MAY IT PLEASE THE COURT:
The first three charges under trial and on which you are to pass judgment, have for their common subject the execution of Midshipman PHILIP SPENCER, boatswain's mate SAMUEL CROMWELL, and seaman ELISHA SMALL, on board the United States brig Somers, on the 1st day of December, 1842. It will be found that these three charges are but variations of one and the same identical charge; which is, that such execution was directed and carried into effect without justifiable cause. To the fourth charge, alleging that taunting and unofficer-like language was used to Mr. Spencer by the accused at the time of the execution; and to the fifth charge, alleging that the conduct of the accused towards his crew was cruel and oppressive, nothing is required to be said. The defence to those charges is respectfully, yet confidently, submitted on the plain, full, and conclusive evidence before the Court, without a word of comment.
In judging of the necessity of the execution, it is of vital importance to ascertain preliminarily, whether a mutinous conspiracy in fact existed on board the Somers, and whether the persons executed were parties to that conspiracy.
That such conspiracy existed; that it had for its object the conversion of the brig into a piratical cruiser; that such object was to be effected by the murder of the officers and faithful of the crew; and that Mr. Spencer and Small were not only parties but ringleaders, in the conspiracy--appears from their own repeated and solemn
declarations, and from unequivocal documentary evidence. Mr. Wales testifies that on the 25th of November, Mr. Spencer took him aside to a place of secrecy, and communicated to him the whole mutinous scheme. He told him that he was leagued with about twenty of the crew to get possession of the brig, murder the commander and officers, and commence piracy. Mr. Spencer detailed to Mr. Wales the plan of the operations, which was systematic, and evinced much deliberation. That this communication was a frolic of boyish fancy, as has been sometimes suggested, is clearly disproved by Mr. Wales, and by the intrinsic circumstances of the case. The appearance and manner of Mr. Spencer were earnest and grave; before he would make his communication, he bound Mr. Wales by an oath of secrecy; and previous to parting, told him that if he betrayed the secret, he should be murdered. Small was present at a part of this interview, understood the nature of the communication, and expressed his gratification that Mr. Wales had consented to be one of them. Mr. Spencer told Mr. Wales that the plot was detailed in a secret paper in his possession. This paper was found next day in Mr. Spencer's razor-case and is in his hand-writing, in Greek characters.* It is in two pieces, forming, however, parts of one whole; and has been, therefore, generally and correctly called the Greek paper, in the singular number, and is so called in this defence. One of its pieces contains the names of the conspirators and of others expected to join them, marking them as certain, doubtful, or to be retained on board, willing or unwilling, together with a few explanatory remarks; the other piece, torn from a book on geometry, and having its back covered with geometrical figures, assigns to some of the chief conspirators their stations when the outbreak should occur. This Greek document is the official record of the mutinous conspiracy prepared by the chief conspirator; and, like other records, contains on its face, as against the parties and privies to it, the stamp of incontestable verity.
No valid objection results from the circumstance that the Greek paper contains only three conspirators marked certain, exclusive of Mr. Wales, the other names on the paper being entered either in the doubtful list, or in the list of persons to be detained on board at all
* See Appendix.
events. This paper had doubtless been prepared at the inception of the conspiracy, when in truth there were only three confirmed associates. It appears that some time before the disclosure to Mr. Wales, Mr. Spencer had, on several occasions, exhibited the Greek paper to one of his associates in guilt; and that it was even then a paper soiled with use. The paper having been thus prepared when the number of confirmed conspirators was in fact only three, it was not afterwards deemed necessary, as proselytes were daily multiplied, to transpose their names from either of the other lists to that marked certain, or even to add their names to the paper at all. The list marked certain, for instance, does not contain the name of Small; nor is his name to be found in any part of the paper, except where a prominent post at the meditated massacre is assigned him. So, there was a like omission to add to the list, the names of the other new accessaries, though the band of determined conspirators had already increased from the original number of three to the formidable number of twenty. It is possible that the name of Mr. Wales might have been inserted in the paper after Mr. Spencer's conversation with him, as, from his being an officer, his accession would be thought of peculiar importance; but more probably his name was placed there when the paper was first written. The existence of a misunderstanding of some duration between the commander and Mr. Wales was notorious; and it is not strange that the conspirators, judging of his feelings and principles by their own, should have placed his name, even without consulting him, in the front rank of the conspiracy.
I pass over, at least for the present, many other parts of the evidence, tending to show the existence of the conspiracy, and the guilt of Mr. Spencer and Small, and proceed at once to the final scene just before the execution. There Mr. Spencer and Small, with their dying lips, voluntarily confessed their guilt in the presence of the officers and crew, and acknowledged that their punishment was just; Mr. Spencer adding that he had attempted a mutiny on board the two national vessels in which he had last sailed, and that his piratical propensity was a sort of mania. Surely no innocent man ever confessed himself guilty of a felony or other heinous crime, unless the confession was
extorted from him by the rack or some other instrument of torture. To condemn a man out of his own mouth, is a rule of evidence which the Judge of all the earth has condescended to tell us he will himself adopt in that great day when judgment will not be based on any fallible proof.
The guilt of Cromwell is not less manifest. The badness of his general character and conduct; the sudden change of his demeanor towards the apprentices, ceasing to treat them with harshness as he had been wont, and affecting towards them popular manners, as he found their adhesion to the conspiracy needed; his repeated and profane declarations of deep and desperate hostility against the commander and officers; his threat to the carpenter's mate a little before the discovery of the plot, when thrown off his guard by sudden passion, that his time was short; his intimacy with Mr. Spencer, receiving gifts from him in money and other articles, and spending with him hour after hour almost daily in deep and secret consultation, an intimacy made more suspicious by the difference in the rank of the parties; his being asked by Mr. Spencer in private conversation, whether he could disguise the brig so that she would not be known, and his saying that he could easily do it; his advising Mr. Spencer, in another private conversation, to have the booms of the Somers cut away and her launch thrown overboard, with a view to render her more fit for piratical service, in singular coincidence with the subsequent declaration of Mr. Spencer to Mr. Wales, that he meant to have those things done; his being overheard to say to Small that they would soon be able to see the Isle of Pines (a noted rendezvous for pirates), also in strange coincidence with another statement by Mr. Spencer to Mr. Wales, that he intended to carry the brig thither; his withdrawing his money, just before the disclosure of the conspiracy, from the petty officer in whose hands he had placed it for safe custody, with no possible motive but his wish to keep it out of harm's way when the work of destruction should ensue; his absence of mind for days before the arrest of Mr. Spencer, seeming to be brooding over desperate thoughts; his secret and repeated conversations with Small just after Mr. Spencer's arrest and before his own, betraying by his looks
and manner deep emotion and revengeful feeling; his wilful disobedience of a standing order of the ship on the morning preceding his own arrest, and which order having been repeated to him by the first lieutenant on discovering the default, he again stubbornly omitted to obey; Small's declaration the day before his execution, that if any one was leagued with Mr. Spencer, it was Cromwell; the contemporaneous, united and solemn opinion of all the officers that he was guilty, founded, at least in part, on their ocular view of many little incidents and appearances which, though collectively carrying home to their own minds a just and sure conviction, cannot be adequately communicated to others in all their nice, and sometimes faint, though forceful import; are all circumstances in evidence before the Court, and which leave no reasonable doubt of Cromwell's guilt.
But if further proof is needed, it is found in the controlling fact that Cromwell was the very person to whom Mr. Spencer had been seen privately exhibiting and explaining the Greek paper, some days before the revelation of the plot to Mr. Wales. From the close intimacy that subsisted between Mr. Spencer and Cromwell, it might indeed be inferred, even without external proof, that the latter could not have been a stranger to that paper. Its secret was designed to be divulged within certain limits; for a single arm could not have achieved the conquest of a national ship. A confederacy was necessary; and a band of conspirators could not have been formed without disclosing to them the object of the conspiracy. If to Mr. Wales, with whom he was not on terms of special intimacy, Mr. Spencer divulged the existence and contents of the Greek paper, it would have been strange had he withheld it from Cromwell, the companion of his secret hours, the sharer of his bosom thoughts. But there is no need to resort to inference. Three witnesses have sworn before this Court to the exhibition of the paper by Mr. Spencer to Cromwell, on three different occasions; and that Cromwell, on having the paper explained to him, expressed his concurrence and satisfaction. These three witnesses could not have been mistaken as to the identity of the paper, marked as it was by the peculiar form of the Greek characters. They say that the letters were not common English
letters; and one of them states that they looked like crosses, and that the paper had on its back geometrical figures. The testimony of these three witnesses amounts to demonstration that Cromwell was not only a conspirator, but a ringleader in the conspiracy. His knowledge and approval of the Greek paper utterly preclude the possibility of his innocence. By knowing and approving the paper, he in effect subscribed his name thereto; he virtually affixed his own proper signature to the treasonable and murderous league. We need not pause to inquire whether he saw or had read to him both pieces of the paper; for each part, and every sentence of each part, betrayed the existence of a conspiracy, having for its object murder and piracy.
That the name of Cromwell does not appear on the Greek paper, subtracts nothing from the proof of his guilt. He was too adroit and wary to have his own name registered without disguise on the guilty record. He wanted the benefit of the omission of the name of Cromwell, in case the paper should be discovered. Doubtless the name of Andrews, nowhere to be found in the ship's papers, but standing in the Greek document next to that of Mr. Spencer himself, was intended to designate, not a fictitious person, but his own real and efficient lieutenant in guilt. If Cromwell had been by turns a pirate and a slaver, it was probably not the first time that he had found it convenient to have two names in use. The averment of Mr. Spencer that the name of Andrews on the Greek paper was intended for Small, was manifestly a mere pretence. If it had been designed for Small, the insertion of Small's own proper name afterwards on the paper would have been a needless dropping the disguise so warily sought; and the suggestion that Andrews might have been his true name, and Small only an assumed one, is repelled by the unimpeached witness, who has sworn that he knew him from his infancy, and his father and grandfather before him, and that he never went by the name of Andrews, but always by that of Small. That no particular post in the meditated massacre was assigned in the Greek paper to the person designated as Andrews, while Mr. Spencer, Small, McKee, McKinley and Wilson, had special stations assigned them by name, strengthens the conviction that Cromwell, and no less
a character, was the real person thus designated. Cromwell was the eldest, the strongest, and the most cunning of the conspirators; and their policy required that he should not be circumscribed, when the outbreak should occur, by any particular limits of place or of service. He was to be not only officer of the deck, where the main struggle was expected; but was to act throughout as the master-spirit of tumult and of death, and, clothed with a sort of evil ubiquity, was to interpose his malign counsel, and giant strength, wherever they should most be needed. His persisting in the declaration of his innocence at the time of the execution, only proves that he was a more hardened offender than either Mr. Spencer or Small. Much their senior in years, he had been longer educating in the various schools of vice. Besides, his own name not being on the Greek paper, there was, he knew, no record evidence of his guilt. It is a well known fact in the history of crime, proved by all the books on criminal law, that veterans in iniquity have seldom or never those "compunctious visitings of nature" which often extort confessions of their guilt from younger and less disciplined offenders. The declaration by Mr. Spencer that Cromwell was innocent might have been owing to some deep pledge, like the oath of a bandit on his drawn dirk, which Cromwell had adroitly exacted, that, in case of discovery, his adhesion to the mutiny should, under all circumstances, be kept secret; or it might have been owing to a hope grasped at by Mr. Spencer that Cromwell, if set at liberty by his means, would rouse his associates, and rescue him even at the last moment. What makes it most probable that this declaration was caused by the motive last suggested, is the remarkable fact that, during the half hour preceding his death, when all hope of escape had vanished, Mr. Spencer ceased to say anything of Cromwell's innocence. He was collected and tranquil, seemingly earnest to make his peace with God, and with such of his shipmates as he had chiefly wronged. Of Small, whom he had seduced from duty, he pathetically implored pardon, saying that he could not die composed without it; for Mr. Wales he anxiously inquired, and, when he came, begged to be forgiven by him for tampering with his fidelity. But to Cromwell, his bosom associate, who, upon the supposition of his innocence, was
the individual of all others most injured--who had been involved by his treacherous friend in unfounded suspicions and fallacious proofs, just about to consign him to the gallows--whose blood at the dread tribunal above would call loudest for vengeance against his destroyer --whose forgiveness was to be instantly and eagerly sought by tears and prayers as the only expiation that could be made--to him Mr. Spencer opened not his lips. He asked not forgiveness from Cromwell, though they calmly met face to face, and paused as they met, almost touching each other in their way to the execution, because he well knew that Cromwell, instead of being his victim, had been his prompter in guilt. To his willing associate in crime he had no apology to make; from him, no pardon to supplicate.
It is then fully proved not only that a mutinous conspiracy existed, but also that Mr. Spencer, Cromwell and Small were the prime conspirators. It follows that they had forfeited their lives to the laws of their injured country. For it is enacted by the thirteenth article of the first section of the Act of Congress of 1800, that, "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." But by the Act of 1806, the statutory punishment of a mutiny on land is to be measured out by the discretion of a Court Martial. The Court may exact life, or it may impose a lesser, or even a slight punishment. The wisdom of the national legislature has thus strikingly discriminated between the guilt of the same act done on land or at sea. The discrimination is just; a mutiny on the ocean is a more dangerous offence than one on land, and needs the check of a severer penalty. The commander of a ship at sea cannot, like a command on shore, invoke the aid of some neighboring troops, or appeal to the patriotism of the sturdy militia. From an overpower land mutiny, the faithful may retreat as from a burning edifice; but from a mutiny at sea, there is no retreat beyond the narrow limits of the ship. A mutiny on land does not always vitally endanger the interests or the fame of the country. But the very object of a mutiny at sea, in the naval service, is the conversion of a national ship to some evil use, and the consequent wounding of the national honor. Hence the law, with an
unwavering hand, has engraved on the list of capital offences, all naval mutinies, whether great or small, whether matured or yet in their early development. Nor need the evil intent be bodied forth in action, to complete the legal crime. The mutinous imagining of a single heart, if revealed to a single ear, with a corrupting purpose, brings down on the offender, the death-bearing sentence of the law. Not only a mutiny, but the "attempt" to create one in the naval service, is, by the words of the statute, punishable with loss of life.
But it does not follow, nor is it pretended, that because Mr. Spencer, Cromwell and Small had forfeited their lives, the commander of the Somers might therefore direct them to be executed. It is admitted that, under ordinary circumstances, it would have been his duty to detain them in safe custody, and bring them home to be tried. But the mutiny was of an unusual and unprecedented character. It created a case which the statute law did not contemplate, and could not reach. It was believed, and for reasons of overwhelming force, that neither Mr. Spencer, nor Cromwell, nor Small, could have been brought into port, without the most imminent jeopardy to the brig and the lives of the faithful officers and crew. It was on this ground--the unyielding ground of imperative necessity--that the commander of the Somers found himself placed, when he reluctantly directed the execution of Mr. Spencer, Cromwell, and Small. And it is on this ground that he now appeals for his justification, to this court, to his country, to the civilized world, and humbly and reverentially to his God.
The size, and construction, and equipment of the Somers must be taken into consideration, in judging of the necessity of the execution. She had no marines, a body of men distinct from the crew in organisation and feeling, on whom in ordinary ships of war the police and discipline greatly depend, and who form a counterpoise and check to the turbulent spirits of common seamen. She is of the smallest class of vessels of war. She had no place where prisoners could be safely secured or even separated from intercourse with the crew. Her hold was filled to its utmost capacity by ballast, water tanks, ammunition, stores, and other necessaries of a vessel of war in actual service.
There was not a foot of room for confining prisoners in the hold; and had there been room there, no means existed for effectually separating it from the berth deck, where all the crew slept and ate, the berth-deck being divided from the hold only by loose moveable hatches, which could have been either lifted up from above, or knocked up from below by the smallest boy on board. The berth-deck, the steerage, the ward-room, and the cabin, formed the four apartments below deck. The three last were very small rooms; and all the apartments below were separated from each other by only thin and frail partitions, through which a strong man could force his way from the brig's stem to her stern, by the shove of the shoulder, or the push of the foot. Nor was there sufficient substance in the thin and frail partitions below deck to prevent communication in the ordinary tone of voice, or even by a whisper. The safest place of confinement on board the Somers was, therefore, the open deck; in the after part of which the mutineers were in fact confined. But the deck is flush fore and aft; and there the prisoners necessarily remained within a few feet of each other and in full sight of the crew. To prevent the prisoners communicating with each other, and with the rest of the crew by words, was difficult; to prevent such communication by signs was impossible. The officers perceived that the art of secret and silent communication was not only understood, but practised on board the Somers; and they were not surprised to learn, on reaching home, that Mr. Spencer had taken lessons and become an expert in that art, which no doubt he taught to his associates in the conspiracy. It would have been only the work of a minute for the unconfined malcontents, had they made a rush on the after part of the deck, to have struck off the irons of the prisoners, and placed them at their head. And had the rush overcome the officers on deck, the officers below could scarcely have come to the rescue, as they must have ascended by narrow steps, and through the small companion scuttles, at which two or three resolute men might easily have cloven them down.
When the mutinous conspiracy first reached the ears of the commander of the Somers through Mr. Wales, it had attained a formidable growth. Until the arrival of the brig at Madeira, on the outward
voyage, the conduct and demeanor of the crew had been correct. From her sailing thence a difference was observed; and after leaving the coast of Africa on the homeward voyage, their conduct and demeanor became worse and worse. These facts are proved by all the witnesses for the defence. The cause of this remarkable change was for a time veiled in mystery. It was well known that there had been no variation in the conduct of the commander; that his government throughout the voyage, though firm, had been uniformly paternal. But the discovery of the plot solved the mystery, and demonstrated that the mutinous conspiracy had been the sole cause of this change of conduct and demeanor. The extent of the change clearly evinced the powerful and wide-spread, though silent operation of the cause which produced it. The conclusion was inevitable, that the poison of the mutiny had already pervaded a large portion of the ship's company. According to Mr. Spencer's statement, proved by the change in the conduct and demeanor of the crew not to have been exaggerated, he already numbered twenty determined associates, comprising of course the eldest and the strongest. For Mr. Spencer had declared to Mr. Wales that he would have none of the "small fry," as he termed the lesser boys; that they were useless on board; and that he would get rid of them when he came into power, by making them "walk the plank." And yet the lesser boys composed a large portion of the crew. The foundations of the mutinous conspiracy had been laid deep, and broad, and firm, for an officer of the brig had been the chief architect. He, though bound in duty and in honor to use his best efforts to promote the discipline and elevate the mental and moral character of the crew, had been for weeks sedulously employed in sinking them to the lowest depths of insubordination and crime; and to this nefarious object had been devoting, but too successfully, all the weight derived from his birth and official rank, and all the influence of talents, manners, and acquirements, well fitted for the work of demoralization. It is well known that a mutiny, unless suppressed at its very outset, usually increases as it goes on, in a fearfully rapid ratio, especially when thus fomented and impelled. Nevertheless, the commander of the Somers proceeded with great caution. He first caused Mr.
Spencer to be put in irons; which was done on the 26th of November. This, so far from intimidating, only irritated the mutinous spirit. The next day Cromwell and Small were arrested. Still the mutinous spirit continued to gather strength. Then four other delinquents were added to the number of the prisoners. And now the cause of irritation was multiplied seven-fold; the discontented of the crew had seven objects of supposed oppression before them; seven themes upon which to appeal to their yet uncontaminated shipmates; seven common wrongs to avenge. Besides, the unconfined guilty feared that their own turn might come next. The Court Martial and gallows at home haunted their morbid imaginations. Seven of their accomplices were in irons, either of whom, by turning State's witness, might ensure their own conviction. To arrive in port, was to come within the jaws of danger, probably of death. The words of the commander that the offenders would be taken home for trial, were perpetually sounding in their ears. They became convinced that the boldest course was to them the safest one; that the pirate's black flag was now the surest protection against the violated laws of their country.
Never was a crew where malcontents could have had a fairer chance of making proselytes. The crew of the Somers were almost all apprentices; many of them men in physical strength, but all of them boys in mind. Their youthful feelings were peculiarly open to sympathetic appeals; their undisciplined imaginations liable to be easily beguiled by seductive pictures of the freedom and pleasures of the rover's course. The season of youth, especially of untutored youth, is proverbially exposed to temptations. How impressive, then, must have been the mutinous appeals to the crew of the Somers, carried home, as they were, by the corrupting example of the chief conspirator ! Highly born and educated, he had renounced hopes as brilliant and dear as ever glittered before the eye, or touched the heart, of an American youth--the laurels of honest fame, and the sweet delights of domestic love--his country's plaudits and his parents' smiles--for the wild and tragic drama of a pirate's life. How resistless must have been the influence of this pernicious example on the lowly, credulous, reckless spirits of the ship's berth-deck, to whom
the path of virtue might have seemed to promise nothing but unremitting toil and unrelenting poverty, and to each of whom their tempters might have said, "The world is not thy friend, nor the world's law!" It was impossible for the officers to draw a line of separation between the sound and the unsound parts of the crew. They slept and ate in the same apartment, unattended by any officer. They watched and worked in groups. The life of common seamen on ship board, is necessarily gregarious. They can communicate with each other by whispers, by signs, by looks. The officers could no more check the progress of mutiny among the crew, than they could the progress of contagious disease. Nor could they ascertain how far the mutiny had extended. They knew that the moral malady had been constantly on the increase since the day when Mr. Spencer had boasted that he had already twenty associates at his call; and it required the omniscient eye to select those, if any, on whom the officers might now rely. To have held an inquest with the view to ascertain the names of the unconfined malefactors, would have been worse than useless. Their universal asseveration of innocency could not have gained credence against the daily and hourly demonstrations of their guilt. And had the names of the unconfined malefactors been truly ascertained, there could have been no action on the discovery. There was not space to hold, or force to guard, any increased number of prisoners. And to have singled out the culprits by name, and branded them by a sort of anticipated conviction, and yet have permitted them to roam at large, intermingling freely with the crew, with the halter of the law about their necks, would only have made the culprits themselves more infuriated and desperate; whilst the government of the ship, by exposing its own imbecility, would have sunk into disrepute and contempt.
Between the arrest of Mr. Spencer and the execution, the mutinous indications were unceasing. Yet were they deep rather than loud. The fire beneath the surface which causes the earthquake, reserves for the hour of the explosion, its more palpable and awful demonstrations. In this instance especially, the mutiny had now been taught by its own brief history to be circumspect and subtle. Nevertheless the
flame, covered but not suppressed, gave ceaseless and sure signs that the time of its bursting forth was near at hand. The general disobedience of orders when first announced, and the stern defiance with which they were afterwards obeyed when more peremptorily repeated; the frequent gathering of the older and stronger of the crew in groups for secret consultation, and their stealing away at the approach of an officer, or else changing the discourse to some indifferent subject, and raising their voices to the ordinary key; the carrying away of the main top-gallant mast by the sudden and violent jerk of the weather royal brace by Small, who had just left the side of Cromwell, evidently by design, and with intent to throw overboard the boy on the royal yard, that confusion and a chance for the outbreak might thence ensue; the simultaneous mustering of the chief conspirators at the main top-mast head on that occasion, watching the moment for action, to which point was also directed the fixed and anxious gaze of Mr. Spencer; the refusal of the men to come aft at first when ordered there to aid in sending up the new top-gallant mast, and then the tumultuous rushing thither by nearly all the crew, stamping with their feet--an outrage made more suspicious by its happening after dark; the repetition of the same seditious conduct on the following evening when the crew were called aft to the main try-sail sheet, with the further circumstance that the rushing aft was continued even after the crew had been distinctly ordered to return forward; the repeated missing of the muster without excuse by those named in the Greek paper, in defiance of the government of the ship; the mysterious removal of the handspikes, heavers and holystones, so as to make them accessible to the conspirators at the moment of need, and the sharpening of the African knife and battle-axe; the stealthy glances of the conspirators towards the places in the ward-room and steerage where the officers off duty kept their arms; the declaration by one of the conspirators that he would like to get the African knife into the hands of Mr. Spencer, and that the knife would yet have to do a great deal of slaughter; the raising of a handspike in a threatening manner by the same conspirator against an officer, whom he sought to take unawares; the
ceaseless efforts of those named in the Greek paper to steal aft under pretence of some call of duty so as to be near the prisoners, watching an opportunity for communication with them, and the frequent interchange of significant glances between the prisoners and them; the sullenness and moroseness of the crew; their whisperings; the seditious expressions which were occasionally overheard; the insolent and menacing tone assumed by them; their ominous expressions of displeasure at the prisoners being kept in irons; are among the numberless circumstances, which collectively force on the intelligent and experienced observer the full conviction that the mutiny was rapidly maturing for its final outbreak. Add to these the dark and portentous looks of the crew, which, like the lowering sky presaging a tornado, a seaman's eye could detect and appreciate, but which a seaman's tongue cannot adequately describe. The sullenness and moroseness, the violent and menacing demeanor, and the portentous looks of the crew between the arrest of Mr. Spencer and the execution, are not the creations of fancy. Every officer and many of the seamen have sworn to their existence. All these witnesses would not league together to deceive you; and they could not have been themselves deceived. They are nautical men, well acquainted with the usual manners, demeanor, and looks of seamen, and were eye-witnesses of what they state. They observed the ominous appearances from hour to hour and from day to day, and watched with care their fearful progress. That one witness might be mistaken in such a case, is not very unlikely; that a multitude of witnesses should be so mistaken, is against all probability. To reject their united evidence as fabulous or imaginative, would be to destroy that faith which man, from his social relations, is bound to place in the testimony of his fellow men.
But to oppose all these accumulated proofs, McKinley, McKee, Green, and some others, whose names appear on the Greek paper, have been introduced on the part of the prosecution, and elevated to the rank of witnesses in a court of justice. By that paper McKinley and McKee had prominent posts specially assigned them in the meditated massacre. They with Green were brought
home in irons; and all the conspirators stand candidates for trial before the proper tribunal of their country, for life or death. Their own safety required that they should boldly deny the existence of the mutiny; and, if Mr. Spencer correctly estimated their character, their denial was not likely to falter through any delicacy of conscience. To felons leagued in a conspiracy of murder and of piracy, it would seem a slight thing to superadd the crime of wilful falsehood. Comment upon such witnesses would be a useless waste of time; nor is it worth while to marshal against them the phalanx of opposing testimony; they are left to sink under their own weight. The omission to examine Wilson, to whom the Greek paper likewise assigned a chief place in the meditated massacre, and who was the actor in the scenes of the African knife, the hand-spike, and the battle-axe, and who was also brought home in irons, is a virtual admission that the prosecutor was afraid to examine him;--that, if examined, he would have betrayed secrets fatal to the prosecution, and which are still locked up in the breasts of the conspirators.
The slander sometimes suggested, that the officers of the Somers were rendered nervous by unmanly fear, betrays an ignorance of the case and of the true character of the American naval officer. Of himself, the commander would, in this respect, say nothing. But of his eleven associate officers, he is bound to say that never were men, in, perilous circumstances, more cool, collected and temperate than they. They proposed no hasty effusion of blood, though conscious that their own lives were in momentary peril. After the discovery of the mutiny, five days and nights were given to dispassionate and solemn deliberation. Nor was the execution recommended until it had been gradually ascertained, by melancholy proofs, accumulating daily and hourly, that the experiment of reiterated arrests, instead of breaking the heart of the conspiracy, had only rendered it more ferocious and desperate. Unmanly fear, it is believed, is not wont to be an inmate in the bosoms of American naval officers. Our youthful navy has produced many heroes; perhaps few cowards. Unmanly fear would heretofore have been thought a strange malady in our naval service. It
did not "in times that tried men's souls" display itself in our vessels of war on the lakes or on the ocean. That this malady should have had its first outbreak in the Somers; that it should have spread at once from officer to officer until all were infected without one exception; and that its morbid influence should, in every instance, have destroyed the healthful exercise of the mental vision, the judgment, and the memory--is a supposition which, to gain credence, should rest on something besides mere suggestion.
From the arrest of Mr. Spencer to the execution, the officers of the Somers had upon them a heavy weight of labor and responsibility. They stood sentinels on the deck; and ultimately had no alternative but to remain there under arms day and night, watch and watch about. To the refreshing influence of quiet sleep, they had become strangers. Fatigue and consuming care were wasting away their youthful frames. Nature would have endured the struggle but little longer. And while their physical strength was hourly becoming less and less, the danger was hourly becoming greater and greater. It was now manifest that the government of the brig had been despoiled of its moral power. It was lost, that instinct of discipline, that loyalty to authority, "that subordination of the heart" which form the conservative elements in that little floating world, a national ship. Anarchy, deep and wide spread, was predominant; and physical force had become the sole arbitress. The conspiracy, confident in its strength, matured in its counsels, and murderous in its resolves, was now ripe for action. Implements of wood and of iron were always at hand, well suited to arm the malefactors for a hasty and close combat. A sudden accident abstracting the attention of the officers; or the confusion incident to a squall at sea; or even the cover of a dark night, might at any moment have brought the mutiny to a successful issue. And what would have been the consequence? I pass over the murder of the officers and faithful of the crew as comparatively a very little thing. The lives of military men, whether on land or at sea, are plighted to their country; and compared to the honor of that country, individual life is as the drop of the ocean. But the
nation's honor was now at stake. An American vessel of war was about to become a piratical cruiser. A vessel which had been born into our naval family, and consecrated as a defender of her country's glory, and one of the protectors of the great commonwealth of civilized man, was about to be torn from her sphere, and let loose a lawless wanderer upon the deep, carrying along in her devious course, like a comet loosened from its orbit, devastation, and terror, and death. Perhaps no vessel could be found better fitted to become the pest of the ocean. Seldom surpassed in speed by anything propelled by sails; of sufficient strength to overcome merchantmen; so small and light that, if pressed by superior force, she might retire beyond their reach, and hide herself in shoal water; capable of supplying herself from her prizes with men, naval stores, provisions, and water, she might have made her home on the seas without ever entering port. There, swift and destructive as the pestilence, by turns showing herself on the Atlantic, and then in the Pacific and Indian oceans, she might have been the world's terror for years, without its being known from whence the scourge came, or whither it went.
Under these circumstances what was the commander of the Somers to do? He was alone on the ocean. He could not invoke a regular court-martial. He asked the best and only counsel within his reach. He made a written appeal to his officers for their advice. His officers, after examining the witnesses, and with full deliberation, returned him their written, unanimous, and solemn judgment, that the execution of the three ringleaders of the mutiny was indispensably necessary for the safety of the vessel, and the lives of the faithful on board. With this judgment of the only court within his reach, his own opinion concurred. The high seas furnished no learned jurists with whom he might consult. But he had with him a volume of Nature's laws, written by the finger of God on the human heart. In that volume he read that necessity ordains its own controling canons; that they who seek unlawfully to slay, may themselves be slain without formal process, when the self-preservation of the assailed renders the sacrifice inevitable. And, above all, he found, in that same volume, the
natural elements of national jurisprudence; and there he read, that when, on some remote station, or on the solitary deep, the commanding officer, by land or sea, bound, as it were by an oath to protect, at the expense of life, or hundreds of lives, the vital interests, and sacred honor of his country, shall find those vital interests and that sacred honor about to be deeply and incurably wounded by a band of apostate felons, and that the evil cannot be averted but by the death of those felons, without the formalities of law, he is in duty bound to rouse up his spirit to the majesty of the occasion, and, poising himself on his own magnanimity, grasp, with unfaltering hand, the sword of righteous, though summary, retribution. The execution took place. It was foreseen that the remedy would be decisive; for of the malcontents there were none, save Mr. Spencer, Cromwell, and Small, who could navigate the vessel; and it was known that guilt would not trust itself to the broad ocean without a navigator.
The commander of the Somers was influenced by no private motives. He had no feeling of personal hostility against the prisoners. To the deep agony which their fate caused him his officers have borne witness. He was conscious that the nation which he served was jealously alive to any unusual exertion of power; and that, upon his return home, he would be called to a strict account for the shedding of blood not drawn from the public and declared enemies of his country. He was not unmindful that the distinguished father of the chief culprit held an office of high trust and authority, and that the hostile influence of that father would be an evil not lightly to be encountered. But the exigency of the case impelled him forward. The path of honor and of conscience was rugged, but it was plain. There was no bye-path to the right or the left by which he could escape. And he trusts that, had the chief culprit been of his own blood, he would not have faltered in the career of duty.
Upon his return home, the commander learned that the law of nature which he had studied and obeyed, was also the law of his country. It is believed to be the law of the civilized world. Perhaps no name stands higher in British jurisprudence than that of Edward
Law, afterwards Chief Justice of England, by the title of Lord Ellenborough. In January, 1802, less than three months before he was promoted to the bench, he conducted in his then capacity of Attorney-General, a public prosecution against Joseph Wall, for an alleged murder at the Island of [?????], in Africa, of which island he had been Governor. The act complained of was one of needless and atrocious cruelty. Under the pretence of a mutiny of doubtful existence, without a general or regimental court-martial, of which the materials were at hand, and without any necessity urging immediate action, as the mutiny, if any, was past, the Governor had caused a soldier to be whipped 800 lashes, with a rope eight times as thick as the ordinary cat o' nine tails. To do the work effectually, he had employed five or six strong negroes, specially selected for the purpose, who, in the spirit of emulation, each whipped with all his might till he was tired, and then passed the rope to a fresh hand; and thus the rope went round among the negroes in succession until the whole number of lashes had been inflicted. The governor had stood by to enjoy the scene, repeatedly urging the negroes to whip harder; "to cut him to the liver, to cut him to the heart." The soldier had died of his hurts, and the brutal governor was condemned and executed. But even at that occasion, when the torrent of righteous indignation seemed to be bearing all before it, the Attorney-General rose above his feelings as a man to a sense of his duty as the representative of his king and country, and carefully laid down to the jury, as a landmark for their government, the great principle contained in the following extract from his speech. The application of the extract to the case of the Somers, generally and specially, in all its parts and bearings, is too obvious to need comment:--
"But let it not," says he, "be understood on that account, that there may not be circumstances--it will be for Governor Wall to show that such circumstances existed--which may constitute a sufficient, and full defence for a military officer, in the infliction of punishment, without either a general or a regimental court martial; for if there be that degree of imminent necessity which supercedes the recourse to any ordinary tribunal; if there be actually existing that flagrant mutiny which must
either be suppressed by force, and by the immediate, though irregular application of severe punishment, or must be left to rage uncontrolled, at the utmost peril of public safety, that, which I was just now pronouncing to be irregular becomes, if the more regular and appropriate course of proceeding in such cases cannot be resorted to, itself regular and capable of being justified upon every principle of public duty, for it imports the public safety, that the means of resisting an enormous and overbearing evil, should be as strong, sudden, and capable of application, as the evil itself is capable of immediate mischievous effect; and if this has been the case here, it will carry its own justification with it. Gentlemen, upon this occasion, therefore, it will be most important for the prisoner to establish that there existed, in point of fact, a mutiny. When he has established in point of fact (if he can do so) that there existed a mutiny; if he can go farther, and show that the ordinary modes of trial could not be resorted to, and that, upon conference with the officers, that, which on the emergency was thought best to be done, was done, and that there was no wanton abuse of power in the infliction of the punishment, the prisoner will be entitled to go quit of the charge made upon him by this indictment."*
Lord Chief Baron Macdonald, who presided at the trial (assisted by Justices Laurence and Rooke) unequivocally ratified the rule of law as laid down by the Attorney-General.
The great principle of universal jurisprudence thus laid down by the future Lord Ellenborough to the English jury, and confirmed by the English court, had been previously recognized as a part of the American code, and carried into practice by Washington himself, in the case of the Jersey mutiny in 1781. The following is extracted from Marshall's Life of Washington:--
"General Washington, who, though satisfied with the conduct both of the civil and military officers, had been extremely mortified at the issue of the mutiny in the Pennsylvania line, and who was now confident of the reliance to be placed in the fidelity of the eastern troops who were composed of natives; determined by strong measures, to stop the further progress of a spirit which threatened the destruction of the army. In pursuance of this determination, he immediately ordered a detachment to march against the mutineers, and to bring them to unconditional submission. General Howe, who commanded this detachment, was instructed to make no terms with the insurgents, while they had arms in their hands, or were in a state of resistance; and as soon as they should surrender, to seize a few of the most active leaders, and to execute them on the spot. These orders
* XXVIII. Howell's State Trials. 60.
being promptly and implicitly obeyed, the Jersey mutineers were compelled to return to their duty."*
The very words used by General Washington in his letter to General Howe, dated 22d January, 1781, are as follows: "If you succeed in bringing the revolted troops to a surrender, you will instantly execute a few of the most active and incendiary leaders."† This order for instantaneous execution could not have contemplated either a general or regimental Court Martial, the formation and action of which are always attended with some delay. It is true that General Howe says that" a field Court Martial was presently held." But this field, or, as it is more generally called, drum-head Court Martial, is not known to the statute law of this country or of England. It is the mere creature of urgent necessity, which, as in the case of the Somers, may not brook delay; and it is of no more legal validity than the consultation of officers on board that vessel. Its design is simply to aid the judgment of the commander, and to show the world that he has acted with the best advice allowed by the exigency of the case. On the trial of Governor Wall, the learned Attorney General, in speaking of a field or drum-head Court Martial, says; "It is not a trial, but something that the necessity of the case overlooks."Þ
The following is an extract from the joint remarks of Lord Mansfield and Loughborough in the case of Johnstone against Sutton.
"The salvation of this country depends upon the discipline of the fleet; without discipline, they would be a rabble, dangerous only to their friends, and harmless to the enemy: Commanders in a day of battle," (and the same remark applies perhaps more strongly to a day of pressing mutiny,) "must act upon delicate suspicions; upon the evidence of their own eye."§
Only one more authority will be cited. Sir James Marriott, the distinguished Admiralty judge, in a charge delivered by him to the jury in 1792, expresses himself as follows:
" You will call to mind continually the state and condition of the parties concerned, the nature of their lives, business, and necessities.
* IV. Marshall's Washington, 368.
† VII. Spark's Washington, 381.
Þ XXVIII. Howell's State Trials, 101.
§ I. Durnford and East, 549.
Consequently, in judging of matters committed upon the high seas, you will take into view the state of society upon that element, where all is violence. This consideration makes a great difference between actions at sea, and actions on land, where everything comes within the sight and knowledge of the neighborhood, and where the peace and tranquility of the subject is generally secure under a mild and moderate government. You have to judge of ferocious men, possessed of few but strong ideas, peculiar to their employment; of men hardened by danger, and fearless by habit. The subjects of your deliberation are actions done on a sudden; vehement from the nature and necessity of the occasion. The preservation of ships and lives depends often upon some act of severe, but necessary discipline. These scenes of violence present no very amiable picture of human nature; but such violence is frequently justifiable, sometimes absolutely necessary; because, without it, no commerce, no navigation, no defence of the kingdom, can be maintained. The consideration of this should soften the rigor of judgment, which might otherwise be made on land, by persons ignorant and inexperienced of what is done at sea. It is painful to observe that, without the greatest care in weighing of evidence, no commander or officer of a ship can be safe upon his trial. In charge of the lives and properties of other men, contending with the most ferocious, upon an ungovernable element, a commander is placed every moment in danger of the loss of character and life. A ship is a little government, compressed into a narrow compass, in which there can be no hope of security for any man on board, without a rapid and strong occasional exertion of an absolute power placed in one man. Like other governments and situations, the command of a ship is open to the most horrid general combinations and conspiracies, with all their consequences, fit to make the stoutest heart tremble. The passions operate at sea without control; and all on board of a ship is too often a scene of misery, terror, disorder, license, resentment and revenge."*
The notion recently suggested that the council of officers on board the Somers should have proceeded more formally, and, having first served written charges on the accused, should have conducted the examination in their presence, subject to their cross examination, and regular defence, could not have been carried into effect. Each of the three persons executed had, at the time of his arrest, been distinctly informed of the charge against him; and two of them had afterwards repeatedly plead guilty to the charge. The certainty of the guilt of all the three, had been placed beyond peradventure by
* Bee's Reports, 110.
the ocular view of the commander, and the summary inquest before the council of officers. A regular trial was utterly precluded by the exigency of that awful occasion. Necessity stood stern umpire, and allowed no time for the ceremonies or delays of the law. The two investigations of the case on land, with every desire of the Courts to proceed with dispatch, have occupied, that before the Court of Inquiry at least twenty days, and this before the present Court Martial more than forty days; and had the proposed regular trial at sea continued but one tenth of the shortest of those times, it would, to a moral certainty, have been interrupted and superceded by the threatened catastrophe, which, in the twinkling of an eye, would have substituted, for the reign of law, "the reign of terror." The very exposure of the fact that the trial of the mutiny was formally going on for life or for death, implicating of course the unconfined as well as the confined guilty, would of itself have produced a concussion that could not have failed to hasten on the crisis.
It has been sometimes said that the Somers might have left at St. Thomas, in the custody of the government there, the prisoners who caused the danger. The propriety of such a course may be thought doubtful, even if the brig could have reached that island in safety. An American ship-of-war is always deemed competent to meet an enemy from without of a force not superior to her own; much more must she be deemed competent to meet and quell, by her own power, an enemy from within. If she is not capable of maintaining her own discipline, she ought not to be held worthy to fight her country's battles. It would seem to be a degradation to our flag for an American ship-of-war to invoke the aid of a foreign government to sustain the discipline, or quell the insurrection of her own crew. But these speculations are foreign to the pending trial. The evidence repels the supposition that the Somers could have reached St. Thomas in safety with all the prisoners alive. There was every reason to believe that what the conspirators intended to do, they would do quickly. Mr. Wales had understood from Mr. Spencer that the mutiny was to take effect very shortly, and even before their arrival at St. Thomas. The
arrest of Mr. Spencer and six of his associates, instead of retarding, was likely to accelerate the catastrophe. Under the exasperation caused by their arrest, every thing indicated an immediate outbreak. The forebodings of the unconfined culprits that the commander might invoke even the arm of foreign law at St. Thomas, and cause them to be sent home in irons, by safe conveyances, to meet their country's doom, lent the stimulant of desperation to the other causes of excitement; and it is more than probable that had the execution not taken place when it did, the squall which followed in the evening of that day would have been the signal for the final explosion. The bearing away of the Somers for some other West India island would have been a still more dangerous expedient. The brig would not have escaped the risks incident to the passage to St. Thomas; and the sudden departure from the known course of the voyage would have been virtually an official admission that the mutiny was too strong for the authorities of the ship, and that the bearing away was but a flight from the dreaded danger to crave protection from the government on shore. Such an admission, while it would have disheartened the faithful, could not have failed to give strength to the ranks of the faithless. It would have confirmed the wavering in their adhesion to the mutiny, and imparted fresh courage to the confirmed in guilt. That a crisis would have been suddenly forced on is almost beyond a doubt. The conspirators would have hesitated little in the choice of the two paths before them--the one leading to the irons, the prison, and the gallows of the law; the other conducting, as they would then have boldly expected, through blood and massacre, to a sure and prompt victory, sweetened by revenge, and crowning all their desperate hopes.
To enable the Court the better to judge of the necessity of the execution, permit me to bring the case to another test. Suppose that the execution had not taken place; that the unconfined malcontents had risen and released the prisoners; that the mutiny had triumphed and the brig been turned into a piratical cruiser; that the faithful of the officers and crew had been all massacred, except the commander alone; that, from a refinement in cruelty,
the pirates had spared his wretched life, and sent him on shore that he might be forced to wend home his solitary way and become himself the disgraced narrator of what would then indeed have been the tragedy of the Somers. With what a burst of indignation would the country have received his narrative! How would the American press, with its thousand tongues, have overwhelmed him with exclamations and interrogatories like these: "You were seasonably urged by the unanimous voice of your trusty officers, to save their lives, the lives of your faithful searnen, and the honor of your country, by the timely execution of those malefactors, who deserved to die, and whose immediate death was imperiously demanded by the exigencies of the case. Why did you not heed the counsel, the earnest counsel of your associates in authority--your constitutional advisers--with whose opinion your own too concurred? You did not, because you dared not. You faltered in the path of known and acknowledged duty, because you wanted moral courage to tread it. On you, in the judgment of conscience, devolves the responsibility of those murders which you might and ought to have prevented. On you recoils the disgrace of that flag which never sustained a blot until it was committed to your charge." To finish the picture, permit me to fill up another part of the canvass. Suppose that the Somers, now turned pirate, while cruising off our coast, had been permitted by heaven, in an evil hour, to capture some vessel plying between this and Europe, freighted with the talent and beauty of the land. The men are all murdered, and the females, including perhaps the new made wife, and maidens just blooming into womanhood, are forced to become the brides of pirates. A universal shriek of agony bursts from the American people throughout all their vast domains; and the wailing is echoed back from the whole civilized world. And where then could the commander of the Somers have hidden his head branded, as it would have been, by a mark of infamy as indelible as that stamped on the forehead of Cain.
The case of the Somers may form an epoch in our naval history. Should the course of the commander be approved by his country, mutinies in our ships of war will probably hereafter be of rare occurrence. But should this Court, or the high tribunal of public opinion,
pronounce sentence of condemnation on the course which he felt himself bound to pursue, it is respectfully yet solemnly submitted that the sentence will be the signal for the general prevalence of insubordination in our navy. The means and subjects of mutinous excitement are always at hand. Filled with men of mixed national character; crowded with spirits as turbulent as the element on which they dwell, the ship's berth-deck ever abounds in materials of combustion, which a single spark may ignite. The commander must quench the flame, even if it is sometimes done by the sacrifice of life. He must suppress a mutiny in his little empire by the application of all needful force. No degree of force is superfluous or unlawful, that is necessary for the suppression. Effectual suppression is the only point at which he can rightfully stop. He must move to that point with a cautious, not with a faltering step. He must employ gentle means, if they will reach the evil; if not, he must resort to severer measures, and if need be even to the severest. He may give such time to mild expedients as the safety of the ship will allow; not a moment longer. But if his country's reproach is to be the meed of his faithfulness, other commanders will take warning from his example. They will suffer the rage of mutiny to pursue its fearful course, rather than arrest it by the sure sacrifice of their own character. They will risk the chance of being cloven down at sea by the weapons of the mutineers, leaving to them the choice of time, place, and mode of attack, rather than incur the certain fate of perishing at home by the daggers of calumny. They love their country; for their native land they would cheerfully die; but they cannot even for that beloved country, willingly lose for ever their own most precious character. The love of character is not the least of the motives which has induced them to relinquish their peaceful hearths, and make their home on the unquiet seas. And to sacrifice their good name--" the immediate jewel of their souls"--even on the altar of public weal, requires a sublimity of patriotism beyond the flight of ordinary men.
Discipline is the first and second and third virtue in the naval code. It was discipline, perhaps more than even courage, which, during our
last war with England, enabled our little navy to work its miracles on the lakes and upon the ocean. Of those glorious achievements, the commander of the Somers may speak without egotism, for he was not then of an age to participate in their dangers or their fame. The electric shock then communicated to an astounded world, can never he forgotten; for it has passed into the immortal pages of history. The great British historian of the present century speaks of it in these glowing terms: "When therefore," he says, "it was seen that in repeated instances of combats of single vessels of the same class against each other, the ships of the United States had proved victorious, the English were stunned as by the shock of an earthquake; the Americans were immeasurably, and with good reason, elated; and the other nations in Europe thought they discerned at last the small cloud arising over the ocean, which was to involve the British maritime power in destruction."* And the cause of these discomfitures, the same author more than hints at in the next page but one. He there says: "Experience had now proved, that long continued and unexampled success had produced its wonted effect in relaxing the bands of British naval preparation; and that they had much need to recollect, that, in the language of the ancient conquerors of the world, the word for an army was derived from the verb to exercise." It was then the Spartan discipline of our navy, no less than its Spartan valor, that enabled it to triumph over the proud mistress of the Ocean. Let discipline for ever be regarded as its sheet anchor; and let it never be forgotten that subordination is the life, and mutiny the death of discipline. In this view of the subject, the nominal party here sinks into comparative unimportance, and the American nation rears her august form, entreating that her youngest, her favourite offspring, may be saved from its worst enemy,--that it may be saved from the demoralizing, destructive principle of insubordination.
All of which is respectfully submitted.
ALEXANDER SLIDELL MACKENZIE.
* X. Alison's History of Europe, 672.
The following is an exact copy of the paper found in Mr. Spencer's razor-case: [Note: Greek alphabet not transcribed.]
The following is a correct translation of the Greek paper:
To be kept willing or unwilling
Those doubtful, marked + will probably be induced to join before the
Spencer's list of possible mutineers (Greek: left column/English: right column)
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 -----
Cabin---------Spence, Small, Wilson
Steerage-------Spencer, Small, Wilson
Spencer's list of possible mutineers (Greek: left column/English: right column)