Pragmatism & discretion: Discipline in the British Army, 1808-1818

Abstract

Military law is poorly understood by comparison with its non-military (i.e. civilian) counterpart. This thesis offers the first detailed overview of military law in the British army at the start of the nineteenth century, exploring its provisions and practices, and how the theoretical framework of the law was imposed in reality. It draws on a wide-ranging selection of material, from works of authority on military law, to court proceedings, trial registers, soldiers’ memoirs and the correspondence of leading figures and stakeholders in the administration of military justice. A core element of this research has been the transcription of a database of 9,227 court martial cases, which will be drawn upon to highlight the army’s prosecution priorities and punishment practices. Throughout it is argued that military law was more nuanced than has previously been recognised, whilst its implementation was underpinned by a pragmatic system of discretionary justice. Military law was consistently applied in a way that was bespoke to the army’s immediate needs, yet the nature of these ‘needs’ varied according to each individual’s position within the army’s command structure. With these diverging priorities, military law was simultaneously pulled and manipulated in multiple directions, with some calling for softer forms of punishment and taking a lenient approach towards certain crimes, whilst others pushed for more stringent measures. Military law was also by no means constant during this period. Competing pressures and conflicting priorities led to a diverse array of agendas which not only influenced how the law was implemented, but also how the law was reformed. It will become apparent that these diverse priorities led to an uncoordinated programme of reforms, with some efforts undermining the intentions of others. However military law did not operate within a vacuum. Throughout the thesis, close reference will be made to discussions and practices within the contemporaneous non-military justice system. Throughout the period under scrutiny, society was experiencing the Foucauldian shift from punishment of the body to punishment of the mind through incarceration. For much of the period, the army bucked that wider social trend in order to attend to its own needs, only embracing solitary confinement from 1817 as a result of growing pressure from senior officials in the army’s administrative structure. Similarly, the growing ‘lawyerisation’ of civilian courts was mirrored by a militarization of the army’s, with an increasing tendency to employ officers with some legal knowledge to officiate on trials, rather than civilian legal experts. It is argued that these trends indicate that whilst the army was willing to be informed by wider civilian practice, military law was applied in a manner which operated on different logic that was shaped by the army’s distinct needs.

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