Character, Discipline, Law: Courts Martial in World War I

Abstract

Courts martial were as ubiquitous in the experience of World War I as criminal courts in civil life, yet they remain largely neglected in the Australian war historiography. Their remarkable evidentiary record, transmitted from the field of battle into the custody of the Attorney-General, has been used to highlight wartime dimensions of individual character and collective discipline. In this article, we review the uses of the courts martial in those respects. We note the significance of Australian exceptionalism in this military domain, and consider the potential of an approach that treats the court martial as a legal event.

We would like to thank Lee Butterworth for research assistance; Tim Sherratt (University of Canberra) for his expertise and generosity in sharing the archive metadata that got us started; and Peter Stanley and John Connor as well as the anonymous referees for their suggestions.

No potential conflict of interest was reported by the authors.

Notes

1 Robert Charles Stevenson, The War with Germany: The Centenary History of Australia and the Great War, vol. 3 (Melbourne: Oxford University Press, 2015), 122–6; Richard Glenister, ‘Desertion without Execution: Decisions That Saved Australian Imperial Force Deserters from the Firing Squad in World War I’ (BA Hons thesis, La Trobe University, 1984); Dianne Kaye De Bellis, ‘Stories of Australian Deserters in World War I’ (PhD thesis, University of South Australia, 2014); Edward John Garstang, ‘Crime and Punishment on the Western Front: The Australian Imperial Force and British Army Discipline’ (PhD thesis, Murdoch University, 2009); Christopher Pugsley, On the Fringe of Hell: New Zealanders and Military Discipline in the First World War (Auckland: Hodder & Stoughton, 1991).

2 National Archives of Australia (hereafter NAA), A6006, 1917/7/25, Application of Imperial Army Act to AIF (1917); NAA, M367/1 403/8/354, Application of Death Penalty in the AIF.

3 Australian War Memorial (hereafter AWM), DRL/3376, Birdwood collection, RCDIG0000041, Birdwood to Ferguson, letter (4 April 1917), also letters (31 March 1917, 18 August 1917, 20 August 1917).

4 AWM, 3DRL/3376 6/2, Ferguson collection, RCDIG0000038, Ferguson to Birdwood, letter (2 September 1917).

5 NAA, M367/1 403/8/354, Application of Death Penalty in the AIF, Cablegram of Secretary of State for Colonies (23 August 1917), and see Appendix B in De Bellis.

6 John Connor, Anzac and Empire: George Foster Pearce and the Foundations of Australian Defence, Australian Army History Series (Melbourne: Cambridge University Press, 2011), 106–7.

7 NAA, MP367/1, 403/3/5, Application of Imperial Army Act to AIF, G F Pearce, minute (25 July 1917). Pearce's minute is on a page which records the similar recommendation of Solicitor-General Robert Garran and is annotated ‘For Cabinet’. See also Connor, 106–7; Stevenson, 126; Glenister; Charles Bean, Official History of Australia in the War of 1914–18 (Sydney: Angus & Robertson, 1921).

8 Cathryn Corns and John Hughes-Wilson, Blindfold and Alone: British Military Executions in the Great War (London: Cassell, 2005); Pugsley; Anthony Babington, For the Sake of Example: Capital Courts-Martial, 1914–1920 (London: Leo Cooper in association with Secker & Warburg, 1983).

9 Bean, vol. 5, 28.

10 NAA, B2455: Morgan, Sidney Hamilton, fol. 36.

11 AWM, 3DRL/2316, Monash collection, RCDIG0000580, Monash to Colonel Hector Clayton, letter (8 April 1915).

12 Peter Stanley, Bad Characters: Sex, Crime, Mutiny, Murder and the Australian Imperial Force (Sydney: Pier 9, 2010).

13 Dale James Blair, Dinkum Diggers: An Australian Battalion at War (Melbourne: Melbourne University Press, 2001).

14 Russell Robinson, Khaki Crims and Desperadoes (Sydney: Pan Macmillan Australia, 2014).

15 Bill Gammage, The Broken Years: Australian Soldiers in the Great War (Canberra: Australian National University Press, 1974).

16 Bruce Scates, ‘How War Came Home: Reflections on the Digitisation of Australia's Repatriation Files’, History Australia 16, no. 1 (2019): 190–209.

17 Mark Finnane, Andy Kaladelfos, Alana Piper, Yorick Smaal, Robyn Blewer and Lisa Durnian, et al., The Prosecution Project Database, https://app.prosecutionproject.griffith.edu.au/ (2 March 2020) (hereafter PP) Trial # 317517; for his conviction at Newcastle Quarter Sessions in 1904, see Daily Telegraph, 25 November 1904, and for his long NSW conviction record (including two public order offences after his enlistment) see www.records.nsw.gov.au/index_image/2232_a006_a00603_5975000087r

18 NAA, B2455 (1966287), Madden C. E.; for the courts martial, NAA, A471, 1143 (99620); for the 1904 assault, see Daily Telegraph, 25 November 1904, 8, http://nla.gov.au/nla.news-article237834096. For the context of the Liverpool ‘mutiny’ see e.g. Blair, 40–4.

19 PP Trial #426152; for his war record: NAA, B2455, Banks W. J. H.; for his 1914 Victorian conviction, see PP Trial #116969, http://app.prosecutionproject.griffith.edu.au/web/public-search/search/116969. (Depending on the source of data, not all Prosecution Project trial records are currently available by public search – where they are, the relevant url link is provided as in this case.)

20 For Oldring/Blunderfield see PP Trial #558761, http://app.prosecutionproject.griffith.edu.au/web/public-search/search/558761; PP Trial #1766, http://app.prosecutionproject.griffith.edu.au/web/public-search/search/1766; PP Trial #1240, http://app.prosecutionproject.griffith.edu.au/web/public-search/search/1240; and see Robinson, 239–45.

21 NAA, B2455, Oldring Arthur Geoffrey.

22 Bean cited in Geoffrey Serle, John Monash: A Biography (Melbourne: Melbourne University Press, 1982), 327.

23 J.G. Fuller, Troop Morale and Popular Culture in the British and Dominion Armies, 1914–1918 (Oxford: Clarendon Press, 1990), 50–2.

24 Pugsley.

25 Stevenson, ch. 5.

26 William Westerman, Soldiers and Gentlemen: Australian Battalion Commanders in the Great War, 1914–1918 (Melbourne: Cambridge University Press, 2017). See also Jean Bou and Peter Dennis, The Australian Imperial Force (Melbourne: Oxford University Press, 2016).

27 Graham Wilson, Accommodating the King's Hard Bargain: Military Detention in the Australian Army 1914–1947 (Sydney: Big Sky Publishing, 2016).

28 Ashley Kevin Ekins, ‘Fighting to Exhaustion: Morale, Discipline and Combat Effectiveness in the Armies of 1918’, in 1918 Year of Victory: The End of the Great War and the Shaping of History, ed. Ekins, 1st edn (Wollombi: Exisle Publishing, 2010), 111–29.

29 See especially Pugsley; Stevenson; Ekins, ‘Fighting to Exhaustion’. On other measures (e.g. involvement in large-scale disorder), other forces may have had less than exemplary records, as suggested by Wilson with respect to Canadian troops (52–3).

30 D.B. Lambley, March in the Guilty Bastard (Burleigh MDC, Qld: Zeus Publications, 2012); Westerman.

31 AWM, Ferguson collection, RCDIG0000038, Ferguson to Birdwood, letter (16 May 1919); Ferguson to Birdwood, letter (10 June 1919).

32 Romain Fathi, ‘“We refused to work until we had better means for handling the bodies”: Discipline at the Australian Graves Detachment’, First World War Studies 9, no. 1 (2018): 40.

33 The almost comprehensive record series of courts martial proceedings, NAA, A471, includes 22,130 files for the years 1914–19, some of them involving many co-accused. This data may be supplemented by NAA, series A3193, ‘Name index cards for courts martial files [including war crimes trials], alphabetical series’, and ‘Nominal roll of court martial proceedings Australian Imperial Force’, WO93/42, The National Archives (Kew). For the statistics, see especially Stevenson; Lambley. For a comparative view see also Pugsley.

34 The proportion of prosecuted privates is consistent with analysis of prosecution by rank in Lambley, 12.

35 Gammage, 229, 244–5.

36 AWM, 3DRL/2379, Goddard collection, RCDIG0000799, army correspondence book entry (18 November 1917).

37 Blair, 190–1. On the mutiny, see Nathan Wise, ‘“In military parlance I suppose we were mutineers”: Industrial Relations in the Australian Imperial Force during World War I’, Labour History 101 (2011): 161–76.

38 Geoff Barr, Military Discipline: Policing the 1st Australian Imperial Force 1914–1920 (Canberra: G. Barr, 2008), ch. 5, esp. pp. 70–1. The Imperial legislation amending the Army Act was effected in the Australian forces by regulation, see Statutory Rules 1917, No. 62 Regulations under the Defence Act 1903–1915, www.legislation.gov.au/Details/C1917L00062, and gazetted 7 March 1917 (http://nla.gov.au/nla.news-article232453121). On field punishment policy and practice see especially Wilson, 51–60, 116–40.

39 The most comprehensive account remains that of Bean, who highlights the views of Pearce and Hughes along these lines in his Official History, 25–32, and esp. 29.

40 NAA, M367/1 403/8/354, Dodds to Secretary of Defence, minute (February 1917); for Dodds as one of the earliest proponents of ‘Australianisation’ see A.J. Hill, ‘Dodds, Thomas Henry (1873–1943)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/dodds-thomas-henry-5990, published first in hardcopy 1981 (accessed 2 March 2020).

41 AWM, Goddard collection, RCDIG0000799, army correspondence book entry (11 November 1917).

42 AWM, Ferguson collection, RCDIG0000041, Birdwood to Ferguson, letter (5 November 1917). Also Sydney Morning Herald, 14 May 1918, 7.

43 Sydney Morning Herald, 14 May 1918, 7.

44 AWM, Ferguson collection, RCDIG0000038, Ferguson to Birdwood, letter (2 June 1918).

45 AWM, Monash collection, RCDIG0000615, Courts Martial Lecture to Presidents (24 September 1916).

46 Wilson, 63–5.

47 Babington; also Gerry Rubin, ‘The Last Word on the Capital Court Martial Controversy in Britain? Towards a History of British Military Law in World War 1’, in Justices militaires et guerres mondiales (Europe 1914–1950), eds Jean-Marc Berlière, Jonas Campion, Luigi Lacchè and Xavier Rousseaux (Louvain-la-Neuve: Presses Universitaires de Louvain, 2014), 39–56; Gerard Oram, ‘The Administration of Discipline by the English Is Very Rigid: British Military Law and the Death Penalty (1868–1918)’, Crime, Histoire & Sociétés/Crime, History & Societies 5, no. 1 (2001): 93–110.

48 Rubin, 52.

49 Bruce Oswald and Jim Waddell, eds, Justice in Arms: Military Lawyers in the Australian Army's First Hundred Years (Sydney: Big Sky Publishing, 2014); Glenn Wahlert, The Other Enemy? Australian Soldiers and the Military Police, Australian Army History Series (Melbourne: Oxford University Press, 1999); Wilson.

50 Defence Act 1903 (No. 20 of 1903), s86.

51 Ibid., s88.

52 V. Le Gay Brereton, Courts Martial: Memoranda for the Assistance of Officers of the Australian Military Forces Convening Courts Martial ([Melbourne]: Adjutant-General's Branch, Army Headquarters, 1923), 3.

53 For provisions governing courts martial see Great Britain War Office, Manual of Military Law (London: HM Stationery Office, 1907); and for British historical context generally see Clive Emsley, Soldier, Sailor, Beggarman, Thief: Crime and the British Armed Services since 1914 (Oxford: Oxford University Press, 2013). For the colonial background and early Commonwealth history, see Oswald and Waddell, 12–17; Albert Neil Preston, Military Law in Colonial Australia (Sydney: Federation Press, 2016); Wilson, chs 2–3.

54 For Solicitor-General Garran's summary of the position at 5 September 1914 (in communication with Brigadier-General Bridges), see NAA, M367/1 403/8/354. See also Stevenson, 109, for the system, which he characterises as one more akin to ‘judicial tribunals’.

55 Stevenson, 117.

56 AWM, PR04808, Tubb collection, RCDIG0000285, diary entry (30 October 1916).

57 Defence Act 1903, s99(1).

58 Manual of Military Law (1907), 36.

59 Great Britain War Office, Manual of Military Law (London: HM Stationery Office, 1914); Brereton; Oswald and Waddell; AIF, Offences and Courts-Martial and Rules and Procedure of Courts-Martial. A Survey of the Provisions of the Army Act (Melbourne: Government Printer, 1916).

60 AWM, Monash Collection, RCDIG0000615, Courts Martial Lecture (24 September 1916).

61 Rain Liivoja, ‘Military Justice’, in The Oxford Handbook of Criminal Law, eds Markus D. Dubber and Tatjana Hörnle (Oxford: Oxford University Press, 2014); Alison Duxbury and Matthew Groves, eds, Military Justice in the Modern Age (Cambridge: Cambridge University Press, 2016); Gerard Oram, ‘“The Greatest Efficiency”: British and American Military Law, 1866–1918’, in Comparative Histories of Crime, ed. Clive Emsley, Graeme Dunstall and Barry S. Godfrey (Cullompton: Willan Publishing, 2003), 159–77. But on its exceptionalism see David H. Denton, ‘The Australian Military Justice System: History, Organisation and Disciplinary Structure’, Victoria University Law and Justice Journal 6, no. 1 (2017): 26, https://doi.org/10.15209/vulj.v6i1.1059 (accessed 29 July 2019).

62 The figures were provided to Monash by the Adjutant General ‘to explain to Mr Hughes [Prime Minister] the position with reference to crime of the Australian divisions compared with the other divisions of the BEF’. Then Major Frank Officer, Deputy Assistant Adjutant General, noted ‘strong objection’ to the figures being handed to Hughes lest they be used for political purposes although they might be sighted. AWM, Monash collection, RCDIG0000638, Officer to Monash (11 November 1918). Figures from January to June inclusive represent the number of men convicted. From July a new system records the number of court martial charges.

63 AWM, Monash collection, RCDIG0000638.

Additional information

Funding

This work was supported by Australian Research Council: [Grant Number FL130100050]; Griffith University: [Grant Number Arts Education and Law Group Research Grant (2017)].