Today’s guest post is by Emily Merrill, a PhD candidate in the History Department at the University of Pennsylvania. Her research focuses on issues of gender and military history in the British Atlantic world during the 18th century. She is currently completing a dissertation entitled, “Judging Empire: British Military Courts and the Politics of the Body.”
One of the most provocative aspects of the popular Netflix series Orange is the New Black is the way it grapples with the issue of class (as well as race, gender, and sexuality) as it relates to the contemporary American penal system. By contrasting the prison experiences of the main character, Piper, an upper middle class white woman, with those of a range of working class and minority characters, the show invites a deeper reflection on the complex ways in which class divisions help shape and organize a supposedly impartial system of justice. In my own research on British military courts during the Revolutionary War, I have found that class, specifically the divide between officers and enlisted men, also helped determine crucial aspects of the military justice system.
In particular, the processes of arrest and incarceration differed significantly based on the class of the prisoner. Enlisted soldiers were physically restrained and confined in locked rooms under guard, approximately mirroring the goals of arrest and imprisonment in our own age—to control movement and to prevent the prisoner’s escape. The treatment of officers, on the other hand, seems wholly alien, as it proceeded on almost the exact opposite principle: when arresting and confining an officer, the most important thing to do was never to insult him by taking any measures whatsoever to prevent him from absconding.
Ensign Charles McVicar of the British Army’s 97th Regiment of Foot was tried by a court-martial in Plymouth, England on May 29, 1780.[1] McVicar had originally been arrested for neglecting his duty by not showing up when he was assigned to do guard duty—a relatively minor offense, as the 97th was then safely in England, where officers who neglected their duties due to accident, oversight, or a desire to engage in a thriving social life were often treated quite indulgently.
His arrest followed the standard pattern for the arrest of an officer: his commanding officer informed him he was arrested and politely requested that McVicar go to his quarters. At no point was any force, or even the threat of force, used. To physically take hold of an officer, or to call for soldiers to escort the officer to his quarters, or to post a sentry at his door to prevent him from leaving, were all shocking violations of the officers’ class privilege.
McVicar, unlike enlisted prisoners, got to spend his arrest in the comfort of his own quarters, but he soon sent a request to his colonel to have his arrest “enlarged” because he was in ill health. This was a fairly normal practice for arrested officers. Only an officer under “close arrest” was forbidden from leaving his quarters, and to keep an officer confined to his rooms in this way was often considered the act of a malicious and ungenerous commander. More usual was the practice of allowing the arrested officer some liberty to walk outside, or to require him to be in quarters at night but not otherwise restrict his movements. The most liberal terms for arrest merely stipulated that an officer was not to do any military duties or bear arms until his arrest was ended.
McVicar’s colonel gave him “liberty to walk in the two Squares (Granby and Marlborough’s),” but “not to go to the Mess room, Officers Barracks, nor come to Parades.”[2] However, the soldiers of the regiment were encamped in Marlborough Square and Granby Square and held parades in the squares, and McVicar was charged with breaking his arrest when he was repeatedly seen walking through Granby Square during military parades.
At his trial, McVicar professed to be shocked by this accusation: “this was a Charge entirely unexpected, as I never could have supposed obedience to the calls of Nature could ever be construed into disobedience of a Commanding Officers Orders,” he protested, explaining that he had to walk through Granby Square to visit the outhouse.
McVicar’s explanation of his actions shed further light on the privileges officers enjoyed due to their class position, even when they were under arrest. No outside force prevented McVicar from going where he pleased, and no guard was set over him. There were no restrictions on his visitors, and McVicar implied that “Absolute necessity and a decent attention to those Gentlemen who frequently favor’d me with their Company” required him to take illicit walks through Granby Square.
Furthermore, McVicar rejected the idea that he could have used the closer facilities in Marlborough Square. There, he claimed, there was “only a vile convenience; and that for the Common Soldiers,” and he could not possibly be expected to use it instead of walking to the more upscale outhouse in Granby Square.[3] He was, in essence, claiming that it was more important for an officer to preserve class distinctions than to strictly observe the terms of an arrest and his argument was largely accepted by the court-martial board. Though it was indisputable that he was guilty of breaking his arrest, the court was unanimously convinced that it was an innocent error and he was pardoned by the king himself.
The case of Ensign McVicar not only demonstrates the differing treatment prisoners received based on class, but also the completely different relationships with the military justice system that officers and enlisted soldiers experienced. Enlisted men had a far more adversarial relationship, seeking to avoid or escape the judgment of the court, while the treatment of officers depended on and assumed their cooperation with the process of the trial. For officers, the system, which reflected their own values and was administered almost entirely by them, remained their own, even when they were disciplined by it, while enlisted defendants were its disenfranchised and unwilling subjects.
While still operative, class distinctions function very differently in today’s context; we are outraged when it appears that there is one law for the wealthy and privileged and another for ordinary citizens. In this way, we have inherited one of the primary values of the American Revolution, which explicitly rejected the claims of judicial privileges in favor of equality before the law. Yet perhaps the class-based favoritism of the British military justice system more openly and accurately described the real experience of defendants, both during the eighteenth century and today, with the elite enjoying privileges denied to the rest of us. Much like Orange is the New Black, the case of Ensign McVicar and others like him might provide historians of early America the opportunity to explore the contentious legacies of class and justice, from the 18th century to our own time.
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[1] The case of Ensign McVicar is drawn from the National Archives of the United Kingdom, War Office (hereafter WO) 71/55, pp. 128-149.
[2] WO 71/55, p. 129.
[3] WO 71/55, p. 143.
The Junto 
With all due regard, I don’t believe the case you cite is surprising because British society has always been a class laden system.
British officers throughout history have always been expected to act like “gentlemen” and in this way have been differentiated from enlisted men.
Unless I’m missing something, I do not regrettably see anything novel here.
To be fair, Brad, I think the piece is probably aimed more at non-specialists and our non-academic readers, not unlike my piece last week on Franklin and escaped prisoners. Hence, the opening reference to “Orange is the New Black” and the contemporary analogy in the closing paragraph. I suspect most general readers or even non-academics interested in early American history aren’t very aware of the vagaries of how social structure informed the military hierarchy let alone military law and courts. For those audiences, this piece is an interesting introduction to that dynamic. I know, at least from anecdotal evidence, that the blog’s readership is a mix of academics, history professionals (whether museum workers, archivists, secondary school teachers, etc…), and non-academics. These types of posts aren’t necessarily intended to deliver something “new” (it is a blog post, after all). Rather, I think this piece is a very good example of taking a broader aspect of one’s dissertation work and framing it in a way that’s interesting for all three of those audiences, even those already familiar with the topic about which she is writing.
Thanks for your comment, Brad.
I just want to add to what Michael said. I think any time you use the word “always,” it grabs historians’ attention. Perhaps British society HAS always been a class-laden system, and perhaps British officers have always been held to certain expectations, but in my own research I try to proceed on the assumption that those systems and assumptions change over time. E. P. Thompson’s _The Making of the English Working Class_ is just one example of a historian’s interest in tracking such a change. The word “always” is particularly pertinent for early Americanists given the comparatively brief chronology of early America and what we already know about how other ideas (such as those related to race) altered from the sixteenth to the seventeenth to the eighteenth and nineteenth centuries.
So, when someone writes a blog post trying to pin down a particular moment in time when people acted one way or another, I try to view it as their opportunity to think out loud.
If you think that this post rehearsed what we already know, perhaps you might suggest some additional readings that already make this point, or ones with even more novel interpretations, so that we could continue to foster what I’ve always hoped is a welcoming and engaged online community.
I am just excited to hear the word “class” and wonder if this category of analysis is getting much play in the work of Junto-ists. It doesn’t seem like the compelling essays in _Class Matters_ (2008) launched a new generation of scholars down this path. I teach a course called “The Problem of Class in Early American History,” but must confess that I haven’t found many post-2010 readings to include on the syllabus– so if there are things out there or forthcoming work that I can eagerly anticipate, please tell me! Thanks!
Reblogged this on DailyHistory.org and commented:
Emily Merrill at the Junto has an interesting article on the role class played in military punishment. In the British military, class mattered. Officers were treated more respectfully and had far more privileges even when they were under arrest. Merrill wonders if the story of Ensign McVicar might provide “historians of early America the opportunity to explore the contentious legacies of class and justice, from the 18th century to our own time.”
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