Statute the crew. § 1885. FORCING a seaman on shore is a crime which, though strictly speaking not an offence upon the high seas, partakes so much of the nature of it, being virtually a covers all maltreatment of the crew out of the jurisdiction of any State of this Union, and cognizable in the same courts as have jurisdiction over the present class of offences, that it may not be out of place to consider it here.1 It will be seen that the statute does not leave it to judicial construction to include any inferior officer within its scope, but specially provides for such a contingency; and it has been held that it applies equally to officers or seamen in American ships, who are or are not citizens, or who are foreigners, provided they are not subjects of a State which by treaty prohibits the employment in its vessels, public or private, of white citizens of the United States.2 The act refers to such persons as the master "carried out" with him, and the "home" is the home port of the ship for the voyage. Obstinate refusal to obey is jus tifiable § 1886. Not every sufficient cause to discharge a seaman in a foreign port is a "justifiable cause" in the sense of this act.3 It must be such a cause as renders the forcing him on shore necessary to prevent the jeopardizing the safety of the officers or crew, or the due performance of the voyage, or the regular enforcement of the ship's discipline; and the onus probandi is on the master to prove such a cause. If a seaman, on being injured by a flogging and incapac cause. Mason, 192; U.S. v. Netcher, 1 Story, itated to do duty, refuses to do any more work, this is not a justifiable cause; if, on the contrary, he is able, and his refusal is from obstinacy and malice in order to revenge himself, and to destroy the ship's discipline and incite others of the crew to disobedience, it is sufficient cause. But the jury may infer “malice" on the master's part from the fact of forcing on shore, until the contrary is shown; "maliciously" meaning all acts wilfully or wantonly done against what any one of reasonable capacity must know to be his duty.1 § 1887. Three separate offences are included in the statute: — I. Maliciously and without justifiable cause forcing an officer or mariner ashore in a foreign port. II. Maliciously and without justifiable cause leaving any officer or mariner behind in a foreign port. III. Maliciously and without justifiable cause refusing to bring home again all the officers and mariners of the ship who are in a condition to return and willing so to do. is a defence The words "in a condition to return and willing to return" Desertion apply only to the third class; they are not requisite to make out the offence in the second or first.2 But it does to leaving behind. not follow that because a seaman is left behind, it is necessarily an offence within this act. An unauthorized absence of the man for forty-eight hours has been declared to amount to desertion; and an unauthorized absence has been held to be a defence to the master in cases when the seaman's return, within forty-eight hours, has been anticipated by the sailing of the ship.3 The words "maliciously and without probable cause" must always qualify and interpret the master's conduct. 1 U. S. v. Coffin, 1 Sumner, 399, and see cases there cited; U. S. v. Lunt, 14 Law Rep. 683. If it is alleged, as a justifiable cause, that the man was dangerous, it must be shown that a man of ordinary firmness would have been affected by his conduct. The Nimrod, 1 Ware, 9. The policy of the law is against the discharge of seamen in foreign ports (Hutchinson v. Coombs, 1 Ware, 65), 610 CHAPTER XLVI. ENGAGING IN SLAVE-TRADE. Persons having no power or interest in the Indictment must conform to statute, § 189 enterprise not responsible, § 1889. Offence based exclusively on statute, § 1892. Complicity to be shown inferentially, § 1890. Persons interest in over the having no or power not respon negroes Complicity to be shown in inferen § 1889. UNDER the Act of 1820, it has been held that a person having no interest in or power over the negroes transported, so as to impress upon them the character of slaves, and only employed in the transportation of them for hire from port to port, is not guilty.1 sible. § 1890. Complicity in the alleged act may be established inferentially. Thus on an indictment under the Act of April, 1818, against the owner of a slave-ship, the declarations of the master, being a part of the res gestae connected with acts in furtherance of the voyage, and within the scope of his authority, as agent of the owner, in the conduct of the guilty enterprise, are admissible in evidence against the owner.2 Evidence, also, on an indictment against the owner, under the Act of April 20, 1818, charging him with fitting out the ship, with intent to employ her in the illegal voyage, is admissible to show that he commanded, authorized, and superintended the outfit, through the instrumentality of his agents, without being personally present.3 1 U. S. v. Battiste, 2 Sumner, 240. For recent statutes see Rev. Stat. U. S. §§ 5376 et seq. tially. and to evade the responsibility of his conduct. Thus, though a freighting voyage of an American vessel, owned 2 U. S. v. Gooding, 12 Wheat. 460. and commanded by citizens of this 8 Ibid. There are various circumstances which will be received to show that a master of a vessel is guilty of participating in the offence of engaging in the slave-trade, however artfully he may contrive to present clean hands, country, from the United States to Rio Janeiro, with orders to the consignee to sell her at a limited price, or to let her for freight, is so far, primâ facie legal; and though she be chartered by the consignee for a certain time at a reasonable rate, to a § 1891. The indictment need not specify the particulars of the Indictment fitting out; it is sufficient to allege the offence in the words of the statute. Nor is it necessary that there should be any principal offender whom the defendant must conform to statute. Brazilian, with orders to carry no il legal goods, or persons not free, and she proceeds on a voyage to the coast of Africa, laden with rum, cottons, gunpowder, iron bars, brass rings, &c. (such goods as are in demand there, in exchanging for the usual products of that country), the owner of the cargo going with it; yet, nevertheless, this may all be shown to be colorable and false. It may be shown that the full intent and purpose of the voyage was not to exchange this cargo for gold-dust, palm-oil, or any other leading articles of traffic, but for slaves, to be embarked for the Brazils in other vessels; and if the master stands by and sees this exchange and embarkation made, and knowingly has brought the cargo's owner and others interested in the slave-trade thither, these are fair circumstances for a jury to infer his own guilt. U. S. v. Libby, 1 Wood. & M. 221. On an indictment charging the master with having received on board his vessel, at a certain place called Lorenzo Marquez, within flow of the tide, on the eastern coast of Africa, a certain negro, &c., with intent to make him a slave, the court ruled that anything done by the master or charterers, during the voyage and near the time when the negro was taken on board, might be shown to prove his knowledge and intent, but nothing of a separate and independent character, done at a different place and on a different voyage, and so distant in time as not to bear on this transaction, where the prisoner would not be likely to come prepared to meet it or rebut it at the trial. Ibid. 225. See Peo ple v. Hopson, 1 Denio, 574. Nor can it be shown what became of slaves put on board another vessel, sailing from that part of the coast, whilst the prisoner and his vessel were there, to the Brazils, unless some connection in interest and business be first shown. The letters and instructions of the owner and consignees to the master, written before the reception of the alleged slaves on board, are part of the res gestae, and good evidence (U. S. v. Libby, 1 Wood. & M. 221), and so are notarial letters of manumission of the two negroes taken on board; and any testimony pro or con. of the master's belief in their authenticity, when he so received them. If the master received on board his ship in Africa a negro, not supposing him to be free, and transports him to Brazil, his guilt would be according to whether he was merely carrying him for another, or an actual participator in the design himself. A passenger in such vessel, however, is not one of the crew or ship's company, within the scope of the statute. In short, to convict one under the Act of 1820 both intent and actual conduct, tending to make some one a slave, must be shown; and if a principal be not liable under our laws, another cannot be charged with aiding and abetting him, unless he do it in such a manner as to involve himself as a principal; nor has any act of Congress yet made punishable the transportation of any kind of goods to the coast of Africa, irrespective of the intent with which they are carried. Ibid. 240. 1 U. S. v. Gooding, 12 Wheat. 460. might be aiding and abetting. These terms in the statute do not refer to the relation of principal and accessary in cases of felony; both the actor and he who aids and abets the act are considered as principals. It is necessary that the indictment should aver that the vessel was built, fitted out, &c., or caused to sail, or be sent away, within the jurisdiction of the United States.2 An averment that the ship was fitted out, &c., "with intent that the said vessel should be employed" in the slave-trade, is fatally defective, the words of the statute being "with intent to employ" the vessel in the slave-trade, and exclusively referring to the intent of the party doing the act.3 The offence of sailing from a port, with intent to engage in the slave-trade, is not committed, unless the vessel sails out of the port. One of the phrases in the statute used being "persons of color," it is sufficient in the indictment to use the same words, without more definite specifications of the meaning of the words.5 § 1892. The illegality of the slave-trade arises from the federal legislation upon the subject, and not from its sup- Offence posed violation of the law of nations. Although it is based exnow prohibited by the laws of civilized nations gener- on statutes. ally, it may be still lawfully carried on by the subjects of those 1 Ibid. 2 Ibid. 8 Ibid. If the offence be alleged in the indictment to be on a day now last past, and on divers days and times before and since that day, this allegation is sufficient. U. S. v. La Coste, 2 Mason, 129. It is not necessary to allege that the negroes, &c., were to be transported to the United States or their territories; or that they were free and not bound to service; or that the defendant was a citizen or resident within the United States, or that the offence was committed on board of an American vessel. It is sufficient if the indictment follows, in this respect, the language of the statute, and is as certain. Ibid. clusively The offence under the 7th section of the Act of 2d of March, 1807, is not that of importing or bringing into the United States persons of color, with intent to hold or sell such persons as slaves, but that of hovering on the coast of the United States with such intent; and although it forfeits the vessel and any goods or effects found on board, it is silent as to disposing of the colored persons found on board, any further than to impose a duty upon the officers of armed vessels, who make the capture, to keep them safely, to be delivered to the overseer of the poor, or the governor of the State, or persons appointed by the respective States to receive the same. U. S. v. Preston, 3 Peters, 57. 4 U. S. v. La Coste, 2 Mason, 129. 5 Ibid. |