Whence came they? They cannot be the indigenous growth of those political institutions, which are based upon that arch-democrat Thomas Jefferson's Declaration of Independence? No; they are an importation from abroad, even from Britain, whose laws we Americans hurled off as tyrannical, and yet retained the most tyrannical of all.
But we stop not here; for these Articles of War had their congenial origin in a period of the history of Britain when the Puritan Republic had yielded to a monarchy restored; when a hangman Judge Jeffreys sentenced a world's champion like Algernon Sidney to the block; when one of a race by some deemed accursed of God-even a Stuart, was on the throne; and a Stuart, also, was at the head of the Navy, as Lord High Admiral. One, the son of a King beheaded for encroachments upon the rights of his people, and the other, his own brother, afterward a king, James II., who was hurled from the throne for his tyranny. This is the origin of the Articles of War; and it carries with it an unmistakable clew to their despotism.[4]
- [FOOTNOTE-4] The first Naval Articles of War in the English language were passed in the thirteenth year of the reign of Charles the Second, under the title of "_An act for establishing Articles and Orders for the regulating and better Government of his Majesty's Navies, Ships-of-War, and Forces by Sea_." This act was repealed, and, so far as concerned the officers, a modification of it substituted, in the twenty-second year of the reign of George the Second, shortly after the Peace of Aix la Chapelle, just one century ago. This last act, it is believed, comprises, in substance, the Articles of War at this day in force in the British Navy. It is not a little curious, nor without meaning, that neither of these acts explicitly empowers an officer to inflict the lash. It would almost seem as if, in this case, the British lawgivers were willing to leave such a stigma out of an organic statute, and bestow the power of the lash in some less solemn, and perhaps less public manner. Indeed, the only broad enactments directly sanctioning naval scourging at sea are to be found in the United States Statute Book and in the "Sea Laws" of the absolute monarch, Louis le Grand, of France.[4.1]
Taking for their basis the above-mentioned British Naval Code, and ingrafting upon it the positive scourging laws, which Britain was loth to recognise as organic statutes, our American lawgivers, in the year 1800, framed the Articles of War now governing the American Navy. They may be found in the second volume of the "United States Statutes at Large," under chapter xxxiii. — "An act for the _better_ government of the Navy of the United States."
[4.1] For reference to the latter (L'Ord. de la Marine), _vide_ Curtis's "Treatise on the Rights and Duties of Merchant-Seamen, according to the General Maritime Law," Part ii., c. i.
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Nor is it a dumb thing that the men who, in democratic Cromwell's time, first proved to the nations the toughness of the British oak and the hardihood of the British sailor-that in Cromwell's time, whose fleets struck terror into the cruisers of France, Spain, Portugal, and Holland, and the corsairs of Algiers and the Levant; in Cromwell's time, when Robert Blake swept the Narrow Seas of all the keels of a Dutch Admiral who insultingly carried a broom at his fore-mast; it is not a dumb thing that, at a period deemed so glorious to the British Navy, these Articles of War were unknown.
Nevertheless, it is granted that some laws or other must have governed Blake's sailors at that period; but they must have been far less severe than those laid down in the written code which superseded them, since, according to the father-in-law of James II., the Historian of the Rebellion, the English Navy, prior to the enforcement of the new code, was full of officers and sailors who, of all men, were the most republican. Moreover, the same author informs us that the first work undertaken by his respected son-in-law, then Duke of York, upon entering on the duties of Lord High Admiral, was to have a grand re-christening of the men- of-war, which still carried on their sterns names too democratic to suit his high-tory ears.
But if these Articles of War were unknown in Blake's time, and also during the most brilliant period of Admiral Benbow's career, what inference must follow? That such tyrannical ordinances are not indispensable-even during war-to the highest possible efficiency of a military marine.
CHAPTER LXXII
"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.