United States v. Holmes

26 F.Cas. 360 (1842)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

The 'William Brown', left Liverpool bound for Philadelphia. She had on board 17 crew, and 65 passengers. The vessel struck an iceberg and began to fill so rapidly that it was evident she must soon go down. The long-boat and jolly-boat were cleared away and lowered. The captain, the second mate, 7 of the crew, and 1 passenger got into the jolly-boat. The first mate, 8 seamen, of whom D was one, and 22 passengers got into the long-boat. The remaining passengers, 31 persons, were obliged to remain on board the ship. An hour and a half later she sank taking with her the 31 persons. The next day, the captain, being about to part company with the long-boat, gave its crew several directions. He advised them to obey all the orders of the mate, as they would obey his, the Captain's. As soon as the long boat had been launched it began to leak. The passengers had buckets and tins, and, by bailing, were able to reduce the water, so as to make her hold her own. The long-boat and all on board were in great jeopardy. Even without a leak, she would not have supported one-half of her company, had there been ' a moderate blow.' 'she would have swamped very quickly. The people were half naked and were 'all crowded up together like sheep in a pen.' The long-boat did survive a full twenty-four hours after the ship struck the iceberg. The crew rowed and the passengers bailed. On Tuesday morning it began to rain and continued to rain throughout the day and night of Tuesday. At night the sea grew heavier, and once, or oftener, the waves splashed over the boat's bow so as to wet, all over, the passengers who were seated there. At about 10 o'clock of Tuesday night, D and the rest of the crew began to throw over some of the passengers and did not cease until they had thrown over 14 male passengers. Not one of the crew was cast over. One of them, the cook, was a negro. None of the crew of the long-boat were present at the trial, to testify, and, with the exception of one small boy, all the witnesses from the long-boat were women,--mostly quite young. The mate directed the crew 'not to part man and wife, and not to throw over any women.' There was no other principle of selection. There was no evidence of a combination among the crew. No lots were cast, nor had the passengers, at any time, been either informed or consulted as to what was not done. D was one of the persons who assisted in throwing the passengers over. When it was the turn of Francis Askin, Francis offered Ds five sovereigns to spare his life till morning, 'when,' said he, 'if God don't send us some help, we'll draw lots, and if the lot falls on me, I'll go over like a man.' Holmes said, 'I don't want your money, Frank,' and put him overboard. On Wednesday morning the weather cleared and early in the morning the long-boat was picked up by the ship 'Crescent.' All the persons who had not been thrown overboard were thus saved. The captain and the second mate testified that D had ever been obedient to orders faithful to his duty, and efficient in the performance of it,--'remarkable so,' said the second mate. While on the long-boat, in order to protect the women, D had parted with all his clothes, except his shirt and pantaloons; and his conduct and language to the women were kind. The judge explained the distinction between murder and manslaughter and explain that although homicide was committed, there was yet an absence of bad motive. The judge stated that the case does not become 'a case of necessity,' 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. The court instructed that under these circumstances the sailor is bound to undergo whatever hazard is necessary to preserve the boat and the passengers. Should the emergency become so extreme as to call for the sacrifice of life, there can be no reason why the law does not still remain the same. The passenger, not being bound either to labour or to incur the risk of life, cannot be bound to sacrifice his existence to preserve the sailor's lives. The captain, indeed, and a sufficient number of seamen to navigate the boat, must be preserved; for, except these abide in the ship, all will perish. But if there be more seamen than are necessary to manage the boat, the supernumerary sailors have no right, for their safety, to sacrifice the passengers. 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 the selection of the victim. When the selection has been made by lots, the victim yields of course to his fate, or, if he resists, force may be employed to coerce submission. D was convicted and moved for a new trial.