No Comment — September 2, 2007, 8:40 am

Melville, ‘White-Jacket’ and Military Justice

herman_melville_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.

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