On March 8, 1702, a ship called the _Worcester_ weighed anchor in the
Downs and so began the long voyage from England to India. Perhaps
on that very day, certainly within a very few days of that date,
the brigantine _Content_ was burning to the edge of the waters of a
Madagascar bay, and her consort from Scotland, the _Speedy Return_ was
romping toward the Comoro Islands beneath the stern and unlawful drive
of a sea brigand.
The purpose of the _Worcester_ in the East Indies was to trade, though
she did not belong to the East India Company but appears to have been
owned by a small group of investors, probably retired sea captains for
the most part. To get a swift idea of what was meant by the East-India
trade you have only to recall the Hudson’s Bay Company in Canada, for
the methods of both these great trading corporations were practically
the same. Just as the Canadian company stalked across Canada from
fort to fort, so the India company ringed the coast of India with
forts, which, like the Canadians, they called “factories” and put in
charge of an officer termed a factor. Both companies held exclusive
monopolies in their respective regions by virtue of government grants;
both maintained fleets for the exportation of native products and the
importation of English wares and supplies. Each had to meet a certain
amount of competition in spite of its exclusive privileges.
The East India Company was far more seriously challenged by rivals
than was the Hudson’s Bay Company, even in the devastating days of the
latter’s struggle with the Northwestern Fur Company. Not only England
but Holland and numerous other commercial nations of the continent
hungered for the loot of India, and between the traders representing
all these conflicting greeds an almost continuous state of warfare
prevailed, which more than once drew in the governments themselves.
Not only foreign competitors harassed the English East India Company,
for among its annoyances was what was called the “interloper,” the
English trader who poached in their preserves, in defiance of law,
to such an extent that not a few considerable fortunes were thus
established. But the company did not always pursue these trespassers
with the severity which they might lawfully have used; local conditions
on the coast made another English ship, even an interloper, not
unwelcome, and at such times these gentry were tolerated and even
welcomed with a surprising friendliness.
In addition to the continentals and the interlopers, the Scotch
African-Indian company had, as we have seen, following the wreck of the
Darien colony, begun to send its ships out for a share of the Indian
spoils, two of which ships, through the unwitting kindness of Captain
John Bowen, had just been prevented rather forcibly from troubling the
sleep of the English company.
The status of the _Worcester_, then, was that of an interloper, but in
one of the more genial humors of the monopolizing company, and Captain
Thomas Green, her commander, had reason to believe that it would not
seriously molest him as he sought to pick up a couple of hundred tons
of more or less profitable cargo.
An old, slow, lead-sheathed craft was the _Worcester_, formerly in
the whaling business. She was about a hundred feet in length and
twenty-two or so feet in breadth, and carried a crew of thirty-five
men. Tom Green, her master, was an honest old sea dog, thoroughly
loyal to his owners and to his vessel; the admirable sort of man who
does Britannia’s drudgery at sea, happy if at last he can step off
his quarterdeck with all the limbs he had when he first went up the
gangway as a ’prentice, and content to sink into a permanent armchair
on the sunny side of a cottage close to tidewater and the lanes of
sea trafficking. And but for John Bowen, it is reasonable to suppose
that Tom Green would at length have achieved his modest, commendable
ambition.
Their objective was Malabar by way of Delagoa Bay. It took her five
months to get from the Downs to Delagoa. Here they stayed long enough
to build a sloop to be used in river work at Malabar, the materials
for which they had brought with them from home. On November 15, after
a voyage of a little more than eight months, she came to Anjango (now
Aniengo) at the tip of the Malabar coast, where Captain Green politely
put ashore to pay his respects to Mr. Brabourne, chief factor of the
English East India Company’s fort at that place, and incidentally to
make sure that the company was still in the generous notion of living
and letting live. One never knew when its policy might suddenly veer
like the weathercock on a church steeple.
Happily, Mr. Brabourne and his gentlemen were as genial as a June day.
Madeira and compliments were enjoyed together and Green went back to
his ship, rejoicing in at least the tacit consent of Mr. Brabourne to
his trading operations. With that load off his mind, he sailed for the
Keilon River, a few leagues farther on, and there established contact
with Cogi Commodo.
We have mentioned big rival corporations and interlopers, but the
coveted Indian trade produced another institution,--the petty
’longshore merchant, white or black, most generally a follower of the
Prophet from some of the far eastern Mahometan countries. After he had
prospered above the peddling stage, this gentleman usually established
a little warehouse at the mouth of some one of the sluggish rivers
emptying into the Arabian Sea, and there conducted a business which
was for the most part illegal. Briefly, he was a purveyor of stolen
goods brought to him by the pirates which infested those regions; a
“fence” as it is called, and without whom piracy would have been almost
impossible, for if a pirate could not dispose of the cargoes he took
of perishable or ordinary mercantile stuff, his activity would have
been immeasurably curtailed. For instance, before he made his lucky
strike, Kidd took tons of butter, cargoes of coffee, opium enough to
give his men a thousand years of delightful dreams, far more than could
be used aboard his ship and which would have been useless without the
obliging fence. This very same Cogi Commodo boasted to the crew of the
_Worcester_ that he was “merchant” for Kidd. The Cogi was suspected not
only of buying from the pirates but of informing them of the movements
of promising ships and even of assisting in their actual assault and
capture. Not that Green wanted any such service as this from Commodo;
he used him on the more legitimate side of trading, for the Cogi,
like the rest of his kind, continually gathered in native products
from under the noses of the English forts, for the prime purpose of
supplying interlopers. You can see the Cogi was quite an irregular
sort of gentleman on whichever side you took him.
The _Worcester_ came to the Keilon River on November 21 by way of
Callequilon; December 22 she was back at Callequilon, then made a big
jump of a hundred or more miles up to Cochin, reaching there January
10, 1703, just about five years to a day after Kidd had made his big
capture of the _Quedagh Merchant_ in those very waters; and but a few
months after the unfortunate Captain Weoley had made his escape at that
place from the wicked John Bowen. Green’s northward trading seems to
have been hurried, for two weeks later he was at Calicut, a month after
that back at Cochin, and by March 8 was again anchored in the roadstead
of Callequilon.
Life on a trading ship on the coast of Malabar in the morning of the
eighteenth century was not easy. Sickness kept a large number of the
crew helpless at all times. Doctor May, the ship’s surgeon--a young
sawbones of twenty-six years--had so many patients that he had to put
up a crude hospital ashore at Callequilon, where the sick were taken
from the ship and left while the vessel worked up and down the coast.
Most of the time it was just a job of hard work, either in sailing or
in stevedoring the piles of cargo which would be collected at one place
and another by various Cogis to await the coming of the _Worcester_.
The busiest man aboard was then the supercargo, on whom fell the
burden of handling the cargo, keeping the accounts and looking after
the financial interests of the owners. The work and worry of it all
gave the prevalent fever when it struck him added force, and the
supercargo slipped through an open port in a weighted canvas shroud to
join the half-dozen or so of his companions who had already preceded
him to the muddy hammocks that swing eternally in the tides of the sea.
But there was a lighter side. Even in Keilon a sailor could spend his
wages, or gape about at the elephants, the palanquins, the ladies
with rings in their noses or stare uncomprehendingly at the fantastic
ornamentation of the ancient temple of Shiva. Captain Green himself
found time for the social turn, and so ingratiated himself with a lady
of the country that she gave him a well-trained young black slave,
Antonio Francesco, to be his personal servant. Green thought a great
deal of the lady’s kindness, for he took Antonio aboard and to make
sure he would not lose him, chained him to a spike in the forecastle
floor, in something of the fashion that seamen are wont to bring home a
pet monkey.
All of this was very well to be sure, but April was to prove a month of
hard luck for the _Worcester_. On the tenth of that month the sloop was
driven ashore in a gale and destroyed. In the same storm Green tried to
make Keilon, but was forced to anchor between that place and Anjango.
Here his cable parted and serious leaks were sprung in his hull. Amid
all that, however, he was mannerly enough to fire five rounds in
salute to the _Aureng-Zeb_, another trader which happened by and who,
as politely, returned the compliment. Green was so worried about the
condition of his ship that when the weather moderated he invited the
master and mate of the _Aureng-Zeb_ to come aboard and survey his ship.
Their unanimous judgment was that the _Worcester_ was then unseaworthy
for navigating to England.
That finished the trading cruise. Adverse circumstances had curtailed
the enterprise, yet Green had made, on the whole, a profitable stay in
Malabar. He had operated in a maximum distance of about one hundred and
fifty miles; that is, from Anjango to Calicut, though his dodging back
and forth had added much to his mileage. In ordinary event he would
have been nearly ready for home. His most serious reverse was in the
wreck of his sloop, which his owners had hoped he would be able to sell
and convert into goods when he should have finished with her services.
Mr. Brabourne, of the fort, again most obliging, advised Green to go to
Bengal for repairs, and on the fifth of May, 1703, the _Worcester_ set
forth to pump her way to the shipyards there.
Captain Thomas Green might fairly claim a grudge against the elements.
They buffeted him in Malabar to the loss of his sloop, the damage of
his ship, the lessening of his trading, laid his keel up for a long
time in careen at Bengal, and now on his way home to England, after one
would suppose the weather had done its very worst for that voyage, it
met him off the coast of Scotland and in a seething fury of wind and
wave hurled him into the Scottish port of Leith, where he was fain to
run for shelter. Alas! he had fled the fierce wrath of nature to the
yet more terrifying wrath of man.
Scotland, in 1704, when the _Worcester_ was thus blown into the port of
Leith, was again having her troubles, all of which were turning around
the hoodooed Scotch African-Indian company. That afflicted corporation
had already marked the _Content_ and the _Speedy Return_ off the
register as unaccountably missing, when behold a sister ship of these
two, the _Annandale_, imprudently venturing into the Thames, was seized
by the English East India Company in the assertion of its exclusive
rights in the Indies, one of the impudent things which so endeared that
company to the rest of the trading world. Now add that grievance to
the dreary Darien affair, already laid, as we have seen, at the door
of the English company, and you can understand why “Annandale” became
a slogan in Scotland and the focus of all its hate. Public opinion
whirled the Scottish authorities into action. These petitioned the
return of the _Annandale_, but in vain; the tenacity of the East India
Company, capable of holding a country of hundreds of millions of people
in its fist, regarded the Scotch protest as lightly as some folks do
their debts. To have and to hold was its motto, though all the kilted
Highlanders beyond the border skirled in a fury of revenge. The Scot,
however, is no baby; nay, he has considerable iron in his own system,
and a turn for definite action himself. “Verra guid, mon,” said the
north to the south, “verra guid; ther’s an English ship cam’ into
Leith; you keep the _Annandale_; we tak’ your Englishman.”
Which they promptly did--none other than the _Worcester_.
Captain Green was certainly now in a pickle. The Scotch government
seized his ship and now he had to stand around with his hands in his
pockets and wait the problematic issue of all this international
bickering. And the thousand pounds’ worth of patiently collected cargo,
the fruit of the peculiar industry of many Cogis--that, too, was sealed
by the authorities so that a man dare not take as much as enough for
a cup of coffee from the hold. If he had been an East Indian Company
ship he might have seen a little sense to it all; but what cared he for
either the Scotch or the English companies? Very little, indeed, and
yet--well, it was beyond words, even purple maritime words. He plumped
down in his cabin to wait.
Now, hard by the docks in Leith there was a little parlor groggery
kept by a widow named Seaton, who with her nineteen-year-old daughter,
Anne, thus labored to make an honest livelihood. A widow, a lovely girl
and lots of good Scotch whiskey all under one roof,--why the situation
seemed just specially made for the advantage of George Haines, the
steward of the _Worcester_. What had looked at first like a long,
monotonous detention on a seized ship now suddenly brightened with the
most attractive promise. George accepted the opportunity so readily
that shortly he became almost a part of the Seaton home, and in an
admirably brief space of time nothing less than the accepted suitor of
the fair Anne herself. That meant, as any one could see with half an
eye, that eventually George Haines would be the proprietor of this neat
little business. No more stewing around the East Indies for him; that
was all in the past, or very soon would be. Well, truly, it is an ill
wind that blows nobody good.
Of course, Mrs. Seaton had neighbors, and just as much of course she
talked to them about her business, her customers and her customers’
business. One of these neighbors was a dear old lady by name Mrs.
Wilkie, also a widow. She was one of those sad folk who flit down to
the docks to see every ship come in and who speak to every sailor that
steps ashore, in the quest of loved ones long silent upon the far-off
seas. Every one knew Mrs. Wilkie’s story. She was the mother of a
bonnie lad by the name of Andrew, who some three years before this, had
gone as surgeon on the ship of Captain Drummond, the _Speedy Return_,
for a voyage to the Indies, and who, after one letter from Madagascar
by way of Mauritius, had not been heard from this long time; neither
he or his ship nor his captain. And now the old lady lived with her
other son, Jamie, a tailor, and whenever a ship came into port from the
East Indies, no matter what the hour of the day or night, the sailors
would see a little old gray lady waiting to ask them for news of the
_Speedy Return_. To Mrs. Wilkie, then, Mrs. Seaton made mention of the
_Worcester_ and of George Haines, its steward.
Mrs. Wilkie and Jamie hastened together to the widow Seaton’s to
interview George. They found him in the parlor, comforting himself with
a big tumbler of grog. Jamie bought a drink and talked easily of the
voyage and hoped that George and all the others had fared well. This
seizure business,--that was bad, of course; but it would all come out
all right. George felt it was coming out all right for him as it was.
Jamie coughed, shifted a bit in his chair and at length came out with
the vital question: “Would you be meeting a ship in your travels, the
_Speedy Return_, captain Rab Drummond, out o’ Glasgie?”
Mrs. Wilkie’s heart waited. The clock ticked loudly. The widow Seaton
paused with her potato-paring knife poised in midair. On the kitchen
threshold merry-faced Anne stopped and gazed as though she were
watching a stage play.
“Sink me! What have I to do with Captain Drummond?”
Bang came the tumbler on the table; the steward’s loose, foolish
jaw was shoved forward defiantly. Yet what was there about him?
Something--yes, the steward is in the grip of a great fear. Since
frequenting the widow’s shop, George had heard quite a lot about
this Captain Drummond, because the captain, young Andrew Wilkie,
and doubtless many others of his crew had belonged in this city of
Edinburgh, of which, as you know, Leith is the port and a suburb. Folk
were always asking him about this Drummond till he was fair sick of it.
He leaned over and stuck his fat lips against Jamie’s ear. “While we
was on the coast of Malabar,” he began with solemn, nautical preface,
“a Dutch ship told us that Captain Drummond, out o’ Scotland was
turned--a pirate!” He leaned back and gazed at Jamie’s astonished face.
Yes, he had achieved an effect; maybe he could get another. “Aye, sir,
so we manned our sloop, we did, putting guns and patereroes aboard, and
got ready to give the Scot a pound or two o’ lead.” Now the creeklet of
his imagination went dry. “He never came” he ended rather ineffectively.
Jamie was beaten. He drew off his artillery and departed to allow a
light fire ship to come alongside. But all Anne got for her wiles and
her work was, as she put it, “He found they had a design to pump him;
but they should not be the wiser of him, though what he had said he
had said.” He was no ship to be pumped, was George; but you see the
implication that there was water in the hold.
Among the patrons of the house was a jolly old gunner, Will Wood, who
used to come down from the fort in all his splendid regimentals to
drink toddy and tickle the chin of the laughing Anne. He got interested
in the “pumping” of George Haines, steward of the seized ship which lay
outside at the dock, and resolved to try the bluff, hearty, man-to-man
approach. He loaded George up with whiskey until he “fell into a
melancholy fit,” from the burnt-sienna depths of which he emitted this
frightful croak: “It is a wonder that since we did not sink at sea,
that God did not make the ground open and swallow us up when we are
come ashore, for the wickedness that has been committed during this
last voyage on board that old bitch _Bess_.”
By the “old bitch Bess” he meant the _Worcester_, whose spars might be
seen through the parlor window dripping in the mournful rain.
Will Wood slapped the steward’s knee. “Come, my lad, take a turn on the
links; you’ll feel better; what’s a bit of wet?”
Dolefully George tottered out of the hot parlor. Behind him the genial
artilleryman turned and winked portently at the watching company.
“Now’s the time,” said the knowing wink; “we’ve almost got him.”
The pair strolled out by the castle, they walked on the golf links;
they became intimate. Said jolly Will Wood at the right moment, “I
heard a friend of mine say that he knew a man who got it right from
a fellow that could swear to the truth of it, that the uncle of your
first-mate, Madder, was burned in oil for attempting to set fire to the
Dutch ships at Amsterdam.”
George stopped in his walk. He raised a finger toward the sky--a
reeling, waving finger--in solemn affirmation. “If what Mr. Madder had
done during this last voyage,” he declared slowly, “were as well known,
he deserved as much as his uncle had met with.”
Under all the circumstances, that remark could only mean one thing--the
_Worcester_ had been concerned in the piracy of the _Speedy Return_
and the murder of her crew, who were then supposed to be all dead.
Incredible as it may seem, this drunken maundering of steward Haines,
coupled with the unintelligent suspicions of the Wilkies, the Seatons
and others, passed from the water front to the city until it reached
the officers of the law who--no more intelligent--made it the basis for
a charge of piracy and murder against Green and his crew, upon which
they were all arrested and marched off to the dark holes of the old
Tolbooth prison. The _Annandale_ was forgotten; the _Speedy Return_
and Captain Drummond took its place, and all Scotland roared with one
voice for vengeance.
Why did George Haines thus seek to link the _Worcester_ with the piracy
of the _Speedy Return_? The conversations above reported between the
steward and the Wilkies, the Seatons and Wood are exactly as given on
the subsequent trial of Captain Green. At that trial the lawyers for
Green and the rest of the crew accused with him of the piracy of the
_Speedy Return_ and the murder of Drummond, sought to explain Haines’
motive by his love affair with Anne Seaton and his desire to become
proprietor of the little Seaton tavern. They also laid much of his
talk to the influence of liquor. There is something in both of these
arguments, but it is probable that a greater motive than these two
dominated him, and that was fear. With the state of the public mind
in Scotland in the condition it was about Darien, the _Annandale_,
the English and English East Indian traders, it is not unlikely that
a notion blew about the water front when the _Worcester_ came in to
Leith and was seized that perhaps this was one of the hated East India
Company ships, from which it was just a short step to the suspicion
that, as such, or at any rate as an Englishman trading in the East
Indies, the _Worcester_ _might_ have had a hand in the disappearance of
the long overdue _Speedy Return_. Evidently, reasoned the Scotchmen,
the _Speedy Return_ has come to harm; nobody would harm a Scotch ship
in the Far East but some Englishman; here was an Englishman from the
Indies; ergo, he probably had pirated the Scotchman. This thought, more
or less tangible, was all about the _Worcester’s_ men as they loafed
on the water front. In those times, such was the rigor of the criminal
law and the uncertainty of acquittal, innocent men would rush to turn
state’s evidence and take the lesser evil of imprisonment rather than
execution. That this was the condition of things would seem to be shown
by the fact that Doctor May, the _Worcester’s_ surgeon, became state’s
evidence, as did the slave Francesco and another black who had been
shipped at Malabar, and as many others made confessions as could hope
for leniency. This fear, then, working on the steward’s liquor-muddled
brain, together with his desire to ingratiate himself with the Seatons,
brought about the last act of a play opened by John Bowen in the Bay of
Antongil in Madagascar.
With all of Scotland from north to south and east to west crying for
vengeance, very little time was lost in bringing Captain Green and
all the rest of his men, excluding the doctor and the two blacks, and
including George Haines, who somehow missed the privilege of becoming
queen’s evidence, to their trial in the old court in Parliament Square
in Edinburgh.
On March 5, 1705, the men of the _Worcester_, with the sturdy and
indignant Green at their head, were marched between the bare bayonets
of the City Guards from the Tolbooth to the old courthouse in
Parliament Square, there to stand their arraignment and trial. George
Haines’ liquorous eloquence is about to prove the efficient cause of
many and tragic results.
A great crowd clogged the court benches and galleries, so much so that
one could not have swung a thought, much less a cat, about one. The
plain attitude of these blue-bonneted folk was that the accused and the
troubles of Scotland were identical. It is fatal to become a symbol.
Beneath the bench was the lawyers’ table, where now court servants
were putting quills and papers and books. Already the prosecution
is gathering about their end of the table,--a long string of grave
lawyers, under the leadership of Procurator Fiscal, Alexander Higgins.
And who will stand up for the poor sailormen? An astounding array, a
most impressive alignment of legal ability will. Sir David Cunningham
heads the defense, but he will soon drop out and be succeeded by Sir
David Thoirs, with whom will be Sir Walter Pringle, Mr. David Forbes,
Mr. George Alexander, Mr. John Spotswood and Mr. John Elphinstone. Why,
these are names of as much professional weight as are those who will
oppose them on behalf of the Crown.
How inspiring to behold this important company of lawyers quick to the
defense of the forlorn strangers by the power of a pure love of justice
and a jealous wardenship of the bright honor of the Scottish Bar! For
how else could these sailors--worth not a penny between them, and with
their captain but little wealthier--call to their side these advocates
who had won even the dignities of knighthood in the contests of the
forum?
For a distressingly cold matter of fact, however, there were several
other motives which conceivably prompted the efforts of the gentlemen
for the defense, and a way that you would never guess was the one
by which they entered the court as procurators (attorneys) for the
defense, and that was--but wait, let us not anticipate.
Sir David Cunningham smiled at Sir David Thoirs and presented his
snuffbox; Sir David Cunningham bowed to the Procurator Fiscal and did
not offer snuff. Mr. Procurator Fiscal could afford to overlook a
little thing like that, for he felt this was to be his hour.
Presently the macers came in and the people shuffled to their feet and
stood while the Judge of the High Court of Admiralty with his string
of “assessors,” or specially appointed assistant judges, all in their
scarlet-dappled gowns, solemnly embanked themselves on the seat of
authority.
The judges sat; every one but the prisoners sat, and then Mr.
Procurator Fiscal, née Higgins, arose, conscious of the spotlight, and
with orotund voice emptied himself of two tremendous indictments, alike
in word and effect; one directed at one group of defendants and the
other shafted at another group. Canny fellow, this fiscal; he split the
defendants so that, if by mischance one section were cleared, he might
have better luck with the other. Evidently he was an impartial and
fair-minded prosecutor.
If it were not that many men and perhaps some women have been hanged on
them, those old indictments would be the law’s best joke. Here is what
might be called the Fiscal’s charge proper:
“That upon one or other of the days of the months of February, March,
April or May, in the year 1703,” the _Worcester_ “did encounter or meet
with another ship or vessel, sailed by its own men or crew, upon the
coast of Malabar, near Calicut, and the said vessel bearing a red flag,
and having English or Scots aboard, at least such as spoke the English
language”; which red-ensigned ship Captain Thomas Green and his crew
first attacked with their sloop, and afterwards with the _Worcester_;
that the defense was overcome, the defenders slain, their bodies cast
into the sea and their ship looted.
Notice the fine explicitness of this indictment. On any one of the days
of four months, in a vaguely indicated region, the defendants attacked
a ship carrying a red flag and manned by English-speaking sailors. The
implication was to be gathered that the ship was the _Speedy Return_;
but the prosecution could not quite go so far as to paint a name on the
bows of the red-flagged ship.
The job of defending against this blanket charge probably looked too
great to Sir David Cunningham, for he drops out at this point and the
load falls back on Sir David Thoirs and his colleagues.
In addition to the charge, the indictments set out, through several
pages of close print, the entire evidence which the Crown expected to
prove. A great rigamarole, this, containing a particular recitation
of everything that George Haines had said to the widow Seaton, her
daughter Anne, Will Wood of the artillery, and Jamie Wilkie, with which
we are already acquainted.
Incorporated with all this, was a long-winded yarn by the ship’s
doctor, May, who had been granted the comfort of turning state’s
evidence, and from which it appeared that the doctor himself and some
others (among whom was the second mate, Reynolds, according to the
oral admission of the Fiscal) being ashore and hearing the firing of
guns, came to the water’s edge and saw a captive ship riding at the
stern of the _Worcester_. The cannonading had ceased by that time, so
the surgeon went aboard, where he found the decks of the _Worcester_
littered with goods. He asked the reason of it all of one of the
crew, whereupon John Madder, first mate, overhearing him, turned
angrily to the doctor “in a tarpaulin temper” as the doctor says, and
exclaimed, “D--n you! What have you to do to inquire? Meddle with your
plaister-box!” The surgeon then went down to his “chest” and called for
the wounded to dress them; three of whom, “Antonio Ferdinando, and one
Duncan McKay, now dead, and another” came for treatment. These refused
to tell him how they came by their wounds “whereupon the chirurgeon
refused to dress them if they would not tell him how they got their
wounds, and the said John Madder came to the chirurgeon in a passion,
and asked what his business was to ask so many questions, when he did
see the wounds so plain before him, calling him a blockhead for not
dressing them,” and winding up by ordering the doctor ashore. There
the surgeon met the ship’s interpreter, hired locally for the sojourn,
who told him that some of the crew of the _Worcester_ had brought the
captured ship into the Keilon River and sold it to Cogi Commodo.
Such were the indictments, and they were so drawn because of the
peculiar nature of the jury’s verdict under the Scotch practice, which
did not find the fact of guilt “as charged,” but merely the truth of
each item of the evidence, leaving to the court to pronounce the legal
significance of those findings. It’s a jumbled-up thing and would
take a treatise to explain. Some historians charge that this form of
verdict was the child of political skullduggery and framed first to
catch covenanters and other radicals for whom juries were showing too
much sympathy and were acquitting on the general verdict; the idea
being that a jury would have to find as a fact that Dougal was meeting
in a bog with his confreres, while the judge could remove from the jury
the temptation of turning in “Not guilty” by reserving to himself the
declaration of the legal import of the finding of fact as to Dougal’s
actions.
Next, after arraignment the indictment (we refer to it in the singular
as both documents were of the same effect) must be approved by the
judges; that is, the court must declare that if the evidential facts
set out in the indictment are proved, such facts will make a proper
charge and, if found by the jury, will be sufficient to convict.
Obviously, then, the big battle of this campaign must be fought across
the indictment. Alec the Fiscal, with his army, will struggle to get it
approved; Davy Thoirs and his gallant legion are ready to break their
hearts in an effort to get it condemned. The actual trial will not be
important, for if the indictment be held good, the Fiscal’s witnesses
will simply recite what is already written in that indictment, and all
the jury will be able to say will be that sometime in February, March,
April or May, 1703, the _Worcester_ was off the coast of Malabar, that
the ship’s doctor heard but did not see firing, that he was told the
prize was sold to a Malabar merchant; that a drunken sot babbled in
a widow’s house, and the court will have already pledged itself to
declare those circumstances constitute piracy, robbery and murder.
Three occasions, March 5, 7 and 13, mark the chronology of this high
forensic conflict. Its most lucent presentation requires that the time
element be disregarded here, and the arguments put together as a whole.
The debates were oral but we know what passed because, according to the
fashion of the time, what was said in court must afterwards be put in
writing by counsel and given to the clerk “to be entered upon the court
books.”
Choosing our own time arrangement, then, first the defense attacked
the jurisdiction of the court to hear the case at all. It was argued
that the alleged crimes were committed on the coast of Malabar and by
Englishmen, therefore the accused should be sent to England for trial.
Alec the Fiscal countered that the crime charged being piracy, and
pirates subject to arrest anywhere, the place of arrest and not the
place of offense determined the court’s jurisdiction,--what you might
call the geographical boundaries of its power. What Alec the Fiscal is
thinking of is the indisputable principle that pirates actually in the
act of crime may be taken anywhere. That is not the same--and he must
have known it--as a presumably innocent ship being informed against
on suspicion. English admiralty practice was somewhat of a bar to the
Fiscal’s theory, so he kicked the English admiralty courts out of the
window, saying, “as for what may be the custom in England, it doth not
concern, nor can be any rule for us.” Looking at it that way, of course
the judges had little trouble finding themselves competent to arbitrate
the fight. Roars of delight from the Darien stockholders.
Second, the gentlemen of the defense now threw their weight against the
indictment itself. They urged that it was too informal, too general,
too indefinite; that it did not specify day or place, and only by
far-drawn implication charged that the vessel pirated was the _Speedy
Return_. Here’s the exact language of their protest:
That the libel (indictment) was irrelevant, as being general and
indefinite, not condescending (stating) upon the name, designation,
or any other sign or evidence by which the ship alleged to be seized
might be particularly distinguished, nor yet the persons’ names
alleged to have been murdered, or to whom the ship and goods robbed
did belong; which seem to be absolutely necessary in all such criminal
indictments, not only as a requisite in form, but in equity and
reason; without which, persons accused should be in great hazard
from general and indefinite libels, and precluded from their means of
defense, which otherways are obvious, when the accusation is certain,
special and pointed.
Strong, sane, splendid words! Cutting through the fog of passion and
prejudice like a clear, pure beam of sun. Whatever may have brought
them into the case, Davy Thoirs and his men are here the mouthpieces of
the law in all its majestic wisdom.
How did the Fiscal meet this smashing onslaught? He dodged. “He had
informed as definitely and closely as the thing would allow,” he
whined, “for what sense or reason is there, that the prosecutor should
be made to state positively on day and place, in crimes that are crimes
at all times and everywhere; unless it be for the very reason that
the defender, acknowledging the crime, offers to purge himself by the
exception of alibi?”
Hardly credible, is it? A prosecutor should not specify the date and
place of a crime lest the defendant prove he was somewhere else at the
time. This is the atmosphere, surely, of Alice’s Wonderland. Why, a
defendant might actually have been somewhere else than at the place of
the crime, and what would a poor Fiscal do then? Sir Patrick Home at
the bar rolled a pathetic eye up at Sir John Home on the bench. What
will happen in Scotland if people are going to insist on such absurd
propositions as that advanced by the defense? Well-a-day and two Alacks!
The judges would consider the matter.
It did not do to make any false moves before Davy Thoirs, and this is
just what the Fiscal did when he admitted that John Reynolds, one of
the defendants, was ashore at the time of the attack. Swift, hard,
the defense hit this point. Under that practice one defendant in a
criminal action could not be a witness for a co-defendant until “so
purged from being _socius criminis_ (a fellow criminal)” as to be “put
in case to be a witness.” If Reynolds could be cleared of the crime he
could testify for his fellows. For a situation of that sort the law
provided that one defendant wishing to use another as his witness was
to “raise an exculpation” on behalf of that witness; that is, he would
offer to prove such and such facts concerning the desired witness,
upon which a trial was to be had, when, if the party were cleared or
“exculpated” he could then take the stand and return the compliment
to his erstwhile co-defendants. On behalf of the accused, the defense
now offered to exculpate and thus qualify John Reynolds, on the ground
that, as admitted by the Fiscal, he was on shore at the time of the
crime charged and therefore not _particeps criminis_.
The Fiscal roared. “You can’t do this,” he yelled, and the noisier
he grew the vaguer his argument became; you have to positively offer
to prove Reynolds was somewhere else on some exact day or not on his
ship for four months together. My indictment may be vague, was what he
meant, but your alibi must be as specific as a bookkeeper’s accounts.
Why, that was why he had drawn his indictment so loosely,--just to head
off alibis.
The judges would consider the matter.
Why continue? It was all on that stripe.
On the morning of the thirteenth, the judges announced the conclusion
of their deliberations.
“The judges and assessors,” came the stiletto tones from the seat of
Justice, “having advised both the indictments pursued by Mr. Alexander
Higgins, Procurator-Fiscal of the High Court of Admiralty, against
captain Thomas Green” and the others, find, that “Reynolds being
libelled against as _socius criminis_, a fellow criminal, and there
being no specialty or particular ground of exculpation proponed, why he
should be previously tried repel” the offer of the defense to exculpate
him and “repel the objection against the generality of the indictments,
in regard to the nature of the crimes and find the crimes of piracy,
or robbery or murder, as libelled, being proven by clear and plain
evidence, relevant to infer the pains of death ... and remit the whole
to the knowledge of the assize (jury).”
Captain Green’s snuffbox tinkled along the floor. Sir Patrick Home of
the prosecution glanced up gratefully at Sir John Home on the bench;
the audience breathed a collective Ah! The judges rose and passed out;
their gowns were more than dappled,--they now dripped with scarlet.
March 14, and the thing could be quickly finished. The assize, or
jury, was impaneled, made up of fifteen members, whose verdict was
sufficient, if found by a plurality of votes.
Mr. Fiscal first put on the stand Antonio Ferdinando, cook’s mate. He
testified through an interpreter, one captain Yeaman. After asserting
that he was twenty-four years of age, single, a Christian and the son
of Christian parents, he claimed that he saw the _Worcester_ attack
the unnamed ship “upon the coast of Malabar”, practically as set out
in the indictment, and that in the engagement he was wounded, in the
arm, “which wound he now shows to the view of all.” Sensation in the
courtroom! He said it was a running fight and lasted for three days,
and occurred between Tellicherry and Calicut. During his testifying it
was apparent that he was extremely sick, and from time to time he had
to stop and stretch at length on counsel’s table until he could recover
his strength to proceed.
Next up was Doctor May, who said he was twenty-six years old, and who,
being white, enjoyed the presumption of being a Christian. He repeated
the statements which he had given for the indictment. He said he heard
the firing while he was at Callequilon. If Ferdinando truthfully told
that the attack was at Calicut, the doctor must have had unusual powers
of hearing, for that place and Callequilon are more than one hundred
miles apart. This was a little too much for even this tragic farce, so
towards the end the doctor brazenly switched his testimony and said
that the firing happened while he was on the ship “going up the coast
of Malabar.”
Antonio Francesco, the slave, was the third to come on. He had been
chained to the forecastle floor during the firing, but was told by
Ferdinando that the sloop was attacking a ship. He added the highly
significant information that Ferdinando was only employed forty-eight
hours before the _Worcester_ left Anjango for Bengal and home! If
that were so, he was not on the ship at the time Doctor May was at
Callequilon, for that was long before the departure for Bengal.
But then, one could amuse one’s self indefinitely picking out this kind
of discrepancy among the witnesses.
James Wilkie, Will Wood and the whole Seaton circle, of course, washed
their faces and came trippingly to court to tell of the important
utterances of George Haines, and to impinge their little personalities
a moment upon the national retina.
Under the custom of that day counsel for the criminal defendant
could not give his client much help on the facts, but Thoirs went as
far as the law would allow him. He disputed the qualifications of
the Antonios, claiming that they did not own ten pounds apiece, and
therefore could not be heard to testify in a Scottish court. This was
easy for the Fiscal. “Oh,” said he, “we calculate that each has wages
coming to him from the cruise, which will total more than ten pounds.”
And the court declared the witnesses qualified! If Sir David Cunningham
knew of this ruling he must have been glad he quit.
Evening came on, yet the court sat through. The macers lit the candles,
making little pools of yellow light in the mid-March murk of the old
courtroom.
Green essayed a feeble cross-examination but could make little headway
with a weapon which requires the finest skill of the most practiced
hand, and which, clumsily used, will certainly cut the examiner’s own
fingers. As to any affirmative defense, nothing could be advanced under
an indictment of the kind laid against him, for what was there that he
could specifically approach and rebut; all he could say was no. One
thing he did advance and which carried no weight with the assize, but
which is meaningful enough for us, and that was that there was indeed
firing upon the coast of Malabar and by the _Worcester’s_ guns, but it
was nothing more than the five salutes to the ship _Aureng-zeb_.
The “probation” or taking of testimony ended. Sir David Dalrymple,
her majesty’s solicitor, rose to “speech the assize” on behalf of
the prosecution. “Forgive me,” he blandly began, after complimenting
them as persons “so discerning and faithful”, “if, after a _sederunt_
(sitting) of twelve hours ... I detain you a little longer in
recapitulating what has passed, with some few observations, I hope not
improper, before ye enclose.” Those “few observations”, invariably the
preface of the complete bore! For two hours more this fellow rehashed
the evidence, in heads and subheads until a mathematician would have
endangered his reason keeping count thereof. What a point he made of
Captain Thomas Bowrey’s code, found on the seizing of the ship! A
regular devil’s document it was. As a matter of fact it was nothing
more than a meager little forerunner of the ordinary commercial code
of to-day. The whole matter, he asserted, was “as clear as sunshine.”
Rather as clear as mud.
Midnight had chimed from the town clock when counsel for the defense
took the floor. The candles guttered in their sockets, making jumping
blotches of shadow upon the faces of the judges, heavily sunk in
their seats, fighting with sleep; in the blackness beneath the bench
the macer drooped forward in his chair; Dalrymple left the assize
in various postures of exhaustion, some with their heads thrown far
back, yawning at the ceiling, others dozing upon their knuckles
crooked perspiringly on walking sticks; the panels, or prisoners,
hung on doggedly to the bar rail, or squatted defiantly upon the
floor, their tropic-tanned faces seamed with the drear sojourn in the
Tolbooth,--snared sea birds cruelly caged. In the throng of spectators,
nature had triumphantly overcome the curiosity of many and had whisked
them away to the realms, somber or sparkling, of dreams; little
children lay prone on their mothers’ knees, their locks wet against
their fair foreheads, sweet and lovely flowers in this stagnant pool of
human passion.
No record has been kept of the speech of the defense; we can easily
think, though, from the splendid fight they had maintained, that they
did not weaken in this last trench, this so hopeless and shattered
barricade.
The trial ended.
The assize was turned loose with orders to come back the next day but
one with their verdict, “under pain of three hundred marks.” After
wandering all over town for a couple of days, the fifteen good men and
true strolled back to court at the time appointed, and gave in the
following verdict: “They (the assize), by plurality of votes, find
that there is one clear witness as to the piracy, robbery and murder
libelled; and that there are accumulative and concurring presumptions
proven for the piracy and robbery so libelled; but find that John
Reynolds, second mate of the said ship, was ashore at the time
libelled.”
So Reynolds would have been “exculpated” after all! What do their
honors think of that?
Who could the “one clear witness” have been?
And how shall we salute the anonymous minority who did not subscribe to
the verdict?
The quietness which lasted while the verdict was formally sealed was
broken by the precise tones of David Forbes, one of the lawyers for the
defense. A last blow for his sailors? No. He is telling the court that
he is attorney for the Scotch African-Indian company and in their name
desires to enter protest against the setting over to the Crown of the
ship _Worcester_ and her cargo. Thus one of the little kittens of this
narrative jumps from the bag where she has so carefully been kept.
The lawyers for the defense wholly or in part--at any rate
considerably--came into the case in the pay of the Scotch
African-Indian company!
Strange, is it not? Here’s all Scotland, raw with the sore of Darien,
shouting for the healing ointment of English blood, and here is the
company, heir of all the grievances and privileges of the Darien
disaster, spending money to keep that relief from the angry sufferer.
French folk say that in a mystery one must search for the woman. French
folk are too naïve. One should look for the dollar, beside which the
woman is but a key of putty with which to unlock the riddles of life.
Here’s the thing: if the men of the _Worcester_ were convicted
of piracy, that ship, under the law, would escheat to the Crown;
otherwise, the Scotch African-Indian company was entitled to the
possession of it as reprisal for the seizure of their ship _Annandale_.
Thus thousands of pounds’ worth of ship and cargo would be lost to the
company if Green were convicted and his ship set over to the Crown.
In this none too simple world of ours a good end is sometimes strangely
forwarded, not by those for whom it may be an advertised goal, but
by ones who, so far as they know or care, are serving the completely
selfish moment. This strife for the _Worcester_ put the ablest men
of the Scotch bar at the service of Green and his crew, and gave his
cause, and incidently that of justice in the abstract, the utmost help
the times and practices permitted to the defense in a criminal action.
These keen, adroit company lawyers wrung every drop of advantage they
could, and on the law, as law, utterly routed the prosecution and
luminously exposed the prejudice of the court.
On Wednesday, March 21, the _coup-de-grâce_ was given. Captain
Green and all the rest, including George Haines--doubtless sober
now--received their sentences. It was decreed that one group of the
defendants should on Wednesday, April 4, another group on the Wednesday
following that, and the remainder on the third Wednesday, or April
18, “be taken to the sands of Leith, within the flood mark, betwixt
the hours of eleven o’clock in the forenoon and four o’clock in the
afternoon, and there be hanged upon a gibbet until they be dead.”
And--that the ship _Worcester_, as the vessel of the pirates, should be
set over to her majesty the queen.
Antonio Ferdinando, cook’s mate, lay fevered on his pallet in one of
the high attics of Edinburgh. There was a roaring in the street as of a
public celebration; the cries welled up from below, the people of the
house exulted on the stairs, and crowding into the sick room shouted,
“The pirates are to die.” Antonio shivered, moaned and expired.