a greater or less degree of severity in the punishment. The object of granting the authority to the master is to enable him. to maintain his command and to preserve discipline and subordination on board his vessel; and to do this he must have the power to enforce habits of obedience and a respectful demeanor of the crew towards himself.

As the law, in giving the rule, is unavoidably restricted to general and comprehensive terms, allowing a great latitude of discretion in its application to individual cases, it may be worth the while to enter into some detail to show how this subject of maritime police has been viewed by the old sea ordinances and by the text writers on maritime law, to see in what terms the rule itself is announced, and what is the general spirit and tone of the most enlightened jurisprudence with respect to its application in practice. The similarity of occupation and circumstances in life, has produced a great resemblance of manners and habits among seamen in all maritime countries.

It has been remarked that the framers of the ancient marine laws seem studiously to have avoided the mention of this power of the master to inflict punishment on his men! The mariner,' says the Consulate of the Sea, 'ought to be patient towards the master; if he reproaches him with foul language and offers him violence, he should fly to the prow and put himself in the chains, and if the captain follows him, he ought to retreat to the other side, and then if the captain pursues him, to call witnesses of the fact and defend himself; because the captain ought not to pass the chains.'—Consulat de la Mer, 416. In the preceding chapter of this code, it is provided that if a mariner seeks a quarrel with the master, he shall forfeit half his wages and half of the goods that he has on board, and be discharged; that if he lifts his hand against the captain, all the other seamen shall unite to secure and confine him, and shall deliver him to the seignieurie to be punished; and that if he strikes the master he is a perjured traitor, shall be confined and forfeit all that he has.-id. 413, 414, 415. By the laws of Oleron, it is provided that if any mariner give another the lie, he shall forfeit four deniers, and if the master give a mariner the lie, he shall forfeit eight; that if the master strike a mariner he ought to bear the first blow, be it with the fist or open hand, but if the master strike more than one, the mariner may defend himself. If a difference happens be

tween the master and a mariner, he ought to deny him his mess three times before he discharges him from the ship, but if the mariner offers to make satisfaction, the master shall retain him, and if the master refuses, the mariner may follow the ship, and recover full wages to the end of the voyage.-Jugemens D'Oleron, Arts. 12, 13. Under another ancient code, if the master gives the lie to a mariner, he forfeits a pecuniary penalty, but if he strikes, he shall receive blow for blow. He may discharge a mariner for lawful cause, but he is bound to receive him back if he makes compensation for his fault, and if he refuses, he is liable for the full wages of the mariner to the end of his voyage. Laws of Wisbuy, Arts. 24, 25. By the laws of the Hanse Towns, a mariner, who rebels against the master, behaves ill towards him or misconducts himself, is punished by being discharged from the vessel.Arts. 29, 41. Jus. Marit. Hans. Tit. 3, Art, 8. But this punishment, says the commentator, is not to be inflicted for light, but only for aggravated, offences. Kuricke, 709, 10. The law of Denmark, in this particular, corresponds with that of the Hanseatic Towns. Kuricke ubi supra.

One cannot avoid observing how careful all these laws are, in avoiding the direct mention of any legal authority of the captain to correct, by corporal chastisement, the misbehavior of mariners. But though not directly mentioned, it seems either to have been inferred, or to have become silently established, by usage. Casa Regis, as he is quoted by Valin, says that the master has but a moderate authority for discipline over his men, extending but to a slight chastisement for the purpose of correcting their insolence, immorality or licentiousness, such as a parent has over his children, or a master over his servants.

The Ordonnance of Lous XIV has a particular article on this subject. It authorizes the captain, by the advice of the mate and pilot, to punish mutinous, drunken and disobedient seamen, those who maltreat their companions, or commit faults of that description during the voyage, by ducking, of putting them in irons, and by similar punishments. Liv. 2. Tit. 1. Art. 22. The Ordonnance is still in force, except so far as it has been derogated from by special laws, in all that relates to maritime police. Bouly Paty. Cours de Droit Maritime, vol. 1. 375. Over offences of a graver character, the captain has no authority, and

it is his duty to secure the offenders and deliver them over to the laws. Valin, in his commentary on this article, says, 'that the greatest abuse is not in a failure to denounce these higher offences, but it is in the license which captains allow themselves. to maltreat, with or without cause, such of their 'men as have been guilty of what they consider offences. Some have proceeded even to such a degree of brutality as to knock down these poor wretches, who, on their return, most commonly dare not enter a complaint, because it has happened that some, for having done it, have been sent to prison by the commissaries of the marine.' Such abuses, says he, 'will not fail to be multiplied if the power of the tribunals is so little felt as to leave the police of ships to a purely arbitrary discretion.' Valin, vol. 1, p. 448.

Abbott, in his Law of Shipping, 136-7, after stating that the seamen are bound to obey the commands of the captain in all lawful matters, says, that in case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner, his authority in this respect being analogous to that of a parent over his child or a master over his apprentice or scholar. But it behoves the master in the exercise of it to be very careful and not make his parental power the pretext for cruelty and oppression.' After quoting the French Ordonnance which requires the captain to take the advice of his under officers before he proceedes to punish, he adds, that such consent is not required by the laws of England; nevertheless, the master should, except in cases requiring his immediate interposition, take the advice of the persons next below him in authority, as well to prevent the operation of passion in his own breast, as to secure witnesses to the propriety of his conduct. For the master may be called upon by an action at law, on his return to his country, to answer to a mariner who has been beaten or imprisoned by him or by his order in the course of the voyage, and for his justification he should be able to show not only that there was sufficient cause for chastisement, but that the chastisement was in itself reasonable and moderate; otherwise, the mariner may recover damages proportionate to the injury received.' The law, as it is here laid down by Abbott, has been recognised in a variety of decisions by the courts of this country. Note to the last edition of Abbott, p. 137.

VOL. VII.-NO. XIII.

10

I have referred to the ancient maritime ordinances and to authors of established reputation in foreign maritime law, not because they are of binding authority in our courts, but because they serve to illustrate our own law by throwing over it the light of an enlightened. foreign jurisprudence, because the general rules of maritime police on board merchant vessels have a great similarity among all maritime nations, and because the customs and usages of the sea constitute the general substratum of our own maritime police; but more particularly to shew the impression which the common practice of masters, the common habits of maritime persons, the ordinary current of experience of the sea service have made on the minds of those who are most familiar with the spirit of the marine law and most conversant with the habits and usages of masters and seamen. The result is not such as should encourage masters to resort, on trifling or common occasions, to their highest authority, an authority which the law only entrusts to them from necessity, and over the abuses of which it will watch with a prudent jeal

ousy.

But though the law does not encourage the master in hasty and harsh measures, though it enjoins upon him calmness and moderation in his deportment towards seamen, it justifies, in proper cases, moderate correction. The simple and somewhat rude character of seamen, partaking in a measure of the violent and tempestuous nature of the element on which they spend their lives, renders a prompt and energetic government indispensably necessary to good discipline. There is good sense in the remark of one of the latest and most valuable French writers on maritime law on this subject. 'A seaman, says he, will never be a good mariner unless he is governed with rigor. It is impossible to hasten a manœuvre if the command may not be accompanied with coercive means. Here neither gentleness nor politeness are in place, the punishment of the moment is necessary to quicken the caviller and the lazy; if tardy it will not accomplish the work nor ward off the danger.' Cours de Droit Maritime. 1 vol. 374.

When it is apparent that punishment has been merited, I have never been in the habit of attempting to adjust very accurately the balance between the magnitude of the fault and the quantum of punishment. Unless unusual or unlawful instruments

have been used, or there have appeared clear and unequivocal marks of passion on the part of the captain, or the punishment has been manifestly excessive and disproportionate to the fault, I have not thought myself justified in giving damages. But in the present case I can see no evidence of a fault that deserved corporal chastisement. There was something said on deck of the libellant's wetting the captain in the boat. But it was in proof that there was a fresh wind that evening, that the libellant held the weather oar, and all know, that under such circumstances the spray, without any culpable negligence of the oarsman, may sometimes be blown on a person in the stern of the boat. With respect to his turning the blade of his oar aft instead of forward, the reason was given for it by the witness, but even if the reason did not exist, it was not surely a fault that merited such severity of punishment. The scuffle that took place in the boat was so imperfectly seen by the witnesses, and that only at its close, that from the evidence little more is learnt with certainty about it, than that it commenced with a blow given by the captain. If, says Judge Peters, the captain commences a dispute with illegal conduct, or in an improper manner, he risks the consequences. 1 Peters' Ad. Rep. 175. No one can doubt that the assault on the libellant in the boat, in the night time, was, under the circumstances, improper. If punishment was merited, that was neither the time nor place to administer it. When the captain came on deck, can any one question the gross impropriety of his placing himself at the head of the steps to encounter Butler as he came up, of his taking this opportunity to administer correction? As little can he be justified in pursuing him and putting him in irons, and in beating him with a rope in an excess of passion while he was manacled. Except when he was in the boat I see not the slightest evidence of Butler's offering any resistance to the captain, not the least proof of a mutinous nor disobedient temper; nor does it appear that he had exposed himself to any particular censure at any other time during the voyage, except that he was not so able and active a seaman as some of the others of the crew.

I decree forty dollars damages, with costs.