CHAPTER XXXV.
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.