“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 Blackstone, “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.