I mentioned this case in comments to the earlier of those two posts. I also mentioned that you really ought to read it. Happily, you can now do so even if you are reading afoe on your PDA and have foolishly left your leather-bound volumes of the Federal Cases at home. You’ll find the report of United States v. Holmes on the website of the State University of New York at Buffalo. The University deserves a hat-tip for making this report easily available to anybody with an internet connection. It is one of the most fascinating court reports ever written, and unlike most is also a cracking read. (And, unlike more modern reports, it records the arguments of counsel as well as the opinion of the court.)
At first blush, Holmes’s story doesn’t seem similar to Daschner’s at all. The crime for which Holmes was tried was far graver than Daschner’s. And, crucially, Holmes was not an agent of the state. Holmes’s story tells us nothing about whether torture may be justified and, if so, under what circumstances. But Holmes illustrates, even more dramatically than does Daschner, the problem faced by the state when a good man is driven to a terrible deed by overwhelming circumstances entirely beyond his control.
Holmes was a Finn, however unlikely his name may seem for a member of that nation. He was a sailor, and by all accounts an outstanding one. In 1841 he was aboard the William Brown, en route from Liverpool to Philadelphia, when the ship struck an iceberg off Newfoundland. The captain set off with some passengers and crew in the ship’s jolly-boat, leaving eight sailors (Holmes among them) and 32 passengers in the 23-foot longboat under the command of the first mate. 31 other passengers had been unable to squeeze into the boats; they perished when the ship sank a short time later.
The longboat leaked. It cleared less than a foot of water, at times only five inches. The seas grew high, and it began to rain. On the night of the second day in the boat, the sailors (on orders from, or perhaps merely at the suggestion of, the first mate) began throwing some of the male passengers overboard into the freezing waters of the North Atlantic. They ejected 14 men in all (two women also went, though the report suggests they jumped into the water of their own accord, despondent at their brother’s ejection). Thus lightened, the boat cleared sufficient water to avoid swamping. The next day, Holmes spotted a ship and successfully hailed it; the crew and the remaining passengers were saved.
Holmes, for whatever reason, was the only man charged in connection with the ejections. The prosecution insisted that sailors have a duty to protect their passengers, even if this means their own deaths. Doubtless the prosecution would have preferred that the sailors throw themselves to the waves. There were only nine sailors in the boat, though, and reducing the boat’s complement by nine might not have been enough. (And even if it was, one would then hope the passengers were more skilled at navigation and boatcraft than landlubbers usually are.)
The defence argued that Holmes’s crime was excused by necessity. As it happens, the court wasn’t buying. (It didn’t reject the defence of necessity altogether, but held that, in this case, the sailor’s duty to passengers precluded the defence.) The defence, however, also did something clever. It kept hammering home the extremity of the longboat’s situation. As my learned friend Mr Armstrong put it:
[T]his 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.
As I said, the court was not persuaded that necessity excused Holmes’s act. But Holmes’s defence had succeeded, at least, in convincing the court of the need to make allowance for the boat’s terrible predicament. The court noted Holmes’s determination to save at least part of the boat’s complement. But to do so, he had to take the lives of others. The state cannot allow a man to make that choice with impunity, thought the court; but its demand for justice may be satisified by a mild penalty. In its summation, the court instructed the jury:
In such cases the law neither excuses the act not 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 when, 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 … cases of this kind are viewed with tenderness, and punished in mercy, we must yet bear in mind that man, in taking away the life of a fellow being, assumes an awful responsibility to God, and to society; and 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.
The jury returned a verdict of guilty (albeit ‘with some difficulty’, as the report tells us) but asked the court to be merciful. And it was; Holmes received a sentence of six months’ imprisonment and a monetary fine. There was enormous public demand for a presidential pardon but, because the court declined to endorse the request, the president refused. Part of the fine was, however, later remitted.
It’s possible the defence could have succeeded. It might have put more emphasis on the idea that it was precisely the sailors’ duty to protect the passengers that drove them to eject some; the boat needed to be lightened, and had not some passengers been ejected all would have been lost. The Holmes case is a bit of a grey area; greyer in any event, I think, than Daschner’s. On the whole, though, I think it a good result. There are some things that the state cannot be seen to condone; but in extraordinary circumstances, the state may be satisfied with a nominal punishment.