was about

to much before they had yielded to their passions; but as they acknowledged that they had at last defended themselves, their excuse was overruled. Johna brutal bully, who, it seems, was the real author of the disturbance entering into a long extenuation, when he was cut short by being made to confess, irrespective of circumstances, that he had been in the fray.. Peter, a handsome lad about nineteen years old, belonging to the mizzen-top, looked pale and tremulous. He was a great favorite in his part of the ship. . . To all his supplications the Captain turned a deaf ear. Peter declared that he had been struck twice before he had returned a blow. "No matter," said the Captain, "you struck at last, instead of reporting the case to an officer. I allow no man to fight on board here but myself. I do the fighting."

"Now, men," he added, "you all admit the charge; you know the penalty. Strip! Quarter-masters, are the gratings rigged?" The gratings are square frames of barred wood-work, sometimes placed over the hatchways. One of these squares was now laid on the deck, close to the ship's bulwarks, and while the remaining preparations were being made, the master-at-arms assisted the prisoners in removing their jackets and shirts. This done, their shirts were loosely thrown over their shoulders. At a sign from the Captain, John, with a shameless leer, advanced, and stood passively upon the grating, while the bareheaded old quarter-master, with gray hair streaming in the wind, bound his feet to the cross-bars, and, stretching out his arms over his head, secured them to the hammock-nettings above. He then retreated a little space, standing silent. Meanwhile, the boatswain stood solemnly on the other side, with a green bag in his hand, from which, taking four instruments of punishment, he gave one to each of his mates; for a fresh "cat" applied by a fresh hand, is the ceremonious privilege accorded to every man-of-war culprit. . . .

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The Captain's finger was now lifted, and the first boatswain's-mate advanced, combing out the nine tails of his cat, with his hand, and then sweeping them round his neck, brought them with the whole force of his body upon the mark. Again, and again, and again; and at every blow, higher and higher rose the long, purple bars on the prisoner's back. But he only bowed over his head, and stood still. Meantime, some of the crew whispered among themselves in applause of their ship-mate's nerve; but the greater part were breathlessly silent as the keen scourge hissed through the wintry air, and fell with a cutting, wiry sound upon the mark. One dozen lashes being applied, the man was taken down, and went among the crew with a smile, saying, "D-n me! it's nothing when you 're used to it! Who wants to fight!"

The fourth and last was Peter, the mizzen-top lad. He had often boasted that he had never been degraded at the gangway. The day before his cheek had worn its usual red, but now no ghost was whiter. As he was being secured to the gratings, and the shudderings and creepings of his dazzlingly white back were revealed, he turned round his head imploringly; but his weeping entreaties and vows of contrition were of no avail. "I would not forgive God Almighty!" cried the Captain. The fourth boatswain's-mate advanced, and at the first blow, the boy, shouting "My God! Oh, my God!" writhed and leaped so as to displace the gratings and scatter the nine tails of the scourge all over his person. At the next blow he howled, leaped, and raged in unendurable torture. "What are you stopping for, boatswain's-mate?" cried the Captain. "Lay on!" And the whole dozen was applied. "I don't care what happens to me now!" wept Peter, going among the crew, with blood-shot eyes, as he put on his shirt. "I have been flogged once, and they may do it again, if they will. Let them

look for me now!" "Pipe down!" cried the Captain, and the crew slowly dispersed. . . .

There are incidental considerations touching this matter of flogging, which exaggerate the evil into a great enormity. . . . 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. . .

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 freemer. 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. . .

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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. . . . 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 authorized 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. . . .

. . . 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. No matter, then, what may be the consequences of its abolition; no matter if we have to dismantle our fleets, and our unprotected commerce should fall a prey to the spoiler, the awful admonitions of justice and humanity demand that abolition without procrastination; in a voice that is not to be mistaken, demand that abolition to-day. It is not a dollar-and-cent question of expediency; it is a matter of right and wrong. And if any man can lay his hand on his heart, and solemnly say that this scourging is right, let that man but once feel the lash on his own back, and in his agony you will hear the apostate call the seventh heavens to witness that it is wrong. And, in the name of immortal manhood, would to God that every man who upholds this thing were scourged at the gangway till he

recanted.

741. PUBLIC LAWS OF THE UNITED STATES. 1850. (St. Sept. 28, c. 80, § 1; Rev. St. 1878, § 4611.) Flogging on board vessels of commerce is hereby abolished.

Id. 1862. (St. July 17, c. 204, § 1, Art. 18; Rev. St. 1878, § 1624, Art. 49.) In no case shall punishment by flogging be inflicted upon any person in the Navy.

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742. WILLIAM WINTHROP. Military Law and Precedents. (2d ed., 1896, Vol. I, pp. 668, 678.) Our original code of 1775, in enumerating-in Art. 51 the punishments authorized to be imposed by courts-martial, specified "whipping, not exceeding thirty-nine lashes." . At the beginning of the late war, by a statute of August 5, 1861, it was enacted "that flogging, as a punishment in the Army, is hereby abolished." The code of 1874 in Art. 98 merely states the existing law, in regard to flogging, in enacting that "No person in the military service shall be punished by flogging (or by branding, marking or tattooing on the body)." An Article of the Naval Code — No. 49 — is expressed in almost identical terms. . . . In the British law, flogging is no longer authorized to be adjudged as a punishment by courts-martial, though it may be employed as a corrective, to the extent of twenty-five lashes, at military prisons. . . The disrepute into which this punishment has fallen is in great part due to the fact that formerly, in the British service, it was carried to a brutal and perilous extreme. "Five hundred lashes" was a not uncommon sentence; one thousand were imposed in repeated recorded cases; and fifteen hundred and even two thousand were sometimes reached. The execution of such sentences, while savage in its cruelty to the subject, was demoralizing to those who in

flicted and who witnessed it. The offender being secured in an unnatural position, the lashes were applied by an enlisted man (a “right-and-left-handed drummer" being preferred), with the "cat" (its thongs sometimes steeped in brine or salt and water) upon the bare back and shoulders, which soon became flayed and raw. The victim was not relieved until the surgeon pronounced that he had endured as much as could safely be inflicted for the time. He was then removed to the hospital, to be brought out again, when his wounds were partially healed, for a second instalment of the punishment, and this process was repeated till the whole number of lashes had been administered. The sufferer, however, sometimes perished under the blows, or in consequence of the injuries received, before the law had been fully vindicated. In consequence no doubt of these extreme proceedings, and the fact that the employment of this punishment, subject as it was to abuse, became the occasion of suits in which heavy damages were recovered, the authority to resort to the same was gradually restricted by the Mutiny Act, till, in 1832, the maximum was fixed at two hundred lashes. In 1868 it was abolished for time of peace, and in 1881 altogether (except as above indicated). . . .

We have in our military law no such feature as a system of disciplinary punishments — or punishments imposable at the will of military commanders without the intervention of courts-martial such as is generally found in the European codes. Except so far as may be authorized for the discipline of the Cadets of the Military Academy, and in the cases mentioned in two or three unimportant and obsolete Articles of War, our law recognizes no military punishments for the Army, whether administered physically, or by deprivation of pay, or otherwise, other than such as may be duly imposed by sentence upon trial and conviction. . . . By the authorities nothing is more clearly and fully declared than that punishments cannot legally be inflicted at the will of commanders that they can be administered only in execution of the approved sentences of military courts. . . . Officers who have resorted, or authorized inferiors to resort, to them have not unfrequently been brought to trial and sentenced, sometimes to be dismissed: if acquitted or lightly sentenced, the proceedings have in general been disapproved or severely commented upon.1 . . . The practical result is that the only discipline in the nature of punishment that, under existing law, can in general safely or legally be administered to soldiers in the absence of trial and sentence is a deprivation of privileges in the direction of the commander to grant or withhold (such as leaves of absence or passes), or an exclusion from promotion. . . . To vest in commanders a specific power of disciplinary punishment, express legislation would be requisite.

Summary discipline in cases of emergency. Cases will indeed sometimes arise in the military service when a superior is called upon to employ toward an inferior a degree or quality of force not in general permissible. As where he is required to defend himself against an assailant, to suppress a mutiny, to quell a dangerous offender or quiet a turbulent one, to overcome resistance made to an arrest, to secure a soldier attempting to desert, or to capture a prisoner escaping

1 (See G. O. of Feb. 7, 1820 (case of Col. Wm. King); do. of June 30, 1821 (case of Col. Talbot Chambers, sentenced to suspension for inflicting illegal punishment in "cropping" the ears of two soldiers); . . . Note also in this connection, the case in G. C. M. O. 64 of 1865, of a Brig. Gen., convicted of causing two soldiers to be flogged with thirty-nine lashes each, as a disciplinary punishment, and sentenced to suspension. The findings and sentence were, however, disapproved).

from custody:— in such instances the superior may in general resort to the necessary personal force, use of arms, imprisonment, ironing, or other available form of constraint, and in extreme cases may even be warranted in taking life. Especially in time of war, and when the command is before the enemy, will such forcible and vigorous measures be justified. This, however, is repression and restraint, not punishment.

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743. A. HAMON. Psychologie du Militaire Professionnel. (1895. 2d ed. ch. 6.). The military profession tends to generate a certain moral anaesthesia. Cases of brutality inspired thereby cannot be justified on the ground of discipline, even by those most inclined to admire that profession. The conduct we are referring to is, more often than not, forbidden by military rules; nevertheless it is so frequent that one may almost allege that it constitutes the rule, not the exception. Out of numerous cases a few typical ones may be cited. . . . In Germany an officer who was displeased with the awkwardness of a recruit, taught him a lesson by obliging him to hold his right hand for several minutes in a caldron of boiling water. The man became crippled; this fact was proved in the German Parliament. . . . In the United States, Colonel Streeter, with the approval of General Snowden, caused a soldier named Jams to be hung by the thumbs for half an hour; his offence consisted in expressing approval of an attack made by a workman on the manager of the Carnegie factory. . . . One could fill volumes with similar instances, if one questioned all those who have served under the flag. It can be affirmed without fear of denial that there is not one soldier who in the course of his service has not thus been himself a victim to such treatment, or seen such acts committed; and this in any country whatsoever. These typical facts are criminal; for they are attacks on individual liberty. They are reprehensible; for besides being harmful to the individual, they are altogether lacking in any service to the community. The cause of discipline is invoked for their justification, whereas, far from fostering good order, they simply inspire rebellion against the social system which authorizes the perpetration of such crimes. A demonstration of this general reaction is seen in the modern spirit of anti-militarism; it reveals itself in the increase of offences by private soldiers, in the sentiments expressed in the newspapers and novels. . . .

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Inasmuch as such conduct accomplishes no beneficial purpose, what has been the psychological explanation of its origin? It is a well-known fact that every person who is vested with power, however limited, finds himself tending irresistibly to its abuse. The man who has power over his fellow-men is unable to recognize distinctly the line which separates use from abuse. This indeed is nothing but a natural process in human nature. In our social organization, the man who finds himself in possession of authority and exercises it without any other check than that which he finds in his own breast, soon comes to overstep the just limits of his power. Checks which originally existed in his own mind become gradually worn away. His position breeds a sense of superiority, and this sense of superiority tends to increase. Every conception of authority is inherently accompanied by the idea of possession, even when it has to do with human beings. The father, for example, says, "my children;" the factory superintendent, "my workmen;" the office-manager, "my clerks;" the householder, "my servants;" the teacher, "my pupils;" and officers, "my men." Possession of things naturally implies that we may use them as we please. The possessor may break or destroy them. They are his: he is their master.