FIELD, CIRCUIT JUSTICE (charging jury):  The defendant is charged in the indictment with the crime of murder upon the high seas. . . . It alleges that the defendant was, on the first day of April, 1864, captain of the American ship Charger belonging to citizens of the United States; that the ship had on board ten mariners, and among them one John P. Swainson; that the ship was provided with three boats, for the protection and safety of the lives of the persons on board, in case of accident; and that it was the duty of the defendant to manage and control the ship and boats, so as to insure such protection and safety; that on the first of April, 1864, the said Swainson was employed as seaman upon the royal-yard-arm of the mainmast of the ship in furling the royal-sail; that whilst thus employed he accidentally fell into the sea; and that the defendant willfully omitted to stop the ship, or to lower either of the boats, or to make any attempt to rescue and save Swainson, as was his duty to do; that Swainson would have been rescued and saved had the defendant stopped his ship and lowered either of the boats, and from his negligence and omission in this respect, Swainson was drowned.

 As you will thus perceive, gentlemen, the charge is that the death of Swainson was occasioned by the willful omission of the defendant to stop the ship, lower the boats, and rescue him, or to make any attempt for his rescue.  In the majority of cases where manslaughter is charged, the death alleged has resulted from direct violence on the part of the accused.  Here the death is charged to have been occasioned by the willful omission of the defendant to perform a plain duty.

 There may be in the omission to do a particular act under some circumstances, as well as in the commission of an act, such a degree of criminality as to render the offender liable to indictment for manslaughter.  The law on the subject is this:  that where death is the direct and immediate result of the omission of a party to perform a plain duty imposed upon him by law or contract, he is guilty of a felonious homicide.  There are several particulars in this statement of the law, to which your attention is directed.

 In the first place, the duty omitted must be a plain duty, by which I mean that it must be one that does not admit of any discussion as to its obligatory force; one upon which different minds must agree, or will generally agree.  Where doubt exists as to what conduct should be pursued in a particular case, and intelligent men differ as to the proper action to be had, the law does not impute guilty to any one, if, from omission to adopt one course instead of another, fatal consequence follow to others.  The law does not enter into any consideration of the reasons governing the conduct of men in such cases, to determine whether they are culpable or not.

 In the second place, the duty omitted must be one which the party is bound to perform by law or contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety.  In the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistance when in danger; to throw, for instance a plank or rope to a drowning man, or make other efforts for his rescue, and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society.

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 Now, in the case of a person falling overboard from a ship at sea, whether the passenger or seaman, when he is not killed by the fall there is no question as to the duty of the commander.  He is bound, both by law and by contract, to do everything consistent with the safety of the ship and of the passengers and crew, necessary to rescue the person overboard, and for that purpose to stop the vessel, lower the boats, and throw to him such buoys or other articles which can be readily obtained, that may serve to support him in the water until he is reached by the boats and saved.  No matter what delay in the voyage may be occasioned, or what expense to the owners may be incurred, nothing will excuse the commander for any omission to take these steps to save the person overboard, provided they can be taken with a due regard to the safety of the ship and others remaining on board.  Subject o this condition, every person at sea, whether passenger or seaman, has a right to all reasonable efforts of the commander of the vessel for his rescue, in case he should by accident fall or be thrown overboard.  Any neglect to make such efforts would be criminal, and if followed by the loss of the person overboard, when by them he might have been saved, the commander would be guilty of manslaughter, and might be indicted and punished for that offense.

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