"A Thing They Never Dreamed Of"
As the day neared for the arrival of Governor William Jones, a committee of citizens had prepared a reception, borrowing a band from the U.S. Army to greet him at the dock.
But the greeting went bad: Robert Bennie Cranston, the increasingly prominent Newport local who showed up to act as dockside master of ceremonies, called out a series of Rhode Island favorites that the federal band didn't know how to play. In desperation, and with the governor's packet ship nearing the docks, Cranston called out for the musicians to play some military thing that they would definitely know. He fumbled -- and ordered them to play "the retreat."
And so the Federalist governor looked out over the docks as he arrived, and saw a military drummer beating a retreat -- with a prominent local Republican at the front of the band. Refusing explanations, Jones chose to take it as a deliberate insult.
This is where it gets interesting. Cranston was a captain in the Newport Artillery, a state-chartered military company. When Jones sent a message to the state legislature telling them he'd been viciously and publicly insulted, he didn't say that he'd been insulted by a local citizen. Instead, he told them he'd been insulted by a subordinate, a militia officer who had wantonly disrespected the commander in chief of the state military. The legislature passed a resolution demanding (among other things) that the governor bring Cranston before a court martial.
Robert Cranston had acted as a citizen, but would be judged as a soldier.
Testimony at Cranston's trial centered on his identity at the docks: He was a militia captain, yes, but was he a militia captain when Jones arrived? Witnesses agreed that Cranston had been acting as a citizen, giving orders"in his civil capacity." As one witness told the panel of militia officers judging the case,"He had no side arms or uniform -- he had a rattan, I believe, in his hands." Testimony also established that Cranston hadn't received formal orders to appear at the docks as a militia officer.
Speaking in his defense, Cranston told the members of the court that they could not allow themselves to even consider the charges against him:
I was not in a military character or capacity; the Artillery Company to which I belong not being ordered out or on duty that day; but I was in the character and capacity of a private citizen, and in none other; and for any acts and doings of mine on that day, in the character and capacity of a private citizen, I am not amenable to martial law, nor subject to be tried by a Court-Martial...The officers on the court agreed with alacrity, voting that they had no jurisdiction over a civil event. Military officers refused to apply military rules to a citizen who sometimes performed military duty.
A citizen enrolled in the militia is still a citizen, with all the rights and immunities of a citizen; he is not a solider, though liable to become one...[B]ut until then, martial law and Courts-Martial have nothing to do with him. If they have any thing to do with him, then every able-bodied male citizen, from the ages of 18 to 45, are subject to martial law; a thing they never dreamed of.
Cranston's trial represented an ordinary exchange in the early republic. For decades, political leaders and local militiamen fought over the place and role of the militia in American political life. Militiamen were brought up on military charges for social offenses and political speech; privates were thrown out of independent military companies for irritating their neighbors in casual political discussion.
In Georgia in 1799, Governor James Jackson told the state legislature that a lieutenant colonel in the Richmond County militia had publicly expressed his distaste for the Constitution, saying he would"never consider himself bound by certain parts." Jackson asked legislators to impose a loyalty oath on militia officers, binding them to the government and forbidding disloyal speech.
In Maryland in 1808, a military court of inquiry looked into an allegation that the state's adjutant general had proposed a toast, during a private banquet, to the damnation of democracy."Reflect for a moment," he warned the court,"on the dangerous consequences of suffering political to be mingled with military considerations." His argument before the court centered on the private nature of his political speech, setting it plainly apart from his role as an officer of the state. (He also assured them, natch, that he had been talking about French democracy.) The court concluded he had done nothing that warranted censure, and closed the matter.
As in Cranston's case, militia officers and other military leaders fiercely and persistently contested the dangerous idea that they were soldiers and officers of the state all the time, insisting that they put that identity aside when they put their uniform aside. Occasional military duty imposed no broad limits on a citizen's political speech. The idea that militiamen were subject to military rules while not uniformed and on formal orders was something they had never dreamed of. The question was asked, fought over, and disposed.
In 2009, Rep. Joe Wilson, a retired military reservist, has no obligation to treat Barack Obama as his commander in chief.