I Should Trust
That I Might Never Have To Resort To It; And, Indeed, I Scarcely
Know What Risk I Would Not Run, And To What Inconvenience I Would
Not Subject Myself, Rather Than Do So.
Yet not to have the power of
holding it up in terrorem, and indeed of protecting myself, and all
Under my charge, by it, if some extreme case should arise, would be
a situation I should not wish to be placed in myself, or to take
the responsibility of placing another in.
Indeed, the difficulties into which masters and officers are
liable to be thrown, are not sufficiently considered by many
whose sympathies are easily excited by stories, frequent enough,
and true enough of outrageous abuse of this power. It is to
be remembered that more than three-fourths of the seamen in our
merchant vessels are foreigners. They are from all parts of the
world. A great many from the north of Europe, beside Frenchmen,
Spaniards, Portuguese, Italians, men from all parts of the
Mediterranean, together with Lascars, Negroes, and, perhaps worst
of all, the off-casts of British men-of-war, and men from our own
country who have gone to sea because they could not be permitted
to live on land.
As things now are, many masters are obliged to sail without knowing
anything of their crews, until they get out at sea. There may be
pirates or mutineers among them; and one bad man will often infect
all the rest; and it is almost certain that some of them will be
ignorant foreigners, hardly understanding a word of our language,
accustomed all their lives to no influence but force, and perhaps
nearly as familiar with the use of the knife as with that of the
marline-spike. No prudent master, however peaceably inclined,
would go to sea without his pistols and handcuffs. Even with
such a crew as I have supposed, kindness and moderation would be
the best policy, and the duty of every conscientious man; and the
administering of corporal punishment might be dangerous, and of
doubtful use. But the question is not, what a captain ought
generally to do, but whether it shall be put out of the power of
every captain, under any circumstances, to make use of, even
moderate, chastisement. As the law now stands, a parent may
correct moderately his child, and the master his apprentice;
and the case of the shipmaster has been placed upon the same
principle. The statutes, and the common law as expounded in the
decisions of courts, and in the books of commentators, are express
and unanimous to this point, that the captain may inflict moderate
corporal chastisement, for a reasonable cause. If the punishment
is excessive, or the cause not sufficient to justify it, he is
answerable; and the jury are to determine, by their verdict in
each case, whether, under all the circumstances, the punishment
was moderate, and for a justifiable cause.
This seems to me to be as good a position as the whole subject
can be left in. I mean to say, that no positive enactment, going
beyond this, is needed, or would be a benefit either to masters
or men, in the present state of things. This again would seem to
be a case which should be left to the gradual working of its own
cure. As seamen improve, punishment will become less necessary;
and as the character of officers is raised, they will be less
ready to inflict it; and, still more, the infliction of it upon
intelligent and respectable men, will be an enormity which will
not be tolerated by public opinion, and by juries, who are the
pulse of the body politic. No one can have a greater abhorrence
of the infliction of such punishment than I have, and a stronger
conviction that severity is bad policy with a crew; yet I would
ask every reasonable man whether he had not better trust to the
practice becoming unnecessary and disreputable; to the measure
of moderate chastisement and a justifiable cause being better
understood, and thus, the act becoming dangerous, and in course
of time to be regarded as an unheard-of barbarity - than to take
the responsibility of prohibiting it, at once, in all cases,
and in what ever degree, by positive enactment?
There is, however, one point connected with the administration of
justice to seamen, to which I wish seriously to call the attention
of those interested in their behalf, and, if possible, also of
some of those concerned in that administration. This is, the
practice which prevails of making strong appeals to the jury in
mitigation of damages, or to the judge, after a verdict has been
rendered against a captain or officer, for a lenient sentence,
on the grounds of their previous good character, and of their
being poor, and having friends and families depending upon them
for support. These appeals have been allowed a weight which is
almost incredible, and which, I think, works a greater hardship
upon seamen than any one other thing in the laws, or the execution
of them. Notwithstanding every advantage the captain has over the
seaman in point of evidence, friends, money, and able counsel,
it becomes apparent that he must fail in his defence. An appeal
is then made to the jury, if it is a civil action, or to the judge
for a mitigated sentence, if it is a criminal prosecution, on the two
grounds I have mentioned. The same form is usually gone through in
every case. In the first place, as to the previous good character of
the party. Witnesses are brought from the town in which he resides,
to testify to his good character, and to his unexceptionable conduct
when on shore. They say that he is a good father, or husband, or son,
or neighbor, and that they never saw in him any signs of a cruel
or tyrannical disposition. I have even known evidence admitted
to show the character he bore when a boy at school.
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