312

MASTER'S CONTROL MUST BE VINDICATED.

disciplinarian. Energy, decision, promptitude, and circumspection are the desirable qualities demanded for so difficult and delicate a duty. To meet this exigency and properly discharge his office, the master may legally resort to coercion. To assert his own authority and vindicate his right to command, a master may lawfully resort to the extremest measures. He may confine, punish, coerce, flog, indeed do almost anything, which necessity may impose as a duty upon him, or a proper self-defense will justify, in order to suppress rebellion against his rightful authority, put down mutiny, root out revolt, or nip in the bud any attempt at either mutiny or revolt. The authority of a master must not be overthrown by combinations, force, menaces, or intimidations; and whatever shall become necessary to uphold and assert his authority, that the master may justifiably do. Coercion, thus applied, is for a higher purpose than mere discipline. It would be coercion applied with a view to reduce dangerous insubordination, and to continue the master's control over his ship.

An individual defiance may be met by moderate and ordinary punishment; but a tumultuous and turbulent spirit, breaking out on board of a ship, disregarding all authority, and defying command, demands instant suppression; and, therefore, requires summary coercion. To dally with it, would necessarily result in the extinction and overthrow of the master's supremacy. That once overthrown, nothing but confusion, disorder, and danger afterward reigns. And, if such extreme measures shall be necessarily resorted to by a master, in order to quell a mutiny and repress a revolt, the end surely ought to justify the means.

If a single seaman manifest a disobedient, mutinous,

PUNISHMENT NOT TO BE EXCESSIVE.

313

or refractory disposition, then the master may chastise him. But in that case, the correction should only be in proportion to the aggravation of the offense; or adequate to reduce the offender to due submission.

Such was the law, as formerly expounded by Story, Stowell, and other conspicuous admiralty magistrates, that the master might moderately correct a delinquent mariner, as a father would correct his child. His chastisement should be paternal; inflicted in a spirit of justice, tempered with mercy. It should never be wanton, cruel, brutal, vindictive, or excessive. The power to punish was formally upheld to the extent of reinstating order, checking abuses, reforming the refractory, and reducing to obedience a stubborn and defiant disturber of quiet and discipline. Within this just limitation a master is confined, and, for any excess, he was amenable, in law, to damages for all personal injuries caused by him, should he transcend or exceed this limit.

And cases are reported, and already referred to, in which damages, for the infliction of corporal chastisement, have been awarded, both by courts and juries, to heavy amounts.

Prior to September 28, 1850, the master was not legally restrained in the choice of his method or means of punishing. He might seize a rope's end, resort to the cat, make a spread-eagle of the offender by tying him up in the rigging, and then laying on the lash by the dozen. Still, even then, the chastisement should not be excessive. And the great danger attending the exercise of this power was, that it might be abused and all punishment, administered in a passion, would be likely to become vindictive and excessive, by so administering it.

;

314

MASTER MUST MAINTAIN DISCIPLINE.

In the United States v. Freeman (4 Mason, 512), Judge Story is reported to have said: "The law does not permit the master to gratify a brutal and low revenge; or to inflict cruel and unnecessary punishments. It upholds the exercise of authority only when it is for salutary purposes; where punishment is applied, the master is responsible, both civilly and criminally, if he wantonly exceed the measure of justice."

Elsewhere, the same learned judge, in the same case, said: "If obedience does not follow command, the master may compel it by punishment; and the nature and extent of the punishment must be determined by the exigency of the case."

And for the purpose of reforming and reducing refractory seamen, at sea, the foregoing seems to be a generally correct statement of the law as it was formerly held, in reference to the master's power to punish and its exercise. Prior to 1850, this doctrine was unqualified and unrestricted. But on the 28th of September of that year, the Congress of the United States, in "making appropriations for the naval service for the year ending June 30, 1851," stowed away in an appropriation act, a provision (by way of amendment) of a very important character, to this effect, and in these words: "That flogging in the navy and on board of vessels of commerce be abolished after the passing of this act."

Since this enactment, all punishment by flogging, either on board of government or merchant ships, has measurably ceased. If doubts be expressed as to the expediency of this legislation, they will be likely to be removed by recalling the historical fact, that no remonstrance has been presented to the national legislature

FLOGGING ABOLISHED IN SHIPS OF THE UNITED STATES. 315

against the abolishment of flogging on board of American ships, or petition forwarded to that body for a restoration of the former law.

Moreover, it does not appear that any serious evils have practically resulted from a discontinuance of the barbarous and formerly tolerated practice of flogging.

The chief inconvenience which may possibly arise from its discontinuance is the duty necessarily imposed upon all masters, to curb their passions, conquer their prejudices, practice prudence and humanity, and thus elevate themselves above the level of mere creatures of impulse; and thereby secure from the seamen a more willing obedience, for the ship better discipline, more harmony, and for the owner quicker dispatch. And this obedience, discipline, harmony, and dispatch, thus secured, cannot fail to abundantly compensate merchant and master as well as mariner for this modification and now admitted amelioration of the maritime law. To the merchant this reform guaranties shorter and more expeditious voyages; to the master relief from his most disagreeable duties; and to the mariner exemption from suffering which only passion or caprice could inflict.

No embarrassment can be supposed to be the result of this new legislation. It cannot certainly be greater to masters of merchant ships, than it has proved to be to naval officers. And if the latter have been successful in maintaining discipline, by a substituted and miti gated mode of punishing, in cutting off supplies or denying rations and other privileges, it is difficult to perceive why the master of a merchant ship may not be equally so. If, by putting a mariner on a short allowance of food, denying him necessaries or luxuries, confining him below or imposing on him other restraints,

316 MITIGATED PUNISHMENT TO DISPLACE FLOGGING;

has been found to be effective as a mode of reforming the refractory in the navy service, why may it not be equally so as a punishment in the merchant service?

This substituted species of chastisement has proved to be quite adequate to displace the barbarous and abhorrent practice of flogging; and thus, this country is making rapid strides to a more advanced civilization ; our growing republic leading the way, and, by its example, abrogating the antiquated dogmas and ameliorating the harsh usages even of monarchical England. Perhaps the influence of the daughter upon the mother country is in no aspect so observable, as in the silent and steady following of the latter in the track of the former, as affecting the administration of the law, and its practice in the courts of admiralty. This is especially noticeable in reference to some leading American decisions, which are accepted not only as authoritative but conclusive.

But the old mode of inflicting punishment on mariners, borrowed or inherited from the parent country, our American Congress unceremoniously and summarily abolished, as has been seen, in 1850, not only in the navy but merchant service.

Since then, by ch. 186, passed in the year 1855, March 2 (vide vol. 10, p. 627, U. S. Sts. at Large), provision has been made for the inflicting of ameliorated punishment on board of ships of war in the American in lieu of flogging. navy,

The third section of that act, enjoins upon commanders of the navy, in granting temporary leave of absence and liberty on shore, "to exercise carefully a discrimination in favor of the faithful and obedient."

Section 4, provides that summary courts-martial may