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Transcribed by Hugh MacDougall, James Fenimore Cooper Society, 2006
Page numbers from the original are indicated in {curly brackets}.
The case of the purported mutiny aboard the United States Brig Somers, in 1842, and the Naval Hearing and Naval Court-Martial which followed it, badly divided American public opinion. Was Captain Alexander Slidell Mackenzie a hero who had saved his ship, not to mention American honor and the travelling public, by hanging Midshipman Philip Spencer (son of Secretary of War Spencer) and two sailors on the charge of planning a mutiny which was to convert the Somers into a pirate ship, or was he an incompetent officer, who had unnecessarily killed three possibly innocent men without a trial or even the possibility of defending themselves? James Fenimore Cooper was decidedly of the second opinion, and his views, spelled out at length and detail, were appended to a publication of the Court Martial text that appeared in 1844.
The situation was complicated by the fact that Mackenzie and Cooper had already clashed vehemently, when Mackenzie—who himself had substantial literary pretensions—attacked the interpretation of the Battle of Lake Erie contained in Cooper's Naval History (1839). The failure of the Court Martial to convict Mackenzie of what Cooper considered, at least in the case of Samuel Cromwell, to be murder, seriously shattered the pride with which Cooper had hitherto looked on the United States Navy.
Cooper's Review is not only a clear example of his forensic brilliance, and his ability to examine and interpret the most minute details of evidence, but also expresses his views on justice, on the relation between the military and the civil branches of government, and on basic human rights—in ways that still seem very germane in the American society of the 21st century.
The following are some recently printed books dealing with the Somers Mutiny Case:
Hugh MacDougall, Secretary of the James Fenimore Cooper Society, July 2006
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{263} On the 14th of December, 1842, the United States brig Somers, Commander Mackenzie, arrived at New York, from a cruise to the coast of Africa. The vessel came up to the navy-yard, where she anchored, holding very little communication with the shore. One of her officers proceeded forthwith to Washington, with despatches; and, for a day or two, a species of mystery was observable in and about the vessel. Rumor, however, soon began to deal with the cause of this unusual privacy, and it was not long ere the truth, in its outlines at least, got before the nation.
It appeared that a midshipman, the acting boatswain (a rated boatswain's mate), and a seaman, had been hanged at sea, under a charge of mutiny, by the orders of Captain Mackenzie, supported by a written opinion of most of his officers. There had been no trial, scarcely, an accusation, as respected one of an men executed, and what was the most extraordinary of all, no overt act of mutiny. The following would seem to be the leading facts of this grave and unusual occurrence.
On board the Somers was a midshipman, named Philip Spencer, a youth then in his nineteenth year. This young gentleman was the son of the secretary of war, and the grandson or one of the most distinguished jurists New York has ever produced. Midshipman Spencer, it was affirmed, had induced a person of the name of Wales, who was purser's steward of the brig, or what is called a forward officer, to mount on the booms with him, where the parties by using a little precaution would be out of ear-shot, and where the former abruptly opened the discourse by relating, to the latter his whole scheme, first demanding an oath of secrecy. Agreeably to the subsequent evidence or Mr. Wales, Spencer intended to get possession of the brig by a rising in the night, throwing the officer of the Watch overboard, murdering all the remainder in their berths, or hammocks, and awing the uninitiated of the crew into submission by pointing the quarter-deck guns forward, and by other similar means of authority, or intimidation. Once in possession, Mr. Spencer intended to turn pirate, robbing the defenceless, ravishing the females, and murdering the men he might overcome.
{264} Wales affirms that Spencer mentioned he had about twenty of the crew enlisted in this enterprise. The conversation took place on the evening of the 25th of November, the brig then being on her passage from the coast of Africa to the island of St. Thomas, Captain Mackenzie intending to go into the latter in quest of supplies, and out of regard to the health of his crew. (See record, p. 194, top of second column.)
The following morning, the conversation of Wales with Mr. Spencer was communicated to the first lieutenant, by whom it was laid before Captain Mackenzie. Mr. Spencer was arrested at quarters the same afternoon; he was immediately ironed and placed on one of the arm-chests, under the eye of the officer of the watch, there being but one marine in the brig, a sergeant, who acted as master-at-arms. This arrest occurred on the evening of the 26th November.
On the 27th, the main-royal-mast was carried away. In consequence of circumstances, which will appear in their place, Captain Mackenzie was induced to suppose that this mast was carried away by the connivance and acts of the mutineers with the hope of getting possession of the vessel in the confusion; and, imagining that he detected symptoms of plotting among certain of the crew that were aloft, busied in repairing damages, he arrested the boatswain's mate, whose name was Cromwell, and the seaman Small. These two men were also ironed, and placed on the quarter-deck. The signs of disaffection increasing, according to the views of Captain Mackenzie and some of his officers, four more of the crew, M'Kee, M'Kinley, and Green, were placed in irons on the 30th, and put on the quarter-deck. These last arrests were pointed out by certain papers that were found in Mr. Spencer's razor-case, and to which he is said to have alluded in his communications to Wales, and by other circumstances that will appear as we proceed.
Captain Mackenzie now hesitated about arresting any more of the supposed mutineers; but imagining that he still detected proofs of an intention to rise among the portion of the crew that was at large, he began to mature a scheme, previously entertained, of executing some of the prisoners, in order to ensure the safety of the brig. The matter was formally referred to the officers, having however been for some time before discussed among some of them at least, one or two of the younger midshipmen excepted; and fortified by their approval of the step, Mr. Spencer, Cromwell, and Small, were hanged at the yard-arms on the 1st of December. From the moment of the executions, no further evidence of danger was seen, or imagined, the vessel arriving first at St. Thomas, and subsequently at New York, in due season.
Such is an outline of those memorable facts. The details we reserve for the comments which will follow. The reader will at once understand that there was no regular trial, but that the executions took place without any of the forms that are usually observed in cases of legal investigations. Oaths were administered to a few of the crew, who were examined or consulted by the council of officers, but the prisoners were not arraigned, nor was either privy to the proceedings that were going on.
The facts were revealed to the public through the ordinary channel of the newspapers. The first accounts were exaggerated and false, sustaining Captain Mackenzie's course in terms so extravagant as to betray the temper in which they were written, and to demonstrate that the object was to vindicate the act, rather than the justice of the country. Inquiry slowly brought the leading circumstances before the nation, differing in many essentials from the original statements, {265} though journals that had blindly plunged into the subject found no difficulty in maintaining their first opinions, under every state of the facts. Their object was obviously to support one side of the question, let the truth lie where it might. The moving causes were political animosity, mercantile cupidity, and personal interests. That the cause was not a desire to support truth is self-evident, as men who merely wished this, would not have involved themselves in the dilemma of being obliged to maintain conflicting propositions.
The political malignancy which has been displayed in this transaction, in one journal at least, may justly be likened to that of the spirits of darkness. The world has probably never witnessed its parallel in a country pretending to civilization; demonical passions having been exhibited in a nakedness of deformity that is unusual even in our own greatly degraded press, unrelieved by argument, ingenuity, or decency of language. In the case of the particular press mentioned, the course taken defeated itself—a general feeling of indignation pervading the country, on the subject of its inhuman coarseness, its vulgarity, and its malignancy. But other presses were evidently influenced by the same motive, though conducted with greater ability and a more seemly moderation. The whole is to be attributed to the peculiar relation that Mr. Spencer, the father of the young officer who was executed, bears to one of the political parties of the country.
Mercantile cupidity had its share, as usual, in the course of a portion of the city press on this occasion. All mercantile communities are liable to these tortuous views of principles, on such subjects as are supposed to affect the fluctuating and sensitive interests of trade. As a body, men whose entire fortunes are constantly in jeopardy by the extent and hazards of their operations, are not to be trusted in matters that are supposed to conflict with their interests. The magnitude of the last proves too much for poor human nature; and in saying what we do of this class of men, we are not saying they are any worse than the rest of mankind, but simply that they are no better. Others, under similar inducements, would prove as weak, but no other large class of the community is as often, or as violently tempted. In the present case, it was supposed that ships and insurers would possess greater security by an oriental administration of justice, than by giving to the citizen a hearing before he was consigned to the gallows.
It is important to the well-meaning and disinterested American to reflect on many of the consequences of this influence of the mercantile class. The merchants are collected in towns, and form a concentrated body of great temporary power, when disposed to act unitedly. They control most of the leading presses around them, by means of their advertising and other patronage, and all our large towns being strictly commercial, it is not unusual thing for this body of men to take the initiative in public opinion, frequently giving it a false, though rarely a permanent direction. That individuals of this class, owing to greater firmness of principle, and more clear-sightedness in morals, rise superior to the mistakes of their contemporaries, is undeniable. Such men are honorable exceptions, and merely prove the existence of the rule. They deserve more than usual commendation, however, for acting right while strongly tempted to do wrong.
The personal interest that was used in the case of Captain Mackenzie was no more than was natural. This officer enjoyed probably a much higher literary reputation than he merited, and his literary associations gave him the advantage of possessing the support of many willing and ingenious pens. His place in the corps was not sufficiently high to create envy, or sufficiently low to produce indifference. Then he enjoyed a respectable local family connexion, which was active and effi{266}cient in his behalf. We do not live in an age of Brutuses, and, as things go, it was to be expected that these connexions would espouse his cause, per fas aut nefas.
Experience is daily setting at naught the most plausible inferences of human ingenuity. In nothing is this more true than in the workings of the political systems. He who looks only to theory in politics will find stubborn results crossing his logic in a thousand ways that he least expects, the management of the affairs of the world being solely a thing of practice. The merely bookish philosopher in his speculations usually lays down the dogma of the independence of sentiment that ought to be the result of popular institutions, while the man of observation and experience knows that the tendency is to create so much community-power as almost to annihilate individuality.
To apply these principles. The theorist, in reasoning on the facts of the Somers mutiny, would be apt to pursue a thread of argument something like this: America is a country of equal rights, in which person and property are justly protected without reference to station or wealth. It is the boast of the meanest citizen, that the laws were designed for his especial protection. The state is, in a degree at least, his agent, and in no degree his tyrant. Now, here is an officer of that state who has used the authority he wields in the name of the state to take the lives of three of his subordinates without a trial—by his own account of the matter, without a hearing—without any overt act of mutiny, violence, or of resisting even in the gasp of death. He may be right; but the community demands that he show, in the clearest manner, the necessity which alone can justify so grave a step. If the name of an American citizen cannot be a warranty that life will not be taken without the accusation, hearing, and condemnation, required by the law, of what use are our boasted rights? If the American is not assured of this privilege on board an American ship-of-war, which exists only to defend those sacred rights on the ocean, where can he be assured of its exercise at all. The whole nation stands in stern expectation of the justification that can alone excuse the deed: "Make evident the overwhelming necessity for exercising our authority for thus setting aside the action of our laws; for sending three of our number into eternity with so brief notice, by means of our own military force; for using that which we intended as an instrument of shielding the American on the high seas as an instrument of his destruction. We admit that circumstances may justify so extraordinary a departure from the safe rules of legal inquiry, but of the existence of these circumstances give us the clearest proof; we wait for it impatiently, prepared to hold you to a most rigid responsibility, and yet prepared to do you ample justice."
Such would be the speculations of the theorist. In Russia, men might think the emperor ought to feel thus, but none would dare to express an opinion concerning the justice of the state. In England and France, a natural sentiment, heightened by the jealousy of power, would probably have impelled the bulk of the population of both countries to assume an attitude of so much menace, as might readily have induced their governments to incline toward a too little discriminating, if not to a too hasty decision, adverse to the conduct of the officer. In this country, the feeling has leaned the other way, no small part of the population seeming to be satisfied with an exhibition of authority on the part of a public functionary, that is flattering to a species of national pride which is far more general than creditable. Men have talked among us, and we doubt not felt, as if they exulted that one "of our officers, on board one of our ships, has hanged three villains who had conspired to run away with one of our vessels!"
Of the three classes of feeling here described, the second is the safest and most conducive to justice. The time has been when the clamor of England might have proceeded too far; but in the present age, the justice of the nation, stimulated on the one hand by the distrust of hereditary power, and restrained on the other by the responsibilities and caution of the government, would be more likely to produce a just result in such a case as this, than either the stifled sentiment of Russia, or the self-satisfaction and passive indifference of our own country.
In no country but his, that has any claim to political liberty, would the government dare to pursue the course which has been taken by the government of our own in connexion with this matter. We think that a very cursory examination of the facts will make apparent the gross impropriety of the course taken by our own authorities.
An officer arrives from sea, and reports that he has used the authority derived from government to execute an American citizen, coolly and under the semblance of military discipline, without a trial, or even a hearing. His officers sustain him in the deed, and were accessories to it. If he is guilty, they are guilty; if he is innocent, they are innocent. The crew were the compelled instruments of these officers, who stood over them with arms in their hands, menacing the disobedient with instant death. Now what, in the eyes of reason and justice, should have been the course of those intrusted with the vindication of the laws under circumstances like these? Clearly, to have at once separated all the officers from all the men, to have put the latter under the charge of disinterested persons, with strict orders that they should not be tampered with; either for, or against; and then to have directed the necessary legal measures with the closest attention to impartiality and justice. Was this done? We all know it was not. A court of inquiry was convened, and during weeks of its session, the men, the only impartial witnesses in the case, were left immediately under the military control of those whose conduct was under investigation. It is idle to say that the officers were relieved by the responsibility assumed by their commander. They were accessaries [sic] before the act, and must in law, as in reason, stand or fall with him.
It is said that Captain Mackenzie, on his arrival at home, made a brief report of the event, and asked for a court of inquiry. It is unfortunate for all parties, if this statement be true, that his request was not instantly granted, as it clearly ought to have been, let the facts be what they might. It was enough that a man had been executed without a trial, to render a court indispensable. It is understood, however, that Mr. Upshur, then secretary of the navy, asked for the details, and obtained the report from Captain Mackenzie which has since been published; the most extraordinary document of the sort, perhaps, that ever was laid before the world. On this report we intend not to dwell, except as relates to its facts, and as it is directly connected with the obliquity of mind which we conceive to have been at the bottom of this unfortunate occurrence. There is, however, a passing remark due to Captain Mackenzie, in reference to his report. It has been said that he was blindly defended by a portion of the public journals, as soon as the fact of the execution became known, owing to a variety of influences of an improper character. It is but just to add that he was also blindly assailed; less, we think, from any determined hostility than from a natural horror of his act, and, in the end, from the opposition created by the brutal and every way unjustifiable {268} course of some of his supporters. Among other things falsely charged against Captain Mackenzie, one or two were connected with this report. It was said that, after the executions, he had ordered the crew to "give three cheers to God," meaning three literal cheers in honor of the Deity. Such is not the statement of the report, in which singing a psalm in praise of the Almighty is figuratively so presented to the crew. The last is bad enough, though purely a matter of taste, without dragging in the revolting misstatement. Then Captain Mackenzie is made, by many persons, to say to young Spencer, as a reason why he ought to be resigned, that, should he get home, his father's influence would protect him, and on that account he ought to submit to being hanged at sea. What Captain Mackenzie represents himself as saying was totally different. Mr. Spencer had expressed an apprehension that this affair would injure his father—a creditable feeling, and one that was touching, under the circumstances—and Mr. Mackenzie endeavored to lessen his regrets on this point, by stating that his father's influence would protect him, should he be carried home, a circumstance that would be more likely to injure the father than the execution of the son.
A court of inquiry, composed of Commodores Stewart, Jacob Jones, and Dallas, was convened in this case, December 28th. This court sat until January 19th, when it sent in its finding. Previously to the meeting of this court, however, or immediately after his arrival in New York, Captain Mackenzie put several more of his crew in irons, sending them along with the four survivors of those arrested at sea, on board the North Carolina, the guard-ship. This fact it will be important to remember as we proceed; the charges against the men last ironed, being that they were concerned in the transactions which induced the execution of Spencer, Small, and Cromwell. We repeat, it is a material circumstance to remember.
Nearly all the officers and crew of the Somers were examined before the court of inquiry, the exceptions amounting to some ten or twelve only. We regret that the record of this court has not been published, as it clearly ought to be, and we do not like to waste time on mere newspaper reports. It is safe, however, to say that no one, Wales excepted, testified as to any direct knowledge of any mutiny, at all. The testimony of Wales, as given before the court martial which terminated the proceedings, will be given in its place. Many of the others, including most of the officers, saw, or fancied they saw, evidence of a disaffected spirit in divers of the crew; certain acts were construed into such as were disrespectful and disobedient, if not mutinous; but no one of the men examined could, or did tell, of any direct knowledge, on his part, of an intention to seize the brig. Captain Mackenzie affirmed that many of these men could reveal important facts, if they would. Now, nothing is plainer than the justice of saying Captain Mackenzie ought not to have hanged a man without a trial, unless in possession of undoubted evidence to justify the deed, and, if in possession of such evidence, nothing was easier, under the known circumstances, than to have produced it. What the testimony offered really was, will be seen in the sequel; but it was a very unsatisfactory excuse for an officer who had resorted to so high-handed a measure, to find it necessary at all to complain that testimony was withheld on the investigation, that could have had no influence on his course, when he committed the act, inasmuch as it was no more forthcoming then, than now. Before an allegation of this sort could be at all received, or believed, it was clearly incumbent on Captain Mackenzie to show that these persons were connected with the plot, and, if able to do that, to have them punished.
{269} Although we do not possess the means of going into a full analysis of the proceedings of the court of inquiry, they can not be passed over in total silence. About its findings there is no question; that having been published by authority. Neither can any objection be raised as to the witnesses examined, though some might be raised as to those who were not examined. It was proper, under the circumstances, to examine everybody who was in the brig. No one was on trial; but the object was to obtain the truth generally. It can not be said that the accused men ought not to be examined, for, on such a principle, a commander might arrest everybody who he thought would testify against him, and carry everything his own way. Besides, one or two of the accused were examined before the court of inquiry, though most were not! We could point out many other substantial objections to the proceedings of this court, but the whole of the main question, as it came up in the authorized testimony of the court martial, lying before us, we shall reserve our arguments for that. A few words on the finding of the court of inquiry, therefore, must close our present remarks.
The finding of the court of inquiry was a complete justification of the act of Captain Mackenzie, and of all concerned in it. Apart from those which arise generally from the state of the entire testimony, as it has been published, we have three particular objections to this finding. In one place the court says: "An that the brig at the time of the execution was, by the log, distant from St. Thomas 525½ miles, at which place she arrived on the 5th December, 1842."
Now, why is this fact stated with so much emphasis and minuteness? Of what particular importance was it to ascertain the precise distance between the Island of St. Thomas and the spot on the ocean where the executions took place, that this court should thus incorporate the fact, with their solemn finding in the premises? Some meaning must attach to it, else would it have been just as pertinent to have stated the distance between the spot on the ocean and the port of New York, or of Lisbon, or of Liverpool. It could not have been on the supposition that St. Thomas was the nearest port, the fact being notoriously otherwise. Antigua, Barbuda, Barbadoes, Martinique, Guadaloupe [sic], and several other islands, were much nearer to the place of execution than St. Thomas; some of them not much more, if any more, than half the distance. It can hardly be the court meant that the Somers, being bound to St. Thomas, could not and ought not to have turned aside from her course, if, by so doing, the terrible necessity of using the power of the country to execute an American citizen without a hearing, could be avoided. Had such been the meaning of the court, it would have said so. The allusion to St. Thomas is specific; in some way, that island must have been supposed to bear a peculiar relation to the proceedings of Captain Mackenzie. To suppose the court makes the allusion without some motive, is to suppose it would trifle on a most solemn subject, and will not be believed.
It was to be wished that the court of inquiry had been more specific on the subject of the allusion just mentioned. We have examined the point with care, and can discover but one solution of the difficulty, and that is connected with errors in law, morals, and all just political principles, that can not be too strongly condemned.
Some of the witnesses openly laid down the doctrine that, in their opinion, a man-of-war ought not to go into a friendly port to seek protection against a mutiny of her own crew. 'If a ship-of-war can not take care of herself,' they say substantially, 'there is no use in her being a ship-of-war.' Captain Mackenzie virtually admits, before the court martial, that he and his officers reasoned in the same {270} way. He hoped to find the Vandalia at St. Thomas, and should have gladly placed himself under the protection of her guns, but not under that of any foreign guns (see rec., p. 72). If the court does not adopt this reasoning, we can see no reasoning, short of a downright mystification, and that we are far from accusing its members, that it does not intend, in connexion with this distance. As the reasoning involves some of the falsest principles that could be received into a service, in our judgment at least, we intend to meet it at a little length. While it was confined to a youth, it might be pardoned as an exaggeration of inexperience and the commencement of the service, but, as adopted by a commander in the navy, and still more so, if thus indirectly recognised by three highly respectable and old captains, it becomes important to examine whether the principle be right or wrong, safe or dangerous.
In the first place, if the Somers sought to get under the protection of the guns of the Vandalia (see rec., p. 72), it is a clear admission that a man-of-war is not always competent to her own protection, since she may sometimes want another man-of-war to do her this important service. This is equally true, if she were to come into an American port with that object. Reasoning on the logic of the young witnesses to whom there has been allusion, in connexion with Captain Mackenzie's avowed intention to get under the guns of the Vandalia if he could, we found ourselves met by a palpable contradiction.
Then we all know it is not true that a man-of-war will not seek protection, in a friendly port, in grave emergencies. It is done constantly, in peace, or in war. Protection is sought in this way, from the elements, from the horrors of starvation, from enemies, and why not from mutineers? Does any one believe that Captain Mackenzie would not have stood for Guadaloupe, on this very occasion, if he had fancied he could save his own life, and those of his officers, by so doing, and that he could not save them in any other way? Unless so much be assumed, the question is narrowed down to this—ought Captain Mackenzie and his officers, in order to avoid the grievous necessity of hanging American citizens without a trial—nay, without a hearing—to submit to a mortification of their professional pride, to which they would certainly submit to save their own lives? Is the justice of the country of so much less importance than the lives of any dozen of its officers?
But, there was no just mortification connected with the affair at all. Could Captain Mackenzie have reached Antigua, or any other island, and had he gone to its governor and said, "Sir, I command a small American vessel-of-war, on board which, a mutiny exists. I am without marines, and dare not go on my own coast, with certain of the ringleaders on board. I can hang these men, and thus get rid of them, and assure the safety of my brig; but America is a country of laws; she is tender of the rights of the citizen, and most of all of his life; try the men I can not, and I prefer the humiliation of coming to ask your aid, to using an authority that has been committed to me in order to enforce the laws and principles of my country, in a way that may seem to do violence to both:"—Would this be mortifying to any right-thinking man? Is there an American living, whose opinion is entitled to the least respect, who would not have pointed to such an act in exultation and honest pride, supposing that his own officer had acted thus, and a foreign officer had, at the same time, acted on the avowed principle of Captain Mackenzie? Would not the whole country, in such a case, have justly exulted in the superiority of its own system, its own political ethics, as opposed to those of the tyrants of Europe? But, running into a port, does not infer the necessity of asking aid of any one. A small craft might have been chartered, the {271} mutineers, under charge of a guard and an officer, placed in her, and a convoy been given to the nearest American port, and not a foreign officer known anything about it. Nay, had the islands been neared, some small craft would probably have been met at sea, with which this arrangement might have been effected, even without entering a port at all. If the prisoners could be hanged, they could certainly be transhipped [sic]. There always existed the ample excuse of sending the men home, in the month of December, under cover, in preference to leaving them exposed to the elements on the deck of their own brig. It is surely permitted to an American naval officer to exhibit humanity in some form or other.
Let us assume a new state of facts, and apply Captain Mackenzie's principle to it. The Somers is lying in a friendly port, when Mr. Wales reveals his secret. All the dangers exist, which Captain Mackenzie supposes to have existed on board his brig, on the 1st December. Now, he could not rely on the naked circumstance of being in a friendly port, without communication to its authorities, else would his decision not so seek the nearest friendly port rise up in judgment against him. If the mere fact of being in a port is security, where was the humiliation of going quietly into a friendly port, and anchoring? But the seizure might as easily take place in a port, as at sea. A man-of-war goes and comes without being questioned, and the plot could have been executed in a harbor as well as out on the ocean. The danger exists, then—it is necessary to suppose this, or there was no excuse for not running to the nearest haven—and something must be done to save the brig. The men could not be hanged in a neutral port, which would be an invasion of neutral territory; hanged they must be, or they will seize the brig; honor forbids asking protection, and no alternative would remain, under Captain Mackenzie's theory, but to go to sea in order to save the vessel, by hanging the ringleaders! To this dilemma does his doctrine reduce him.
We do not affirm that the court means to maintain the untenable position that an American man-of-war is always to be sufficient for her own wants, agreeably to the unfledged notions of one or two of the witnesses, but we do say that we can see no other application of their fact, but that we have mentioned. A more pernicious principle than that avowed by Captain Mackenzie, in connexion with this point, can not well be imagined, and, if there are any in the country who believe he, or any other man, would carry it out, in a case directly affecting his own life, with his eyes open, we are not of the number.
The other point in the finding to which we especially object, is set forth in these words: "That Commander Mackenzie, under these circumstances, was not bound to risk the safety of his vessel, and jeopard the lives of the young officers, and the loyal of his crew, in order to secure to the guilty the form of trial," &c., &c.
Now, nothing can be more just than to say that Captain Mackenzie was not obliged to risk his own life, or that of his officers (the age we consider to be a mere ad-captandum allusion, an old man having precisely the same rights in the premises as a boy), in a clear case of danger. To affirm this, is simply to say that the question was, is it your life or mine, and, as you are the aggressor, and are clearly wrong, you ought to be the sufferer. It is the right of self-defence, and the evidence of that necessity being clear, there was no call for refinement in the reasoning. But the question here was, firstly, of the guilt; secondly, of the unavoidable character of the executions. Who will, or can say, the guilt of Cromwell was clearly established? It has been guessed at, not proved. Then how was it, as to the necessity, and what is the precise point at which a commander {272} is to be at liberty to say that his young officers are to cease to run any risk? We all must submit to certain risks, ashore or afloat. A man may imagine another seeks his life, may have the fullest moral conviction of the fact, but he can not be permitted to shoot the object of his dread to put an end to these risks, until he is driven to the wall. Any other doctrine than this, would soon make the country a slaughter-house. We conceive the only way in which this point can fairly tell in favor of Captain Mackenzie, is to say that he had no other means of saving his vessel, himself, or his officers, than to hang those he did hang. That is a justification no one will dispute, even the law. Did the facts sustain him legally, they would sustain him morally; but to assume that men are to run no risks, or what they imagine risks, and particularly man-of-war's men, before they rig the gallows, is to assume what neither law nor reason will sustain. We take this portion of the finding to possess more of the character of an argument, than of a clear, dispassionate, legal decision. The doctrine of risks, completely developed, would soon destroy the best marine that ever showed its flag on the ocean.
While the court of inquiry was in session, the prisoners remained in confinement, ironed most of them, without any charges being brought against them. The truth is not to be concealed; they were dealt with as sailors, and not as citizens. It often happens on board ship, that severe and prompt measures become necessary, and military discipline sometimes unavoidably conflicts with civil rights. Pending the existence of the court of inquiry, there might have been a sufficient reason for keeping these men in confinement; there was none for keeping them in irons, we think, as is shown in the fact that some were not fettered; but, the moment that court ended, they were entitled to freedom, or to know the specific charges brought against them. No charges were brought, however; week passing after week in painful durance. In the meantime, an attempt was made to indict Captain Mackenzie for murder. The grand jury asked for instructions from the judge, on the question of law; and, after a solemn hearing of council, the court charged that it was not competent for a civil tribunal to interfere with matters that were pending before a naval tribunal, in consequence of which the bill was ignored.
We have no intention to extend this article unnecessarily, by dwelling on these proceedings in the district court. We shall briefly say, that, after examining the subject at some length, we are of opinion that the case belonged exclusively to the civil tribunals, though the court of inquiry was perfectly proper. So many questions were involved in the affair, that it was right the department should be put in full possession of the facts; but, this inquiry ought not, in the least, to interfere with the ordinary course of the justice of the country. Captain Mackenzie was not on trial, before the court of inquiry; he was not even arrested; so far from having his sword taken from him, he continued in command of the Somers. Nor was his presence necessary for the legal proceedings of the investigation. He might have taken his hat and walked away, as the late Commodore Porter did from the court of inquiry in the Foxardo business, had he seen fit. Unless ordered to attend, with a view to facilitate the proceedings, he was under no legal obligation to be present, and, if ordered to be present, it was not as a prisoner, but rather as a witness. An officer is no more in the hands of the law, pending a court of inquiry into his conduct, than is the citizen, while a grand jury is hearing testimony in his case.
There is something unexplained connected with the proceedings of the department, during the brief interval that occurred between the publication of the find{273}ing of the court of inquiry and the arrest of Captain Mackenzie, under the charge of murder. Something like a very supererogatory parade of impartiality appeared in the government journal because the enormous opportunity of two or three days was left for the friends of Cromwell to procure Captain Mackenzie's arrest by ordinary criminal process, the party, as it has been said, passing that time in a bailiwick where the usual course would not be effective against him. As soon as put under arrest by his military superiors, Captain Mackenzie had the pledge of a decision already made by the district court judge, that he would not interfere with a military tribunal. We should like to see these proceedings examined by some one who is more familiar with the facts than we are ourselves. It appears by the record, however, that the proceedings were so much hurried that the judge advocate was not prepared to open when the court martial convened.
There is another point connected with the finding of the court, to which we will advert. It says, that "during the confinement of the prisoners, sullenness, discontent, inattention to duty, disobedience of orders, often, as seamen know, and naval records prove, the sole precursors to open acts of violence and blood, were manifested by the crew," &c.
The reasoning of this sentence strikes us as singular and untenable. Mutinies have two general characters, the one of disaffection, the other of conspiracy. That of the Hermione was of the first class, that of the Bounty of the last. One proceeded from resentment, ill-treatment, and a desire for revenge; the other from a plot, conceived to carry out a favorite object. That symptoms of the feeling which produces the first class of mutinies should be discoverable, is as natural as it is that the mere conspirator should aim studiously at concealment. The mutiny of the Somers, if mutiny were seriously contemplated, was admitted to be of the latter class.
Shortly after the arrest of Captain Mackenzie (arrested technically; not confined, though charged with murder, while the alleged mutineers, against whom no legal charges were ever brought, were mostly kept in irons and under the eyes of sentinels), a court martial was detailed for his trial. The whole proceeding was so singular as to deserve a notice. The charges will be found at length, p. 1 of the appended record.
These charges are five in number, viz., murder, oppression, illegal punishment, conduct unbecoming an officer, cruelty and oppression. The first three of these charges referred to the executions, in their specifications; the fourth referred to special treatment alleged to have been given to Mr. Spencer, and the fifth to alleged punishments inflicted on different individuals of the crew.
In the course of the trial, the judge advocate laid down the law in such a manner as to reduce these charges to three; murder, oppression, and illegal punishment. The charge of general cruelty appears, however, to have been abandoned for the want of proof. It probably never had any legal foundation. Captain Mackenzie, then, was virtually tried on the tree charges of murder, illegal punishment, and oppression, the specifications referring to the hanging of the three persons so often named.
The court sat nearly forty days, during which time one of the ablest of its members withdrew on account of indisposition. The accused was acquitted. The sentence was no sooner known than the journals began to circulate rumors of the manner in which the court had been divided. On the one side it was said the opinion was unanimous, and the finding an "honorable acquittal." This last assertion was audaciously persevered in, for a long time, directly in the face of the {274} phraseology of the finding itself, with the additional equally unfounded declaration that the president "approved" of the proceedings of the court.
Owing to circumstances that are too familiar to need repetition, the facts have been drawn out, on authority, and they appear to be as follows: On the charge of murder, three of the court voted that Captain Mackenzie was "guilty," and nine voted that he was "not guilty." As the law, to make up a finding that should touch the life of the accused, required a vote of two thirds, the vote would have acquitted Capt. Mackenzie on this charge, had it even stood seven against, to five for him. On the charge of illegal punishment, the vote appears to have been four, guilty; eight, not guilty. On the charge of oppression, the vote was an acquittal. The question of the phraseology of the general finding now arose in a conversation, which made its importance apparent. All must now vote for "acquittal," as the accused had been found "not guilty" on each charge; but findings often say "honorably acquitted." On this last point the vote was taken, when nine voted for "acquitted," and three for "honorably acquitted." The finding of a simple acquittal was consequently sent into the department. Now, by the law, no "sentence" of a court martial—cases that occur out of the country, excepted—can be carried into execution, without the "approval" of the president. In this case there was no sentence, and, of course, no "approval" was necessary. A general order appeared from the government, stating that the finding was "confirmed," but the signature of President Tyler was not affixed. With this brief history of the facts, we proceed to a consideration of the merits of this important case.
In forming our estimate of the conduct of Captain Mackenzie and his officers, it is indispensable, first to ascertain on what points it turns. Many varying positions have been laid down in the premises. Some have contended that Captain Mackenzie was bound to show first, that a mutiny actually existed; second, that the parties executed were connected with it; third, that the executions were indispensable to the safety of the brig; and, in the last place, that every opportunity that was necessary, and which the safety of the vessel would allow, was given to the men hanged, to vindicate themselves from the charges on which they were executed. This, as we understand him, was substantially the ground taken by the judge advocate.
We do not conceive this to have been the true issue, though we subscribe in part to the last condition.
Others maintained that it was sufficient for the vindication of Captain Mackenzie, that he conscientiously thought the first facts just named, existed. These persons were silent on the subject of the last condition; probably under a secret consciousness it never was fulfilled. A variety of modified opinions have been given, varying between these two. We conceive the true issue, both in law and in morals, to have been this. Captain Mackenzie was bound to show that such a case was presented to him, as JUSTIFIED him in BELIEVING in all the facts mentioned in the first of the two cases given, and then to show that he allowed the accused every opportunity of defence, that he was justified in believing could be granted to them, with safety to his vessel.
The reader will see our issue does not turn on the literal facts of the case, but on the manner in which these facts, real or supposed, were presented to Captain Mackenzie. A contemplates a silly frolic, blackens his face, arms himself, and breaks into his friend's house, in the dead of night, and attempts to frighten him. But B shoots A. Now if it can be shown that the frolic of A had been previously communicated to B, this would be murder. Some minor facts might {275} exist to render it manslaughter, possibly; but it would be justifiable homicide, supposing B to have been deceived. Thus, with Captain Mackenzie; Mr. Spencer may have contemplated an idle mystification, but have mystified so profoundly as to justify his execution; were the other conditions of our issue fulfilled. In this case, there would have been no real mutiny, but merely sufficient appearances of one.
On the other hand, a mutiny might have existed without the facts of the case, as they were presented to Captain Mackenzie, justifying that officer in believing in the guilt of the parties, and consequently without justifying their executions, whatever might be the danger of the vessel. This is a point on which we know, from personal explanations, that one of the judges of Captain Mackenzie, or at least a member of one of the courts, differs from us. That gentleman seemed to think if guilt were subsequently proved, it was enough to justify Captain Mackenzie on that point, though he did not get the evidence until after the execution! Many lawyers would probably take the same ground, although we know it to be untenable in morals, and believe it to be so in law. We conceive the opinions of lawyers would be apt to be influenced by what would be, and ought to be done, in a case that approaches near to our own, in appearance, though it does not touch it. Thus, if A be indicted for an offence, under supposed circumstances, and it should turn out on the trial, that he committed the offence, but under another set of circumstances, he would be found guilty, provided the technicalities did not necessarily make another issue. This would be right, as the guilt of the party tried, would be the point to reach. But, in the case before us, the point to be reached, was the guilt or innocence of Captain Mackenzie, not that of Mr. Spencer. Jurors would be greatly influenced by such facts, doubtless; but ought they to be? Is this a case in which a man is to be justified by guessing at all, even though he guess right?
It is a poor rule that will not work both ways. Captain Mackenzie's friends would be the first to apply our issue in his behalf, should any proof unexpectedly appear to show, unequivocally, that Cromwell, for instance, was innocent. They would then fall back on our principle, and affirm that appearances justified Captain Mackenzie in believing him guilty. In this they would take fair grounds, so far as principles are concerned, and we can not see how Captain Mackenzie's conduct can be vindicated by facts that appear after the execution. We repeat, we know he could not thus be vindicated, in morals, and morality and legality, in questions like this, usually, if not uniformly, run in parallel lines. We do not dwell on this point because we deem it very essential to what is to follow, but merely that we may settle principles as we proceed. It is a nice question, we admit, on which much may be said on both sides. We should be willing to examine this case on the broader ground of the two, though we think in so doing we should concede a just principle.
Our issue, then, is this. Such a state of facts must be made out as would justify Captain Mackenzie and his officers in thinking the parties guilty, and in thinking the executions absolutely necessary in order to save the brig, after giving the accused every opportunity of defence that was compatible with prudence. To raise any issue short of this, would be a mockery of justice, and would be to maintain, in effect, that the life of the American citizen, on board an American man-of-war, is to be held on the tenure of his commander's notions, however wild or unreasonable. The reasoning must be such as to satisfy the common mind, {276} and the parties accused must have every available opportunity of defending themselves.
Having thus laid down our premises, as relates to what we conceive to be the true issue, we will attempt to settle one or two other principles of a very different character, before we enter on the investigation of facts. It has been said that Captain Mackenzie's literary pursuits had given him the support of many literary men. Among others of that class, has appeared a gentleman who has high claims to be heard, and who lays down the position, that the size of the Somers, was greatly against the officers in the event of a conflict with the crew! We conceive that nothing can be more erroneous.
The Somers is a brig of 266 tons. Attempts have been made to show that her cubic contents would greatly reduce this tonnage, as if that were a matter of any moment. The largest tonnage is obtained by measurements of her length and breadth, and, as both these refer to her dimensions on deck, they alone can affect the scene of the conflict.
The size of the Somers was, perhaps, as near as possible to that which was the most desirable for her officers, in the event of such a conflict. Had she been much smaller, all her officers and petty officers might not have been able to act together, and thus have lessened their efficiency; while, had she been much larger, there might have been too much to defend or to avoid, for so small a party. Place twenty men on a frigate's quarter-deck, and they could be turned, or assailed from so many points as to render them weak; but twenty, or even ten, armed men, on the quarter-deck of a brig of 266 tons, make a very formidable array, as opposed to any number of unarmed, or even armed men, that could approach, at a time. It is merely the old fact that a small body can defend a defile against an enemy that would overwhelm it in a plain.
The size of the Somers was favorable to her officers in another point of view. We see nothing to have prevented Captain Mackenzie from sending all but his officers below, of securing the gratings, and of carrying the brig across the ocean, if needed, with the gentlemen of the quarter-deck alone. The idea of men's knocking down bulkheads, with firearms thrust through the gratings, within six feet of their heads, strikes us as being a little forced. We believe a single sentinel would have kept the whole of the Somers' crew at a respectful distance, under such circumstances. No man is fond of "belling the cat," and a volley fired through a bulkhead, would give it particular sanctity. But admitting the officers' rooms were given up to the crew, they would still be prisoners. The magazine could be easily defended by the firearms above it, and what could the people do below? A few of them, if they proved turbulent, might have been shot through the gratings, and we think the first case of this sort, would have brought the remainder to their senses. As for Captain Mackenzie's ability to send all hands below, who can doubt it, when it is known that he made them hang three of their supposed ringleaders?
Some may say that the officers would not have been of sufficient force to handle the vessels, under these circumstances. Here the size of the Somers was clearly in their favor. Commodore Rodgers managed a frigate under still more trying circumstances, in 1799, and Chauncey actually brought a ship up to Sandy Hook, single-handed, having to cook, attend his sick, and take care of his vessel for several days, quite alone. To say that ten men and boys could not handle a vessel like the Somers in the tradewinds, is to say that they were unusually inefficient. But Captain Mackenzie was not reduced so low. All the {277} best of his crew, the petty officers, and a seaman or two, to the number of nine, had so much of his confidence as to be armed at the crisis of the execution, and they surely might have been relied on. This would have given all the force necessary to an easy control of the vessel. Then it is probable fifteen or twenty of the younger boys might have been picked out, who would have been of service either in doing light work aloft, or in keeping a lookout on the movements below and about whose fidelity there could be no question. The witnesses speak of a good many of this character.
We see no great difficulty in a vessel-of-war like the Somers, being kept completely within the control of her officers, under ordinary circumstances, even supposing a mutinous spirit to have prevailed, after the existence of the mutiny is known, and the ringleaders are in irons.
A mutiny detected is a mutiny suppressed. The king's name is a tower of strength. The wavering, the timid, the prudent, then all range themselves on the side of the law, that being the safest side. The dread of treachery usually exposes all the secrets. It is one of the remarkable features of this transaction that, Mr. Wales and Small excepted, no one has been disposed to betray the confidence of Mr. Spencer. With so many in irons and menaced with the gallows, not a man has been found willing to come forward, under the impulses of either contrition, fear, or cupidity, to reveal the secrets of this formidable conspiracy! This very unusual circumstance is, of itself, of a nature to throw a shade of distrust over the belief of its existence, to the extent, at least, that was apprehended. It is probable the only case of the sort on record.
While on this branch of the subject, we will endeavor to dispose of some other points that have proved stumbling-blocks to those who are unacquainted with ships. Grave pictures have been drawn of the risks run at night; of the danger of a rush aft, whenever an order was given to do any duty on the quarter-deck, and of the general hazards of the darkness. The answers to all these difficulties are very simple. In the first place, there was no necessity for darkness, every man-of-war possessing means of lighting her decks; in the next place, there was no necessity for a single individual of the crew coming on the quarter-deck at all. Captain Mackenzie appears to have had nineteen men and boys whom he armed, at the crisis, and these he doubtless put in watch and watch; and, if nine men and boys are not competent to do all that is to be done on the quarter-deck of a brig of 266 tons, how do so many merchant-vessels sail for years much shorter-handed? A rope might have been stretched across the deck, and an order given for no man to pass it, unless called by name, on the pain of death. This would have prevented anything like a surprise of the quarter-deck; did that fail, Mr. Spencer's own alleged expedient, that of two of the quarter-deck guns pointed forward, loaded with canister, would have rendered the quarter-deck of so small a craft, as inviolable as a sanctuary. The last expedient has often been resorted to, and we can recall no instance in which it has ever failed to command the deck. In a vessel of the Somers' size, and with guns so heavy (32lb. carronades), the gangways would be like two doors to pass in face of such a discharge. All the other guns might, if it were thought necessary, have been discharged, and the spare shot secured. We conceive that a vessel of the Somers' size, under such circumstances, even admitting a pretty widespread disaffection to exist forward, would have the chances, as nine to ten, in favor of her officers, and that risk, it strikes us, might have been run before an American citizen was hanged without a trial. To come to the facts; the testi{278}mony of Wales, is first in order, as the executions, with the leading attendant circumstances, are not denied.
The first thing that strikes us in the testimony of the purser's steward, is the abruptness with which Mr. Spencer opens his plot. Wales swears that this was the first communication he ever had with Spencer on the subject (see record, p. 11), and yet the latter began with "Did I fear death? Was I afraid of a dead person, and dare I kill a person?" An oath of inviolable secresy [sic] was then asked and given. Without canvassing the probability of such a statement, we will assume its truth, and ask what is the just inference? Clearly, that he who could proceed thus, was not very formidable as a conspirator, unless indeed he thoroughly knew his man. An oath of secrecy, after this strange introduction, was asked and taken! Then followed the communication, of which an outline has been given. Among other things, Wales is told that about twenty of the crew (page 11, record) were engaged in the conspiracy. Spencer had all the details of the plot in writing, the paper being at that moment concealed in his neck-handkerchief.
As the reader will examine the record which accompanies this review, we shall not refer in terms to every line of our statements, but each will be found to be verified in its place. For the present, we will confine ourselves to these few facts.
When Captain Mackenzie arrested Mr. Spencer, the neck-handkerchief was searched in vain, but a paper was subsequently discovered in a razor-case. A fac-simile is to be found in the record, pp. 129, 130. Here then we get an insight, at once, into the probabilities of the extent of this conspiracy. The paper contains in all, thirty-two names. Of these, four are down as certain, ten are down as doubtful; eighteen are down as to be retained nolens volens. The four certain, were Spencer, himself, Andrews, M'Kinley, and Wales. Among the doubtful, it will be seen that four names are marked, as being likely to be induced to join the plot, previously to its execution. The remainder of the doubtful, it is stated in the paper, would be likely to join when the vessel had been taken; if not, they were to be forced. Of the eighteen down as the nolens volens men it is hardly necessary to speak. The paper itself acquits them of anything but being such persons as Mr. Spencer wished to coerce. There is not the slightest ground to be gathered from the paper itself, that one of them knew anything of the matter.
Here then we get the details of the conspiracy, as made out by its leader, down to the last moment of his liberty. The interview with Wales took place at night, just before the lights are out on board a man-of-war. His own name was probably put on the next day, or a few hours before the arrest, though the supposition has been hazarded, among a multitude of other absurdities that have been advanced in this case, that Wales's name may have been set down before the plot was revealed to him. This is said in face of the fact that Wales swears he had had no other conversation on the subject, and, by those, too, who attach importance to the paper. What is the document worth at all, if names were set down as certain, before the parties had been consulted? If this may be true of Wales, it may also be true of Andrews and M'Kinley, and yet no one on that side has thought of applying this violent probability to them!
Taking the paper as a guide, this conspiracy is reduced, as to any serious danger, to three individuals, Spencer, Andrews, and M'Kinley. Admitting the most, or that the four who it was thought would be induced to join previously to the execution, had been so induced, the serious danger was then confined to {279} seven! This, even admitting it to be true, does not strike us as a conspiracy to derange the propriety of a man-of-war's quarter-deck, with the ringleaders in irons and all the details in the captain's own hands! But we do not think the four doubtful ought to be placed anywhere but where they are placed on the paper. The quick insertion of Wales's name proves that Spencer had a boyish anxiety to make his scheme look as formidable on paper as possible, and there can be little doubt his muster-roll was corrected at every plausible occasion. This was natural in itself, as connected with the wild romance that pervaded the whole alleged project, and it was necessary, if this paper were to possess any real usefulness. The circumstance that Mr. Spencer showed this paper to some of his brother midshipmen who could not read Greek, proves the sort of feeling that reigned in his mind, as respects this document, which he evidently regarded as boys are apt to regard things which first seem to connect them with active life. Doubtless he was correcting and making annotations, quite as fast as the facts would at all justify. There is nothing to show the contrary, while there is much to prove the fact was so. Wales swears he was told the whole thing was down on this very paper, and the presence of his own name speaks all that is necessary. Mr. Tillotson, p. 170 record, proves that Mr. Spencer was writing on this paper down to the day before his arrest. Even Captain Mackenzie, in his report, p. 195, left column near the bottom, says he was writing on a paper on the 26th.
Then Spencer had told Wales that about twenty of the crew were concerned in the plot. It is a melancholy proof of the character of the mind which sat in judgment on these proceedings, that Captain Mackenzie, in a letter formally submitted to the court of inquiry, said: "I believed then in the existence of a plot in which, by the declaration of Mr. Spencer, at least twenty of the crew were concerned."
Were the same proposition submitted to a million of men, it would be difficult to find one, that would not have substituted at most for Captain Mackenzie's "at least." Who, before, ever heard of a conspirator's giving the minimum instead of the maximum of his force to one whom he wished to enlist in his enterprise? We deem this instance of the reasoning powers of Captain Mackenzie important to the issue, inasmuch as we think it will be shown, as we proceed, that such is the habit of his mind. We go farther; we ascribe the great calamity that has befallen us, if it be a calamity to have a deep reproach rest on the justice and principles of a country, to be owing to a disposition in Captain Mackenzie to regard things as he has at first conceived them to be, and to act under his convictions, rather than under the authority of evidence.
It was under the testimony contained in the revelations of Wales, that Mr. Spencer was arrested. In arresting the young officer Captain Mackenzie did no more than his duty, though the manner of the arrest was a little too melo-dramatic for the practice of a man-of-war. The manner is related in the testimony of Wales, and in that of other witnesses. It is also to be found in Captain Mackenzie's report. Apart from the exaggeration of the appeal, we think it was unwise to arrest Mr. Spencer in so public a manner, and then to place him the quarter-deck, in full view of the crew. We entertain no doubt that much the greater portion of the ominous conversations, groupings, shakings of the head, and strange looks, which seem to have awakened so much distrust aft, had their origin in the natural wonder of the crew, at seeing an officer in this novel situation; and he, too, not only a favorite forward, but one who was known to be the son of a minister of state. In our opinion, Captain Mackenzie would {280} have shown more judgment, had he sent for the young man into his cabin, and by a conversation endeavored to get the facts from him. He might have been ironed there, were it thought necessary, but what judge of human nature can suppose that a man of forty, possessed of authority, could not have got complete control of the feelings of a lad of nineteen, by means of kindness and judicious representations; more especially of one who manifested the disposition to repentance and confidence that it is acknowledged young Spencer manifested, a day or two later. Besides, something was due to the official station of the father, to the rank of the son, and to the extraordinary character of the evidence under which the arrest actually took place. There had been no overt act, the whole story was so wild and improbable, as to wear the appearance of a mystification, and it rested solely on the statement of one person, which statement Mr. Spencer had enjoyed no opportunity of explaining, or refuting, when he was ironed, and set up on the quarter-deck to be gazed at, by all on board. This course, too, was determined on, before the young man had heard his crime!
The procedure strikes us as failing in judgment on all points, and somewhat in generosity. Where there any real danger, such an exhibition would be apt to inflame and incite to action the remaining conspirators, whereas, the quiet disappearance of the young man might have left them in some of that doubt and uncertainty which seems to have been such a source of uneasiness aft, as respects the conduct of the crew. There is nothing more demoralizing than doubt, or nothing more apt to awaken the energies than certainty. We feel great difficulty in believing that Captain Mackenzie would have pursued a similar course, had one of those connected with him "by blood or alliance" been accused by such a narrative as that of Wales.
After the arrest of Mr. Spencer, nearly twenty-four hours passed without the occurrence of any event to awaken new distrusts. The men collected in knots, it is said, and conversed together, separating as the officers approached, and would look aft at the prisoner seated on the arm-chest. These facts have been dwelt on by some commentators, in a way we think to show that they were striving after evidence of danger, rather than after sober truth. The Somers had one hundred and twenty souls on board her,—at least thirty more than she should have had—and it is scarcely possible that, with her boats stowed, and one third of the deck reserved for her officers, one hundred men could be on her remaining deck, without being in what is called knots. The size of the Somers becomes truly of moment, in estimating the importance of such a circumstance. Then, as to the men's separating as an officer approached, is it not usually done in a vessel-of-war? Men may collect, and converse with an officer stationary among them; his pleasure is known, and he is understood to allow it; but nine times in ten, as he approaches, they open to learn what he wants. This is so usual a thing in a vessel, that we are surprised to see any stress laid on it. But admitting it were not, is there anything extraordinary in a man's looking aft, at an officer set up in double irons on the quarter-deck, and in canvassing the cause—his innocence or guilt—or in ceasing to utter their opinions in the ear of an officer? We should have considered a contrary course as affording much the strongest proofs of a conspiracy, as it would have been substituting something like a concerted self-denial for a very natural indulgence. Those who really had anything to conceal, in such a moment, would be very apt to act with caution. Even the advocates of Captain Mackenzie dwelt on the fact that Cromwell assumed an indifferent air, and affected not to enter into the feelings of those around him, as a proof of {281} artifice, by not yielding to this natural impulse. In his case they overlook the admitted facts that he was a stern man, had some education, was acting as boatswain, and would have been departing from the practice of such men by indulging too much curiosity, in order to drag in an inference against him.
The turning point of the danger, according to Captain Mackenzie's account of the matter, and according to the drift of his defence, was the carrying away of the main-royal-mast. Previously to this accident, however, the men were inspected at quarters, it being Sunday, November 27. This inspection took place at 10 o'clock in the morning. It will be seen, on referring to the testimony of Wales, that Small, the seaman, was directly connected with the plan of Mr. Spencer, having communicated with the latter on the subject during the time he (Wales) was on the booms, and in his presence. Now, under the circumstances, it appears to us that Small would naturally have been the principal subject of Captain Mackenzie's suspicions. For some unexplained reason—unexplained, unless the facts that he was a strong, determined man, and intelligent for his station, and the circumstance that Spencer had been known to give him some money, be deemed a sufficient explanation—this gentleman fastened his eye on Cromwell, the acting boatswain, as one of the principal objects of his distrust. In his report Captain Mackenzie gives this extraordinary specimen of his own reasoning power, as connected with the appearance of Cromwell and Small at this Sunday inspection, viz.: "The persons of both were faultlessly neat. They were determined that their appearance in this respect should provoke no reproof. Cromwell stood up to his full stature, his muscles braced, his battle-axe grasped resolutely, his cheek pale, but his eye fixed indifferently at the other side. HE HAD A DETERMINED AND DANGEROUS AIR. SMALL MADE A DIFFERENT FIGURE. His appearance was ghastly; he shifted his weight from side to side, and his battle-axe passed from one hand to the other, his eye wandering irresolutely, but never toward mine," &c., &c. See Rec. p. 198.
Here, then, were two men who manifested guilt, according to Captain Mackenzie, by directly contrary deportment. In order to escape his distrust, a man must be neither firm nor irresolute; look frightened, nor look determined; hold his battle-axe quiet, nor pass it from hand to hand; stand erect with his muscles immovable, nor shift his weight from let to leg; look steadily, but indifferently, across the deck, nor let his eyes wander, without looking, however, at mine! Evidence like this, of the judgment that was brought to bear on this important case, awakens reflections of the most painful character. If to what has been shown, it be added that men are required to be faultlessly neat at Sunday musters, or Sunday inspections, on the pain of punishment, the picture will be complete.
Next comes the affair of the mast: The spar was carried away in the top-gallant sheeve-hole, in the afternoon of the same day—or Sunday the 27th. Capt. Mackenzie says it was done in consequence of "a sudden jerk given by Small, and another whose name I have not discovered." It may be necessary to explain to the landsman how this loss is supposed to have happened.
The Somers was a brig, a craft in which all the after-braces lead forward. Braces are ropes that are fastened to the two ends of the yards, and which are used to pull the yards round, to keep them steady at any desired angle to the wind, and, when they lead aft, to help support the yards. These braces must lead to some point that is pretty nearly on a level with their yards, or they could not well be worked, nor would they be of much support. A brig having no mast {282} abaft the mainmast, her after-braces, preventers excepted, lead to the foremast, while her forward-braces lead to the mainmast, or to objects attached to these masts respectively. It is evident, therefore, that any strain on the forward-braces, of brig or ship, helps to support the yard, as this strain is against the direction of the wind; whereas a strain on the after-braces of a brig lessens the support, since it pulls in the direction of the wind. The same is true of all the mizen-braces [sic] of a ship which lead forward to the mainmast. Now Captain Mackenzie attributes the loss of his main-royal-mast to the fact that Small gave the brace a sudden jerk, the brace leading forward, and pulling in the direction of the wind, as described.
Captain Mackenzie says: "I did not dream at the time that the carrying away of this mast was the work of treachery;" but as he knew that moments of confusion were those in which conspirators would be likely to act, he used the precaution to see that the work of repairing damages should be conducted deliberately and without confusion. "To my astonishment," he goes on to say, "all those who were most conspicuously named in the programme of Mr. Spencer [meaning the papers in Greek characters], no matter in what part of the vessel they might be stationed, mustered at the main-top-mast-head; whether animated by some newborn zeal in the service of their country, or collected there for the purpose of conspiring, it may not be easy to decide. THE COINCIDENCE CONFIRMED THE EXISTENCE OF A DANGEROUS CONSPIRACY, suspended, yet perhaps not abandoned."
As we proceed, we shall here note another instance of the peculiar character of Captain Mackenzie's mind—the fact that all those most conspicuously named in the muster-roll of Mr. Spencer being assembled at the mast-head on this occasion was CONFIRMATION of the dangerous character of the mutiny.
In the first place, the inference is very remarkable for the premises. Cromwell was acting boatswain, and there is nothing surprising that he should go aloft, on an occasion like this, in a vessel with the peculiar crew of the Somers. Had he remained below, no doubt it would have been deemed a confirmation of the suspicion that he stayed on deck to profit by circumstances in the way of seizing the vessel. Anything may be tortured into proof, when men reason in this mode. As for Small, he was a captain of the main-top, and if any one was to go aloft, he clearly ought to have been there. Several mention that Golderman was one of those aloft. Cromwell, Small, Wilson, and Golderman, are the names most prominently given. Now the name of neither Cromwell nor Golderman appears on Mr. Spencer's programme at all! We know it is contended that the name of Andrews—there being no such person on the brig—was an alias for Cromwell; but it might just as reasonably be affirmed that it was an alias for any one of the officers, as to assert this without proof. To sustain a point by laying down certain things as possible, and then to demonstrate one possibility by another, is, to say the least, an exceedingly loose manner of getting at facts in a case of life and death. At the proper time we shall show that, according to all the reasonable probabilities, Andrews did not stand for Cromwell.
Nor is this all; Anderson, the captain of the forecastle, was one of those aloft. Now this man so far possessed the confidence of Captain Mackenzie, that he was armed at the execution. The inference of Captain Mackenzie is, that certain individuals went aloft on this occasion to conspire: had he said to show supererogatory zeal and activity, in order to conceal their guilt, there might have been a show of plausibility in the conjecture; but in the aspect in which this gentleman presents the occurrence, it strikes us as being singularly distorted. So long as {283} one individual was among them who was not in their secret, how could men conspire, without betraying themselves, on the cross-trees of a brig, or in her top-mast rigging! Unless they went aloft with the purpose attributed, the whole conjecture fails. And would men be apt to go to a place where the chances were as twenty to one they could not be alone, with such an object? Anderson we have named as being aloft, and not in the conspiracy, and there might have been others, but the witnesses have mentioned those who were suspected, rather than those who were not. There were others; Gedney was there, and no one seems to suspect him; the boy Gagely must have been there, too, and he is spoken of in favorable terms. The fact of Anderson's presence came out incidentally, and not directly. But Golderman was aloft, and his name is not in the programme at all. To give the coup de grace to this conjecture, who can imagine men would select a spot which, just at the moment, was the point of general observation, as the scene of a conspiracy? It strikes us that men whose duty did not call them aloft, would have chosen a less public place.
Captain Mackenzie adds, in connexion with this point, and as a matter of moment: "The eye of Mr. Spencer travelled perpetually to the mast-head, and cast thither many of those strange and stealthy glances which I had heretofore noticed." This is not the least extraordinary of the very extraordinary reasoning that pervades the whole of the case. Nothing is more apparent than the fact, that Captain Mackenzie, in his report, intended the favor the world with a fine and memorable description, one that should be quoted in after ages for its thrilling incidents and graphic beauty. This is seen in his details, which would be the height of puerility without this conclusion, and which are not much better with it. To this ill-directed literary ambition we attribute the "strange" and "stealthy," aided a little, perhaps, by a natural cast in one of Mr. Spencer's eyes. But passing over these comic exhibitions of weakness, which might be smiled at but for their tragic connexion, can anything be more violent than the inference as to Mr. Spencer's motive? He was at sea, seated on an arm-chest, in irons, with nothing to do, and nothing but the vacant ocean to gaze at outward, and that only by "stealthy" glances, as the brig lifted or fell. A mast is carried away in full view of him, and it is thought extraordinary that he sought the very natural relief of gazing at what was going on at the main-top-mast-head! It is probable that there was not a man on deck who did not cast "many strange and stealthy glances" aloft on this memorable occasion, and who might have cast more, had he not been otherwise occupied. We confess, had not Mr. Spencer looked aloft, we should have thought it so little in conformity with what one might expect, as to feel an inclination to distrust some deception in his conduct.
While on this point, we shall pursue this affair of the mast. By examining the testimony before the court, it will be seen the idea prevailed, that the mast was carried away by design, the ingenious theory that was set up in this connexion going on to maintain that Cromwell instigated Small to jerk the brace, the object being to throw the boy overboard, and then, when some of the most active and loyal of the crew were absent in a boat, and the vessel was in confusion, to rise and seize the brig. Captain Mackenzie admits in his report that he did not dream of treachery at the time, a circumstance which is sufficiently established by the testimony, page 171, where it will be seen he sharply reproved his nephew, Mr. O. H. Perry, for not attending properly to his duty on this occasion. But the most superficial examination will show the feebleness of all this theory of "treachery." The points attempted to be established are as follows:—
{284} Cromwell instigated Small to jerk the brace; an order existed never to jerk or pull upon the light braces which lead forward; Small belonged aft, and was never known to do duty forward before; the moment would have been favorable for the purpose of the mutineers.
Now, we deny the reasoning as connected with every one of these propositions. As for the first, it is a fact, and was only to be established by direct affirmative evidence. The attempt completely failed—so completely, as almost to establish the negative (See record, pp. 97, 98, 99, 100.) As for the second, it is proved that Mr. O. H. Perry said he told Capt. Mackenzie he understood the order was to "haul on the brace," though, when cross-examined by the commander himself, he says he understood it was an order for "a small pull," &c. (see record, p. 173), and that Captain Mackenzie publicly reproved him for his conduct. The third comes more within the category of a mental effort. As Small belonged aft, it was extraordinary he should pull upon a main-royal-brace. By referring to the evidence, it will be seen that Small was seated on the bitts forward, probably within five feet of the spot where the brace was belayed, possibly within two or three. A boy was actually on the royal-yard, and an officer calls out, if you will, "to pull on the main-royal-brace," the object being to "steady" the yard while the boy was on it. A main-top-man is seated nearest the brace—he knows the object—knows what is to be done, ought to be done, at once—it is light work, and who will say he ought to hesitate? Nine men in ten, on board of any ship, similarly situated, would have sprung to the brace. The circumstance that Small belonged aft, and never had hauled on a brace forward before, explains the reason why he might have exerted his strength, or weight (for that is the power used on a rope that leads up and down), on this main-royal-brace. The braces which led aft were hauled upon, and he may very well have acted under a habit. Then Small is described as the shortest man in the brig, and small men are apt to throw their weight upon light work. It is a natural resource of their means. As for the order itself, it is disputed; the witnesses of Capt. Mackenzie do not agree, any more than those for the prosecution. Next, the moment would not have been favorable, nor does it come within the bounds of any plausible possibility that it could have been seized by the mutineers. The order emanated from the mind of the officer of the deck, and could not have been anticipated. It follows there was no time for premeditation. The plot, if plot there was, must have been concocted between the moment when Mr. Hays first spoke and the pull on the brace. How long a period would this be on board a small brig-of-war? Ten seconds would be a large allowance; it might have been all over in five. It probably was in six or seven. How, then, are we to make the violent supposition, that Small, in six or seven seconds, conceived and executed this design, his body in active physical exertion the whole time! The supposition strikes us as singularly absurd. It would have been far more rational to have thought, as Small was known to be uneasy and nervous, now standing on one leg, now on the other, that nervous excitement, and a desire to manifest unusual zeal, had led him to do more than his duty.
There is an unanswerable objection to the scheme, however, in the fact that a dozen much easier of execution and more likely to succeed, presented themselves. For this contingency the mutineers, in the nature of things, could not have been prepared, whereas Cromwell, if so disposed, might have prepared his men, thrown a boy overboard in the dark, given the alarm, and then executed his purpose, taking care that none of his own dependents should go in the boat. A billet of wood, in the dark, might have served as well as a boy, or fifty expedients of this nature {285} been adopted, every one of which would have been better than this of the royal-yard. It might be added that a boy on a royal-yard, in a vessel going large in the trades, would fall inboard, and not outboard, nineteen times in twenty; and, that a boy, so situated, especially on a raking mast, nine times in ten, would not come down at all. He would save himself by the rigging and the sail, as this boy actually did. Now, all these things are as familiar to seamen, as the figures of a quadrille to a young lady, and he would be as apt to reason and act on them, as any one on shore would act and reason on his most familiar habits. It appears to us, that there is nothing connected with this affair of the mast, to justify any part of Captain Mackenzie's reasoning. Nor is it clear the jerk did carry away the mast at all, though the strain of a taut brace might have been the feather to break the camel's back. We shall allude to this point later.
We pass next to the necessity of the execution, on the supposition of the guilt of all the parties, intending to consider the last point, at the conclusion of our analysis of the facts. In estimating this necessity, we intend to give Captain Mackenzie the full benefit of that which we conceive to be the true issue, or of the justifiable belief, at the time, of the existence of this necessity. Nothing would be easier than to show, now, that this necessity was imagined; the evidence all tending to prove that the conspiracy, so far as it existed at all, had no great extent. The question then is, how far the facts, as they were offered to Captain Mackenzie, at the time, JUSTIFIED him in believing in the necessity of these executions. There can be little doubt, if this point of his defence can be made out, this gentleman must be acquitted before God and man. We consider, however, the guilt of the parties indispensable to this necessity.
It may be well to remind the reader of two facts before we proceed to details. Much of the evidence on which this necessity is to be proved is matter of opinion; dependent on signs and symptoms that it is contended were sufficiently apparent to the eyewitnesses, but which it is difficult to impress on the public with its due weight and gravity. The other fact is the very material circumstance that the most important of these witnesses were as guilty, in the eye of the law, as Captain Mackenzie himself, if the latter were guilty at all; having been aiding and abetting in the whole transaction—accessaries [sic] before the fact. The first of these facts is entitled to its consideration on the one side, as the last on the other. It is very possible that signs of disaffection may have existed in reality, that can not well be brought home to the minds of those who did not see them; still, it must be remembered that those on board the brig may also have been so distrustful as to exaggerate the proofs of danger, and to see grounds of alarm where none really existed. As we shall presently show that Captain Mackenzie, by his own subsequent course, has left the public justly to infer that he can not make out the guilt of those whom he brought in as prisoners, and those arrested in port, it leaves a strong probability that he and his officers did exaggerate this danger.
As respects the connexion of so many of the witnesses, with the guilt or innocence of their commander, something may be said on both sides. In the first place, it is not easy to suppose any malice on the part of the junior officers of the Somers against those executed, and certainly nothing was to be gained by hanging them. We are not to look for any interested motive, then, by way of explanation. The situation of the parties was peculiar, and it ought not to be forgotten that, in the clearest cases of guilt and danger, these very persons were the only witnesses on whom Captain Mackenzie could, in the nature of things, rely for the proofs of his justification. On the other hand, it should be borne in {286} mind that the fault of Captain Mackenzie, admitting that he erred, was probably one of judgment, coupled at most with some undue pertinacity of opinion; that these witnesses sustained him in all that he did, and, consequently, that we are not to expect in a case of this gravity, when men have once committed themselves, they will be altogether as impartial and candid as if they had not. The distinction becomes material, when we remember that the witnesses were called on to testify, in their cooler moments, concerning acts committed in a crisis of strong feeling and presumed hazard.
The reader will better understand us, if we refer to certain points in the way of illustration. Some of the witnesses, in testifying to the danger, use expressions like this: "I thought so then, and I think so now;" thus identifying their present impressions, after every opportunity had been given to probe the conspiracy to the bottom, without discovering anything, with their impressions at sea, when subject to all the risks. Great confidence is manifested, also, concerning the guilt of Cromwell, as well as that of other individuals, who were brought in, in irons, a guilt which is inseparably connected with the danger, and yet the survivors have not even been tried, unquestionably because they can not be convicted. We deem this adherence to so much positiveness of opinion, under the circumstances, to be a consequence of the connexion of the witnesses with the transaction itself, and, without wishing to attribute to any one of them a deliberate design to invent, or even to conceal the truth, we think it scarcely human that they should not, in matters of opinion at least, and perhaps unconsciously to themselves, sometimes color it. What we mean, therefore, is simply, that while we should regard it as extremely unfair to view these persons as men who were testifying in behalf of a partner in ordinary guilt, we deem it unwise to consider them as totally disinterested. Their own characters, as men of prudence, clear-sightedness, and moral firmness, are unavoidably connected with the issue. Unless it be assumed men never fail in these qualities, the considerations just mentioned must be entitled to a good deal of weight.
It will probably be said, it is a strong circumstance in favor of Captain Mackenzie, that all his officers coincided in opinion on the subject of the necessity for the executions. Under ordinary circumstances, there would be great force in this argument; there is some, though we think much less, under those which actually existed. Had the Somers been an ordinary vessel-of-war, the officers would have been more independent of their commander, than happened to be the case with this brig. She was sent to sea with too much of the character of a family yacht, to come within the usual category of a regular cruiser. Captain Mackenzie tells us himself, in speaking of his officers, that "two of them were connected with him by blood, and two by alliance, and the four intrusted to my special care." Two of these gentlemen, we understand, were sea-officers who had charge of watches, and the two others were witnesses in the case, though not of the council that advised the executions. Any one familiar with a man-of-war, will at once admit the ascendency [sic] of the opinions of sea-officers, in cases of this nature. The purser and surgeon, for instance, would be men of unusually decided characters to venture opinions opposed to those of the sea-officers; the habits of command giving to each department of a ship a very nearly undisputed sway, within its proper sphere. It must not be forgotten, that of the five sea-officers who signed the opinion in favor of the executions, four were just of an age to render them active assistants in quelling a physical attempt to seize a vessel, but to render them questionable counsellors [sic], in a case of this fearful magnitude.
{287} Had the question of life and death been referred, too, to the council that was convened on the 30th November, as a naked proposition to be decided by the unbiased judgments of its members, on the facts as they presented themselves at the time, the opinion given would carry more weight with it, than we conceive it entitled to receive, under the real state of the case. It appears by the evidence of Mr. M. Perry, and others, that the necessity of executing Spencer, Cromwell, and Small, was discussed among several of the officers, as early as the 28th, or two days before the matter was referred to the council, and three days before the opinion of that council was signed. The interval was abundantly sufficient to give a bias to the opinion of the quarter-deck, most especially when that quarter-deck was principally occupied by very young men, and to have caused the council to arrive at a foregone conclusion. So generally is the influence of military supremacy appreciated, that it is a standing law of courts martial to oblige their junior members to deliver their opinions first, commencing with the youngest, and ascending according to date or rank. In the civil courts, even, it is the rule of judges, when obliged to give jurors leave to separate before a case is finished, to direct them not to converse with each other, until the matter is finally submitted to their decision. So tender is the law on this point, that he who has expressed an opinion in a case is rejected as a juror, and rightfully, inasmuch as he has to overcome preconceived opinions before he can get to be even impartial. The evidence that is wasted in restoring the balance of his mind, might make the scale preponderate, had the beam been level when first received. According to the evidence, Lieutenant Gansevoort, Mr. M. Perry, and one or two more of this council, would have been rejected as jurors, after the opinions they had expressed of the necessity of hanging the individuals in question; and, while we do not say the necessity of the case did not make it proper to consult them, we do say that their opinion, inasmuch as they could be influenced by most of the testimony taken before the council, are entitled to much less weight than if they had come fresh to the consideration of the subject. The same reasoning will probably apply to most, if not to all, the members of the council. It is in proof that three members of this council were of opinion of the necessity of the execution as early as the 28th; it is scarcely probable these early consultations were confined to these three, and did that council meet, its members holding preconceived opinions, they must have been more than human, if their inquiries were not quite as much directed to obtaining confirmation of what they already believed, as to obtaining the truth. When this bias was left to act on a tribunal before which the accused had not even a hearing, it is easy to imagine the effect. This fact, also, is of the last importance in another point of view. All the evidence of the necessity of the execution, that appears after the 28th, is thrown away, as respects these gentlemen, inasmuch as their minds were made upon previous facts. Then the character of the evidence given, speaks volumes!
But we are not left to mere conjectures on the manner how opinion was formed on opinion, in this grave transaction; the testimony of the parties themselves, removing all doubt. Even the witnesses before that council, justify their own opinion by those of others around them. We refer the reader generally to the depositions taken before the council (p. 151 to p. 158, inclusive). Anderson says (p. 151): "From what I have heard from my shipmates, I suspected they were plotting to take the vessel." This man pretends to no knowledge of his own, and thought the vessel in no danger, at the time of the council, though he distrusted going on the coast. Stewart says, "I don't think the vessel safe, from {288} what I heard King, the gunner's mate, say" (that is), "that he had heard the boys say that there were spies about." Henry King signs a paper, giving "a list of men whom he suspects of being engaged in this matter now—Golderman, Sullivan, and Waltham; believes that Cromwell was at the head of them; Mr. Spencer and Cromwell were engaged most of every fine watch, taking stars; believes that Small is engaged," &c.: and thus goes on thinking, suspecting, and believing, to the end of his deposition. Yet this man is authority for the opinions of others!
One or two facts are mentioned in these depositions, such as Mr. Spencer's general intimacy with Cromwell and Small, but in the main nothing is given but opinions. The facts will be noticed when we come to consider the guilt of the prisoners. Gedney's deposition, however, is worthy of notice. In the body of it, he says: "I heard him (Spencer) say to Cromwell, 'he would try that, and if he succeeded, well and good, and if not, he'd burst;' know that he had reference to a voyage, and spoke about a voyage to the northwest coast." This is all plain enough. The witness deposes Mr. Spencer was talking about a voyage, and that he had been speaking about a voyage to the northwest coast, and then he wound up by the remark of his intention to try some particular scheme, and if it succeeded, well and good; if not, he'd burst. The last is a common New York expression, which means, "I'll make or break." To this deposition he swears, and he signs it. But a postscript is added, in these words: "I now believe, that when he (Spencer) told Cromwell that 'he would try that, and if he succeeded, well and good, and if not, he'd burst,' that he alluded to taking this vessel." We presume no comment is required on such a deposition.
A more precious set of depositions was probably never flouted in the face of justice. Nine tenths of their matter would be rejected in the loosest court in Christendom. We hope they will be read, and we can not doubt their effect on every legal or logical mind. We shall have occasion to revert to them again, but, at present, will add a few words on the subject of that of Wales.
In the first place, this deposition is dated November 26th, 1842, on the day Mr. Spencer was arrested. It may have been given as authority on which to ground the arrest, though that is a very novel course at sea, unless further unusual steps are meditated. As it stands in the record, it would seem not to have been sworn to.
The statement is generally that given in Wales's testimony before the court, though it differs in the order of events. In his testimony before the court (p. 12), he says: "Small then left; Mr. Spencer then made overtures to me, by saying, if I would join them, he would give me the post of third officer on board." In the deposition (p. 156), this offer is made after Wales had left the booms, and after Mr. Spencer had menaced him with death if he revealed what had passed; it is the last thing Mr. Spencer says in the interview, and is answered by Wales's saying he would talk with Mr. Spencer on the subject the next day. On the subject of his own engagement, Wales says, in this deposition or paper, "He (Spencer) then asked me if I would become one of their number; I did not tell him whether I would or would not, but rather leaned on his side." &c., &c.
Now this paper was Wales's statement at the time—the document on which the prisoners were hanged, so far as he (Wales) was concerned; and yet this Mr. Wales is put down as "certain" on Mr. Spencer's programme—is one of the three, beside himself, on whom this young man fancied he could surely depend. All this Captain Mackenzie saw, and we think his inference should {289} have been that men were set down as "certain" on very insufficient grounds. The offer of making Wales third officer, seems to have been made under an apprehension he was only half won over. Why was this offer transposed, as to time, in the testimony before the court?
We wish to be understood. It is not our intention to say Captain Mackenzie ought not to have consulted these gentlemen at all. He had no other counsellors, and he did right in asking the opinions of the officers, before he took so grave a step as hanging three Americans without a trial. This does not change the character of the advice, however, and it is of that we have just been speaking.
We come next to the proofs of the necessity. These proofs have all the same general tendency, though they are a little varied by the experience of the different individuals. All, however, were founded on the presumed danger of a rescue. This much was indispensable, as mutineers already in irons, could scarcely be considered objects of apprehension from any other cause. It is true, the possibility of the prisoners getting their hands out of the irons is alluded to in the course of the proceedings; but, as fastening their arms at the elbows, behind their backs, would have rendered them incapable of doing any harm even if out of irons, it is to be presumed they were not hanged to avoid this danger. Mr. M. Perry particularizes his reasons for believing a rescue would be attempted; they were substantially as follows: Because those persons whose names were in the paper collected in knots, particularly in sight of the prisoners; because they did. not obey orders with the same alacrity as they had done previously to Mr. Spencer's arrest; on account of the general disposition of those whose names were found on the paper; the carrying away of the mast, and, because, one night when he called out for "some of you," to come aft to haul in the spanker-sheet, a great many more than was necessary, fourteen or fifteen, came aft. On this occasion, he picked out two or three to do the duty, and told the rest to go forward, again, and they moved slowly away. The knots of men, too, would apparently change the subject of their discourse as he approached them. Now, of these persons, whose names were on the paper, the only two known, down as certain, were already in irons. Wales, of course, is excepted. As Cromwell and Small were also in irons they completely cover the alias, or the name of Andrews. Wilson, M'Kee, and that supposed fore-top-man, were also in irons. This left but six whose names appear the least under suspicious circumstances, to be dreaded, as connected with the paper. So far as the paper was concerned, or could be at all received as authority for apprehension, only two of these six belonged to Spencer's category of those who would probably be induced to join the plot, before its execution. Men, in such a state of mind—and if the paper is to be taken as authority at all, it must be taken on its own authority—would not be apt to be the subject of just alarm after the plot was discovered, and the ringleaders in irons, when Mr. Spencer himself contemplated the possibility of forcing the remaining six into his scheme, and that only after he had the command of the vessel, it is a most violent supposition to suppose them very dangerous. As these six came within the category of those who Mr. Spencer deemed it probable would be induced to join before the execution of the project, he had only to make a cross opposite their names, to note the circumstance on his muster-roll. The promptitude with which Wales's name was enrolled, might afford a reasonable assurance that the mutiny was no worse than it seemed to be, by the programme, and even Captain Mackenzie admits (p. 195), that Mr. Spencer passed much time on the day of his arrest, in writing on, and examining a small piece of {290} paper, which he evidently supposes to have been one or both of those discovered in his razor-case.
As for the collecting in knots, looking at the prisoners, and apparently conversing about them, and changing the discourse as an officer approached, it strikes us as the most extraordinary reason for apprehending danger, that has been given. Had not the men done what was so very natural, it might have justly created suspicion. To suppose that a quarter-deck could be lined with men in irons, including a quarter-deck officer and the acting boatswain of the brig, and the people forward not talk about it, is, in itself, to suppose the latter to be influenced by some very unusual motive. That they changed their discourse as Mr. Perry approached is also probable, though it is not quite so easy to understand how he could know this fact, in a way to be able to swear to it, unless able to add what had been said before the change took place. We understand him to say, consequently, that he thought the conversation was changed. That the conversation was changed, we have no difficulty in believing, as men are not apt to let their opinions of the discipline of a vessel be known to their officers. It would be disrespectful, and insomuch mutinous, had they done so. But the subject of many of these conversations has been distinctly stated by several of the witnesses among the crew, and no harm has been found in it! M'Kinley swears he overheard the names read off the paper when found, and that he told several that their names were down on this paper of Mr. Spencer's, he, Mr. Spencer, being then in irons on the quarter-deck.
We consider this testimony as conclusive of the general character of these conversations, whatever may have been the facts in a few particular cases. Nevertheless, the officers have a right to the benefit of the probabilities, and these we think altogether against their reasoning. We apprehend their minds had taken a previous bias, and that they looked for confirmation of their suspicions, rather than for the sober truth.
As for the affair of the mast, we deem all the just reasoning to be opposed to that of the quarter-deck on this occasion.
The next point is the circumstance that the crew did not obey the orders, as promptly as before the arrest of Mr. Spencer. As this was one of the general arguments in favor of the necessity of the execution, it shall now be examined.
The accounts of the state of the crew are not uniform. Mr. Gansevoort tells us Captain Mackenzie remarked that the ship's company was in a state of good discipline, when the existence of the plot was first revealed to him, or, on the morning of the 26th November. Several of the officers testify that the discipline fell off while the brig was on the coast of Africa: This is an extraordinary fact, if true, to have escaped the eye of the commander. The island of Madeira is given by a good many of the witnesses as the place where the discipline began to fall off, while others put it materially later, and others treat the point somewhat lightly altogether. According to Mr. Gansevoort's testimony, Captain Mackenzie, himself, must have belonged to the latter class. The discrepancies in these opinions go unanswerably to show that the change could not have been very marked, and they leave the probability that many if not most of these opinions were formed after the revelation of Wales. A distinction must be drawn, moreover, between disaffection and ordinary offences. We do not consider thieving, or even surliness, a proof that men were engaged in a conspiracy to turn pirates. The dullest intellect would understand the necessity of feigning even unusual obedience, in the last case, rather than awaken suspicion by betraying disaffec{291}tion. The conduct attributed to Mr. Spencer, by Captain Mackenzie, would be the natural course to pursue in such a state of things. Obsequiousness in face of the discipline, discontent and plotting out of sight.
It is an extraordinary fact that no one was punished for all this backwardness at duty, and surliness! The Somers was at Madeira, October 6th, and the revelation of Wales took place on the 26th November; yet no one was brought up for misbehavior, on this point, in these fifty-two days! There was abundance of flogging, but it was for stealing, fighting, and ordinary offences.
One of these punishments is worthy of being noted. A negro, named Waltham, was flogged for stealing, on the complaint of M'Kinley, The theft was not from M'Kinley, but from the officers. Now M'Kinley was one of Capt. Mackenzie's "favorite aversions." He was down on the list as certain, and Captain Mackenzie speaks of him as one so sagacious as to predict he would have gotten rid of Mr. Spencer and Cromwell, and commanded the brig, in the event of her having been turned into a pirate. Waltham was a nolens-volens man, and of course to be propitiated, if the programme had any real virtue in it. Waltham, moreover, was a decidedly suspected man. The judge advocate asks Mr. M. Perry (p. 78 record) if he knew who reported Waltham the last time he was flogged for stealing, or on the 29th November, only two days before the executions, and after Cromwell's arrest. Mr. Perry thinks it was M'Kinley; whereupon this question was put, viz.:—
"After this report of M'Kinley, did you believe he and Waltham were accomplices together with Mr. Spencer?"
The answer is—"I did sir; that being a particular reason for thinking so."
Here, then, Mr. Perry thinks the fact, that M'Kinley got Waltham flogged with a cat-o'nine-tails, a particular reason for believing they were accomplices in this mutiny. This is important testimony, as showing the value of those opinions on which so much stress is laid. The reason is so particular, that ordinary minds can not readily grasp it. We suppose, however, that the young gentleman meant this: M'Kinley was so artful, as to imagine it might conceal his agency in the plot, if he got a suspected accomplice flogged, and that accomplice was sufficiently complaisant to submit to the operation! Well, admitting all this extraordinary finesse to have existed, would not minds so acute, and bodies so insensible, have been sagacious enough and steady enough to avoid betraying disaffection in their ordinary conduct?
We wish the reader to run over the whole of Mr. Perry's cross-examination, particularly from page 69 to page 75. It will give him a tolerably good idea of the value of the opinions that existed in the Somers at that grave moment. This witness and others speak of the exhaustion of the officers, as a reason for the necessity of the execution. Thirty-six hours seems to be the favorite period of the duration of their powers. This is inferring great homogenousness [sic] of constitution, one man usually holding out longer, under circumstances of trial, than another. What was there to cause all this exhaustion? These gentlemen were in watch and watch; so are thousands of others daily. We have ourselves, at a tender age too, been watch and watch for weeks and weeks, and had our rest broken night after night in addition, to help make and shorten sail. It is a common thing to be all hands all day, and watch and watch at nights, for long voyages. But these gentlemen had to carry pistols and a cutlass. Is this harder on the human frame than to add the labor of ship's duty to the watch and watch of ordinary sailors? But these gentlemen could not sleep on account of the uneasiness natural {292} to their situation. We intend to treat this matter fairly, and admit that such apprehensions might cause one's rest to be disturbed, without any imputation of a want of due firmness, though we think habit and weariness would soon bring relief. We have a better opinion of the physical powers of these gentlemen than they seem to have themselves. Besides, the necessity of the executions was settled in many of their minds, perhaps in all, on the 28th and 29th, when they could not have been as much exhausted as they appear to have been on the 1st December. In addition, to make this argument available, either in law or morals, they were bound to hold out as long as they could, and to take the chances of falling in with something, even though it were an American cruiser. There was no danger of their all breaking down at once, and the first failures would have given timely notice. As it was, even the two sick men, Garty and the doctor, were still able to keep watch, when the men were hanged. The argument is clearly untenable, by proving too much. The officers began to look pale, it is said; this was probably true, men fatigued, and who lose their rest, being very apt to lose their color; but Captain Mackenzie tells us that even Cromwell, the gigantic desperado, slaver, and pirate, looked pale as early as the 27th, though he still looked determined. In this respect, then, one side was not much better off than the other. As for the fatigue produced by walking so much, to which some of them allude, Capt. Mackenzie should have permitted them to sit down.
A reason given by Mr. Perry, for supposing that a rescue would be attempted, was, that Mr. Spencer, Cromwell, and Small, looked unconcerned, as if they expected a rescue. (See record, p. 62.) If required to distinguish between this species of unconcern and that which belonged to innocence, we apprehend the witness would have been embarrassed. Let us examine the point. The three men are in double irons, on the known charge of mutiny, and they do not look concerned. The question is, ought that unconcern to be ascribed to a confidence of a rescue, or to some other cause? In the first place, the chances of a rescue were small. The officers were armed, had command of the vessel, and had told them their brains would be blown out at the least sign of any attempt to communicate with the crew. Now, a good deal of delicate management would be necessary to get possession of a quarter-deck like that of the Somers, and the risk of the prisoners being killed in the struggle was so great, as to render them anything but unconcerned. They had been often told to lie down, look round, not to make signs, under the penalty of death, and we find it difficult to believe that, manacled as they were, they would regard the chances of a struggle for their rescue with unconcern. They might be willing to take the risk, but it must have troubled them, we think. On the other hand, what had they to fear in their present situation? Mr. Spencer declared, it is said, he intended to run away as soon as he got home, and, with a father who was a cabinet minister, he could not have apprehended much for his life. There had been no overt act of mutiny, and the whole affair, without the executions, would not have been remembered, probably, but a week or two after the brig got in. As for Small, he had made his confession, and might naturally expect to find at least mercy, while it is quite as reasonable to suppose Cromwell's unconcern proceeded from the consciousness of innocence, as from any other cause. Native resolution may very well have supported him; while, conscious of his own great physical powers, this man ought in reason to suppose he would have been one of the first sacrificed, in the event of an attempt at rescue. If he was so formidable as to need an array of officers—one with a {293} pistol cocked and pointed at him—to arrest him singly on the quarter-deck, he must have believed he had little to hope on such an occasion.
The supposed evidence of an intention to rise, generally, is urged in vindication of the necessity of the execution. The conduct of Wilson, the sailmaker, is in particular mentioned by several of the witnesses, and, among others, by Captain Mackenzie. Wilson had a desperate-looking dagger, and had told one of the boys that he would cut his throat with it. This dagger, in Captain Mackenzie's report, is made to assume a very dangerous aspect, and it evidently had its influence on the opinions of most of the officers. The reader will find the explanation of all this at page 160 of the record. It would excite a smile, did not a painful feeling suppress it.
Then Wilson was seen sharpening his battle-axe. We confess, this struck us as a little ominous, for it was scarcely probable that any one man would make an unsupported attempt at a rescue. But Mr. Perry disposes of this ominous fact, by an answer he gives to the judge advocate at page 69. "If you thought his (Wilson's) conduct so suspicious, why did you not report it before?" was the question; meaning before his (Wilson's) arrest. Here is the answer: "I did not think his cleaning his battle-axe suspicious at that time—t'was a usual occurrence."
This man Wilson seems to have liked Mr. Spencer, and he may have had some vague conversations with him; for it seems he went aft and reported something to Captain Mackenzie, which that gentleman pronounces in his report to have been "some lame and absurd confession," page 201; and he puts him in irons. It would have been more satisfactory had Captain Mackenzie let us know what this something was, that we might have judged of its value for ourselves. But, whatever may have been the intentions of Wilson, or the dangerous character of M'Kinley, both were in irons on the 30th, and neither could aid in a rescue. Both have been brought into port, and both have been discharged without a trial, though Captain Mackenzie had them weeks and weeks within his reach, as prisoners, within the waters of New York!
The position of the brig had something to do with the necessity of the executions. Mr. Perry is required to give the distance from some of the nearest islands, at meridian, each day, from the 26th November to the 1st December inclusively. This is done at page 75 of record. English Harbor, Antigua, is in 17 degrees 12 minutes north latitude, and 61 degrees 45 minutes west longitude. The executions took place in 17 degrees 34 minutes 28 seconds north latitude, and 57 degrees 57 minutes 45 seconds west longitude. Mr. Perry, on 1st December, makes Antigua 388 miles distant from the place of execution. (See record, p. 75.) Without going into a minute calculation, we will put the case so plainly any one can understand it. Between English Harbor and the place of execution there are but some twenty-seven statute miles of difference in the latitude. The difference in the longitude is 3 degrees 50 minutes 16 seconds. Now a degree of longitude in the 17th degree of latitude measures a trifle less than 66 English miles. Calling the difference of-longitude 4 degrees, which it was not by about 10 miles, it makes the distance on the 17th parallel of latitude just 264 English miles, which will about cover the trifling variation of course occasioned by the twenty odd miles of the actual difference in the latitude. We suppose the Somers to have been about 250 miles from Barbuda and Antigua at the moment of the executions. There is something that requires explanation in these answers of Mr. Perry. For instance, he places the Somers at 388 miles from An{294}tigua on the 1st December. On the 30th November he places her at 620 miles, Of course she was 232 miles nearer on the first day than on the second. Now her run by log is given as only 191 miles in these twenty-four hours. The difference, of course, must have been owing to the current. It follows, had the brig's run been the same in the twenty-four hours that succeeded, and the current been the same, as doubtless it was, she would have been up with Antigua in the afternoon of the 2d December, or within the thirty-six hours that some of the witnesses seem to think marked the limits of all the officers' powers of endurance. This is a very important fact, and renders the theory, that a man-of-war is not to go into port even to charter a craft to receive prisoners, who must otherwise be carried on the American coast on deck, if not in bags, in the dead of winter, somewhat indispensable.
According to Mr. Perry, the Somers, on the 28th, at meridian, was 872 miles from Barbadoes. On the 29th, this distance was lessened to 690 miles. The difference is 182 miles. From meridian 28th to meridian 29th, the run, by log, was only 144 miles, leaving 38 miles to be effected by the current, even had the brig been steering directly for Barbadoes, instead of running diagonally past. At meridian December 1st, Barbadoes is said to have been distant only 335 miles. This does not tally with our measurement by 100 miles, but we can not explain the matter. Let us calculate from November 28th. Between this day and December 1st, the brig ran, by log, 511 miles. Add to this a drift of 38 miles each day, or 114 miles in all, and we place the brig only 247 miles from this island when the execution took place. A slight change in the course would have brought the brig's head in the direction of Barbadoes, and the set of the current was toward that island. Such calculations can not be minutely accurate, something depending on the wind and the sail carried; but the difference would not be very material. We think the printed record must contain some mistakes, as to these distances given by Mr. Perry, which strike us as wrong in more than one particular. There can be no question, however, as to the position of the Somers when the execution took place, that being laid down, with precision, in the charges. We conceive, and have maintained ever since the leading facts of this case have been accurately known to us, that the instant the commander of the Somers foresaw a probable necessity for executing the prisoners, it became his duty to stand for the nearest available port. Owing to the direction of the wind and currents, this might have been Martinique, or even Antigua, to either of which islands the Somers must have been materially nearer than she was at the time of the executions, had the brig been kept away as early as the 28th. Had this course been adopted, there is scarce a doubt that the Somers would have been in port in a very few hours, some twenty-four at most, after the memorable moment when the men were hanged!
The defence has foreseen this objection, and has produced its reasons against it. In the first place, the Somers would not have been executing the duty on which she was sent—the orders of the department would not have been followed to the letter! If true, this is a miserable answer; but it is not true. A part of the orders under which Capt. Mackenzie sailed is conceived in these words, and he ought to have known it—probably did know it—viz., no person shall "be deprived of life, liberty, or property, without due process of law." Any order which contravened this order; became illegal, and he not only was not bound to obey it, but he has been sworn not to obey it. We do not mean an individual may not {295} legally take life, without the form of law, but we do mean, so far as legal orders are concerned, that this is the paramount order—the supreme law of the land.
Then the excuse of following the intentions of the department, in a case like this, can scarcely meet with too strong reprehension. The department never meant anything of the sort, and the spirit of all orders is to be obeyed; it was a time of profound peace, and the Somers was simply returning from the coast of Africa, where she had been with despatches. In this connexion, it may be well to say that all which is thrown out on the trial, about the "honor of the flag," "going into action with credit," and such rhodomontade, is worse than boyish on an occasion like this. It is pressing a principle which, even in moments of actual war, is always taken with certain allowances, into the service of a weak cause, by using it when it can only be used at all as a naked theory. Carried out, it would justify a clever first lieutenant in hanging a poor captain, in order to introduce better discipline, and make an inefficient ship efficient. The only circumstances that can render such a course at all plausible, viz., pressing danger of a conflict, it is notorious did not exist.
But, changing the course would have destroyed the