generation. For eight or nine years in grades below the high school, little has been done effectually to teach them better than this. . . . The remedy for so great a wrong cannot but be great. No remedy easily compassed could be safe. The right means will be slow and arduous taxing the mettle of Americans.1

Topic 3. Sailor or Soldier

737. THE AGINCOURT

HIGH COURT OF ADMIRALTY. 1824

2 Hagg. 271

THIS was a proceeding instituted against the captain of an East Indiaman, in the private trade, for several acts of oppression and cruelty on the return voyage from Madras to England. The ship was of the burden of 440 tons, and had on board a crew of thirty-three men, and eighteen passengers. The cause was argued by Lushington and Haggard on behalf of the mariner; and by Phillimore for the captain. Judgment.

LORD STOWELL. This is a complaint brought by John Thompson a man of color, against James Mahon, captain of The Agincourt, a ship in the East India private trade, for ill-treatment committed in three different acts on the voyage to England.

The plaintiff was shipped on the 11th of April, 1823, at Madras. He asserts in his libel that he was hired as cuddy cook (that is, cook for the captain and passengers, who messed in an apartment denominated the cuddy), but that in the course of the voyage he was turned out of his employment as cook, and forced to serve as a mariner before the mast.

. . The other complaints are of acts of violence and cruelty, the principal of which happened on the 28th of July, 1823, when the captain is charged with various assaults, by striking and kicking this man, and finally with causing to be inflicted on him a public flagellation. Another act of violence, which is charged to have occurred prior to the 28th of that month, will be more particularly described and observed upon hereafter. It has hardly been disputed, that in a case of gross misbe1 [PROBLEMS:

The plaintiff boy was the son of a member of a peculiar religious sect which lived in common under the control of a patriarch, the defendant. At the father's request, the defendant chastised the plaintiff. Afterwards, dissensions arising, the plaintiff sues for the battery. Is the defendant liable? (1898, Donnelley v. Terr., 5 Ariz. 291, 52 Pac. 368.)

In the defendant's public school, the boys repeatedly uttered disorderly coughs. The defendant notified them to desist. Then the plaintiff boy coughed, and the defendant beat him. The plaintiff stated that he coughed involuntarily, being ill. The trial Court instructed the jury that the defendant was excused if he reasonably believed that the plaintiff's act was an intentional defiance of authority. Was this correct? (1886, Heritage v. Dodge, 64 N. H. 291.)

NOTES:

"Civil liability for excessive chastisement of child." (M. L. R., II, 152.)]

havior, the master of a merchant ship has a right to inflict corporal punishment upon the delinquent mariner; that right must be supported by the law of England, which is the proper authority for fixing the limits within which one subject of this realm has a right to inflict corporal suffering upon another. Upon that ground, I dismiss all reference to the authorities of the foreign maritime law, and I regret that so little upon this subject is to be found in our own. No statutable regulations exist upon this subject. The statute relating to merchant seamen is silent upon it; the only authorities are supplied by the decisions of the courts of law, acting upon considerations of necessity and just discretion; and upon such grounds I think the following rules may be considered as sufficiently established.

In the first place, that the punishment must be applied with due moderation. It is asserted in some well-considered books, that the law gives the same authority to the captain of a merchant ship to chastise his mariners for misbehavior, as a master possesses over his apprentices; meaning, that it is inherent in him, upon the same grounds of necessity and sound discretion in the one case as in the other, not certainly to be used exactly in the way of an equal measure of punishment, because the apprentice is generally a youth of comparatively tender years, and whose acts of misbehavior can hardly produce the same destructive consequences as may attend the negligence of the mariner an experienced person, of confirmed strength, capable of sustaining a severer infliction than could properly be applied to a stripling; and whose acts, even of negligence, may draw after them consequences fatal to all the lives and all the property on board a vessel. It is hardly necessary to add, as a corollary, that in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment; and, therefore, that the party charged should have the benefit of that rule of universal justice, of being heard in his own defence. A punishment inflicted without the allowance of such benefit is in itself a gross violation of justice. There are cases, undoubtedly, which neither require nor admit of such a deliberate procedure. Such are cases where the criminal facts expose themselves to general notoriety by the public manner in which they are committed, or where the necessity occurs of immediately opposing attempted acts of violence by a prompt reaction of lawful force, as in the disorders of a commencing mutiny; these are cases that speak for themselves, and are of unavoidable dispensation.

It may be matter of prudence, but it is not matter of strict obligation, in vessels of this kind (though I understand it to be so in the ships of the East India Company), that the captain should communicate with other officers of the vessel. Nor do I find that any particular mode or instrument of punishment has received a particular recognition; that must be left to the common usage practised in such cases, and to the humane discretion of the person who has the right of commanding its application.

The defence opposed to a charge of cruelty, such as is alleged to have been practised on the 28th of July, may consist in a total disproval that any such cruelty was practised, or may be a justification of it by proofs of the misconduct that provoked it; and that misconduct may be confined to an offence immediately preceding, or may likewise include similar offences antecedently committed; and which, upon the recurrence of them in the particular case, will justify the punishment as a preventive measure, to guard in future against the inconveniences that may reasonably be expected to attend a repetition. The first mode of defence is, I think, not attempted in this case; it is not denied that acts of violence were used; the defence is that of justification partly on account of an offence recently committed, and partly from similar ones of a preceding date, indicating bad habits, which could alone be repressed by punishment. This mode of defence has led to a voluminous mass of evidence, reaching almost unavoidably into the prior history of both parties, of their habits, of their dispositions and conduct, much of which might have been spared without detriment to the real merits of the question, which alone is the proper subject of determination. I think it may be added, that the last mode of justification, by a reference to bygone acts, is the last which the court would be inclined to favor. If unpunished at the time they took place, time has thrown a species of condonation over them, as well as a degree of obscurity and indistinctness in the evidence of the manner and circumstances under which they took place.

. . . The justification commences with a charge, that Thompson had immediately before beaten severely William Burgess, who acted as cook's mate under him. That Burgess struck the first blow is proved without any contradiction on the part of the captain, for no contradiction is attempted. In consequence of this defeat, Burgess runs away to the captain, exhibiting the disorderly marks which he had himself provoked, and charges his principal Thompson. The captain sends immediately for this man, and without hearing a word said in explanation or defence of his conduct, for it is so specifically pleaded in the libel, and is not denied in the responsive allegation, treats him with brutal violence, by kicking him, collaring, and striking him about the head and using the most provoking and insulting expressions. . . . At a later hour of the same day, without consultation with any officer, without, so far as appears, any declaration whatever to the crew of the offence for which the party was to suffer, he has him exhibited as an object of a public and disgraceful punishment, and performs the office, which does not often fall to the lot of a captain, of executioner himself, in some degree, as he assists in tying him up, and in manufacturing the instrument employed. . . . Now, Now, upon looking back upon the whole course of this transaction, I am under the necessity of saying, that it has, to my apprehension, much more the features of intemperate and unjust passion, than of reasonable and due correction. It is perfectly

clear that the captain himself was totally unacquainted with the real origin of the transaction, except from the single information which he received from the complainant. He makes no inquiry as to the occasion of the treatment complained of. . . I omit many other matters which tend to establish the violence of this man's conduct, and shall not enter further into a description of the civil war, bella plusquam civilia, which seems to have disturbed the peace of this vessel during the continuance of this voyage. No person can have read these depositions, I think, without retiring under a conviction that this captain had not, either from natural violence of temper, or coarseness of manners, or extravagant notions of his own authority and duty, practised such behavior as in any degree tended to conciliate the kindness and respect of others, or to entitle him to more favorable representations from others than they have given. It is upon this view of the case that I must pronounce in favor of the mariner's complaint. . . .

In giving this judgment, I mean to give an admonition to this person, and it may be useful to others that passion is not to be indulged in the infliction of punishment; and that he who has to command others is not fully prepared for the duties of that station, unless he in some degree command himself. I shall allow the sum of one hundred pounds, together with costs; and I add the expression of a hope, that cases of the like nature, if they should occur, will be confined within narrower and more prudential limits than have been applied to the present case.

738. WILKES v. DINSMAN

SUPREME COURT OF THE UNITED STATES. 1849.

7 How. 88

[Printed post, as No. 1138, Point 1 of the opinion.]

p.

739. JAMES KENT. Commentaries on American Law. (1826. Vol. III, 182, 13th ed., Holmes and Barnes.) With respect to the behavior of the master and seamen, and the discipline on board merchant ships, it is held that the master is personally responsible in damages for any injury or loss to the ship or cargo by reason of his negligence or misconduct. Being responsible over to others for his conduct as master, the law, as well on that account as from the necessity of the case, has intrusted him with great authority over the mariners on board. Such authority is requisite to the safe navigation of the ship, and the preservation of good order and discipline. He may imprison, and also inflict reasonable corporal punishment upon a seaman, for disobedience to reasonable commands, or for disorderly, riotous, or insolent conduct; and his authority, in that respect, is analogous to that of a master on land over his apprentice or scholar. The books unite in the lawfulness and necessity of the power. Without it, authority could not be maintained nor navigation made safe. Subordination is essential to be strictly enforced among a class of men whose manners and habits partake of the attributes of the element on which they are

employed. Disobedience to lawful commands is a more noxious offence, and the most dangerous in its nature, for it goes at once to the utter annihilation of all authority. But care must be taken that the punishment be administered with due moderation. The law watches the exercise of discretionary power with a jealous eye. . . . The act of Congress, 3d March, 1835, c. 40, sec. 3, makes it an indictable offence, punishable by fine and imprisonment, for the master or other officer of any American vessel, on the high seas or other waters, within the admiralty and maritime jurisdiction of the United States, from malice, hatred, or revenge, and without justifiable cause, to beat, wound, or imprison any of the crew, or withhold from them suitable food and nourishment, or inflict upon them any cruel and unusual punishment.

740. HERMAN MELVILLE. White-Jacket, or The World in a Man-of-War. (1850. ch. XXXIII.) A Flogging. If you begin the day with a laugh, you may, nevertheless, end it with a sob and a sigh. Among the many who were exceedingly diverted with the scene between the Down Easter and the Lieutenant, none laughed more heartily than John, Peter, Mark, and Antone, — four sailors of the starboard-watch. The same evening these four found themselves prisoners in the "brig," with a sentry standing over them. They were charged with violating a well-known law of the ship — having been engaged in one of those tangled, general fights sometimes occurring among sailors. They had nothing to anticipate but a flogging, even at the captain's pleasure.

Towards evening of the next day, they were startled by the dread summons of the boatswain and his mates at the principal hatchway a summons that ever sends a shudder through every manly heart in a frigate: "All hands witness punishment, ahoy!"

The hoarseness of the cry, its unrelenting prolongation, its being caught up at different points, and sent through the lowermost depths of the ship; all this produces a most dismal effect upon every heart not calloused by long habituation to it. However much you may desire to absent yourself from the scene that ensues, yet behold it you must; or, at least, stand near it you must; for the regulations enjoin the attendance of the entire ship's company, from the corpulent Captain himself to the smallest boy who strikes the bell. "All hands witness punishment, ahoy!"

. . . All the officers - midshipmen included — stood together in a group on the starboard side of the mainmast; the First Lieutenant in advance, and the surgeon, whose special duty it is to be present at such times, standing close by his side. Presently the Captain came forward from his cabin, and stood in the centre of this solemn group, with a small paper in his hand. That paper was the daily report of offences, regularly laid upon his table every morning or evening, like the day's journal placed by a bachelor's napkin at breakfast. "Master-at-arms, bring up the prisoners," he said.

A few moments elapsed, during which the Captain, now clothed in his most dreadful attributes, fixed his eyes severely upon the crew, when suddenly a lane formed through the crowd of seamen, and the prisoners advanced — the masterat-arms, rattan in hand, on one side, and an armed marine on the other — and took up their stations at the mast.

"You John, you Peter, you Mark, you Antone," said the Captain, were yesterday found fighting on the gun-deck. Have you anything to say?" Mark and Antone, two steady middle-aged men, whom I had often admired for their sobriety, replied that they did not strike the first blow; that they had submitted