A Nod and a Wink

There were icebergs drifting in the North Atlantic in the Spring of 1841, and April 19th was cold and wet.  Late that night a ship, the William Brown, struck one.  It was obvious the frigate would sink, and as quickly as possible, the two lifeboats were filled.  One was a small boat, and the captain, the second mate, six crewmen, and two passengers (a woman and a boy) took the ten spaces.  The larger boat was designed to hold two dozen, but it was filled beyond capacity, with first mate, eight crewmen, and 32 passengers.  As the two lifeboats pulled away, 31 passengers were left on board, and they went down with the ship when it sank shortly afterwards.[i]

The larger boat was clearly going to be in trouble: “First Mate Francis Rhodes, Alexander William Holmes, and another seaman commanded the large lifeboat. The passengers were still dressed in their night clothes and suffered terribly in the cold Atlantic weather, which was made worse by a pelting rain. The two lifeboats stayed together through the night but separated the morning of the 20th because the captain, George L. Harris, thought there was a better chance of rescue if the two boats took different directions. Rhodes said that his boat was overcrowded and that some people would have to be thrown overboard to keep it from capsizing. Captain Harris said, ‘I know what you’ll have to do. Don’t speak of that now. Let it be the last resort’.”

Throughout the day and into the night of the 20th, the weather turned worse, with ever stronger waves. The boat began to leak and fill with water, despite constant bailing. “Around ten o’clock that night, Rhodes cried out in despair, “This work won’t do. Help me, God. Men, go to work.” Holmes and the other seaman began throwing people overboard. They threw 14 men and two women into the freezing water. They chose single men only, spared the married men on board, and threw the two women overboard only because they were sisters of a man already thus ejected and had demanded to be sacrificed with their kin. None of the crew was thrown out.” [ii]  On reading the survivors’ court testimony it appears the selection of the 14 men took some time; the last two were thrown overboard at dawn on the 21st; we don’t know who decided the rule by which passengers were ejected.  The larger boat was spotted by a ship later that morning; the other, with Captain Harris and his seven crew and two passengers, was safely found on the 27th.

As you can imagine, the story was a sensation.  The ship that picked up the surviving passengers in the large lifeboat took them to Le Havre, in France.  Shortly after, the story made The Times. [iii]

On their return to the US, First Mate Rhodes and Seamen Holmes were charged with manslaughter, not murder, as the U.S. District Attorney William M. Meredith recognised this was killing without malice. Rhodes fled and was never found, so Holmes was tried alone.  There is no mention of the other seaman.  These events have been analysed in countless classes, and I have been no exception, often using the case in discussions about ethics.

The trial was held nearly a year later, in April 1842, and the central argument used in Holmes’ defence was that his actions were driven by necessity, to ensure self-preservation.  If he had not acted, the boat would have sunk, and everyone, including himself, would have perished.  Holmes was 26, Finnish by birth, a sailor since his youth, and – once more, in the words of the court reporter – with a “frame and countenance that would have made an artist’s model for decision and strength.” He was the last crew member to leave the sinking ship, and it was reported he had “performed heroically in rescuing passengers who otherwise would have drowned trying to escape.”  While in the longboat he had given to the women on board “all his clothes except his shirt and pantaloons.” It was he who spotted the rescue vessel, and thanks to “his exertions the ship was made to see, and finally to save them.” At the trial, the captain testified that Holmes “was always obedient to officers. I never had a better man on board ship. He was a first rate man.” All the evidence we have from the case confirms this assessment.

The counter to Homes’ defence was summarised by the judge, Judge Baldwin.  He accepted the principle that self-preservation was a reasonable defense against being convicted of homicide, but he made it clear there were some important exceptions. One of these was when someone had accepted a duty to others, one that implied that he or she would put his or her life at risk before risking the lives of the others. Judge Baldwin argued that seamen like Holmes had accepted such a duty, and that therefore self-preservation was not an adequate defense to the charge of manslaughter: “[W]e must look, not only to the jeopardy in which the parties are, but also to the relations in which they stand. The slayer must be under no obligation to make his own safety secondary to the safety of others.… Such … is the relation which exists on shipboard. The passenger stands in a position different from that of the officers and seamen.… The sailor… is bound to set a greater value on the life of others than on his own.”[iv]

After 16 hours of deliberation, the jury found Holmes guilty on April 23, 1842. As the official court report notes, the verdict was given “with some difficulty,” and was accompanied by the jury’s recommendation for mercy. Judge Baldwin sentenced Holmes to six months in prison and a $20 fine. The court records note “there was some public sympathy for Holmes, but a movement by the Seamen’s Friend Society for a presidential pardon came to nothing.”

I will leave you to explore the several ethical dilemmas in this, and how you believe the case should have been resolved.  It is a perfect opportunity to practice casuistry, a form of practical reasoning used to resolve ethical problems by seeking to find theoretical rules or guidelines from examining specific situations and applying these rules to new instances.  I see this as an essential skill when we face conflicting principles but are required to make a choice, and I have been a fan of recent writing on the topic.[v]  At the same time, I should disclose that others see casuistry as clever quibbling, a medieval hangover from the debates of academic theologians.

However, there is one point in this story that that I want to emphasise now: this is that Holmes did not claim to have been acting under orders, and this was not used as part of his defence.  There were two occasions on which a direct order could have been given.  Before they drifted away, the Captain told the First Mate “I know what you’ll have to do. Don’t speak of that now. Let it be the last resort.”  Later the First Mate shouted “This work won’t do. Help me, God. Men, go to work.”  In neither case were Holmes and the other seaman directly ordered to act, although I think ‘go to work’ seemed rather clear.  Nor do we know if Holmes helped select the victims.

Were the Captain and First Mate covering themselves?  Possibly.  I think it more likely they were concerned about alarming the passengers, given the high probability that ‘last resort’ might become the only option left.  The First Mate, under unthinkable pressure, could have been as much calling to God as he was setting out any plan of action or giving an order.

Not an order?  We can go right back to the 12th Century, and Henry II: famously, he is claimed to have said “Will no one rid me of this turbulent priest?” (some sources claim his words referred to a ‘meddlesome priest’).  It was a comment which led to the death of Thomas Becket, the Archbishop of Canterbury in 1170; while it was not expressed as an order, it led four knights to travel to the cathedral, where Becket was murdered. We know it now as a phrase used to exemplify the view that a ruler’s wish can be interpreted as a command by subordinates.

The strategy is familiar to us.  Rather than directly seeking action, the leader speaks ‘into the air’, expressing a view about some vexatious situation, knowing full well that loyal followers will interpret the comments, and do what is required.  Acting on a ‘nod and a wink’, or, alternatively and more accurately, between a nod and a wink:  neither giving assent, nor merely showing you understood what the other was thinking.  Even the most cruel and dictatorial of rulers may choose this approach at times:  perhaps to assuage themselves of guilt over a less than proper action, or perhaps to encourage their followers who are trying to curry favour by acting on hints and suggestions.

Or that was the way it was.  Now we have Donald Trump to consider.  For many years a television personality and a businessman, he became famous for saying ‘You’re fired!’ in his seasons on NBC’s reality show “The Apprentice’.  Clearly, we were led to assume, here was a tough businessman who sacks poor performers:  tough and uncompromising, doing what was necessary, draining swamps and the like.

Longtime executives in Trump’s business empire say that although he successfully constructed a popular conception of himself as a tough, blunt truth-teller, the “You’re fired” image was always a caricature.  On ‘The Apprentice’, the decisions about which contestant to jettison came not from the demanding chief executive sitting at the big, gleaming desk but from the program’s producers, according to people who worked on the show. Trump found out whom to sack via a prompter on his desk (it was made to look like a telephone).  And in real life, in more than four decades at the helm of his family business, it is claimed Trump did sometimes make a show of taking charge by dispatching underlings in public, humiliating fashion. But those were the exceptions. At the Trump Organization, he didn’t fire many people and, when he did, he only rarely took the action himself, generally leaving the dirty work to his deputies.[vi]

However, it is Trump as President where the action is more compelling.  Some 23 high profile members of the Trump administration have left (the number of departures is actually many times more, but here I am choosing to focus on the most critical positions).  Of these, just 5 were fired:  Preet Baharara, Sally Yates, James Comey, Rex Tillerson and Andrew McCabe.  Three of these were sacked by Trump, the first two very early in his presidency.

First off the rank was Sally Yates, who lasted just ten days as Attorney General, and was ousted after she instructed the Department of Justice not to make legal arguments defending Executive Order 13769: that was the one to prevent ‘Muslim terrorists’ from entering the US, by suspending entry of people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  I am sure you recall this was held up by injunctions ordered by various courts.  The Executive order was later replaced by a Presidential Proclamation, and that was sustained by the Supreme Court.

Second was James Comey, as Director of the FBI.  In this case, Trump said he was terminating Comey’s appointment on the recommendation of Attorney General Jeff Sessions, and Deputy Attorney General Rod Rosenstein, only later to claim it was all his idea from the beginning.  Thanks, Jeff and Rod, you almost got him out of trouble there!

The third is Rex Tillerson.  That was a love affair that went bad, all done by tweets.  On his appointment of Tillerson as Secretary of State, on 2 February 2017, Trump observed: Congratulations to Rex Tillerson on being sworn in as our new Secretary of State. He will be a star!  By 1 October, clouds were gathering: I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man…  1 December, and the Twitterverse is confused: The media has been speculating that I fired Rex Tillerson or that he would be leaving soon – FAKE NEWS! He’s not leaving and while we disagree on certain subjects, (I call the final shots) we work well together and America is highly respected again!  But the clouds hadn’t dissipated, and on 13 March, Tillerson was gone, fired by a tweet.

The other two who were fired?  Preet Baharara was dismissed by Jeff Sessions, who sought to have all 46 US Attorney Generals resign.  He refused.  Sessions also terminated Andrew McCabe, 26 hours before his retirement was to come into effect.  And that leaves 18 others.  If there is something that links them all, it was that Trump moved from support to concern, or worse.  Steve Bannon was going well, until Trump read some of his comments in Michael Wolff’s ‘Fire and Fury’.  Michael Flynn was a short-lived National Security Adviser, who eventually admitted to conversations with the Russian Ambassador, which had forgotten to disclose (we are still left wondering why he was talking to him, and what about!): embarrassing!  As for Scott Pruitt …

A classic case was Tom Price, who became Secretary of Health and Human Service in February 2017.  Trump-like, he believed in living and travelling well.  His particular vice turned out to be taxpayer-funded private jet flights.  It all came out (things like this usually do), and he promised to reform his ways.  However, in late September, Trump made it clear he was ‘not happy’, and shortly after Price resigned.  Like most of the other departures, it was messy; the pattern was resignations following ‘unhappiness’ and pretty much in keeping with Trump’s desire to avoid sacking someone if they could be ‘encouraged’ into resigning.

All achieved between a nod and a wink?  With apologies to Hope Hicks, perhaps better described as falling between a hope and a tweet.


[i] There are many sources for this story.  The quotes that follow come from transcripts of the court case that followed cited in the Law Library: American Law: and Legal Information, < http://law.jrank.org/pages/2482/Alexander-Holmes-Trial-1842.html>.  In discussing the events, I also draw on H A Bedau’s book, ‘Making Mortal Choices: Three Exercises in Moral Casuistry’, Chapter 1; Seaman Holmes and the Sinking of the William Brown, pp.5-37.  It was published by Oxford University Press in 1997.

[ii]  Op cit, Law Library

[iii] “Dreadful Shipwreck”. The Times (17671). London. 15 May 1841. col C, p. 6.

[iv] American Law: and Legal Information, < http://law.jrank.org/pages/2481/Alexander-Holmes-Trial-1842.html>

[v] Especially A J Jonsen and S Toulmin, The Abuse of Casuistry, University of California Press, 1988.

[vi] This draws on an article on Trump’s behaviour published in the Washington Post <https://www.washingtonpost.com/politics/on-tv-trump-loved-to-say-youre-fired-in-real-life-he-leaves-the-dirty-work-to-others/2018/03/14/>