§ 1877. A master is prevented in the free and lawful execuUnder Act tion of his authority, within the meaning of the Act of

of 1835, intimida

tion must be malicious.

1835, if he be prevented from carrying into effect any one lawful command; and a command to continue the business of whaling is primâ facie lawful. A combination to refuse to pursue such business is not, of itself, the intimidation required to constitute the crime of revolt, but it may be the means of intimidation. Such combination and intimidation may be lawful. If, from the improper conduct of the captain, the crew have good reason to believe, and do believe, that they will be subjected to unlawful and cruel or oppressive treatment, or that a great wrong is about to be inflicted on one of their number, they have a right to take reasonable measures for his or their own protection. What would be reasonable measures must depend upon the nature and extent of the wrong, and upon the means of prevention, having regard to the importance of preserving the authority of the master, as well as to the importance of protecting the crew.2

board, it is a revolt. U. S. v. Forbes, Crabbe, 558.

A combination by the crew to prevent the vessel going to sea, against the order of the master, is an attempt to commit a revolt. U. S. v. Nye, 2 Curtis C. C. 225.

"An endeavor to make a revolt," said Judge Story on a trial when sit ting as circuit judge," within the act, is an endeavor to excite the crew to overthrow the lawful authority and command of the master and officers of the ship. It is, in effect, an endeavor to make a mutiny among the crew of the ship." U. S. v. Smith, 1 Mason, 147.

Mere insolent conduct to the master, disobedience of orders, or violence committed to the person of the master, unaccompanied by other acts showing an intention to subvert his command as master, is not sufficient. Mere conspiracy of the crew to displace the master, unaccompanied by overt acts, is not sufficient. Neither is concert among the crew to that

event essential to constitute the offence. U. S. v. Kelly, 4 Wash. C. C. 528. The offence of revolt, or endeavoring to make a revolt, may be committed in any kind of a vessel. Ibid.

One who joins in the general conspiracy, and by his presence countenances acts of violence, but who does not individually use force or threats to compel the master to resign the command of the vessel, is guilty of the offence of confining the master. Ibid.

1 Rev. St. § 5359.

2 U. S. v. Borden, 21 L. Rep. 100; 1 Sprague, 374. Supra, § 95.

It is not necessary to prove that the offence was committed on the high seas (U. S. v. Hamilton, 1 Mason, 443; U. S. v. Keefe, 3 Ibid. 475; U. S. v. Staly, 1 Wood. & M. 338), but a confederacy between two or more of the crew to refuse to do their lawful duty must be shown (U. S. v. Cassidy, 2 Sumner, 582), under the Act of 1835, § 2. It had before been held, that

To the enrevolt some

deavor to

overt act is neces

§ 1878. To make an endeavor to commit a revolt, under the Act of 1790, there must have been some effort or act to stir others of the crew to disobedience; 1 in fact to up create a virtual mutiny on board;2 and where a crew had signed their articles with a particular master, who sary. for a reasonable cause was removed, and they combined to resist and refuse all duty under his successor, this was within the statute.3

is a defence.

§ 1879. It is a sufficient defence, however, to such an indictment, that the endeavor, &c., was to compel the master Necessity to return to port on account of the unseaworthiness of the ship, provided the men acted bona fide on reasonable and apparently true grounds; and this whether it be doubtful if the ship is seaworthy or not. If clearly the former, of course the defence fails. These, said Mr. Justice Story, are the general principles of law, and depend on no particular statute. Nor is the crew's refusal, because of a deviation from the voyage in their shipping articles, to do duty held to amount to an endeavor to commit a revolt, under the Act of 1835.5

4

no previous deliberate combination for mutual aid and encouragement, or any preconcerted plan of operation, was necessary to bring it within the Act of 1790, § 12. Rev. Stat. U. S. § 5539; U. S. v. Morrison, 1 Sumn. 448. The interposition of the crew, by force and intimidation, preventing the master's lawful punishment of a seaman (Ibid.), or a combination not to do duty, though no further orders were given (U. S. v. Barker, 5 Mason, 404; U. S. v. Gardner, Ibid. 402), was within the act. But this offence is now to be considered and punished only as provided for by the Act of March 3, 1835 (Woodbury, J., in U. S. v. Peterson, 1 Wood. & M. 309), and under it the mere resistance to the master's lawful authority, or assembling with others in a mutinous and tumultuous manner, so as to endanger the police of the vessel, is a crime.

Foreign seamen on board American

ships are to be treated by our laws as though of our country; and so are American seamen put on board at a foreign port by an American consul; Woodbury, J., in U. S. v. Peterson, 1 Wood. & M. 309; U. S. v. Sharp, 1 Pet. C. C. 118, 121; but a whaling vessel, not having surrendered her register, or taken out an enrolment and license, as prescribed by the Act of 1793, c. 52, is not an American ship" within the Act of 1835; and therefore its crew are not, under that act, indictable for an endeavor to make a revolt. U. S. v. Rogers, 3 Sumner, 342.

66

1 U. S. v. Savage, 5 Mason, 460; U. S. v. Kelly, 11 Wheat. 417; 4 Wash. C. C. 528.

21 Mason, 147.

8 U. S. v. Haines, 5 Mason, 272. 4 U. S. v. Ashton, 2 Sumner, 13. Infra, § 1882; supra, § 95.

U. S. v. Matthews, 2 Sumner, 470.

ticularize

II. INDICTMENT.

§ 1880. An indictment under the Crimes' Act, charging that Indictment the prisoners "then and there did make a revolt," does must par- not adequately describe the offence; the particulars must be set forth. It is otherwise, however, when the charge is for "endeavoring to make a revolt," when details need not be given.2

revolt.

Such confinement must be malicious and real.

III. CONFINING MASTER.

§ 1881. To constitute the offence of confining the captain, the act of confining must be maliciously done. Any such confinement, whether by depriving him of the use of his limbs, or by shutting him in the cabin, or by intimidation preventing him from the free use of every part of the vessel, amounts to a confinement of the master within the 12th section of the Act of 1799.4 To take hold of the master on the deck, and afterwards present a pistol at his breast in the cabin, thereby preventing his going on deck, is a confinement under the act. Such confinement is not limited merely to a seizure of the master, and preventing the moving of his body, or to locking him up in a particular place, as a cabin or stateroom, but extends to all restraints of personal liberty in freely going about the ship, by present force, or threats of bodily injury. The offence, if committed within the mouth of a foreign river which is a mile and a half wide, is within the act of Congress. If the master of a vessel is restrained from performing his duties by such mutinous conduct in his crew as would rea

1 U. S. v. Almeida (D. C. U. S.), Sumner, 448; U. S. v. Ashton, 2 SumWhart. Prec. 1061, 1062. ner, 13; U. S. v. Cassidy, 2 Sumner, 582; U. S. v. Rogers, 3 Sumner, 342; U. S. v. Seagrist, 4 Blatch. 420.

2 U. S. v. Bladen, 1 Pet. C. C. 213; U. S. v. Smith, 3 Wash. C. C. 525; U. S. v. Kelly, 4 Wash. C. C. 528; 11 Wheat. 417; U. S. v. Smith, 1 Mason, 147; U. S. v. Hamilton, 1 Mason, 443; U. S. v. Keefe, 3 Mason, 475; U. S. v. Hemmer, 4 Mason, 105; U. S. v. Haines, 5 Mason, 272; U. S. v. Gardner, 5 Mason, 402; U. S. v. Barker, 5 Mason, 404; U. S. v. Savage, 5 Mason, 460; U. S. v. Thompson, 1 Sumner, 168; U. S. v. Morrison, 1

428.

U. S. v. Henry, 4 Wash. C. C.

4 U. S. v. Sharp, 1 Pet. C. C. 118. See Rev. Stat. U. S. § 5539.

5 U. S. v. Stevens, 4 Wash. C. C. 548.

U. S. v. Hemmer, 4 Mason, 105. 7 U. S. v. Smith, 3 Wash. C. C.

525.

sonably intimidate a firm man, this is a confinement within the meaning of the act of Congress.1 The fact that the master went armed to every part of the ship, if it was necessary for his safety that he should protect himself, will not vary the case.2 Seizing the person of the master, although the restraint is but momentary, is a confinement prohibited by law; and such conduct is not excused or justified by a previous battery on the seamen, to enforce a command which the seamen ought to have obeyed. It is sufficient that there is a personal seizure or restraint of the master, although it may be for the purpose of inflicting personal chastisement.4

1 U. S. v. Bladen, 1 Pet. C. C. 213. able fear for his own safety, although 2 Ibid. not actually molested, it is a confineU. S. v. Bladen, 1 Pet. C. C. 213; ment. So, too, seizing the person of U. S. v. Savage, 5 Mason, 460. the master, though but for a minute or two; and seizing him, though only temporarily and for the purpose of inflicting upon him personal chastisement, are within the meaning of the act. But the restraint, whether moral or physical, must be an illegal restraint.

4 Ibid. "The offence of confining the master," says Mr. Curtis (Rights and Duties of Merchant Seamen, 124), "is not limited to mere personal restraint by seizing him and preventing the free movements of his body, nor to imprisonment in any specific place. It is equally a confinement within the act, to prevent him from free movement about the ship, by force or intimidation, as by limiting him to walking on a particular part of the deck, by terror of bodily injury, or by present force. If he is surrounded and prevented from moving where he pleases, according to his rights and duties as a master, under the threats of force, or if he is restrained from going to any part of the ship by an avowed determination of the crew, or any part of them, to resist him and to employ adequate force to prevent it, these fall within the meaning of confinement. So, too, if the master is prevented from performing the duties of his station by such mutinous conduct of his crew as would reasonably intimidate a firm man, it is confinement; and if he is compelled to go armed about the ship from a reason

"If the master is about to do an illegal act, and especially a felony, a seaman may lawfully confine or restrain him. So a seaman may confine the master in justifiable self-defence. If the master assault him without cause, he may restrain the master so long and with so much force as are necessary for this purpose. And if he is suddenly seized by the master, and without any intention of restraining him of his liberty, from the mere impulse of nature, he seizes hold of the master to prevent any injury, for an instant only, and as soon as he may he withdraws the restraint, so that the act may fairly be deemed involuntary, it might not, perhaps, be deemed an offence within the act, even though the seizing by the master be strictly justifiable; for the will must coöperate with the deed. But if the seizing by the master be justifia

or selfdefence

may be a defence.

§ 1882. A master of a vessel may so conduct himself as to Necessity justify the officers and crew in placing restraints upon him, to prevent his committing acts which might endanger the lives of all on board; but an excuse of this kind must be listened to with great caution, and such measures should cease whenever the occasion for them ceases. To continue the confinement after the necessity is over is a new and indictable imprisonment.1

ble, and he does not exceed the chastisement which he is by law entitled to inflict, then the seaman cannot restrain him, but is bound to submit; and if he does hold the master in per608

sonal confinement or restraint, it is an offence within the statute."

1 Ibid. See 1 Wh. Dig. 5th ed. 578. Supra, §§ 95 et seq.