of orders, but where the disobedience is to such an extent as to render the discharge of the seaman imperatively necessary to the safety of the ship, and the due preservation of discipline.

I must say, that I cannot but regret that the law should be as it is, namely, that the whole wages must be forfeited, or none at all; that the penalty is not according to the enormity of the offence, but to the duration of the service. From this loose state of the law I draw, however, one conclusion: that as the penalty cannot be mitigated, the facts which call for it must be of a very strong description, and clearly proved.

ment.

I now proceed to consider the facts of this case, in order to determine whether, all circumstances considered, there has been such a disobedient, or insubordinate, or mutinous conduct in this seaman, as will necessarily work the forfeiture of his wages for twenty-two months. It appears, that in March 1837, the vessel sailed from this country with a cargo to Bombay and China. On her return voyage, she reached the Cape of Good Hope in September 1838, where Thompson, the master, and likewise the first mate, were found guilty of having occasioned the death of a seaman on board the vessel; the former being sentenced to fourteen years transportation, and the latter to two years imprisonWhen I see circumstances of this kind occurring on board a merchant vessel, the owners of which contend for the forfeiture of the entire wages of one of the crew, on the ground of misconduct, they are not unimportant in their bearing upon the question. If owners of a vessel are desirous of securing the good behavior of the crew, they should select a master who will fulfil his obligations towards those under him, and treat them with humanity and attention; who will not only preserve due discipline, but set the crew a beneficial example of good conduct on his own part. For the master's conduct the owners must necessarily be responsible, and looking at the facts I have stated, must not these mariners have had the worst example set them? Must not the discipline of the ship have been weakened, and the crew have been tempted to commit offences, by those who were invested with control and

authority over them? As long as I sit in this chair, I never will omit impressing upon owners of the commercial marine of this country, a sense of the importance of using circumspection in the selection of masters, upon which materially depends the safety of their property.

I think these facts sufficient to relieve me from the necessity of touching upon any thing which occurred prior to the vessel's arrival at the Cape; not because there were no grounds of complaint up to that time, but it is hardly possible to contend that there is any misconduct proved, prior to the arrival at St. Helena, which could work a forfeiture of wages.

Now the facts which occurred at St. Helena, as pleaded in the summary petition of the mariner, are these. The vessel arrived at St. Helena, on her homeward voyage, on the 1st November, 1838. On the night of Saturday, the 3d, several of the crew, including Kendall, drank to excess, and became intoxicated. At half past four o'clock next morning, the crew were called up to heave the anchor; but when they came on deck, “being still in a state of intoxication," they refused to obey such order, and again went below. The summary petition of the mariner goes on to state, that about half past six A. M., captain Hadden, the master (who was appointed to the command at the Cape, and no complaint is preferred against his conduct, that he did not perform his duty to the crew with fidelity and humanity,) a second time ordered the men to get up the anchor, "when six of the crew, including Kendall, again refused to obey such order, and being still, as before, in a state of intoxication, otherwise conducted themselves in a mutinous manner." The master, thereupon, sent on board H. M.'s ship, Fair Rosamond, then lying at St. Helena, for assistance the commander and one of his officers came on board the Blake, when the order to the men to proceed to their duty was renewed, but which they again (still under the influence of liquor) refused to obey. Williams and Fullarton, two of them, were thereupon taken out of the Blake, on board the Fair Rosamond; but they subsequently volunteered, and were not taken as prisoners, and the master gave to each an order for the balance of their

wages up to that period. In a very short time after this took place, the mariner alleges, he returned to his work, and discharged his duty during the remainder of the voyage.

The responsive or defensive allegation states the facts with some difference. It alleges that there was an illegal and a mutinous combination on the part of the crew; that they were not so much intoxicated on the occasion as to be incapable of performing their duty; that Williams (one of the ringleaders,) on being ordered by the chief mate to go forward, "shook his fist in his face in a threatening manner, and used very abusive language;" that when several of the crew, in obedience to the master's order, went to the windlass to heave the anchor, Kendall, Williams, and Fullarton "did every thing in their power to stop the work, and tried to take the men from their bars, and fought them; and Kendall threw a handspike at W. Thompson, one of the crew, then at the windlass, and hit him on the head;" and that the two men were sent on board the man-of-war as prisoners, not as volunteers.

Now I am naturally led to inquire, if there was a conspiracy to commit an act of disobedience, what was the cause which occasioned these men to conspire? There must have been some cause, and something of the nature of a plan to resist the authority of the master. But after looking into the evidence with great care, there is a total absence of all proof of any deliberate combination or concerted conspiracy. On the contrary, the res gestæ are of a very different character, and I the more rely on this circumstance, because, when there is a deliberate plan formed beforehand, all the crew being in a state of sobriety, the conduct of the parties will be of a different complexion from that where there is an accidental disobedience of orders arising from temporary circumstances. It appears that the crew had been drinking during the whole night of the 3d November; that, in addition to their Saturday night's allowance, they got six bottles of liquor from another ship, as a present, and continued during the night singing and drinking. It would appear that it was notorious that the men were so drinking, if not to the master, at least to some of the mates, and at half past four in the morning, whilst they were

in a state of intoxication, orders were given to raise the anchor. What followed? Insolence, insubordination, and disobedience of orders.

Looking to the evidence on the owners' allegation, if I were to take captain Hadden's testimony alone, it is quite clear that he does not speak to facts which would amount to a forfeiture of wages on the part of this mariner. Captain Hadden was unwell at the time, and it must be supposed that he was ignorant of what was going on during the night, and he did not see the whole transaction when he came on deck. He says, that on the morning of Sunday, the 4th of November, at daybreak, he desired the chief mate to call up the crew to heave up the anchor, and get under weigh; that in about three quarters of an hour after giving the order, he went on deck himself. Previous to this, whilst he was getting on his clothes, Williams came into the cuddy, and upon being asked what he wanted there, replied, "We want to go ashore." Capt. Hadden says, he ordered him out of the cuddy, and desired him to go to his duty; but he said, he would see the master d-d first before he would go to sea that day, and persisted in remaining in the cuddy. Capt. H., being in a weakly state of health, was unable personally to turn him out. The chief mate came, and ordered Williams forward, when he left the cuddy, as well as the mate. He heard a good deal of swearing outside, and the voice of Williams in particular. When captain H. had finished dressing, he came out, and found the chief part of the crew (including Kendall, Williams, and Fullarton) aft on the quarter-deck, near the poop, their proper station at that time being forward of the mainmast. Captain H. says: "I went upon the poop, and ordered the crew to man the windlass: there was a general answer given by the crew, that they wanted to go on shore. Fullarton, in answer to my order, said he would see me d-d first. Several of the crew, including the carpenter, apprentices, and a man who acted as boatswain, and who were willing to work, assembled at the windlass, and attempted to heave it round; but were unable for want of hands. I returned from the poop to the cuddy, and while there, heard a deal of quarrelling

and fighting on deck, but did not exactly see what did take place. The crew were not drunk upon that occasion." This is against a great part of the evidence adduced by the owners, and almost the whole evidence in the cause. Capt. Hadden was ignorant of the fact, that they had been drinking all night. He says: "At the end of about an hour, finding the people tolerably quiet on deck, I again went up on the poop, and again called all hands aft. They mustered about the capstan. I desired them to man the windlass, and advised them to give over quarrelling, and return to their duty. The same men, who had before refused to weigh the anchor, did so again, saying they wanted to go on shore. I told them I was not going to detain the ship to let them go ashore. They again refused, when I told them they had better go to their duty by fair means. Williams, Fullarton, and Kendall, were among those who so refused to weigh anchor; Kendall being chiefly their spokesman. I told them, if they would not go to their duty, I must send for assistance from the man-of-war. Williams made answer, "We'll all enter on board the man-ofwar, and leave the in the lurch." Capt. H. says, that on the commander of the man-of-war coming on board, Williams and Fullarton were taken away "as prisoners;" but he admits that he gave to the commander a statement of the rate of pay of the men, and the stores each had.

I think it impossible, on such a representation as this, to hold that there has been a forfeiture of wages for twenty-two months. I do not say that the conduct is not very reprehensible; that it is not extremely culpable conduct; but I do not think it can be considered such an offence (committed, as it was, in a state of intoxication) as should work a forfeiture of wages, followed, as it was, by an efficient performance of duty during the rest of the voyage. According to the evidence of the master, Kendall did not use abusive language; and although it is alleged that he was guilty of an act of violence by throwing a handspike at William Thompson, and striking him on the head, what turns out to be the fact? Thompson has been examined, and denies the statement; he says, it was a mere accident, and had nothing to do with the disturb