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Essay on the Legal Aspects of Somers Affair and Bibliography

by David Howe (NOTE: The following article represents the views of the author and not necessarily the views of the Naval Historical Center.)

Related Source: Somers, brig


I. Introduction

In 1842 the United States was at peace. On May 7 of that year Commander Alexander Slidell Mackenzie took command of the new Navy brig Somers at the Brooklyn Navy Yard. The brig made a shakedown cruise to Puerto Rico in June and July. On September 13 she sailed from New York to Africa to carry dispatches to U.S.S. Vandalia and to train apprentice seamen and midshipmen. Ten weeks later, en route home to New York, Commander Mackenzie was informed that Acting Midshipman Philip Spencer and others were plotting to kill the officers and loyal crew, seize the brig, and use her for piracy on the Spanish Main. He arrested Mr. Spencer and put him in irons on the quarterdeck. On the following day he arrested two suspected co-conspirators, Boatswain's Mate Samuel Cromwell and Seaman Elisha Small. Three days later, without a trial, he hanged the three suspects. Mr. Spencer was the son of the Secretary of War.

A court of inquiry was convened when the brig returned to New York. After a month of testimony the court of inquiry exonerated the commander. At his own request, he was then charged and tried by a court martial. The court martial acquitted him on a split vote. The government accepted the court's decision, but the acquittal did not satisfy public concerns with the case. Many commentators, including James Fenimore Cooper, denounced the hangings as murder and criticized the Navy's handling of the matter as an example of what today could be called a "whitewash."

This paper examines the affair from a lawyer's perspective. I question the captain's right and need to kill three men on the evidence he had, and believe that the executions were unnecessary, rash, or cynically to encourage the others. I conclude that he overreacted, and believe his court martial was structurally biased to legitimize and close an embarrassing affair. Beneath the legal arguments and public rhetoric the case reads like Fielding's Lord of the Flies.

The Somers affair is in some ways comparable to the British execution of Admiral Bing in 1756 for failing to relieve Minora. Voltaire said Admiral Bing was shot merely pour encourager les autres [translation: "in order to encourage the others"] . The Bing-Spencer similarity extends even to the gesture of allowing the accused to give the final command for his own death. Admiral Bing accepted, while Acting Midshipman Spencer declined.

II. The Men

Commander Mackenzie's 27 years of naval service before his command of Somers are recounted in Philip McFarland, Sea Dangers (see attached bibliography). Some events in his prior service seem significant in the context of the affair: he had served against pirates as a midshipman in the Mediterranean and as midshipman and lieutenant in the West Indies, witnessed murders and executions in Spain, and achieved success and recognition as an author of travelogues and naval history, but not of fiction: Henry Wadsworth Longfellow reviewed his first effort in that field and advised him not to publish it.

Acting Midshipman Philip Spencer, aged 17, was the ne'er-do-well son of Secretary of War John C. Spencer. He spent three years (1838-1840) as a freshman at Geneva College (now Hobart College) in Geneva, New York. He quit Geneva, attended Union College in Schenectady in the spring of 1841, and quit again. He was appointed an Acting Midshipman in November of 1841, and sailed to Brazil in June 1842 on board John Adams. Charged with drunkenness and dereliction of duty, he resigned his appointment and transferred to Potomac to return to the United States, arriving at Boston on July 31, 1842. His appointment was reinstated, presumably through his father's influence, and he was ordered to Somers on August 13, 1842.

Lieutenant Guert Gansevoort, aged 30, was the only commissioned line officer on board Somers, besides Commander Mackenzie. He had served in the Navy for 19 years before the Somers affair, and retired after the Civil War as a Rear Admiral.

The backgrounds of Boatswain's Mate Cromwell and Seaman Small are obscure. On board Somers it was said Cromwell was violent and sadistic and he had served in slave ships. The record of the court of inquiry and court martial contain no evidence of beyond this hearsay.

III. The Ship

Somers was built at the New York Navy Yard, one of five fast brigs of the same design. [The others were Bainbridge, Lawrence, Perry, and Truxtun.] Somers was launched on April 16, 1842, and commissioned on May 12, 1842.

Her specifications were as follows:    

 length b.p.  100 feet  maximum beam  25 feet
 depth of hold  11 feet  tonnage  259 tons
 armament  10 carronades  construction cost   $37,650

The brig's arrangement is shown in the attached sketch, which was part of the record of the court of inquiry and court martial. The small vessel was undoubtedly crowded on the voyage, with a total of 120 people on board.

IV. The Events

There are some discrepancies in the dates of the events on board. The dates marked with asterisks below are taken from the brig's log.

On the evening of Friday, November 25, Acting Midshipman Spencer tried to enlist 20-year-old Purser's Steward Josiah Wales into a plot to seize the brig, kill the officers, and go be pirates on the Spanish Main. Seaman Small joined the conversation long enough to confirm in Wales' mind that he was a party to Spencer's plans. On Saturday the 26th Wales reported the matter to Purser Heiskell, who reported it to Lieutenant Gansevoort, who reported it to Commander Mackenzie.

Lieutenant Gansevoort was ordered to watch Spencer closely but discreetly. During the day, the lieutenant saw Spencer examine a chart of the West Indies, get tattooed in the foretop, and sit in his corner of the steerage "as was his custom." He also was told that Spencer had asked about the error rate of the chronometer (information needed for accurate celestial navigation); had asked questions about the Isle of Pines, a notorious haunt of Caribbean pirates; and had drawn a picture of a ship flying a black flag.

On the 26th Commander Mackenzie confronted Spencer, saying "I learn, Mr. Spencer, that you aspire to the command of the Somers." Spencer denied it. When told that Wales had reported their conversation Spencer said it was "in joke."

Spencer was arrested and put in irons on the quarterdeck. A search of his locker revealed a list of names in Greek characters. He had listed four people as "certain": himself, Small, Wales, and one E. Andrews (although no one by that name was on board). He listed ten others as "doubtful" (of whom four were marked as likely to be induced to join the conspiracy), and eighteen more to be kept on board nolens volens (unwilling or willing). His list thus included four "certain" (including Wales, who informed), four possible, six unlikely: a total of 14 out of 120 persons on board.

While hands were aloft setting studdingsails on Sunday the 27th, the main topgallant mast broke - allegedly because Small, who should have known better, hauled too hard on a brace. Commander Mackenzie saw this as an attempt by Small and Cromwell to create a diversion to free Spencer. Cromwell and Small were arrested and ironed on the quarterdeck.

A sudden rush of hands onto the quarterdeck occurred that evening while a new topgallant mast was being hoisted into place. This too was seen as an attempt to free the prisoners, and Lieutenant Gansevoort aimed his Colt at Seaman Wilson until Midshipman Rodgers cried from forward "It is me, sir; I am sending the men aft!"

On Tuesday the 29th two men, landsman McKinley and apprentice Green, missed muster for the midwatch. Two others, apprentice McKee and sailmaker's mate Wilson, were also suspected of complicity in the mutiny. The four were arrested and put in irons on the quarterdeck -- now seven men were chained aft, six percent of the brig's company. Due to Somers' arrangement Commander Mackenzie felt it was impractical to confine the prisoners below, difficult to guard them on deck, and impossible to secure them anywhere on board from a concerted rescue attempt by co-conspirators. However, the four men who were arrested on the 29th were placed below on the berth deck later, in foul weather.

Before the arrests on the 29th, Commander Mackenzie asked his officers in writing for their advice on "the best course to be pursued" for the ship's safety. On that day and the next the officers interrogated various members of the brig's company. On November 30 [Although their written report was dated December 1, the brig's log shows it was submitted on November 30.] they recommended that Spencer, Cromwell, and Small be put to death. The council of officers reported as follows to Commander Mackenzie:

U.S. Brig Somers         
Dec. 1, 1842               

Sir: In answer to your letter of yesterday, requesting our counsel as to the best course to be pursued with the prisoners, Acting-Midshipman Philip Spencer, Boatswain's Mate Samuel Cromwell, and Seaman Elisha Small, we would state that the evidence which has come to our knowledge is of such a nature as, after as dispassionate and deliberate a consideration of the case as the exigencies of the time would admit, we have come to a cool, decided, and unanimous opinion that they have been guilty of a full and determined intention to commit a mutiny on board of this vessel of a most atrocious nature; and that the revelation of circumstances having made it necessary to confine others with them, the uncertainty as to what extent they are leagued with others still at large, the impossibility of guarding against the contingencies which "a day or an hour may bring forth," we are convinced that it would be impossible to carry them to the United States, and that the safety of the public property, the lives of ourselves, and of those committed to our charge, require that (giving them a sufficient time to prepare) they should be put to death in a manner best calculated as an example to make a beneficial impression upon the disaffected. This opinion we give, bearing in mind our duty to God, our country, and to the service.

We are, sir, very respectfully, your obedient servants.
   Guert Gansevoort, Lieutenant
   R. W. Leecock, Pas'd Ass. Surg'n
   H. M. Heiskell, Purser
   M. C. Perry, Act'g Master
   Henry Rodgers, Midshipman
   Egbert Thompson, Midshipman
   Chas. W. Hayes, Midshipman

At 2:15 on the afternoon of December 1 the three suspects were hanged. Their bodies were lowered at 3:30, and they were buried at sea that evening.

Somers touched at St.Thomas, Danish Virgin Islands, on December 5, and arrived at New York on December 15. Upon her arrival Commander Mackenzie sent his clerk, Oliver Hazard Perry, Jr., to Washington with a report on the affair. He also had eight more suspects arrested: apprentices Goldenham, Hamilton, Kneavels, Sullivan, Warner [Apprentice George W. Warner was the great-uncle of the author Frederic Van de Water - see bibliography.] and Van Velzer, and "old seamen" Gallia and Wiltham. [At age 23, "old seaman" Wiltham was the oldest of the lot. The youngest were 17 seventeen years old.] Those eight, plus the four who were arrested on November 29, were transferred to U.S.S. North Carolina at the Navy Yard for safeguarding.

V. The Court of Inquiry

Secretary of the Navy Upshur ordered a court of inquiry, which convened on board North Carolina on December 28, 1842, two weeks after Somers arrived at New York. The court was ordered both to investigate the affair and "to report to the Department its opinion as to the right and proprietyof those proceedings." It was composed of Captain Charles Stewart (Commander, Home Squadron), Commodore A. J. Dallas (Commander, Pensacola Navy Yard), and Commodore Jacob Jones (Commander of all vessels at New York). The Judge Advocate was Hon. Ogden Hoffman, U.S. Attorney for the Southern District of New York.

On January 20, 1843, the court unanimously exonerated Commander Mackenzie from blame in the affair. The court of inquiry had no legal effect, although it crystallized the testimony and arguments that were presented at the later court martial.

VI. The Court Martial

To avoid trial in civil court * Commander Mackenzie requested and was granted a court martial. On January 23 he was formally charged with murder, oppression, illegal punishment, conduct unbecoming an officer and gentleman (for taunting Spencer before his execution), and cruelty and oppression of the brig's company.

The court martial was composed initially of thirteen members: Captains John Downes, George C. Read, William C. Bolton, Daniel Turner, John D. Sloat, Joseph Smith, Isaac McKeever, John Gwinn, Thomas W. Wyman, George W. Storer, and Benjamin Page; and Commanders Henry W. Ogden and Irvine Shubrick. William H. Norris, a relatively young and inexperienced attorney from Baltimore, Maryland, was appointed as Judge Advocate. Captain Smith was excused for ill health.

Commander Mackenzie pleaded "not guilty" to all charges. He admitted that Spencer, Cromwell, and Small were executed by his order but asserted the executions were "demanded by duty and justified by necessity."

The court martial sat from January 28 to March 31, 1843. It concluded that the first three charges were not proven, and that the Judge Advocate had waived or abandoned the fourth and fifth charges. The court's votes were nine to acquit and three to convict on the first charge, murder; eight to acquit and four to convict on the second charge, oppression; and all twelve to acquit on the third charge, illegal punishment. The court could have acquitted him "with honor," but it did not.

The surviving text of the brig's log, as transcribed by Acting Master Matthew Calbraith Perry during the court of inquiry, reads as follows:

Saturday Nov'r 26th 1842
         From 4 to 6 P M moderate breezes and clear. Inspected the crew at Quarters. It having been discovered that Mid'n Spencer had been tampering with some of the crew of this vessel for the purpose of creating a mutiny on board, he was questioned in the presence of the officer, in regard thereto and confessing that he had done so in joke, he was ordered into double irons by Commander Mackenzie. At 4.36 set sky sails and Starboard Royal Studding sails.

Sunday Nov. 27th 1842
         From 8 to mid mod. breezes and pleasant, set aloft top gallant and royal yaw, set the sails, also the main top gallant steering sail and fore royal, confined Sam'l Cromwell, Boatswain's mate, and Elisha Small seaman, in double irons by order of the Commander.

Tuesday, Nov 29th 1842
        From 8 to Meridian moderate breezes and pleasant, at 9 inspected the crew at quarters, put Charles A. Wilson Sail Makers mate, Dan'l McKenly Landsman, Benj'n Green, O.S. (app) and Alex'r McKie (app) in double irons, on suspicion of being concerned in the mutinous attempts of acting Midshipman P. Spencer.

Wednesday Nov 30th 1842
        From 8 to Meridian brisk trades and pleasant, at 9 inspected the cre at quarters, at 11-30 Armed the petty officers with a pistol and cutlass each. Commander Mackenzie having called on all the Ward Room and steerage officers, excepting the acting Midshipmen the day before to inquire into the guilt of acting Mid'n P. Spencer, Bo. Mate Sam'l Cromwell, and Seaman Elisha Small of the crime of being concerned in a mutiny and as to the best mode of disposing of them if guilty under the existing circumstances. The officers gave it as their opinion that they were decidedly guilty and that the safety of the vessel required that they should be immediately put to death, Commander Mackenzie entirely concurring in their opinion ordered preparations to be made for hanging them at the yard arm. Expended 40 fathoms of 2 ¾ in rope for whips 40 fathoms of signal hawlyard stuff for down-hands and three 7 in tail blocks, the crew employed in stretching the rope and fitting the tail blocks, at 12 handed up the main sail, save two whips on the starboard main yard arm, and one on the larboard.

Thursday December 1st 1842
        Commences with mod't breezes and pleasant at 1-45 called all hands to witness punishment, Mustered the after guard at the outer starboard whip, and the main top men at the starboard inner one and all the fore castle foretopmen and idlers at the larboard one with orders to clap on with both hands, the officers and petty officers were stationed about the vessel with both hands to see the orders executed, bent the starboard outer whip on to Acting Midshipmen Philip Spencer, the inner one on to Seaman Elisha Small, and the larboard one on to Boatswain's Mate Sam'l Cromwell, at 2-15, fired a weather gun, and run the prisoners up to the yard arm and hoisted the ensign and pendant. The crew were now called aft and addressed by the commander as to the crimes and punishment of the prisoners, after which all hands were called to cheer ship, and three hearty cheers given to the American flag. At 2-30 piped down and piped to dinner, at 3-30 called the watch, lowered the corpses of the deceased into the gangways where they were received by their respective messmates, to be lain out for burial. From 4 to 8 mod't trades and pleasant. At 6-30 called all hands to bury the dead, lighted all battle lantherns and spare lantherns in the ship and after the Commanders reading the funeral service committed the bodies of Act. Mid'n P. Spencer, Boatswain's Mate Sam'l Cromwell and Seaman Elisha Small to the deep.

I certify that the above is true copy of the log of the U.S. brig Somers relating to the mutinous attempt of Act'g Mid'n Philip Spencer, Boatswain's Mate Sam'l Cromwell amd Seaman Elisha Small.

Commander Mackenzie wrote three official reports to Secretary Upshur. Although self-serving, the reports would still be admissible as official records. His first report, dated December 5, was sent from St.Thomas, Danish Virgin Islands, in case the brig did not return to the United States. His second report, dated December 14, was sent from New York upon arrival. Neitherf of those reports was introduced into evidence.

His third report, dated December 19, totaled some 13,000 words [His counsel called this report "a diabolical document" which should "winnow Mackenzie's brain of the notion that he is a lawyer as well as a sailor and historian."] It was received into evidence on March 17. The full text of the report is set forth in the Proceedings of the court martial (see bibliography), at pages 194 - 211. Stripped of hyperbole, the factual matters in the report are as summarized above.

The "Greek Paper" found in Spencer's locker was introduced into evidence on March 2, 1843. It was in English words written in Greek letters. Transliterated into English letters, it reads in its entirety:

 Certain Doubtful To be kept nolens volens
 P. Spencer Wilson+ Sibley
E. Andrews M'Kee+ Stremel
D. McKinley Warner Scott
Wales Green Van Brunt
  Gedney Smith
  Van Velsor Whitmore
  Sullivan Gagely        [Crawly]
  Godfrey Blackwell
  Gallia+ Rodman
  Howard+  Clarke
     Kneules     [Knevels]
     Keiley       [Riley]
     Selsor
     Corney
     Dickenson
     The Doctor
     Garrebrants
     Waltham

Those doubtful, marked + will probably be induced to join before the project is carried into execution -- The remainder of the doubtfull will probably join when the thing is done; if not, they must be forced -- If any not marked down, wish to join after it is done, we will pick out the best and dispose of the rest ---

_______________________________

 Small
 Wheel  M'Kee
   
 Arm chest  M'Kinley
   
 Cabin  Spencer
   Small
   Wilson
   
 Ward Room  Spencer
   
 Steerage  Spencer
   Small
   Wilson

Cromwell was not named in the paper. "E. Andrews" was listed as "certain," but no one by that name was on board the brig. Commander Mackenzie concluded that Andrews was Cromwell's true name or an alias. The reverse of the paper was taken to show the positions to be manned by mutineers and, by extension, their roles in the projected mutiny. Only five persons are so named, and Wales and Cromwell (or Andrews) are not among them.

No official transcript was made of testimony at the court of inquiry or the court martial. The testimony at each proceeding was reported by the New York Herald. Commander Mackenzie submitted written statements to the court, but he did not testify. To give testimony would have exposed him to cross-examination.

The reliability and objectivity of all the witnesses are highly suspect. Despite orders from Secretary Upshur to Commodore Jones to prevent improper influences upon the witnesses, the brig's company were held on board Somers under the acting command of Lt Gansevoort. [Except for some who deserted, and the twelve who were in irons. Those twelve were transferred to North Carolina, and later kept in irons in a cellar at the Navy yard. None was charged, and eventually all were released.] The witnesses were interviewed by counsel for the defense. They were not available to the Judge Advocate, counsel for the prosecution.

In the court martial Commander Mackenzie confronted and examined the witnesses (a Constitutional privilege he had denied the alleged mutineers), but he did not testify orally. The testimony of the witnesses seems scripted, rehearsed, pat, and too consistent. This cannot be surprising, because of the intense public and political interest in the affair, and of the fact that four weeks had passed between the executions and start of the court of inquiry, time enough for a group consensus to form naturally or artificially among the witnesses. Further, Commander Mackenzie retained command of the brig and the witnesses during the proceedings.

Various memoirs and accounts of the affair were published during and after the court of inquiry and court martial. Those accounts would be inadmissible as hearsay.

VII. The Law

When the Somers affair occurred, the mutinies in 1797 among the Royal Navy fleets at Spithead and the Nore [See, e.g. James Dugan, The Great Mutiny] were matters of recent memory. In 1800 the U.S. Congress enacted an "Act for the better government of the Navy." That statute enumerated certain offenses that could or must be punished by death upon conviction by a court martial. Article 13 of the 1800 statute provided:

If any person in the Navy shall make or attempt to make any mutinous assembly he shall, on conviction thereof by a court martial, suffer death; and if any person aforesaid shall utter any seditious and mutinous words, or shall conceive or connive in any mutinous or seditious practices, or shall treat with contempt his superior, being in the execution of his office, or, being a witness to any mutiny or sedition, shall not do his utmost to suppress it, he shall be punished at the discretion of a court martial.

Article 24 of the statute of 1789, the predecessor law, provided:

Any officer, seaman, marine, or other person, who shall disobey the orders of his superior, or begin, excite, cause, or join in any mutiny or sedition in the brig to which he belongs, or in any brig or vessel of the United States, on any pretense whatsoever, shall suffer death, or such other punishment as a court martial shall direct; and, farther, any person, in any brig or vessel belonging to the service aforesaid, who shall utter any words of sedition and mutiny, or endeavor to make any mutinous assembly, on any pretence whatsoever, shall suffer such punishment as a court martial shall inflict.

The 1800 law commanded death for mutinous assembly, while the 1789 law allowed a lesser punishment for mutinous assembly but also allowed death for disobedience. However, the final clause of the 1800 statute repealed the 1789 statute, making it inapplicable to the Somers affair.

Both the 1800 law and its predecessor required conviction by a court martial before inflicting the death penalty. No court martial was or could have been convened aboard Somers, for lack of sufficient officers to constitute a court. The investigation conducted by her officers was not even close to a court martial, and did not meet the most basic Constitutional standards. Witnesses were not sworn; the accused were not informed of the investigation, and were not allowed a hearing, representation, or an opportunity to confront and cross-examine the witnesses against them.

Without a court martial conviction the commander was not entitled to impose death as punishment. Thus, even if testimony later proved that Spencer and Small had indeed conspired to mutiny, incited mutiny, met in mutinous assembly, and thereby violated the law -- even if a court martial might have convicted them -- without a conviction the executions were illegal as punishment.

English and American law has fluctuated widely over the past several centuries regarding the power of courts martial to impose the death penalty for ordinary crimes and for such uniquely military matters as mutiny. Blackstone's Commentaries recite:

If any one that hath commission of martial authority doth, in time of peace, hang, or otherwise execute any man by color of martial law, this is murder; for it is against [the] Magna Carta.

In a recent case, Loving v. United States [517 U.S. 748, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996)] the Supreme Court recounted the history of those fluctuations as follows:

In the early days of the Republic the powers of courts-martial were fixed in the Articles of War. Congress enacted the first Articles in 1789 by adopting in full the Articles promulgated in 1775 (and revised in 1776) by the Continental Congress. ... The Articles adopted by the First Congress placed significant restrictions on court-martial jurisdiction over capital offenses. Although the death penalty was authorized for 14 military offenses [including mutiny] ... the Articles followed the British example of ensuring the supremacy of civil court jurisdiction over ordinary capital crimes that were punishable by the law of the land and were not special military offenses. ... That provision was deemed protection enough for soldiers, and in 1806 Congress debated and rejected as proposal to remove the death penalty from court-martial jurisdiction.

Over the next two centuries, Congress expanded court-martial jurisdiction. In 1863, concerned that civil courts could not function in all places during hostilities, Congress granted courts-martial jurisdiction of common-law capital crimes and the authority to impose the death penalty in wartime. ... In 1916, Congress, Congress granted to military courts a general jurisdiction over common-law felonies committed by service members, except for murder and rape committed within the continental United States during peacetime. ... Persons accused of the latter two crimes were to be turned over to the civilian authorities....

Even before the birth of this country, separation of powers was known to be a defense against tyranny. ... Though faithful to the precept that freedom is imperiled if the whole of legislative, executive, and judicial power is in the same hands ... the Framers understood that a "hermetic sealing of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively." ...

Although separation of powers "d[oes] not mean that these [three] department ought to have no partial agency in, or no control over the acts of each other ... it remains a basic principle of out constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another....

In England after the Norman Conquest, military justice was a matter of royal prerogative. The rudiments of law in English military justice can first be seen in the written orders issued by the King for various expeditions. ... For example, in 1190 Richard I issued an ordinance outlining six offenses to which the crusaders would be subject, including two punishable by death: "Whosoever shall slay a man on ship-board, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land he shall be bound to the dead man and buried in the earth." ... Articles of War, sometimes issued by military commanders acting under royal commission in the ensuing centuries .. were not fixed codes, at least through the 17th century; rather, "each was, each expedition, had its own edict," which lost force after the cessation of hostilities and the disbanding of the army that had been formed.

Thus, royal ordinances governed the conduct of war, but the common law did not countenance the enforcement of military law in times of peace "when the king's courts [were] open for all persons to receive justice according to the laws of the land."

"The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so 'if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or action of battery.'"

The triumph of civil jurisdiction was not absolute, however. The political disorders of the 17th century ushered in periods of harsh military justice, with soldiers and at time civilian rebels punished, even put to death, under the summary decrees of courts-martial. Military justice was brought under the rule of parliamentary law in 1689, when William and Mary accepted the Bill of Rights requiring Parliament's consent to the raising and keeping of armies. In the Mutiny Act of 1689, Parliament declared the general principle that "noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or in any other manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme," but decreed that "Soldiers who shall Mutiny or stirr up Sedition or shall desert Their Majestyes Service be brought to a more Exemplary and speedy Punishment than the usuall Forms of Law will allow," and "shall suffer Daeth or such other Punishment as by a Court-Martiall shall be Inflicted." ...

The Mutiny Act, as its name suggests, came on the heels of the mutiny of Scottish troops loyal to James II. The mutiny occurred at a watershed time. Menaced by great continental powers, England had come to a grudging recognition that a standing army, long decried as an instrument of despotism, had to be maintained on its soil. The mutiny cast in high relief the dangers to the polity of a standing army turned bad.

"There must then be regular soldiers; and, if there were to be regular soldiers, it must be indispensable, both to their efficient, and to the security of every other class, that they should be kept under a strict discipline. An ill disciplined army ... [is] formidable only to the country which it is paid to defend. A strong line of demarcation must therefore be drawn between the soldiers and the rest of the community. For the sake of public freedom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals."

"The Mutiny Act, then, was no measure of leniency for soldiers. With its passage, "the Army of William III was governed under a severer Code thasn by his predecessors under the Prerogative authority of the Crown. The Mutiny Act, without displacing the Articles of War and those Military Tribunals under which the Army had hitherto been governed, gave statutory sanction to the infliction of Capital Punishments for offenses rather Poilitical than Military, and which had rarely been so punished under Prerogative authority." ...

Popular suspicion of the standing army persisted, and Parliament authorized the Mutiny Acts only for periods of six months and then a year. But renewed they were time and time again, and Parliament would alter the power of courts-martial to impose the death penalty for peacetime offenses throughout the next century. It withdrew the power altogether in 1713 .. only to regret the absence of the penalty during the rebellion of 1715. ... The third of the Mutiny Acts of 1715 subjected the soldier to capital punishment for a wide array of peacetime offenses related to political order and troop discipline. And, for a short time in the 18th century, Parliament allowed the Crown to invest courts-martial with a general criminal jurisdiction over soldiers at home, placing no substantive limit on the penalties that could be imposed; until 1718, that jurisdiction was superior to civil courts. ... The propriety of that general jurisdiction within the kingdom was questioned, and the jurisdiction was withdrawn in 1749. Nevertheless, even as it continued to adjust the scope of military jurisdiction at home, Parliament entrusted broad powers to the Crown to define and punish military crimes abroad. In 1713, it gave statutory sanction to the Crown's longstanding practice of issuing the Articles of War without limiting the kind of punishments that might be imposed; and, in the same Act, it delegated the power to "erect and constitute Courts Martial with Power to try hear and determine and Crime or Offence by such Articles of War and inflict Penalties by Sentence or Judgement in any of Her Majesties Dominions beyond the Seas or elsewhere beyond the Seas (except in the Kingdom of Ireland) ... as might have been done by Her Majesties Authority beyond the Seas in Time of War.

...[T]he Framers well knew this history, and had encountered firsthand the abuses of military law in the colonies. ... As many were themselves veterans of the Revolutionary War, however, they also knew the imperatives of military discipline. What they distrusted were not courts-martial per se, but military justice dispensed by a commander unchecked by the civil power in proceedings so summary as to be lawless. The latter was the evil that caused Blackstone to declare that "martial law" - by which he, not observing the modern distinction between military and martial law, meant decrees of courts-martial disciplining soldiers in wartime - "is built upon no settled principles, but is entirely arbitrary in its decisions, [and] is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as law."

Id., ___ U.S. at _________ (emphasis added, citations omitted).

In his defense, Commander Mackenzie acknowledged that he lacked the resources to convene a court martial and the authority to inflict death as punishment without one. He defended his actions on the basis that the executions were necessary to defend the brig against further mutiny. Under the laws of the day a commanding officer had the right, power, and duty to use deadly force to suppress an actual mutiny. John O'Brien, in his Treatise on American Military Laws and the Practice of Courts Martial, records two letters from George Washington:

To the President of Congress :

New Windsor, January 23d, 1781

Sir,-- I have been successively honoured with your Excellency's despatches of the 12th, 13th and 16th, and shall duly attend to their contents.
Your Excellency, probably, by this time, has heard of the revolt of the Jersey troops, in imitation of the Pennsylvania line. Advice, that this had been the case with a part of them, with an expectation of its becoming general, reached us the night before last; their complaints and demands being of the same complexion as those of the Pennsylvanians. I immediately ordered as large a detachment as could possibly be spared to be marched from West Point, and put in command of Major General Howe, with orders to bring the mutineers to unconditional submission, and their principal leaders to instant and condign punishment. I have also taken measures to induce the Jersey militia to act in conjunction with him.
It is difficult to say what part of the troops, sent to quell the revolt, will act, but I thought it indispensable to bring the matter to an issue and risk all extremities: unless the dangerous spirit can be suppressed with force, there is an end to all subordination in the army, and, indeed, to the army itself. The infection will, no doubt, shortly pervade the whole mass.
On receiving the news of this disagreeable event, I immediately despatched a letter to the committee of Congress at Trenton, recommending that no conciliatory measures might be attempted. I am entirely of the opinion with your Excellency, that more certain and permanent funds must be found for the support of the war, than have hitherto existed. Without them our opposition must soon cease. The events that have taken place are an alarming comment upon the insufficiency of past systems.

 I have the honour to be, with perfect respect,
   Your Excellency's most obedient and humble servant,
     /s/ GEORGE WASHINGTON

___________

To the Hon. John Laurens, Esq. , Boston:

New Windsor, January 30th, 1781

DEAR SIR, -- Before this letter reaches Boston, you will no doubt have heard of the revolt of Par[t] of the Jersey line. I did not hesitate a moment, upon the report of it, in determining to bring matters to a speedy issue by adopting the most vigorous exertions; accordingly a detachment marched from the posts below, and on the morning of the 27th surrounded their quarters, and brought them, without opposition, to unconditional submission. Two of the principal leaders were immediately executed on the spot, and the remainder, exhibiting genuine signs of contrition, were forgiven.
Much praise is due to the detachment which march[ed] to quell the insurgents, &c.
     /s/ GEORGE WASHINGTON

In his final defense Commander Mackenzie referred to this mutiny, and recorded part of Washington's instructions to General Howe: "and as soon as they should surrender, to seize a few of the most active leaders, and to execute them on the spot." [Proceedings of the court martial, 238]

O'Brien also recounts an incident during the Second Seminole War, 1836, where an Army colonel ordered the arrest of a lieutenant of volunteers in Florida. The lieutenant refused to submit and threatened to shoot anyone who tried to execute the order. The colonel personally shot and killed him. The court of inquiry concluded :

The court is of the unanimous opinion, that Lieutenant William Ward was killed by Colonel R. C. Parish, the said Colonel Parish being in the legal execution of his office, and that he is fully justified, from the circumstances of the case, in doing so.

It would be impossible to conceive a case which would more entirely justify an officer in command, in taking the law into his own hands. His legal and necessary authority as commanding officer was defied and resisted. He took the usual and legal military means to repress resistance, by ordering the arrest and confinement of Lieutenant Ward, his seizure and disarming, repeatedly; no one would obey his order. He was obliged, therefore, to execute the order himself, and in doing so, his conduct is fully justified in the opinion of the court.
     /S/ C. M. THURSTON, President

It is not clear whether Lieutenant Ward's actions were in direct connection with combat operations. Other commentators, including Dudley and Winthrop, agree with O'Brien that a commander has the right to use deadly force to suppress mutiny.

However, viewed from 150 years later, and compared to an actual mutiny with overt acts of armed disobedience or violence, such as the "Great Mutiny" at Spithead, the revolt of the Pennsylvania troops, or the armed threats of Lieutenant Ward, the words and writings of Acting Midshipman Spencer seem almost trivial - something between "griping" and adolescent fantasy. The words and acts were seditious, but no overt act of mutiny occurred before the arrests and the events that occurred afterwards - the broken mast, the rush aft - were ambiguous at best.

VIII. Conclusion

To the extent that Spencer, Cromwell, and Small were executed as punishment for mutiny, as it was recorded in the brig's log, their executions were illegal because they were not supported by a court martial. If a mutiny was actually imminent or reasonably apprehended after the three were confined, and if their executions were reasonably necessary to suppress or prevent it, Commander Mackenzie was within his legal rights to execute them. Although the rationale of court martial was not expressed - its findings were merely that the charges and specifications were not proven - the court implicitly accepted the commander's defense that the executions were reasonably necessary to protect the ship, for only then does it makes sense that the court members agreed unanimously that the punishments were not illegal, while they split on whether he was guilty of murder and oppression.
___________

[*] After being tried by a court martial, he would be protected from a criminal trial in a civil court by the prohibition against "double jeopardy" in the Fifth Amendment to the Constitution. While the court of inquiry was pending Cromwell's widow and Spencer's father tried to have thim and Lieutenant Gansevoort indicted for murder in the U.S. District Court. Judge Betts of the District Court ruled the Navy had prior jurisdiction and dismissed the indictments, but he left open the possibility of a civil trial after the court of inquiry. The dismissal of those indictment is consistent with other cases, notably Feres v. United States, 340 U.S. 135 (1950), where federal courts have declined to intercede in uniquely military matters. in this context, "civil" means "non-military."


USS Somers Affair: A Bibliography

Anthony, Irving. "Mutiny on the USS Somers," 17, no.1 Sea Classics (Jan. 1984): 18-22, 78-79.

Blackstone, William. Commentaries on the Laws of England. Dublin, Ireland: J. Exshaw, 1769-70.

Cooper, James Fenimore. The Cruise of the Somers: Illustrative of the Despotism of the Quarter Deck and the Unmanly Conduct of Commander Mackenzie. New York: J. Winchester, 1844.

Dudley, Edgar S. Military Law and the Procedure of Courts-Martial. 2d ed. New York: J. Wiley & Sons, 1908.

Dugan, James. The Great Mutiny. New York: Putnam, 1965.

Feuer, A. B. "A Question of Mutiny." Naval History 8, no. 2 (Mar.-Apr. 1994): 22-27.

Hayford, Harrison ed. The Somers Mutiny Affair: A Book of Primary Source Materials. Englewood Cliffs, NJ: Prentice Hall, 1959.

Hunt, Livingston. "The Attempted Mutiny on the U.S. Brig Somers." US Naval Institute Proceedings 51, no. 11 (Nov. 1925): 2062 - 2100.

Inquiry into the Somers Mutiny: With a Full Account of the Execution of Spencer, Cromwell and Small. New York: Greeley & McElrath, 1843.

McFarland, Philip James. Sea Dangers: The Affair of the Somers. New York: Schocken Books, 1985.

Morison, Samuel Eliot. "The Somers Mutiny, 1842-1843," In Sailor Historian: The Best of Samuel Eliot Morison, edited by Emily Morison Beck. Boston: Houghton Mifflin, 1977. [See ch.2, pt.7, pp.181-202].

Morris, H. H. "The USS Somers Affair." American History Illustrated 9, no. 5 (Aug. 1974): 24-30.

Proceedings of the Court of Inquiry Appointed to Inquire into the Intended Mutiny on Board the United States Brig of War Somers, on the High Seas; Held on Board the United States Ship North Carolina Lying at the Navy Yard, new York; With a Full Account of the Execution of Spencer, Cromwell and Small, on Board Said Vessel, Reported for the New York Tribune. New York: Greeley & McElrath, 1843.

Proceedings of the Naval Court Martial in the Case of Alexander Slidell Mackenzie, a Commander in the Navy of the United States, &c., Including the Charges and Specifications of Charges Preferred Against Him by the Secretary of the Navy. To which is Annexed an Elaborate Review by James Fenimore Cooper. New York: Henry G. Langley, 1844.

"Some Notable Trials, VII: The Case of Commander Mackenzie." New York Times (26 Dec. 1895): 3.

Sumner, Charles. "The Mutiny of the Somers." North American Review 67 (Jul. 1843): 195 - 241.

Van de Water, Frederic F. The Captain Called it Mutiny. New York: Ives Washburn, Inc., 1954.

___. "Panic Rides the High Seas." American Heritage 12, no.4 (Jun. 1961): 20-23, 97-99.

Winthrop, William. Military Law and Precedents. 2d ed. Washington: Government Printing Office, 1920.


30 April 2001