| U.S. Circuit Court for the District of Eastern Pennsylvania | Apr 22, 1842
on taking his seat, now said: “By an act of congress, passed some years since,
The reporters expressed their acquiescence in this order of the court, and the most respectful silence, on the part of the press, prevailed during the whole trial.
The prosecution was conducted by Mr. Win. M. Meredith, U. S. Dist. Atty., Mr. Dallas, and 0. Hopkinson; the defence by David Paul Brown, Mr. Hazlehurst, and Mr. Armstrong.
Mr. Dallas. The prisoner is charged with “unlawful homicide,” as distinguished from that sort which is malicious. His defence, is that the homicide was necessary to self-preservation. First, then, we ask: Was the homicide thus necessary? That is to say. was the danger instant, overwhelming, leaving no choice of means, no moment for deliberation? For. unless the danger were of this sort, the prisoner, under any admission, had no right, without notice or consultation, or lot, to sacrifice the lives of 1G fellow beings. Peril, even extreme peril, is not enough to justify a. sacrifice such as this was. Nor would even the .certainty of death be enough. if deifth were yet prospective. It must be instant. ''The law regards every man’s life as of equal value. It regards it. likewise, as of sacred value. Nor may any man take away his brother’s life, but where the sacrifice is indispensable to save his own. (Mr. Dallas then examined the evidence, and contended that the danger was not so extreme as is requisite to justify homicide.) But it will be answered, that death being certain, there was no obligation to wait until the moment of death had arrived. Admitting, then, the fact that death was certain, and that the safety of some persons was to be promoted by an early sacrifice of the others, what law, we ask, gives a crew, in such p case, to be the 'arbiters of life and death, settling, for themselves both the time and the extent of the necessity? No. We protest against giving to seamen the power thus to make jettison of human beings, as of so much cargo; of allowing sailors, for their own safety, to throw overboard, whenever they may like, whomsoever they may choose. If the mate a seamen believed that the ultimate safety of a portion was to be advanced by the sacrifice of another portion, it was the clear duty of that officer, and of the seamen, to give full notice to all on board. Common settlement would, then, have fixed the principle of sacrifice, and, the mode of selection involving all, a sacrifice of any would have been resorted to only in dire extremity. Thus far, the argument admits that, at sea. sailor and passenger stand upon the same base, and in equal relations. But we take, third, stronger ground. The seaman. we hold, is bound, beyond the passenger, to encounter-the perils of the sea. To the last extremity, to death itself, must he protect the passenger. It is his duty. It is on account of these risks that he is paid. It is because the sailor is expected to expose himself to every danger, that, beyond all mankind, by every law. his wages are se
Mr. Armstrong opened the defence, and was followed by Mr. Brown.
We protest against the prisoner being made a victim to the reputation of the marine law of the country. It cannot be, God forbid that it should ever be, that the sacrifice of innocence shall be the price at which the name and honour of American jurisprudence is to be preserved in this country, or in foreign lands. The malediction of an unrighteous sentence will rest more heavily on the law, than on the prisoner. This court (it would be indecent to think otherwise) will administer the law. “uncaring consequences.” But this case should be tried in a long-boat, sunk down to its very gunwale with 41 half naked, starved, and shivering wretches,—the boat leaking from below, filling from above, a hundred leagues from land, at midnight, surrounded by ice, unmanageable from its load, and subject to certain destruction from the change of the most changeful of the elements. the winds and the waves. To these superadd the horrours of famine and the recklessness of despair, madness, and all the prospects, past utterance, of this unutterable condition. Fairly to sit in judgment on the prisoner, we should, then, be actually translated to his situation. It was a conjuncture which no fancy can image. Terrour had assumed the throne of reason, and passion had become judgment. Are the United States to come here, now, a year after* the events, when it is impossible to estimate the elements which combined to make the risk, or to say to what extent the jeopardy was imminent': Are they, with square, rule and compass, deliberately to measure this boat, in this room, to weigh these passengers, call in philosophers, discuss specific gravities, calculate by the tables of a life insurance company the chances of life, and because they, these judges, find that, by their calculation, this unfortunate boat’s crew might have had the thousandth part of one -poor chance of escape, to condemn this prisoner to chains and a dungeon, for what he did in the terrour and darkness of that dark and terrible night. Such a mode of testing men’s acts and motives is monstrous. We contend, therefore, that what is honestly and reasonably believed to be certain death will justify self-defence to th? degree requisite for excuse. According to Dr. Rutherford (Inst. Nat. Law, bk. 1, e. 16. § 5i: “This law.”—i. e. tile law of nature.—“cannot be supposed to oblige a man to expose his life to such dangers as may be guarded against, and to wait till the danger is jusi coming upon him. before it allows him to secure himself.” In other words, he need not wait till the certainty of the danger has been proved, past doubt, by its result. Yet this is the doctrine of the prosecution. They ask us to wait until the boat has sunk. We may, then, make an effort to prevent her from sinking. They tell us to wait till all are drowned. We may, then, make endeavours to save a part. They command us to stand still till we are all lost past possibility of redemption, and then we may rescue as many as can be saved. Where the danger is instantaneous, the mind is too much disturbed, says Rutherford, in a passage hereafter cited, to deliberate upon the method of providing for one’s own safety, with the least hurt to an aggressor. The same author then proceeds: "I see not. therefore. any want of benevolence which can be
Counsel say that lots are the law of the ocean. Lots, in cases of famine, where means of subsistence are wanting for all the crew, is what the history of maritime disaster records; but who has ever told of easting lots at midnight, in a sinking boat, in the midst of darkness, of rain, of terrour, and of confusion? To cast lots when all are going-down, but to decide who shall be spared, to cast lots when the question is. whether any can be saved, is a plan easy to suggest, rather difficult to put in practice. The danger was instantaneous, a ease, says Rutherford (Inst. Nat. Law, bk. 1. c. 16, § 5), when “the mind is too much disturbed to deliberate,” and where, if it were “more calm,” there is no time for deliberation. The sailors adopted the only principle of selection which was possible in an emergency like theirs,—a principle more humane than lots. Man and wife were not tom asunder, and the women were all preserved. Lots would have rendered impossible this clear dictate of humanity. But again: The crew either were in their ordinary and original state of subordination to their officers, or they were, in a state of nature. If in the former state, they are excusable in law, for having obeyed the order of the mate,—an order twice imperatively given. Independent of the mate’s general authority-in the captain’s absence, the captain had pointedly directed the crew to obey all the mate's orders as they would his, the captain’s; and the crew had promised to do so. It imports not to declare that a crew is not bound to obey an unlawful order, for to say that this order was unlawful is to postulate what remains to be proved. Who is to judge of the unlawfulness? The circumstances were peculiar. The occasion was emergent, without precedent, or parallel. The lawfulness of the order is the very question which we are disputing; a question about which this whole community has been agitated, and is still divided; the discussion of which crowds this room with auditors past former example; a question which this court, with all its resources, is now engaged in considering, as such a question demands to be considered, most deliberately, most anxiously, most cautiously. It is no part of a sailor’s duty' to moralize and to speculate, in such a moment as this was, upon the orders of his superiour officers. The commander of a ship, like the commander of an army, “gives desperate commands. He requires instantaneous obedience." The sailor, like the soldier, obeys by-instinct. In the memorable, immortal words of Carnot. when he surrendered Antwerp in obedience to a command which his pride, his patriotism, and his views of poiL-y- combined to oppose: -‘The armed force is essentially obedient. It acts, but never deliberates.” This greatest man of the French Revolution did here but define, with the precision of the algebraist, what he conceived with the comprehension of a statesman; and his answer was justification with every soldier in Europe. How far the principle was felt by this crew, let witness the case of this very mate, and of some of these very sailors, who, by the captain's order, left the jolly-boat, which had but 10 persons, for the long-boat, with more than tour times that number. See ante, p. 360, note 2. They all regarded this as going into the jaws of death. Yet not a murmur. It is a well-known fact that in no marine on the ocean is obedience to orders so habitual and so implicit as in our own. The prisoner had been always distinguished
On the 22d of April, the same day, Mr. Meredith, district attorney, replied, speaking principally to the evidence.
BALDWIN, Circuit Justice, charging jury, alluded to the touching character of the case; and. after stating to the jury what was the offence laid in the indictment, his honour explained. with particularity', the distinction between murder and manslaughter. He said that, malice was of the essence of murder, while want of criminal intention was consistent with the nature of manslaughter. He impressed strongly upon the jury, that the mere absence of malice did not render homicide excusable: that the act might be unlawful. as well as the union of the act and intention. in which union consisted the crime of murder. After giving several familiar in stances of manslaughter, to explain that, al though homicide was committed, there was yet an absence of bad motive, his honour proceeded with his charge nearly as follows:
In such eases, the law neither excuses the act nor permits it to be justified as innocent; but. although inflicting some punishment, she yet looks with a benignant eye. through the thing done, to the mind and to the heart; and win'll, on a view of all the circumstances connected with the act, no evil spirit is discerned. her humanity forbids the exaction of life for life. But though, said the court, cases of this kind are viewed with tenderness. and punished in mercy, we must yet bear in mind that man, iii taking away the life of a fellow being, assumes an awful responsibility' to God, and to society; ánd that the administrators of public justice do themselves assume that responsibility if, when called on to pass judicially upon the act, they yield to the indulgence of misapplied humanity. / It is one thing to give a favourable interpretation to evidence in order to mitigate an offence. It is a different thing, when we are asked, not to extenuate, but to justify, the act. ’ In the former case, as I have said, our decision may in some degree be swayed by feelings of humanity; while, in the latter, it is the law of necessity alone which can disarm the vindicatory’ justice of the country. Where, indeed, a case does arise, embraced by this “law of necessity.'' the penal laws pass over such case in silence: for law is made to meet but the ordinary exigencies of life. But the case does not become/‘“a case of necessity,1” unless all ordinary means of self preservation have been exhausted.' The peril must be instant, overwhelming, leaving no alternative but to lose our own life, or to take the life of another person. An illustration of this principle occurs in the ordinary case of self-defense against lawless violence, aiming at the destruction of life, or designing to inflict grievous injury’ to the person; and within this range may fall the taking of life under other circumstances where the act is indispensably requisite to self-existence. For example, suppose that two persons who owe no duty to one another that is not mutual, should, by accident, not attributable to either, be placed in a situation where both cannot survive. Neither is bound to save the other’s life by sacrificing his own, nor would either commit a crime in saving his own life in a struggle for the only means of safety. Of this description of cases are those which have been cited to you by counsel, from writers on natural law.—cases which we rather leave to your imagination than attempt minutely to describe. And I again state that when this great “law of necessity” does apply, and is not improperly exercised, the taking of. life is devested of unlawfulness.
But in applying this law. we must look, not only to the jeopardy in which the parties alv. but also to the relations in which they stand. - The slayer must be under no obligation to make his own safety secondary’ to the safety of others. A familiar application of this principle presents itself in the obligations which rest upon the owners of stages, steamboats, and other vehicles of transportation. In consideration of the payment of fare, the owners of the vehicle are bound to transport the passengers to the place of contemplated destination. Having, in all emergencies, the conduct of the journey, and the control of the passengers, the owners rest under every obligation for care, skill, anil general capacity; and if. from defect of any of these requisites, grievous injury is done
But, in addition, if the source of the danger have been obyious. and destruction ascertained to be certainly about to arrive, though ata future time, there should be consultation, and some mode of selection fixed, by which those in equal relations may have equal chance, for their life. By what mode, then, should selection be made? The question is not without difficulty; nor do we know of any rule prescribed, either by statute or by common law. or even by speculative writers on the law of nature. In fact, no rule of general application can be prescribed for contingencies which are wholly unforeseen. There is, however, one condition of extremity for which all writers have prescribed the same rule. When the ship is in no danger of sinking, but all sustenance is exhausted, and a sacrifice of one person is necessary to appease the hunger of others, the selection is by lot. This mode is resorted to as the fairest mode, and. in some sort, as an appeal to God, for selection of the victim. This manner, obviously, was regarded by the mate, in parting with the captain, as the one which it was proper to adopt, in case the long-boat could not live with all who were on board on Tuesday morning. The same manner. as would appear from the response given to the mate, had already suggested itself to the captain. For ourselves, we can conceive of no mode so consonant both to humanity and to justice; and the occasion, we think, must be peculiar which will dispense with its exercise. If, indeed, the peril be instant and overwhelming, leaving no chance of means, and no moment for deliberation, then, of course, there is no power to consult, to cast lots, or in any such way to decide; but even where the final disaster is thus sudden, if it have been foreseen as certainly about to arrive, if no new cause of dauger have arisen to bring on the closing catastrophe. if time have existed to cast lots, and to select the victims, then, as we have said, •sortition should be adopted. In no other than this or some like way are those having equal rights put upon an equal footing, and in no other way is it possible to guard against partiality and oppression, violence and conflict. What scene, indeed, more horrible. can imagination draw than a struggle between sailor and sailor, passenger and passenger, or, it may be, a mixed affray, in which, promiscuously, all destroy one another? This, too, in circumstances which have allowed time to decide, with justice, whose life should be calmly surrendered.
When the selection has been made by lots, the victim yields of course to his fate, or, if he resist, force may be employed to coerce submission. Whether or not “a case of necessity" has arisen, or whether the law under which death has been inflicted have been so exercised as to hold the executioner harmless, cannot depend on his own opinion; for no man may pass upon his own conduct when it concerns the rights, and especially, when it affects the lives, of others. We have already stated to you that, by the law of the land, homicide is sometimes justifiable; and the law defines the occasions in which it is so. The transaction must, therefore, be justified to the law; and the person accused rests under obligation to satisfy those who judicially scrutinize his case that it really transcended ordinary rules. In fact, any other principle would be followed by pernicious results, and, moreover, would not be practicable in application. Opinion or belief may be assumed, whether it exist or not: and if this mere opinion of the sailors will justify them in making a sacrifice of the passengers, of course,
The court said, briefly, that the principles which had been laid down by them, as applicable to the crew, applied to the mate likewise, and that his order (on which much stress had been laid), if an unlawful order, would be no justification to the seamen, for that even seamen are not justified, in law, by obedience to commands which are unlawful. The court added that the case was one which involved questions of gravest consideration. and, as the facts, in some sort, were ■ without precedent, that the court preferred to state the law, in the shape of such general principles as would comprehend the case, under any view which the jury might take of the evidence.
After a few remarks upon the evidence, the case was given to the jury, who, about 16 hours afterwards, and after having once returned to the bar, unable to agree, with some difficulty, found a verdict of guilty. The prisoner was. however, recommended to the mercy of the court. On the same day a rule was obtained to show cause why judgment should not be arrested and a new trial granted. The following ground was relied on for a new trial: Because the court, instead of telling the jury that, in a state of imminent and deadly peril, all men are reduced to a state of nature, and that there is, then, no distinction between the rights of sailor and passenger, adopted a contrary doctrine, and charged the jury accordingly.
Mr. Brown subsequently showed cause. He insisted largely upon the existence of the state of nature, as distinguished from the social state, and contended that to this state of nature the persons in the long-boat had become reduced on Tuesday night, at 10 o'clock, when Askin was thrown overboard. He iterated, illustrated, and enforced the argument contained in the closing part of the defence. For the arrest of judgment he argued that the indictment was defective in not stating the name of the boat on which the homicide was alleged to have been committed; that the counts in this respect waut-ed certainty. The United States did not reply-
THE COURT held the application for some days under advisement, and, at a subsequent day. discharged the rule. They said that, during the trial (aware that no similar case was recorded in juridical annals), they had given to the subject studious and deliberate consideration, and they had paid like regard to what was now urged, but that, notwithstanding all that had been said (and the arguments, it was admitted, were powerful), no error had been perceived by the court, in its instructibns to the jury. It is true, said the court, as is known by every one. that we do find in the text writers, and sometimes in judicial opinions. • the phrases, '“the law of nature,” “the principles of natural right,” and other expressions of a like signification; but, as applied to civilized men, nothing more can be meant by those expressions than that there are certain great and fundamental principles of justice which,' in the constitution of nature. lie at the foundation and make part of all civil law. independently of express adoption or enactment. And to give to the expressions any other signification, to claim them as shewing an independent code, and one coutrariant to those settled principles, which, however modified, make a part of civil law in all Christian nations, would be to make the writers who use the expressions law down as rules of action, principles which, in their nature, admit of no practical ascertainment or application. The law of nature forms part of the municipal law; and, in a proper case (as of self-defence), homicide is justifiable, not because the municipal law is subverted by the law of nature, but because no rule of the municipal law makes homicide, in such cases, criminal. It is, said the court, the municipal or civil law. as thus comprehensive, as founded in moral and social justice,—the law of the land, in short, as existing and administered amongst us and all enlightened nations.—that regulates the social duties of men, the duties of man towards his' neighbour, everywhere. Everywhere are civilized men under its protection; everywhere, subject to its authority. It is part of the universal law. We cannot escape it in a case where it is applicable; and if. for the decision of any question, the proper rule is to be found in the municipal law, no code can be referred to as annulling its authority. Varying however, or however modified, the laws of all civilized nations, and, indeed, the very nature of the social constitution, place sailors and passengers in different relations. And, without stopping to speculate upon overnice questions not before us. or to involve ourselves in the labyrinth of ethical subtleties, we may safely say that the sailor’s duty is the protection of the persons intrusted to his care, not tlieir sacrifice.—a duty we must again declare our opinion, that rests on him in every emergency of his calling, and from which it would be senseless, indeed, to ab
Respecting the form of the counts, the court said that the locality of the offence whs sufficiently expressed, and'that, in a case so peculiar, it was impossible to express the place with more precision.
When the prisoner was brought up for sentence, the learned judge said to him, that many circumstances in the affair were of a character to commend him to regard, yet, that the case was one in which some punishment was demanded; that it was in the power of the court to inflict the penalty of an imprisonment for a term of three years, and a- fine of $1,000, but, in view of all the circumstances, and especially as the prisoner had been already confined in gaol several months, that the court would make the punishment more lenient. The convict was then sentenced to undergo an imprisonment in the Eastern Penitentiary of Pennsylvania, (solitary confinement) at hard labour, for the term of six months, and to pay a fine of $20.
Act March 2, 1831 (4 Story’s Laws U. S. 2256), by which it is enacted “that the power of the several courts of. the United States to issue attachments and inflict summary punishments for contempt of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the mis-behaviour of any of the officers of the said courts, in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree or command of the said courts."
The navy and army chronicles of England record many examples of Bacon's noble thought: “The duties of life are more than life." And certainly, in whatever circur-stances witnessed, such testimonials will prove a vindication of all that counsel here asserted. But most of these heroic examples (some of which were cited in file argument! have been on the part of officers, in England especially, men of high associations, and often highly educated. And we are ready to resolve much into the instinct of discipline, and much, perhaps, into the incentive of ambition. seeking the bubble reputation. An example more impressive than any of these, as it was that of a common sailor, occurred in our country, on Lake Erie, in the destruction of the steamboat Erie by fire, on the afternoon of the 9th of August, 1841. As soon as it was discovered that the flames could not be controlled, the captain ordered the helmsman to make for land, then within sight. The man accordingly turned the vessel. The fire having taken near midships, quickly reached the binnacle. Yet the man kept 1ns post, and his hand was on the wheel. The wreathing flames ere long enclosed him. and when every soul liad left the ship, his form was still to be seen amidst the flames, his clothes dropping from him. standing like a man of steel, and in performance of his duty, steering the flaming vessel to a headlánd.