (Library of Congress edition, 1904-1937), V, 670, n.2, quoting Adams, Autobiography, in Works, III, 68-83.

5. The British articles of 1765, the Massachusetts articles of April 5, 1775, and the American articles of June 30, 1775; Nov.7, 1775, and Sept.20, 1776, are printed in William Winthrop, Military Law and Precedents (Washington, 1920), 931-971. The American articles are found in Journals of the Continental Congress, II, 111-123; III, 331-334; V, 788-807; VII, 265-266.

6. Hale, History of the Common Law (1713), as quoted by Justice Hugo Black in Reid v. Covert, 1 L ed 2d, 1169, n.48.

7. Memorial of Judge Advocate [William Tudor, Oct., 1775], in Peter Force (ed), American Archives (Washington, 1837-1853), 4^th ser., III, 1164.

8. The courts were authorized by the articles of war, but neither the articles nor other enactments of Congress detailed the procedures to be followed. The procedures employed were derived from British practice and custom, as well as from the experience of French and other foreign officers who served with the Continental Army. Questions of procedure arose frequently. For example, when Arnold challenged some members of the court convened to try him, Washington found that the articles were silent on the subject. Washington therefore appointed a council of general officers to recommend principles to govern challenges in "the present and all future cases." (Washington to Council of General Officers, June 1, 1779) The paragraphs above which summarize court-martial procedures are based upon the articles of war, court-matrial reports, general orders, and the enlightening notes scattered through Winthrop, Military Law. For information concerning counsel for the defense, the writer is indebted to the Office of the Judge Advocate General of the Army for a copy of a memorandum which that office prepared for Douglas Southall Freeman in 1950.

9. GO, Sept.2, 1775.

10. GO, Oct.3, 1775; Nov.29, 1775; Feb.24, 1776.

11. GO, May 10, 1776; May 14, 1776; Jan.3, 1780.

12. GO, May 12, 1776; Feb.21, 1777; Sept.11, 1776; Nov15, 1776.

13. GO, Sept.15, 1775; July 18, 1775; Sept.11, 1775; Oct.13, 1775; Sept.24, 1775; Aug.2, 1775; June 16, 1776; Oct.8, 1776; Oct.19, 1777; Jan.19, 1783.

14. GO, Feb.8, 1778; March 14, 1778; Jan.5, 1778; May 11, 1783; Sept.16, 1775.

15. GO, July 10, 1775.

16. Winthrop, Military Law, 439.

17. GO, Sept.8, 1776.

18. Memorial of Judge Advocate, loc.cit.

19. Washington to President of Congress, Sept.22, and Sept.24, 1776.

20. GO, Jan.3, 1780; March 25,1778.

21. GO, May 29, 1778; Washington to Col.Thomas Bartley, May 29, 1778; GO, June 11, 1778.

22. Washington to President of Congress, Feb.3, 1781.

23. GO, Sept.2, 1777; Sept.3, 1777; March 15, 1783.

24. Washington to President of Congress, Oct.5, 1775; Memorial of Judge Advocate, loc.cit.; Washington to President of Congress, Sept.22 and Sept.24, 1776; Col.Joseph Reed to President of Congress,July 25, 1776; in Force, American Archives, 5^th ser., I, 576;Maj.Gen.Horatio Gates to President of Congress, in Force, American Archives, 5^th ser., I,795; Articles of War, Sept.20, 1776, in Winthrop, Military Law, 961-971.

25. GO, June 27, 1776; Washington to President of Congress, June 28, 1776.

26. GO, Jan.3, 1778; July 13, 1777; Nov.21, 1775.

27. GO, Oct.26, Oct.30, and Nov.1, 1777; May 6, 1778; July 4, 1779.

28. GO, June 11, 1778; April 2, 1778.

29. GO, Sept.22, 1776; Washington to President of Congress, Sept.24, and Oct.5, 1776; GO, Oct.5, 1776; Washington to President of Congress, Oct.8, 177; GO, June 16, 1777.

30. GO,Sept.28, 1775; Jan.15,1776; Jan.25, 1778.

31. Washington to Jotham Loring, April 6, 1781.

32. Tudor to Washington, Aug.23, 1775, in Force, American Archives,4^th ser., III, 245-246; Washington to President of Congress, Feb.3, 1781; Washington to Brig.Gen.Preudhomme de Borre, Aug.3, 1777; GO, May 8, 1779; June 5, 1782.

33. Washington to President of Congress, Feb.3, 1781; GO, Dec.22, 1777; June 11, 1780; Nov.19, 1782;Sept.20, 1776; Oct.1, 1776; Washington to Wayne, June 9, 1781.

34. GO, Sept.13, 1775; Freeman, Washington, III, 525-526.

35. GO, Nov.12, 1782; May 6, 1778.

36. Washington to Col.Christopher Greene, Oct.21, 1780; GO, June 28, 1776; Washington to President of Congress, June 28, 1776; Washington to Maj.Gen.Joseph Spencer, April 3,1777; GO, Oct.23, 1778.

37. Washington to Col.Goose Van Schaick, Oct.27,1778; Washington to Brig.Gen.Samuel Holden Parsons, April 25, 1777; Washington to Brig.Gen. George Clinton, May 5, 1777.

38. GO, June 10, 1777.

39. GO, Jan.1, 1776; June 10, 1777.