on the deck, and afterwards present a pistol at his breast in the cabin, thereby preventing his going on deck, is a confinement under the act. d Such confinement is not limited merely to a seizure of the master, and preventing the moving of his body, or to locking him up in a particular place, as a cabin or state-room, but extends to all restraints of personal liberty in freely going about the ship, by present force, or threats of bodily injury. e The offence, if committed within the mouth of a foreign river which is a mile and a half wide, is within the act of congress. ƒ If the master of a vessel is restrained from performing his duties by such mutinous conduct in his crew, as would reasonably intimidate a firm man, this is a confinement within the meaning of the act of congress.g The circumstance that the master went armed to every part of the ship, if it was necessary for his safety that he should protect himself, will not vary the case. h § 2873. A master of a vessel may so conduct himself as to justify the officers and crew in placing restraints upon him, to prevent his committing acts which might endanger the lives of all the persons on board; but an excuse of this kind must be listened to with great caution, and such measures should cease whenever the occasion for them ceases. i Seizing the person of the master, although the restraint is but momentary, is a confinement prohibited by law; and such conduct is not excused or justified by a previous battery on the seamen, to enforce a command which the seamen ought to have performed. j To constitute a confinement of the master within the purview of the same act, it is sufficient that there is a personal seizure or restraint of the master, although it may be for the purpose of inflicting personal chastisement. k To continue his confinement after the ne d U. S. v. Stevens, 4 Wash. C. C. R. 548. e U. S. v. Hemmer, 4 Mason, 105. f U. S. v. Smith et al. 3 Wash. C. C. R. 78. j U. S. v. Bladen, 1 Pet. C. C. R. 213; U. S. v. Savage, 5 Mason, 460. k Ibid. "The offence of confining the master," says Mr. Curtis (Rights and Duties of Merchant Seamen, 124), g U. S. v. Bladen, 1 Peters C. C. "is not limited to mere personal re R. 213. h Ibid. i U. S. v. Hemmer, 4 Mason, 105. Ante, § 2870 a. straint by seizing him and preventing the free movements of his body, nor to imprisonment in any specific place. It is equally a confinement within the act, to prevent him from free move cessity for it is over, supposing the case to be necessary, is a new and indictable imprisonment under the statute. ment about the ship, by force or intimidation, as by limiting him to walking on a particular part of the deck, by terror of bodily injury, or by present force. If he is surrounded and prevented from moving where he pleases, according to his rights and duties as a master, under the threats of force, or if he is restrained from going to any part of the ship by an avowed determination of the crew, or any part of them, to resist him and to employ adequate force to prevent it, these fall within the meaning of confinement. So, too, if the master is prevented from performing the duties of his station by such mutinous conduct of his crew, as would reasonably intimidate a firm man, it is confinement; and if he is compelled to go armed about the ship from a reasonable fear for his own safety, although not actually molested, it is a confineSo, too, seizing the person of the master, though but for a minute or two; and seizing him, though only temporarily and for the purpose of inflicting upon him personal chastisement, are within the meaning of the act. But the restraint, whether moral or physical, must be an illegal restraint. ment. "If the master is about to do an illegal act, and especially a felony, a seaman may lawfully confine or restrain him. So a seaman may confine the master in justifiable self-defence. If the master assault him without cause, he may restrain the master so long and with so much force as are necessary for this purpose. And if he is suddenly seized by the master, and without any intention of restraining him of his liberty, from the mere impulse of nature he seizes hold of the master to prevent any injury, for an instant only, and as soon as he may he withdraws the restraint, so that the act may fairly be deemed involuntary, it might not perhaps be deemed an offence within the act, even though the seizing by the master be strictly justifiable; for the will must coöperate with the deed. But if the seizing by the master be justifiable, and he does not exceed the chastisement which he is by law entitled to inflict, then the seaman cannot restrain him, but is bound to submit; and if he does hold the master in personal confinement or restraint, it is an offence within the statute." I See 1 Wh. Dig. 5th ed. 578. 919 CHAPTER IV. FORCING ON SHORE, OR DESERTING IN A FOREIGN PLACE A SUBORDINATE BY THE MASTER. I. NATURE OF OFFENCE, § 2874. II. JUSTIFIABLE CAUSE AS A DE- I. NATURE OF OFFENCE. § 2874. THIS is a crime which, though strictly speaking not an offence upon the high seas, partakes so much of the nature of such, being virtually a maltreatment of the crew out of the jurisdiction of any state of this Union, and cognizable in the same courts that have jurisdiction over the present class of offences, that it may not be out of place to consider it here. It will be seen that the statute does not leave it to judicial construction to include any inferior officer within its scope, but specially provides for such a contingency; and it has been held that it applies equally to officers or seamen in American ships, who are or are not citizens, or who are foreigners, provided they are not subjects of a state which by treaty prohibits the employment in its vessels, public or private, of white citizens of the United States. a The act refers to such persons as the master "carried out" with him, and the "home" is the home port of the ship for the voyage. II. JUSTIFIABLE CAUSE AS A DEFENCE. § 2875. Not every sufficient cause to discharge a seaman in a foreign port, is a "justifiable cause" in the sense of this act. b It must be such a cause as renders the forcing him on shore necessary to prevent the jeopardizing the safety of the officers or crew, or the due performance of the voyage, or the regular enforcement of the ship's discipline; and the onus probandi is on the master to prove such a cause. If a seaman, on being injured by a flogging and incapacitated to do duty, refuses to do a Story, J., in U. S. v. Coffin, 1 b Ibid. 396. Sum. 394. any more work, this is not a justifiable cause; if, on the contrary, he is able, and his refusal is from obstinacy and malice in order to revenge himself, and to destroy the ship's discipline and incite others of the crew to disobedience, it is sufficient cause. But the law will presume "malice" on the master's part from the fact, until the contrary is shown," maliciously" meaning all acts wilfully or wantonly done against what any one of reasonable capacity must know to be his duty.c § 2876. If it is alleged, as a justifiable cause, that the man was dangerous, it must be shown that a man of ordinary firmness would have been affected by his conduct. d The policy of the law is against the discharge of seamen even in foreign ports, e unless for legal cause, such as continued misconduct, or some aggravated outbreak or offence; f and it sets its face much more strongly against an enforced and compulsory setting ashore of the man against his will and without his consent. Striking the master would perhaps be a justifiable cause, if unfollowed by contrition and repentance. g § 2877. There are three separate offences under this statute: I. Maliciously and without justifiable cause, forcing an officer or mariner ashore in a foreign port. II. Maliciously and without justifiable cause, leaving any officer or mariner behind in a foreign port. III. Maliciously and without justifiable cause, refusing to bring home again all the officers and mariners of the ship who are in a condition to return and willing so to do. § 2878. The words "in a condition to return and willing to return," apply only to the third class; they are not requisite to make out the offence in the second or first. h But it does not follow that because a seaman is left behind, it is necessarily an offence within this act. An unauthorized absence of the man for forty-eight hours has been declared by our statutes to amount to desertion, and judicial construction has applied the rule to cases where his returning within that time was prevented by the sailing of the ship. The words "maliciously and without c U. S. v. Coffin, 1 Sum. 399, and see cases there cited; U. S. v. Lunt, 14 Law Reporter, 683. d The Nimrod, Ware, 9. e Hutchinson v. Coombs, Ware, 65. f Smith v. Treat, Davies, 266. Buck v. Lane, 12 Serg. & Rawle, g 266. h U. S. v. Netcher, 1 Story, 307. i Coffin v. Jenkins, 3 Story, 108. |