Melville, ‘White-Jacket’ and Military Justice

By Scott Horton

Herman Melville, photograph from 1860

The quote for the day is Herman Melville’s discussion of the notion of American Exceptionalism found in White-Jacket. A couple of readers have written asking that I flag for them the discussion of military justice in Herman Melville’s novel White-Jacket that I mentioned in my prior post, “The Unfinished Story of Abu Ghraib.” Here goes:

Ch. 35:

It will be seen that the XXth of the Articles of War provides, that if any person in the Navy negligently perform the duties assigned him, he shall suffer such punishment as a court-martial shall adjudge; but if the offender be a private (common sailor) he may, at the discretion of the Captain, be put in irons or flogged. It is needless to say, that in cases where an officer commits a trivial violation of this law, a court-martial is seldom or never called to sit upon his trial; but in the sailor’s case, he is at once condemned to the lash. Thus, one set of sea- citizens is exempted from a law that is hung in terror over others. What would landsmen think, were the State of New York to pass a law against some offence, affixing a fine as a penalty, and then add to that law a section restricting its penal operation to mechanics and day laborers, exempting all gentlemen with an income of one thousand dollars? 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 penal operations the very judge himself who gives decisions upon it; nay, the very judge who expounds it. Had Sir William Blackstone violated the laws of England, he would have been brought before the bar over which he had presided, and would there have been tried, with the counsel for the crown reading to him, perhaps, from a copy of his own Commentaries. And should he have been found guilty, he would have suffered like the meanest subject, “according to law.”

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

Now, in the language of Blackstone, again, there is a law, “coeval with mankind, dictated by God himself, superior in obligation to any other, and no human laws are of any validity if contrary to this.” That law is the Law of Nature; among the three great principles of which Justinian includes “that to every man should be rendered his due.” But we have seen that the laws involving flogging in the Navy do not render to every man his due, since in some cases they indirectly exclude the officers from any punishment whatever, and in all cases protect them from the scourge, which is inflicted upon the sailor. Therefore, according to Blackstone and Justinian, those laws have no binding force; and every American man-of-war’s-man would be morally justified in resisting the scourge to the uttermost; and, in so resisting, would be religiously justified in what would be judicially styled “the act of mutiny” itself.

If, then, these scourging laws be for any reason necessary, make them binding upon all who of right come under their sway; and let us see an honest Commodore, duly authorised by Congress, condemning to the lash a transgressing Captain by the side of a transgressing sailor. And if the Commodore himself prove a transgressor, let us see one of his brother Commodores take up the lash against him, even as the boatswain’s mates, the navy executioners, are often called upon to scourge each other.

Or will you say that a navy officer is a man, but that an American-born citizen, whose grandsire may have ennobled him by pouring out his blood at Bunker Hill–will you say that, by entering the service of his country as a common seaman, and standing ready to fight her foes, he thereby loses his manhood at the very time he most asserts it? Will you say that, by so doing, he degrades himself to the liability of the scourge, but if he tarries ashore in time of danger, he is safe from that 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 in the navy is opposed to the essential dignity, of man, which no legislator has a right to violate; that it is oppressive, and glaringly unequal in its operations; that it is utterly repugnant to the spirit of our democratic institutions; indeed, that it involves a lingering trait of the worst times of a barbarous feudal aristocracy; in a word, we denounce it as religiously, morally, and immutably wrong.

Ch. 72:

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 the 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 it is 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 characterise such a deed? Says Black-stone, “If any one that hath commission of martial authority doth, in time of peace, hang, or otherwise execute any man by colour of martial law, this is murder; for it is against Magna Charta.”* [* Commentaries, b. i., c. xiii.]

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–recognised 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 anything I have said, in any part of this work, touching the gross oppression under which I know that the sailors suffers. Indifferent as to who may be the parties concerned, I but desire to see wrong things righted, and equal justice administered to all.

White-Jacket was first published by Harpers Brothers on March 21, 1850, just as the final preparations were being made for the introduction of Harper’s Monthly, the magazine. This text can be found on pp. 498-500, and 668-70 of the Library of America edition.