The Quality of Mercy

17



The insurance claim on eighty-five African slaves, cast overboard while still alive from the deck of the Liverpool Merchant on grounds of lawful jettison, was heard at the Guildhall, Justice Blundell presiding. In contrast to the long course of postponements and delays that had preceded it, the hearing itself was brief, occupying no more than three hours of the court’s time.

The insurers were represented by an elderly lawyer named Price, who had a large experience of such cases. Kemp’s lawyer, Pike, had wished to hold his fire for the criminal trial at the Old Bailey, which was due to be held at a date not yet specified; he had recommended a young barrister named Waters to represent the ship’s owner.

The claimant, who gave his name as Erasmus Kemp, made a short statement to the effect that he was applying for compensation in the name of his father, now deceased, whose property had passed to him. Price declined to put any questions to him and declared that the underwriters did not dispute his claim to be the present owner of the vessel.

It was only when stepping down that Kemp saw Jane Ashton sitting at the back of the court with a man who he thought must be her brother. She was looking straight at him, and for some moments, as he descended the steps, their eyes met. His own place was in the forward part of the court, in the same row as the insurance broker, Van Dillen, and the two associates that had accompanied him. When he was again seated, Kemp became intensely aware of her presence there, not far away, and of the fact that he would be seeing her the following evening at Bateson’s house. Press of business had prevented him from inquiring whether the Ashtons had accepted the invitation, but even had he been less occupied he would hardly have thought it necessary to ask; he knew beyond question that they—she—would be there. Their destinies were linked; he had seen her face, lit up by the shower of gold, smiling upon his enterprise, just minutes after Spenton had replied so favorably to his proposal for the lease. A blessing, no less. So strong was this feeling, as it returned to him now, that for some minutes he ceased to follow the proceedings of the court and so missed Barton’s opening words, which of course did not much matter, as they had agreed together on the ship returning to England as to what the mate’s evidence should be.

Barton had dressed for the occasion with all the elegance he could summon on straitened means, in a fustian coat with broad lapels, a short wig and a high stock that kept his head upright and restricted his usual loose-necked, peering way of looking about him. He took the oath with aplomb but then made the mistake—the kind of mistake he would always be prone to—of leaning forward and resting his elbows on the rail, in an effort, as it seemed, to convey a sense of ease and a confidence in his own veracity, only to be told by the clerk of the court, in no uncertain terms, to stand upright and bear himself properly, instructions he obeyed with comical alacrity.

“The capt’n put it to us,” he said. “Capt’n Thurso that was. We was hassembled below in the capt’n’s cabin an’ he put it to us fair an’ square, hunnerd percent.”

“Will you tell us who was present at that meeting, in addition to Captain Thurso?” Waters asked.

“There was myself, the bosun, the carpenter—”

“The ship’s officers, in other words.”

“That is right, sir, yes.”

“The men who represented responsibility and authority on board the ship. And you decided, taking counsel together, that the cargo would have to be jettisoned. Is that so?”

“Hunnerd percent, sir.”

“Fellow, what is this way of answering?” Justice Blundell said, red-faced and irritable in his heavy wig. “You must answer yes or no.”

“Yes, sir, beggin’ yer pardon.”

“A collective decision taken by the responsible members of the crew,” Waters said, addressing himself to the jury. “And on what grounds was this decision taken? It was taken on grounds of dire necessity. The witness will relate the circumstances.”

“We was short of water, sir. There had been stormy weather an’ one of the casks was holed, unbeknown to us, an’ the water had leaked away.”

“So there was insufficient water to go round among the crew and the slaves?”

“Hunnerd per—yes, sir, right in hevery detail. We ’ad no choice, sir, we was still ten days off Jamaica, we ’ad to throw ’em over so as to be sure there was water enough for the crew.”

“No choice, Your Worship, those are the key words. It was a question of life or death for the crew. And if the crew perished, who was to manage the ship? That constitutes lawful jettison and that is the contention of the ship’s owner, Mr. Erasmus Kemp, whom I have the honor of representing in this court today.”

Barber, the ship’s carpenter, was brought, still in chains, from the yard outside. His evidence substantiated that of Barton, though with one significant difference. Ashton’s words had had an effect, but not the one he had wished for. Conferring together after his visit, the men had decided that the best course was to deny having made any judgment whatever as to the amount of water on the ship.

“We was informed by Capt’n Thurso that there was not water enough,” he said. “We took it on trust. On a ship you takes the word of the capt’n.”

“Are you seriously asking us to believe,” said Price, with significant glances at the jury, “that there was a lack of water urgent enough to justify the throwing overboard of those men and women while the breath of life was still in them, and that you weren’t aware of this urgency until the captain told you of it? Are you seriously asking us to believe that a damaged water cask would not be noticed by any single member of the crew until the water had all leaked away?”

“We was rushed off our feet, we was undermanned, there was no time to look at the casks.”

He was led away, and Price turned to the jury. “There was no time to look at the casks,” he said. “Of course there wasn’t. They were afraid the slaves might die below decks before they could be thrown over the side to drown. The reason for that hasty dispatch had nothing to do with damaged casks or a shortage of water. There was no shortage of water. Were the crew placed on rations? No. Did the ship put in anywhere for fresh supplies? Again no. They were in haste to jettison the sickly because they knew that those dying aboard ship were not covered by the insurance.”

“But what had the captain to gain by this, or the crew either?” Justice Blundell leaned forward to put this question to the impassioned Price. “I cannot see that they would take such action only for the sake of the owners.”

“Your worship, we cannot know the captain’s motives. Some promised reward, some prospect of commission, perhaps mere habitual fidelity toward the owners. We cannot examine far into the state of mind of a man long since dead.”

Some commotion was now caused in the court by the calling of James Porter, who was seen to be a negro. Before he could be questioned by Price for the insurers, Kemp’s lawyer intervened.

“May I inquire into the quality of this witness? What is his state?”

“He has been manumitted by his former owner, who brought him back from the West Indies and in whose service he has since remained as a free man. We have a deposition to that effect by his employer, a Colonel Trembath, a retired officer who has served his country well and whose word cannot be impeached.”

“That is all very well,” Waters said. “It is not his present condition that concerns the court, but his condition as it was on the deck of the Liverpool Merchant at the time these events took place. At that time he was a slave, and therefore his evidence is tainted and inadmissible.”

Price said nothing to this, but he allowed himself a broad smile of superior understanding, and he was still, for the benefit of the jury, keeping this smile in place when Porter surprised the court and brought a frown to Justice Blundell’s face, though no reprimand from him, by addressing the hostile counsel directly. “No, sir, you are quite wrong,” he said, in excellent English. “I was not enslaved, I was on the ship of my own free will. I was employed as an interpreter.”

Waters would have done better to yield the point, but he still hoped to discredit the witness and arouse some prejudice against him on the grounds of color. “How can we believe that?” he said. “What need for this great title of interpreter aboard a slave ship? It is all an invention of your own.”

“Sir, you reveal considerable ignorance,” Porter said. “The Africans we took had never heard English spoken before. Do you suppose they became gifted with knowledge of it the moment they stepped on board the ship?”

“My man, you are here to answer questions, not to ask them,” Blundell said.

“I beg your pardon, sir, but he was calling me a liar.”

The rebuke had been a mild one, and Price took heart from this mildness. He could sense a general sympathy in the court for Porter, who was bearing himself with dignity under these heavy-handed attacks. “If it pleases the court,” he said, “Barber can be recalled to testify in support of the witness’s claim.”

But Blundell was beginning to feel oppressed by the tedium of these proceedings; and he was aware that his dinner hour was not far away. “No, let us go on,” he said.

With a series of questions Price elicited from the witness that he had been present at the jettisoning but had taken no part in it, that there had been no shortage of water whatsoever, that in fact there had been recent rain, that the casks were regularly inspected and there had been no report of damage.

It was when Porter stepped down that Waters made his great mistake. He was ambitious and was at an early stage in his career. He had been gratified by Pike’s recommendation and greatly wished to justify the trust that had been placed in him. There was also the fact that Kemp was a powerful man and might have been a source of favors. Now he sensed that things were going against him and that the victory he had hoped for was slipping away. The discomfiture enraged him, brought out a strain of fierce antipathy never far below the surface. He had seen Ashton in the courtroom, and now, instead of making a reasoned address to the jury and giving what emphasis he could to the case for the owners, he embarked on a personal attack.

“There is a person in court at this present moment,” he said, at the same time turning and looking directly at Ashton, “who I am told on good authority intends to bring on a criminal prosecution against the persons who took part in this lawful and eminently reasonable jettison, those of them that have survived. That is dangerous folly—more than folly, it amounts to madness. I am sure that I express the sentiments of the members of this court, and every good citizen throughout the land, when I say that the blacks thrown overboard were property and nothing else. They were cargo, as bales of cotton might have been. No charge of murder can be brought against the crew, no charge even of cruelty in any degree whatever, their actions were not in any degree improper—”

He was halted at this point by Justice Blundell, whose scowl, in the passion of this address to the court at large, he had quite failed to see, and who now spoke to him loudly and irascibly. “How can you permit yourself such animadversions in my court, sir?”

The judge had felt his heart begin to beat in his ears, a sure sign of rising blood pressure. This, instead of warning him to remain calm, increased his rage. This presumptuous young fool was reviving the nightmare of Ashton’s petition, raising questions of property and humanity, which had nothing at all to do with the issue before the court. “We are not assembled here to discuss the beliefs or the intentions of any person whatever, whether present at these proceedings or not,” he said. “I am surprised at you, sir. Do you think you are on the hustings, soliciting votes?”

Waters knew better than to attempt an answer, and in fact the pleas of counsel ended here, Price being more than content to wait for a verdict. In somewhat calmer tones Blundell directed the jury’s attention to the fact that they were there to decide whether the throwing overboard of the negroes was a genuinely necessitous act of jettison, in which case the insurers would be liable, or whether it was a fraud on the policy, in which case they could not be required to make any payment. Was there a shortage of water or was there not? How was it that the first mate on the ship, the man Barton, knew with such certainty what no one else knew until the captain informed them? Was not this strange and contradictory? Counsel for the owner had produced no evidence that the ship was foul or leaky. Barton was freed from imprisonment on the surety of the claimant. Did not this taint his evidence and incline greater belief in the declaration of James Porter, the interpreter on the ship, who had nothing to gain by lying, that in point of fact there was no shortage of water at all?

The jury, thus guided, came in a matter of minutes to the conclusion that the claim of lawful jettison had no substance and therefore the insurers were released from all obligation of payment.