The disobedience or misconduct of seamen must be punishable by the master or officers with great severity if need be, from the necessity of preserving discipline, on which the safety of life and property depend. (w) Mere incompetency is no justification for the infliction of punishment. (x) Formerly there was no limit, either to the necessity or severity of punishment, except the responsibility of the person inflicting it, criminally, (y) and in damages to the seamen. (z) Now, however, flogging is prohibited by law. (a) But this has been held by the courts not to apply to such immediate punishment, as is inflicted upon an emergency, by a blow with the hand, or with a stick, or a rope, to produce immediate obedience; the statute being intended to apply only to deliberate flogging by way of punishment. (b)

The punishments now usually resorted to, are forfeiture of wages, (c) irons, (d) confinement on board, (e) imprisonment on shore, (f) hard labor, or those of a similar description.

(u) Stat. 1825, c. 65, § 10, 4 U. S. Stats, at Large, 117. See United States v. Netcher, 1 Story, 307; United States v. Boggles, 5 Mason, 192; United States v. Coffin, 1 Sumner, 394; United 8tates v. Lunt, Sprague, 311.

(v) See ante, note (q).

(w) Thorne v. White, 1 Pet Adm. 168; Gardner v. Bibbins, 1 Blatchf. & H. Adm. 866; United States v. Freeman, 4 Mason, 612; United States v. Borden, Sprague, 874.

(x) Payne v. Allen, Sprague, 804.

(y) Act of 1826, c. 66, § 22, 4 U. S. Stats, at Large, 122; Act of 1835, c. 40,

§ 3, 4 U. S. Stats, at Large, 776. See United States v. Grush, 6 Mason, 290; United States v. Hunt, 2 Story, 120; United States v. Cutler, 1 Curtis, C. C. 501; United States v. Alden, Sprague, 96; United States v. Winn, 3 Sumner, 209; United States v. Small, 2 Curtis, C. C 241.

(z) Shorey v. Rennell, Sprague, 407; Forbes v. Parsons, Crabbe, 282; Sampson v. Smith, 16 Mass. 365; Jenks v. Lewis, Ware, 61, 3 Mason, 503; Thomas v. Lane, 2 Sumner, 1; Morris v. Cornell, Sprague, 62.

(a) Act of 1860, c. 80, 9 U. S. Stats. at Large, 515. See United States v. Cutler, 1 Curtis, C. C. 601; Payne v. Allen, Sprague, 304. The Act of 1860 is not a penal law, and no indictment can be framed upon it But it has an important bearing upon the Act of 1836, in regard to the question of justifiable cause and malice. United States v. Cutler, supra. Although flogging is now abolished, it is not a cruel and unusual punishment within the meaning of the third section of the Act of 1836. United States v. Collins, 2 Curtis, C. C. 194.

(b) Charge to the Grand Jury, 1 Curtis, C. C. 509; United States v. Cutler, 1 Curtis, C. C. 501; Shorey v. Rennell, Sprague, 407.

(c) Relf v. Ship Maria, 1 Pet. Adm. 186; Buck v. Lane, 12 S. & R. 266.

(d) Turner's case, Ware, 88; Macomber v. Thompson, 1 Sumner, 889; Sampson v. Smith, 16 Mass. 369; Shorey 9. Rennell, Sprague, 407.

(e) U. S. v. Alden, Sprague, 96.

(f) In Wilson v. The Mary, Gilpin, 82, the legality of imprisoning seamen in foreign jails was doubted, unless the necessity for it was very strong. See also United States v. Ruggles, 6 Mason, 192; The Nimrod, Ware, 18; Jay v. Almy, 1 Woodb. & M. 262; Wope v. Heinenway, Sprague, 800, affirmed, Snow v.

Desertion is an offence which must be prevented if possible, for the obvious reason that it might leave the ship and cargo abandoned, and given up to destruction, at any place or time. (g) It is distinguished by the law-merchant from mere absence without leave, by the intention not to return. (h) Nor is such absence without intent to return desertion, in the sense in which that crime subjects to punishment, when the vessel is left for a fully sufficient cause; (i) and this may be cruelty, (j) unseaworthiness of the ship (k) in respect to provisions, (l) or otherwise, or a change of the voyage without the consent of the seamen. (m)

By the statute, desertion is absence from the ship for more * than forty-eight hours without leave. (n) But unWope, 2 Curtis, C. C. 301; Gardner v. Bibbins, 1 Biatchf. & H. Adm. 356. "Whenever a master of a ship thinks it necessary to cause any of his crew to be confined in a foreign jail, he ought to pay some regard to their condition and treatment there, and should, from personal examination, or, at least, through a reliable agent, see that they are such as humanity requires." Shorey v. Rennell, Sprague, 411. The eleventh section of the Act of 1840, c. 48, 5 U. S. Stats, at Large, 806, makes it "the duty of consuls and commercial agents to reclaim deserters and discountenance insubordination by every means within their power; and where the local authorities can be usefully employed for that purpose, to lend their aid and use their exertions to that end in the most effectual manner." This act has been construed as relieving the master from the consequences of an imprisonment by the consul. Jordan v. Williams, 1 Curtis, C. C. 69, 80; Tingle v. Tucker, Abbott, Adm. 619. If the consul is absent, his clerk or assistant has no power to procure the interposition of the local authorities. 8now v, Wope, 2 Curtis, C. C. 801.

(g) The master may inflict reasonable punishment for the offence of desertion. Per Sprague, J., in the United States v. Alden, Sprague, 96, 96.

(h) Cloutman v. Tunison, 1 Sumner, 376; Coffin v. Jenkins. 3 Story, 108; Spencer v. Eustis, 21 Maine, 619; Brig Cadmus v. Mathews, 2 Paine, C. C. 229; Ship Union v. Jansen, 2 Paine, C. C. 277. Going on shore at a foreign port, against orders, to see the consul to complain of ill treatment is not desertion. Freeman v. Baker, Biatchf. & H. Adm. 872; Hart v. Brig Otis, Crabbe, 62. See the Act of 1840, c. 48, § 16, 6 U. S. Stats, at Large, 896, and the following cases decided under it Morris v. Cornell, Sprague, 65; Knowlton v. Boss, id. 168; Jordan v. Williams, 1 Curtis, C. C. 69.

(i) If, during a collision between two vessels, a seaman, under the impression that his own vessel is sinking:, jumps on board the other, he is not guilty of desertion. Hanson v. Rowell, Sprague, 117.