A Reprieve for John Sutherland, a Poor Silly Creature

The War Years (1775-1783)

October 29, 2019
by Don N. Hagist Also by this Author


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John Sutherland had intended only to visit his brother, and now he sat in confinement, awaiting a death sentence. It was not a likely fate for the forty-one-year-old private soldier who had always borne “a very good Character” during his eighteen years in the army, except for an occasional bout of intoxication, a common vice among British soldiers who had spent several years fighting a frustrating, inconclusive war with American colonists.

Sutherland left his trade as a tailor in 1760 at the age of twenty-two, and enlisted as a soldier in the 64th Regiment of Foot. It was a new regiment, raised in 1756 as a second battalion to an existing regiment and established as an independent regiment two years later. Service in the West Indies, particularly the 1759 taking of Guadeloupe, severely depleted its ranks. The corps returned to Great Britain in 1759 and began recruiting in Scotland. County Caithness native Sutherland joined the ranks, and spent the next eight years learning his new profession as the regiment moved around Scotland and Ireland.

By 1768 the 64th Regiment was once again fully fit for foreign service after a decade of recruiting and training. They sailed to North America, not to quell a crisis, but on a normal rotation of regiments from domestic to overseas service. They spent the next several years in Halifax, Nova Scotia, and the fortified barracks on Castle Island in Boston Harbor. As tensions grew in the colonies, a larger and larger army gathered around the 64th and a few other regiments already in America. The regiment served throughout the siege and evacuation of Boston, the campaigns in New York, New Jersey, and Philadelphia, and finally encamped near Bedford, Long Island, in the autumn of 1778, preparing for their tenth straight winter in the American colonies.

There were many British troops in the area, and their proclivity for foraging caused much mischief on the region’s verdant farms. Some farmers applied to the army for protection, and individual trustworthy soldiers encamped as safe guards on their properties to fend off nighttime forays by soldiers bent on illicitly procuring produce. One of these safe guards was John Hamilton of the 44th Regiment. He was well acquainted with the 64th Regiment encamped a few miles away, having “struck several of the Men of that Regiment who had come there to gather Peaches” in recent weeks. At about one o’clock in the morning on October 8, he heard noise among the farm’s poultry. Investigating, he saw two men. One ran. Hamilton fired a shot at him, then confronted the other. It was a somewhat belligerent and very drunk John Sutherland. Sutherland had a firelock (musket), and aimed it at Hamilton; Hamilton, resolute in his duty and perhaps detecting Sutherland’s impaired condition, “told him that if he offered to make any resistance he would kill him.” Sutherland put the butt of the firelock—which was primed and loaded but did not have a bayonet fixed—on the ground. Hamilton recalled that he

put his hand upon the Muzzle of [Sutherland’s] firelock and bid him give it up, but this he refused to do; that [Sutherland] then attempted to bring his firelock up to the Charge; that he [Hamilton] then quitted his hold of the prisoner’s firelock, and bringing the point of his Bayonet which was fixed to his own firelock to [Sutherland’s] Breast and told him that he would kill him if he offered to make any more resistance; that [Sutherland] then went up to the House where there were two Musicians, belonging to the 33d Regiment who advised him to give up his firelock, but he would not, and they were obliged to break it before they could get it from him.

Aweeklater John Sutherland was tried by a general court martial in New York, charged with forcing a safe guard, a violation of the Articles of War. After hearing the testimony of the safe guard, the court questionedSutherland. All he could offer in his defense was that “he was so much in Liquor at the time that he did not know what he did, and that he never was Guilty of the like before.” He was acquitted, perhaps because of his long record of good service. He returned to his duties.

In July 1779, the 64th Regiment was were part of a force that moved into Westchester County, New York. One Wednesday afternoon, John Sutherland finished his tasks with a working party and decided to pay a visit to his brother, a soldier in the 2nd Battalion of Grenadiers that was also serving in the area. Sutherland and another man, John Archibald, made their way to the grenadier encampment and spent an evening socializing and drinking. It was late when they set off for their own encampment. The combination of intoxication and darkness caused them to lose their way, and they spent the night lost in the woods. In the morning they lost track of each other. Archibald found his way to the camp, but Sutherland did not.

During the same night that the two men got lost, the grenadier battalions and other corps in the area marched off to different locations. The following days brought more movements, until by Saturday, the 2nd Battalion of Grenadiers were encamped in Mamaroneck, New York. On the march that morning, a soldier of a light infantry battalion noticed a man peering out from the bushes and called to him to come out. John Sutherland revealed himself. Asked if he was a deserter, and how long he’d been off, Sutherland said three or four days, and that he’d been in liquor. He then compliantly went with the light infantryman and another soldier.

Sutherland was put on trial for desertion that very day. He explained himself to the court, concluding that after he lost contact with John Archibald, he was afraid to return to the regiment because he’d already been gone so long. The court did not ask the usual questions about whether Sutherland had taken clothing with him, or resisted apprehension. Capt. Warren Simondson, an officer of the 64th serving in the grenadier battalion, testified that “whilst he was with the Regiment, the prisoner bore a very good Character; and that he has great reason to believe, that it was from drunkenness the Prisoner deserted, as it agreed with what John Archibald (the Man that was with the Prisoner) told the Adjutant of the Regiment on his return.” Compared to other desertion trials, this one seemed unambiguous; even though Sutherland had been absent, there was no reason to believe he had intentionally absconded. Desertion was a capital crime, but a corporal sentence was appropriate in this case.

Sutherland, however, was a victim of other soldiers’ crimes. There was a recent spate of desertions from the grenadier battalion, and the battalion’s officers needed a way to discourage others contemplating this high crime. The court that tried Sutherland was composed entirely of officers from the grenadier battalion, and no testimony came from soldiers in Sutherland’s own regiment. Grenadiers were deserting, and an example needed to be made. The court found Sutherland guilty and sentenced him to death.

Two members of the court, Capt. John Peebles of the 42nd Regiment’s grenadier company and Captain Simondson of the 64th’s, were not satisfied with this verdict. Simondson, although detached from the main body of the 64th Regiment, had made the effort to inquire among the 64th’s officers and soldiers, and testified to the court about Sutherland’s character. Peebles recorded in his diary:

on a Genl. Court Martial for the tryal of John Sutherland of the 64th Regiment for desertion, he was taken this morning near Rye, a poor silly creature who tells a simple & consistent story of his being in liquor & losing his way in the night, his greatest fault was in not returning, for it does not appear to me that he left his Regt. with an intention to desert. however he is condemned to suffer death by a mode of procedure in Court that I never saw or hear’d of before, & cannot reconcile to justice & humanity; a circumstance which I shall never forget, & now think in my own mind I should have protested against.

The execution was scheduled for July 19. Captain Peebles and Captain Simondson went to the officer commanding their brigade and made a case on Sutherland’s behalf; Peebles wrote,

Captain S–n & I waited on Genl. Vaughan to ask his opinion of a case like that which happen’d at the Court Martial which we found agreed with ours, we then told him that there was an irregularity in the proceedings, or rather in giving sentence, which we could not reconcile to our judgement & conscience, and begged he would order the Execution be put off untill we could acquaint the Commander in chief with as much of the affair as the nature of our oath would allow us, which he was very ready to do

The general, however, soon learned that a surprise was in store, and let the two captains in on the secret: while forcing the troops to witness an execution was one method of deterring desertion, by striking fear into them, another method for gaining soldiers’ loyalty was to show mercy. “The Commander in Chief had left orders to pardon the prisoner at the foot of the Gallows, which satisfied us with respect to the safety of a man’s life who was not regularly condemn’d.”

The ceremony of execution proceeded at the scheduled time. Soldiers were paraded to witness the grim event. Captain Peebles recorded what transpired:

The Picquets of the left Column being ordered out with the Field officer of the day for the Execution of Jno. Sutherland of the 64th . . . The Ceremony was gone thro’ & the poor man behaved very well and penitently at the approaching scenes of death, fainted with joy when his pardon was pronounced.

John Sutherland had escaped with his life. For reasons not recorded, at the end of the year he was discharged from the 64th Regiment of Foot and took a new post as a soldier in the Royal Garrison Battalion. This was a corps composed of soldiers no longer fit for the demands of long marches and encampments, but who could render useful service at fixed posts. They served in the New York area before being sent to garrison the island of Bermuda.

At the end of the war the Royal Garrison Battalion in Bermuda disbanded. Some soldiers took the opportunity to go to Nova Scotia and take their discharge there, Sutherland among them. He was discharged at Sheet Harbor in June 1784, after twenty-four years as a soldier. But his military days were not done. In 1793 he joined the Royal Nova Scotia Regiment, in which he spent a further three years before being discharged and recommended for a pension, “being deemed by a medical board, from his advanced age, and long services, to be unfit for His Majesty’s Service.” He signed an X on his discharge, indicating that he had never learned to write. He was fifty-eight years old, five feet seven inches tall, with light hair, grey eyes and a fresh complexion, and after twenty-six years in the army he was finally returning to Great Britain.

The pension examining board had other ideas for Sutherland than simply sending him home to Caithness. The directed him into another garrison corps, the Guernsey Invalids, which he joined on February 13, 1797. He stayed in that corps for five more years, finally taking his discharge on December 24, 1801, “being old & feeble.” After thirty-one years in the army, this “poor, silly creature” who was once on the brink of death had earned his pension.


Information in this article is from the following sources:

Muster rolls, 64th Regiment of Foot, WO 12/7313, British National Archives

Discharges of John Sutherland, WO 121/27/287 and WO 121/151/289, British National Archives

Trials of John Sutherland, WO71/87 p.335-337 and WO71/90 p. 9-11, British National Archives

John Peebles’ American War: Diary of a Scottish Grenadier, Ira Gruber, ed. (Mechanicsburg, PA: Stackpole Books, 1998), 276, 279.


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