and the precise practical rule is essential to the stability of the government, and the utility of the laws. This character of the law, therefore, as a science founded on principle, has no tendency to disparage the importance of positive enactment, nor to weaken the authority of judicial precedent.

Permit me, in conclusion, to express a hope, that these views, hasty and superficial as they are, will not be without their practical utility. If the law be justly regarded as a liberal science, intimately connected with the existence, and essential to the maintenance of free government, embracing an enlarged and profound study of the principles of moral and political philosoophy, if its utility and importance be justly regarded by a free and enlightened community, these considerations cannot fail to excite the interest and industry of the student, to encourage the honorable exertions of the practitioner, and to awaken and cherish those feelings of sympathy and mutual respect, which should ever characterize the associates and members of an honorable and liberal profession.

ART. VIII.-AUTHORITY OF THE MASTER OVER SEAMEN. DISTRICT COURT OF MAINE, SEPT. 27, 1831.

Butler v. McLellan et al.

Where the master and mate are jointly prosecuted in admiralty by a seaman for an assault and battery, and it appears that the mate, by orders of the master, assisted in some of the acts complained of, still the mate may be justified for rendering the assistance in obedience to the orders of the master, though the conduct of the master may, on the whole, considering all the circumstances, have been illegal and unjustifiable; and in such case the libel will be dismissed in respect to the mate, and he may be a witness for the master.

The circumstances under which the master may inflict punishment upon a seaman, and the kind and degree of punishment which may be inflicted. The provisions of the different maritime codes upon this subject.

THIS was a libel against the master and mate of the barque Argo, for an assault and battery of the libellant while the barque was in the port of Matanzas, in the island of Cuba. The material facts are that on or about the 25th July in the evening, the libellant was sent in the boat with Williams, another of the

crew, for the Captain who had been spending the evening on board the Eastern Star, another Portland vessel lying in the harbor. No difficulty occurred until the boat came near the Argo, when, as she was coming along side, the captain called out to unrow, or take in the oars. The libellant, who sat in the after seat, in taking in his oar, turned the blade aft, on which the master, speaking to him in a loud and passionate tone of voice, called him a rascal, and asked him why he did not turn the blade forward. The libellant replied that the boat was so near the vessel that it was impossible. On this the captain rejoined, that if he did not turn the blade forward, he would beat out his brains with the tiller. The libellant made some answer, the words of which are not testified to, but it is described by the witness as being temperate and not of an irritating character, whereupon the captain gave him a blow, and the libellant cried out murder. The captain then seized him and a scuffle ensued, during which the captain gave the libellant several blows with his hand or fist, and lost his hat overboard. Up to the time when the scuffle took place, the only witness in the boat was Williams, but at this time the mate came on board. The first that he saw was Butler hold of the captain, apparently pressing over the stern of the boat. The captain seized him by the head and pulled it down between his knees, on which Butler again sung out murder. The mate asked him what he was about, and Butler replied, will you see me abused? The captain went up the steps first, and as soon as he was on deck, stripped off his coat and took a rope, and as Butler was coming up made several passes at him with the rope, which Butler dodged, and made his escape on deck. At this time the crew had gathered around and witnessed the remainder of the affair. The accounts which the different witnesses now give, though varying in some particulars, agree in substance. Some of the witnesses say that after Butler was on deck he 'squared away,' that is, as the phrase is explained, he held up his hands towards the captain and put himself in an attitude to attack him; others say that his attitude was that of defence and to ward off the blows of the captain, who still threatened him with the rope. The captain advanced and made a pass at Butler with his fist, when he turned and fled, and in running hit his leg against the windlass and fell. The captain pursued him and sprang upon

him as he fell, held him down and kicked him a number of times about the head and breast. The crew collected around, and one or two of them remonstrated with the captain, and told him that he ought not to kick Butler in the face. The mate

came up and ordered the men to stand off and let the captain do as he pleased, and on the captain's order brought the irons and put them on, while the captain held him. Butler was then ordered to the main-hatch and the captain went below to supper. When he came up he found Butler at the main-hatch with his hands before him, which had been ironed behind. He again ordered them behind. At this time, according to the testimony of the mate, the captain said to Butler, 'I'll teach you to clench me in the boat' to which Butler replied, that he did nothing but defend himself. The captain rejoined, I'll teach you to defend yourself, and gave him a blow with a rope; other witnesses say that he gave him several blows. The captain then lashed him to the ring-bolt of the main-hatch, and in doing it, drew the rope with such violence around his arms as to give a good deal of pain, and though some time after it was loosened by one of the men, the marks remained several days. He received several wounds also on the back at the windlass, which he showed to the crew three or four days afterwards, and which were then black and blue. He remained lashed to the ring bolt three or four hours, when he was relieved by one of the men on the watch, and in the morning the captain ordered his irons to be taken off.

The case was argued very much at large by Neal, for the libellant, and Anderson for the defendants.

WARE, J. This case has been earnestly and eloquently argued both for the libellant and respondent, with an apparent and I doubt not a real conviction, on both sides, of the justice of their cause. It is not surprising that the Court, bound to preserve an even and well balanced judgment, should see it in a light somewhat different from that in which it is viewed by either of the parties, and as the counsel on both sides have expressed a wish that I should give a written opinion, and explain the principles by which such cases are governed, I have considered it more at large than would seem to be required by the nature or importance of the case.

The libel was originally brought against the master and the

mate.

In the progress of the case, and after the evidence was out in support of the libel, the respondent's counsel moved to dismiss the libel as against the mate in order to introduce him as a witness in favor of the master, on the ground, that, on the libellant's own showing there was no sufficient evidence to charge him as a trespasser. It was opposed on the ground that, by the common law, he who assists another to commit trespass, is held as a joint trespasser. But this case is governed not by the rules of the common but of the marine law. By the maritime law the captain has all the authority of command on board the vessel, and the inferior officers, as well as the common seamen are bound to obey his orders. It is not however intended to be said that they are bound to obey all his orders, whether lawful or not. In the case put at the bar, if the captain was proceeding to inflict, in a cruel and ferocious spirit, a punishment of extraordinary severity, obviously not necessary for the preservation of subordination and discipline in the crew, and loss of life or other serious injury should ensue, no doubt the mate or any of the crew who should aid in such excesses, though in obedience to the captain's orders, might render himself jointly responsible for the consequences. The present, however, is not such a case. And in order to render the mate civilly responsible with the captain for damage, when he is acting under the immediate orders of his superior, there must be such a manifest and gross excess of punishment, such marks of cruelty and passion, that every cool and impartial by-stander would cry out on the injustice and cruelty of the punishment. In putting on the irons the mate acted only in obedience to the express orders of the captain, and to have justified his refusal to obey, the case must have been one of manifest and gross oppression. Disobedience is held by the maritime law as an offence of the gravest and most dangerous character. The nature of the service and the character of those employed in it, renders it necessary, for the safety of the property and lives committed to the uncertainties of a dangerous and treacherous element, exposed to risks requiring in many cases extraordinary promptitude of decision and action, that the captain should be entrusted with a large measure of discretionary authority. The hazards encountered are often of such a nature as do not admit of being met by the slow process of deliberation. If the captain was bound

to consult his crew or even his inferior officers in emergencies, the mischief would be accomplished before the debate was brought to a close, and the ship, with the crew, would be irretrievably lost before the opinions could be collected on the best mode of warding off the danger.

The necessities of the service require a promptness of action in emergencies that excludes the possibility of acting under the deliberative direction of several minds, and the law, therefore, finding it necessary to invest the captain with a dictatorship to meet emergencies, to preserve uniformity of government, very properly gives him the entire authority of command in all cases; but it enjoins on him the moderate and prudent use of his authority, and holds him strictly responsible for the abuse of his high powers. In some instances the old sea laws require him, before acting, to consult with his officers, as in the case of jettison rendered necessary by stress of weather, and by the French Ordonnance he is required to take the advice of his mate and pilot before inflicting punishment on any of his men, but with the exception of particular cases specially taken out of the general rule, the whole authority of command is invested in the captain; and these exceptions have never been understood to be incorporated into the maritime law of this country. The circumstances of this case are not such as in my judgment to justify the mate in a refusal to obey the orders of the captain, and the libel, as against him, is therefore dismissed.

The captain's case stands on different ground from that of the mate. Though the mate might not be justified in refusing to obey the captain when he ordered him to bring and put on the irons, the captain himself, in proceeding to inflict the punishment, did it under his responsibility to the laws of his country.

By the common as well as the marine law, the master has authority over the mariners on board his vessel, and they are bound to obey all his lawful commands. In cases of disorderly and disobedient conduct, he may lawfully correct them in a moderate and reasonable manner; and this rule of temperance and moderation in punishment must necessarily depend on the particular circumstances of each case. The urgency of the occasion, the temper and conduct of the culpable party, the dispositions, state of discipline and habits of obedience of the crew, all are elements of the case, and may go to justify