Waterman’s enemies claimed that Judge Edward McGowan had great influence over the court and that he and Waterman’s old mate, Charlie Burroughs—supposed to control much of the rough element in San Francisco—would see to it that he got off. Burroughs, who had sailed as Waterman’s first officer, before turning to the easier and more lucrative profession of gambling, never found any real fault with Waterman. He pooh-poohed Waterman’s detractors who insisted that the captain had developed a tyrannical nature in the Rainbow after his old crew had scattered and when he had “had to put up with any old thing the crimp might send him.”
Ironically, just five years later, Judge Ned McGowan would be on the run himself, much like Waterman and Douglass in ‘51. But Ned had to flee both Vigilantes and an aroused public, after being called an accessory to the murder of James King, the crusading editor of San Francisco’s Evening Bulletin.
Many people came to the county jail to chat and offer their sympathies to the captain. These visitors included Challenge passengers W. W. Burdick and Richard Morse. Also a visitor was the ubiquitous ship’s boy, E. A. Wheeler. He had shipped out on the Challenge under Captain Land, and the clipper was actually beating out of the bay when she was hailed and Wheeler taken off on a subpoena to be a witness in the trials. Another of Waterman’s old mates, Captain Pearson of the Pacific Mail Steamship Company, was rounded up to speak for Waterman but he declined to do so and it became obvious that there was a coolness between him and Captain Bob. When Pearson’s lack of enthusiasm was mentioned to Waterman, he commented that Pearson would be more interesting and more agreeable if he did not try to be so funny. Pearson was quickly dropped as a character reference for Waterman.
Before evidence was taken, Mr. Barbour made a few general remarks to explain the case to the court. Then the first witness was called, J. W. Finley. All he had to do was to identify the Challenge and to verify that she was an American vessel. When the ringleader of the mutineers, Birkenshaw, was called to the stand, he claimed that his arm was broken after the mate ordered him out of the forecastle where he was found a month after the mutiny. “I was ‘id in the fo’c’sle and the mate came down and ordered me on deck. I went up and went aft. I ‘eard the mate say to the captain, ‘I’ve got the son of a bitch!’”
The captain had smiled his satisfaction and, after ordering Douglass to iron the mutineer, thundered at Birkenshaw, “Down on your knees, you son of a bitch!” Birkenshaw told the court, “I got down on my knees and, as I did so, I saw a stick in the captain’s hand coming down on my ‘ead. I raised my arm to save my ‘ead and the weight of the stick fell on my arm. He struck me several times on my body and on my eye. I felt the bones of my arm crack when he hit me. It was this side of Cape Horn... The stick was about three and an ‘alf feet long and two inches thick.”
“What did you intend doing with me?” Waterman had asked him. Birkenshaw answered, “I don’t know what you mean, sir.” He knew nothing of the mutiny. Waterman asked him if the second mate had not promised him “tools” (irons). Again, he had to tell the captain he knew absolutely nothing of the plot. The captain kept him on his knees for “six hours.” (In later testimony, this three-hundred-and-sixty-minute period was reduced downwards to, first, twenty minutes in prayer position and, finally, to only ten minutes.) No care was given his arm, concluded Birkenshaw, in the following six weeks until the arrival of the ship in San Francisco. Birkenshaw, who had been at sea for sixteen years, twelve of them in the Royal Navy as a man-o’-war’s man, swore he was in handcuffs when Waterman struck him with the stick reserved expressly for beating crewmen. As for the day of the mutiny, he claimed that he hit the mate only after the latter struck him: “Yes I did shove the mate down. He struck me on the back of the ‘ead with a stick about the same size as the one with which I was struck before. I don’t know if anyone else ‘ad ‘old of him at the time. He was in the waist on the starboard side, overhauling the men’s chests.” Birkenshaw swore that he did not even know at the time that the mate was wounded though he did hear him cry out “Murder!” in a loud voice. “I did not stab the mate.”
“I didn’t stop. I went away. I went and stood alongside the ‘og ‘ouse. I stood there until I ‘eard ‘im call all ‘ands aft. Then I went down to the lower forecastle. Nobody lived there. Big Jerry was at the wheel.” When asked by the court why he hid, he answered, “I feared for my life.” Asked how long a span of time elapsed between his being found and hauled from his hiding place and being ironed and beaten, Birkenshaw estimated “ten minutes.”
At this point in the proceedings, counsel for the defense desired that he be permitted to go into evidence to show that the ship was in a state of revolt, which would serve to justify Waterman in the stringent course of action which he pursued. Pending the argument which naturally ensued at this point, Judge Hoffman adjourned court until 11 a.m. Thursday, December 18. When court resumed, counsel for the defense attempted to show that from the moment Birkenshaw shoved the mate to the deck until the moment of his discovery, a month later, there was on the part of Birkenshaw, the second mate, Coghill, and many of the crew, “a continuous mutinous intention.” Consequently, the captain was obliged to take strong measures to quell this revolt and was completely justified in doing so.
The prosecution came right back, insisting that no such state of affairs existed to warrant the use of such “extreme personal violence” against Birkenshaw. The prosecution declared that the evidence desired to be introduced by the defense was irrelevant to the issue at hand. All of this agitation, argument and counterargument preceded Judge Hoffman’s pondering the question. Eventually he ruled that the evidence might be taken with the proviso that what was irrelevant should be discarded from consideration by the jury in preparing the verdict.
When it was Alex Coghill’s turn to take the stand again, he repeated, Yes, he’d heard the row above but he did not see the captain strike the stowaway when he was found. He had been below, sick in his bunk. He insisted, time after time, “I never proposed to any of the crew to get irons for the captain. I did not know that there ever was any such design on the part of the crew.”
George Smith, another English A.B., when called, testified that he had seen Waterman strike his shipmate, Birkenshaw, with the three-and-a-half-foot heaver nominally used for setting up the rigging but on the Challenge used especially for disciplining seamen. It was as he was going forward to the main brace about noon. Smith came to court from the Marine Hospital where he was being treated for a shoulder injury. He had been in the captain’s watch but, after six weeks, was shifted to the second mate’s watch. He had little else to tell the court.
After Attorney Hamilton addressed the jury and explained the nature of the defense testimony to come, Captain Ottinger of the U.S. revenue cutter Lawrence was introduced, to show inconsistencies in Birkenshaw’s testimony. Ottinger testified when D. A. Benham’s objections were overruled by Judge Hoffman. Captain Ottinger stated that seven of the crew, including Birkenshaw, were brought aboard the cutter as mutineers to be placed in his custody. At the time, Birkenshaw did not tell him or his first lieutenant about the broken arm. After about twenty-four hours, someone reported Birkenshaw’s injured arm to Ottinger. “I sent for surgical aid, but the boat returned with a report that the doctor was absent. So, I concluded to look into it myself, having had some experience in such cases. I sent for the prisoners, one at a time, and examined Birkenshaw myself and was satisfied that the principal bone was not broken. I do not know that any of the smaller bones were broken. Mr. Bennett, my first lieutenant, was also present. He [Birkenshaw] did not talk much respecting the captain or other officers but, I am clear that he stated it was the mate who struck him. I cannot state what other conversation I had with the others. My attention was occupied with the circumstances of Birkenshaw’s having been struck when in irons. It seemed so extraordinary.” This testimony was very important to the defense. Birkenshaw claimed that Waterman b
roke his arm. Captain Ottinger, under oath, swore that Birkenshaw told him that it was Douglass who broke it.
The cases in the hopper so far, besides the mutiny, included the U.S. v. Robert Waterman and James Douglass for cruel punishment inflicted on Thomas Cleaver; U.S. v. Alex Coghill for assault on John Brown; U.S. v. James Douglass for assault against Charles Pearson; and the U.S. v. Robert Waterman and James Douglass for beating Andrew Nicoll. Judge Hoffman had a veritable three-ringed circus of jurisprudence on his hands. By December 18, the grand jury delivered the full rash of indictments, ten more: U.S. v. James Douglass for the murder of “one Pawpaw”; U.S. v. James Douglass for beating Michael Gallagher; U.S. v. James Douglass for malicious beating of John Smith; U.S. v. Robert Waterman for cruel punishment of John Smith; U.S. v. Robert Waterman and James Douglass for cruel punishment of James McCartney; and, finally, U.S. v. Robert Waterman and James Douglass for cruel punishment of George Lessing.
During the session of December 18, Foreman James Hagan of the grand jury made his report. It began with a wordy, flowery and boring tribute to the zealous D. A. and the distinguished jurist who had won for himself “golden opinions from all men.” It next stressed the importance of commerce and marine operations to San Francisco and California, “destined to be the most important commercial depot of our Union.” Then it got down to brass tacks. “The Grand Jury of the United States of America for the Northern District of California, having completed all business presented for their consideration, take the opportunity of stating that after many days of patient investigation and examination of a great many witnesses, have conceived themselves called upon, in discharge of their highly responsible duties to this community, whose maritime interests are for the time confided to their care, to find thirteen bills against individuals charged with serious offenses upon the high seas. This being the first Grand Jury that has ever been assembled under the laws of the United States since they were extended over us, we feel it our duty to congratulate the whole people upon the final and entire organization of the Courts of the United States in California.” There followed the indictments.
During subsequent testimony it became clear that after the knife was plunged into the mate, all of the crew, except George Smith, let go of him, and fled. It was reiterated that when Douglass called for help from the third mate and bosun, the former answered with something like “I can’t help you” and the boatswain said nothing but offered no help. During the fight, Downey, Nicoll, the third mate, Patterson alias Coe, Lewis and Scott were all quite near Douglass. He called to Downey for a stick but Downey had just walked away from the despised mate.
The jury learned that for days after the mutiny, the crew skulked in the forecastle and hold. “Often when I came on deck,” said Douglass, “I found it almost deserted.” He was afraid to go into the forecastle to get men to work the ship. “When I would go forward, and they would hear me coming, they would blow out the lights in the forecastle. On one occasion, I found the deck nearly deserted in a gale off Cape Horn.” Waterman and Douglass, almost alone, worked the huge clipper through the dangerous Straits of Le Maire. “The crew were in the constant habit of concealing themselves, in numbers of seven or eight at a time. They were in almost a continuous state of disobedience and mutiny. In the second mate’s watch, I frequently, off Cape Horn, found no more than three men on deck, besides the men at the wheel, and there were twenty-seven in the watch when full.”
On and on through December ran the trials. Douglass revealed how Birkenshaw was found: “He was missing from the 17th of August till the 18th of September. I found him in the lower forecastle. I sent a boy, Charles Weldon, in and he took him by the hair of the head and hauled him out.” Birkenshaw had whimpered to Douglass, “I will make a full confession. Don’t hurt me!” “But,” went on Douglass, “Smith was the first that confessed to me. He confessed that it was their intention to take the ship at 8 o’clock the night before the affray but it was put off in consequence of the captain’s absence in the cabin and myself on deck.”
When Douglass hauled Birkenshaw from his hide-out to Captain Waterman, he called out that he had found another stowaway. Waterman shouted “Put him in irons!” But Douglass said, “Captain, he has some confession to make. You had better hear it first.” “Let’s hear your confession,” the captain had bellowed and the lime-juicer spilled his guts, incriminating even those who, long before, brought him food. Douglass tied him to the rigging and then ironed him, while Waterman paced back and forth on the weather side of the quarter-deck, deep in thought. Then he went below. Douglass continued to pump the frightened Birkenshaw but the latter pretty much repeated what Smith had already told him. The mate ordered him not to speak to anyone in the crew.
When asked how many lashes he had laid on Smith’s back on the day of the mutiny, Douglass could not remember but thought it was either one or two dozen. He said the crew, called aft to witness punishment, made no resistance or outcry. But, from that moment on, Waterman kept arms in his berth and the mate never went on deck again unarmed. “I considered myself liable to be seized by them at any moment.”
Passenger William Masten once again singled out Birkenshaw and Smith as the two men who had first jumped Douglass on August 17. He saw Waterman strike Smith later with a stick, about two feet long, but not any thicker than a broomstick. And Smith was not in irons at the time. He again mentioned overhearing Birkenshaw confess that the second mate was in on the mutiny, promising to supply the rebels with “tools.”
According to the marine intelligence columns of the San Francisco papers, only four passengers arrived in the city aboard the Challenge. Yet five are identified in the press—W. W. Burdick or Burdeck, William Masten, or Maston (also rendered Marston now and again), Richard Morse, Mr. Bradhurst (Broadhurst) and Cornelius Sterling. Possibly Bradhurst and Burdick were one and the same person, the name garbled by ink-stained wretches of the fourth estate. One of the passengers was described as being lame by two seamen on the stand and by one or more of the other passengers. Just which one was lame is not known. Birkenshaw, for example, said he knew only one passenger—“the lame man”—but did not know his name. Moreover, one of the passengers, again unidentified, was accosted by one of the friendly natives of San Francisco when he first went ashore, and was piloted by his new-found friend to what was promised to be decent lodgings. Instead, from an alley leaped several of the rogue’s accomplices—“trois forts gaillards” Derbec called them—who beat him savagely and robbed him. Since one of the passengers mentioned that fellow passenger Sterling was dead, it is likely that this assault victim was Sterling. But even this is not certain, and the identity and fate of all the Challenge’s passengers remains a puzzle.
On December 20 and 21, passenger William Masten had his say: “Yes, I was a passenger on the Challenge. There were three others —Messrs. Morse, Bradhurst, and Sterling. Mr. Sterling is dead. I remember an affray between the crew and the mate. I was sitting with Mr. Sterling in the longboat at the time. There was a boy named Charles Weldon there and, I think, one named Wheeler also. I saw Birkenshaw come up behind the mate and take hold of him and I saw Smith then jump in and take hold of him. Most of the crew were right around the mate. I heard the mate shout ‘Murder!’ and then I saw him fall partially over. I went aft to call the captain and I saw him coming along the gangway from aft. I saw the captain take hold of Smith and pull him off. I did not see Birkenshaw then.
“The men were brought down in the cabin afterwards on that day. There were a number of them, Smith among them. Messrs. Morse and Sterling were present besides myself. Smith came down first and denied for a long time that he had had anything to do with it but he afterwards said it was their intention to take the ship into Rio. The rest, examined, made about the same statement. Smith said they intended to take the ship the night before. They didn’t do it because the captain and mate were not on deck together.
“I saw Birkenshaw
next on the 18th September. I saw him coming aft and the captain behind him. Yes, I saw the captain strike him. The captain had a stick about two feet long. It was about the size of a common broomstick. He was not in irons. I was standing next to the wheel when Birkenshaw made a confession. He said the second mate had promised to lend them ‘tools,’ and that was the word used by him. Jerry was at the wheel. After Birkenshaw was brought there, it was five minutes before the mate came with the irons. I remember Birkenshaw said the foreigners wanted to use knives to take the ship but they didn’t wish to use them.”
Passenger Burdick’s account was similar: “I saw an attack made upon the mate, Mr. Douglass, by Smith and Birkenshaw. I first saw Douglass on his knees with Smith and Birkenshaw engaged with him. The captain had been taking the sun and, seeing the mate in difficulty, grasped a belaying pin, sprang in amongst them, and the men ran forward. Smith was taken aft and put in irons. The captain told him that he had committed a great offense and that he ought to be punished, but that if he would make a confession it would lessen the offense. He first denied any knowledge of a mutiny but finally he confessed that the crew had resolved to mutiny and take the ship.
Shanghaiing Days: The Thrilling account of 19th Century Hell-Ships, Bucko Mates and Masters, and Dangerous Ports-of-Call from San Francisco to Singapore Page 12