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Chapter 72

"HEREIN ARE THE GOOD ORDINANCES OF THE SEA, WHICH WISE MEN, WHO
VOYAGED ROUND THE WORLD, GAVE TO OUR ANCESTORS, AND WHICH CONSTITUTE
THE BOOKS OF THE SCIENCE OF GOOD CUSTOMS."
--The Consulate of the Sea.

The present usages of the American Navy are such that, though there
is no government enactment to that effect, yet, in many respect, its
Commanders seem virtually invested with the power to observe or
violate, as seems to them fit, several of the Articles of War.

According to Article XV., "_No person in the Navy shall quarrel
with any other person in the Navy, nor use provoking or
reproachful words, gestures, or menaces, on pain of such
punishment as a court-martial shall adjudge_."

"_Provoking or reproachful words!_" Officers of the Navy, answer
me! Have you not, many of you, a thousand times violated this
law, and addressed to men, whose tongues were tied by this very
Article, language which no landsman would ever hearken to without
flying at the throat of his insulter? I know that worse words
than _you_ ever used are to be heard addressed by a merchant-
captain to his crew; but the merchant-captain does not live under
this XVth Article of War.

Not to make an example of him, nor to gratify any personal
feeling, but to furnish one certain illustration of what is here
asserted, I honestly declare that Captain Claret, of the
Neversink, repeatedly violated this law in his own proper person.

According to Article III., no officer, or other person in the
Navy, shall be guilty of "oppression, fraud, profane swearing,
drunkenness, or any other scandalous conduct."

Again let me ask you, officers of the Navy, whether many of you
have not repeatedly, and in more than one particular, violated
this law? And here, again, as a certain illustration, I must once
more cite Captain Claret as an offender, especially in the matter
of profane swearing. I must also cite four of the lieutenants,
some eight of the midshipmen, and nearly all the seamen.

Additional Articles might be quoted that are habitually violated
by the officers, while nearly all those _exclusively_ referring
to the sailors are unscrupulously enforced. Yet those Articles,
by which the sailor is scourged at the gangway, are not one whit
more laws than those _other_ Articles, binding upon the officers,
that have become obsolete from immemorial disuse; while still
other Articles, to which the sailors alone are obnoxious, are
observed or violated at the caprice of the Captain. Now, if it be
not so much the severity as the certainty of punishment that
deters from transgression, how fatal to all proper reverence for
the enactments of Congress must be this disregard of its statutes.

Still more. This violation of the law, on the part of the
officers, in many cases involves oppression to the sailor. But
throughout the whole naval code, which so hems in the mariner by
law upon law, and which invests the Captain with so much judicial
and administrative authority over him--in most cases entirely
discretionary--not one solitary clause is to be found which in
any way provides means for a seaman deeming himself aggrieved to
obtain redress. Indeed, both the written and unwritten laws of
the American Navy are as destitute of individual guarantees to
the mass of seamen as the Statute Book of the despotic Empire
of Russia.

Who put this great gulf between the American Captain and the
American sailor? Or is the Captain a creature of like passions
with ourselves? Or is he an infallible archangel, incapable of
the shadow of error? Or has a sailor no mark of humanity, no
attribute of manhood, that, bound hand and foot, he is cast into
an American frigate shorn of all rights and defences, while the
notorious lawlessness of the Commander has passed into a proverb,
familiar to man-of-war's-men, _the law was not made for the
Captain!_ Indeed, he may almost be said to put off the citizen
when he touches his quarter-deck; and, almost exempt from the law
of the land himself, he comes down upon others with a judicial
severity unknown on the national soil. With the Articles of War
in one hand, and the cat-o'-nine-tails in the other, he stands an
undignified parody upon Mohammed enforcing Moslemism with the
sword and the Koran.

The concluding sections of the Articles of War treat of the naval
courts-martial before which officers are tried for serious
offences as well as the seamen. The oath administered to members
of these courts--which sometimes sit upon matters of life and
death--explicitly enjoins that the members shall not "at any time
divulge the vote or opinion of any particular member of the
court, unless required so to do before a court of justice in due
course of law."

Here, then, is a Council of Ten and a Star Chamber indeed!
Remember, also, that though the sailor is sometimes tried for his
life before a tribunal like this, in no case do his fellow-
sailors, his peers, form part of the court. Yet that a man should
be tried by his peers is the fundamental principle of all
civilised jurisprudence. And not only tried by his peers, but his
peers must be unanimous to render a verdict; whereas, in a court-
martial, the concurrence of a majority of conventional and social
superiors is all that is requisite.

In the English Navy, it is said, they had a law which authorised
the sailor to appeal, if he chose, from the decision of the
Captain--even in a comparatively trivial case--to the higher
tribunal of a court-martial. It was an English seaman who related
this to me. When I said that such a law must be a fatal clog to
the exercise of the penal power in the Captain, he, in substance,
told me the following story.

A top-man guilty of drunkenness being sent to the gratings, and
the scourge about to be inflicted, he turned round and demanded a
court-martial. The Captain smiled, and ordered him to be taken
down and put into the "brig," There he was kept in irons some
weeks, when, despairing of being liberated, he offered to
compromise at two dozen lashes. "Sick of your bargain, then, are
you?" said the Captain. "No, no! a court-martial you demanded,
and a court-martial you shall have!" Being at last tried before
the bar of quarter-deck officers, he was condemned to two hundred
lashes. What for? for his having been drunk? No! for his having
had the insolence to appeal from an authority, in maintaining
which the men who tried and condemned him had so strong a
sympathetic interest.

Whether this story be wholly true or not, or whether the particular
law involved prevails, or ever did prevail, in the English Navy,
the thing, nevertheless, illustrates the ideas that man-of-war's-men
themselves have touching the tribunals in question.

What can be expected from a court whose deeds are done in the
darkness of the recluse courts of the Spanish Inquisition? when
that darkness is solemnised by an oath on the Bible? when an
oligarchy of epaulets sits upon the bench, and a plebeian top-
man, without a jury, stands judicially naked at the bar?

In view of these things, and especially in view of the fact that,
in several cases, the degree of punishment inflicted upon a man-
of-war's-man is absolutely left to the discretion of the court,
what shame should American legislators take to themselves, that
with perfect truth we may apply to the entire body of the
American man-of-war's-men that infallible principle of Sir Edward
Coke: "It is one of the genuine marks of servitude to have the
law either concealed or precarious." But still better may we
subscribe to the saying of Sir Matthew Hale in his History of the
Common Law, that "the Martial Law, being based upon no settled
principles, is, in truth and reality, no law, but something
indulged rather than allowed as a law."

I know it may be said that the whole nature of this naval code is
purposely adapted to the war exigencies of the Navy. But waiving
the grave question that might be raised concerning the moral, not
judicial, lawfulness of this arbitrary code, even in time of war;
be it asked, why it is in force during a time of peace? The
United States has now existed as a nation upward of seventy
years, and in all that time the alleged necessity for the
operation of the naval code--in cases deemed capital--has only
existed during a period of two or three years at most.

Some may urge that the severest operations of the code are
tacitly made null in time of peace. But though with respect to
several of the Articles this holds true, yet at any time any and
all of them may be legally enforced. Nor have there been wanting
recent instances, illustrating the spirit of this code, even in
cases where the letter of the code was not altogether observed.
The well-known case of a United States brig furnishes a memorable
example, which at any moment may be repeated. Three men, in a
time of peace, were then hung at the yard-arm, merely because, in
the Captain's judgment, it became necessary to hang them. To this
day the question of their complete guilt is socially discussed.

How shall we characterise such a deed? Says Black-stone, "If any
one that hath commission of martial authority doth, in time of
peace, hang, or otherwise execute any man by colour of martial
law, this is murder; for it is against Magna Charta."*
[* Commentaries, b. i., c. xiii.]

Magna Charta! We moderns, who may be landsmen, may justly boast
of civil immunities not possessed by our forefathers; but our
remoter forefathers who happened to be mariners may straighten
themselves even in their ashes to think that their lawgivers were
wiser and more humane in their generation than our lawgivers in
ours. Compare the sea-laws of our Navy with the Roman and Rhodian
ocean ordinances; compare them with the "Consulate of the Sea;"
compare them with the Laws of the Hanse Towns; compare them with
the ancient Wisbury laws. In the last we find that they were
ocean democrats in those days. "If he strikes, he ought to
receive blow for blow." Thus speak out the Wisbury laws
concerning a Gothland sea-captain.

In final reference to all that has been said in previous chapters
touching the severity and unusualness of the laws of the American
Navy, and the large authority vested in its commanding officers,
be it here observed, that White-Jacket is not unaware of the
fact, that the responsibility of an officer commanding at sea--
whether in the merchant service or the national marine--is
unparalleled by that of any other relation in which man may stand
to man. Nor is he unmindful that both wisdom and humanity dictate
that, from the peculiarity of his position, a sea-officer in
command should be clothed with a degree of authority and
discretion inadmissible in any master ashore. But, at the same
time, these principles--recognised by all writers on maritime
law--have undoubtedly furnished warrant for clothing modern sea-
commanders and naval courts-martial with powers which exceed the
due limits of reason and necessity. Nor is this the only instance
where right and salutary principles, in themselves almost self-
evident and infallible, have been advanced in justification of
things, which in themselves are just as self-evidently wrong and
pernicious.

Be it here, once and for all, understood, that no sentimental and
theoretic love for the common sailor; no romantic belief in that
peculiar noble-heartedness and exaggerated generosity of
disposition fictitiously imputed to him in novels; and no
prevailing desire to gain the reputation of being his friend,
have actuated me in anything I have said, in any part of this
work, touching the gross oppression under which I know that the
sailors suffers. Indifferent as to who may be the parties
concerned, I but desire to see wrong things righted, and equal
justice administered to all.

Nor, as has been elsewhere hinted, is the general ignorance or
depravity of any race of men to be alleged as an apology for
tyranny over them. On the contrary, it cannot admit of a
reasonable doubt, in any unbiased mind conversant with the
interior life of a man-of-war, that most of the sailor iniquities
practised therein are indirectly to be ascribed to the morally
debasing effects of the unjust, despotic, and degrading laws
under which the man-of-war's-man lives.

Herman Melville