Naval Courts-Martial and the Pardoning Power

THERE is no department or branch of the government service which Americans are wont to regard with greater pride than the navy. This pride is fully justified by our naval history. From March 11, 1794, when the federalists carried through their bill for building six frigates, down to the present time the record of the navy of the United States has been one of constant and conspicuous success in every direction. It was the navy which checked the insolence of France, and brought Talleyrand to terms during the administration of John Adams, when Thomas Truxtun, cruising in the Constellation, captured the French frigate L’Insurgente, although of superior force, and in another hard fight compelled a second frigate, La Vengeance, to strike her flag. Then came the gallant fighting with Tripoli, at a time when we were the only nation who approached the Barbary pirates with any arguments but bribes. The history of the war of 1812 is familiar to every one, and from that struggle dates the deep and affectionate pride of the American people in their navy. While on land we were compelled to endure an almost unbroken series of mortifying defeats, the exploits of our little navy excited the admiration of the world. In a succession of duels between our frigates and those of the enemy, with the exception of that between the Chesapeake and the Shannon, we were invariably victorious. The navy of Great Britain had been justly deemed invincible, and held at that period complete possession of the ocean. The charm was broken in the war of 1812. Whether fighting in fleets on the lakes, or with single frigates on the high seas, American seamen were always triumphant. They dealt a severe blow to the prestige of England, and by their victories made peace possible on terms which were not intolerable. At the close of the war of 1812 came the second war with the Barbary States, concluding in a peace dictated by Decatur on his quarter-deck, which put an end forever to tributes to those rascally pirates. The war of the rebellion is fresh in every one’s mind. The capture of Port Royal by the fleet under the command of Dupont and Davis, in the autumn of 1861, was the first great success achieved by the North, and from that time until the close of the war the record of the navy was undimmed by reverses, and marked by a succession of brilliant and important actions.

In the work of exploration and of science our navy has always held, and still holds, a high and honorable place. The services of our naval officers and of our seamen have been as eminent in the peaceful branches of the profession as in the stress of war. In a word, the navy has always responded fully to every demand made upon it by the nation ; whatever the emergency or the services might be, it has never failed.

At the present time there is a renewed and keen interest in naval affairs. This is due partly to the growing desire to make every effort to revive our merchant marine and to extend our commerce, and partly to the condition of the navy itself. The country has suddenly awakened to the fact that while, since the war, more money has been spent on its navy than on that of any other nation in the world except England and France, it has literally no vessels of war worthy of the name. Far from possessing a powerful fleet, like Russia, which has expended about as much as we have, we have no armed ship fit to cope with the one or two iron-clads of a petty state like Chili, or to defend our great cities from a destructive bombardment by some enemy in other respects hardly worth notice. We have at last become aware that our old and successful naval policy of always maintaining a small but highly efficient fleet, which led the world in naval architecture, in ordnance, and in equipment, has been abandoned.

Into the broad questions of naval policy, involving a reconstruction of the fleet, a reorganization of the department and of the service, and a stoppage of the favoritism and lobbying which have now become the accepted methods of settling assignments to duty, it is not my purpose to enter. It has always been supposed that, however much the navy might have deteriorated in regard to organization and equipment, the personnel of the service was unchanged and untouched ; and as a people we have always felt that, while the character of the officers and men remained unaltered, all obstacles could be readily overcome, and all defects of a material nature be easily remedied. During the past winter, however, a petition has been presented to the Senate, and given a wide circulation through the press, which affords good ground for alarm and anxiety to every thoughtful and patriotic American. This petition, which is signed by some three hundred officers of all ranks in the navy, prays that a stop may be put to the remission of sentences imposed by court-martial, and to the reinstatement of officers convicted of certain offenses. The mere existence of such a petition, with such a prayer, is of itself proof of an alarming and deplorable condition of affairs in our naval discipline. The grievance must indeed be serious and full of peril when a petition of this description can receive so many signatures from men with so keen and high a sense of personal and official honor, and with such a strong esprit de corps, as is known to exist among the officers of our navy. Such a manifestation, affecting as it does most seriously the character and well-being of a service to which our national honor and safety may at any moment be entrusted, deserves the most careful public consideration, and a thorough knowledge of the grounds for this petition, and of the nature and extent of the evil and the peril which it reveals.

With this view I have collected the statistics of naval courts-martial since the war of the rebellion, beginning with the year 1866, in order to show the results of the sentences — that is, whether carried out or set aside — in each case which has been recorded since that time. My main objects are to show the percentage of remissions to the whole number of sentences imposed, and to determine the relations between the remission and the rank of the officer, the nature of the offense, and the severity of the sentence. I have endeavored to obtain an abstract of every case, and I believe that my statistics are substantially complete. They are sufficiently so, certainly, to exhibit accurately the state of facts of which the officers complain in their petition. The tables which follow explain themselves. They include only the cases of commissioned officers. Five cases of this sort appear on my lists of which I have not been able to procure details, and I have thrown them out. I have also rejected all cases of midshipmen punished for misconduct at the Naval Academy, as these relate rather to school than to naval discipline. The classification of offenses and sentences could not without great and unnecessary labor be rendered perfectly exact in descripDon, In many cases the accused was found guilty of several offenses, and very frequently the sentences involved several forms of punishment. In classifying, therefore, I have been content to take in each instance the principal offense of which the accused was found guilty and the heaviest penalty imposed by the court, and arrange my statistics under those heads.

There were five cases in which a sentence was first commuted and subsequently remitted, and these being entered twice make the total of the five righthand columns exceed the total number of cases by five.

It will be seen by the first table that, while the number of cases in each year has varied very greatly and presents a most marked irregularity, the average has declined since 1868. This decline in the total number in each year is probably due to the reductions in the list of officers which took place after the war had ended and the war excitement had subsided; and it may be added that the whole number of courts-martial is not large, showing a good state of discipline among the officers. Nearly sixty per cent. of the cases in which sentences were imposed by courts-martial during the seventeen years included in the tables were either set aside, remitted, or commuted; and it is proper to state, what it is impossible to show in simple tables, that, with very few exceptions, the remissions and commutations were made at such a time or were of such a kind as to amount to a practical removal of the penalty and a complete pardon. This work of reversing the sentences of the courts-martial has been done occasionally by the secretary of the navy or by Congress, but chiefly by the President. If a supreme court reverses the judgments of the courts next below once in four times, it is considered a fair if not a high average. In this case both courts are experts in regard to the questions before them, and the superior tribunal is presumed to be composed of men of larger experience, greater ability, and better training than those who sit in the lower court. In naval trials the courts are formed of men who are not only of high honor and character, but who, as a part of their education and discipline, have been bred to courts-martial, and are habituated to weighing evidence and meting out punishment at once suitable and salutary. Yet we find that the sentences of naval courts-martial are reversed by laymen, with little or no experience in law of that description, or perhaps in any law, six times in ten.

After making every allowance for pardons induced by past services, by peculiar and extenuating circumstances, or by recommendations to mercy on the part of the courts, the proportion of reversals to executed sentences still remains very large. We are forced to one of two conclusions : either the officers of our navy are grossly unfit to perform a regular and most important duty of their profession, which it is absurd to suppose, or the pardoning power, which in one form or another is resident in the President, the secretary, and the two houses of Congress, is much abused. The connection between the exercise of the pardoning power and the rank of the culprit and the severity of the sentence is not very clear on the face of tables II. and IV. By studying them in combination in the cases themselves, it at once becomes evident that high rank joined with a severe sentence is almost sure to bring some form of pardon. The higher the rank and the severer the sentence, the greater the probability of remission or commutation. As the rank declines, the severity of the sentence has less and less apparent effect. But low rank and a heavy sentence fare far better than low rank and a moderate or light sentence. These propositions are very general, and we find many exceptions to them ; but the inference is inevitable that in the majority of cases pardon or remission depends on the position of the culprit, the amount of pity excited by the weight of the sentence, and the quantity of influence which can be brought to bear, and is not founded solely and simply on an injustice or irregularity in the sentence, on new evidence, or on peculiar circumstances. Take, for example, one of the worst offenses of which a naval officer can be guilty, the loss of his ship through culpable negligence or inefficiency. Two officers, we find by the tables, were punished for this offense, and these two were both on the same ship, as captain and lieutenant. Two others, captains commanding different ships, were found guilty of the same offense, and were both let off. One of these last cast away a splendid ship under circumstances of the grossest negligence and misconduct. From personal reasons the courts were disposed to be lenient, and inflicted a comparatively light sentence of suspension for three years from rank and pay. Within a year, by political influence, the sentence was remitted at Washington, and the offender was put back in his old place on the list, over the heads of men who had done their duty, and had not lost ships by culpable conduct. In the same year, or indeed in any year, we can find officers of the lower ranks, for similar misconduct, unattended by any such consequence as the loss of a ship, dismissed the service and not a word said.

The general showing for the seventeen years of nearly sixty per cent. of unexecuted sentences, with an average for each year of fifty-four per cent., is bad enough, but if we examine the statistics of the last few years we perceive at once the shocking state of things which has produced the petition of the officers. Down to 1877 the percentage of unexecuted sentences, though deplorably large, was reasonably constant, and not far from the general average of fiftyfour per cent. In 1877 there were only three cases of sentences, two of which were carried out, and in 1878 only two sentences, and both carried out. We now come to the last four years, and it is not too much to say that the showing is appalling. For the last four years the percentage of sentences unexecuted, either wholly or in part, rises to 79.4. For 1879, 1880, and 1881 the percentage of unexecuted sentences is 73.1, and for 1879 and 1880 it is 87.5. In 1880 there was one case of a midshipman who was dismissed for hazing at the Academy, and who had no mercy shown him. There were also in that year twelve cases of commissioned officers sentenced by courts-martial. Every sentence was either set aside or remitted, or commuted to an extent equivalent to setting aside. Most of these cases were for drunkenness and scandalous conduct. One instance, the most flagrant, will give an idea of the extent to which the pardoning power was abused at that time. An officer was convicted of drunkenness, and sentenced by the court-martial to a public reprimand. The President remitted the sentence. While under arrest for the first offense this same officer absented himself without leave, went on a spree, got very drunk, and indulged in the most outrageous and scandalous misbehavior. For this complication of offenses he was tried again by court-martial, again found guilty, and this time sentenced to dismissal from the service; and again the President remitted the sentence. It will be remembered that 1880 was the last year of the Hayes administration. We can hardly wonder that, after such an exhibition of the pardoning power, naval officers should have resorted to so extreme and painful a measure as their petition to the Senate.

The statistics disclose a curious bit of testimony, which disposes of any argument which might be based on the assumption that courts - martial are inclined to be hasty and severe. In a certain class of cases, notably drunkenness, scandalous conduct, and peculation, the pardoned offender is apt to relapse. We find officers sentenced by the courts, and afterwards pardoned, coming up again for renewed offenses, and it is interesting to see how often the same name recurs in the statistics, until at last it gets beyond the patience even of the pardoning power, and disappears from the navy register. One officer was tried, convicted, and pardoned three times, before, on a fourth trial, the service could get rid of him. Another was tried three times, and instances of two trials are very common. This shows that, as might be supposed, the officers composing the courts are far from hasty or too severe, and are usually well informed as to the character of the offender, much better than the pardoning power can possibly be. Indeed, it may be said that, owing to old friendship and close personal association with the fellow-officers brought before them, naval courts are disposed often to go to the very limits of justice in their desire to be lenient and merciful.

Comments on the facts revealed by the statistics would be superfluous. Every one can see that the policy of the last few years in regard to pardoning officers convicted by courts-martial of serious and degrading offenses is as bad and dangerous as possible. It is enough, if long persisted in, to poison and corrode the best service in the world. Our present system of promotion, which enables any officer of decent conduct and possessing the commonest intelligence to rise slowly but surely to the highest rank, is probably not a very good one, and is certainly not stimulating to the most talented and the strongest men in the service. But if those who are convicted of offenses which are in themselves degrading, which are ruinous to the service, and calculated to destroy the respect of the public, — if such offenders are to be pardoned in the majority of instances, it makes little difference what the system of promotion is, for the very existence of the service as an honored and respected body of public servants is menaced. What can be said of a weak policy, which puts convicted offenders back on the lists, and sometimes, by act of Congress, years after a dismissal, over the heads of men who in a time of peace are enlarging the domain of science, rendering great services to navigation and commerce, devoting their pens to the improvement of their profession, facing suffering and death in perilous explorations, and sustaining in every quarter of the globe the respectability of the American character and the honor of the American name and flag ? Such a policy tends to drive the ablest, most ambitious, and most hightoned men out of the service, and sets at naught the meritorious claims of good behavior and faithful service.

In every country and under every system there must, and will be always, in nearly every case, more or less effort to bend the pardoning power to the exercise of mercy in favor of convicted offenders against the law. The easy good-nature of the American character, and the political system of deciding every question of a personal nature according to the amount of “ pressure ” exerted in one way or another, and not on settled principles, render the pardoning power in this country more liable to abuse than perhaps it is elsewhere. We see this abuse in civil cases in all the States, and it is even worse in Washington. In cases of pardon the pressure is of course always one way, and has nothing to counteract it. For that very reason it is a power which should be very sparingly and cautiously exercised. In the military or naval service, particularly, its use should be very limited, instead of extremely lax, as is now the case. Nothing is more sensitive, more delicate, more artificial, and at the same time more absolutely essential to the army and navy than their discipline. It is better here to err on the side of severity than on that of mildness, for on the discipline of the army and navy the honor and safety of the nation may at any time be staked. Yet we see that an habitual abuse of the pardoning power exists, which must in the long run be as prejudicial to the discipline and character of the naval service as anything we can conceive of.

I have already said that under any system or in any circumstances a strong influence will always be exerted with the executive to shelter naval and military offenders. We know that the great prerogative of pardon in these cases is not only liable to abuse, but has been and is seriously abused, in this country. Something ought to be done to limit and restrain the exercise of the pardoning power, and to protect the executive against an amount of supplication and influence which very few men can resist, and to which no man ought to be exposed. The question of remedying this difficulty has already been brought to the attention of Congress. Mr. Briggs, of New Hampshire, has lately introduced, with this view, a bill for promoting the efficiency of the navy. The bill provides that whenever, on an inquiry held pursuant to law, concerning the fitness of an officer of the navy for promotion, it shall appear that such officer is unfit to perform at sea the duties of the place to which it is proposed to promote him, by reason of drunkenness, or from any cause arising from his misconduct or want of capacity, not caused by or in consequence of the performance of his duty, he shall not be placed upon the retired list of the navy, and he shall be discharged from the service ; and in that case he may, by order of the President, be allowed and paid the pay of his grade for one year, and no longer, next after such discharge. This is a good measure, and it is to be hoped that it will be passed. If it becomes law there can be little doubt that it will be beneficial. But it does not go far enough. It relates only to promotion, and compels dismissal as the only penalty. It does not go to the root of the evil, which is the abuse of the pardoning power. The power of pardon or commutation, except in instances of a recommendation to mercy by the court, should be limited at least to capital cases, dismissal from the service, a suspension of more than ten years, or imprisonment for more than five ; and its exercise should be absolutely prohibited in all cases of a second conviction, unless the sentence is death. In all cases the executive should have the power of ordering a new trial by a new court, and if acquittal followed the second trial the executive or the legislature would have, of course, the power of restoration. This would provide for the discovery of new evidence.

This much is certain : the question is a grave one ; the use of the pardoning power in the last few years is highly dangerous to a most important, honorable, and honored branch of the public service, and it is the duty of Congress to give ear to the petition of the officers, and root out the evil before it has worked harm which it may take years to cure.

Henry Cabot Lodge.