Desertion was a capital crime, but it was up to a general court martial, a board of thirteen officers, to determine the defendant’s guilt and assign a punishment. In today’s trial, see if you agree with the court’s decision.
The court considered several factors to determine guilt: was the man enlisted properly as a soldier in the first place? Had he been paid and provided clothing in accordance with his enlistment contract? Was there a good reason for his absence? Punishment depended upon whether the man was absent due to simple misbehavior such as intoxication or had taken premeditated steps to abscond, whether he resisted capture or returned voluntarily, and other mitigating factors. It was a life or death decision, so the differences were quite important.
Daniel Hallewell, a thirty-year-old weaver from the village of Northowram in Yorkshire, was in the light infantry company of the 33rd Regiment of Foot.[1] He had joined the army in 1765 and was in the regiment’s light infantry company, serving in the 2nd Battalion of Light Infantry, when he stood trial shortly after British forces landed in Maryland on their way to Philadelphia.[2] Picquets were sentries placed at intervals some distance in front of a position; “necessaries” referred to shirts, shoes and stockings. “Instant” means within the current month.
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At a General Court Martial held by Virtue of a Warrant dated the 1st Septr. 1777, granted by His Excellency Sir William Howe, Knight of the most Honorable Order of the Bath, General and Commander in Chief of all his Majesty’s Forces within the Colonies laying on the Atlantic Ocean, from Nova Scotia to West Florida Inclusive &c, &c, &c.
Camp at the head of Elk in the Provence of Maryland, 1st September 1777.
Lt. Colonel Medows, President
Members
Major Craig
Honble Major Maitland
Capt. Cuff 27th Regt
Capt. Harris 5th Regt
Capt. Hatfield 43d
Honble Capt Cochran 4th
Capt. McAllister 35th
Capt. Hamilton 52d
Lt French 22d
Lt Mallom 57th
Lt Ruxton 45th
Lt. Minchen 5th
Capt. Ross 45th Regt. Deputy Judge Advocate.
Daniel Holliwell Private Soldier in the Light Company of His Majesty’s 33d Regiment of Foot was brought prisoner before the Court and accused of Desertion, to which Charge the prisoner pleaded not Guilty.
Prosecution
Capt William Danzey of the Light Company of the 33d Regt being duly sworn deposed that he knows the prisoner to have received pay & Cloathing as a Soldier in the 33d Regt and that on Tuesday last he ordered him to be confined in the Battalion Quarter Guard for irregular behaviour.
Corporal Hugh McKinnon of the Light Company of the 42d Regiment being duly sworn deposed that he was Corpl of the Battalion Quarter Guard on Sunday the 31st August, that a little before dark the prisoner was sent to be confined in his Guard, and a few hours after he found means to escape, That he search’d for him but could not find him, but after he was relieved he saw him brought back to the Battalion by a party of the Captain’s piquet.
Thomas Knight private Soldier in the Light Company of the 15th Regt being duly sworn deposed that he was on picquet on Tuesday the 31st August. That about 9 o’Clock in the Evening being one of the advanced Centries, he observed a Man coming towards his Post who fell in the road, that upon his Challenging him he came up to him and he proved to be the Prisoner Daniel Holliwell, that upon his asking him what he was doing there at that time of the Night, he said he was come down with grog for his Comrade Freeman, and asked if he (the Evidence) knew where he was posted Centry, that he said he was not certain but believed it was a little to the right, that after staying with him a few minutes he left him (as he supposed) to find his Comrade. That a short time after he heard a Noise among the leaves and as no person answered after his Challenging several times, but on the Contrary the person that made the noise seemed to be going forward, he snapped his piece at him but it missed fire, upon which he quitted his post and went to him and he found it was the prisoner again. That he asked him what he was about, and he told him he was endeavoring to find his way to the Battalion. That as he had no suspicion of his having an intention to desert, he advised him to go straight home and shewed him the way, upon which they parted, And he adds that the prisoner was in liquor.
Serjt John Bischopp of the Light Company of the 63d Regt being duly sworn deposed that being on Picquet on Monday Morning the 1st inst he was sent by his Captain to visit the Sentries, that observing one Sentry particularly attentive to something he asked what was the Matter, that the Sentry told him he saw a Man coming towards him, and pointed him out. That upon this he (the evidence) with the Corporal of the picquet stepped aside till he came within about forty yards of them and then rushed out & desired him to stand. Upon coming up to him they found it was the Prisoner Hollewell. And when he asked who he was & what he was doing he said he belonged to the English & had come down to wash a Shirt, but not being satisfied with that answer, he brought him to the Captain of the picquet, who sent him Prisoner to the Battalion.
- from the Court. Had the Prisoner any Necessaries with him?
- Not that I observed, he had a Cloak over him.
- At what hour in the Morning did you find the Prisoner?
- After day break, but before Sunrise.
Corpl. McLeod of the Light Company of the 71st Regt being duly sworn, deposed that he was on Picquet on Monday morning the 1st inst and sent to visit the Sentries with Serjt Bischopp about sunrise. That a Sentry told them there was a Man in the front. That they went towards him and upon coming up with him they found it was the prisoner Holliwell. That upon their asking what he was about, he said he had come down in the Night to get a Canteen full of Water & had lost his way. That they brought him to the Captain of the Picquet who sent him prisoner to the Battalion.
- from the Court. At what distance was the Prisoner from the out Sentries when you first observed him?
- About two hundred yards.
- Was the prisoner at that time coming towards the Sentries or going from them?
- Coming towards the Sentries.
- Did the Sentry call to the prisoner to come in before he saw him?
- He heard him call twice.
Robert Creed private Soldier in the Light Company of the 46th Regt being duly sworn deposed that he was one of the out Sentries on Monday Morning the 1st inst. And about sunrise he observed a Man about two hundred yards in his front, who proved afterwards to be the prisoner Holliwell. That the prisoner was coming towards him, when he first observed him and continued advancing ’till Serjt Bischop spoke to him.
The Prisoner being put upon his Defence says that he never had any intention to desert, but was so much in liquor that he did not know what he was about ’till Monday morning, and then as soon as he observed the fire, and the Soldiers about it, he came, straight to them.
The Court having wished for their Satisfaction to know whether the prisoner carried his necessaries with him when he escaped from the Quarter Guard.
Serjt John Barker of the 33d. Light Company, was duly sworn & deposed, that when he took the prisoner to confine him in the quarter Guard on Monday last, he carried his necessaries along with him, that when he heard he was missing he went by order of his Captain to look for them, but he could not find them, and did not see them ’till next forenoon after the prisoner’s return. But he does not know whether or not the prisoner carried them with him.
John Arnot private Soldier in the Light Company of the 4th Regt being duly sworn deposed that he tied the Prisoner’s hand behind his back when he was brought to the Quarter Guard by a Party of the picquet yesterday morning and at that time he observed nothing about him but a Canteen, and he thinks if there had been any thing else he would have taken notice of it.
Charles Elder private Soldier in the 33d Light Company being duly sworn deposed that he had occasion to search the prisoner very particularly when he was brought in yesterday Morning by a Party of the picquet and he is certain that he had not his Necessaries about him.
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Take a moment to consider the evidence. Hallewell was clearly intoxicated and had not taken anything with him. On the other hand, he certainly had reasons to flee: he was already in trouble for other misbehavior, had escaped from the quarter guard, and had not followed instructions on how to return to his battalion.
“The Court having duly considered the Evidence in support of the Prosecution, & the prisoner’s defence, is unanimously of opinion that the Prisoner Daniel Holliwell is not guilty of the Crime laid to his Charge and he is therefore acquitted.”
This seems like the right decision, given the evidence. Daniel Hallewell continued in the 33rd Regiment until 1791 when he was discharged and awarded a pension after twenty-six years as a soldier.[3]
[1]Discharge of Daniel Hallewell, WO 121/10/209, National Archives of Great Britain. The name is spelled in various ways – Hollowell, Holliwell, Halliwell – on the discharge, in the trial proceedings, and on the regiment’s muster rolls; he signed his name “Hallewell” on the discharge.
[2]Trial of Daniel Hallewell, WO 71/84, 209-214, National Archives of Great Britain.
One thought on “Guilty of Desertion? Daniel Holliwell, 33rd Regiment of Foot”
Shook him up and he straightened out. Good for him, good for the Court.