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 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 66 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. q 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. s § 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. r U. S. v. Cutler, 1 Curtis, 502. VOL. II. - 58 s Ibid. t 4 Stat. at Large, 776. u U. S. v. Cutler, 1 Curtis, 502. v U. S. v. Collins, 2 Curt. 194. 913 CHAPTER III. REVOLT AND ENDEAVOR TO MAKE A REVOLT. a I. IN WHAT REVOLT CONSISTS, § II. INDICTMENT, § 2871. 2868. I. IN WHAT REVOLT CONSISTS. § 2868. THE Crimes' Act of 1790, c. 36, sect. 12, not defining the offence of endeavoring to make a revolt, the courts took an early opportunity to give a judicial definition of it, b and this definition was subsequently adopted by the act of 1835. c The offence, it is said by the supreme court, consists in the endeavor of a crew of a vessel, or any one or more of them, to overthrow the legitimate authority of the commander, with the intent to remove him from his command; or against his will to take possession of the vessel, by assuming the government and navigation of her, or by transferring their obedience from the lawful commander to some other person. d A revolt is a usurpation of the authority and command of the ship, and an overthrow of that of the master or commanding officer. Any conspiracy to accomplish such an object, or to resist a lawful command of the master for such purpose, or any endeavor to stir up others of the crew to such resistance, is an endeavor to commit a revolt, within the meaning of the 12th section of the statute of 1790, c. 9. e § 2869. Where the crew of a vessel by their overt acts entirely overthow the authority of the master in the free management of the ship, and the free exercise of his rights and duties on board, it is a revolt. f a There are various other offences for whose commission on the high seas the law has made special provisions; but they are more properly referred to other heads. Vide the preceding chapters upon Homicide, Rape, Mayhem, Assault, Burglary, Arson, Lar ceny, Receiving Stolen Goods, Embez- d 1 Wheat. 417. Ante, § 2856. A combination by the crew to prevent the vessel going to sea, pursuant to the order of the master, is an attempt to commit a revolt. g "An endeavor to make a revolt," said Judge Story on a trial when sitting as circuit judge, "within the act, is an endeavor to excite the crew to overthrow the lawful authority and command of the master and officers of the ship. It is, in effect, an endeavor to make a mutiny among the crew of the ship." h Mere insolent conduct to the master, disobedience of orders, or violence committed on the person of the master, unaccompanied by other acts, showing an intention to subvert his command as master, is not sufficient. Mere conspiracy of the crew to displace the master, unaccompanied by overt acts, is not sufficient. Neither is concert among the crew to that event essential to constitute the offence. i The offence of revolt, or endeavoring to make a revolt, may be committed in any kind of a vessel. j One who joins in the general conspiracy, and by his presence countenances acts of violence, but who does not individually use force or threats to compel the master to resign the command of the vessel, is guilty of the offence of confining the master.k A master is prevented in the free and lawful execution of his authority, within the meaning of the act of 1835, if he be prevented from carrying into effect any one lawful command; and a command to continue the business of whaling is prima facie lawful. A combination to refuse to pursue such business is not, of itself, the intimidation required to constitute the crime of revolt, but it may be the means of intimidation. Such combination and intimidation may be lawful. If, from the improper conduct of the captain, the crew have good reason to believe, and do believe, that they will be subjected to unlawful and cruel or oppressive treatment, or that a great wrong is about to be inflicted on one of their number, they have a right to take reasonable measures for his or their own protection. What would be reasonable measures must depend upon the nature and extent of the wrong, and upon the means of prevention, having regard to the importance of preserving the authority of the master, as well as to the importance of protecting the crew. 7 § 2870. It is not necessary to prove that the offence was committed on the high seas, m but a confederacy between two or more of the crew to refuse to do their lawful duty must be shown, n under the act of 1835, sect. 2. It had before been held, that no previous deliberate combination for mutual aid and encouragement, or any preconcerted plan of operation was necessary to bring it within the act of 1790, sect. 12. o The interposition of the crew, by force and intimidation, preventing the master's lawful punishment of a seaman, p or a combination not to do duty, though no further orders were given, q were within the act. But this offence is now to be considered and punished only as provided for by the act of March 3d, 1835, r and under it the mere resistance to the master's lawful authority, or assembling with others in a mutinous and tumultuous manner, so as to endanger the police of the vessel, is a crime. Foreign seamen on board American ships are to be treated by our laws as though of our country; and so are American seamen put on board at a foreign port by an American consul; 8 but a whaling vessel, not having surrendered her register, or taken out an enrolment and license, as prescribed by the act of 1793, c. 52, is not "an American ship," within the act of 1835; and therefore its crew are not, under that act, indictable for an endeavor to make a revolt. t To make an endeavor to commit a revolt, under the act of 1790, there must have been some effort or act to stir up others of the crew to disobedience; u in fact to create a virtual mutiny on board; and where a crew had signed their articles with a particular master, who for a reasonable cause was removed, and I U. S. v. Borden, 21 L. Rep. 100. m U. S. v. Hamilton, 1 Mason, 152; U. S. v. Keefe, 3 Ib. 475; U. S. v. Staly 1 Wood. & M. 338. n U. S. v. Cassidy, 2 Sumner, 582. o U. S. v. Morrison, 1 Ibid. 448. p Ibid. r Woodbury, J., in U. S. v. Peterson, 1 W. & M. 309. s Woodbury, J., in U. S. v. Peterson, 1 W. & M. 309; U. S. v. Sharp, 1 Pet. C. C. 118, 121. t U. S. v. Rogers, 3 Sumner, 342. U. S. v. Barker, 5 Mason, 404; U. S. v. Kelly, 11 Wheaton, 417. U. S. v. Gardner, Ibid. 402. v 1 Mason, 147. 916 they combined to resist and refuse all duty under his successor, this was within sect. 12, act of 1790. w 2870 a. It is a sufficient defence, however, to such an indictment, that the endeavor, &c., was to compel the master to return to port on account of the unseaworthiness of the ship, provided the men acted bona fide on reasonable and apparently true grounds; and this whether it be doubtful if the ship is seaworthy or not. If clearly the former, of course the defence fails. x These, said Mr. Justice Story, are the general principles of law, and depend on no particular statute. Nor is the crew's refusal, because of a deviation from the voyage in their shipping articles, to do duty, held to amount to an endeavor to commit a revolt, under the act of 1835. y II. INDICTMENT. § 2871. An indictment under this act, charging that the prisoners "then and there did make a revolt," does not adequately describe the offence; the particulars must be set forth. z It is otherwise, however, when the charge is for " endeavoring to make a revolt," when details need not be given. a III. CONFINING MASTER. § 2872. To constitute the offence of confining the captain, the act of confining must be feloniously done. b Any such confinement, whether by depriving him of the use of his limbs, or by shutting him in the cabin, or by intimidation preventing him from the free use of every part of the vessel, amounts to a confinement of the master within the 12th section of the act of congress of April 2d, 1799, c. 38. c w U. S. v. Haines, 5 Mason, 272. x U. S. v. Ashton, 2 Sumner, 13. Post, § 2873. y U. S. v. Matthews, Ibid. 470. z U. S. v. Almeida (D. C. U. S.), Whart. Pr. 1061-2. a U. S. v. Bladen, 1 P. C. C. R. 213; U. S. v. Smith, 3 W. C. C. R. 526; U. S. v. Kelly, 4 W. C. C. R. 528; U. S. v. Smith, 1 Mason, 147; U. S. v. Hamilton, 1 Mason, 443; U. S. v. Keefe, 3 Mason, 475; U. S. v. Hemmer, 4 Mason, 105; U. S. v. Haines, 5 To take hold of the master Mason, 272; U. S. v. Gardner, 5 Mason, 402; U. S. v. Barker, 5 Mason, 404; U. S. v. Savage, 5 Mason 460; U. S. v. Thompson, 1 Sumn, 168; U. S. v. Morrison, 1 Sumn. 448; U. S. v. Ashton, 2 Sumn. 13; U. S. v. Cassidy, 2 Sumn. 582; U. S. v. Rogers, 3 Sumn. 342; U. S. v. Seagrist, 4 Blatch. 420. b U. S. v. Henry, 4 Wash. C. C. R. 428. c U. S. v. Sharpe et al. 1 Peters C. C. R. 118. |