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December 1, 1866


IN the month of June, 1856, the steamship Stevens, a common carrier of passengers, of which Pearson was master, on her regular voyage from Panama to San Francisco, arrived at the intermediate port of Acapulco, where Duane got on board, with the intention of proceeding to San Francisco. He had, shortly before this, been bunished from that city by a revolutionary, yet powerful and organized body of men, called 'The Vigilance Committee of San Francisco,' upon penalty of death in case of return. This committee had, in the fore part of June, against his will, placed him on the Golden Age, a steamer in the harbor of San Francisco, destined for Panama, with directions that he should be conveyed beyond the limits of California; and he was forcibly carried to the Mexican port of Acapulco. The presence of the Stevens afforded the first opportunity to get back, which he was anxious to embrace, being willing to encounter the risk to which his return might expose him. Duane went openly on the boat, at the public gangway, and talked freely with some of the officers and passengers. It is not certain that the master knew of his being aboard until after the ship got to sea, but no directions had been given for his exclusion, and although he was without a ticket, or money to buy one, yet a passenger, who had the means, offered to pay the purser his fare, who declined receiving it. It was usual for those persons who wished to secure a passage, to procure a ticket at Acapulco, but there was no imperative rule of the ship requiring it, and the customary fare was often paid to the purser after the boat had left the port. There was no evidence that Duane would have been excluded, had the master been aware that he was on board before he left Acapulco, for it was quite clear that the circumstances of his banishment were unknown at that time. The master, Pearson, was aware that the Vigilance Committee were in control of San Francisco, and ascertained in some way that Duane had been expelled by them from California, and if he returned, would be in danger of losing his life. Having learned this, he resolved to put Duane aboard the first down ship he met, and send him back to Acapulco. The steamer Sonora, commanded by Captain Whiting, and one of the same line of steamers of which Pearson was master, very soon came in sight, and was stopped. Whiting informed Pearson that he had orders not to carry back any banished person, and that Duane would certainly be executed if he returned, and advised that he should be sent to the Sonora, and he would endeavor to persuade him to go on with him. Thereupon Duane was transferred to the Sonora, and landed at Acapulco. The transfer was effected without any personal indignity to Duane, who at first resisted, but was induced to yield to superior force, by friendly counsels. Duane did not return to California until the month of February, 1860. The Vigilance Committee no longer existed, and he then filed a libel in admiralty for damages, in the District Court of the Northern District there, setting forth essentially the facts above stated; that having been expelled as he was from the Stevens, all efforts to get aboard vessels going to San Francisco were unavailing; that he went thus to Aspinwall, in the Republic of New Grenada, to try and get passage thence to San Francisco, but that a line of steamers previously existing there and on which he expected to go, had been discontinued, its last vessel having set off two or three days before his arrival. That finally, through charity, he obtained a passage to New York, in which city he was without money or means, his character and reputation blasted, and himself a dependent on charity for subsistance, and was for several months confined in the hospital there, physically unable to attempt the voyage to San Francisco until February, 1860. By the 12th article of his libel, he assigned as a reason for delay in bringing his action, the state of things in San Francisco, the numerous executions there by the Vigilance Committee, and his own belief that if he returned his life would be put in jeopardy; a belief which, he alleged, 'existed up to the time of his departure from New York to California.' The answer, besides a defence from lapse of time, asserted that the libellant was not 'a good or law-abiding citizen of San Francisco,' and that he had 'secretly and without any right or authority so to do, got on board of the Stevens and remained secreted on board as a stowaway;' and that the defendant in sending the libellant back on the Sonora, had been influenced by humane motives. The District Court decreed in favor of Duane, with $4000 damages; a decree affirmed in the Circuit Court. Appeal.

The opinion of the court was delivered by: In Bennett v. Dutton, in the Supreme Court of New Hampshire,*fn3 Chief Justice Parker says:

Messrs. Lyon and Alexander Hamilton, Jr., for the appellant:

I. The condition of affairs in San Francisco, in July, 1856, is a matter of public history. It was that of an organized rule of anarchy, irresistible from its force, and unyielding in the execution of its purposes. It was submitted to, if not created by, a body of men otherwise supporters of law, and was formed to correct an evil which the law could not or did not reach. In whatever way it judged, it executed its judgments with inflexible certainty. The defendant could not disregard the existence of this power, nor defy its edicts because they emanated from an unlawful source. His duty, in common with every other citizen, was to abstain from participating in anything which this tribunal had pronounced against until the supremacy of the law should be re-established. To have taken back an obnoxious exile, would have been a direct challenge to the Vigilance Committee, which they would have answered by hanging the victim, under a sentence already pronounced.

To sustain a recovery, under such a state of facts, for the refusal of the defendant to carry this exile to the allows, would be to disregard the principles on which the law of common carriers is founded.

The first and most general obligation on the part of the public carriers of passengers is, without doubt, to carry persons who apply for passage. The obligation is, nevertheless, subject to several qualifications.

In Jencks v. Coleman,*fn1 a case before Story, J., it was said:

'The right of passengers to a passage is not an unlimited right; but is subject to such reasonable regulations as the proprietor may prescribe for the due accommodation of passengers, and for the due arrangement of their business. The proprietors have not only this right, but the further right to consult and provide for their own interests in the management of such boats as a common incident to their right of property.'

'They are not bound to admit passengers on board, who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct, or who make disturbance on board, or whose characters are doubtful, or dissolute or suspicious, and a fortiori whose characters are unequivocally bad; nor are they bound to admit passengers on board, whose object it is to interfere with the interest or patronage of the proprietors so as to make the business less lucrative to them. While, therefore, I agree that steamboat proprietors, holding themselves out as common carriers, are bound to receive passengers on board under ordinary circumstances, I at the same time insist that they may refuse to receive them, if there be a reasonable objection.'

The report of this case shows that Mr. Webster, who tried the case for the plaintiff, made no exception to any of the propositions involved in this part of the charge.

In Cook v. Gourdon,*fn2 a South Carolina case, Mr. Justice Bay, in delivering the opinion of the court, speaking of the rights and liabilities of ferrymen, says:

'In fact, the law gives him the right of judging when it is safe and proper for him to cross or not.'

'We are of opinion that the proprietors of a stage-coach for the regular transportation of passengers for hire, are bound to take all passengers who come, so long as they have convenient accommodation for their safe carriage, unless there is a sufficient excuse for them for a refusal.'

Like innkeepers, carriers of passengers are not bound to receive all comers.*fn4

'The character of the applicant, or his condition at the time, may furnish just grounds for his exclusion, and his object at the time may furnish a sufficient excuse for a refusal, as if it be to commit an assault upon another passenger, or to injure the business of the proprietor.'

The fact that the libellant was willing and desirous to return to San Francisco, makes no difference as to the defendant's duty. His conduct in acting like a madman did not justify the master of the ship in imitating it. The value or worthlessness of the libellant's life is not involved in the question. The crime of murder or any lesser breach of the peace, is an offence against the body politic; in any measures ...

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