University of Virginia Library

72. CHAPTER LXXII.

The present usages of the American Navy are such that,
though there is no government enactment to that effect, yet,
in many respects, 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 XV.th 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 civilized 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 authorized
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 solemnized 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 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 is it 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 characterize 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 color of martial law, this is murder; for it is against Magna
Charta.”[1]

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—recognized
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 any thing I have said, in any part of this
work, touching the gross oppression under which I know that
the sailor 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 can not 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
practiced 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.