CHAPTER LXXII.
"HEREIN ARE THE GOOD ORDINANCES OF THE SEA, WHICH WISE MEN, WHO VOYAGEDROUND THE WORLD, GAVE TO OUR ANCESTORS, AND WHICH CONSTITUTE THE BOOKSOF THE SCIENCE OF GOOD CUSTOMS."
--_The Consulate of the Sea_.
The present usages of the American Navy are such that, though there isno government enactment to that effect, yet, in many respect, itsCommanders seem virtually invested with the power to observe orviolate, as seems to them fit, several of the Articles of War.
According to Article XV., "_No person in the Navy shall quarrel withany other person in the Navy, nor use provoking or reproachful words,gestures, or menaces, on pain of such punishment as a court-martialshall adjudge_."
"_Provoking or reproachful words!_" Officers of the Navy, answer me!Have you not, many of you, a thousand times violated this law, andaddressed to men, whose tongues were tied by this very Article,language which no landsman would ever hearken to without flying at thethroat of his insulter? I know that worse words than _you_ ever usedare to be heard addressed by a merchant-captain to his crew; but themerchant-captain does not live under this XVth Article of War.
Not to make an example of him, nor to gratify any personal feeling, butto furnish one certain illustration of what is here asserted, Ihonestly declare that Captain Claret, of the Neversink, repeatedlyviolated 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 havenot repeatedly, and in more than one particular, violated this law? Andhere, again, as a certain illustration, I must once more cite CaptainClaret as an offender, especially in the matter of profane swearing. Imust 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 theofficers, while nearly all those _exclusively_ referring to the sailorsare unscrupulously enforced. Yet those Articles, by which the sailor isscourged at the gangway, are not one whit more laws than those _other_Articles, binding upon the officers, that have become obsolete fromimmemorial disuse; while still other Articles, to which the sailorsalone are obnoxious, are observed or violated at the caprice of theCaptain. Now, if it be not so much the severity as the certainty ofpunishment that deters from transgression, how fatal to all properreverence for the enactments of Congress must be this disregard of itsstatutes.
Still more. This violation of the law, on the part of the officers, inmany cases involves oppression to the sailor. But throughout the wholenaval code, which so hems in the mariner by law upon law, and whichinvests the Captain with so much judicial and administrative authorityover him--in most cases entirely discretionary--not one solitary clauseis to be found which in any way provides means for a seaman deeminghimself aggrieved to obtain redress. Indeed, both the written andunwritten laws of the American Navy are as destitute of individualguarantees to the mass of seamen as the Statute Book of the despoticEmpire of Russia.
Who put this great gulf between the American Captain and the Americansailor? Or is the Captain a creature of like passions with ourselves?Or is he an infallible archangel, incapable of the shadow of error? Orhas a sailor no mark of humanity, no attribute of manhood, that, boundhand and foot, he is cast into an American frigate shorn of all rightsand defences, while the notorious lawlessness of the Commander haspassed into a proverb, familiar to man-of-war's-men, _the law was notmade for the Captain!_ Indeed, he may almost be said to put off thecitizen when he touches his quarter-deck; and, almost exempt from thelaw of the land himself, he comes down upon others with a judicialseverity unknown on the national soil. With the Articles of War in onehand, and the cat-o'-nine-tails in the other, he stands an undignifiedparody upon Mohammed enforcing Moslemism with the sword and the Koran.
The concluding sections of the Articles of War treat of the navalcourts-martial before which officers are tried for serious offences aswell as the seamen. The oath administered to members of thesecourts--which sometimes sit upon matters of life and death--explicitlyenjoins that the members shall not "at any time divulge the vote oropinion of any particular member of the court, unless required so to dobefore 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 atribunal like this, in no case do his fellow-sailors, his peers, formpart of the court. Yet that a man should be tried by his peers is thefundamental principle of all civilised jurisprudence. And not onlytried by his peers, but his peers must be unanimous to render averdict; whereas, in a court-martial, the concurrence of a majority ofconventional and social superiors is all that is requisite.
In the English Navy, it is said, they had a law which authorised thesailor to appeal, if he chose, from the decision of the Captain--evenin a comparatively trivial case--to the higher tribunal of acourt-martial. It was an English seaman who related this to me. When Isaid that such a law must be a fatal clog to the exercise of the penalpower in the Captain, he, in substance, told me the following story.
A top-man guilty of drunkenness being sent to the gratings, and thescourge about to be inflicted, he turned round and demanded acourt-martial. The Captain smiled, and ordered him to be taken down andput into the "brig," There he was kept in irons some weeks, when,despairing of being liberated, he offered to compromise at two dozenlashes. "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 wascondemned to two hundred lashes. What for? for his having been drunk?No! for his having had the insolence to appeal from an authority, inmaintaining which the men who tried and condemned him had so strong asympathetic interest.
Whether this story be wholly true or not, or whether the particular lawinvolved prevails, or ever did prevail, in the English Navy, the thing,nevertheless, illustrates the ideas that man-of-war's-men themselveshave touching the tribunals in question.
What can be expected from a court whose deeds are done in the darknessof the recluse courts of the Spanish Inquisition? when that darkness issolemnised by an oath on the Bible? when an oligarchy of epaulets sitsupon the bench, and a plebeian top-man, without a jury, standsjudicially naked at the bar?
In view of these things, and especially in view of the fact that, inseveral cases, the degree of punishment inflicted upon aman-of-war's-man is absolutely left to the discretion of the court,what shame should American legislators take to themselves, that withperfect truth we may apply to the entire body of the Americanman-of-war's-men that infallible principle of Sir Edward Coke: "It isone of the genuine marks of servitude to have the law either concealedor precarious." But still better may we subscribe to the saying of SirMatthew Hale in his History of the Common Law, that "the Martial Law,being based upon no settled principles, is, in truth and reality, nolaw, but something indulged rather than allowed as a law."
I know it may be said that the whole nature of this naval code ispurposely adapted to the war exigencies of the Navy. But waiving thegrave 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 nowexisted as a nation upward of seventy years, and in all that time thealleged necessity for the operation of the naval code--in cases deemedcapital--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 madenull in time of peace. But though with respect to several of theArticles this holds true, yet at any time any and all of them may belegally enforced. Nor have there been wanting recent instances,illustrating the spirit of this code, even in cases where the letter ofthe code was not altogether observed. The well-known case of a UnitedStates brig furnishe
s a memorable example, which at any moment may berepeated. Three men, in a time of peace, were then hung at theyard-arm, merely because, in the Captain's judgment, it becamenecessary to hang them. To this day the question of their completeguilt is socially discussed.
How shall we characterise such a deed? Says Black-stone, "If any onethat 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 ofcivil immunities not possessed by our forefathers; but our remoterforefathers who happened to be mariners may straighten themselves evenin their ashes to think that their lawgivers were wiser and more humanein their generation than our lawgivers in ours. Compare the sea-laws ofour Navy with the Roman and Rhodian ocean ordinances; compare them withthe "Consulate of the Sea;" compare them with the Laws of the HanseTowns; compare them with the ancient Wisbury laws. In the last we findthat they were ocean democrats in those days. "If he strikes, he oughtto receive blow for blow." Thus speak out the Wisbury laws concerning aGothland sea-captain.
In final reference to all that has been said in previous chapterstouching the severity and unusualness of the laws of the American Navy,and the large authority vested in its commanding officers, be it hereobserved, that White-Jacket is not unaware of the fact, that theresponsibility of an officer commanding at sea--whether in the merchantservice or the national marine--is unparalleled by that of any otherrelation in which man may stand to man. Nor is he unmindful that bothwisdom and humanity dictate that, from the peculiarity of his position,a sea-officer in command should be clothed with a degree of authorityand discretion inadmissible in any master ashore. But, at the sametime, these principles--recognised by all writers on maritime law--haveundoubtedly furnished warrant for clothing modern sea-commanders andnaval courts-martial with powers which exceed the due limits of reasonand necessity. Nor is this the only instance where right and salutaryprinciples, in themselves almost self-evident and infallible, have beenadvanced in justification of things, which in themselves are just asself-evidently wrong and pernicious.
Be it here, once and for all, understood, that no sentimental andtheoretic love for the common sailor; no romantic belief in thatpeculiar noble-heartedness and exaggerated generosity of dispositionfictitiously imputed to him in novels; and no prevailing desire to gainthe reputation of being his friend, have actuated me in anything I havesaid, in any part of this work, touching the gross oppression underwhich I know that the sailors suffers. Indifferent as to who may be theparties concerned, I but desire to see wrong things righted, and equaljustice administered to all.
Nor, as has been elsewhere hinted, is the general ignorance ordepravity of any race of men to be alleged as an apology for tyrannyover them. On the contrary, it cannot admit of a reasonable doubt, inany unbiased mind conversant with the interior life of a man-of-war,that most of the sailor iniquities practised therein are indirectly tobe ascribed to the morally debasing effects of the unjust, despotic,and degrading laws under which the man-of-war's-man lives.