A Dragoon on Trial: The Quality of Military Justice and the Court-martial of Pvt. Percival Lowe, by Will Gorenfeld

A Dragoon on Trial: The Quality of Military Justice and the Court-martial of Pvt. Percival Lowe

Will Gorenfeld

The near-perfect Dragoon Pvt. Percival Lowe would not forget the hot evening of 23 July 1850 at Fort Kearny. The day started off well enough, with Lowe participating in Sunday’s traditional guard mounting. Wearing the impressive dark blue dress uniform, with its tall yellow collar, tails, and polished brass buttons; a tall black shako, topped by a horsehair-plume and with a dancing yellow braid; polished leather accouterments, saddle, valise, and weapons in proper order and oiled, Lowe reported for inspection. After guard mounting, Lowe took his horse into the stable, hung his polished saddle, blanket, and valise onto a rack. He then changed into his fatigue uniform and reported for guard duty. Not in his wildest imagination did he suspect that before the coming of dawn he would be arrested and placed in double irons.

Following a bugler’s sounding of “Tatoo” (lights out), all activities at Fort Kearny ceased and guards took up their posts at vital locations about the installation. That summer evening Lowe was stationed as a guard at the stable. All quiet was the night, save the company’s mules that were crowded unhappily into a corral located outside of the stable, and began a loud chorus of braying. When Lowe went on guard duty for his 2300 to midnight shift, both stable and adjacent granary appeared to be locked. In his book, Lowe took some pains to describe the large stable at Fort Kearny. It was “two hundred feet long and forty feet wide, built of sod, with three doors at each end and one in center of building on each side—open windows on both sides about thirty feet apart.” As if arguing his defense in the court-martial, Lowe writes, “Of course no sentinel could get around fast enough to watch these openings in this large building.” He informs us in 1850 the post suffered from the temptation of soldiers to desert to the gold fields of California.1

As a youth, Lowe was an avid reader of books that romanticized and glorified the West, and he sought to be “on the great plains of the West, live among Indians, buffaloes, and other big game, and the mountaineers and trappers of whom [he] had read so much,” at the same time he expected “good board, clothing, medical attention … [and the prospect] of going to the ‘land of gold.’”2 Thus, he pursued adventure, first on the high seas, and then decided to explore the Great Plains. On 16 October 1850, having lied about his age enlisted in the 1st Dragoons. Lowe’s vision of the West reflected those of his contemporaries, among whom were well-heeled lads such as Mathias Baker of Connecticut; James and Charles Hildreth of New York; Thomas Russell of Tennessee; Francis Clarke of England; and English immigrant, James Bennett of Avon, New York; Mathias Baker of New Jersey; and countless privileged young men who longed to be with the Army as it explored and coursed through the West.3

After leaving the Army, Lowe would pursue a successful career in both business and Kansas politics. Subsequently, in his later years, he would author Five Years a Dragoon, published in 1906, one of the best written books describing the life of an enlisted man in the antebellum Army. Don Russell, having written the introduction to the book’s 1965 reprint, found the original version to be unique in its reference to the 1849-1856 period, which has received scant attention by prior historians. In addition, Russell observed Lowe’s book is one of only a few authored by an enlisted soldier during the period prior to the Civil War.4

Lowe detailed all manner of exciting moments he experienced during his years with the 1st Dragoons, including a detailed account of a desertion which occurred at Fort Kearny in modern-day Nebraska. However, he excluded any mention of the disappearance of a fellow soldier along with two horses resulting in his own incarceration and court-martial. Lowe additionally excludes any mention of the inhumane treatment he received while awaiting a hearing.5

As good as the book is, Lowe’s failure to include any mention of his court-martial is only one of a number of events that are entirely omitted. An example of omission is his close relationship with Bugler Langford Peel where Lowe praises him throughout the entire account, conveniently neglecting to mention the fact Peel had abandoned his wife and child to become a fierce gunfighter known as Farmer Peel, living in Virginia City and other towns in the west, a historical aspect chronicled in Mark Twain’s Roughing It. It turns out Peel was later gunned down in Montana by his best friend.6

Upon completion of his training at Carlisle Barracks, Pennsylvania, Lowe was assigned to serve in Company B of the 1st Dragoons stationed at Fort Kearny. At the time of Lowe’s enlistment in the 1st Dragoons, Bvt. Maj. Robert Chilton commanded the company. A native Virginian, Robert Chilton graduated from the United States Military Academy in 1837, finishing near the bottom of his class. Following his graduation, Chilton received a brevet second lieutenant’s commission in the 1st Dragoons. After being initially posted at Fort Leavenworth, Chilton served at a variety of Army frontier stations, ultimately gaining a brevet major’s commission in 1847 for his efforts at the Battle of Buena Vista during the war with Mexico. At the outset of the Civil War, Chilton would resign his U.S. Army commission. He then received an appointment to

the rank of brigadier general in the Provisional Army of the Confederate States. Chilton served primarily as Gen. Robert E. Lee’s chief of staff and was later blamed for losing the “lost orders,” which fell into federal hands just prior to Lee’s engagement at the Battle of Antietam.7

After a year’s service in the 1st Dragoons, Private Lowe was fast becoming one of the company’s best soldiers and well liked by all. Most likely, Lowe was surprised when he was placed under arrest and subject to a court-martial. In his written response to the charges and specifications, Lowe stated after coming off guard duty he reported to the guardhouse in order to get some sleep before returning to guard duty later in the evening. He could not sleep, however, and suffering from the effects of loose bowels was driven to visit the company sinks (latrines).8 Concurrently, during this same period an incident occurred involving one Pvt. William Gratton9 whole stole two horses and saddles from the stable and proceeded to desert. Perhaps, being a good judge of horseflesh, one of the horses Gratton decided to steal was a first rate sorrel chestnut belonging to the unfortunate Private Lowe. Then again, there is the possibility that Lowe was planning to desert as well. In any event, Gratton rode off into the darkness with both his own and Lowe’s horse.

Major Chilton testified at Lowe’s court martial hearing to the fact he (Chilton) was awakened at some point between the hours of 0100 and 0200 by the corporal of the guard who advised Chilton the stable and granary had been broken into, two horses were stolen, and Gratton and Lowe were missing. The major then proceeded to the stables and confirmed this evidence. At this time Lowe approached Chilton and told him he had been at the company sinks at the time the corporal of the guard had been looking for him.10

In his declaration, Lowe stated he was briefly at the sinks and while leaving the latrine area, he heard the commotion arising near the stable, hurriedly dressed, snapped on his belt, causing his cartridge box to fall off the belt to the ground. Fully dressed, Private Lowe ran to the scene of commotion and confronted Major Chilton. After hearing Lowe’s weak excuse, Chilton ordered Lowe arrested and slapped the private in double irons. According to Lowe’s written statement three days after his arrest, Chilton spoke to him. The private pleaded his explanation of the interceding events. If the horses were stolen during the time he was on guard duty, he heard nothing of the thief’s (Private Gratton) activities and therefore had no knowledge of them because of the loud grating noise made by the braying mules. In response to Lowe’s explanation, Chilton advised Lowe the deserter Gratton would soon be captured, and if Lowe would immediately confess his complicity in the theft, the major would then let him off easy. If, however, he persisted in claiming his innocence, Major Chilton stated he would not grant him a separate trial and he would make it as hard as possible for Lowe.11

Gratton himself was never captured; but his three pursuers recovered the two stolen horses. They were also able to regain possession of Lowe’s saddle and valise strapped to his recovered mount.

Antebellum Courts-martial

During the period before the Civil War, too many officers believed that enlisted personnel were the scum of the earth. Or, as the Duke of Wellington was quoted as saying of his army at Waterloo, “I don’t know what affect these men will have upon the enemy, but, by God, they frighten me.” Cases such as the 1849 court-martial of Sgt. John Fowler was fresh in the minds of the officers at Fort Leavenworth.

In June 1849, Sergeant Fowler led an escort for Bvt. Col. Aeneas McKay who was traveling from Fort Leavenworth to Fort Kearny to pay the troops who were stationed there. Along the route. the sergeant told the members of the escort, you will “have plenty of money”—perhaps as much as $150,000—if we hold a “killing match” this very night. He explained he and the other mutineers would kill the officers in the “match,” steal the payroll, abandon the wagons on the plains, and then flee to Independence, Missouri.12

Most soldiers, likewise, in the ranks of the antebellum Army ranks feared their leaders. As the afore mentioned enlisted dragoon’s account shows, swift military discipline tended to radically cut the corners of justice:

If ever a burlesque was successfully got up, it is in garrison where a regimental court martial is to be held. … Although the recorder is presumed to have an eye to the interests of the government, yet in six cases out of seven he does not appear to recognize that the prisoner can have any interests to be jeopardized. … [The prisoner] has the privilege of calling any witness in his defense, but if the witnesses are privates they are so generally overawed by the haughty, arrogant bearing of the court, as to be little service to him. The prisoner is not allowed to speak in his defense, but can address the court through the advocate, or reduce to writing what he may desire to offer in his defense.13

Major Chilton was a cruel martinet, and Maj. Benjamin Beall of the 1st Dragoons was not mean spirited.14 Wellliked by his men, Major Beall could be exceedingly generous toward them. An example of his generosity is seen in a case described by Pvt. William Antes, who served under Beall while at Fort Tejon, California. Private Antes wrote when “[a] Circus Came one day … . Our Colonel, who had been drinking and was pretty mellow, said that every Soldier should go to the show, and all who had no money he would supply.”15 The Colonel tended to go to bat for his men, while strict officers such as Maj. George Blake and Capts. Robert Chilton, John Davidson,

James Carleton, and William Gardiner seemed to courtmartial nearly every soldier in sight. In stark contrast, the easygoing Beall disliked keeping any members of his command in the guardhouse. Private Antes remarked Beall “did not want any prisoners and was more than once on the point of burning the Guard house down.”16 In this article we witness an example of Beall’s even-handed sense of military justice.

Lowe, having to wait six months for his trial, thus was denied a speedy hearing and a semblance of a hearing, and a finding of guilt before punishment was imposed. And many enlisted men, though, were even less fortunate. Some officers simply meted out punishment in the field without even bothering to convene a court-martial. In 1852, dragoon Capt. James Carleton forced three drunken enlistees to walk back to camp roughly tied behind wagons. One man fell, was dragged for a mile and a half, and died from his injuries.17 Dragoon Sgt. James Bennett recorded an enlisted man who said he could not go further on a march was stuck down by the sword of his commanding officer and left to die. Bennett also wrote of another officer who, without any justification, seriously injured a recruit with his sword.18

A dragoon in Utah Territory reported seeing a lieutenant, for no apparent reason, knock a soldier senseless with the butt of an army revolver, and then laugh, “One less dough boy.”19 Dragoon Lt. Cave Couts voiced his disgust for an artillery officer who chained a handcuffed prisoner to a caisson by an iron band around his waist, and forced him to walk behind it from Chihuahua to Santa Fe.20

Lt. Philip Thompson of the 1st Dragoons was known for losing his temper while drunk and physically abusing his men. The unfortunate trooper W. H. Frost lost his proper distance from others in the ranks, and Thompson barked at him “to close up,” so rattling Frost he actually increased his distance from the men. The infuriated Thompson grabbed the recruit by the collar, jabbed him with the point of his saber, and threatened him in “severe terms.” An Army court of inquiry convened and found Thompson innocent of using unreasonable force, though it censured him for harsh language.21

This would not be an isolated incident for Thompson. On the march to New Mexico Territory from Fort Leavenworth in 1851, the captain, intoxicated, shot and wounded a soldier. The Army ordered him to pay the victim $600 for his wounds and to join the Santa Fe temperance society, but Thompson “broke the pledge so soon that the society expelled him.”22 Maj. George Blake, short of officers in distant New Mexico, had tolerated Thompson’s addiction, but Thompson’s inebriated performance even at an 1855 court-martial finally brought the Army to dismiss him from service.23

By the time of the U.S.-Mexico War, the Army had made valiant strides in eliminating inhumane correction of enlisted personnel.24 But one dreaded form of punishment persisted—“bucking and gagging,” in which the gagged offender’s hands and legs were tied and knees were pulled up between his arms, with a pole slid in the crook of his bent knees locking him in that painful position.25 A contemporary Army song, “Buck and Gag Him,” encapsulated the systematic abuse inflicted upon common soldiers, sometimes for the most minor misstep:

The treatment they give us, as all of us know, Is bucking and gagging for whipping the foe; They buck for malice or spite, But they are glad to release us when going to fight. A poor soldier tied up in the hot sun or rain With a gag in his mouth till he is tortured with pain, Why, I’m blessed if the eagle, we wear on our flag, In its claws couldn’t carry a buck and a gag. 26

Gen. Winfield Scott prohibited the practice of bucking and gagging in 1853.27 But other horrendous punishments remained available for officers’ use. Deserters often not only received fifty lashes “well laid on with a rawhide whip,” but also had the letter “D” branded on the left hip, had their head shaved, and were banished from the camp and service with a humiliating drumroll.28 Sgt. James Stevenson of the 1st Dragoons relates such an incident, which he witnessed while stationed at Jefferson Barracks in 1855:

[T]he troops were drawn up in lines forming three sides of a square, to witness the punishment that might deter them from deserting. It was the duty of the officer of the day to superintend the execution of the sentences. A gun carriage was placed on the fourth or vacant side of the square so that all the troops could see, and each prisoner in his turn was lashed firmly to the wheel, having been previously stripped to the waist. The drummer of the infantry and the buglers of the cavalry administered the stripes with a rawhide; and a more brutal exhibition I have never witnessed. When a blow was struck which did not seem hard enough, the officer of the day would not count it, so some of the prisoners received sixty stripes instead of fifty. When a man fainted under his punishment, restoratives were administered, and if the surgeon thought he could still stand it, he received his full allowance. In one case, the surgeon pronounced a man physically unable to stand the punishment after being restored from a fainting fit, and he was led off with about thirty stripes. When cut down from the wheel, their backs were rubbed with brine which, although said to be for their good, caused them dreadful suffering, if we could judge by their groans and cries. After a few days’ medical treatment, the letter “D” was pricked into their skin with India ink, and, with shaven heads, they were marched around the parade ground, the soldiers standing in line to witness the performance. The drums and fifes played the “Rogues’ March,” and a file of infantry, with bayonets at a charge, marched behind the culprits, and conducted them some distance beyond the limits of the barracks. Thus ended the inhumane and humiliating spectacle; I can truly

say that, instead of filling the hearts of the soldiers with fear and exercising a restraining influence over them, it only filled them with hatred for a service in which such brutal punishment was practiced, and produced a strong desire to get out of it in any way possible. I do not blame the officers, for they were, as a rule, humane and gentlemanly in their treatment of the soldiers. It was the fault of the system, and I am happy to say that it has since been done away with.29

Even without such tactics a callous officer could enrage his men. In one extreme example of such several members of Company F of the 1st Dragoons beat up Maj. George Blake in the Taos Plaza.30 More typically, disgruntled soldiers resorted to the extreme remedy of desertion,31 while those who stayed might take out their resentment upon sergeants and corporals.32

The Lowe Court-martial

On 15 January 1851, nearly six months after his arrest, the Lowe court-martial panel convened at Fort Leavenworth. Lowe was charged with abandoning his post to facilitate Private Gratton’s theft of federal property and desertion. Bvt. Lt. Col. Benjamin Beall presided over the sevenmember court and Capt. Charles Lovell acted as its judge advocate.33 Major Chilton was initially assigned to sit as a member of Lowe’s court-martial panel. Lowe objected to his presence in this capacity and the panel removed Chilton.

The major, however, served as a key witness for the prosecution. Chilton testified he was awakened by the corporal of the guard at around 0130 and Chilton was told that Private Lowe was absent from his post and that he could not locate the private; Chilton ordered the corporal to have the stable examined for evidence of a possible desertion and found that the stable and granary had been broken into through the use of force; upon further examination the major discovered Private Gratton was not in the barracks, and two horses were gone. Chilton ordered Sgt. William Barr, with Cpls. John Cuddy and Moses Cook to pursue the deserter; they were unable to capture Gratton. Chilton also testified he was angry that about two weeks prior to Gratton’s desertion, three of his best men—a sergeant, bugler, and farrier—had stolen horses and caught “gold fever.” Lowe later wrote he suspected a civilian aided Gratton.34

Chilton testified the corporal of the guard reported to him Pvt. Lowe had finally returned to his sentry station, out of breath and could neither realistically explain the cause of his absence nor the absence of his horse, equipments, pistol, and valise. He presented hearsay evidence the corporal of the guard had stated to him. Lowe told the corporal he was in the company sink (privy) at the time of the theft. The major testified Lowe’s clothing was later found inside of a valise strapped to his recovered saddle. Additionally, he attested his male servant found Lowe’s cartridge box lying in a garden near the stable and the company sink.35 The major attested he did not believe Lowe’s excuse for leaving his post, and came to the conclusion Private Lowe was intent on deserting with Private Gratton and arrested Lowe, “hoping that the severity [of the punishment] might prevent further thefts.”36

On cross examination, Major Chilton testified he did not suspect Lowe would desert, his character as a soldier being “excellent”; he was a fine horseman; and possessed an excellent temperament. But having recently lost “three of his best men” to desertion, he worried “California [gold] fever” was causing even good soldiers to dissert.37 1st Sgt. William Barr, the next witness for the prosecution, stated he was awakened around 2330 by the corporal of the guard on the night of the stable break-in. The corporal told Barr some of the company mules had broken loose, Barr roused a couple of teamsters and told them to catch the runaway mules. Soon afterwards the corporal returned and told Barr the stable had been broken into and that Lowe was absent from his post. The sergeant proceeded to the stable and discovered two horses missing. When questioned with respect to petitioner’s character, Barr stated Private Lowe “has been good, he did his duty pleasantly, thoroughly and efficiently … and had no reason to think he wanted to desert.” The sergeant gave testimony that the lock to the stable door was pried and then broken by use of a steel, pry-bar-like, marlinspike.

Sgt. Simon Hooper testified he had been awakened after midnight and was told the stable and granary had been broken open and two horses taken. The sergeant attested Lowe’s conduct was “good and so considered by every man in the Company.”38

Pvt. Edward O’Meara39 gave testimony he had been on sentry duty at the stable when a previous desertion took place and did not hear the deserters enter and steal three horses. The private stated this was due to the racket made by the nearby mules, “It was very easy for them [the horses] to be taken out without the sentries knowing about it, either time.”40

Lowe called Bugler A. G. Bostick as his first witness, who testified that, between 29 July and 17 October 1850, Lowe had been bound in irons on his wrists and a ball and chain on his leg. Bostick, acting as corporal of the guard when the company marched to Fort Leavenworth in October 1850, mounted Lowe on a mule and rode beside of him. When the company came into camp at the end of the day’s march, Bostick was ordered to chain Lowe’s ankles together. The wrist irons remained in place until 13 January 1851.41

Lowe’s final piece of oral evidence came in the form of testimony offered by Pvt. William Drummond, who attested after three horses had been stolen, to prevent further thefts, both he and the quartermaster sergeant routinely slept armed in the stables. Oddly, neither Lowe,

the judge advocate, nor the court bothered to question Drummond as to whether either of them was sleeping in the stable on the night of the desertion.42

While there was evidence Gratton stole Lowe’s horse, saddle, and valise, evidence was speculative that Lowe made any effort to desert with Gratton. Rather, what we have here is a case involving a good soldier, well-liked by his comrades, who may have briefly deserted his post and Lowe’s frustrated commanding officer unjustly blamed him for Gratton’s. To make matters worse, like Herman Melville’s Billy Budd, Major Chilton decided to make an example of Lowe by keeping him cruelly bound in irons for nearly six months to serve as a warning to other men in the company of what happens to deserters and to sentries who fail to stop them.43

Major Beall and the other members of the court saw through all of this, realizing that Private Lowe was a good soldier who did not neglect his duty and, in any case, had been unjustly punished by his commanding officer on a suspicion of a violation of duty. On 18 January 1851, the court announced it was not about to punish a good soldier, found him not guilty, and ordered him to return to duty. Two months later, Chilton promoted Lowe to corporal and in the years which followed the well-liked Lowe served his tour of duty, rising to the rank of first sergeant. After his discharge, Lowe obtained employment in charge of Army wagon trains.

Conclusion

In 1859, Lowe demonstrated that he was not immune to gold fever and traveled to Colorado Territory to participate in the Pikes Peak gold rush. The tale of his long, unexplained delay in the company sinks does not hold together. Could this young, adventure craving, well-liked young man have planned to desert that evening with Private Gratton but got cold feet? Lowe’s unexplained delay between the time he went off duty at midnight and not being found until nearly two hours later, plus his missing horse, suggests Lowe may well have initially intended that hot night to depart for California with Gratton.

Though Lowe, most certainly, had to have harbored animosity toward Major Chilton for his mistreatment, he did not express such in his book. To the contrary, Lowe describes Chilton as a capable and honorable leader of troops.44 Quite possibly, he said kind things because Chilton had repeatedly promoted him; and then, after Lowe’s discharge, his former commanding officer likely helped him land lucrative Army contracts such as civilian wagon master. Whatever was his reason to forgive the major, Lowe was a big enough man to let bygones be forgotten and went on to a successful career. Lowe left behind a sugar coated book, both describing his military service and those whom he served with. Nonetheless, it is a delightful book to read.

Notes

1. Percival Lowe, Five Years a Dragoon, ed. Don Russell (Norman:

University of Oklahoma Press, 1965), 36. 2. Ibid., 5. 3. Will and John Gorenfeld, Kearny’s Dragoons Out West: The Birth of the United States Cavalry (Norman: University of Oklahoma

Press, 2016), 15. 4. Lowe, Five Years, vii. 5. Ibid., 365 n15. 6. Robert DeArment, Deadly Dozen: Forgotten Gunfighters of the

Old West (Norman: University of Oklahoma Press, 2012), 4;

Will Gorenfeld, “John Bull Shot Down his Gambling Pal, Soldier-

Turned-Gunfighter Langford Peel,” Wild West (April 2011). 7. George W. Cullum, Biographical Register of the Officers and

Graduates of the United States Military Academy at West Point,

New York, since its establishment in 1802 (Washington, DC:

GPO, 1879), I: 695. 8. Under military law at this time the accused was barred from testifying in person but was allowed to file his written testimony.

Stephen Benet, A Treatise on Military Law and the Practice of

Courts-Martial (New York: D. Van Nostrand, 1868), 133; Courtmartial of Private Percival Lowe, Court Martial File HH 6, Entry 15, Records of the Judge Advocate General’s Office, RG 153,

NARA; Court-martial of Private Percival Lowe, Lowe’s written opposition to the charges. 9. Irish-born William Gratton enlisted in 1848 in New York. 10. Court Martial of Private Percival Lowe, 41, 67. 11. Lowe’s written opposition. 12. Court-martial of John Fowler, RG 153, Records of the Judge

Advocate General’s Office, Entry 15, NARA, Court-Martial Files

GG 76. 13. Anonymous, Recollections of the United States Army: A Series of

Thrilling Tales and Adventures by an American Soldier (Boston,

James Monroe and Co., 1845), 15. James Hildreth likely wrote this book. See William and John Gorenfeld, Kearny’s Dragoons. 14. For more on Beall’s personality see George Stammerjohan and

Will Gorenfeld, “Dropped from the Rolls: The West Point Years of

Benjamin Beall: 1814–1818,” MC&H, 54, no. 1 (Spring 2002): 16. 15. William Antes, “Recollections of a[n] Old Soldier,” Beinecke

Library, Yale University, 39. 16. Antes, “Recollections,” 36. 17. Skelton, An American Profession of Arms, 272; Records of the

Judge Advocate General, Proceedings of U.S. Army Courts-Martial, 1809–1890, National Archives and Records Administration,

Washington, D.C. (NARA) HH–161. Carleton to Sumner, 25

February 1852, Letters Received by Headquarters, 9 Military

Dist., 1852, Microcopy 1102, roll 3, Record Group 393, NARA; and

Courts-Martial, Carleton Court of Inquiry, NARA, HH–161. 18. James A. Bennett, Forts and Forays: A Dragoon in New Mexico 1850–1856, ed. Clinton E. Brooks and Frank D. Reeve, forward by

Jerry Thompson (Albuquerque, University of New Mexico, 1996) 80–82. 19. Bennett, Forts and Forays, 104. 20. Cave Couts, Hepah, California! The Journal of Cave Johnson

Couts From Monterey, Nuevo Leon, Mexico to Los Angeles,

California During the Years 1848–1849, ed. Henry F. Dobyns (Tucson: Arizona Pioneers’ Historical Society, 1961), 19. 21. War Department, Adjutant General’s Office, General Order number 63, September 27, 1842.