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.