The Quality of Mercy

22



Jane was to see Erasmus Kemp again sooner than she had expected, before his departure for Durham in fact, as the case against the surviving members of the crew of the Liverpool Merchant was heard at the Old Bailey only three days after the quarrel between brother and sister.

Despite the constraint that still existed between them, she accompanied him to the courthouse, though with divided motives, as she fully admitted to herself. There was the long habit of support for her brother, her sympathy for the cause so dear to him; and there was the wish, felt no less strongly, to see Erasmus again—for it was certain that he would be there.

It was not the first time that Ashton had attended a hearing at the Court of King’s Bench, but he had never lost his sense of the strange isolation, in the midst of the bustle of the city, that the Old Bailey conveyed as one drew near to it. Once one had turned off the busy thoroughfare connecting Newgate Street and Ludgate Street, the only approach to the courtyards and outbuildings, and to the Sessions House itself, was by means of a single narrow alleyway, and as one proceeded along this the rattle of wheels and the cries of the street vendors fell away behind one.

They emerged onto the Sessions Yard, where a considerable number of people had already gathered, most of them there to watch the proceedings and hear what they could, but there was a scattering of turnkeys and court attendants and some witnesses waiting to be called. Ashton saw Barton and James Porter, the ship’s interpreter, among them.

They passed through the gate into the bail dock, where what was left of the crew of the Liverpool Merchant were chained and under guard. Hughes was the only one of them to meet Ashton’s eye as he passed, and it was the same look of ferocious hostility that he remembered from the time when he had questioned the men in the prison yard. They crossed the dock and were admitted through one of the gates flanking the portico and led by an attendant to the places reserved for them in the gallery overlooking the court.

Erasmus Kemp was there already, in the balcony on the other side of the courtroom, almost exactly opposite them. He and Ashton inclined their heads in the barest of greetings. Jane made no motion of greeting, but when she raised her eyes to look at him she found his gaze fixed on her, the space between them was canceled, and it was as though they were continuing some conversation, close together in a pause between words. Just so he had looked at her on the terrace of Bateson’s house, excluding all the other people there, all the rest of the world. She was stirred by the memory and by something close to pity for him in his tenacity, so strong as to make him seem helpless, though still she was flattered by it. Thereafter she did not meet his eyes again.

The judges now entered from the upper floor, where they had been assisted in donning their scarlet robes and full-bottomed wigs. All those present in the courtroom rose to their feet as the Lord High Admiral, with the Lord Commissioners on either side of him and the Chief Justice of Common Pleas following behind, mounted the steps to the judges’ bench and took their places. When they were seated the High Marshal of the Admiralty advanced, bearing the emblem of authority, the replica of a silver oar, which he laid on the table before the judges. The jurors, having been assembled in the Yard, now entered and took their places in the enclosures on either side. The crier called for silence and Kemp’s lawyer, Pike, rose to open the case for the prosecution.

The first witness to be called was one Captain Philips, a stout, bluff-featured man recently retired from the sea and resident in London. He related to the court that in the year 1765, while passing through the Florida Straits bound for Norfolk, Virginia, he had anchored at a latitude of some 27 degrees, south of a point on the coast known as the Boca Nueva. He had sent a party ashore to take water from the fresh springs he knew to be there, and gather firewood and shoot any game they came across. These men had returned to tell him of finding the remains of a ship named the Liverpool Merchant, and he, aware of the general belief that the ship had been lost at sea with all aboard her, had gone ashore himself and found the story to be true. He had felt it his duty, on returning to London, to inform the ship’s owner, Mr. Erasmus Kemp, of the discovery.

Horace Stanton, for the defense, endeavored to show that the mere discovery of a wrecked ship did not prove any intention on the part of the crew to remain in Florida and evade justice. “Shipwrecks occur, do they not?” he said to the captain. “Is it not true that those waters are treacherous to ships that come too close in?”

“Yes, sir, so much is true.”

“So there is no reason to suppose that it was other than accident, that the ship was wrecked in some storm, making it impossible for these people to return home?”

At this point Pike intervened. “Please tell the court the circumstances in which the ship was discovered.”

“Strange circumstances, sir.” On the captain’s face there had come a look almost of incredulity, as if even now he could not fully reconcile himself to the improbability of his account. “I will never forget it,” he said. “Out of sight of the shore she was, tilted over in the bed of a dry creek, in the midst of swamps and lagoons, where no man would ever expect to see a ship. Her name was still there, on the scroll.”

“How did the vessel get there, do you suppose?”

On Stanton’s objecting to the introduction of supposition into the evidence, Pike rephrased the question. “How, in your professional opinion, could the ship have been in that place?”

“There can only be one explanation,” Philips said. “She must have been hauled up the channel by men pulling from the banks on either side.”

“But you have testified that the bed of the creek was dry when you came upon the ship,” Stanton said. He turned and addressed the judges on the bench. “My lords, this witness’s evidence is contradictory and cannot be believed.”

Philips’s face had reddened. “Take care who you call liar, sir,” he said. “That coast is full of creeks and inlets, large and small. I know it better than most. The courses of the water are constantly changing. The creek was broad enough, it could have held deep water at one time.”

“Only one way the ship could have got there,” Pike said, with expressive looks at the jury. “And only one reason for taking it there, so far out of sight of the shore. It is obvious that the aim was to conceal all traces of the vessel. Were these the actions of men who intended to return and yield up the cargo they had stolen?”

In the course of further questioning of the witness, Stanton elicited the fact that the crew alone would not have been able to tow the ship so far. All the men available—and the women too—would have been needed for such heavy and prolonged labor.

“So,” he said, “whether hale or sick, whether black or white, all took equal part in this hauling of the ship. Whatever the purpose—and this we can only speculate about—it is very clear that this cargo, these stolen goods that my learned friend speaks of with such nonchalance, were in fact the people of the ship. They heaved on the ropes along with the others. They outnumbered the crew—they could have taken flight, but they did not. Without their cooperation the enterprise would have been impossible. A strange notion of cargo, my lords, a strange notion of theft.”

Philips stepped down and Kemp was called. He descended from his place in the gallery and went to stand at the bar and take the oath. He related how Captain Philips, conceiving it to be his duty, had come to his London house and told him of the finding of the vessel in the wilderness of southern Florida, and of the strangeness of the ship’s position, so far from the sea and hidden from sight. The news had come as a shock to him. For twelve years he had thought the ship lost at sea with all aboard her. The loss of the ship had brought ruin to his father, who was hoping to recoup his fortunes by selling the slaves in Jamaica and returning with a cargo of sugar to sell on the Liverpool Exchange. His father’s death had followed soon after the loss of the ship. On the strength of the news brought by Philips, he had thought it probable—indeed, almost certain—that men who had taken such care to cover their tracks must have intended to take refuge in that waste and remain there. And since they could not have gone far on foot in such country, he had felt sure that the survivors would not be very distant from the place where the wreck had been found. He had decided to mount an expedition, track the miscreants down, bring them to justice.

He was aware of only one person in the courtroom as he spoke, and that was Jane Ashton, who was sitting above in the gallery, looking down at him and listening to his words. No one else there mattered much to him. He believed it was just that these remnants of the crew should be hanged for their crimes, and he hoped for a verdict to that effect. But this hope, though held with deepest sincerity, took second place. The important thing was that Jane should understand his motives, appreciate the stern and heroic part he had played.

It was inevitable that this bid for her blessing should bring about certain omissions and distortions in his account of things. He stressed the high and lonely mission of justice that had taken him so far and cost him so much. He made no mention of the hatred of his cousin Matthew that had so impelled him, nor of the urge for action he had felt, the need to escape from the general unhappiness of his life at that time, of which the hatred had been merely a symptom, as he judged it now. Naturally he did not try to relate, then or in his later accounts to Jane, that he had been responsible for his cousin’s death, that he was still trying to fend off remorse for this, a remorse which he felt should be resisted, as it threatened to nullify the justice of his cause. Nor did he make any reference to the fact that his father had made unwise investments and would still have been bankrupt even if the ship had come safely home. But he was aware of no falsehood as he spoke. It was the truth of himself, purified of obscuring dross, that he was offering up to her.

And she, listening to the conviction that rang in his voice in that hushed courtroom, thought him entirely truthful, also very distinguished in his bearing and altogether splendid in his dark blue velvet suit. Until that moment the proceedings of the court had seemed largely theatrical to her, the judges in their bulky crimson robes and heavy wigs sitting on their high platform, several feet above the common mortality of the court, the opposing counsel with their gestures and glances, as if they were reciting parts. But when Erasmus Kemp started to give his evidence, these actors looked dusty and shoddy beside him. So strong was this impression that she did not pause to ask herself, though she was to do so very soon afterward—with the appearance of the next witness, in fact—quite how the accused men had merited such a relentless pursuit, why they should be required now, after all this time, to render up their lives, and in what way they could be thought to have benefited from their misdeeds. They had spent the years as fugitives in that desolate place.

No doubt was cast on Kemp’s account; the facts were clear and they were not in dispute. He was followed by Barber, the ship’s carpenter, who was brought into court still shackled. And it was the wasted frame of this man and his shuffling gait and the clanking of his fetters, so much in contrast to the fine figure that Erasmus had made, that raised questions in Jane’s mind that should perhaps have come earlier.

Under Stanton’s questioning, Barber confirmed that all the people of the ship who could keep to their feet had taken part freely in towing the vessel to its last resting place. Some of the blacks had collapsed and died as they toiled, he said, and their bodies had been left there on the banks of the creek or in the water.

“There was no time to bury them—we could not help it,” he said.

“What, you would have buried them?”

“Yes, sir, so we would.”

“But this was cargo, as the court has been told.”

“No, sir, things was different by then, we had sailed with them, sir, we needed the help of them that was able-bodied to bring the ship inshore.”

“Can you describe the relations that existed at this time between the crew and these former slaves?”

Pike interposed here to object to the word “former.” The Africans were still slaves, he said; they had been made property by the fact of purchase. The crew had no right—and no power—to revoke their status.

Stanton did not pursue this argument; he allowed a brief pause, then repeated the question in more simple terms. “What was the feeling between the members of the crew and the negroes at this time?”

“We felt we was companions in misfortune, sir.”

“Companions in misfortune,” Stanton repeated with lingering emphasis. He looked to right and left at the jury on their different sides of the courtroom, allowing his face to show no hint of his pleasure at this fortunate reply; the judges never took to a smiling advocate. “Companions in misfortune,” he said again. “I beg that you will bear that phrase in mind, gentlemen.”

He had decided, after long consultation with a reluctant Ashton, not to press a charge of murder against the crew for the throwing overboard of the sick negroes, as being too unlikely to succeed. Instead he would seek to rebut the charge of piracy on the grounds that there had been no robbery, and seek an acquittal, which would be almost as great a stroke, if they could bring it off, as it would establish that the Africans had not at any time been merchandise, had never been other than human creatures.

“Pray where was the robbery?” he asked now, addressing the judges. “Can any man say at what point in this series of events, and by what miraculous intervention, these black men and women ceased to be goods and reverted to humanity? Can we say that they were goods while lying chained below decks, goods while being cast overboard still alive, yet not goods shortly afterward when their chains were struck off and their help was asked for? Where is the evidence that these men presently on trial for their lives had intended to realize value on the black people or on the ship? If they did so intend, they took a very strange way of going about it. The fact is that the Africans were never at any time mere cargo, mere property. Their humanity was not stripped from them by the fact of purchase, as the prosecution would have us believe. The people of the crew, though not realizing this at first, came to understand it later through the experience of shared hardship. They know better now. May we not all know better now? Are we to be lesser in humanity than these very men who are being called pirates, hostes humani generis, enemies of the human race?”

Pike came forward to claim the right of reply, and this was accorded to him. The court was not on trial, he said, in spite of the endeavors of counsel for the defense to make it seem so. The learned and illustrious judges had not convened this court in order to have the nature of their humanity made subject to question. No hindsight, no shared experience, no subsequent change of heart, could be offered as matters affecting the issue. They must restrict themselves to the actions of the time. A particular morning on the deck of a particular ship. On that morning the master of the ship and all the members of the crew regarded the negroes as cargo, as it might be timber, or sacks of grain. He took leave to remind the jury that piracy was only a term for sea robbery, meaning robbery within the jurisdiction of the Admiralty. To bring home the charge of piracy, it was not necessary to show what use the defendants intended to make of the stolen goods or to calculate the profit arising from the crime. Piracy jure gentium consisted in destroying, attacking or taking a ship, or taking any part of its tackle or cargo from the owners on the high seas, by acts of violence on the part of a body of men acting without the authorization of any state. If the crew of a vessel revolted and sought by armed force to convert the ship or cargo to their own use, this also was piracy.

Stanton expressed his thanks, with some degree of sarcasm, for this clarification, and followed this with the declaration that in point of fact there had been no revolt on the part of the crew at all.

“What?” Pike addressed himself to the jury with real or pretended astonishment. “These men rose against the master of the ship, who was set in lawful authority over them, and they murdered him and they took control of the ship and they sailed away. And yet it is asserted that there was no revolt.” He paused here, glancing round with a pantomime of bewilderment, at one with the jury and everyone in court, good people all and well-intentioned, struggling to understand this perversion of reason. “This is the logic of bedlam,” he said. “This is to turn the world on its head indeed.”

“Your lordships,” Stanton said, “if we can but set aside the connotations of the word ‘murder,’ we will be enabled to see that this was no more than a scuffle, unplanned, unexpected, occurring on the spur of the moment, without thought of consequences. There can have been no intention to kill the captain.”

One of the Admiralty commissioners now spoke for the first time. “Not much comfort for the captain in that.”

Pike nodded with an air of admiration for the shrewdness and penetration of this remark. “Indeed not, my lord.”

Stanton now begged the court’s patience and asked for the first mate of the ship, James Barton, to be called to the dock in order to elucidate the circumstances in which the killing of the captain took place.

Barton was waiting in the Sessions Yard for such a call. Accompanied by the court attendant who had been sent to fetch him, he passed through the gate into the bail dock, where his former shipmates waited in their fetters for the verdict. This brought him, for the few moments of his passage, close before the men he had betrayed. And Hughes, standing with the others under close guard, the stench of his captivity in his nostrils, saw Barton pass, saw the peering glances, hatefully familiar, as if the mate had caught a whiff of something promising in the air, saw that he was dressed for the hearing in a good coat and a wig of pristine whiteness—no doubt purchased with his reward money—and made in that single moment of the mate’s passing a vow to his dark gods: if it was granted to him to escape death, he would find Barton, wherever he was, and would deliver that death to him, a death by strangulation …

Even had he known of this, Barton would not have been greatly troubled by it, feeling fairly sure that all the men would hang. Standing at the dock, he answered Stanton’s questions with notable assurance. He was becoming, he felt, a highly accomplished witness.

Yes, the intervention of the ship’s doctor, Mr. Matthew Paris, had sparked off the mutiny. Mr. Paris had raised his hand and shouted against it, against the jettisoning of the slaves. Upon this, Captain Thurso had drawn his pistol.

As always, in the desire to be on good terms with authority and to establish confidence in his own veracity, Barton went too far. “It is my belief he was hintending to shoot the doctor,” he said.

“We are not interested in your beliefs,” the High Lord of the Admiralty said, with a bad-tempered snap of the jaw. Time was passing, and he had already decided on how he would direct the jury. “Tell the court what happened next.”

“Yes, sir, beggin’ yer pardon. Before he had time to fire, Cavana threw an iron spike and it struck him in the right eye and sent him staggerin’ back. Then he fired, but he was off balance—he aimed into the midst of the men. The shot hit Tapley in the leg an’ he fell to the deck.”

“Cavana, Tapley—these men are dead now?” Stanton asked.

“Yes, sir. Tapley died aboard ship when his wound got hinfectious, an’ Cavana died later, in Florida.”

“What happened after Tapley fell?”

“The capt’n couldn’t hardly see, sir. There was blood streamin’ down his face. He was fumblin’ with the pistol, tryin’ to reload. I dunno if he reloaded, but he never fired. Rimmer stepped forward and stabbed him to the heart.”

“Rimmer is among the accused,” Stanton said. “You see how it was, gentlemen. A ship blown off course, disease below decks, desperate and driven men, a fortuitous intervention on the doctor’s part. He was not seeking to overthrow the captain’s authority, only to protest at the barbarous crime—yes, I persist in calling it so—that was taking place before his eyes. In the bloody scramble that followed, there was no concerted action on the part of the crew. One of them had been brought to the ground, there was fear among them of the captain’s pistol. They were left in command of the ship, so much is true, but that was never their design.”

Pike had only two questions to put to Barton.

“The captain went armed, then?”

“Yes, sir.”

“Is that usual on a merchant vessel?”

“No, sir, it is not, but there was feelin’ agin Capt’n Thurso. He felt hisself to be threatened. I was with the capt’n, sir, hunnerd percent. Barton is always faithful to them that is set above us.”

“Well, it does you credit. Thank you, that will be all.”

When Barton had stepped down, Stanton called his final witness, the ship’s interpreter, James Porter. He had wanted this man’s testimony to follow close upon that of Barton, who had, as anticipated, striven to make the captain appear the victim of premeditated violence.

Having established Porter’s condition as a free man, his situation aboard the ship as belonging neither to the slaves nor to the crew and the fact that he had been present on deck throughout the events of that distant morning and had witnessed the intervention of the surgeon and the violence that followed upon this, Stanton asked him if his memory of these matters was clear and obtained the assurance that it was.

“And will you tell the court the precise moment at which the captain drew his pistol?”

“It was immediately upon the doctor calling out, sir.”

“And he had raised the pistol and pointed it, he was intending to fire?”

“Yes, sir, it was clear he was intending to fire.”

“Was any move to harm the captain made before he raised the pistol?”

“No, sir, none.”

Stanton asked no further questions, allowing this emphatic negative to resound, as he hoped, in the minds of both judges and jury.

When the witness had stepped down, Pike embarked on the case for the prosecution. The facts were not in dispute. And it was facts they had to deal with, not sentiments, not pious wishes for a better world. There was no doubt whatever that at the time these events took place, both the captain and the crew regarded the negroes as property, as goods, with a precise and ascertainable value, a value determined by the most reliable indicator known to us, what people were willing to pay for them, the price per head they could command at Kingston market. It made no difference whether they were well or sick; while there was the breath of life in them they retained their value. At the moment that these men rose against their captain and took unlawful possession of the cargo, thereby depriving the owners, represented here today by Mr. Erasmus Kemp, whose moving testimony they had heard, at that same moment they became guilty of an act of piracy. In any other light than this it could not be regarded. And the penalty for piracy, when accompanied by violence, was death.

Pike paused on this, looking from side to side at the jury in their narrow enclosures. The decisive moment had arrived. “Honorable members of the jury,” he said, “the defending counsel has sought to portray the murder of the captain as something not intended, as being in the nature of an accident. But it was no accident, gentlemen. You heard the testimony of the first mate, James Barton. There was a feeling against him. Those were the words used. He went armed, against all custom and usage. Why did he do so? Because he knew that these men were waiting for an opportunity to rebel against him and do him harm. Let me remind you—and it is not disputed by the defense—that the first wounding, the first act of aggression, was not committed by the captain but by one of the seamen, the man named Cavana, who threw the spike that destroyed the captain’s right eye. Where was the need for the man named Rimmer, at present awaiting sentence, to deliver a death blow with his knife? The captain could have been overpowered and made captive. These were not men urged on by legitimate grievance. This was a mob, gentlemen, driven by hatred of authority, by envy of those fortunate enough to be possessed of property. If you find in favor of the defendants, you will be laying down a precedent of utmost danger—you will be delivering the rule of law into the hands of the mob.”

He ended there and withdrew to his place in the court. Stanton, making the final address for the defense, summarized the arguments of earlier, reverting to the scrambling and haphazard nature of the business, denying that there had been an act of robbery in any sense in which the term could be understood. He made an impassioned plea to the jury, appealing to common humanity, dwelling on the phrase that Barber had used, “companions in misfortune.” He asked them to imagine the state of mind of the crew on that morning, half starved, exhausted after managing the ship through days of bad weather, engaged in a task they knew in their hearts to be hideously wrong, under the orders of a brutal and despotic captain who would visit savage punishment on them at the smallest sign of dissent. Then the surgeon’s appearance, the cry, the hand raised to heaven. It must have seemed, to these driven men, like a divine intervention.

Stanton paused now to gather himself for the peroration. He could see nothing on the faces of judges or jury that might indicate the nature of their feelings or thoughts, but this, in his experience, was almost invariably the case.

“And then, what did they do then?” he demanded. “Did they attack the captain? No, they did not. All they did was to desist, to pause in their task, no more than that. It is not true that the first act of aggression came from the crew. You have heard the testimony of the ship’s interpreter, James Porter. The first act of aggression was that of the captain, in drawing his pistol. Before this, no harm came to anyone. It is clear that there was no initial intention of harm on the part of the crew. Where is the conspiracy in this, where the concerted uprising? Their only crime was to listen to the dictates of a higher law. I beseech the court to grant true justice to these men, the justice all of us here present would hope for in this world and the next, that which is tempered with mercy.”

On this he fell silent and returned to his place in the court. The High Lord of the Admiralty conferred briefly with his colleagues on the bench, all of whom nodded their heads in agreement. Then he addressed himself to the jury. He pointed out that while it was true that in England the offense of piracy had not been defined in any statute, a great deal of legislation had been enacted dealing with the punishment of robbers at sea. He referred them to the two most recent Piracy Acts, those of 1699 and 1721, which had further defined and amplified the nature of this felony. He would take leave to deliver the essence of the matter shorn of needless complications. If, in any place where the Lords of the Admiralty had jurisdiction, the mariner of any ship should violently dispossess the master and afterward carry away the ship itself or any of the goods aboard her, that was robbery and piracy and carried with it, if proved, a sentence of death. They did not need to concern themselves with the nature of the cargo, or whether there was intention to return, or with any subsequent relations between the crew members and the negroes. The law was very clear. Was there a mutiny? Was there violent dispossession of the master? Was the vessel carried off? They should decide on their verdict in the light of these questions.

Almost as soon as the presiding judge began his direction of the jury, Ashton knew with intense disappointment that the case was lost. It came as no surprise, though with an increase of bitterness, when the jury, after conferring briefly among themselves, standing together in the body of the court, brought in a verdict of guilty, without reference to mitigating circumstances and with no recommendation to mercy.

The crew members were led in from the bail dock to take their places before the bench. They stood facing the robed figures raised above them, whose faces and great wigs only were visible to them above the nosegays that had been placed on the table to sweeten the air and protect the judges from the stench and foul breath.

The courtroom was silenced by the crier with the time-honored words: “My Lords, the King’s Justices, strictly charge and command all manner of persons to keep silence while sentence of death is passing on the prisoners at the bar.”

However, there was still a surprise to come, and it was contained in the manner of the sentencing. The Lord Admiral did not rise immediately but remained seated and spoke to the court as a whole. “We, through the powers vested in us by the grace of His Royal Highness, King George the Third, do represent the power of the law but do also represent the mercy of the law, and in this blend lies the majesty of the law and also its mystery, as not lying within the common prediction. We hereby acquit and pardon the men Morgan and Hughes, who were for different reasons not present on deck at the time of the mutiny and therefore took no direct part in it. These men may walk free from the court.”

The two were immediately led away to have their fetters struck off by the turnkeys in the Yard. The Justice waited for some moments until quiet was restored, then got to his feet. He laid the black cloth over the crown of his wig and observed an impressive pause before speaking directly to the men standing below him, who waited dumbly for the words they knew would signal their death. In this shared knowledge they stood side by side, enfeebled by the weeks in prison, exhausted by the weight of their shackles, convicted of a crime too distant for them to recognize. Only Rimmer and Barber made the effort to raise their eyes to the figure standing above them; the others kept their heads bowed. And in the contrast made by this wretchedness with the solemn ritual of the court, the august judges in their scarlet apparel, the rhetoric of the advocates, the silver mace, emblem of authority, lying among the nosegays on the table, the Lord High Admiral’s remarks about the majesty and mystery of the law were given abundant illustration.

The law is that ye shall return from hence to the place whence ye came, and from thence to the place of execution, where ye shall hang by the neck till the body be dead, dead, dead. And the Lord have mercy on your souls.