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Chapter 71

THE GENEALOGY OF THE ARTICLES OF WAR.


As the Articles of War form the ark and constitution of the penal
laws of the American Navy, in all sobriety and earnestness it may
be well to glance at their origin. Whence came they? And how is
it that one arm of the national defences of a Republic comes to
be ruled by a Turkish code, whose every section almost, like each
of the tubes of a revolving pistol, fires nothing short of death
into the heart of an offender? How comes it that, by virtue of a
law solemnly ratified by a Congress of freemen, the representatives
of freemen, thousands of Americans are subjected to the most despotic
usages, and, from the dockyards of a republic, absolute monarchies
are launched, with the "glorious stars and stripes" for an ensign?
By what unparalleled anomaly, by what monstrous grafting of tyranny
upon freedom did these Articles of War ever come to be so much as
heard of in the American Navy?

Whence came they? They cannot be the indigenous growth of those
political institutions, which are based upon that arch-democrat
Thomas Jefferson's Declaration of Independence? No; they are an
importation from abroad, even from Britain, whose laws we
Americans hurled off as tyrannical, and yet retained the most
tyrannical of all.

But we stop not here; for these Articles of War had their
congenial origin in a period of the history of Britain when the
Puritan Republic had yielded to a monarchy restored; when a
hangman Judge Jeffreys sentenced a world's champion like Algernon
Sidney to the block; when one of a race by some deemed accursed
of God--even a Stuart, was on the throne; and a Stuart, also, was
at the head of the Navy, as Lord High Admiral. One, the son of a
King beheaded for encroachments upon the rights of his people,
and the other, his own brother, afterward a king, James II., who
was hurled from the throne for his tyranny. This is the origin of
the Articles of War; and it carries with it an unmistakable clew
to their despotism.[4]

----
[FOOTNOTE-4] The first Naval Articles of War in the English language were
passed in the thirteenth year of the reign of Charles the Second,
under the title of "_An act for establishing Articles and Orders
for the regulating and better Government of his Majesty's Navies,
Ships-of-War, and Forces by Sea_." This act was repealed, and, so
far as concerned the officers, a modification of it substituted,
in the twenty-second year of the reign of George the Second,
shortly after the Peace of Aix la Chapelle, just one century ago.
This last act, it is believed, comprises, in substance, the
Articles of War at this day in force in the British Navy. It is
not a little curious, nor without meaning, that neither of these
acts explicitly empowers an officer to inflict the lash. It would
almost seem as if, in this case, the British lawgivers were
willing to leave such a stigma out of an organic statute, and
bestow the power of the lash in some less solemn, and perhaps
less public manner. Indeed, the only broad enactments directly
sanctioning naval scourging at sea are to be found in the United
States Statute Book and in the "Sea Laws" of the absolute
monarch, Louis le Grand, of France.[4.1]

Taking for their basis the above-mentioned British Naval Code,
and ingrafting upon it the positive scourging laws, which Britain
was loth to recognise as organic statutes, our American
lawgivers, in the year 1800, framed the Articles of War now
governing the American Navy. They may be found in the second
volume of the "United States Statutes at Large," under chapter
xxxiii.--"An act for the _better_ government of the Navy of the
United States."

[4.1] For reference to the latter (L'Ord. de la Marine), _vide_
Curtis's "Treatise on the Rights and Duties of Merchant-Seamen,
according to the General Maritime Law," Part ii., c. i.
----

Nor is it a dumb thing that the men who, in democratic Cromwell's
time, first proved to the nations the toughness of the British
oak and the hardihood of the British sailor--that in Cromwell's
time, whose fleets struck terror into the cruisers of France,
Spain, Portugal, and Holland, and the corsairs of Algiers and the
Levant; in Cromwell's time, when Robert Blake swept the Narrow
Seas of all the keels of a Dutch Admiral who insultingly carried
a broom at his fore-mast; it is not a dumb thing that, at a
period deemed so glorious to the British Navy, these Articles of
War were unknown.

Nevertheless, it is granted that some laws or other must have
governed Blake's sailors at that period; but they must have been
far less severe than those laid down in the written code which
superseded them, since, according to the father-in-law of James
II., the Historian of the Rebellion, the English Navy, prior to
the enforcement of the new code, was full of officers and sailors
who, of all men, were the most republican. Moreover, the same
author informs us that the first work undertaken by his respected
son-in-law, then Duke of York, upon entering on the duties of
Lord High Admiral, was to have a grand re-christening of the men-
of-war, which still carried on their sterns names too democratic
to suit his high-tory ears.

But if these Articles of War were unknown in Blake's time, and
also during the most brilliant period of Admiral Benbow's career,
what inference must follow? That such tyrannical ordinances are
not indispensable--even during war--to the highest possible
efficiency of a military marine.


Herman Melville