Flogging men across their bare backs with a cat-of-nine-tails, while their hands were fastened above their heads and their legs spread apart and ankles tied to a grating, was lawfully practiced on ships of the United States Navy for 75 years.
The “cat” used in such cases was not of standard construction, but was usually made of nine lashes or tails of whipcord or log line, about 18 inches long, each knotted near the end, and fastened to a handle of wood of about drumstick length. It has also been described as having three knots on each cord, at regular intervals, one being near the end.
The part of the ship where the cat was used was as varied as the ships themselves. Sometimes the grating was rigged on the main deck, or on the spar deck; near the mainmast, or at the gangway.
The one inflicting the punishment was required to see that the ends of the cat tails were not entangled while in use, but were disengaged from time to time and, if necessary, washed in water.
Early English and American Laws
In tracing the legal authority for flogging in the United States Navy from its origin to abolition, it is necessary not only to go back to Colonial times and follow legislative Acts commencing with the Continental Congress through to the Act passed at the first session of the 31st Congress, but also to trace the sources of those legislative Acts by turning back the pages of history to the thirteenth year of the reign of Charles II of England in 1661 (cited as 13 Charles II). Parliament then passed an Act the preamble of which reads: “For the Establishing Articles and Orders for the Regulating and better Government of His Majesties Navies, Ships of War and Forces by Sea.” My copy is printed in Old English, black letter, in a folio-sized pamphlet, with headings in Latin. Thring’s Criminal Law of the Navy (London, 1877) states that that Act “was the first legislative code for the enforcement of discipline and punishment of offences in a standing navy, and the first positive enactment of military law to be found in the statute-book.”
In 1749 that law was repealed by an Act of Parliament (22 George II) entitled “An Act for amending, explaining, and reducing into one act of Parliament, the laws relating to the government of his Majesty’s ships, vessels, and forces by sea,” effective December 25, 1749.
Both of the foregoing Acts are cited for two pertinent reasons: (1) The Act of 13 Charles II is seldom mentioned by writers as a source of the early regulations of the United States Navy, though a comparison of the two evidences that it is one of the main sources; (2) The Act of 22 George II has been referred to by some writers as being one of the principal bases for our Navy Regulations, but a contrast of the regulations of our Colonial Navy with the articles in that Act fails to establish such a contention as a fact. Why, it may be asked, is either of those two Acts of Parliament referred to? We shall see.
In October, 1775, members of the Continental Congress foresaw that, if they were to protect their shipping from the clutches of Great Britain and take as prizes vessels of the enemy carrying arms to America, they would need armed vessels.
On October 13 of that year the Continental Congress appointed a Naval Committee of three members, later increased to seven, to report upon the matter of fitting out two such vessels. One of the members added to that committee was the Hon. John Adams, of Massachusetts. He was a prominent lawyer at the port of Boston, and learned in the law of the sea. British admiralty law was the rule of colonial shipping at that time. Adams and the other members of the committee were aware that, in creating an armed force, matters of discipline would arise, and they also gave them their studied attention.
It was but natural for that committee, whose members were then British subjects, to consider rules of discipline that had been used in the British Navy. Of the two above-cited Acts of Parliament, the Act of 22 George II was still in effect in 1775. But it was quite verbose; the Act of 13 Charles II was succinct. Comparison of those two Acts with the rules prepared by the Committee tends to prove: (1) that at least fourteen of our Colonial Articles were based on the Act of 13 Charles II; (2) that but few were copied from the Act of 22 George II; and (3) that about 18 were modeled on another publication, most important as far as the subject of flogging is concerned! That other publication was Regulations and Instructions Relating to His Majesty's Service at Sea, established by His Majesty in Council, 11th edition, printed in London in 1772, which contained “Rules of Discipline and good Government to be observed on Board His Majesty’s Ships of War.”
Neither of the two Acts of Parliament cited above specifically authorized flogging, nor even mentioned the lash, but the subsequent “Rules of Discipline,” etc., unquestionably did (as set forth in a subsequent paragraph) and thus the latter will be established as the origin of American legislative Acts on that subject.
It is also interesting to disclose the source of those “Regulations and Instructions” and “Rules of Discipline”: they were issued from time to time by the Lord High Admiral, or the Commissioners for executing the duties of the Lord High Admiral, to supply rules and regulations not prescribed in Acts of Parliament, and were similar in effect to General Orders now issued by the Secretary of the Navy in Washington.
In such “Rules of Discipline” the authority to flog was invested in commanders of British vessels not long after 1749.
What do those rules say with regard to flogging, and how closely was their sole Article on that subject followed by the Naval Committee of the Colonial Congress of which the Hon. John Adams was the active head?
Article IV of the British “Rules of Discipline” of 1772 reads:
No Commander shall inflict any Punishment upon a Seaman beyond Twelve Lashes upon his bare Back with a Cat of Nine Tails, according to the ancient Practice of the Sea; but if the Fault shall deserve a greater Punishment, he is either to apply to the Commander in Chief, or inform the Secretary of the Admiralty if the ship is at Home, in order to the Offender’s being brought to a Court-Martial, if it shall be thought proper, and in the mean Time he may put him under Confinement.
Compare that with Article 4 of the 1775 “Rules for the Regulation of the Navy of the United Colonies of North America,” as submitted by the Naval Committee:
No commander shall inflict any punishment upon a seaman beyond twelve lashes upon his bare back with a cat of nine tails; if the fault shall deserve a greater punishment, he is to apply to the Commander in Chief of the Navy in order to the trying of him by a court martial, and in the mean time he may put him under confinement.
There can be no doubt that the foregoing British Article is the authentic source of the American Article on flogging.
On November 28, 1775, all of the Articles drafted by the Committee were debated in the Colonial Congress paragraph by paragraph, accepted, and spread upon the Journal, including Article 4 above. They were printed and distributed the following month under the (short) title of “Rules for the Regulation of the Navy of the United Colonies of North America.”
By that Article 4 the Continental Congress said, in effect, if the offence committed by an enlisted man of the naval service did not merit trial by court-martial, the commanding officer could, solely on his own decision, order infliction of the cat up to twelve lashes.
The frequency and severity of punishment must have differed in ships according to the feelings and views of their commanders, as some were said to have been known to order corporal punishment with great reluctance.
Eight years after the new government was established, the use of the lash was perpetuated by the Fifth Congress in the Act approved July 1, 1797, by providing:
Sec. 8. And be it further enacted, That the officers, non-commissioned officers, seamen and marines, belonging to the navy of the United States, shall be governed by the rules for the regulation of the navy heretofore established by the resolution of Congress of the twenty-eighth of November, one thousand seven hundred and seventy-five, as far as the same may be applicable to the Constitution and laws of the United States, or by such rules and articles as may hereafter be established.
And thus the Continental Congress and our American Congress did what no British Parliament so far had done: they sanctioned flogging in express terms by law, by adopting Article 4 cited above!
In 1799 Congress provided a new set of Articles for the Government of the Navy which had been governed since 1789 by the Colonial Navy’s rules. The Act of March 2, 1799, made two changes in existing law so far as flogging was concerned. The first amended Article 3 of the Colonial regulations, which read:
If any shall be heard to swear, curse or blaspheme the name of God, the Captain is strictly enjoined to punish them for every offence, by causing them to wear a wooden collar or some other shameful badge of distinction, for so long a time as he shall judge proper. If he be a commissioned officer he shall forfeit one shilling for each offence, and a warrant or inferior officer, sixpence. He who is guilty of drunkenness (if a seaman) shall be put in irons until he is sober, but if an officer, he shall forfeit two days’ pay.
and changed it to:
Article 3. Any person who shall be guilty of profane swearing, or of drunkenness, if a seaman or marine, shall be put in irons until sober, amt then flogged if the captain shall think proper; but if an officer, he shall forfeit two days’ pay or incur such punishment as a court martial shall impose, and as the nature and degree of the offence shall deserve (italics supplied).
This was the first time the Congress authorized flogging for specific offenses. In the following year, however, the words “and then flogged” were amended to “or flogged.”
The second change amended existing law with respect to the lash by providing a sort of “one and only” cat, and limiting its use to twelve lashes “for any offence”:
Article 4. No commander, for any offence, shall inflict any punishment upon a seaman or marine beyond twelve lashes upon his bare back with a cat of nine tails, and no other cat shall be made use of on board any ship of war, or other vessel belonging to the United States; if the fault shall deserve a greater punishment, he is to apply to the Secretary of the Navy, the commander-in-chief of the navy, or the commander of a squadron, in order to the trying of him by a court martial; and in the mean time he may put him under confinement.
This prohibition of other than a cat-of- nine-tails was aimed at the “colt,” a piece of 18-thread ratline, or 1-inch rope, with one or two hard twine whippings on each end to make men move briskly, or, in nautical language, to “start” them. It was a sort of “Get along, little seaman; get along.”
The cat was again given consideration by Congress in the Act of April 23, 1800, by specifically restricting its construction. Article 30 provided:
No commanding officer shall, of his own authority, . . . inflict a punishment on any private beyond twelve lashes with a cat-of-nine-tails, nor shall he suffer any wired, or other than a plain, cat-of-nine-tails to be used on board his ship. . . .
The word “private” is construed as embracing any person in the Navy other than a commissioned officer, as other Articles in the same Act use the words “No officer or private” shall, etc. By that Act the Congress not only repeated the authorization for the use of the cat-of-nine-tails included in the Act of 1799, but went a long step farther. Courts-martial previously had been limited in their punishment to sentences of death or such other punishment as a court-martial shall direct. In Article 41 of the same Act of 1800 the Congress provided:
... A court martial shall not, for any one offence not capital, inflict a punishment beyond one hundred lashes.
This was the first time Congress explicitly extended to a court-martial the use of the lash as a punishment.
It was also by that Act that a naval court, which previously had been referred to merely as a “court martial,” was denominated a “general court-martial.”
That particular piece of legislation was titled “An Act for the better government of the navy of the United States.” In what way it made for the better government is a matter of opinion. Consider the severity of not beyond one hundred lashes “for any one offence!” The use of the lash caused much public discussion from time to time thereafter, but the law remained unamended for the next fifty years, either with regard to the use of the lash, or otherwise!
Efforts to Control the Cat
However, in the meantime some steps were taken to control the use of the cat. Secretary of the Navy Levi Woodbury in a circular dated September 26, 1831, issued to all Captains and Masters Commandant of the Navy, called attention to two subjects, one of which was concerning punishments in the Navy:
. . . The other subject, and our wishes upon it are, that till Congress deem it proper to alter the existing laws concerning punishments in the navy, and wherever the laws allow a discretion in the choice of punishments, the first resort, in the case of offences by seamen, is recommended to be always had to pecuniary fines, badges of disgrace, and other mild corrections, rather than to the humiliating practice of whipping; and that never on the same day, by punishing, under an officer’s own authority, two offences at once, should the stripes, limited by law, be exceeded in number, or be inflicted otherwise than in the presence and under the sanction of the commanding officer of the vessel or station. . . .
The Navy has always been fond of stripes on their uniforms, and it is strange to hear lash marks called “stripes.” Nevertheless, Secretary Woodbury deemed it wise to make known his laudable substitutes for corporal punishment.
In 1840 President Van Buren endeavored to make changes in the infliction of such punishment in the Navy by requiring quarterly reports on the subject. His Secretary of the Navy, Hon. James K. Paulding, in a General Order dated May 29,1840, published to the service the President’s views as follows:
The President of the United States, believing that greater formality in the infliction of such corporal punishments as are authorized by law may be adopted in the Navy with beneficial consequences, directs that no such punishment shall be inflicted on any person in the service without sentence of a Court Martial, when that is required by Law, or the written order of the Captain, or Commanding Officer of the vessel, or Commandant of the Navy Yard, to which he is attached, where the authority to cause it to be inflicted rests in the discretion of the commanding officer, specifying the offence or offences, and the extent of the punishment to be inflicted, which order shall be read, and the punishment inflicted in the presence of the Officers and seamen belonging to the vessel or Navy Yard.
All such orders for punishment shall be entered on the Log Book and a quarterly return made to the Secretary of the Navy, stating the names of the persons punished, their offences, and the extent of the punishment inflicted, together with such explanations or remarks as the commanding officer may deem necessary to a proper understanding of the case. . . .
The “General Regulations for the Navy and Marine Corps of the United States” of 1841 made further provision for correcting certain abuses in the use of the cat where more than twelve lashes were inflicted for several offences committed at the same time. In Article 174, under the heading of “Commanders of Vessels”, they were directed to “conform to the spirit of the Law, and never order any individual to be furnished with more than twelve lashes for any offences committed at the same time.” There had been occasions, for example, when men, after returning aboard ship drunk, started fighting and also disobeyed orders to be quiet. They were later given twelve lashes for each offence.
That Article also provided: “. . . nor shall he order or permit any petty officer to be flogged, unless by sentence of a court martial.” This innovation was brought about by some commanders having first disrated a petty officer before being lashed and then restoring his rating afterwards.
In 1844 a very prominent author wrote upon the subject. In “The Cruise of the Somers: Illustrative of the Despotism of the Quarter Deck; and of the Unmanly Conduct of Commander Mackenzie,” James Fenni- more Cooper, venting his disapprobation of the hanging of Midshipman Spencer for alleged mutinous conduct, touched upon flogging by saying:
It cannot be denied that some of the powers delegated to naval officers are looked upon with disfavor by many reflecting men. The right to flog is thought to be not in harmony with the spirit of the age and with the true history of punishment. The law permits it, it is true, on the ground of necessity. . . .
with the following additional remarks on the state of discipline on board the Somers preceding the hanging:
The outward parrage was marked by some features at which it was necessary to glance. There was, in the first place, a very remarkable amount of flogging on board. The cat and the colt were in constant use among this sea-sick, homesick crew of boys. There was, to say the least, a determination to try what the lash would do in the way of discipline. . . .
Thus we see the Act of 1800, legalizing flogging, still in effect in 1844, and Secretaries of the Navy suggesting other disciplinary measures in its stead, but Congress still failing to repeal or even amend the law.
Congress Seeks Record of Cat
In 1848, as a result of the public clamor against flogging in the Navy, Congress finally took a hand in the matter. The naval appropriation Act of August 3, 1848, directed the Secretary of the Navy to report to Congress the number of persons in the naval service flogged in each of the years 1846 and 1847, specifying the name of the ship, the offence, the sentence, and the number of lashes inflicted; and that he make a similar report for each year thereafter.
Secretary of the Navy John Y. Mason on February 5, 1849, transmitted to the Senate copies of reports “so far as received.” Some of the more interesting cases in the published Senate document, with the number of lashes inflicted, are:
Running in debt on shore—12 lashes with cats
Tapping liquor in spirit room—12 lashes with cats
Stealing poultry from the coop—12 lashes with cats
Doubling the grog tub—6 lashes with cats
Misbehavior at school—6 lashes with boys’ cats
Letting a bucket fall from aloft—12 lashes with boys’ cats
Cursing the corporal—8 lashes
Slow motion in getting into his boat—6 lashes
Being lousy—6 lashes with cats
Selling coffee—5 lashes with cats
Spitting on berth deck—6 lashes with colt
Dirty and unwashed clothes—12 lashes with cats
Stealing wig of Major Ringold—12 lashes with cats
Pumping ship on berth deck—12 lashes with cats
Spitting on a man—12 lashes with cats
Being naked on spar deck—9 lashes with cats
Telling master-at-arms to go to hell—6 lashes with colt
Those reports also included several punishments inflicted pursuant to sentences of general courts-martial, as follows:
For drunkenness and mutinous conduct—100 lashes (1)
For mutinous conduct and disrespect to superior officers—80 lashes (2)
For desertion—50 lashes (3)
(1) Mitigated to 50 lashes with cats.
(2) Mitigated to 40 lashes with cats.
(3) Mitigated to 25 lashes with cats.
Hidden Proviso Kills the Cat
There was by 1850 a more widespread feeling of opposition in the public mind to the practice of flogging in the Navy, and that, together with such reports on flogging as were submitted by the Secretary of the Navy, caused the Congress to take a most drastic step. When the naval appropriation bill for the fiscal year ending June 30, 1851, was under consideration, an all important 27-word proviso, or rider, was added thereto. It amended Articles 3, 20, 30, and 41 of the Articles for the Government of the Navy relating to the use of the cat-of-nine-tails in the then effective Act of April 23, 1800. The section to which the proviso was attached related to the number of times advertisements for proposals for provisions and materials for the Navy were to be published. The Act of March 3, 1843, which had directed that the Secretary of the Navy shall advertise therefore “once a week for at least four weeks,” was amended by the new section to read:
Sec. 1. . . . And that hereafter such advertisements shall be made for a period of not less than five days:
Provided, That flogging in the navy, and on board vessels of commerce, be, and the same is hereby, abolished from and after the passage of this act.
And that naval appropriation bill, with the above proviso, was approved in the Act of September 28, 1850.
Little wonder that all important proviso, which not only amended four Articles for the Government of the Navy but affected the merchant marine as well, has been lost sight of by many: it is somewhat hidden. For example: Naval Courts and Boards, editions of 1917 and 1923, each contains a section on the history of the Articles for the Government of the Navy, but neither includes the Act of September 28, 1850, which amended four Articles. Naval Digest, 1916, states: “Flogging was abolished by the Act of September 28, 1860.”
Some authors have stated that flogging was “abolished forever in 1852,” or “continued until 1862.” A well-known legal dictionary states it was 1872.
When Congress, in 1850, abolished flogging, the disciplinary machinery was left in a rather chaotic condition. Nothing to take the place of the cat was provided until five years later, when the summary court-martial was established by Congress in the Act approved March 2, 1855.
But it was the Act of September 28, 1850, which abolished flogging in the Navy; the later Acts of Congress merely repeated the prohibition of its use.
Views of Some Early Writers
Very little has been written upon the subject of flogging in the United States Navy. The opposite is true with respect to the British Navy and Army. One of the earliest American writers on matters of naval discipline, if indeed not the first, was Brigadier General Isaac Maltby, a militia officer of Massachusetts, whose Treatise on Courts Martial and Military Law, published in Boston, 1813, briefly discussed both execution and flogging in the American Navy:
In carrying into effect an order for execution of a criminal ... it is usual to direct a certain number of men, in boats, from each ship which may then be in the harbour, with a lieutenant in each boat, to assist and witness the execution. At a signal (which in the British service, is firing a gun and hoisting a yellow flag) all the crews are ordered to witness the scene. All things being prepared for the execution, a gun is fired, and the unfortunate sufferer is run up to the yard arm, where he hangs, in full view of the fleet, till he is dead.
When the punishment of whipping is inflicted, the criminal is frequently carried along side the several ships, and receives a part of the punishment in presence of the crew of each ship, that the example may have the effect designed by the law and the punishment.
The latter punishment was known in the British naval service, as well as our own, as “Flogging ’round the fleet.” The origin of such a mode of torture is said to have been “the ancient practice of the sea,” a kind of unwritten law which supplied the place of express statutes. The statement of General Maltby on flogging, however, relates only to sentences of more than 12 lashes by general courts-martial.
Surgeon Edward Cutbush, an earlier author, who served in the American Navy from 1799 to 1829, in his masterly treatise, Observations on the Means of Preserving the Health of Soldiers and Sailors, etc., published in Philadelphia in 1808, went to greater length upon the subject of punishment.
Though I confess myself an advocate for strict discipline, I by no means think that corporal punishment is correct for trifling crimes, unless the delinquent be incorrigible by other means; but whatever the penalty be that is attached to certain crimes, that penalty ought to be absolutely and justly inflicted; and the necessity for it will most assuredly be less frequent.
Good treatment and indulgence to seamen cannot be too strongly inculcated. If they commit faults for which punishment is necessary it ought to be exemplary; an officer should never condescend to the duty of a boatswain’s mate.
In discussing the duties of an Army surgeon in connection with the infliction of corporal punishment in that service he wrote:
It is his duty to watch with attention and give his opinion to the provost martial, whether the sentence of the court can be altogether executed or not, without endangering the life of the individual.
He also contrasted corporal punishment in the Navy with that of the Army:
Fortunately chastisement is not generally so severe in our service. I have never witnessed this disagreeable part of a surgeon’s duty, but have had two under my care which proved to be troublesome cases.
I do not approve of those sentences which inflict from 500 to 1,000 lashes, although it be inflicted at different periods; for, before the back is well from the first chastisement, the second is inflicted, and so on, until the sentence is complied with; by this means, the public lose the services of the man for two or three months; besides the expense and trouble of attending to a person thus cut, the cruelty to the giving of 1,000 lashes is shocking to humanity. It would be better far to sentence a man to suffer death.
Several small books also have been published by individuals in this country but they merely related their own personal experiences in the Navy years ago, rather than cover the broad subject of flogging as a whole.
A description of flogging in the British Navy was written some years ago by John Masefield, in his Sea Life in Nelson’s Time. But Charles Nordhoff, who enlisted in the American Navy in 1844 and made an around- the-world cruise in a ship of the line, Columbus, under Commodore James Biddle, in his Man-of-War Life; A Boy’s Experience in the United States Navy, published in 1856, paints a most intimate and circumstantial word-portrait of flogging on board. A condensation of it follows.
Words Paint a Flogging Scene
The first Sunday at sea the brig was unmoored, that is, the prisoners were punished and set at liberty. Coming up the main hatchway after quarters, I noticed a heavy grating lashed down to two eye-bolts at the weather gangway, and two light lines hanging down over the hammock rail above. Looking aft, I saw the marines, under arms, on the lee side of the quarterdeck and officers coming on deck with their sidearms on. Walking forward to inquire what all this preparation meant, I noticed an unusual stillness; all laughing and singing hushed, and even talking going on in subdued tones. But here comes the boatswain. His pipe shrieks aloud and he calls out: “All hands witness punishment, ahoy!”
The dread reality burst upon my mind. They were going to flog the poor fellows confined in the brig. Going down on the main deck, I found the master-at-arms taking off their irons, after which he marched them, under convoy of a sentry, up to the gangway. Meantime the officers gathered on the quarterdeck, swords in hand. The marines stood to their arms, and the boatswain was engaged in driving the men on deck, as no one was allowed to absent himself from the barbarous display. Everybody being on deck, the captain descends from the poop and walks slowly to the gangway, where the master-at-arms hands him a list of the prisoners. The doctor stands behind the captain, to notify him when, in his opinion, the body that is being flogged threatens to succumb under the brutal infliction.
“Thomas Brown,” calls the captain gruffly.
The man steps forward in silence.
“You were drunk. Master-at-arms, strip him.”
He is walked forward, onto the grating, to which his feet are securely tied; his wrists being fastened in like manner to the hammock-rail above his head. A few minutes of dread silence now intervene, during which the chief boatswain’s mate is seen nervously running his fingers through the cats.
“Boatswain’s mate, do your duty. Twelve.”
He advances, and poised on his right foot, swinging the cats over his back, takes deliberate aim at the human back spread before him. Whang, sounds the cat. “One,” solemnly announces the master-at-arms. The victim does not move. Whang. “Two.” Now the flesh on his back quivers and creeps; the injured muscles contract, and the stripes assume a bright red tinge. Whang. “Three.” The stripes turn a dark purple, and the grating shakes convulsively with the reluctant start wrung from the strong man in agony. Whang. “Four.” Blood! Oh, God.
I could look no more and turned from the sickening scene. But still the dull whacks resound in my ears, followed toward the last by a low moan until the count of “Twelve” was reached, when the boatswain’s mate stopped and the poor fellow taken down and his shirt flung over his bleeding back.
Then another victim was called. About twenty were flogged that morning.
And so it was that the cats which lawfully flourished for 75 years on the decks of American naval vessels were killed by a 2 7-word proviso in a naval appropriation bill one hundred years ago, and they have been dead ever since.