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© 2019 by Zack White and the NapoleonicWars.net team.

Research Update: Civilian and Military Courts in the 1800s

March 1, 2018

The historical element of the blog has faded away over recent months as I’ve begun to post advice to budding researchers. Over the next few weeks, the reports on my latest research on military discipline, are coming back with a bang, starting with an update on my findings about civilian and military courts in the Napoleonic Wars.


The basic point that I want to make is simple – the two systems were very closely intertwined. This may sound like an obvious, or unsurprising discovery, but in truth is quite revealing. You have to bear in mind that there was no such thing as a formal set of clearly state military laws. The Articles of War gave a rough outline of the sorts of things that were forbidden, but did not give a clear indication of what the punishment should be in individual cases. Instead officers had to work out an appropriate punishment for themselves, but voting on it at the end of a trial. There was no such thing as ‘case law’ (where judges could turn to similar examples), and none of the details in the Articles of War were actually voted on by Parliament. Instead Parliament voted annually on the ‘Mutiny Bill’, which confirmed that the Articles of War should be followed, without actually debating their contents.


This makes the civilian courts seem quite different, but actually the officers of the army who were involved in the military courts would have seen the crimes in a similar way to their civilian counter parts. As ‘gentlemen’ who often came of the aristocracy, or the emerging ‘middle class’, and therefore who had money, they were concerned about the issue of theft. In the army the issue of theft, especially from civilians, increased the chances of the local population hating the army, and therefore refusing to help them with issues such as supplies, creating huge logistical problems, but the ideological attitude of English country gentry would also have played a part. As a result, crimes of theft were often dealt with very harshly. Civilian judges were in no doubt that they considered theft to be a ‘capital crime’ (punishable by death), unlike sexual assault which was not a ‘capital crime’.


A peculiarity of the military courts in the early 1800s was the role of the Judge Advocate, who not only had to put together the case for the prosecution, but then also have to advise the defendant (ie the person accused of the crime), on their defence. As a result, he essentially had to advise them on how to deconstruct the very arguments that they had just put together! There was, however, a move towards a professionalisation of the legal system in the British Army during this period. It is noticeable that the same men were repeatedly appointed to act as Judge Advocates in trials, even though the role could be appointed on an ad hoc basis. This may suggest that these men either had a proven record, or had some form of legal training which made them better suited to the role. Also, from 1812, a civilian lawyer (named Larpent) was employed by the army and sent out the British Army fighting in Spain. This meant that a professional was finally taking charge of the situation. As there was a shift towards professional legal representation for the defendant by the 1820s, there is clear overlap here.


The use of civilian courts by the army is especially interesting. The Articles of War clearly state that a solider can be tried by a local civilian court if there is evidence against him. What this meant for soldiers serving in the Peninsular War (1808-1814) was that they could be, and were, tried in the local Portuguese courts. This system actually worked both ways, as both the army and the civilian courts were keen to save themselves time and money. As the person making the accusation would have to pay witnesses, and pay local magistrates for their time, prosecution could be a costly business, and this could be avoided, if the accused was a soldier, by getting the army to try the solider. However, the army was also keen to save money, and time, and as a result, there were rarely any objections when a local official suggested that a miscreant should be tried in a local civilian court.


There was also a problem in both the civilian and military courts: once the victim had received financial settlement for the crime, they lost interest in the prosecution process. Within the civilian system, the accused would therefore make efforts, if they could afford it, to pay the victim, and therefore stop them from going to court, where the accused might face the death penalty. This didn’t work in quite the same way in the army, as the military courts had to determine whether the accused had breached orders. Nonetheless, letters from the Duke of Wellington, Commander of the British forces in Spain during the Peninsular War, show very clearly that once local civilians had been paid for the goods which a solider had stolen, they lost interest in the legal process, and often did not bother to turn up to provide evidence in court. As a result, soldiers were able to escape with lighter sentences, which undermined the whole discipline system.


There will be more on this, and other topics, in the weeks to come.


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