Not One Shred of Decency

by Bob Brown

  Mackenzie said, “Spencer’s letters are in my possession and Mr. Ganse may still have his journal. All of the other items have most likely been delivered to the families or distributed to other crew members. Except for oversight on my part the letters would have been sent to Spencer’s family already.”

  Captain Downes said, “Bring in the letters and all other personal items you can retrieve. If Mr. Ganse doesn’t have the journal then we will have him testify as to his knowledge of its contents.”

  Mackenzie addressed the court. “Gentlemen, I took the liberty of reviewing the contents of the letters. One is from an old classmate and one is from Mr. Spencer’s brother. Neither of these contain anything of a personal nature and could be entered as evidence without detriment or injury to the writer or Mr. Spencer. On the other hand, the third letter could bring pain for certain innocent persons and since it is not relevant to this case, I plead that it not be exposed to the light of day.”

  Norris’ demeanor turned testy. “The accused is not the proper person to decide what evidence is relevant. Captain Mackenzie’s efforts to conceal this letter only increases the court’s need to judge for itself.”

  Captain Downes drew the officers into a huddle and after some private discussion he ordered, “Mr. Garty, you are excused for now. This session is adjourned for our noon meal. We expect Captain Mackenzie to bring to our afternoon session all of the personal items of Mr. Spencer, Cromwell, and Small, that he can find. This should include Philip Spencer’s journal and letters.”

  Norris gave Mackenzie a triumphant glance and Mackenzie looked straight ahead, sat with his arms folded, and his usual non-expression. He thought, “This could not have gone smoother.”

  CHAPTER 40

  Judge Advocate Norris was animated while eating lunch with John Spencer’s attorneys. He obviously felt that he was on the track of something very important and that Mackenzie would be damaged by what they found in the letter. He repeated several times that Mackenzie sat in shock after being told he would have to bring in the letter. His lunch partners were not as sure and they were not impressed with the tone of the trial so far. One remarked that he was surprised that Mackenzie was handling himself as an experienced attorney. They listened politely to Norris but seemed willing to wait on the evidence before celebrating.

  Mackenzie had a quick meal on the Somers. After eating, he opened his locker and removed Philip Spencer’s journal that had three letters inserted in its pages. Ganse had given him Spencer’s journal soon after Spencer’s arrest. He opened one of the letters and smiled as he read it, then he put it back with the other letters. He returned to the North Carolina without making any attempt to find any of Spencer, Cromwell, and Small’s personal belongings that Captain Downes had ordered him to bring. If asked about them, he would beg for more time to look for them. He guessed correctly that they would never be mentioned again. He was confident that this session would be fraught with poetic justice.

  Only a few newsmen were present when Mackenzie entered the wardroom. He took his seat and placed the journal on the table before him. He sat straight with a slight frown and lips that hinted pleasure, but this would be hard for an observer to tell since they were as fixed as molded candles.

  People attending court returned in groups of two or three at a time. The babble of talking and laughter increased with the return of each group.

  Norris entered the wardroom and sat down at his table. He compulsively glanced at Mackenzie every few minutes. This unconscious habit was only occasional early in the trial, but was now so frequent that men behind him began to imitate him. They would squint their eyes and look at each other whimsically. What was Norris trying to learn from Mackenzie’s demeanor? What could anyone learn from watching Mackenzie? It was obvious that Norris instinctively disliked Mackenzie, but perhaps he now felt like an underdog in a dueling match. Understandably, he might have thought that Mackenzie had an unfair advantage over him. Mackenzie had the opportunity to coach the live witnesses and had hanged the prosecution’s best witnesses. Norris had found a few character witnesses, but Mackenzie would get to anyone coming from the Somers, the ones who could make a difference.

  Norris looked at the journal lying on the table in front of Mackenzie and observed the letters protruding from the top of it. A curtain of gloom fell over his face as he bit lightly on the tip of his thumb. Could he be having second thoughts about demanding that the mysterious letter be entered as evidence? He may have been asking himself some obvious questions. If it revealed Mackenzie’s culpability then why had he not destroyed it? But then Mackenzie did not know that Garty would reveal the existence of the letters? Or did he? Still he would bring only the letters that put him in the best light.

  Captain Downes called the court to order and Mackenzie took the journal with the letters inside it and handed it to Downes. The Captain removed the letters and assigned one of the officers to scan through the journal. He gave two of the letters to other officers to read. He looked at the envelope of the third letter and tapped it in his hand as if he was undecided how to proceed. Finally, he opened it and read it. He seemed unaware that his mouth slowly opened as he concentrated on the letter. When finished, he again tapped it in his hand as before, then hesitatingly handed it to the officer on his right. After reading it, the officer frowned, bit his lower lip and rolled his eyes toward the overhead beams for about a minute. Then the officer handed the letter back to Downes and gave a little shrug.

  Downes said, “This is a bit awkward, but we ordered this evidence and it may have some importance. The letter is from Mrs. John Spencer, Midshipman Spencer’s mother. I’m going to let the clerk read its contents.”

  Norris exhaled and his shoulders drooped perceptibly. He thought of asking to see the letter before it was read, but this would only make it more mysterious and important. He was sure now that the letter would not help his case.

  The clerk read:

  September 8, 1842

  To my son, Philip

  With broken heart I take pen in hand to write this to you, for what I’m about to write may be the last earthly word from this bereaved mother to the son she bore.

  I can no longer endure your deeds of iniquity. . .

  Norris jumped up. “I object! This is obviously a very personal letter written long before the crime for which the accused is charged. It can only cause extreme embarrassment and suffering for the Spencer family and cannot have one iota of germane material for this trial.”

  Captain Downes said, “I remind you, Mr. Norris, that you insisted on presenting this evidence in court.”

  Norris insisted, “Captain Mackenzie didn’t forewarn us that the nature of this letter may cause needless pain and suffering, and for what? Nothing can be gained, nothing whatever. My objection stands, sir.”

  Mackenzie could have pointed out that just this morning he had warned of innocent people being hurt, but he would say nothing now. He thought one warning was enough. Besides, now that the letter had been introduced, it should be finished, if for no other reason, its entertainment value.

  Captain Downes gathered the jurors into one corner and much hand waving and conversation ensued. After a minute, the letter was retrieved from the clerk so that all of the jurors who had not seen it, would now have a chance to read it. When they broke up, whispering ceased in the audience and the courtroom became cemetery quiet, except for chairs scraping on the wooden deck as the jurors returned to their seats. Captain Downes announced, “This court is saddened to expose this personal letter to the scrutiny of everyone, including some insensitive news people, but an overriding issue for this court is the character and intentions of Midshipman Spencer. This letter goes directly to the heart of that matter and as you will see, no one can question the sincerity of this poor lady in her moment of excruciating misery. I therefore direct the clerk to continue reading.”

  Judge Advocate Norris slumped back in his chair, clinched his chair arms and braced for the unknown.

&nb
sp; The clerk cleared his throat and in a masculine voice that could not possibly resemble Elizabeth’s, he repeated the sentence where he had been interrupted:

  I can no longer endure your deeds of iniquity. After your last visit, your father discovered that $300 dollars had been removed from an envelope in his desk. Although upset, we have experienced your theft of money since you were just a small child. Money can be replaced, but this morning I discovered your most unforgivable sin. My hands shook and I cried out with hurt, anger, and frustration when I found my great grandmother’s silver broach with the embedded rubies was missing. This, my most prized heirloom, for you to squander on rum, harlots, and gambling. I was prostrate with grief. I realized finally that you have not one shred of decency or conscience in your being.

  You have had every opportunity to succeed, become honorable, and successful, as your brothers. You have repulsed every effort of your father and me to guide and help you. You have been expelled from two schools, behaved scandalously with harlots, and are presently making a shambles of your navy career. Only loving parents could offer so many chances for you to turn your life around, and we have been loving parents. But now, the conclusion is inescapable, you are an incurable liar, thief, and villain. Though blinded by tears, I beg of you to torture us no more. Please do not write or visit us ever again. We deserve some peace in the years left for us.

  Your mother,

  Elizabeth

  The clerk had stammered a few times while reading and pulled out his handkerchief to blot his forehead. He took advantage of the blots to give a few quick dabs to his eyes. At the end of the reading, scattered coughing and clearing of throats seemed to be necessary by many in the room, including the jurors. A few blew their noses. Reporters were fidgeting, trying to decide whether to wait and see what happened next, or rush out to report to their newspapers. Norris rested his elbows on the table and his cheeks on his fists. As for Mackenzie  the usual.

  Walking down the gangplank at the end of the court session, one of John Spencer’s attorneys gloomily remarked. “It will never do for Mr. Spencer to hear of this first by reading a newspaper, you must report to him at once.”

  “Me! I just remembered something urgent that I must do in Boston. I don’t think I will hear Spencer from there.”

  “Let’s go in that pub on the wharf and we’ll flip a coin. Then the loser can get drunk before he leaves to tell Spencer.”

  CHAPTER 41

  Captain Mackenzie decided he would not have a better place for the defense to rest its case.

  Judge Advocate Norris began with a statement. He pointed out that practically every witness remembers that Captain Mackenzie took notes dictated by Midshipman Spencer just before his execution. These notes were supposedly Spencer’s last words for his family. The words were alluded to in Mackenzie’s report to Secretary of Navy Upshur, but the actual notes were curiously missing as evidence throughout Captain Mackenzie’s defense. Norris stated that since Captain Mackenzie was reluctant to provide those notes, then he is hereby requesting a court order for Captain Mackenzie to promptly produce those notes.

  In response, Mackenzie chose his words carefully. “If it please the court, Mr. Spencer did dictate a few words in his final minutes. I wrote them in my usual way of taking notes. That is, I used abbreviations, shortcuts, and symbols that no one but myself would be able to decipher. To make matters worse, I wrote these notes under the adverse conditions of a moving ship and on open deck with a constant breeze. The notes themselves would have no meaning for this court, but I did carefully record their meaning in my report to Secretary of Navy Upshur. This court already has that report in their possession.”

  Norris said, “Please note that Captain Mackenzie said he recorded the meaning of these notes. He did not say he wrote the words exactly as Midshipman Spencer dictated them. I ask you, Mr. Mackenzie, will you bring these notes, however unintelligible, for the court to decide for themselves as to their worth?”

  “In all probability, I discarded them after faithfully recording them, word for word, in my report to Mr. Upshur.”

  Captain Downes said, “See if you can find these notes, Captain Mackenzie, and bring them to the next session of the court.”

  Although Norris had won his point, it would be victory enough if Mackenzie only had to suffer the embarrassment of admitting he had destroyed the notes. After forcing the exposure of Elizabeth Spencer’s letter, he was fearful that this was just another manipulation of Mackenzie’s.

  Norris continued with his next point. He wanted it to be perfectly clear that except for a few character witnesses everyone he would interrogate would be members of the Somers’ crew. He argued, “These officers and men have remained on board the Somers in constant association with each other. They were free to exchange recollections, conversations, and deductions, as to facts and events. Even the most mature minds, when separating facts from opinion would be swayed, or even pressured, to remember events not as individuals but as a single tightly knit group.” Norris’s voice was steadily increasing in pitch and he began emphasizing each word with a downward stab of the air with his finger. “We have seen in previous testimony a sameness of testimony, almost to exact wording, of key events and these invariably radiate the most favorable light on Captain Mackenzie. Further, several witness questioned my right to pretrial interviews with them, while feeling no disinclination to bare their souls to Captain Mackenzie.” His voice increased in volume with every passing syllable.

  Mackenzie remained calm but he protested with harsh words. “Mr. Norris may be desperate to explain his weak case, but this doesn’t give him license to recklessly impugn the honor and integrity of the accused without solid proof. Let’s dispense with the dramatic hand waving and pointing to the devil. If Mr. Norris has any information worthy of this court’s time, let him present it, or let’s move on.”

  Norris looked at his downward pointed finger and dropped his hand like an anchor. “If it please the court, Mr. Mackenzie may well have reason for concern very shortly for I will provide the compelling proof he asked for. What I’m requesting of the court is for the right to interview my witness as unfriendly and sometimes hostile.”

  Captain Downes grunted, “Granted.”

  Norris acted as if he was about to say more. Captain Downes quick approval of his request had preempted a passel of words that he had fashioned for this occasion. Now, no one would ever hear them. He went back to his table and said in a quiet voice, “I recall Mr. Wales.”

  One of Spencer’s attorneys nudged his partner and whispered, “John Spencer is right, Norris is a nincompoop.”

  **********

  Mackenzie had intended to go home and spend the night with Kate, but he decided to stay on board the Somers to prepare for the next day’s court session. He worked late that night under the light of his lantern.

  At the opening of court Mackenzie handed Captain Downes two battered sheets of paper to be entered as evidence. He said, “These are the notes I wrote according to Midshipman Spencer’s instructions just prior to his execution. As explained earlier, I used abbreviations, shortcuts, and symbols and it is likely that I’m the only person who can read them. I presume these will put to rest Mr. Norris’ fears that Midshipman Spencer said something that I wished to conceal.”

  Captain Downes’ wrinkled forehead indicated that he was having a hard time reading the penciled notes. After a minute he looked up with a wide grin. “I agree that this is very difficult to read. I’m going to have the clerk read as much as he can.”

  The clerk studied the notes for a minute, shook his head and also grinned. He took a deep breath and started to read.

  Norris objected, he said, “I suspect that Captain Mackenzie has presented us with a hodgepodge of meaningless markings that only make a mockery of these most serious proceedings. Worse yet, he put to death the one person who could refute his writings.”

  Mackenzie responded, “Mr. Norris amazes me. He, himself, strenuously argued to
have these papers brought into evidence. Should he now be permitted to offer opposition to their introduction?”

  Captain Downes’ answer was to motion to the clerk to read the notes.

  The clerk began again. He would stop frequently to make out words and often interrupted to say “unintelligible,” sometimes he looked up with an apologetic grin. He read from Mackenzie’s notes:

  “When asked if he had any message to send; none that they would wish to receive; (unintelligible) deserved death for this and other sins; sincerely penitent; repentance might be too late; many people wronged; don’t know how to make it up now; parents are most wronged; it was all just a joke; justified desire to (unintelligible); this shame and disgrace will be the death of my mother; I was not before aware that he had a mother (unintelligible); Then I asked, do you think she would have felt worse, if, instead of dying, you had succeeded in your mutiny? He said, Oh god; The best service he could render to his father, was to die; need more time to prepare for death; request denied; punishment is fair; I know I did wrong; just a joke; can’t think clearly (unintelligible); need more time to make my peace with the lord;”

  When the clerk finished reading, Norris observed, “The tense of this document is all wrong in several instances. Please note that Captain Mackenzie’s note starts, “When asked if he had any message to send.“ If written at the time of the execution, he would have written ‘Do you have a message to send?’ And his statement, ‘I was not before aware that he had a mother’ is odd, to say the least. He should explain that. I submit that these notes were written long after the executions. We have no way of knowing if these words were ever said, or even if they were written in December, or last night.”