CHAPTER 4

Equal Rights and the Experience of Military Justice for African American Soldiers

While at camp on Folly Island, South Carolina, on May 1, 1864, Wallace Baker of the Fifty-fifth Massachusetts Volunteer Infantry mutinied against Lieutenant Thomas F. Ellsworth, a twenty-three-year-old from Ipswich, Massachusetts, who earned a corporal’s stripe for bravery at Gettysburg before he joined the Fifty-fifth Massachusetts as an officer. Slightly younger and hailing from Kentucky, Baker lost his temper when Ellsworth sent him to his quarters for arriving at an inspection unprepared. Baker returned before Ellsworth dismissed the company and, exasperated at his command’s laughter, the lieutenant repeatedly ordered Baker to his tent. In response, Baker muttered that he would “be damned” before doing so, and he then exclaimed, “I won’t stand to attention for you or any other damned white officer.” At that, Ellsworth angrily seized Baker by the collar and the incident turned into a full-out brawl. Baker repeatedly struck Ellsworth and tried to take the lieutenant’s sword, exclaiming, “You damned white officer, do you think that you can strike me, and I not strike you back again? I will do it. I’m damned if I don’t.” Two nearby black sergeants ignored Ellsworth’s call for assistance but the lieutenant eventually gained the advantage, seized Baker by the neck, and escorted him to the guardhouse.1

Baker’s commanders knew why trouble simmered within the unit. The men had refused to accept unequal pay and now, letters from family members at home begged them to send any money they could. “Patience has an end,” one member of the Fifty-fifth vowed, as the “picture of our desolate house-holds” haunted and hung between them and “our starry flag upon the battle-field.” In the same letter, however, the author vowed that black soldiers could not accept anything except equal pay if they were to stand as citizens. For him, “We have been tried in the fire both of affliction and of the rebels, and nothing remains but pure metal. We took our first lessons at Forts Wagner and Gregg, and our last we are now taking in the field of want, and under the guns of prejudice and hate.” Alternating between impatience, anger, defiance, and pride, this soldier ran the gamut of emotions connected with his unit’s resistance.2

The pay disparity energized the demands of black soldiers for equal treatment but it also undermined discipline. In February 1864, Colonel Alfred Hartwell received an anonymous letter declaring that the Fifty-fifth Massachusetts would stack arms if it had not received pay by the first of March. On April 19, 1864, less than two weeks before Baker’s incident, a mutiny erupted aboard a steamer transporting the regiment between Hilton Head and Folly Island, South Carolina, as Sampson Goliah freed himself from being tied to the ship’s rigging while other soldiers revolted. A week after Baker’s mutiny, Hartwell and another officer testified at Goliah’s court-martial and cited the pay issue as the salient cause of tension within the unit. In a successful plea to spare the defendant from execution, the prosecutor did the same. As other white officers came to realize, most black soldiers mutinied not out of nervous energy generated by camp malaise, or the privations of combat service, but as political action.3

A court-martial comprised mostly of the same officers who tried Goliah convened to try Baker on mutiny charges on May 17, 1864. Members from the Fifty-fifth’s brother regiment, the Fifty-fourth Massachusetts Volunteer Infantry, served as president and judge advocate, with a twenty-five-year-old Philadelphia lawyer, Captain James M. Walton—the same man who prosecuted Goliah and successfully argued against punishing him with death—filling the latter position.4

Baker received due process, an opportunity for defense counsel, and questioned both a white office and fellow blacks—a level of procedural fairness surprisingly typical of general courts-martial of black soldiers. Ellsworth testified first and, having declined counsel, Baker directly questioned him with Judge Advocate Walton’s assistance. Although ineffective as a defense, the moment proved significant in that a black soldier cross-examined his white lieutenant. Similarly dramatic was Henry Way’s testimony, not so much for his corroboration of Ellsworth’s testimony but because he, as a black witness for the prosecution, played an integral role in the judicial proceedings. Baker then questioned several black defense witnesses, who admitted that they considered him “awkward” and “foolish,” with a “strange” way of addressing people, and that when his comrades “wanted to play he would misunderstand them and want to fight.”5

Baker offered no final statement and was found guilty. Influenced by its perception of increasing rebelliousness in the regiment, the court went beyond the imprisonment it ordered for Goliah and condemned Baker to death, a sentence well within its purview regardless of any mitigating factors about Baker’s mental sophistication. On the other hand, George Stephens, a black soldier in the Fifty-fourth Massachusetts Infantry, squarely blamed Baker’s insubordination on the “unjust treatment” endured by black soldiers. Lieutenant Colonel Charles Fox of the Fifty-fifth Massachusetts agreed, later offering that the “sad but necessary execution no doubt saved the lives of others by showing the inevitable result of such a course; but, had justice been done the enlisted men in regard to their position as soldiers, no such example would have been needed.”6

Meanwhile, Baker’s execution in June did little to quell dissidence within the regiment. Seventy-four members of the Fifty-fifth Massachusetts directly petitioned Lincoln in July 1864, explaining, “to us money is no object we came to fight for Liberty justice & Equality,” but also demanding full pay from the date of their enlistment and “immediate Discharge Having Been enlisted under False Prentence.” Despite Baker’s recent execution, the petitioners ominously warned Lincoln that if their grievances went unresolved, they planned to “resort to more stringent measures.”7

The record of Baker’s court-martial reveals a striking juncture between black demands for equal rights and their encounter with the concept of due process through military justice. Baker mutinied out of his expectation for equal treatment and frustration at racism in the army. On the other hand, Baker received the same procedural safeguards afforded to white soldiers, and he stood as equal to whites before military law. As did many other courts-martial that tried black mutineers, the panel attempted to balance between the legitimacy of the defendant’s frustration and the need to maintain military discipline. Black troops encountered in general courts-martial the ideas that they could be treated as equals before the law and that the same law could apply to whites and blacks regardless of race, even where this led to severe punishment in certain cases.

The African American experience with military justice greatly differed from that of Irish Americans. No question ever arose as to whether a different code would govern discipline or trial procedure for Irish Americans in the army. For most Irish American defendants, courts-martial were simply a way of adjudicating typical charges such as desertion, absence without leave, drunkenness while on duty, and conduct unbecoming. As Colonel Patrick Guiney of the Irish American Ninth Massachusetts noted, “Irish soldiers cannot be governed by a military dove with the rank of colonel. They need to be handled as severely as justice will permit, when they do wrong,” so as to improve military effectiveness and discipline. In other instances, courts-martial in Irish American regiments arose out of political conflict between unit officers, but usually not related to nativism or inequality.8

For black troops, the War Department’s decision to apply the same code as for whites comprised a huge step toward equal standing. Moreover, courts-martial of black soldiers served as a crossroads between equal rights and military justice, as they more frequently involved offenses with broad political implications.

The records reveal that courts-martial became an important forum for debate at a moment when blacks and whites struggled with the fluid contours of blacks’ changing status. Thus James S. Brisbin, a Pennsylvania abolitionist, newspaper editor, and attorney who obtained a commission in the regular army early in the war, argued during his representation of a black soldier accused of murder that the country’s collective treatment of blacks transferred blame for African American crimes to whites. Brisbin conceded that the judge advocate proved the crime but argued that the country had responsibility for the incident, “because we have permitted this man to be made a beast of burden and an ignorant savage hesitating between right and wrong, vacilating between bad and good.” The court should not sentence the defendant to death, Brisbin asserted, because its members had been party to the “barbarism of the age” which led to his degraded status. “We made him what he is,” Brisbin continued, “We blinded him and that made him the ignorant wretch he is and he did not know the amount of danger there was to himself in taking the life of Thomas McGrath.” The judge advocate, a self-described “radical abolitionist,” replied strongly by offering that freeing and arming the slaves gave them individual responsibility and placed them on the path from subjugation to equality. “I am not responsible when a negro commits murder. You are not responsible,” Lieutenant Colonel William H. Coyl of the Ninth Iowa Volunteer Infantry contended, and he claimed it as an error to think that “our object has been to free the slaves…simply to allow them to run wild and kill people and then say, that they have been slaves and are irresponsible.” As Coyl explained to the court, “Our object has been to raise up the negro” and to “put a gun in his hand, and make him useful to free him; to make him a man, as responsible as we are, for every act.” Coyl found Brisbin’s plea misplaced because they now stood “on the broad platform of ‘rights to all,’ and say that the negro is able to take care of himself.” These words clinched the defendant’s death sentence and on June 13, 1865, a black Union soldier was hanged at Louisville, Kentucky, alongside a separately convicted white civilian guerilla. The closing statements also underscored a broader debate: whether blacks could, and should, stand as equal citizens, or if a special category should be carved out that recognized their American citizenship but also a doctrine of their distinction or racial inferiority.9

The courts-martial records also uncover a previously unexplored avenue through which to examine how black soldiers vigorously refuted past lives as slaves now to claim rights as freedmen, soldiers, and citizens. Black mutineers embraced an alternative legal order, seeking to change laws which distinguished between whites and blacks and to bring official legal practices into conformity with their vision. Blacks turned the court-martial into an important way station on the road to freedom and citizenship, even where it punished those who violated military law. Besides revealing a surprising level of due process, general courts-martial records show the extent to which blacks situated themselves as American citizens by opposing discrimination, defying legal precedents that failed to acknowledge their equality, and advancing their interpretation of legal meanings and practices. The cases reflect black anger at white discrimination but also demonstrate how the empowerment some African Americans felt on donning Union blue led them to protest further inequity. These black soldiers demanded equal treatment and rights, sometimes at the cost of their lives.

Moreover, the experiences black troops, including many former slaves, had in courts-martial proceedings helped to shape their postwar agenda of legal change. Once in the courtroom, blacks encountered, sometimes for the first time, the concepts of the rule of law, equality before the law, and due process protection. While not the sole source of these concepts, courts-martial in the armed forces nonetheless provided blacks with an unexpected, and neglected, encounter with these core ideas, which they incorporated into their developing definition of citizenship.

The Procedure of Military Justice

Military justice in the U.S. Army dates to June 30, 1775, when the Continental Congress enacted the first Articles of War. Based on the British model in effect at the time, this code prescribed basic procedure for both general and regimental courts-martial. In September 1789, Congress affirmed that the Articles of War governed the army, thus continuing the existence of the courts-martial system as established before the Constitution. A revision in 1806 drew the Articles of War into the form that remained in force until 1874. In addition to the Articles of War, soldiers had to obey regulations issued by the War Department as well as department, corps, brigade, post, regiment, and company rules.10

Along with congressional legislation, the Articles of War defined the means by which the army administered justice during the Civil War. A regiment’s or garrison’s commander could appoint courts-martial consisting of three commissioned officers to try soldiers charged with noncapital crimes. Regimental or garrison courts-martial could order corporal punishment but could neither try a commissioned officer, nor inflict a fine exceeding one month’s pay, nor sentence a soldier to imprisonment or hard labor for a term longer than a month. A single officer in a regiment could be detailed to form a field officer court, created by Congress during the Civil War to replace regimental and garrison courts-martial. The field officer court allowed for summary disposition of minor cases while a unit was on active field service. With identical jurisdiction as a regimental court-martial, the field officer court was to forward more serious cases to a general court-martial. General courts-martial also had jurisdiction over capital-level cases and those involving commissioned officers, and could be appointed only by the commander of an army, military division, or department, or the president. A general court-martial was to have thirteen members, though where thirteen could not be assembled due to illness, manifest injury to the service, or other good cause, a lesser number could serve so long as the panel did not drop below at least five sitting members. No death sentence could be imposed unless two-thirds of the panel concurred, though other available punishments included confinement (including solitary or while on a bread and water diet), hard labor, the wearing of a ball and chain, pay forfeiture, discharge, reprimands, and reduction to the ranks for noncommissioned officers. An August 1861 statute abolished flogging in the army. Finally, military commissions could be convened with a minimum of three officers on the panel. These smaller bodies could impose capital punishment and usually dealt with civilians in places where civil courts had ceased to function, but had jurisdiction over soldiers during time of war or rebellion in cases of spying, murder, manslaughter, mayhem, robbery, arson, burglary, rape, and other serious crimes not of a purely military nature as defined in the Articles of War.11

Most general courts-martial transcripts are marked by the businesslike conduct of officers determined to do their duty as members of the court. Based on his service on one, Colonel Thomas W. Higginson deemed general courts-martial “an accurate & admirable, though most tedious, method of sifting the truth,” though he acknowledged that these military courts tried capital cases and considered issues so grave that only the highest courts addressed them in civil life. Nonetheless, Higginson found the “rules of Court Martial…so much more formal & careful than those of civil courts that one may venture among them with less risk of error.”12

On the other hand, regardless of a defendant’s race, court-martial panels could impose justice harshly. Captain John McMurray recalled his service on a panel at Yorktown, Virginia, that considered cases involving about thirty soldiers, primarily deserters from the white Second New Hampshire. After it sentenced two defendants to execution prior to McMurray’s joining the proceedings, the court felt that it had provided sufficient deterrence, found only one more individual guilty, and sentenced him to several months of hard labor. Two officers on the panel, however, both from the Second New Hampshire, voted guilty nearly every time, and wished to inflict death at every opportunity. McMurray remembered decades later, “I shudder when I recall their votes in case after case tried before us.” Fortunately for the defendants in these cases, the overzealous officers represented a minority of the court.”13

While the regulations did not provide for them, drumhead courts-martial dispensing summary justice were occasionally held in the field on order of higher authorities, despite the mandate in the Articles of War that no soldier should suffer death except by concurrence of two-thirds of the members of a general court-martial. Though the availability of records and extent to which executions were reported makes certainty difficult, it seems that, contrary to conventional wisdom, few of the proceedings involving execution of black soldiers were drumhead in nature.14

More common, if just as severe, were instances in which officers lawfully shot men without trial. For example, Lieutenant Colonel Harai Robinson of the First Louisiana Cavalry believed “decisive action” necessary when the Second Rhode Island Cavalry mutinied in late August 1863 to protest orders to consolidate with the Louisianan unit (both were white regiments). Robinson surrounded the camp with his troops, selected two ringleaders, and wrote the order for their execution from his saddle. Both an investigating military commission and the department commander regretted the loss of life but found Robinson’s action justifiable, and by August 1864 he found himself serving as provost-marshal of the Department of the Gulf.15

While general courts-martial gained greater publicity, the discipline administered by single officers or regimental and field officer courts-martial had greater impact on the everyday lives of soldiers. Individual officers usually ordered an offender to serve extra duty, though other possible punishments included standing at attention on a barrel head, riding a wooden horse (a rail set several feet above ground), being struck with the flat side of a sword, flogging (despite regulations prohibiting it), tying up by the thumbs so that the soldier’s toes barely touched the ground, or bucking and gagging, where the offender sat with arms around his knees and tied at the wrists with a piece of wood in his mouth. Abuse or arbitrariness most frequently occurred on this level in the administration of army discipline, and most commonly generated tension between white officers and black subordinates.16

Soldiers in all regiments, black or white, commonly experienced firsthand encounters with official military discipline. While punishment pursuant to an individual officer’s orders was by far the most common disciplinary method, some form of court-martial tried 137 of 1,707 enlisted men who served in the Sixty-fifth USCI for more serious infractions. Seven men were two-time offenders while two faced a court-martial three times. The most common offenses included assault, conduct prejudicial to good order and military discipline, neglect of duty, sleeping on post, disobedience, and absence without leave. Notably, seventeen men who faced courts-martial stayed in the regular army after the expiration of their terms of service and volunteered for the Ninth U.S. Cavalry in 1866. The regimental history of the Ninth USCI, meanwhile, shows that, at least in that regiment, noncommissioned officers were frequently reduced to the ranks. At least eighty men who served as corporal or sergeant were reduced and one was also placed in confinement. Though nine received later promotion, one was reduced a second time. One can assume that day-to-day discipline of individual soldiers was vigorous in both units as well.17

The Black Experience with Military Justice

Traditional generalizations assume that racism and unfairness pervaded the treatment of black Civil War soldiers even by the official military justice system. Historians examining this particular issue, however, have differed on whether general courts-martial provided black defendants with procedural fairness and treatment equal to that afforded white soldiers. Ira Berlin noted that army regulations applied safeguards both to whites and blacks, and that general courts-martial accordingly afforded blacks substantially more rights than slaves had ever hoped to claim. Joseph T. Glatthaar maintained that race represented a critical factor in executions, but he also admitted that a review of capital-level courts-martial proceedings reveals a “surprising degree of fairness.” On the other hand, Steven J. Ramold more critically appraised the army’s administration of justice, and he contrasted “intense racism and stereotyping that black soldiers overcame to serve in the Union army,” with the navy’s “highly credible record of race relations during the Civil War” based on integrated crews, equal pay, benefits, and health care.18

Racism in the Union army tainted the disciplinary process on other levels, but the records reveal that officers on general court-martial panels wrestled with providing fair judicial process to black defendants while maintaining necessary discipline. Black soldiers often received equal treatment and justice in cases involving capital-level crimes. While most mutineers’ protests were well grounded in legitimate grievances, and for that reason some may argue with merit that they were unfairly punished by definition, that did not change the gravity of their crime in the eyes of military law. Nonetheless, in many cases, authorities tried to avoid imposition of the death penalty even where the Articles of War called for it.

For blacks, military discipline proved especially critical in transforming former slaves into soldiers and, all excesses aside, it served as a force for unit cohesiveness. Military regulations also provided blacks with a paradoxical relationship between freedom and equality. Most black soldiers learned the difference between the army’s rule of law and the capricious wielding of individual authority under slavery, though a few soldiers nonetheless resisted white officers as the replacement of one master by another. Meanwhile, USCT officers faced a difficult position. Their perceptions of black troops reinforced the need to maintain strict discipline at the same time many black troops explored their uncharted experience with liberty. Black soldiers gave up some liberties they would have enjoyed as civilians on emancipation, yet they also earned a greater level of equality pursuant to their service. In this tension, blacks probed the boundaries of acceptable behavior, while many white officers attempted to maintain strict discipline with legal and extralegal punishments, which they had learned during their service in white regiments. Some of these admittedly cruel punishments proved inappropriate for black troops, especially ex-slaves. Complicating matters, not only did unequal pay undermine discipline in its own right, it generated skepticism among black soldiers that they would receive justice on other issues. The ensuing level of distrust this situation caused between black soldiers and white officers continued even after resolution of the pay issue.19

Colonel Thomas W. Higginson, an abolitionist Unitarian clergyman turned commander of the First South Carolina (African Descent) (later designated the Thirty-third USCI), perceived that close supervision tempered with consideration of his men’s past experiences resonated best with black troops. Higginson sought to use military discipline and regulations as a way to “develop self respect” in his men and help their transition from slavery to freedom. Higginson sought to impress on his men “that they do not obey officers because they are white, but because they are officers.” Similarly, Lieutenant Colonel Henry Stone reminded the officers of the One Hundredth USCI that “men must be made to feel that it is law and orders that have been violated when an offense is brought to punishment, not merely the directions of the individual officer.” Lieutenant Colonel David Branson prohibited officers in his Sixty-second USCI from ordering corporal punishment, warning that “men will not obey; as promptly, an officer who adopts the customs of the slave driver to maintain authority, as they will him who punishes by a system consistent with the character and enormity of offences and the spirit of the age.” Some court-martial panels even considered the defendant’s familiarity with military regulations, in keeping with initiatives to ensure that black troops understood that military discipline was not based on the rule of individuals but a codified structure of law. Other officers, however, showed little sensitivity to black experiences and prescribed punishments such as gagging or tying for even petty offenses in an effort to inculcate discipline in men they saw as degraded by slavery. While many black soldiers respected officers who were firm but just, they resented those who used punishments that recalled those administered on the plantation. Understanding that their status had changed, and that free people experienced procedural rights in lieu of arbitrary punishment, black soldiers balked at penalties that echoed slavery. Black soldiers also refused to revert to old practices of discipline after their early encounters with the concepts of due process and a standardized rule of law that could apply regardless of race.20

Black noncommissioned officers played integral roles in mediating discipline. Their place in the chain of command put them in the occasionally uncomfortable position of carrying out officers’ orders, but many of them understood the need for discipline to ensure military effectiveness as well as to lay the foundation for more general black improvement. Sergeant Samuel Green told potential mutineers about to protest the tying up of comrades

that all armies had to have regulations and all men were sworn in to obey orders. it was no use for them to cut up about the boys for if they cut the boys loose they would want to fight them[.] I told them that just such men as they were cutting up about started the rebellion in the commencement and I didn[’]t see the use of 10 men rebelling against a regiment or a regiment against the United States Army. I told them that it had not been but a few weeks since the Colonel had talked to us about such things and now it was awful to think about let alone to do it. Then some wild fellow said that some men who upheld the officers were no better than they were and that they could destroy them as well as the officers. I replied that I didn[‘]t tie the man and didn[‘]t have it done and that I wasn[’]t going to have anything to do with them[.]

The mediation of noncommissioned officers did not always succeed, and black soldiers sometimes resented their enforcement of orders issued by whites. Noncommissioned officers also faced additional charges, as a result of their rank, when they participated in a mutiny or failed to try to stop one.21

Some commanders of black troops overstepped their authority and, in situations in which soldiers resisted orders or acted violently, shot soldiers where a lesser punishment, or at least a general court-martial, was appropriate. Troubling for its callousness was Colonel James Montgomery’s enforcement in the early summer of 1863 of an order he issued in trying to stop his men from leaving camp to visit their nearby families. Montgomery directed the execution of those who did not return voluntarily. After the capture of one such soldier, the colonel asked him if there were any good reason why he should not be shot. When the prisoner replied in the negative, Montgomery simply answered, “Very well; you die at half past nine o’clock this morning.” According to Colonel Thomas W. Higginson, who deemed Montgomery a “sore disappointment,” Montgomery intended to shoot two more soldiers before a surgeon convinced him not to do so. In other cases, even officers generally complimentary of black troops sometimes felt driven to such drastic means, especially in the context of a violent threat.22

Procedurally, regardless of race or former slave status, a defendant facing a general court-martial during the Civil War had the right to challenge members of the panel to recuse themselves and was informed of his right to retain counsel, with whom he could meet to prepare his defense. If a defendant declined counsel, a court-martial panel could not interfere with his conducting his own defense, no matter how “unskilful or troublesome,” except “to enforce…decorum and respect for the law.” While the judge advocate prosecuted on behalf of the United States, in the absence of defense counsel, the judge advocate also had the duty to act as counsel for the prisoner after the accused made his plea. This safeguard did not afford a full defense, but the judge advocate had a duty to object to any leading question to any witness, or any question to the accused in which he might incriminate himself. Furthermore, the judge advocate was supposed to take care that a defendant without counsel did not suffer from ignorance of his legal rights and had a full opportunity to bring out any extenuating circumstances of his case.23

In order to increase the participation of officers thought likely to be less biased against blacks, some courts were composed entirely, or at least in part, by officers assigned to the USCT. Black or white, no prisoner could be sentenced to death by court-martial except by concurrence of two-thirds of its members. While procedural irregularities existed in some cases, these deviations likely reflected the fact that soldiers, not attorneys, conducted these trials. Across the board in the extant files, black defendants had the opportunity to object to members of the court and whether they took advantage of it or not, were advised that they had the right to representation. Black defendants who declined counsel still had the right to question white witnesses, while black testimony, even that offered by slaves, frequently played a prominent role in their trials. While judge advocates and defense counsels sometimes placed race in issue, or witnesses used it as an identifying factor, the records do not indicate altered procedure or standards because of a defendant’s race. When crimes occurred at night, panels sought to establish if sufficient light had existed for witnesses to accurately establish identification. Moreover, in June 1864, before Lincoln, on July 4, 1864, signed legislation opening federal courts to black witnesses, the judge advocate’s office affirmed that blacks could testify before military courts regardless of any disqualifying laws in the state in which the court sat. Black soldiers enjoyed rights and opportunities previously denied them in civilian life, because as soldiers they were entitled to uniform application of the Articles of War and other regulations concerning military discipline and trial. Rather than devise a separate scheme to address discipline within the USCT, the federal government treated blacks on par with white soldiers in this regard from the beginning of their army service during the Civil War.24

Some proceedings relied exclusively on African American testimony, affirming blacks’ right to testify and familiarizing these soldier-witnesses with the legal process. At times, the court-martial process also validated the idea that black civilians, and not just black soldiers, had the right to testify. For example, no distinction was made concerning slave Sophia Cummins’s testimony in a murder trial at Lexington, Kentucky, in July 1865. Astonishingly, both free blacks and emancipated slaves experienced something formerly unavailable to almost all of them: the privilege of testifying against white defendants. Black soldiers and civilians offered testimony against white officers and enlisted men who engaged in improper recruitment practices or committed financial crimes against soldiers.25

In some cases, counsel for African American defendants questioned notions of racial equality by casting aspersion on black testimony. The testimony of two black civilian witnesses was integral to the prosecution of William Henderson, charged with murdering two white women in Arkansas in November 1864. Bolstering the eyewitness testimony the civilians provided, a black corporal recalled Henderson talking about the murders, and a lieutenant colonel testified about finding the deceased’s property under Henderson’s bunk the night after the shootings.26

Represented by a lieutenant from his regiment, Henderson’s defense went poorly. One defense witness responded to a question about Henderson’s character that he was a “first rate soldier but a wicked man.” Wisely, the defense ended its questioning and instead submitted a written statement that mirrored the Brisbin-Coyl debate discussed earlier. The statement urged the panel to discount the testimony of all the black witnesses on the theory such witnesses often swore falsely because they had been held in bondage, frequently had to steal their food and lie about it, and “having thus been raised in slavery and in ignorance, they do not value their oath as sacred, as white men do.” In an attempt to cast doubt on the identification of Henderson by two black civilians, the defense argued that whites had a hard time differentiating between blacks and observed that the vision of a white man and a black man was the same. The statement concluded by tugging at any racial bias of the panel: “Is there a person who would not shudder at the thought of having his life placed in the hands of [the two black civilian witnesses]?” The panel rejected these arguments, and Henderson was executed.27

Frequently, black defendants were found guilty because of solid evidence or testimony. In many instances, a feeble defense, or none at all, contributed to conviction; in others, a confession doomed the accused from the start. In some trials, however, valid defenses or mitigating factors proved decisive. In light of his verifiable alibi that he was already under arrest at the time, Private Street Humphrey of the Forty-ninth USCI found himself deemed innocent of mutiny charges against him. While the court sentenced two ringleaders of this mutiny to be shot and seventeen others to hard labor for life, the court also sentenced the last defendant, Robert Randall, to hard labor for the remainder of his service. No apparent reason justified this lighter sentence other than one witness’s testimony that Randall did not go with the others to stack arms because they had left without him while he was looking for his bayonet. Although not reflected in the record, perhaps the panel wondered if he had deliberately stalled and gave him the benefit of that doubt.28

Similarly, Henry Cox, who participated in a fifteen-person conspiracy that ransacked a house near Vicksburg and murdered a white civilian, had his death sentence remitted and was returned to duty based on testimony that he had tried to prevent the death. In another case, William Jackson shot at and intended to kill a slave who had destroyed letters to his wife, told her that Jackson had died, and impregnated her. Yet, the court exonerated Jackson with the finding that “a man that wantonly violates the domestic relations of a soldier, by seducing his wife, while he is absent in the service of his country deserves the heaviest punishment known to the law; and the aggravation arising from such a damning wrong inflicted on the Accused, in the opinion of the Commission justified the shooting of the perpetrator of the wrong.”29

Due process afforded Sergeant Samuel Green, who defended himself without counsel, acquittal based on his cross-examination of a white officer and testimony he elicited by questioning two black defense witnesses. Green allegedly mutinied aboard a transport steamer with his 109th USCI. When some men in the regiment grew agitated after several of their comrades were tied up on deck for neglect of duty, Green went to an officer in his unit, Captain Aaron H. Keene, to ask for the prisoners’ release. Keene interpreted Green’s warning that if they were not freed, “it will raise the devil,” as a threat. A black witness for the prosecution, however, stated that Green had expressly advised the men not to create a disturbance. Two defense witnesses offered that the sergeant exerted himself to calm the men and went to the captain to prevent a possible mutiny in the first place while a group of soldiers gathered nearby—an example of a noncommissioned officer mediating between military discipline, white officers, and black troops. After hearing that Green told his comrades that armies had regulations that had to be followed, the court found him not guilty and restored him to duty.30

Because court-martial panels could impose justice harshly, regulations required army or department commanders to review proceedings involving capital sentences and these officers sometimes commuted the sentence. George Douglas placed the point of his bayonet near the chests of two officers aboard a transport steamer near New Orleans on June 19, 1865, and told them that “no white son of a bitch can tie a man up here” while other soldiers released a man tied up as punishment. Douglas mounted no defense and received a death sentence which his department commander, Major General Horatio G. Wright, mitigated to ten years hard labor without further explanation for his leniency.31

Capital sentences involving spying, desertion, mutiny, or murder did not require examination by the War Department or the president during time of war or rebellion, though regulations required army or department commanders to forward proceedings that involved a questionable issue, possible defect, or mitigating factor to Washington for review. This action suspended the sentence until the president’s “pleasure be made known.” Moreover, procedurally defective proceedings could result in the defendant’s release from sentence despite clear evidence of guilt. On May 7, 1865, privates Lewis Dickinson and John Shaw of the Fifty-fifth Massachusetts argued while cleaning their guns. Shaw threatened to kill Dickinson but no one took his threat seriously. After roll call that day, however, Shaw approached Dickinson and struck him on the head with a large branch, fracturing his skull and killing him. A court-martial convicted the teenaged Shaw for murder, but a defect in the proceedings regarding the calling of the court negated his punishment and he returned to duty. Shaw subsequently faced at least two more courts-martial, one for threatening to kill two members of his company and another for deserting from the guard house in Orangeburg, South Carolina, on July 2, 1865.32

The War Department also showed occasional leniency when it felt racist officers had provoked mutineers, even when a mutiny had been violent. Such favorable conduct toward blacks persisted after the war. In July 1867, for instance, Judge Advocate General Holt recommended commutation of several death sentences in the mutiny of a black regular army cavalry regiment—one in which a white lieutenant died at the hands of African American subordinates (a black soldier also died). After contending that he had never considered a “more shocking illustration of the brutal tyranny which an officer has it in his power to exercise,” Holt condemned the “savage treatment” exhibited by Lieutenant Edward M. Heyl toward his command. Heyl, the court discovered, had tied three subordinates to a tree by the wrists so that their feet were off the ground, struck them several times with the flat of his sword and stabbed at least one of them three times. While finding it indisputable that the defendants had mutinied, Holt considered their actions the result of “great provocation” and “terror,” and declared that Heyl’s conduct was “the immediate, indeed the only, cause” of their outburst. Holt recommended leniency toward the defendants, who returned to duty, and expressed more concern that the “malignant cruelty with which the men were treated” would destroy military discipline and the esteem in which people held the service. Holt recommended that the troubled lieutenant, who survived the mutiny, be tried by general court-martial.33

General courts-martial had significant impact. They involved not only defendants, witnesses, and the court panels but also the members of the units of these individuals who likely learned about both case and proceeding. Orders promulgating death sentences often required that these executions take place in front of the condemned man’s brigade or division, and large numbers of soldiers likely inquired about the background of the executions they witnessed. Dissemination of knowledge about court-martial procedure, whether or not involving capital charges, prepared black soldiers to face the rule of law in civilian life. Former soldiers applied their knowledge of the military judicial system to file complaints, pursue opportunities to testify, and appeal judicial holdings when they thought such actions appropriate. Moreover, firsthand experiences with general courts-martial helped instill in blacks awareness of the concepts of due process and equal application of the law, regardless of race or slave status, and the idea that courts could protect black rights written into the law. These doctrines became core components of the vision of American citizenship that blacks asserted after the Civil War.34

Mutinies, Courts-Martial, and the Black Civil War Soldier

Mutiny cases often revealed a sense among blacks that their status had changed, as they made demands for equal treatment. Additionally, mutiny cases earned the attention of antislavery leaders and politicians who, like the mutineers, advocated a new legal order. While mutineers suffered punishment for their breaches of military discipline, their resistance against inequity in support of a vision of black equality did not pass unnoticed by members of either race. Mutiny proceedings became a crossroads between military justice and equal rights because the heat of the courtroom, and trials in which life literally hung in the balance, uncovered the character of race relations in both the Union army and broader society.35

Writing during the Civil War, military law commentator Stephen V. Benet defined mutiny as “resistance to lawful military authority,” whether “active or passive,” encompassing “not only extreme insubordination, as individually resisting by force, or collectively rising against or opposing military authority, but a murmuring or muttering against the exercise of authority, tending to create disquiet and dissatisfaction in the army.” The Articles of War did not precisely define mutiny, but provided that any officer or soldier could be executed who began, caused, or joined one, did not do his utmost to suppress such an uprising that took place in his presence, or knew about an impending mutiny and failed to tell his commanding officer. The Articles of War further emphasized that anyone who so much as lifted a weapon, or offered violence, against an officer while in the execution of his duty could be sentenced to death.36

Black soldiers frequently faced mutiny charges because they lashed out against racially based injustices they suffered in the armed services. The most obvious example remains resistance to unequal pay, though other grievances early on earned black protest as well. Despite the strictures of military discipline, many of these men asserted their rights and demanded redress when they felt their terms of enlistment had been violated, or they had otherwise suffered unacceptable treatment. While historian Joseph T. Glatthaar accurately observed that many of the mutinies involved “non-violent protests for legitimate reasons,” even more aggressive demonstrations generally had their roots in complaint about valid grievances. Examining both types of demonstrations illuminates the extent of the racism that black soldiers had to face, whether in official policies or inexcusable actions by some of their officers but also emphasizes their immediate demands for equality and unwillingness to suffer continued prejudice.37

Unfortunately for black mutineers, their protests occurred well into the war, after the initial impulse for lenience toward violators of military law and tolerance for dissent had disintegrated. Although flawed as a comprehensive record, the List of U.S. Soldiers Executed by United States Military Authorities during the Late War suggests that disciplinary leniency diminished as the war progressed. According to the List, only 7 and 14 federal soldiers were executed in 1861 and 1862, respectively. These numbers rose dramatically, though this also likely encompasses the greater numbers of men under arms as the war progressed: 67 in 1863, 95 in 1864, and 79 in 1865. Only 5 executions took place in 1866, for a total of 267 named on the admittedly incomplete list. Almost all of the 56 black soldiers listed on the List were executed in either 1864 or 1865. Fifteen of approximately 253 blacks charged with mutiny were executed by the sentence of a general court-martial, as were 4 white mutineers. Despite the gravity of the crimes committed by black mutineers, court-martial panels tried to confine capital punishment to either ringleaders or situations where a mutineer threatened the life of a white officer, and seem to have been generally cognizant that these mutineers’ protests were political and not simply a release of frustration at a soldier’s life. In some cases, defendants faced lesser charges even where their conduct constituted mutiny, or authorities asserted grounds for ameliorating death sentences. David Washington, a bugler in the Third USCC, faced a charge of insubordination, not mutiny, for striking a captain and refusing to be tied up as ordered for absence without leave. Even after defense witnesses made damaging statements at trial, and where Washington faced other serious charges, the court-martial panel sentenced him to only a year’s hard labor without pay. Furthermore, officers permitted soldiers to refuse pay even though this technically constituted mutiny.38

Sampson Goliah’s case sheds light on black resistance to inequality and hatred of punishments reminiscent of those inflicted on the plantation, as well as the court’s location as a meeting point in balancing the rule of law with sympathy for legitimate grievances. In the course of the Fifty-fifth Massachusetts’s transfer from Hilton Head to Folly Island, South Carolina, aboard a steamer on April 19, 1864, the officer of the guard, Lieutenant Jacob A. Bean, heard talking below deck after taps and repeatedly ordered the men to be quiet. Bean ordered Goliah up on deck after he continued to talk loudly and use profanity. Goliah angrily refused to go “for any damned white officer,” and threatened to “smash” Bean if he laid hands on him. Another officer, Captain William Nutt, overheard the conversation as well as Goliah’s declaration that “you Massachusetts men have bene humbugging us long enough” and “we are going to do as we please after this.” Nutt came to Bean’s assistance and handcuffed Goliah when they got the soldier on deck. Regimental commander Colonel Alfred S. Hartwell ordered the boat’s captain to rope Goliah to the rigging for two hours unless Goliah ended his resistance (neither Hartwell nor Bean knew how to tie a man to ship’s rigging).39

Ninety minutes later, more than a dozen men gathered on deck and announced that they intended to free Goliah because he “had been tied there long enough,” and by a civilian no less. Bean ordered the single available guardsman to fix his bayonet and commanded the men to leave, but they taunted Bean, asking what one man could do when “there are five Companies of us and they will all be on deck in a few moments.” Goliah freed himself by untying the rope with his teeth, and when Bean drew a pistol, Goliah grabbed it with both hands and cocked it. In the dark of night, a terrified Bean tussled with Goliah and the others until Goliah escaped below deck. Meanwhile, another soldier later found guilty of mutiny, Nelson Browning, told Hartwell that “other ways [existed] of punishing a man without having him tied up.” When a company commander, Captain William Crane, tried to convince Browning that it served no purpose to participate in the uprising, the aggrieved soldier replied, “I know that Capt. Crane, but we have had enough of our men killed already”—a reference to Benjamin Hayes, shot at Readville, Massachusetts, for resisting an officer’s authority during training, and several others hanged at Jacksonville, Florida, for rape pursuant to the sentence of a military commission. Hartwell ordered three sergeants to retrieve Goliah and he was again handcuffed.40

On May 7, 1864, nearly a week after Wallace Baker’s mutiny in the Fifty-fifth Massachusetts, Goliah pled not guilty to seven specifications of mutiny. The judge advocate solicited Nutt’s testimony that discontent existed in the regiment “because they…had not been paid according to the terms of their Enlistment.” Colonel Hartwell reiterated that tension developed “because the Regiment had not been paid at all—nor offered pay according to terms of enlistment.” Hartwell then described Goliah’s outburst as “the first violent or mutinous expression of their feelings,” and he expressed that he had “reason to think that very few men sympathize with these proceedings.” Within days of testifying, a frustrated Hartwell wrote Massachusetts governor Andrew, “For God’s sake, how long is the injustice of the government to be continued toward these men?” asking if the government meant to “goad them into mutiny” only to “quench the mutiny with blood.” The next month, Hartwell wrote the secretary of war to ask for the muster out of his Fifty-fifth Massachusetts, while at the same time he and his officers struggled to prevent further disciplinary outbreaks among the men. Despite the inequities suffered by their troops, the regimental officers determined to enforce military regulations as the only method for handling the situation.41

Goliah questioned his commanding officer, Hartwell, and several witnesses corroborated that Goliah verbally resisted Bean. In keeping with his duty to bring out any exculpatory evidence, Judge Advocate Walton asked one witness if Goliah seemed willing to go up on deck if unmolested, to which the witness replied that he did. Goliah rested his defense on this point, stating in his final argument that he intended to go and told Bean as much, but that he would not suffer the indignity of being dragged. Goliah potentially faced a death sentence for his actions but Walton made a powerful plea for his life. “Your oath to ‘well and truly try and determine the matter now before you’ calls upon you to declare whether the acts of the prisoner are of that aggravated nature called mutiny,” Walton pointed out. Arguing that “a grave offense has unquestionably been committed, and one to which heavy penalties should be affixed,” Walton simultaneously questioned if it constituted “mutiny in the highest degree” such that “the extreme rigor of the law” need apply. Citing his duty as judge advocate to call the court’s attention to mitigating circumstances, Walton highlighted Hartwell’s testimony about discontent in the regiment due to the pay issue and concluded, “It is for the Court to see that the dignity of the law is maintained as well as the rights of the prisoner secured.” Fifteen minutes later, the court sentenced Goliah to hard labor for the remainder of his term of enlistment, forfeiture of all pay, and dishonorable discharge, but not death.42

A protest in Battery F, Second USCA (Light) reveals the resentment black noncommissioned officers sometimes faced in trying to maintain military discipline, as well as the expectation of those noncommissioned officers that they would be treated the same as their white counterparts. Sergeant Horatio Price, a white sergeant detailed from the Seventh Wisconsin Artillery to act as the battery’s lieutenant, ordered Corporal John Heskins tied spread eagle across the spare wheel of a caisson after Heskins drunkenly broke into a sutler’s establishment. Sergeant Anderson Tolliver and others in the battery went to Price to discuss the punishment and things grew heated despite Captain Francis Marion’s efforts to resolve the situation peacefully. Tolliver turned to the men and told them they should fight it out, and either Tolliver or Sergeant John Hall defiantly told Marion that they would not allow “any damned white man from another company to punish them.” Armed soldiers gathered and defied Marion’s order for everyone to return to quarters, vowing that “he is but one white man anyhow.”43

Some black soldiers resisted the mutineers, however. Tolliver struck Sergeant John W. Chandler on learning that Chandler had carried out Price’s orders, telling him that he “had tied up that man for them damned white sons of Bitches.” In reply, Chandler declared that he acted pursuant to orders and announced that, while restraining himself for the moment, he would shoot the next person to lay hands on him. Corporal of the guard James Paydon threatened to shoot the first man who tried to untie Heskins and ordered another member of his guard to “let no one touch that rope.” Nonetheless, someone did untie Heskins in the pandemonium and it seemed that the party intended to overpower the provost guard sent to quell the rebellion. Once reinforcements arrived, however, Marion arrested Tolliver and others from the crowd.44

Eight soldiers faced trial together for mutiny in Memphis, Tennessee, on March 30, 1864. Most of the defendants offered statements after a vigorous defense conducted by counsel formerly assigned to the court-martial detail. Tolliver and Hall averred that it was customary in the battery that noncommissioned officers would not be tied up. Hall did not justify his actions, and even confessed that he did not expect acquittal, but observed that the fact that a fellow noncommissioned officer from outside the unit meted out the punishment exacerbated the situation. Hall argued that all noncommissioned officers stood as equals, with certain privileges regardless of race, and claimed that “it is not surprising that it should have caused a general excitement among the men, and that expressions should have been used and threats made, which under ordinary circumstances would deserve severe punishment.” Four of the defendants received sentences of three years imprisonment, while Tolliver received four years. Meanwhile, the court exonerated two defendants based on their statement that no evidence existed against them other than their presence in a crowd watching the disturbance. The court also returned to duty bugler Isaac Reeves, even though he loudly proclaimed during the mutiny, “fall in boys and let us clean them fellows out.” An officer testified that Reeves did this for braggadocio’s sake, and Reeves asserted in his defense that he used “indiscreet expressions” in jest after the mutiny ended.45

Asserting their role as protectors of other blacks, soldiers of the Ninth Louisiana Infantry of African Descent came close to execution after they protested the beating of a black civilian in camp near Memphis, Tennessee, and orders that their families were going to be relocated out of easy reach. On January 28, 1864, Lieutenant William Striblen and another officer physically subdued the civilian, who had resisted arrest, leaving him bloodied from several bayonet wounds. Seven or eight armed soldiers left a fatigue detail without orders to confront what they perceived as two unacceptable violations. Striblen later testified that the men “looked very defiant and scowled as I came to them.” As Striblen disarmed one of the men, they demanded to see their families and expressed anger at the relocation policy. Charles Davis then noticed that Striblen had a partially concealed pistol and called out that Striblen intended to shoot. One of Davis’s comrades, Sterling Bradley, stabbed Striblen and penetrated his right lung, before another soldier knocked the officer to the ground. Becoming weak from the loss of blood, Striblen staggered to his tent, turning and indiscriminately firing his pistol on the way. Striblen denied that he had ever told the mutinous troops that he had nearly killed one black that day and intended to kill another before nightfall, though a black witness confirmed that Striblen often treated the men poorly and corroborated that he passed the comment.46

Captain J. A. Staley represented both Davis and Bradley in their individual proceedings and argued that the excited men armed themselves “to prevent some person, or persons from removing their families beyond their reach,” which they saw as violating their original agreement to enlist. Furthermore, Staley argued, the men showed understandable anger after “one of their own blood is brought before them bleeding, and suffering from wounds unnecessarily severe, (if indeed necessary at all) inflicted by two Officers, one of whom is their own commander.” Both issues caused the outburst, Staley asserted, and he scorned Striblen’s clumsy handling of the day’s events (and the behavior of other USCT officers who acted similarly) in that “like many others he was in attempting to do by force, what could be better accomplished by kindness.” Yet, while arguing that blacks acted just as whites would have done because “nothing so quickly and certainly arouses the belligerent feelings of men, who have a proper regard and affection for their wives and children, as indignity, insult, or injustice offered to them,” defense counsel also argued differentiation between the races for which whites were responsible. Staley blamed society for creating an “unfortunate, enslaved race, shut out from the enlightening influence of refining associations, the means of education, and the benign and elevating tendency of true religion,” and found it “unreasonable to expect” a black “could bring his passions in as complete control of his judgment as the man who has enjoyed a part or all of those blessings, nor can it be expected of him to have as correct an appreciation of his duties and responsibilities as a soldier, as others who have been more favorably situated.”47

The courts-martial sentenced both Bradley and Davis to death. On review, Judge Advocate General Holt found no extenuating circumstances and added that

it is vitally important to the success of the great and promising experiment of employing negroes as soldiers that—while no unjust distinctions should be made between them and other troops—neither benevolence nor sympathy should deter us from the enforcement of a rigorous discipline, alike adapted to their training and to the necessities of the service. It is indispensable that such grave offences, as those committed by the prisoners, should be so dealt with as to prevent their repetition. The good of the whole sometimes requires the infliction of severe punishments in individual instances, where were the offenders the only ones to be affected, milder penalties might be mercifully awarded.

Defense counsel, the court-martial panel, and Judge Advocate General Holt sought to balance consideration of the conditions in which many blacks lived prior to joining the army versus the concept of blacks standing as equal before the law, even where this placed demands on blacks to act in the same way the military (and later, society) expected of whites. At the nexus of this debate lay a broader question still unresolved: could blacks take a place as citizens equal to whites, or did their prior lives as slaves render them unsuited for such equality? Luckily for the condemned men, Lincoln disagreed with Holt’s report and commuted both of their sentences to six months confinement at hard labor.48

Other mutiny cases resulted in actual execution, however. These sentences frequently involved situations where authorities felt they needed to enforce stricter discipline as a deterrent to further unrest. Shortly after not imposing a death sentence in the Goliah and Browning court-martials, substantially the same panel sentenced Wallace Baker to death, perhaps troubled by what they perceived to be growing dissidence in the Fifty-fifth Massachusetts. In some ways, the trial of the first black Union soldier executed for mutiny provides one of the most effective examples to illuminate how blacks and whites wrestled with military discipline, the meaning of arming African Americans, and black calls for equality within the context of a changing social landscape. A history of disciplinary trouble marked the military record of Sergeant William Walker, a twenty-three-year-old in the Third South Carolina (African Descent) (Twenty-first USCI). A court-martial convened at Hilton Head, South Carolina, not far from the Port Royal area where Walker formerly labored as a slave, on January 11, 1864, to arraign Walker on multiple charges stemming from various instances in which he resisted authority of all sorts: threatening to shoot a lieutenant, refusing a captain’s order to go into his tent under arrest, defying a black sergeant’s order to fall in, preventing a black drum major from making an arrest, helping release a prisoner being punished for absence, and leaving his tent while under arrest.49

A charge of mutiny based on the events of November 19, 1863, however, reveals the motivation behind Walker’s resistance. Walker marched his company, along with other men from the regiment, to commanding officer Lieutenant Colonel Augustus G. Bennett’s tent. There, Walker ordered the men to stack arms in protest of the black soldiers’ unequal pay and explained that they “would not do duty any longer for seven dollars per month.” The men’s willingness to mutiny had been exacerbated by their resentment over the high proportion of inexperienced officers who led them, some of whom openly displayed racially based disdain, as well as the excess fatigue duty they had endured. Bennett explained that the mutineers would be shot if they did not return to duty, but Walker moved among the men, telling them to leave their guns and go to their company street. The soldiers obeyed Walker’s command.50

Despite the fact that Walker later faced a court-martial, the protest gained the attention of the regiment’s officers and had some larger effect. Within days, Bennett and twelve of his officers signed a petition protesting that unequal pay “plighted” the “honor” of the country and breached the government’s promise of equal treatment. On November 25, department commander Major General Quincy Gillmore ordered that black troops were not to be a labor force for white use but instead, should receive the same treatment and opportunity for drill. By the end of the month, Bennett requested that rations be furnished to his troops’ families until the equalization of their pay. Although department headquarters denied the request, Bennett’s act indicates his consciousness of the men’s situation as well as the dilemma he faced in maintaining discipline. Several months later, Governor Andrew of Massachusetts called attention to Walker’s execution in a scathing letter to Lincoln. Demanding equal pay for black soldiers, Andrew denounced “the Government which found no law to pay him except as a nondescript or a contraband, nevertheless found law enough to shoot him as a soldier.” While punishment had to be meted out to the vocal leader of the serious act of mutiny, at least some white officers and officials took heed of the rationale behind the protest and argued that upholding the law in this case violated other principles of justice.51

Furthermore, no one else received serious punishment for participating in the mutiny. A report in June 1864 noted that the regiment had endured inferior equipment, officers, treatment, and pay, and that the men protested without realizing that they could not simply lay down their arms. The report continued that once “good officers” explained that fact, “all at once entered willingly to their duties,” and that the regiment had become “one of the best” under Bennett’s direction. In successfully urging the return to duty of nine mutineers without stoppage of pay, the report also noted that the men had faced partiality in their trials, with “irregularities of the records” that “rendered it impossible for these men to have Justice.” Acknowledging that the discipline of black troops could sometimes be carried out in an arbitrary manner, this statement serves as an example of white officers seeking uniform administration of justice.52

Nonetheless, the tempestuous sergeant who led the mutiny had to face trial. After introducing a lieutenant from the Forty-seventh New York Infantry as defense counsel, Walker pleaded not guilty to all charges. Bennett testified as to the events of November 19, and two lieutenants corroborated his narrative and offered testimony about other charges. A black acting drum major testified that he declined to discipline a subordinate because Walker “eyed me sharply,” and made him “afraid.” Sergeant Sussex Brown also offered that he once found Walker playing cards instead of falling in for inspection. Walker wanted to “play on” and when the other card players left, let forth a stream of curses and threatened to shoot Brown.53

Walker tried to mitigate these damaging statements with testimony from three sergeants and three privates of his regiment. Walker then articulated a criticism of treatment in the army and his expectations for equality. Conceding in a written statement that there existed “many points” for which he was “justly blamable, and for which he cannot hope to escape without punishment,” Walker also hoped that “an enlightened understanding” would make the court panel realize that his action was more an error of judgment than a desire to violate the law. Walker asserted his military service and the unequal treatment his unit and race had endured as defenses. He explained that he served as a pilot of the USS Wissahickon when he received a pass to visit his family ashore. Although exempt from conscription, Walker enlisted in reliance on the “promise solemnly made by some who are now officers in my regiment, that I should receive the same pay and allowances as were given to all soldiers in the U.S. Army.” Claiming that nine-tenths of the men in his regiment would agree that their officers had been “tyrannical in the extreme” and “beneath the standard of gentlemanly conduct…pertaining to officers wearing the uniform of a government that had declared ‘freedom to all,’”—despite the petition supporting equalization of pay signed by those same officers within hours of the mutiny—Walker stated that racist treatment and unequal pay precipitated the incident. Walker further suggested that the officers had overblown the situation, informing the court panel that the assemblage “only contemplated a peaceful demand for the rights and benefits that had been guaranteed them.”54

Walker concluded by asserting that a “spirit of persecution” toward him existed, that “every part of my military history has been ransacked to procure a conviction” and added that he did not act alone on November 19, 1863. Claiming his ignorance of military law, Walker argued that he and his comrades had “been allowed to stumble along” and gain “knowledge of the services required of us as best we might.” Walker vowed that “many things have occurred that might have been made entirely different had we known the responsibility of our position.” With his mark, Walker concluded with a request that the court give as favorable a consideration as the rules of the service would permit.55

The court sentenced Walker to death. When only one of eleven shots of the firing squad hit Walker, a reserve squad completed the execution. George E. Stephens criticized the “strange means” by which black soldiers were shot under military law and felt that as to Walker’s execution, the government “required a victim to show the colored soldiers…what they must expect if they don’t take the money [the] government offers them, however paltry.” Colonel Thomas W. Higginson condemned the practice of forcing officers to be “executioners for those soldiers who, like Sergeant Walker, refuse to fulfill their share of a contract where the Government has openly repudiated the other share.” Massachusetts senator Henry Wilson potently cited Walker’s case when he called on his fellow lawmakers to place black soldiers on equal footing with white troops in all respects, explaining that Walker had rebelled out of “a burning sense of our injustice.” Over four decades later, former colonel of the Fifty-fifth Massachusetts Norwood Hallowell deemed Walker’s position that black soldiers had been released from duty because the government failed to fulfill its contract as “logical,” but explained that because it was time of war, Walker had to be tried and punished.56

Walker’s case stands at the intersection of conflicting impulses generated by the army service of blacks during the Civil War. An ex-slave turned U.S. Army sergeant, Walker repeatedly bucked military authority but then relied on the rule of law for his defense. A vocal opponent of the inequality he suffered in the army, Walker experienced due process at trial and was executed pursuant to the same law and procedure mandated for white defendants. Walker’s hope on donning the blue uniform melted into disenchantment because of unequal pay, and his protest against it led directly to his lawful execution, but in launching that protest Walker became symbolic of black demands for a new legal order embracing and enforcing equality.

Some cases that resulted in execution concerned the threat of violence against a superior officer. Henry Hamilton of the Second USCI was the only person to suffer death for a mutiny that involved several hundred soldiers. When an officer ordered Hamilton to return to quarters, he fixed his bayonet and declared that he would run through the first person who touched him. In other cases, noncommissioned officers occasionally received a death penalty even where they led a nonviolent mutiny. Sergeants William Kease and Doctor Moore of the 116th USCI were sentenced to death for leading more than forty armed men of their company to the quarters of Captain Sumner H. Warren on May 11, 1865, to demand the release of a private under arrest. Both sergeants faced further charges because they failed to use their authority as noncommissioned officers to prevent the mutiny, and neither of them offered any defense.57

Arguably the most violent mutiny of black soldiers erupted in the Third USCI while stationed in Jacksonville, Florida, on October 29, 1865. Ordered to perform tedious occupation duty amid a hostile population, many of the soldiers resorted to alcohol and resented strict maintenance of discipline in the unit after the war had ended. White officers’ treatment of black female camp followers generated further complaints, as one soldier deemed the officers “loathsome” because they “apparently think that their commissions are licenses to debauch and mingle with deluded freewomen under cover of darkness.” Young lieutenant colonel John L. Brower, assuming command of the unit a few weeks earlier, earned a reputation for strict discipline as he tried to combat the growing disobedience and drunkenness in his command.58

A harsh punishment administered to a pilferer two days before the regiment’s scheduled muster out sparked the tinder. A lieutenant ordered the soldier, who had tried to steal some molasses, stripped to the waist and tied by the thumbs with his toes barely touching the ground. A crowd of soldiers, possibly unarmed, vowed to release the man, especially after others in the regiment goaded them by asking, “What kind of a company is yours, that let your men be tied up[?]” When Brower fired into the crowd with his revolver, wounding Private Joseph Green, the situation exploded. Some soldiers got their muskets and engaged in a firefight with Brower, while others attacked or shot at officers. One soldier convinced a captain to take off his sword lest an enlisted soldier injure him and then tied up the disarmed captain. In contrast, some noncommissioned officers sought to restore order, and after Brower’s finger was shot off, one of the original instigators, Richard Lee, rushed to his aid and took him to safety in the cookhouse. Only the arrival of the unit’s former commander, Colonel Bardwell, on the scene restored order.59

By October 31, 1865, court-martial proceedings began with six officers of the Third USCI and two from the Thirty-fourth USCI comprising the panel (panels could include officers from the same unit as the defendant). Fourteen soldiers stood trial for mutiny while one who did not participate in it, Archibald Roberts, faced lesser charges for saying, “Lt. Colonel Brower, the God-Damned Son of a Bitch, he shot my cousin. Where is he, let me see him.” The proceedings moved swiftly, with only a few witnesses on each side answering but one or two questions each. Nonetheless, while the judge advocate seemed to ignore his mandate to assist defendants not represented by counsel, the panel’s president worked to ensure substantially full and fair trials.60

By November 13, the court convicted thirteen soldiers of mutiny, and Roberts of conduct prejudicial to good order. Six received death sentences and of those, at least four shot or tried to shoot at officers, while one had been among the most active instigators of the incident. Yet, the court acquitted one, Theodore Waters, of mutiny despite testimony from the regimental surgeon that Waters drew nearer to the tied up man than anyone else. One defense witness countered that Waters only went with the crowd to try to get permission to free the punished soldier and another offered that Waters was in his tent when the mutiny ended. Furthermore, some instigators—privates Richard Lee, who aided Brower after helping start the riot, and John Miller, who shouted, “Let’s take him down, we are not going to have any more of tying men up by the thumbs” and swore “like a mad man” during the disturbance—received only two years at hard labor. One soldier who struck a lieutenant received fifteen years at hard labor, two others received ten, and two more, including one who tried to cut down the punished man, received two years. In late 1866, the Bureau of Military Justice commuted the sentences of the surviving mutineers (the six executions had been carried out and one more died from typhoid fever) and by January 1867 had released them.61

Although not technically mutiny, some black soldiers who were executed lashed out against prejudice they experienced from other sources. A court- martial which met in Natchez, Mississippi, in June 1864 sentenced Roger Johnson to death for shooting a white private serving as a cook in the hospital in which Johnson convalesced (the private lingered for about a month before he died). The cook had refused to serve Johnson until a white man present had finished eating, and then threw plates at Johnson.62

Racial tensions between black soldiers and Southern white civilians also sometimes resulted in violence. One court-martial illuminates the seething rage some black soldiers felt against former slaveholders. On May 2, 1865, a court-martial convened in the Vicksburg courthouse to try twelve soldiers of the Fifty-second USCI, and one from the Fifth USCHA. The thirteen men were charged with entering Jared R. Cook’s nearby house in conspiracy on the evening of April 3, 1865, taking money and goods, and then shooting both Cook and his wife, Minerva (he survived while she later died). Each of the accused refused representation by counsel and each pled not guilty.63

Thomas Richardson of the Fifty-second USCI, an accomplice turned prosecutor’s witness, testified that the defendants premeditatedly went “out after rebels.” Claiming that all except him were armed, Richardson explained how they had conducted the maneuver with military precision, dividing into two squads as they approached Cook’s house, with one squad entering while the other stood guard outside. Some of the men ransacked the house, while Thomas Four and Ephraim McDowell shot the Cooks. Henry Cox told them not to shoot and, in Richardson’s words, “they cussed him” and threatened to shoot him as well. Fifteen-year-old Alexander Cook corroborated that “some nigger soldiers” had ransacked the house, though he slipped out and hid in a woods two hundred yards away before any shots were fired. On his return the next day, Alexander found many things missing and two black women tending his wounded mother, shot in the stomach, her face showing the bruises of having been beaten and her blood all over the floor. Thirteen-year-old William Cook also corroborated that “nigger soldiers” had ransacked the house. William described watching his parents get shot. Because Cook still recuperated, the court-martial heard his testimony at his plantation. Cook recounted that his dogs woke him as the black soldiers approached, and that he saw them “rushing in in a very demon-like manner seeming to be very much infuriated from some cause,” before describing the defendants’ threats and demands, his ineffective protest that he had protection papers, and how the black soldiers ransacked his house and shot him and his wife. Cook added that he heard no one attempt to prevent the violence and also that after he and his wife had been shot, he heard his thirteen-year-old son tussle with one, crying “don[‘]t kill me, oh! Lord don[‘]t kill me.”64

The accused declined to call a single witness in their defense, but all except one made an oral statement. Each defendant individually pled his defense to the court while his codefendants stood outside. All those who made a statement admitted their presence and claimed simply to have wanted to catch Rebels or to go along with the crowd. As Bannestor Washington stated, “I always like to be in that kind of a crowd that goes after rebels,” while Henry Johnson reminded the court that as “colored soldiers used to be treated badly by the rebels…that makes them hate the rebels more than the white soldiers do. It[’]s natural that they should feel so.” Johnson admitted that he left the Cooks two and a half years earlier, and while claiming that he “had nothing personal against Mr. Cook or his family,” and that he told his comrades, “I wouldn’t have you do any harm here for the world,” he also does not seem to have exerted himself for the protection of his former owner or his family. Morrison admitted to striking Minerva Cook. The court-martial panel found all of the defendants guilty of all charges and sentenced them to hang.65

Yet, the very day they sentenced the thirteen men to death, five members of the nine-man panel petitioned for clemency for Cox, despite Cook’s testimony that he heard no one try to prevent the shootings. Two more panel members recommended that “in consequence of the mitigating circumstances connected in this case we would most respectfully and cheerfully recommend clemency to all of the accused with the exception of the following: James Morrison, Ephraim McDowell and Thomas Four.” Major General Napoleon J. T. Dana released Cox from confinement and returned him to duty and the War Department remitted the sentences of three other defendants, though the other nine—including Johnson—suffered execution.66

Conclusion

Examining the courts-martial records of black soldiers illuminates the tensions military authorities experienced in trying to maintain military discipline while administering justice to African American troops. Despite the gravity of mutineers’ crimes, many officers seem to have realized that they grounded their protests in legitimate grievances. Thus usually only ringleaders or those who threatened violence to an officer received capital punishment. In many instances, authorities searched for mitigating factors and defendants frequently received lighter sentences than those sanctioned by the Articles of War. Moreover black soldiers enjoyed high standards of due process when facing general courts-martial. Generally, a confession, strong evidence of culpability, and/or the complete lack of a plausible defense resulted in conviction. In other cases, such as Samuel Green’s vigorous self-defense resulting in his exoneration of a mutiny charge, a black soldier’s questioning of African American witnesses trumped the testimony of a white officer. Such moments emphasized to blacks and whites the possibilities of African Americans standing equal to whites before the law, and underscored for blacks the concept that they could use the rule of law and procedural due process to defend their rights.

Rather than sanction a different disciplinary scheme for black troops, the federal government considered them as entitled from the beginning to the same application of military justice and court-martial procedures that whites enjoyed. The army’s embrace of procedural due process regardless of color, a doctrine mandated by the War Department and affirmed in general courts-martial proceedings, stood as one paradigm for the nation to consider as it reconstituted itself. Even though not accomplished on a wider scale within either the army or civilian society during the Civil War, the experience of general courts-martial emphasized the possibility that a pattern of fair and equal treatment of blacks could be more broadly applied.

Courts-martial proceedings demonstrated to blacks that there need not be two sets of laws, or two forms of citizenship status, but that the same legal rights, expectations, and concept of citizenship could apply to all individuals regardless of race. These wartime experiences helped inform black demands during Reconstruction for color-blind justice as a component of American citizenship and their sense that the law could serve as a bulwark to protect their newfound freedom and changed status, and showed that a new overall legal regime—one more protective of blacks’ rights—could emerge from the fluidity of war.

Moreover, the proceedings of courts-martial of mutineers reveal the impatient claims for equality black soldiers made, whether protesting unequal pay or inequitable treatment. Black soldiers began to ascertain how to operate within a rule of law previously denied to nearly all of them, but they also demanded its equal enforcement and recognition of their changed status. Black soldiers loudly voiced their call, using extralegal means, for this revised constitutional and societal norm based on presumptions of their equality. That this path proved more elusive than many of these soldiers, who comprised a new corps of leadership within the black community, had hoped does not diminish the importance of the fact that it lay open at all in the federal army, or that blacks demanded it not just with words but also with action that sometimes earned them imprisonment or death.