White Jacket; Or, The World on a Man-of-War

by Herman Melville

  CHAPTER XXXV.

  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 AmericanConstitution, they are these: irresponsibility in a judge, unlimiteddiscretionary authority in an executive, and the union of anirresponsible judge and an unlimited executive in one person.

  Yet by virtue of an enactment of Congress, all the Commodores in theAmerican navy are obnoxious to these three charges, so far as concernsthe punishment of the sailor for alleged misdemeanors not particularlyset forth in the Articles of War.

  Here is the enactment in question.

  XXXII. _Of the Articles of War_.--"All crimes committed by personsbelonging to the Navy, which are not specified in the foregoingarticles, shall be punished according to the laws and customs in suchcases at sea."

  This is the article that, above all others, puts the scourge into thehands of the Captain, calls him to no account for its exercise, andfurnishes him with an ample warrant for inflictions of cruelty upon thecommon sailor, hardly credible to landsmen.

  By this article the Captain is made a legislator, as well as a judgeand an executive. So far as it goes, it absolutely leaves to hisdiscretion to decide what things shall be considered crimes, and whatshall be the penalty; whether an accused person has been guilty ofactions by him declared to be crimes; and how, when, and where thepenalty shall be inflicted.

  In the American Navy there is an everlasting suspension of the HabeasCorpus. Upon the bare allegation of misconduct there is no law torestrain the Captain from imprisoning a seaman, and keeping himconfined at his pleasure. While I was in the Neversink, the Captain ofan 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 governmentmore stringent than the law that governs the land; but that code shouldconform to the spirit of the political institutions of the country thatordains it. It should not convert into slaves some of the citizens of anation of free-men. Such objections cannot be urged against the laws ofthe Russian navy (not essentially different from our own), because thelaws of that navy, creating the absolute one-man power in the Captain,and vesting in him the authority to scourge, conform in spirit to theterritorial laws of Russia, which is ruled by an autocrat, and whosecourts inflict the _knout_ upon the subjects of the land. But with usit is different. Our institutions claim to be based upon broadprinciples of political liberty and equality. Whereas, it would hardlyaffect one iota the condition on shipboard of an Americanman-of-war's-man, were he transferred to the Russian navy and made asubject of the Czar.

  As a sailor, he shares none of our civil immunities; the law of oursoil in no respect accompanies the national floating timbers grownthereon, and to which he clings as his home. For him our Revolution wasin vain; to him our Declaration of Independence is a lie.

  It is not sufficiently borne in mind, perhaps, that though the navalcode comes under the head of the martial law, yet, in time of peace,and in the thousand questions arising between man and man on boardship, this code, to a certain extent, may not improperly be deemedmunicipal. With its crew of 800 or 1,000 men, a three-decker is a cityon the sea. But in most of these matters between man and man, theCaptain instead of being a magistrate, dispensing what the lawpromulgates, is an absolute ruler, making and unmaking law as hepleases.

  It will be seen that the XXth of the Articles of War provides, that ifany person in the Navy negligently perform the duties assigned him, heshall suffer such punishment as a court-martial shall adjudge; but ifthe offender be a private (common sailor) he may, at the discretion ofthe Captain, be put in irons or flogged. It is needless to say, that incases where an officer commits a trivial violation of this law, acourt-martial is seldom or never called to sit upon his trial; but inthe sailor's case, he is at once condemned to the lash. Thus, one setof sea-citizens is exempted from a law that is hung in terror overothers. What would landsmen think, were the State of New York to pass alaw against some offence, affixing a fine as a penalty, and then add tothat law a section restricting its penal operation to mechanics and daylaborers, exempting all gentlemen with an income of one thousanddollars? 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 penaloperations the very judge himself who gives decisions upon it; nay, thevery judge who expounds it. Had Sir William Blackstone violated thelaws of England, he would have been brought before the bar over whichhe had presided, and would there have been tried, with the counsel forthe crown reading to him, perhaps, from a copy of his own_Commentaries_. And should he have been found guilty, he would havesuffered like the meanest subject, "according to law."

  How is it in an American frigate? Let one example suffice. By theArticles of War, and especially by Article I., an American Captain may,and frequently does, inflict a severe and degrading punishment upon asailor, while he himself is for ever removed from the possibility ofundergoing the like disgrace; and, in all probability, from undergoingany punishment whatever, even if guilty of the same thing--contentionwith his equals, for instance--for which he punishes another. Yet bothsailor and captain are American citizens.

  Now, in the language of Blackstone, again, there is a law, "coeval withmankind, dictated by God himself, superior in obligation to any other,and no human laws are of any validity if contrary to this." That law isthe Law of Nature; among the three great principles of which Justinianincludes "that to every man should be rendered his due." But we haveseen that the laws involving flogging in the Navy do _not_ render toevery man his due, since in some cases they indirectly exclude theofficers from any punishment whatever, and in all cases protect themfrom the scourge, which is inflicted upon the sailor. Therefore,according to Blackstone and Justinian, those laws have no bindingforce; and every American man-of-war's-man would be morally justifiedin resisting the scourge to the uttermost; and, in so resisting, wouldbe religiously justified in what would be judicially styled "the act ofmutiny" itself.

  If, then, these scourging laws be for any reason necessary, make thembinding upon all who of right come under their sway; and let us see anhonest Commodore, duly authorised by Congress, condemning to the lash atransgressing Captain by the side of a transgressing sailor. And if theCommodore himself prove a transgressor, let us see one of his brotherCommodores take up the lash against _him_, even as the boatswain'smates, the navy executioners, are often called upon to scourge eachother.

  Or will you say that a navy officer is a man, but that an American-borncitizen, whose grandsire may have ennobled him by pouring out his bloodat Bunker Hill--will you say that, by entering the service of hiscountry as a common seaman, and standing ready to fight her foes, hethereby loses his manhood at the very time he most asserts it? Will yousay that, by so doing, he degrades himself to the liability of thescourge, but if he tarries ashore in time of danger, he is safe fromthat 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 inthe navy is opposed to the essential dignity, of man, which nolegislator has a right to violate; that it is oppressive, and glaringlyunequal in its operations; that it is utterly repugnant to the spiritof our democratic institutions; indeed, that it involves a lingeringtrait 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; nomatter if we have to dismantle our fleets, and our unprotected commerceshould fall a prey to the spoiler, the awful admonitions of justice andhumanity demand that abolition without procrastination; in a voice thatis not to be mistaken, demand that abolition today.
It is not adollar-and-cent question of expediency; it is a matter of _right andwrong_. And if any man can lay his hand on his heart, and solemnly saythat this scourging is right, let that man but once feel the lash onhis own back, and in his agony you will hear the apostate call theseventh heavens to witness that it is _wrong_. And, in the name ofimmortal manhood, would to God that every man who upholds this thingwere scourged at the gangway till he recanted.