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cessity for it is over, supposing the case to be necessary, is a new and indictable imprisonment under the statute. 1 ment about the ship, by force or in- “If the master is about to do an timidation, as by limiting him to walk- illegal act, and especially a felony, a ing on a particular part of the deck, seaman may lawfully confine or reby terror of bodily injury, or by pres- strain him. So a seaman may confine ent force. If he is surrounded and the master in justifiable self-defence. prevented from moving where he If the master assault him without pleases, according to his rights and cause, he may restrain the master so duties as a master, under the threats long and with so much force as are of force, or if he is restrained from necessary for this purpose. And if going to any part of the ship by an he is suddenly seized by the master, avowed determination of the crew, or and without any intention of restrainany part of them, to resist him and to ing him of his liberty, from the mere employ adequate force to prevent it, impulse of nature he seizes hold of these fall within the meaning of con- the master to prevent any injury, for finement. So, too, if the master is an instant only, and as soon as he prevented from performing the duties may he withdraws the restraint, so of his station by such mutinous con- that the act may fairly be deemed induct of his crew, as would reasonably voluntary, it might not perhaps be intimidate a firm man, it is confine- deemed an offence within the act, ment; and if he is compelled to go even though the seizing by the masarmed about the ship from a reasona- ter be strictly justifiable ; for the will ble fear for his own safety, although must coöperate with the deed. But if not actually molested, it is a confine- the seizing by the master be justifiament. So, too, seizing the person of ble, and he does not exceed the chasthe master, though but for a minute or tisement which he is by law entitled two; and seizing him, though only to inflict, then the seaman cannot retemporarily and for the purpose of in- strain him, but is bound to submit; flicting upon him personal chastise- and if he does hold the master in perment, are within the meaning of the sonal confinement or restraint, it is an
But the restraint, whether moral offence within the statute." or physical, must be an illegal re- 1 See 1 Wh. Dig. 5th ed. 578. straint.
FORCING ON SHORE, OR DESERTING IN A FOREIGN PLACE A
SUBORDINATE BY THE MASTER.
§ 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 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
a Story, J., in U. S. v. Coffin, 1 b Ibid. 396. Sum. 394.
§ 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. i 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.
f Smith v. Treat, Davies, 266.
9 Buck v. Lane, 12 Serg. & Rawle, 266.
h U. S. v. Netcher, 1 Story, 307. i Coffin v. Jenkins, 3 Story, 108.
probable cause” must always qualify and interpret the master's conduct.
§ 2879. It has been said that a leaving behind, or refusing to bring home, or forcing ashore a slave owned in this country, would be within the compass of this act. ;
j Emerson v. Howland, 1 Mason, 43. 922
ENGAGING IN THE SLAVE-TRADE.
§ 2884. UNDER the act of 1820, it has been held that a person having no interest or power over the negroes, so as to impress upon them the future character of slaves, and only employed in the transportation of them for hire, from port to port, is not guilty. 6
§ 2885. Upon an indictment under the act of April, 1818, against the owner of a slave-ship, the declarations of the master, being a part of the res gestæ connected with acts in furtherance of the voyage, and within the scope of his authority, as agent of the owner, in the conduct of the guilty enterprise, are admissible in evidence against the owner. c
$ 2886. Upon an indictment against the owner, charging him with fitting out the ship, with intent to employ her in the illegal voyage, evidence is admissible that he commanded, authorized, and superintended the fitment, through the instrumentality of his agents, without being personally present. d In such an indictment, it is not necessary to specify the particulars of the fitting out ; it is sufficient to allege the offence in the words of the statute. e Nor is it necessary that there should be any principal offender whom the defendant might be aiding and abetting. These terms in the statute do not refer to the relation of principal and accessary in cases of felony ; both the actor and he who aids and abets the act are considered as principals. f It is necessary that the indictment should aver that the vessel was built, fitted out, &c., or caused to sail, or be sent away, within the jurisdiction of the United States. g An averment that the ship was fitted out, &c., “ with intent that the said vessel should be employed ” in the slave-trade, is fatally defec6 U. S. v. Battiste, 2 Sumner, 240.
e Ibid. c U. S. v. Gooding, 12 Wheaton,
f Ibid. 460. d Ibid.