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 marlinespike. 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. The owners of the vessel, and other merchants, and perhaps the president of the insurance company, are then introduced; and they testify to his correct deportment, express their confidence in his honesty, and say that they have never seen anything in his conduct to justify a suspicion of his being capable of cruelty or tyranny. This evidence is then put together, and great stress is laid upon the extreme respectability of those who give it. They are the companions and neighbors of the captain, it is said—men who know him in his business and domestic relations, and who knew him in his early youth. They are also men of the highest standing in the community, and who, as the captain’s employers, must be supposed to know his character. This testimony is then contrasted with that of some half dozen obscure sailors, who, the counsel will not forget to add, are exasperated against the captain because he has found it necessary to punish them moderately, and who have combined against him, and if they have not fabricated a story entirely, have at least so exaggerated it, that little confidence can be placed in it.
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