united states v. holmes and 1842 and liverpool and william brown and holmes

You can tell, as you read this case, that Lon Fuller's masterful hypothetical, the Case of the Speluncean Explorers, was based to a great extent on Holmes. In this mini-essay I propose to introduce a few words from the case, describe the facts and arguments of counsel briefly and then summarize the Court's decision. As is always the case, much more could be said.

The Vocabulary of 19th Century Law

Reading documents from different centuries ought to make us slow down to digest the way things are said, as well as the actual arguments made. I noted the following words or phrases that you should know.

a) p. 3, bottom, "descry." It means to limn or to see, but carries with it the connotation of recognizing something that only gradually comes into sight.

b) p. 5, top, "deep romance, and of pathetic interest." Our use of "pathetic" today is rather limited; historically it refers to anything that engages the passions or emotions.

c) p. 7, throughout, "It (the danger) must be instant." We only use the word "instant" now to describe something that is "right now." But when a 19th century person spoke of an "instant danger," that person meant something that was imminent. Perhaps you recall old cases which have facts that speak of the "15th instant" or something like that. It means the 15th day of the current month.

d) p. 7, the Latin phrase, "Necesse est et ut eam; non ut vivam." This ought to chagrin you if you don't know Latin, because the Court then says, "No other doctrine than this one can be adopted." Thus, you need to know what this means. You can divine it from FN 10, but the literal translation is: "It is necessary that I go, not that I live." That is, the DA is making the point that fidelity to duty is the basic responsibility of the sailor. If he was so concerned about his life, he would never have made the trip.

e) p. 10, bottom, "the supernumerary sailors have no right...to sacrifice the passengers." This is part of the charge given by Justice Baldwin to the jury (why is it Justice Baldwin, and why is there a jury?) It means "extra" or those beyond what are strictly needed to accomplish a task.

f) p. 11, middle, "sortition should be adopted." It is derived from the Latin and means to cast or draw lots. You can figure out the meaning from the context, but the word is very useful to know.

You should also note several instances of this type of vocabulary in Fuller's hypothetical.

Facts and Arguments*

[*We could go into some detail on procedure in the case, the statute under which Holmes was charged, and the statute the Court used to silence the reporters, but I will not say anything more about those for purposes of this essay.]

The American ship William Brown left Liverpool harbor bound for the States on March 13, 1841, laden with 82 passengers and crew. While still about 250 miles off the coast of Newfoundland, the ship hit an iceberg. Because the ship would soon sink, the crew/passengers were divided into three groups, of 10, 41, and 31 and put in the jolly boat, long boat and William Brown, respectively. The first all survived, the last all perished, and the problems described in this case arose for those in the long boat. It took on water rapidly. To forestall the danger of sinking, the "prisoner" (who happened to be a sailor) at the behest of the mate in charge, proceeded to throw overboard about a dozen men. The case is replete with vivid images of the desperate situation faced by all, which should encourage you to linger carefully over the picturesque language. Shortly after the long boat was thus lightened, a ship spotted the long boat and all the remaining passengers/crew were saved.

Holmes was indicted under a 1790 federal statute which would have permitted a penalty of three years imprisonment and a fine if he was convicted of manslaughter (why wasn't he brought on charges under the "murder" prong of the statute?). The DA argued that since the danger faced by Holmes in throwing people overboard (and Askin in particular, since he was indicted for Askin's death) was not "instant", and since "full notice" wasn't given to all on board [i.e., there was no lottery or other method to select victims], then the throwing over of any particular passenger leading to his death violated the law. However, he also rested his case on a "stronger ground," which is that "The seaman...is bound, beyond the pasenger, to encounter the periols of the sea. To the last extremity, to death itself, must he protect the passenger. It is his duty." When he, instead of protecting them, ends up throwing them to their death, he has violated the sailor's duty and thus cannot seek the protection of the law. "The duties of life are more than life," as FN 10 says.

Holmes' defense attorney argued that this was an instance of justifiable self-defense, and that he (Holmes) "need not wait till the certainty of the danger has been proved, past doubt.." The defense attorney skillfully portrayed the horrible conditions of the moment. "Terrour had assumed the throne of erason, and passion had become judgment." Is any court really in a position to second guess the crew, to come in "with square, rule and compass, deliberately to measure this boat..to weigh these passengers, call in philosophers, discuss specific gravities, calculate by the tales of a life insurance company the changes of life..."? Of course not. In addition, the defense put on the case that Holmes actually acted heroically, both in saving some passengers and in spotting the ship that eventually would save them.

The Ground of Decision

Justice Baldwin gave a long charge to the jury by distinguishing between murder and manslaughter and then describing a "case of necessity" as when "all ordinary means of self preservation have been exhausted." The jury found Holmes guilty, but the defense then asked for a new trial "largely upon the existence of the state of nature, as distinguished from the social state" (p. 12). This is interesting in light of the Speluncean case. Baldwin held, however, that the jury had properly deliberated, that the "rule" requested by the defense ought to be "discharged" and that Holmes' conviction would be upheld. Crucial to his determination seemed to be the role that sailors played in relation to passengers. They are placed "in different relations." His central point was that "we may safely say that the sailor's duty is the protection of the persons intrusted to his care, not their sacrifice." Since Holmes had already served seven months in "gaol" awaiting trial, he would be sentenced to undergo six months more in solitary confinement at hard labor (what might that have meant in 1842?) and pay a fine of $20.

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