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piracy, to be found in favor of commissioned privateers, manned by citizens of the United States, under a foreign commission, in the act of 1790, or in the law of nations, y so far as concerns acts done by them lucri causa. Z But to convict such, or any other persons, it must be proved not only that they participated in the taking of property not liable to capture, but that they did it feloniously. a

V. INTENT.

§ 2834. Intent must be felonious. — An attack by an armed merchantman upon an American vessel, with intent to cripple or destroy her upon a mistaken idea that she was a pirate, made with no piratical purpose, is not a piratical aggression under the act of 1819, nor is it a case of hostile aggression for which the property taken in delicto is subject to confiscation by the law of nations. b If the act be done under an honest but mistaken sense of duty, it is not piracy.c

VI. BELLIGERENTS. 2835. According to the views already expressed, an armed vessel cannot be treated as a pirate when acting under a commission from a state acknowledged as a belligerent by the prosecuting state;d and this applies to armed vessels of insurgents, when such insurgents are recognized as belligerents by the party prosecuting, whether such party prosecuting be a foreign state, e or the state against whom they are in insurrection. f

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§ 2836. The venue is sufficiently laid in the indictment as on the high seas, within the admiralty and maritime jurisdic

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y U. S. v. Furlong, 5 Wheat. 184; statement as to the laws of nations is U. S. v. Jones, 3 Wash. C. C. 209. erroneous. See ante, $ 2830. This is under the act of 1790, which a U. S. v. Jones, 3 Wash. C. C. makes a commission as privateer from 209; U. S. v. Baker, 5 Blatch. 6. a foreign state no defence to an in- 6 Marianna Flora, 11 Wheaton, 38. dictment for piracy, in our courts, c U. S. v. Ruggles, 5 Mason, 192. against a citizen of the United States. d Ante, $ 2833. U. S. v. Baker, 5 Blatch. C. C. 6; U. e R. v. Tivnan, 5 Best & S. 645 ; S. v. Bass, 4 City Hall Rec. 161; U. cited at large in Wharton Con. of L. S. v. Greathouse, 2 Abbott C. C. 364; $956. and cases cited ante, $ 2728.

f See this position with its qualifi- Unless with this qualification the cations illustrated, ante, $ 2728.

tion of the United States, and out of the jurisdiction of any particular state.”g

§ 2837. Joinder of counts. Where one count charges the prisoner with piracy in piratically running away with his ship’s cargo, and the other with larceny of the same cargo, and the verdict is, guilty of the last count only, judgment will not be arrested. h

$ 2838. Nationality of defendant. — In an indictment for a piratical murder (under the act of the 30th April, 1790, c. 36, sect. 8), it is not necessary that it should allege the prisoner to be a citizen of the United States, nor that the crime was committed on board a vessel belonging to citizens of the United States; but it is sufficient to charge it as committed from on board such a vessel, by a mariner sailing on board such a vessel. i

$ 2839. Description of mode. — An indictment for manslaughter on the high seas, charging that the prisoner committed it, first, by casting A. B. from a vessel, &c., whose name was unknown, and second, by casting him from the long-boat of the ship W. B., &c., is sufficiently certain. j

$ 2840. Technical averments. — The character of the technical averments in piracy has been already considered. k

g U. S. v. Gibert, 2 Sumner, 19; i U. S. v. Furlong, 5 Wheat. 184 ; U. S. v. Jones, ut supra.

Curtis on Merchant Seamen, 120. h U. S. v. Peterson, 1 Woodbury & U. S. v. Holmes, 1 Wallace, Jr. 1. Minot, 306; U. S. v. Stetson, 3 Ibid. See ante, $ 1028. 166. Ante, $ 414-423.

k Ante, $ 403. 910

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§ 2862. By the word “ crew,” in the act of 3d March, 1835, sect. 3, is meant all the officers and common seamen, except the master; and the offence therein described may be committed upon the first mate. a

II. POWER OF OFFICERS BY MARITIME LAW.

§ 2863. The master has an undoubted authority by general maritime law, apart from statute, to punish corporeally and sųmmarily the negligence or misconduct of his men. 6 Of his own discretion, no mate or subordinate officer has any right to punish a seaman, and if the master tacitly consents thereto, being present, he becomes responsible for it; but in the master's absence, the next highest officer succeeding him is clothed with all his authority.c Every exception to this general principle must, however, be made in favor of those cases where prompt and instantaneous action is demanded of the mate or other officers by the necessities of the case, as to subdue mutinous or flagrant disorders, d though the punishment must always be reasonable, and not with instruments unlawful for the exigency.e Where the necessity actually existed, however, quantum of punishment will not be too nicely measured in the court.

It has been said that a master occupies to his crew a position resembling that of a parent to a child, or a master to an apprentice. f He has a right to respectful demeanor as well as

a U. S. v. Winn, 3 Sumner, 209. c U. S. v. Taylor, 2 Sum. 584.

b Bangs v. Little, Ware, 506; U. d U. S. v. Hunt, 2 Story, 120. S. v. Hunt, 2 Story, 120; Turner's e Carlton v. Davis, Davies, 221. case, Ware, 83.

f U. S. v. Freeman, 4 Mason, 512 ;

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a

obedience ; g but this right would be fruitless, unless he is justified in reasonably enforcing it when virtually denied, by punishment inflicted by himself. h He may chastise corporeally as well as confine, when treated impertinently, or disobeyed. i But he must not punish for mere immorality as a man, if the offender conducted himself properly as a seaman, j nor must he chastise for offences as a seaman in a manner indecent. k And in conformity with the necessity of the case, he may use suitable and needful weapons to compel obedience;l keeping in mind, however, that weapons, and especially deadly weapons, should be used only to prevent future or impending, and not to punish past disobedience. m

$ 2864. For impudent conduct or language, it seems a master may box a mariner's ears, without the punishment being either unusual or oppressive ; and if the latter draws a knife, or arms himself with an axe thereon, he places himself in an unlawful position. He has no right, by the force or even the intimidation which such a course naturally may effect, to resist his arrest either for the original impudence or the use of the weapons, or to make terms for his surrender; and the ship's officers may employ what means they think best to compel him to obedience, and to suppress conduct mutinous, insubordinate, and dangerous to the lawful safety of the vessel or cargo, and may pursue him to the prow (which is traditionally a sailor's sanctuary), or any other part of the ship. If improperly punished, the law affords the sailor an ample remedy on reaching port; and in most cases, in the language of Judge Woodbury, summary corporeal punishment for slight offences is not advisable, in the present age. Wherever convenience allows, a little time for reflection on the one part, and repentance on the other, is recommended. n But to convict the master under this act, two things must be proven : 1, malice (i. e. wilfulness, or a wilful intention to do a wrong act), hatred, or revenge; and 2, want of justifiable cause to inflict the injury.o

Fuller v. Colby, 3 Woodb. & Minot, j Ware, 506.
13; Bangs v. Little, Ware, 506. See k i Story, 101.
ante, $ 349.

1 3 Day's R. 295 ; 1 Pet. Adm. R. 9

U. S. v. Smith 3 Wash. C. C. 118; Bee's Adm. R. 238, 239; I 525; 4 Ibid. 340; 224.

Woodb. & Minot, 305; Ware, 223 ; h U. S. v. Freeman, 4 Mason, 511 ; Curtis on Adm. 88, 90. Thorn v. White, 1 Pet. Adm. 171. m 3 Wash. C. C. R. 526 ; 3 W. &

i Michaelson v. Denison, 3 Day, Minot, 15; 1 Pet. Adm. R. 118. 294 ; Thompson v. Busch, 4 Wash. C. n Fuller v. Colby, 3 W. & Minot, C. 340.

15.

III. UNDER ACT OF MARCH 3, 1835. § 2865. The act abolishing the punishment of flogging in the navy, and in vessels of commerce, is not a penal law, and no indictment can be framed upon it. It applies to whaling ships, which are

vessels of commerce ” within the meaning of the act. p. It prohibits corporeal punishment by stripes, inflicted with a cat, and any punishment which in substance and effect amounts thereto. The degree of such punishment is not material: it is the kind of punishment which is alone to be considered. r

§ 2866. It is a question of fact for the jury, whether the punishment inflicted was, in substance and effect, the punishment of flogging. 8

$ 2867. Under an indictment founded on the third section of the act of March 3, 1835, t if the punishment inflicted was flogging, it was without justifiable cause. But it is incumbent on the government to prove, not only that the act was without justifiable cause, but that it was malicious, that it was a wilful departure from a known duty. If the master knew that his act was illegal, it was malicious, in the sense of the act of 1835. u

Under the act of 1850, the officer should be indicted, not for cruel or unusual punishment, but for beating or wounding the seaman. V

o U. S. v. Taylor, 2 Sum. 584. p U. S. v. Cutler, 1 Curtis, 502.

9 Ibid.

s Ibid.

4 Stat. at Large, 776. u U. S. v. Cutler, 1 Curtis, 502. v U. S. v. Collins, 2 Curt. 194.

913

p U. S. v. Cutler, 1 Curtis, 502.

58

VOL. II.

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