Chapter 35

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