“I saw Birkenshaw soon after he came forth from his place of concealment. He was taken aft. I saw the captain when he met Birkenshaw. He asked, ‘Have I ever ill-used you in any way?’ Birkenshaw replied that he never had. In answer to the captain’s inquiry relative to the manner in which he had been supplied with food during his seclusion, Birkenshaw said that he had been furnished with provisions by the crew. Birkenshaw confessed that a mutiny was contemplated and determined upon by the crew and that the second mate was to have furnished the ‘tools’ for the purpose. Birkenshaw was then put in irons.”
Burdick saw no one strike Birkenshaw but agreed that the man was made to kneel before the captain while making his confession. “I was present, to the best of my recollection, all the time during the confession. The confession consumed about twenty minutes. He did not give any excuse or reason for attempting to revolt. The captain at the time he ordered Birkenshaw to get down on his knees, maintained a calm and gentle demeanor towards him.”
Cross-examined, Burdick admitted that he had messed with the captain on the voyage and had visited him in jail. He stated that the wound suffered by the mate was a severe one, about an inch long on his thigh. He suffered from it considerably but did not let it keep him from his duty. As Burdick was giving his testimony, he became more and more nervous and finally asked the judge if a “sneering man in a red shirt and straw hat” in the courtroom could be removed. He seemed to be trying to intimidate the witness. This was done.
When Birkenshaw was recalled by the prosecution, he said he had been put in the cockpit of the revenue cutter where Captain Ottinger called on him, asked him to his cabin where he gave him a seat, and then queried him as to just how he got his arm broken. Here his testimony ran in direct opposition to that of Ottinger.
“I never told ‘im that the mate broke it. I didn’t say at that conversation anything about being struck by an ax-helve by the mate, though I told ‘im at another time that the mate ‘ad an ax-helve with which ‘e was in the ‘abit of striking the men. The crew was brutally beaten from the time of leaving New York till the day of the revolt. I never struck the mate with a knife. The mate struck me, though, with a rough piece of wood about three feet in length and about five inches in circumference.”
John Leggett, a nineteen-year-old ordinary seaman, who had been to sea before the Challenge voyage and who became a boatman in the harbor after his arrival, was next sworn. “I saw the captain order Birkenshaw down on his knees. I saw him take a stick and beat him on the head and shoulders. I don’t know how many blows he gave him. Birkenshaw raised his hands to protect his head —they were free at the time. I looked on for about fifteen minutes. The stick was about three feet long. It was a heaver. I saw Birkenshaw remain there about four or five hours, then he was put down in the sail room. In the morning he was put in the boats. No one was allowed to speak to him.”
Leggett also heard Birkenshaw confess, later, while ironed. Another crewman, Johnson, also saw the second attack. But Leggett was forced to admit to a point in Waterman’s favor—“Yes, the health of the crew during the passage was bad. We had about ten deaths.” (That is, ten deaths due to bad health, not brutality. This was an important point scored for Waterman.) “Some have been in the hospital here—six, I believe. I have seen some of them.” The Picayune corrected him. There were twenty-one men in the Marine Hospital from the clipper; one or two had died.
When seaman George Hill was called again, he stated, “I was present at the first disturbance. I had my ankles jammed. Three or four of the sick were called up and I came along with them. I saw the mate go forward and order the chests to be brought on deck. He told them to open the chests. He made all hands come aft and look on. I saw the mate strike several with a belaying pin. I can’t say how many were sick. Some were laid up, I don’t know what was the matter with them. I didn’t see anybody use a knife upon the mate.”
John Nisrop testified through an interpreter, Mr. Fowler. Nisrop, a Frenchman, could not speak English. He too had seen Waterman hit Birkenshaw, in irons, with his hands protecting his head. He described the weapon as a stick as long as his arm and about one and a half inches thick. The Frenchman located the beating as having taken place on the quarter-deck. Birkenshaw was hit both while standing and while on his knees. According to the matelot, Birkenshaw was brought on deck in the morning and was not beaten until evening. Thomas Johnson, a repeat witness, had little to add to what Nisrop said. He saw Birkenshaw brought on deck but did not see what transpired. As for the quality of the crew, he ventured that, “During the voyage, some of the crew were very bad.”
Testimony then closed and Mr. Austin began his argument to the jury for the defense. He was followed by Mr. Barbour for the prosecution, then McLane for the defense. The argument was closed by U.S. Attorney Benham. McLane raised a point that the whole proceeding was void, for the indictment averred that the defendant was arrested in the court’s jurisdiction and no proof had been introduced to establish this fact. Hoffman told the jury that he had been ready to inform them to proceed with their duty but that the legal error pointed out by McLane might be a “fatal” one and the whole long proceeding just concluded, abortive. Court was adjourned until 10 a.m. Monday.
When court resumed on December 22, McLane withdrew his point “that the prosecution had failed to prove that Captain Waterman was arrested in this district,” stating that he wished the case to be submitted on its merits. (The court indicated that it would have overruled him on this technical point, anyway.) The judge’s charge to the jury was brief and to the point. They were not to pass on the captain’s general conduct but only on the offense charged, and to judge whether there was exigency sufficient to justify the act charged, if committed by the captain. Hoffman sternly stated:
“Whether the person should hereafter be tried and convicted or acquitted upon any of the indictments against him, it should not be allowed to affect or alter a verdict in the present case…. Weigh carefully the portion of the testimony touching the state of discipline and behavior of the crew at the time the offense is alleged to have been committed and whether under a consideration of all the circumstances, as detailed by the witnesses, a reasonable man would have had cause to fear personal danger or be deprived of the command of the ship and whether this state of affairs warranted the committal of an assault like the one charged in the indictment.”
The jury retired at 11: 30 a.m. After two or three hours the foreman returned to state that they could not agree. The jury asked to be discharged but Hoffman would not hear of it. In consideration of the cost and loss of time already incurred, he refused the request and asked them to consult again. By 2 a.m. of the third day they still had not reached a verdict. Waterman and Douglass, in the meantime, to keep the law mills going during the jury’s absence, had pleaded not guilty to eleven indictments of assault against seamen. At 9 a.m. of the third day the jury came in to report no agreement nor the slightest prospects of one. Their minds were made up. They stood eight for conviction, four for acquittal, and they insisted “It is utterly impossible for us to agree.” Reluctantly, Judge Ogden Hoffman discharged them. A new venire was issued and returned, the clerk of the court finding, as might be expected, some difficulty in forming a jury. Fifteen of the twenty-four prospective jurors almost immediately disqualified themselves by their obvious bias. By adjournment time, three positions still needed to be filled. The prisoners at this time made application for bail and it was granted.
The District Attorney was eventually able to impanel a jury in the case of The People v. Robert Waterman for cruel punishment of Tons Miti, alias Ion Smith, alias John Smith, etc., etc. Andrew Nicoll said he had seen the beating but did not remember the date. However, he knew it was seven or eight weeks before reaching San Francisco. Smith, a sickly lad with swollen legs and arms, presumably from scurvy, was holystoning the quarter-deck when Waterman hit him two or three times about the head with a stick
. He was so lame that he could not work well at any time but, even after the hiding, he kept about his scrubbing of the deck. Nicoll saw everything from a vantage point at the larboard gangway, only twenty feet distant from Smith. The defense, to deflate his testimony, questioned Nicoll closely and got him to admit that he too had filed a suit against Captain Waterman for cruel punishment.
W. T. Brent, in charge of the United States Marine Hospital in San Francisco, followed Nicoll to the stand. He described Smith’s injuries as contusions of the head and other parts of his body, some of the bruises new and some old. Seaman Thomas Johnson corroborated Nicoll’s testimony. He too had seen the captain beat Smith soon after they rounded the Horn and when the lad was not able to walk on deck because of the scurvy. Smith, or Smiti, had to crawl on deck or be carried up by other men when he came topside. Smiti had been on deck three or four hours when beaten by the captain... Johnson had seen the attack from the larboard gangway, like Nicoll. The other men kept on holystoning the deck as Waterman abused Smiti.
On Christmas evening, one of the defense’s star witnesses made the headlines. Captain Ottinger of the revenue cutter Lawrence piled his vessel up on the beach a mile and a half south of the entrance to the Golden Gate as he tried to enter San Francisco Bay.
The court had adjourned until 10 a.m. the day after Christmas but that session was postponed when two jurors (perhaps from seasonal overindulgence) were absent. Waterman had received a welcome Christmas present, his freedom on bail. (The amount of bail posted is not mentioned in the press except in the alert M. Derbec’s column. He placed it at “20,000 piastres”—whatever that sum was in dollars américains.)
The D. A. planned to introduce Smith himself as a witness the next day but no interpreter accomplished in Finno-Ugric could be found even in cosmopolitan San Francisco. The Finn, “Smith” knew none of the king’s English. The District Attorney therefore threw up his hands and rested his case.
Attorney Austin then took over for the defense. Passenger Bradhurst explained that the holystoning of the decks was done only once on the entire voyage, when about three weeks out of San Francisco. It took eight days to finish the job. He saw Smith struck during the deck cleaning. “I remember the punishment inflicted on Smith [whom Bradhurst described with such adjectives as “inattentive” and “indolent”]; “I saw him struck by the captain with a small rope. It was the only occasion on which I saw him struck.”
Jim Douglass was then sworn again. The mate told the court: “The holystoning was done after we left the Equator. I knew the boy, Smith, and I never saw the captain strike him.”
The defense stated that they wanted to offer evidence of passenger Masten, which would corroborate that of the others, but that they could not find him, so they had to close their testimony.
The D. A. summed up the case for the prosecution, representing the condition of the poor boy, crippled with disease, on his knees before the bully. He did a fine job of it. McLane followed for the defense, calling attention to the conflicting statements of witnesses and their open hostility to the captain. He also raised another technical point similar to the one he had raised in the earlier trial but it was overruled. The jury retired at 3 p.m. and on this occasion brought in a snappy verdict by 7 p.m. Waterman was adjudged guilty of assault on John Smith.
When the indictment against the captain and mate for beating George Lessing was returned, it read as follows: “Without justifiable cause, Robert Waterman and James Douglass, did inflict cruel and unusual punishment upon one George Lessing while the ship was in a cold region and severe climate off the southern coast of South America (Cape Horn) immersing and plunging the said Lessing in a tub of cold water and also by them, then and there, rolling him in the frost and snow which was, then and there, accumulating on the deck of the said vessel and by, then and there, kicking and beating the said George Lessing.”
Jurors sworn included a prominent Vigilante, Isaac Bluxome, and George Millers, who was challenged because he had visited Waterman in jail and, later, had had a brandy with him. Millers explained that he had earlier considered Waterman “about the seventeenth grade of rascal,” but he had an open mind. He was allowed to remain on the panel.
The first witnesses were examined on Wednesday, January 7, 1852—seamen Leggett, Hill and Johnson, the star witnesses of the prior trials. They were by now warming to their task and were voluble on the witness stand. Hill swore that he saw Douglass strike Lessing with a rope’s end one raw, cold morning in September when the clipper was off Cape Horn. As he struck him, he shouted at the sickly boy who, ten days earlier, had complained of dysentery, “Go aft! The captain will cure you!” The mate then shoved him into the lee scuppers which, because of the careen of the plunging ship, were knee-deep in water. Douglass then tied him to the larboard rail— the weather side—and left the twenty-year-old in the cold and wet with no hat and no shoes, wearing only his soaked blue flannel shirt and cotton trousers. About ten or twelve days after the beating and dousing in the scuppers, Lessing died.
George Hill’s testimony was also damning. He said that Waterman, standing near the sheep pen just abaft the mainmast, said to the mate, who was standing by the pump, “I think we’ll baptize him.” And it was the captain, not Douglass, insisted Hill, who held Lessing in the scuppers for three or four minutes, then jumped on him while the mate jammed him down into the water.
The English sailor, Thomas Johnson, backed up Hill’s story. The vessel had just shipped a sea, and water lay deep in the lee scuppers where the mate was jumping on the prone Lessing. He held onto a rope as he did so to keep his balance. Johnson saw the boy—called “the dancing master” for the way he would jump when the captain or mate flogged him—lying in the scuppers, trying to keep from drowning. “I could see him pop up his head occasionally.” When he was asked by one of the attorneys why Lessing was punished, Johnson replied, “I don’t know why Lessing was flogged. But it was a general thing to flog the whole of them.” He explained that, though Lessing was shipped as a seaman, he was not really one, in spite of his rating, and was mustered with the ship’s boys.
The District Attorney stated to the court that he did not care to examine witnesses Coghill or Weldon, but he offered them to the defense for cross-examination. He closed testimony for the prosecution by producing Waterman’s bond to answer to the charge. He then asked the jury to find on the first count of the four counts of the indictment. G. F. Noyes, Douglass’s counsel, stated that his defense would rest partly on the fact that the mate had acted in obedience to the captain’s orders and, therefore, was not responsible for the offense, if committed. R. M. McLane, Waterman’s counsel, contented himself with a few remarks and then testimony for the defense began.
Passenger William Masten, who had been found again after being mislaid in the earlier case, recalled during the evening session of January 7 that “the dancing master” had been put in a tub of water, as punishment for stowing away to avoid work, in mid-October. The District Attorney objected to the question which was put to Masten, as irrelevant, and his objection was sustained by Judge Hoffman. However, when the examination was resumed, it developed that Masten had, indeed, seen Lessing ducked in a tub containing about two feet of water. It was located between the sheep pen and the mainmast. This was at the captain’s orders and in mid-September, not mid-October. (By mid-October, Lessing was long dead.) Waterman and Douglass therefore, had used the water cure on “the dancing master” not once but twice. Masten was standing on the quarter-deck when the mate reported to the captain that more “stowaways,” actually malingerers, had been found. Waterman had then said, “Bring them up. I think we’ll cure them.” They ducked Lessing, and a week or so later he complained of dysentery. Masten, on the other hand, did not recall “the dancing master” being ducked in the scuppers. He understood that Lessing died of dysentery.
Cross-examined, Masten stated that the ducking took place twelve
days “this side” of the Horn, before the Challenge reached Valparaiso. Two seamen, acting under the captain’s orders, immersed the boy. When he was tubbed, he was wearing a blue flannel shirt and a Guernsey frock. He died a week after being taken ill in spite of—or perhaps because of—Masten’s dosing him with castor oil. But Lessing had never looked healthy. He was always thin. Although he wore a beard, he was only twenty years old. Masten had heard of his reputation for skulking long before they reached the Horn. He had never seen him tied up but knew that he had once been tied before breakfast, which was generally between seven and eight o’clock.
George Hill was recalled by the prosecution to say that he too saw Lessing not only put in the tub by the mate but also dunked in the scuppers, a day or so later. His testimony was for the purpose of clarifying the two immersions as separate incidents. When cross-examined as to whether he’d helped in punishing the lad, the frightened Hill blurted out, “No, I never put him in the tub!”
Testimony was then closed and the argument on the part of the prosecution began. McKinley opened for the Government, then Hamilton and McLane for Waterman, and Noyes for Douglass. The District Attorney concluded the argument and the judge delivered what the papers described as a “short but impressive” charge to the jury. The jurors deliberated all night but were unable to agree and were discharged the next day. They stood nine for acquittal and two for conviction, with only one undecided. Douglass was then quickly indicted on a charge of beating Michael Gallagher, a jury was impaneled, and court was adjourned. The name of Dick Cleaver was formally stricken from the list of plaintiffs, too. The court was made aware that Cleaver had died of disease at sea nine days before the mutiny.
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 13