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Chapter 35

FLOGGING NOT LAWFUL.


It is next to idle, at the present day, merely to denounce an
iniquity. Be ours, then, a different task.

If there are any three things opposed to the genius of the
American Constitution, they are these: irresponsibility in a
judge, unlimited discretionary authority in an executive, and the
union of an irresponsible judge and an unlimited executive in one
person.

Yet by virtue of an enactment of Congress, all the Commodores in
the American navy are obnoxious to these three charges, so far as
concerns the punishment of the sailor for alleged misdemeanors
not particularly set forth in the Articles of War.

Here is the enactment in question.

XXXII. _Of the Articles of War_.--"All crimes committed by
persons belonging to the Navy, which are not specified in the
foregoing articles, shall be punished according to the laws and
customs in such cases at sea."

This is the article that, above all others, puts the scourge into
the hands of the Captain, calls him to no account for its
exercise, and furnishes him with an ample warrant for inflictions
of cruelty upon the common sailor, hardly credible to landsmen.

By this article the Captain is made a legislator, as well as a
judge and an executive. So far as it goes, it absolutely leaves
to his discretion to decide what things shall be considered
crimes, and what shall be the penalty; whether an accused person
has been guilty of actions by him declared to be crimes; and how,
when, and where the penalty shall be inflicted.

In the American Navy there is an everlasting suspension of the
Habeas Corpus. Upon the bare allegation of misconduct there is no
law to restrain the Captain from imprisoning a seaman, and
keeping him confined at his pleasure. While I was in the
Neversink, the Captain of an American sloop of war, from
undoubted motives of personal pique, kept a seaman confined in
the brig for upward of a month.

Certainly the necessities of navies warrant a code for their
government more stringent than the law that governs the land; but
that code should conform to the spirit of the political
institutions of the country that ordains it. It should not
convert into slaves some of the citizens of a nation of free-men.
Such objections cannot be urged against the laws of the Russian
navy (not essentially different from our own), because the laws
of that navy, creating the absolute one-man power in the Captain,
and vesting in him the authority to scourge, conform in spirit to
the territorial laws of Russia, which is ruled by an autocrat,
and whose courts inflict the _knout_ upon the subjects of the
land. But with us it is different. Our institutions claim to be
based upon broad principles of political liberty and equality.
Whereas, it would hardly affect one iota the condition on
shipboard of an American man-of-war's-man, were he transferred to
the Russian navy and made a subject of the Czar.

As a sailor, he shares none of our civil immunities; the law of
our soil in no respect accompanies the national floating timbers
grown thereon, and to which he clings as his home. For him our
Revolution was in vain; to him our Declaration of Independence is
a lie.

It is not sufficiently borne in mind, perhaps, that though the
naval code comes under the head of the martial law, yet, in time
of peace, and in the thousand questions arising between man and
man on board ship, this code, to a certain extent, may not
improperly be deemed municipal. With its crew of 800 or 1,000
men, a three-decker is a city on the sea. But in most of these
matters between man and man, the Captain instead of being a
magistrate, dispensing what the law promulgates, is an absolute
ruler, making and unmaking law as he pleases.

It will be seen that the XXth of the Articles of War provides,
that if any person in the Navy negligently perform the duties
assigned him, he shall suffer such punishment as a court-martial
shall adjudge; but if the offender be a private (common sailor)
he may, at the discretion of the Captain, be put in irons or
flogged. It is needless to say, that in cases where an officer
commits a trivial violation of this law, a court-martial is
seldom or never called to sit upon his trial; but in the sailor's
case, he is at once condemned to the lash. Thus, one set of sea-
citizens is exempted from a law that is hung in terror over
others. What would landsmen think, were the State of New York to
pass a law against some offence, affixing a fine as a penalty,
and then add to that law a section restricting its penal
operation to mechanics and day laborers, exempting all gentlemen
with an income of one thousand dollars? Yet thus, in the spirit
of its practical operation, even thus, stands a good part of the
naval laws wherein naval flogging is involved.

But a law should be "universal," and include in its possible
penal operations the very judge himself who gives decisions upon
it; nay, the very judge who expounds it. Had Sir William
Blackstone violated the laws of England, he would have been
brought before the bar over which he had presided, and would
there have been tried, with the counsel for the crown reading to
him, perhaps, from a copy of his own _Commentaries_. And should
he have been found guilty, he would have suffered like the
meanest subject, "according to law."

How is it in an American frigate? Let one example suffice. By the
Articles of War, and especially by Article I., an American
Captain may, and frequently does, inflict a severe and degrading
punishment upon a sailor, while he himself is for ever removed
from the possibility of undergoing the like disgrace; and, in all
probability, from undergoing any punishment whatever, even if
guilty of the same thing--contention with his equals, for
instance--for which he punishes another. Yet both sailor and
captain are American citizens.

Now, in the language of Blackstone, again, there is a law,
"coeval with mankind, dictated by God himself, superior in
obligation to any other, and no human laws are of any validity if
contrary to this." That law is the Law of Nature; among the three
great principles of which Justinian includes "that to every man
should be rendered his due." But we have seen that the laws
involving flogging in the Navy do _not_ render to every man his
due, since in some cases they indirectly exclude the officers
from any punishment whatever, and in all cases protect them from
the scourge, which is inflicted upon the sailor. Therefore,
according to Blackstone and Justinian, those laws have no binding
force; and every American man-of-war's-man would be morally
justified in resisting the scourge to the uttermost; and, in so
resisting, would be religiously justified in what would be
judicially styled "the act of mutiny" itself.

If, then, these scourging laws be for any reason necessary, make
them binding upon all who of right come under their sway; and let
us see an honest Commodore, duly authorised by Congress,
condemning to the lash a transgressing Captain by the side of a
transgressing sailor. And if the Commodore himself prove a
transgressor, let us see one of his brother Commodores take up
the lash against _him_, even as the boatswain's mates, the navy
executioners, are often called upon to scourge each other.

Or will you say that a navy officer is a man, but that an
American-born citizen, whose grandsire may have ennobled him by
pouring out his blood at Bunker Hill--will you say that, by
entering the service of his country as a common seaman, and
standing ready to fight her foes, he thereby loses his manhood at
the very time he most asserts it? Will you say that, by so doing,
he degrades himself to the liability of the scourge, but if he
tarries ashore in time of danger, he is safe from that indignity?
All our linked states, all four continents of mankind, unite in
denouncing such a thought.

We plant the question, then, on the topmost argument of all.
Irrespective of incidental considerations, we assert that
flogging in the navy is opposed to the essential dignity, of man,
which no legislator has a right to violate; that it is oppressive,
and glaringly unequal in its operations; that it is utterly
repugnant to the spirit of our democratic institutions; indeed,
that it involves a lingering trait of the worst times of a barbarous
feudal aristocracy; in a word, we denounce it as religiously, morally,
and immutably _wrong_.

No matter, then, what may be the consequences of its abolition; no
matter if we have to dismantle our fleets, and our unprotected
commerce should fall a prey to the spoiler, the awful admonitions of
justice and humanity demand that abolition without procrastination;
in a voice that is not to be mistaken, demand that abolition today.
It is not a dollar-and-cent question of expediency; it is a matter
of _right and wrong_. And if any man can lay his hand on his heart,
and solemnly say that this scourging is right, let that man but once
feel the lash on his own back, and in his agony you will hear the
apostate call the seventh heavens to witness that it is _wrong_.
And, in the name of immortal manhood, would to God that every man
who upholds this thing were scourged at the gangway till he recanted.

Herman Melville