Chapter 72

“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.