Escaping court martial for sodomy: Prosecution and its alternatives in the Royal Navy,1690-1840

I

The navy’s criminal courts and disciplinary practices often treated men and boys accused of sexual crimes brutally. Courts sentenced at least 79 convicts to death for sodomy between 1690 and 1860 and executed at least 36 of them. That number could be higher – perhaps over 60 – though further research is still needed. In 1761, the navy hanged a boy reported to be only 13 or 14 years old. Newspaper accounts noted that he ‘had been quite out of his Mind’ since sentencing. ⁷ Courts routinely punished misdemeanour sexual offences with dozens or hundreds of lashes with the cat o’ nine tails (the ‘cat’), often as part of a humiliating, highly-visible ritual punishment practice known as ‘flogging round the fleet’. ⁸ More than two dozen convicts received sentences of 500 or more lashes before 1840. At least four had sentences of 1,000. ⁹

Nonetheless, we cannot draw totalizing generalizations on the basis of these horrific punishments alone. To do so is to accept the intended rhetorical function of the most extreme outcomes; these were ‘striking examples’ meant to ‘restrain’ unwanted sexual behaviour. ¹⁰ Naval actors often used violence to punish homoerotic infractions, but we can also find examples of men at every level – from ratings to the Board of Admiralty – countenancing alternative outcomes. In some cases, they explicitly aimed to avoid trials and limit violence. Nor can we conclude that naval personnel were simply hostile to, intolerant towards, or even ‘phobic’ of same-gender sexual contact and those who engaged in it. ¹¹ Certainly, there is abundant evidence of strong negative views. But that is only part of the story. Fuller consideration of the available records reveals a more complex range of attitudes and reactions.

Trials show, for instance, that men often reacted to proscribed erotic contact and behaviour with nonchalance or indifference. In testimony given in 1808, a marine private admitted to having seen defendants kiss and display intimacy. He ‘never formed any evil opinion upon it’ until another marine declared it inappropriate. Even then, the first marine refused to become involved, simply leaving ‘because I did not choose to see more’. ¹² In other instances, observers answered the sodomitical with laughter. An 1809 trial revealed that onlookers ‘were laughing’ as they witnessed a crime through a hole that allowed them to spy into an officer’s cabin. In an earlier case involving an allegation of bestiality – treated as the same crime as sodomy by the Articles of War – a witness ‘fell a Laughing’, telling a shipmate ‘if he would go forward he might see’ a man ‘in Copulation with a Sheep’. ¹³ Laughter, amusement, humour and the like present serious interpretive challenges for scholars and do not preclude hostility. They do, however, indicate more varied attitudes than simple, uniform loathing.

When proscribed acts came to light, shipmates were sometimes explicit that they did not want to see trial or punishment. In 1797, the crew of the St. George threatened to mutiny ostensibly to free two of their number who had been sentenced to hang for buggery. ¹⁴ A sailor admitted to a later court that his reaction to catching two men in flagrante had been governed by a similar goal: ‘I did not wish to have the ship’s company scandalized through them; I meant to scandalize them through the Ship only, and no farther.’ ¹⁵ Evidence from the Victorian navy shows similar attitudes among later sailors as well. In 1864, for example, when a court sentenced a signalman from the Marlborough to hard labour and discharge with disgrace for indecent assault on a midshipman, the ship’s company successfully petitioned for his sentence to be remitted. ¹⁶ Such examples hint at practices of, and preferences for, ‘resolving’ illegal sex acts informally that have left little mark in the records: fighting, interpersonal violence, rumour and gossip, mockery and more.

The court martial archive reveals that sailors were able to maintain longstanding sexual relationships or escape sanction despite repeated sex crimes. Anthony Parrott’s 1775 trial uncovered a long history of sodomitical misbehaviour known to shipmates, but he avoided any serious punishment until that point. ¹⁷ Parrott thus fits into a pattern in which early modern communities sometimes permitted the presence of known or even ‘notorious’ sodomites despite harsh sodomy laws. In a 1705 trial, two sailors on the Expedition admitted to a sexual relationship that went back at least to a previous commission. ¹⁸ And sailors sometimes showed that they were able to think of, and describe, same-gender sexual relationships in ways that owed nothing to the deeply negative constructions of legal and religious condemnations. One testified to the ‘very kind expressions’ he heard between two men, like ‘my dear, my life, my soul’. Witnesses in other cases identified erotic-romantic affection (‘. . .that he loved him and would not hurt him’; ‘with all my heart’). ¹⁹ As these examples show, the range of thinking about, and reactions to, the sodomitical were varied and complex.

Arthur Gilbert’s quantitative analysis of courts martial has strongly influenced views of naval hostility towards same-gender erotic activity. However, a more comprehensive consideration of the surviving records shows that Gilbert’s trial sample tends to overstate the severity of naval courts. Imperfect record survival and only very limited trial indexing makes full reconstruction of the case history challenging, and so I offer what follows as a provisional update to Gilbert and the more recent work of B. R. Burg. ²⁰ Conviction rates were indeed often high, but they varied considerably during this 150-year period (see Figure 1). Gilbert finds a 70 per cent conviction rate for the half-century from 1756 to 1806 – remarkably close to the overall conviction rate I have found from 1690 to 1840, which is just below 72 per cent. ²¹ He argues that most of those convictions, 82 per cent, were capital as well. A fuller analysis of surviving trial records shows lower conviction and capital conviction rates, though: a little over 63 per cent of felony arraignments and 61 per cent of all arraignments resulted in convictions between 1756 and 1806. The share of convictions that was capital was lower too, only just over 42 per cent. As Figures 2 and 3 show, moreover, capital convictions were always a minority of verdicts in homoerotic crimes trials and were usually a minority of convictions as well. Overall, less than a third of these convictions were capital between 1690 and 1840. Likewise, a fuller consideration of misdemeanour convictions indicates that Gilbert’s sample overstates average flogging sentences by roughly 35–40 lashes – or 6 to 10 per cent – at different points. ²²

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Figure 1.

Conviction rate for homoerotic offences, 1690–1839.

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Figure 2.

Capital convictions as a percentage of homoerotic offences verdicts, 1690–1839.

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Figure 3.

Capital convictions as a percentage of homoerotic offences convictions, 1690–1839.

Finally, it is important to correct the misimpression that sodomy felons invariably were hanged – that, apart from rare exceptions, ‘courts martial boards rarely recommended mercy’ and ‘the king would not pardon convicted buggers’. ²³ While I have not yet been able to determine the outcome of all capital convictions, my initial findings show that a significant minority of felony convicts did escape execution. Additional sources record at least 16 non-executions through 1816, obtained by pardons, commutations, respited sentences or judicial processes overturned on post-conviction review. ²⁴ Thereafter, felony convictions were uncommon. English criminal courts stopped executing for sodomy in the 1830s and the crime lost capital status in 1861. These new findings reveal that at a minimum almost 22 per cent of capital sentences were altered in some way during the period in which the state executed convicts for sodomy.

II

This new evidence requires a reassessment of longstanding assumptions about court martial severity. Even this new picture is only part of the story, though, because naval actors routinely dealt with homoerotic crimes below the level of courts martial. The most popular method was summary punishment. Those commanding naval vessels were empowered to summarily punish shipboard infractions with relatively minor penalties. The navy’s 1731 Regulations and Instructions permitted up to a dozen lashes summarily, a limit its 1806 sequel dropped. ²⁵ And not all punishments were corporal. Officers punished one sodomy suspect by ordering his shipmates to treat him as a pariah and making him wear a badge on his back labelling him ‘a most notorious wretch’ in ‘large letters’. ²⁶ While there is disagreement over the frequency and extent of summary punishments for homoerotic crimes, studies of naval discipline have repeatedly documented willingness to punish them summarily and report having done so to superiors. ²⁷ A few historians of naval discipline have even concluded that summary punishment was much more common than court-martialling for these offences. Victorian punishment returns also indicate that this was a long-lived practice. ²⁸ Nor was the navy alone here; terrestrial authorities also used summary methods. ²⁹

While we have comparatively little detailed documentation of naval uses of summary punishment for these infractions, what has survived indicates that naval officers and administrators often viewed it as routine and unproblematic. In an 1812 trial, the accused claimed that his captain (and prosecutor) had offered him the option of taking six dozen lashes rather than facing charges. ³⁰ The captain made no effort to refute the claim in court. Even in instances in which participants explicitly identified violations as crimes outlawed by the Articles of War, summary punishment could be the outcome. ³¹

In the 1815 trial of ordinary seaman Thomas Randall, it became clear that his captain, Robert Campbell, had repeatedly punished the sailor summarily for the sorts of offences that eventually led to his trial. ³² Campbell had put the man in irons after he tried to ‘frig’ (masturbate) another sailor without his consent early the previous December. Another sailor accused Randall of something similar later the same month. Once again, Campbell put the offender in irons. Testifying to Randall’s character at trial, Campbell explained that after those two incidents he warned the sailor that he would have to request a court martial ‘if anything of this kind occurred again’. It was clear, though, that this was not the preferred outcome: ‘from the admonition I gave him. . . I was in hopes, I should have been prevented being obliged to bring him to a Court Martial’. Others articulated similar thoughts. Sir William Hoste chose summary punishment for a sailor and boy guilty of an ‘unnatural crime’ because ‘[h]ad I tried these wretches by a Court Martial, they must have both been executed’. ³³

Randall escalated his behaviour the following summer, getting into another man’s hammock and putting ‘his privates close to my backside’. When the man confronted Randall, the offender ‘asked me to forgive him and say nothing about it’, but his effort was in vain, and Campbell followed through on his earlier threat. The captain nonetheless testified to Randall’s good character at trial, stating that he had ‘always considered him an orderly, clean man’ and, improbably, that he ‘was the last person in the ship I should have suspected of having been guilty of the charge’. This testimony helped Randall. ‘In consideration of the very good Character given of the Prisoner,’ the court sentenced him to ‘only’ 150 lashes round the fleet, a comparatively restrained sentence for someone identified as a repeat offender.

There were many reasons to prefer avoiding trial. Outcomes were unpredictable and commanding officers could not control them. Courts were willing to return death sentences even to boys and commissioned officers. Trials were also highly public and visible. More prosaically, they were time- and labour-intensive undertakings that snarled up naval business wherever they convened. ³⁴ Requesting and granting a court martial was a significant step. In an 1801 letter to Nelson refusing a trial warrant, Admiralty Secretary Evan Nepean explained that the complaint in question was not, ‘even according to [the complainant’s] own statement, of sufficient importance to warrant so serious an enquiry . . . [C]omplaints of so trivial a nature must be very ill received by their Lordships [the Lords Commissioners of the Admiralty]’. ³⁵

While these factors introduced pressure against bringing allegations to trial, methods for avoiding a court martial could be risky. Summary punishment sometimes produced controversy and dispute, for example. When Captain Edward Fellowes discovered that two of his marines had been punished summarily for buggery before he took command, he was incensed. ³⁶ Frustrated that the two ‘received only corporal punishment . . . and not death as the Articles of War would have made them suffer’, Fellowes sought permission to have them discharged ‘with every mark of ignominy & contempt for so beastly a crime, as their remaining on board their ship must appear a toleration of such infamy & highly detrimental to the order & discipline of the Conqueror’. The Admiralty acceded to his request. ³⁷ Clearly, summary punishment could easily produce conflict.

On the other hand, quashed prosecutions show that appetites for sodomy trials were limited. In 1781, the Lords Commissioners drafted and signed the order to hold a trial on a corporal of marines for attempted sodomy on a dog. The Admiralty Board ultimately decided to withdraw the order, however, on the recommendation of the Commander-in-Chief at Portsmouth that ‘the matter might be dropped, as there was not sufficient Evidence for Conviction and as a court martial of that kind would be of a very disagreeable nature’. ³⁸ Fifteen years later, Captain George Brisac and a sailor under his command made competing accusations of indecent conduct. ³⁹ Both appealed directly to Sir George Keith Elphinstone, their Commander-in-Chief. Elphinstone began investigating the affair, but Brisac asked to withdraw his request for a trial and none ensued. Limitations on courts’ jurisdiction and the period of time in which charges could be brought also halted or scuttled some prosecution efforts. ⁴⁰

Summary punishment could tip into other, more dubious methods of resolving alleged crimes. In his journals, Sir Graham Moore recorded two further, illuminating examples of summary punishment that bridged that divide. ⁴¹ As a lieutenant in 1788, Moore witnessed Captain Charles Sandys punishing ‘two fellows who were guilty of an unnatural crime’. Sandys confined them in irons ‘upwards of a month’, gave each a dozen lashes, and finally put them ‘in one of the boats and an opportunity given them to desert which (in consequence of frequent broad hints that such a step would be highly satisfactory to the Officers) they accordingly did’. Moore reflected that ‘had I been Captain of the ship I would have turned them both ashore’. Five years later and commanding his own vessel, he did just that:

Yesterday I did what I had no right to do . . . in flogging and turning a seaman ashore . . . I must either have acted as I did, or taken the fellow. . . to be tried by a Court Martial; it was impossible for him to remain in the ship after it; the horror and indignation which our countrymen have for attempts of that nature could not brook such a man remaining amongst them. Besides I am of opinion that morality suffers by such practices becoming notorious.

Moore would go on to serve on at least three naval courts trying similar crimes. He knew and understood the letter of the law, which he would apply in those trials, but felt it necessary and justified to balance the criminal code’s severity against other considerations.

III

Moore’s case transitions us to another important group of interrelated methods for resolving allegations: discharge, dismissal, or flight without formal adjudication. As they could involve further law- and rule-breaking, these routes can be difficult to trace and reconstruct. Desertion was a serious crime, as was aiding and abetting it. These practices are, unsurprisingly, not well documented. We can, however, reconstruct some broad contours of their use to avoid prosecution based on scattered examples, evidence revealed in trials, and the navy’s contemporary records of officers punished in this fashion. In what follows, I rely heavily on a collection of 29 such cases, the core of which is a group of 14 lieutenants dismissed between 1797 and 1814. Notably, this group is nearly as large as the body of navy and marine lieutenants who faced trial for such offences in the same period.

The Admiralty did not require formal judicial processes to discharge its men for misbehaviour, and sometimes decided to do so on the basis of complaints, investigations or other non-judicial mechanisms. In 1742, a Virginia trial jury acquitted the purser of the Strafford of sodomy, ‘the Indictment not taking notice of the Attempt’, the misdemeanour crime. When his captain alerted his superiors in London, they simply dismissed the purser and placed his name on their lists of sanctioned officers. ⁴² Some cases like this indicate participants understood there to have been a non-judicial finding of guilt. This occurred with gunner William Charles Gallen. Writing to inform the Admiralty both of his crime and his flight, his captain explained that he had ‘been found Guilty of a Most unnatural and detestable Crime’ without trial. The Admiralty’s records copy this language exactly, fixing the man as a known, if untried, sodomite. ⁴³

Courts of inquiry, ‘extra-constitutional devices’ without formal authority to determine guilt or award punishments, could play a similar role. ⁴⁴ An 1805 court of inquiry provided the basis for dismissing Lt. Joseph Newton from the service. It found that he not only bore a poor ‘general report’ on his ship, but also had been summarily punished a decade earlier for a similar crime as a young surgeon’s servant. His captain had turned Newton out of the ship and sent him ashore at Livorno. Yet, Newton returned to the navy the next year, and a decade later faced this new accusation. Again, he avoided prosecution. When the inquiry concluded, the Vice Admiral who had ordered it suggested simply ‘superseding’ the officer and ‘allowing the Wretch to retire into solitude’. ⁴⁵ Careers like Newton’s reveal how navy men could ‘offend’ repeatedly and yet never face trial.

In rare cases, men admitted guilt and nonetheless received only dismissal. When an accusation surfaced in 1757, the Mermaid’s surgeon confessed in a letter to his captain. ⁴⁶ Explaining that he was ‘Bewetchd and in Liquor’, the officer owned that he had brought a 13-year-old boy to his cabin, where he ‘did desire him to cause me to emit [ejaculate] and did take hold of him’. The surgeon’s defence was that he had stopped there, not attempting the felony. The details of the case are nearly identical to others that went to trial and the surgeon had offered a remarkably weak defence that recorded a clear confession, but his plea for leniency won out. Indeed, when referring the complaint, his captain admitted that he had not even confined the surgeon, as he was the only medical man aboard. The resolution of this ‘disagreeable case’ was quiet dismissal.

On occasion, officers and administrators left unambiguous evidence of efforts to suppress allegations and broker ‘accommodations’ avoiding trials. This material provides rare glimpses into an elite naval discourse that treated non-prosecution as an accepted and legitimate, if potentially dangerous, mode of resolution. In 1796, Captain Charles Sawyer reached a tentative agreement with his officers to allow him to leave his frigate and avoid trial. Captain George Cockburn reacted with hostility when the proposal reached his desk. Yet Cockburn had suppressed an earlier case involving Sawyer, and he signalled his grudging willingness to let a peer or superior accept the accommodation. Lord St. Vincent’s correspondence dealing with Sawyer also shows that the captain had been given the option to flee, but chose against it. ⁴⁷

Some officers were willing to go further and publicly articulate the belief that discharge or flight could be a preferable practical outcome. When a commissioned officer under his command ‘absconded’ following a charge he ‘could not deny’, Thomas Manby was satisfied. He noted that ‘so detestable a character is a disgrace to His Majesty’s Service, and more particularly so to the ship I have the Honor to command’. ⁴⁸ In 1806, Captain Donald Hugh Mackay stood trial for ‘unofficerlike conduct’ and neglect of duty. One of the charges was for allowing a marine ‘to escape from Condign Punishment’ after a lieutenant had confined him on suspicion of sodomy. In court, Mackay complained that this charge showed ‘that the prosecution has been entered upon more from the spirit of resentment than justice’. ‘The Court is aware,’ he explained, ‘of the difficulty of proving a Crime of that nature, and how disgusting to the Members of the Public.’ ‘I could not think,’ he concluded, ‘that this fleet required an example of such a Crime and took a most effectual way to turn him out of the service.’ ⁴⁹

Mackay escaped with no more than a slap on the wrist, but non-prosecution methods could have much more serious consequences. In some cases, parties were dead set on prosecution and angered when suspects escaped. Lt. John Trelawney, commanding the Pelican, was notorious for ‘frequently’ violating the sodomy prohibition. The vessel’s officers were not eager to see him tried, putting them in conflict with ‘the People’, its company, who ‘were constantly talking of it among themselves’ and exerting pressure for an investigation. Their superiors won out in the end, though, and Trelawney fled while in Jamaica. No prosecutions followed. ⁵⁰ That was not always the case. Both ratings and officers were vulnerable to charges stemming from non-reporting and escape. ⁵¹

For instance, the navy sometimes prosecuted sentries after flights. Thomas Ashton, the marine boy (about 16 or 17 years old) involved in the explosive James Nehemiah Taylor case, fled confinement in irons and swam from the Jamaica. He thus avoided the trial that sent Taylor to his death. ⁵² On the day that trial concluded, the same court also tried the marine who had guarded Ashton, acquitting him of all charges. ⁵³ A few years later, another sentry was acquitted of allowing a quartermaster awaiting execution to escape – his flight having been discovered when the master at arms came to deliver the prisoner his breakfast or some cocoa. ⁵⁴ The Victorian navy prosecuted sentries for such escapes as well. ⁵⁵

Officers who helped or permitted flight also ran serious risks. In 1807, Lt. John Wilmot Waterhouse escaped from the Barfleur after accusations that he had sodomized ‘several young men’. ⁵⁶ The ship’s company believed that Waterhouse, the young men and a group of officers had conspired to help him. In the two days after the escape, the company drafted two petitions, one to the Admiralty and the other to their Commander-in-Chief, Admiral William Young, alleging a conspiracy. They explained that their commissioned officers had dispatched petty officers to secure the men’s support for their plan and requested an investigation into the matter. These petitions evince deep discomfort with non-prosecution. One stated rationale for Waterhouse’s flight had been to avoid ‘scandal’ and ‘disgrace’. The petitioners rejected this argument, explaining that their true worry was that ‘our characters may be blasted throughout the Navy for suffering such Heinous’ crimes ‘to Be Hushed up in so Scandalous a Manner’. ‘No Sir,’ the petition to Young declared:

as Laws are made for Every Degrees and we as Men do feel very Uneasy that such a heinous Offender should escape with impunity particularly after the repeated denials we had given the petty officers who was ordered around the Decks to strive to get the Sanction of the Ship’s Company to allow the said Lieutt to be put on shore, and the others who was concerned with him to be sent to America.

The companion petition described the ship’s company witnessing a sodomy execution at Spithead, likely that of Hepburn Graham in 1806. That discussion suggests a preference for brutal, spectacular punishment over what had occurred on their own ship. The petitions bore fruit: an inquiry that determined that lieutenants John Bates and Richard Alcock had ‘connived’ to help the prisoner escape. A subsequent court martial convicted Bates and acquitted Alcock.

The ad hoc nature of non-judicial resolutions could produce deeply unstable outcomes that left those involved vulnerable. The experiences of John Harper, commanding the Saracen, highlight the risks attending these resolution methods. In 1813, Lt. George B. Roper escaped from confinement under armed guard after Harper had arrested him on suspicion of buggery. ⁵⁷ Vice Admiral Sir Edward Pellew, Commander-in-Chief of the Mediterranean station, excoriated Harper for the officer’s improbable escape and for not having detected his crimes earlier. Pellew threatened to court-martial those involved as well as six others believed to have taken part in the offences. Harper could only weakly defend himself, insisting that Roper had hidden his misdeeds too well. And he was forced to inform Pellew that the six other men would also escape trial. While he believed some were guilty, he had turned up no evidence and rather than arresting them, had them put ashore at Mahon.

The affair reflected poorly on Harper, and things soon deteriorated further. Five months after the Roper incident, tensions again erupted on the sloop, this time around William Horne, a boatswain’s mate accused of erotic contact with a boy. Harper had arrested and confined Horne, but soon relented and made him a prisoner at large. The sloop’s first and second lieutenants, master, surgeon and purser followed the example of the Barfleur’s company and complained of Harper’s behaviour both to Pellew and Captain William Hoste of the Bacchante. They requested a court martial on Horne and criticized Harper’s actions, reporting that they had ‘every reason to believe [Horne] will make his escape’. These measures were effective. A trial followed, convicting Horne. ⁵⁸ Harper’s career survived these scandals, but they revealed serious irregularities in his command.

While some escaped trial and punishment by taking flight, others considered an even more extreme option: suicide. Facing a sodomy accusation in 1757, Captain Thomas Churchill insisted on his innocence. He had received the charge ‘with the Greatis Shock and Surprize, and tremble at so faulse and horable an accusation’. Shortly after penning those words, he killed himself with a pistol in his cabin. ⁵⁹ Others threw themselves overboard. ⁶⁰ A shipmate urged one seaman to ‘go & jump overboard out of the way to let nobody see him’ when caught in the act. Both Charles Christian and Hepburn Graham threatened to kill themselves and their young victims if accused. ⁶¹ Some simply hoped for death, lacking the means to realize their goal. One sailor admitted that he was ‘tired of his Life’ when discovered. Another asked a shipmate ‘to cut his head off’. ⁶² A third threatened to kill himself and others with a clasp-knife, eventually stabbing himself in the gut. ⁶³ Such examples indicate a close connection between martial sodomy and self-harm. This link remains visible in the Victorian period, in cases like that of Horatio Stopford Nixon, commander of the Ringdove, who also shot himself while awaiting a court martial. ⁶⁴ These men turned to desperate, extreme measures, but they were measures that preserved their agency and allowed them to at least control their own deaths.

IV

The practices discussed above are poorly documented relative to sodomy courts martial, which likely represent the single richest body of serial sources detailing the legal repression of the homoerotic in the early modern Anglophone world. Remarkable as it is, though, the court martial archive can give us only a partial view of naval responses to the sodomitical. Fortunately, there is abundant, if less comprehensive, documentation of non-trial methods. In order to highlight these little-studied sources and show how radically the practices they record can differ from what is found in the trial papers, I conclude this article with an extended case study focusing on Lt. Arthur Walter Adair. Late in 1805, Adair left the Endymion with the blessing of Captain Edward Durnford King, ostensibly to go to sick quarters in Lisbon for disabling rheumatism but in fact escaping a threatened trial for homoerotic crimes against two boys. ⁶⁵ Adair returned to his native Northern Ireland and attempted to resume his career, but the Admiralty soon dismissed him upon learning of the allegations. Still in his early 20s, Adair spent much of the following decade battling with the navy over his dismissal, generating reams of correspondence, publishing a pamphlet, repeatedly petitioning the crown, threatening and initiating legal actions and more. Although it never came to trial and is now entirely unknown, Adair’s is one of the best-documented early modern naval sodomy cases. Close examination of that documentation reveals the importance and promise of attending to cases that were never prosecuted.

What transpired on the Endymion is difficult to determine, but it appears to be another example of an accommodation brokered to avoid a trial. Adair would later claim King disliked him personally and sought to be rid of him with a medical discharge. ⁶⁶ For his part, King claimed that, facing allegations of ‘indecent and unmanly liberties’, Adair had begged to be allowed to leave ‘under the pretense of ill health’. Initially the captain had ‘objected to this as improper’, but in time ‘the feelings of your friends induced me at last to accede to your wish’. He maintained that he had instructed Adair to face trial if innocent, but Adair refused to. ⁶⁷ Some seven years after the alleged crimes, Admiralty Secretary John Wilson Croker reported that he had wrested a confession from Adair to the effect that he had indeed left the ship to avoid a court martial, much as King had claimed. ⁶⁸ Whatever the truth of the matter, King and Croker’s accounts represent the Admiralty’s version of Adair’s case.

The most detailed account of the precise allegations also comes from much later, an 1809 affidavit given by Peter Green, gunroom steward on the Endymion in 1805. ⁶⁹ Green claimed that two boys, a then-current and former servant, had accused Adair of assault. One alleged Adair ‘wanted him to play with his Prick’, grabbed the boy’s penis, and forced him into his cot to spend the night there. He claimed Adair had threatened and used violence. The other boy charged that the officer had wanted him ‘to play with his (Lieut Adair’s) Prick almost every night’. Green swore that these allegations also circulated among the ship’s people, who gossiped that ‘Lieutenant Adair has been foul of the Boy’. Green understood Adair’s departure in the same terms as King and Croker: a settlement negotiated to avoid trial.

On his dismissal in 1806, Adair had rushed to London for an audience at the Admiralty. He sought to dispute the outcome of his case, a move a number of suspects facing discharge attempted. During the journey, he suffered some sort of injury to his leg from an accident on the Holyhead mail coach, though his descriptions of the harm were inconsistent. ⁷⁰ Whatever the truth, it was months before Adair declared himself ready for a meeting at the Admiralty. ⁷¹ Unfortunately for him, there was already little appetite for his ‘incessant application’ by post, much less a meeting in person. ⁷² This reaction was predictable. For those with the power to request or order courts martial, a chief goal of avoiding trial was to dispose of such cases quickly and quietly without adjudication. As the Admiralty consistently met his efforts with silence and stonewalling, the volume of his correspondence increased and its tone turned darker and more desperate. Declaring himself ‘ignorant of the cause, condemned unheard, untried’, Adair wrote letter after letter demanding the reason for his dismissal, a meeting and reinstatement. He wrote of his own and his family’s long history of martial service and of the conspiracy he believed targeted him. Over the years he would accuse many of taking part in it, including different Admiralty Boards, Captain King, his first lieutenant, the Endymion’s surgeon and an unnamed Admiralty clerk, among others. Adair maintained throughout that dismissal without trial produced a ‘foul stigma’ that made it impossible to rejoin his friends and family. He insisted that he must be able to vindicate his ‘sacred character’, ‘which is all I have left, and which must be prized infinitely before life’. ⁷³

As the months continued to pass, Adair made little progress. ⁷⁴ He often referred to his ‘extreme suffering, as well mental as bodily, which may be conceived but not described’, rendering ‘my very existence a burthen’. He also wrote of increasing financial distress. ⁷⁵ He even hinted that he would die if not reinstated: ‘it having been the great wish of my life to have ended my existence in the service, the early part of which has been passed in it, and the remainder cannot otherwise be of long duration’. ⁷⁶ Adair pursued other routes as well. He was able to interest Sir Robert Kingsmill in his case. Nephew and namesake of a recently deceased admiral who had been an Adair family patron, Kingsmill began to investigate what had transpired. ⁷⁷ These efforts led to an abortive lawsuit against Captain King, one of a handful of threatened legal actions over the years. ⁷⁸ But all to no avail.

Adair also took to print in 1807, publishing a 42-page pamphlet mostly made up of correspondence relevant to his ‘melancholy tale’. ⁷⁹ Naval sodomy cases often gained wider public attention, and Adair was not alone in attempting to court the public’s support. ⁸⁰ As the pamphlet’s title shows (see Figure 4), Adair positioned the ‘Late Board of Admiralty’ as his antagonist. Denied vital information, the opportunity to present his case, and any type of trial, Adair turned to the public in hopes of some redress. A trial had become his particular goal. He presented it as the only way to appropriately reclaim his character and as a basic right denied to him yet accorded even to ‘the vilest Criminal in these Realms’. ⁸¹ Advertisements for the work – priced 2s. 6d. – indicate it was intended for more than private circulation. ⁸² On the title page of the copy in my possession, someone sympathetic to his argument has inserted three lines from Titus Andronicus: ‘“Terras Astraea reliquit” [Astraea, goddess of justice, has left the earth] haply you may find her in the sea / But there’s as little justice as at Land.’ ⁸³

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Figure 4.

Title page of Arthur Walter Adair’s A Series of Letters, Submitted to the Consideration of the English Nation (1807).

In May 1808, Adair informed the Admiralty that he had finally learned the nature of the allegations against him. He claimed that that had been the goal of the pamphlet, and that he had now ‘suppressed the few Copies left’. ⁸⁴ He continued to press his case, though, demanding information, documents, a hearing and a trial. In 1808 and 1809, Adair petitioned the King-in-Council either two or three times, presenting one memorial in person. He threatened to petition Parliament as well, and would later petition the Prince Regent-in-Council twice. None of his efforts was successful. ⁸⁵ Late in 1809, four years after leaving the Endymion, Adair also offered his first attempt at a comprehensive defence in lieu of a trial, sending the Admiralty a packet of correspondence he and Kingsmill had collected from Captain King and his officers. ⁸⁶ As there had never been interest in adjudicating Adair’s case, the effort had little chance of succeeding, but it forced Captain King – the main villain in this particular account – to reply. He introduced his own correspondence as well as the gunroom steward’s affidavit quoted above. ⁸⁷ Adair responded in turn, forwarding depositions clearing him of wrongdoing purportedly from two former servants. ⁸⁸

While these claims and counterclaims closely resemble what we find in contemporary sodomy courts martial, this new evidence did nothing for Adair’s case. Just as with others dismissed non-judicially for sodomitical offences, the Admiralty’s 1806 decision had formally defined Adair as a sodomite in the eyes of the naval bureaucracy. Mechanisms existed to change that designation, but Adair had no power to activate them. As early as the previous summer, those fielding his correspondence at the Admiralty had started indexing it as repeating his ‘Old Story’. ⁸⁹ Frustration with him is apparent elsewhere. An Admiralty minute from the same time complains about the ‘indefatigable letterwriter’, lamenting the ‘vast Volume of Correspondence on a Subject which Mr Adair has never failed to bring before the board’ at every opportunity. ⁹⁰ Adair indeed continued with his applications, requesting documents and threatening legal action through 1810 and 1811. ⁹¹ He also began an altogether more pathetic stream of correspondence, pleading for financial support in the form of a few months of outstanding back pay. He also sought half-pay – maintenance remuneration for officers off active duty – on the basis of his former service. ⁹² He declared himself in ‘extream distress’ and ‘absolutely destitute and forsaken by my relatives, friends and Family in consequence of the Melancholy situation I am in’. The board sought to honour his request in an expedited fashion just ‘so that their Lordships may have no more correspondence with this person’, but bureaucratic challenges protracted the process. His request for half-pay was a nonstarter. ⁹³

The 1749 act governing courts martial set a limited window for bringing charges, one that had long since passed. ⁹⁴ Adair persisted in demanding a trial, though. He turned to the crown again in 1812, petitioning the Prince Regent-in-Council twice. ⁹⁵ He made the case that he could still be tried by noting his membership in a group of men facing similar charges, pointing in particular to a case ‘remarkably resembling this’, that of Charles Clark Dobson. Another lieutenant, Dobson had been commanding a gun brig when accusations surfaced against him that were similar to Adair’s. ⁹⁶ Dobson fled the vessel and also pointed to poor health to justify his actions, claiming that wounds he had received in the service produced ‘mental derangement’. In all other respects, though, Dobson was a poor precedent for Adair to invoke, and it appears that the final outcome of his case was dismissal – precisely what Adair could not brook. ⁹⁷

By the time Adair undertook this second round of petitioning, almost seven years had passed since his alleged crimes. He offered no compelling new arguments, and the example of the Dobson debacle was unlikely to help his position. Adair’s knowledge of, and reference to, that lieutenant shows us, though, that he understood them both to belong to a group of sodomy suspects caught in the shadowy area below the level of courts martial. Whatever their other qualities, Adair’s arguments between 1806 and 1812 developed a consistent set of critiques of what was, to his eyes, a nether realm of naval justice and discipline. Leveraging arguments about the rights and privileges afforded by citizenship, genteel masculinity, martial service and officership, Adair asserted that he was owed an impartial public hearing and the opportunity to confront his accusers and defend himself.

On this basis, he condemned those involved in his case, including successive Admiralty Boards, as acting illegally. Dismissal of this sort allowed evil men like Captain King, ‘grasping at a whisper’ against a hated subordinate, to have him ‘extra judicially condemned’ on a ‘hearsay’ complaint. ⁹⁸ The stigma this caused spread like ‘poison’. ‘I still remain condemned and punished, unheard and unseen, deprived of those Benefits enjoyed with advantage by the most iniquitous culprit.’ Thus ‘prejudged, an Alien and an Outlaw’, he was at the mercy of malevolent and unchecked naval elites who ‘sit in a secret conclave like friars in a confessional’. ⁹⁹ He pointed to other similar points of comparison as well: The Star Chamber, excommunication, the Inquisition, the use of spies and informers.

V

Regardless of the strength of his arguments, Adair did not have the influence and connections necessary to achieve his true goals. But his case does help us to better understand the adjudicative and disciplinary spaces that existed below courts martial and the experience of navigating them. Adair recognized that the navy had many ways of dealing with allegations of sodomitical misbehaviour. The system that the force developed for confronting the homoerotic left enormous room for discretion, and his efforts all relied on the hope that he could get someone to exert discretionary power for his benefit. Adair may have been alone in the unusual contours of his case, but he joined many other men and boys in experiencing a highly contingent outcome of a sodomy allegation that kept him from a naval courtroom. Perhaps few left a trace in the archives like this ‘indefatigable letterwriter’, but many others experienced their own version of his travails.

Adair’s experiences hardly resemble more routine non-judicial sodomy punishments like that of Henry Smith, a maintopman ‘put in Limbo’ (in irons) in 1798 for attempting buggery on a man named John Murray one night on the forecastle of the Lapwing. ¹⁰⁰ Neither man’s alleged crimes came to trial, though. Many may have agreed that sodomy was among ‘the most atrocious crimes known in our Naval Code’, but detection of a sodomitical offence was no guarantee of a trial. ¹⁰¹ Or even a punishment. Considerable discretion within systems of discipline and justice allowed naval actors to respond in many different ways. Their actions, and the records they generated, attest to the heterogeneity of attitudes towards the homoerotic and those thought to engage in it. The navy’s criminal code promised harsh punishments for them, and disciplinary records and the courts martial archive show that many experienced those sanctions. But those penalties are only part of the story.

A wide variety of factors could induce those with the power to seek or order trials to instead choose another course, including the desire to make a case quietly disappear. The accused could also sometimes exert their own agency in attempts to avoid or procure a particular outcome. Results were unpredictable, but, as the foregoing has shown, the realm of non-judicial resolution of sodomy cases was large and complex. Unprosecuted offences still generated discourse, communication, disciplinary action and much more. These practices and the records that they created must be part of our considerations of buggery and the British navy if we are to fully understand this history.