The Punishment for Falling Asleep at One’s Post

During a vacation in New Zealand in September, I was able to visit a new exhibition at Te Papa (New Zealand’s national museum) called Gallipoli: The Scale of Our War. The exhibition, which opened in April, provides insight into this particular aspect of World War I by telling the stories of eight New Zealanders involved in the eight-month Gallipoli campaign. In addition to photos, letters, diaries, maps, oral histories, and many artifacts, the exhibition takes you past and around enormous sculptures of the eight people, which were built with incredible detail by a team at Weta Workshop (the company behind the costumes and creatures in The Lord of the Rings and The Hobbit movies).

Jack Dunn’s Story

While the whole exhibit was fascinating and quite powerful, there was one story in particular that I decided to look into a bit further on my return to work in the U.S.: that of Private Jack Dunn. Before enlisting, John (“Jack”) Robert Dunn had been a journalist in Masterton (my hometown). He came down with pneumonia while at Gallipoli (as did my great-grandfather). After being treated at a hospital on the Greek island of Lemnos for two weeks he was returned to his unit on the peninsula, where two days later he was discovered by an officer to have fallen asleep while on sentry duty. This led to his being charged and brought before a court-martial.

The exhibit stated that, according to the Manual of Military Law, “a sentinel found asleep or drunk at his post while on active service would, if the character and circumstances of the offence were sufficiently grave, be liable to suffer death.” It seemed that this would be Jack’s fate – he was convicted and sentenced to death. However, apparently after a senior officer gave further consideration to Jack’s character and the fact of his illness, this sentence was remitted and replaced with one of 10 years’ hard labor; with a temporary release ordered so that he could take part in a major offensive at Gallipoli in August 1915. Jack was killed during that offensive, in the Battle of Chunuk Bair.

A more detailed description of the court-martial and surrounding circumstances at Gallipoli is provided in a 1991 book by Christopher Pugsley, titled On the Fringes of Hell: New Zealanders and Military Discipline in the First World War (pp. 39-44).

Jack Dunn’s war medals are now housed in a museum in Masterton. Along with the records of almost all New Zealanders who fought in World War I, his full military personnel file has been digitized and can be accessed using a website created by Archives New Zealand.

The Manual of Military Law and the Offense of Falling Asleep at One’s Post

Apart from the tragic story, and my small personal connection to aspects of it, the reference to the Manual of Military Law and the harsh sentencing of Jack interested me. I thought there would probably be a number of items in our collection at the Law Library of Congress related to the Manual. Sure enough, we hold multiple copies of the Manual itself, which was produced by the British War Office in London and published in various years. We even hold the 1914 version (as well as a 1916 reprint of it), which apparently applied to the Australian and New Zealand soldiers fighting for the British Empire at Gallipoli in 1915, including Jack Dunn. In fact, we also have copies of British military law manuals that were published in 1863, 1884, 1887, 1894, 1899, 1907, 1929, and 1951.

A 1917 reprint of the 1914 Manual has been digitized and is available from the HathiTrust (the 1907 edition is also available online via the Internet Archive). The above wording describing the offense for which Jack Dunn was sentenced can be found on page 23, as part of a larger section on drunkenness. It is actually written in the context of demonstrating the distinction in sentencing for such offenses committed while on active duty (possible death sentence for being drunk or falling asleep) as opposed to those committed when not on duty (imprisonment “at the utmost”).

The preface to the 1914 edition of the Manual describes the legal background to the publication, including the various revisions over time that resulted from amendments to relevant legislation. Chapter II of the Manual goes into some detail about the history of military law, while chapter III (of which page 23 is part) lays out information and guidance regarding the military offenses and punishments contained in the Army Act, 1881. It states that such offenses had previously been included in the Mutiny Acts and Articles of War; there has of course been many years of interpretation and practical application of military disciplinary offenses. The (very long and detailed) Army Act itself, with amendments through 1913, is contained in the Manual as an appendix, along with the (similarly very lengthy) Rules of Procedure, 1907. The Manual also includes extracts from several other regulations and statutes that were relevant to managing military forces, including the Railway Regulation Act, 1844, the National Defence Act, 1888, the Reserve Forces Act, 1882 (and subsequent amendments), and various miscellaneous provisions. There are clearly a lot of rules that apply to military personnel!

I located, in the Army Act, the actual provision under which Jack Dunn would have been charged, court-martialed, and sentenced. Section 6 lists a number of offenses, with section 6(1)(k) stating that

(1) Every person subject to military law who commits any of the following offences, that is to say
. . .
(k) Being a soldier acting as a sentinel, commits any of the following offences; that is to say,
(i) sleeps or is drunk in his post; or
(ii) leaves his post before he is regularly relieved
shall, on conviction by court-martial,
if he commits any such offence while on active service, be liable to suffer death, or such less punishment as is in this Act mentioned; and
if he commits any such offence while not on active service, be liable, if an officer, to be cashiered, or to suffer such less punishment as is in this Act mentioned, and if a soldier, to suffer imprisonment, or such less punishment as is in this Act mentioned.

There are many references to a person’s “character” throughout the Manual as well, so it seems curious that (in addition to his sickness) Jack’s character didn’t mitigate the sentence when it was first given. According to one of his comrades, he was held in high regard. Indeed, according to Pugsley (p. 41), the sentence was in “marked contrast” to that of the first New Zealand soldier to be charged with falling asleep at his post in Gallipoli: Trooper Marshall pled guilty to the charge, which had been laid in late May 1915, and was sentenced to 14 days’ “Field Punishment No. 2” (basically the equivalent of imprisonment, carried out in the unit). In addition, page 24 of the Manual states that “[t]he punishments named in the Act are maximum punishments, and a maximum punishment is only intended to be imposed when the offence committed is the worst of its class, and is committed by an habitual offender, or is committed in circumstances which require an example to be made.” It seems it was the latter part of this statement that was given the greatest weight in the case of Jack Dunn. However, Pugsley states that the threat arising from the death sentence, and that handed down two days later to an Australian soldier in similar circumstances, “served little purpose and exhausted men continued to fall asleep, unless regularly relieved, fed and rested” (p. 45).

Jack was the first New Zealand soldier sentenced to death during the war, and the only one at Gallipoli. In fact, he was the only New Zealander to be sentenced to death for sleeping at his post during the war (Pugsley, p. 45). However, the distinction of being the first New Zealander executed in World War I fell to another man, Frank Hughes, who was executed in France a year later, in August 1916. In total, 28 members of the New Zealand Expeditionary Forces were sentenced to death for offenses committed during World War I, although just five of those faced the firing squad (one for mutiny and four for desertion). Many years later, all five of these men received posthumous pardons under the Pardon for Soldiers of the Great War Act 2000.

I located online an interesting comparison of the rules and practices of New Zealand and other countries during World War I with respect to military justice, including the death penalty. According to another source, two British soldiers were executed for sleeping on duty during the war (see also Pugsley, p. 45), out of 346 executions that were actually carried out.

Application of the Manual to New Zealand Forces

Another question that I looked into was the legal mechanisms through which the Manual and Army Act applied to New Zealand soldiers during World War I. I used the New Zealand Legal Information Institute (NZLII) website to try to find the old relevant laws. (NZLII has digitized all New Zealand laws, as enacted, dating from 1841 to 2007; current laws can be found on the government’s New Zealand Legislation website.)

I should note that New Zealand was proclaimed a “dominion” within the British Empire in September 1907, having previously had the status of “colony” since 1840. This was really just a symbolic change and in practice “New Zealand was no more and no less independent from Britain than it had been before.”

In the NZLII database I located the Defence Act 1909, which defines references to the “Army Act” as being to the “Imperial Act called the Army Act, and includes any Act continuing or amending the same, and the Rules of Procedure for the time being in force made under the authority thereof respectively.” The application of the Army Act to New Zealand soldiers is specified in different provisions, including section 26(1) (regarding the ability for members of any Territorial Forces to “subject themselves to the liability to serve in any place outside New Zealand”) and section 72(4) (stating that the provisions of the Army Act relating to courts-martial shall apply to all courts-martial convened under the authority of the Governor).

The Defence Act 1909 was subsequently amended by the Defence Amendment Act 1910, which included changes to the court-martial provisions. This introduced a new provision that “[t]he rules of evidence and the rules of procedure contained in the Manual of Military Law published by the British War Office shall, mutatis mutandis, apply to all proceedings of Courts-martial.” The Defence Amendment Act 1912 also made further amendments to the 1909 Act. The 1909 Act and these amendments appear to have applied in the context of Jack Dunn’s offense.

Later, the New Zealand Parliament passed the Expeditionary Forces Act 1915 and the Military Service Act 1916, which made provision for the raising of Expeditionary Forces for service abroad during the “Present War.” This Act also made several references to the applicability of the Army Act. In addition to these laws, a multitude of special regulations were put in place in New Zealand during the war under the War Regulations Act 1914; an annotated index of such laws and regulations was published in 2014, and the full set of the original documents is available online.

Current New Zealand Law

New Zealand’s current laws regarding military discipline and courts-martial include the Armed Forces Discipline Act 1971, the Court Martial Act 2007, and the Court Martial Appeals Act 1953. Volume 1 of the New Zealand Defence Force’s Manual of Armed Services Law, the “Commander’s Handbook on Military Law,” is also available online. Section 34(2) of the Armed Forces Discipline Act 1971 states that

Every person subject to this Act commits an offence who, while on guard duty or watch—
(a) sleeps at his post or on watch; or
(b) not being on duty at a post, sleeps at a time when it is his duty to be awake; or
(c) is drunk; or
(d) without lawful excuse, leaves his post or otherwise absents himself from a place where it is his duty to be.

Section 34(4) sets out the punishment for such an offense, stating that “[e]very person who commits an offence against subsection (2) while on active service is liable to imprisonment for life or, if the offence is committed at any other time, to imprisonment for a term not exceeding 2 years.”

One of the laws repealed by the 1971 Act was the New Zealand Army Act 1950, which in turn had repealed the Defence Act 1909. Section 26 of the 1950 Act contained the similar offense of sleeping or being drunk while on active sentry duty, with essentially the same punishments as in the current law above. Prior to this, the Army Act had been amended in the U.K. by the Army and Air Force (Annual) Act, 1928 (A. and A.F. (A) Act, 1928) to abolish the death penalty for some offenses, including sleeping or being drunk at one’s post, with the change reflected in the 1929 edition of the Manual of Military Law. As shown in the picture, right, section 6(1)(k) was shifted to section 6(2)(e), with the punishment being penal servitude if the offense was committed while on active service.