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- 5502
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- 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 American
Constitution, they are these: irresponsibility in a judge, unlimited
discretionary authority in an executive, and the union of an
irresponsible judge and an unlimited executive in one person.
Yet by virtue of an enactment of Congress, all the Commodores in the
American navy are obnoxious to these three charges, so far as concerns
the punishment of the sailor for alleged misdemeanors not particularly
set forth in the Articles of War.
Here is the enactment in question.
XXXII. _Of the Articles of War_.—“All crimes committed by persons
belonging to the Navy, which are not specified in the foregoing
articles, shall be punished according to the laws and customs in such
cases at sea.”
This is the article that, above all others, puts the scourge into the
hands of the Captain, calls him to no account for its exercise, and
furnishes him with an ample warrant for inflictions of cruelty upon the
common sailor, hardly credible to landsmen.
By this article the Captain is made a legislator, as well as a judge
and an executive. So far as it goes, it absolutely leaves to his
discretion to decide what things shall be considered crimes, and what
shall be the penalty; whether an accused person has been guilty of
actions by him declared to be crimes; and how, when, and where the
penalty shall be inflicted.
In the American Navy there is an everlasting suspension of the Habeas
Corpus. Upon the bare allegation of misconduct there is no law to
restrain the Captain from imprisoning a seaman, and keeping him
confined at his pleasure. While I was in the Neversink, the Captain of
an 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 government
more stringent than the law that governs the land; but that code should
conform to the spirit of the political institutions of the country that
ordains it. It should not convert into slaves some of the citizens of a
nation of free-men. Such objections cannot be urged against the laws of
the Russian navy (not essentially different from our own), because the
laws of that navy, creating the absolute one-man power in the Captain,
and vesting in him the authority to scourge, conform in spirit to the
territorial laws of Russia, which is ruled by an autocrat, and whose
courts inflict the _knout_ upon the subjects of the land. But with us
it is different. Our institutions claim to be based upon broad
principles of political liberty and equality. Whereas, it would hardly
affect one iota the condition on shipboard of an American
man-of-war’s-man, were he transferred to the Russian navy and made a
subject of the Czar.
As a sailor, he shares none of our civil immunities; the law of our
soil in no respect accompanies the national floating timbers grown
thereon, and to which he clings as his home. For him our Revolution was
in vain; to him our Declaration of Independence is a lie.
It is not sufficiently borne in mind, perhaps, that though the naval
code comes under the head of the martial law, yet, in time of peace,
and in the thousand questions arising between man and man on board
ship, this code, to a certain extent, may not improperly be deemed
municipal. With its crew of 800 or 1,000 men, a three-decker is a city
on the sea. But in most of these matters between man and man, the
Captain instead of being a magistrate, dispensing what the law
promulgates, is an absolute ruler, making and unmaking law as he
pleases.
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