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. 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.” 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. 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.
 The case of Ensign McVicar is drawn from the National Archives of the United Kingdom, War Office (hereafter WO) 71/55, pp. 128-149.
 WO 71/55, p. 129.
 WO 71/55, p. 143.