averments § 1869. In an indictment for a piratical murder (under the Act of the 30th April, 1790, c. 36, § 8), it is not nec- Proper essary that it should allege the prisoner to be a citi- technical zen of the United States, or that the crime was com- to be made. mitted on board a vessel belonging to citizens of the United States; but it is sufficient to charge it as committed from on board such a vessel, by a mariner sailing on board such a vessel.1 An indictment for manslaughter on the high seas, charging that the prisoner committed it, first, by casting A. B. from a vessel, &c., whose name was unknown; and second, by casting him from the long-boat of the ship W. B., &c., is sufficiently certain.2 The character of the technical averments in piracy has been elsewhere considered.3 1 U. S. v. Furlong, 5 Wheat. 183; Curtis on Merchant Seamen, 120. U. S. v. Holmes, 1 Wall. Jr. 1. See supra, § 511. 8 Wh. Cr. Pl. & Pr. § 268. 599 I. WHO ARE Crew. CHAPTER XLIII. MALTREATMENT OF CREW. "Crew" includes all seamen except Crew includes all seamen ex cept master. Master has power of corporal punish ment by maritime law. II. POWER OF OFFICERS. Master has power of corporal punish ment by maritime law, § 1872. Otherwise under statute, § 1873. I. WHO ARE CREW. § 1871. By the word "crew," in the Revised Statutes, is meant all the officers and common seamen, except the master; and the offence therein described may be committed upon the first mate.1 II. POWER OF OFFICERS. § 1872. By the maritime law the master has authority, apart from statute, to punish corporally and summarily the negligence or misconduct of his men.2 Of his own discretion, no mate or subordinate officer has any right to punish a seaman, and if the master, being present, tacitly consents thereto, he becomes responsible for it; but in the master's absence, the next highest officer succeeding him is clothed with all his authority. Every exception to this general principle must, however, be made in favor of those cases where prompt and instantaneous action is demanded of the mate or other officers by the necessities of the case, as to subdue mutinous or flagrant disorders, though the punishment must always be reasonable, and not with instruments unlawful for the exigency. Where the necessity actually existed, however, the 1 U. S. v. Winn, 3 Sumner, 209. See Rev. Stat. U. S. § 5347. 2 Bangs v. Little, Ware, 506; U. S. v. Hunt, 2 Story, 120; Turner's case, Ware, 83. 8 U. S. v. Taylor, 2 Sumner, 584. quantum of punishment will by maritime law not be too nicely measured in the court.1 § 1873. The act abolishing the punishment of flogging in the navy, and in vessels of commerce, is not a penal law, Otherwise and no indictment can be framed upon it. It applies under statute. to whaling ships, which are "vessels of commerce,' 1 It has been said that a master occupies to his crew a position resembling that of a parent to a child, or a master to an apprentice. U. S. v. Freeman, 4 Mason, 511; Fuller v. Colby, 3 Wood. & M. 13; Bangs v. Little, Ware, 506. See supra, § 634. He has a right to respectful demeanor as well as obedience. U. S. v. Smith, 3 Wash. C. C. 525. But this right would be fruitless, unless he is justified in enforcing it, when virtually denied, by reasonable punishment inflicted by himself. U. S. v. Freeman, 4 Mason, 511; Thorn v. White, 1 Pet. Adm. 171. He may chastise corporally as well as confine, when treated impertinently, or disobeyed. Michaelson v. Denison, 3 Day, 294; Thompson v. Busch, 4 Wash. C. C. 340. But he must not punish for mere private immorality if the offender conducted himself properly as a seaman. Bangs v. Little, ut supra. Nor must he chastise excessively or indecently, even for offences committed by the seaman distinctively as such. Cushman v. Ryan, 1 Story, 101. He may use, apart from statute, such weapons as are suitable and needful to compel obedience; Michaelson v. Denison, 3 Day, 295; Thorn v. White, 1 Pet. Adm. 118; U. S. v. Smith, 3 Wash. C. C. 526; Butler v. McLellan, Ware, 223; Curtis on Adm. 88, 90; keeping in mind, however, that weapons, and especially deadly weapons, should be used only to prevent future or impending, and not to punish past, disobedience. Schelter v Yorke, Crabbe, 449. For impudent conduct or language, it seems a master may box a mariner's ears, without the punishment being either unusual or oppressive; and if the latter, in such case, draws a knife, or arms himself with an axe, he places himself in an unlawful position. He has no right, by the force or even the intimidation which such a course naturally may effect, to resist his arrest either for the original impudence or the use of the weapons, or to make terms for his surrender; and the ship's officers may employ what means they think best to compel him to obedience, and to suppress conduct mutinous, insubordinate, and dangerous to the safety of the vessel or cargo, and may pursue him to the prow (which is traditionally a sailor's sanctuary), or any other part of the ship. If improperly punished, the law affords the sailor an ample remedy on reaching port; and in most cases, in the language of Judge Woodbury, summary corporal punishment for slight offences is not advisable, in the present age. Wherever convenience allows, a little time for reflection on the one part, and repentance on the other, is recommended. Fuller v. Colby, 3 Wood. & M. 15. But to convict the master under the act, two things must be proven: (1.) Malice (i. e. wilfulness, or a wilful intention to do a wrong act), hatred, or revenge; and (2.) want of justifiable cause for inflicting the injury. U. S. v. Taylor, 2 Sumner, 584. within the meaning of the act.1 It prohibits corporal punishment by stripes, inflicted with a cat, and any punishment which in substance and effect amounts thereto.2 The degree of such punishment is not material: it is the kind of punishment which is alone to be considered.3 1 U. S. v. Cutler, 1 Curtis, C. C. government to prove, not only that the 502. 2 Ibid. 8 Ibid. It is a question of fact for the jury, whether the punishment inflicted was, in substance and effect, the punishment of flogging. U. S. v. Cutler, 1 Curtis C. C. 502. Subsequently to the Act of 1850, if it appear the punishment inflicted was flogging, this is an indictable offence, if malicious and without justifiable cause. But it is incumbent on the 602 act was without justifiable cause, but that it was malicious, and that it was a wilful departure from a known duty. If the master knew that his act was illegal, it was malicious, in the sense of the Act of 1835. U. S. v. Cutler, 1 Curtis C. C. 502. Under the Act of 1850, the officer should be indicted, not for cruel or unusual punishment, but for beating or wounding the seaman. U. S. v. Collins, 2 Curtis C. C. 194. Under Act of 1835, intimidation must III. CONFINING MASTER. be malicious, § 1877. To the endeavor to revolt some overt Necessity is a defence, § 1879. Confinement must be malicious and real, § 1881. Necessity or self-defence may be a defence, § 1882. I. IN WHAT REVOLT CONSISTS. usurpation 1876. THE Crimes' Act of 1790, c. 36, § 12, not defining the offence of endeavoring to make a revolt, the courts Revolt took an early opportunity to give a judicial definition consists in of it, and this definition was subsequently adopted by of ship. the Act of 1835, and in the Revised Statutes.2 A revolt is a usurpation of the authority and command of the ship, and an overthrow of that of the master or commanding officer. Any conspiracy to accomplish such an object, or to resist a lawful command of the master for such purpose, or any endeavor to stir up others of the crew to such resistance, is an endeavor to commit a revolt.8 1 There are various other offences for whose commission on the high seas the law has made special provisions; but they are more properly referred to other heads. Vide the preceding chapters upon Homicide, Rape, Mayhem, Assault, Burglary, Arson, Larceny, Receiving Stolen Goods, Embezzlement, and Malicious Mischief. 2 Rev. St. U. S. §§ 5359, 5360. U. S. v. Hemmer, 4 Mason, 105; U. S. v. Kelly, 11 Wheat. 417; 4 Wash. C. C. 528; U. S. v. Hamilton, 1 Mason, 443; U. S. v. Savage, 5 Mason, 460; U. S. v. Rogers, 3 Sumner, 342. See Davison v. Seal-skins, 2 Paine, 324; U. S. v. Staly, 1 Wood. & M. 338; U. S. v. Seagrist, 4 Blatch. 420. Where the crew of a vessel by their overt acts entirely overthrow the authority of the master in the free management of the ship, and the free exercise of his rights and duties on |