It is to be considered, also, that the sailor comes into court under very different circumstances from the master. He is thrown among landlords, and sharks of all descriptions; is often led to drink freely; and comes upon the stand unaided, and under a certain cloud of suspicion as to his character and veracity. The captain, on the other hand, is backed by the owners and insurers, and has an air of greater respectability; though, after all, he may have but a little better education than the sailor, and sometimes, (especially among those engaged in certain voyages that I could mention) a very hackneyed conscience.
These are the considerations most commonly brought up on the subject of seamen’s evidence; and I think it cannot but be obvious to every one that here, positive legislation would be of no manner of use. There can be no rule of law regulating the weight to be given to seamen’s evidence. It must rest in the mind of the judge and jury; and no enactment or positive rule of court could vary the result a hair, in any one case. The effect of a sailor’s testimony in deciding a case must depend altogether upon the reputation of the class to which he belongs, and upon the impression he himself produces in court by his deportment, and by those infallible marks of character which always tell upon a jury. In fine, after all the well-meant and specious projects that have been brought forward, we seem driven back to the belief, that the best means of securing a fair administration of the laws made for the protection of seamen, and certainly the only means which can create any important change for the better, is the gradual one of raising the intellectual and religious character of the sailor, so that as an individual and as one of a class, he may, in the first instance, command the respect of his officers, and if any difficulty should happen, may upon the stand carry that weight which an intelligent and respectable man of the lower class almost always does with a jury. I know there are many men who, when a few cases of great hardship occur, and it is evident that there is an evil somewhere, think that some arrangement must be made, some law passed, or some society got up, to set all right at once. On this subject there can be no call for any such movement; on the contrary, I fully believe that any public and strong action would do harm, and that we must be satisfied to labor in the less easy and less exciting task of gradual improvement, and abide the issue of things working slowly together for good.
Equally injudicious would be any interference with the economy of the ship. The lodging, food, hours of sleep, etc., are all matters which, though capable of many changes for the better, must yet be left to regulate themselves. And I am confident that there will be, and that there is now a gradual improvement in all such particulars. The forecastles of most of our ships are small, black, and wet holes, which few landsmen would believe held a crew of ten or twelve men on a voyage of months or years; and often, indeed in most cases, the provisions are not good enough to make a meal anything more than a necessary part of a day’s duty;44and on the score of sleep, I fully believe that the lives of merchant seamen are shortened by the want of it. I do not refer to those occasions when it is necessarily broken in upon; but, for months, during fine weather, in many merchantmen, all hands are kept, throughout the day, and, then, there are eight hours on deck for one watch each night. Thus it is usually the case that at the end of a voyage, where there has been the finest weather, and no disaster, the crew have a wearied and worn-out appearance. They never sleep longer than four hours at a time, and are seldom called without being really in need of more rest. There is no one thing that a sailor thinks more of as a luxury of life on shore, than a whole night’s sleep. Still, all these things must be left to be gradually modified by circumstances. Whenever hard cases occur, they should be made known, and masters and owners should be held answerable, and will, no doubt, in time, be influenced in their arrangements and discipline by the increased consideration in which sailors are held by the public. It is perfectly proper that the men should live in a different part of the vessel from the officers; and if the forecastle is made large and comfortable, there is no reason why the crew should not live there as well as in any other part. In fact, sailors prefer the forecastle. It is their accustomed place, and in it they are out of the sight and hearing of their officers.
As to their food and sleep, there are laws, with heavy penalties, requiring a certain amount of stores to be on board, and safely stowed; and, for depriving the crew unnecessarily of food or sleep, the captain is liable at common law, as well as under the statute before referred to. Farther than this, it would not be safe to go. The captain must be the judge when it is necessary to keep his crew from their sleep; and sometimes a retrenching, not of the necessaries, but of some of the little niceties of their meals, as, for instance, duff on Sunday, may be a mode of punishment, though I think generally an injudicious one.
I could not do justice to this subject without noticing one part of the discipline of a ship, which has been very much discussed of late, and has brought out strong expressions of indignation from many,—I mean the infliction of corporal punishment. Those who have followed me in my narrative will remember that I was witness to an act of great cruelty inflicted upon my own shipmates; and indeed I can sincerely say that the simple mention of the word flogging, brings up in me feelings which I can hardly control. Yet, when the proposition is made to abolish it entirely and at once; to prohibit the captain from ever, under any circumstances, inflicting corporal punishment; I am obliged to pause, and, I must say, to doubt exceedingly the expediency of making any positive enactment which shall have that effect. If the design of those who are writing on this subject is merely to draw public attention to it, and to discourage the practice of flogging, and bring it into disrepute, it is well; and, indeed, whatever may be the end they have in view, the mere agitation of the question will have that effect, and, so far, must do good. Yet I should not wish to take the command of a ship to-morrow, running my chance of a crew, as most masters must, and know, and have my crew know, that I could not, under any circumstances, inflict even moderate chastisement. 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,jr 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. 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.
The next thing to be done is to show to the court and jury that the captain is a poor man, and has a wife and family, or other friends, depending upon him for support; that if he is fined, it will only be taking bread from the mouths of the innocent and helpless, and laying a burden upon them which their whole lives will not be able to work off; and that if he is imprisoned, the confinement, to be sure, he will have to bear, but the distress consequent upon the cutting him off from his labor and means of earning his wages, will fall upon a poor wife and helpless children, or upon an infirm parent. These two topics, well put, and urged home earnestly, seldom fail of their effect.
In deprecation of this mode of proceeding, and in behalf of men who I believe are every day wronged by it, I would urge a few considerations which seem to me to be conclusive.
First, as to the evidence of the good character the captain sustains on shore. It is to be remembered that masters of vessels have usually been brought up in a forecastle; and upon all men, and especially upon those taken from lower situations, the conferring of absolute power is too apt to work a great change. There are many captains whom I know to be cruel and tyrannical men at sea, who yet, among their friends, and in their families, have never lost the reputation they bore in childhood. In fact, the sea-captain is seldom at home, and when he is, his stay is short, and during the continuance of it he is surrounded by friends who treat him with kindness and consideration, and he has everything to please, and at the same time to restrain him. He would be a brute indeed, if, after an absence of months or years, during his short stay, so short that the novelty and excitement of it has hardly time to wear off, and the attentions he receives as a visitor and stranger hardly time to slacken,—if, under such circumstances, a townsman or neighbor would be justified in testifying against his correct and peaceable deportment. With the owners of the vessel, also, to which he is attached, and among merchants and insurers generally, he is a very different man from what he may be at sea, when his own master, and the master of everybody and everything about him. He knows that upon such men, and their good opinion of him, he depends for his bread. So far from their testimony being of any value in determining what his conduct would be at sea, one would expect that the master who would abuse and impose upon a man under his power, would be the most compliant and deferential to his employers at home.
As to the appeal made in the captain’s behalf on the ground of his being poor and having persons depending upon his labor for support, the main and fatal objection to it is, that it will cover every case of the kind, and exempt nearly the whole body of masters and officers from the punishment the law has provided for them. There are very few, if any masters or other officers of merchantmen in our country, who are not poor men, and having either parents, wives, children, or other relatives, depending mainly or wholly upon their exertions for support in life. Few others follow the sea for subsistence. Now if this appeal is to have weight with courts in diminishing the penalty the law would otherwise inflict, is not the whole class under a privilege which will, in a degree, protect it in wrongdoing? It is not a thing that happens now and then. It is the invariable appeal, the last resort, of counsel, when everything else has failed. I have known cases of the most flagrant nature, where after every effort has been made for the captain, and yet a verdict rendered against him, and all other hope failed, this appeal has been urged, and with such success that the punishment has been reduced to something little more than nominal, the court not seeming to consider that it might be made in almost every such case that could come before them. It is a little singular, too, that it seems to be confined to cases of shipmasters and officers. No one ever heard of a sentence, for an offence committed on shore, being reduced by the court on the ground of the prisoner’s poverty, and the relation in which he may stand to third persons. On the contrary, it had been thought that the certainty that disgrace an
d suffering will be brought upon others as well as himself, is one of the chief restraints upon the criminally disposed. Besides, this course works a peculiar hardship in the case of the sailor. For if poverty is the point in question, the sailor is the poorer of the two; and if there is a man on earth who depends upon whole limbs and an unbroken spirit for support, it is the sailor. He, too, has friends to whom his hard earnings may be a relief, and whose hearts will bleed at any cruelty or indignity practised upon him. Yet I never knew this side of the case to be once adverted to in these arguments addressed to the leniency of the court, which are now so much in vogue; and certainly they are never allowed a moment’s consideration when a sailor is on trial for revolt, or for an injury done to an officer. Notwithstanding the many difficulties which lie in a seaman’s way in a court of justice, presuming that they will be modified in time, there would be little to complain of, were it not for these two appeals.
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