Enemy of All Mankind

by Steven Johnson

  Accused of crimes against humanity, accused of violating the property and the direct relations of the Grand Mughal of India, the six men were found by the jury of their peers to be innocent of all charges. Even Henry Every—“not taken” but charged with the crimes nonetheless—had been exonerated.

  30

  WHAT IS CONSENT?

  Old Bailey, London

  October 31, 1696

  Why did the state’s case against the Every gang collapse? It is possible that some legal stratagem backfired, or the accused—despite their limited education—managed to make an unusually stirring defense of their actions, though subsequent events make both these scenarios unlikely. The most convincing explanation for the shocking acquittal is that the Admiralty and the Lords Justices who had framed the case had underestimated the popular, nativist appeal of the Henry Every myth. The state almost certainly mounted a convincing argument that the pirates standing at the bar had stolen from the Great Mughal and the sovereign nation of India. But in the minds of a jury accustomed to heroic tales of Bold Captain Every and other swashbucklers, with little empathy for a foreign emperor and his subjects five thousand miles away, those actions may have simply not constituted a crime—and certainly not one that warranted a sentence of death.

  Whatever the explanation, the verdict was a catastrophe for the state. It was one thing for Every and his men to have avoided detection for a year after the Gunsway heist. But to have six pirates under arrest, with two witnesses testifying against them, and still let them walk free? The not guilty verdict confirmed all the allegations against the British state—that for all its tough talk about hostis humani generis, the state was either tacitly supporting pirates, or incapable of enforcing the laws against them. The admiralty had planned to use the case against the Every gang as a show trial, a statement to the world that would announce the British government’s new zero-tolerance policy for piracy. They had even hired a publisher named John Everingham to release the transcripts of the trial allowing interested readers throughout the British empire who couldn’t make it to Sessions House Yard to follow along. Needless to say, Everingham never published the transcripts. One London periodical apologized for its lack of coverage: “We had prepared a more ample account of the Tryal of the Pyrates,” the editors noted, “but in compliance with the prohibition of Authority have omitted it.”

  For the five pirates who had pled not guilty, the acquittal must have seemed like a miracle, given the overwhelming legal apparatus that had confronted them in the Old Bailey. And they must have been perplexed when the court guards escorted them back to Newgate Prison after the verdict, rather than setting them free. For two days, the acquitted prisoners languished in their cells, expecting to be liberated at any moment. During those forty-eight hours a frantic series of conversations unfolded between Judges Hedges and Holt, Prosecutor Newton, and other members of the Admiralty. Double jeopardy prevented them from staging the trial again. It was conceivable that law enforcement would eventually arrest other members of the gang—or Every himself—but even so, word of the first trial would invariably make it back to Aurangzeb, threatening the fragile new alliance Gayer had negotiated with the Grand Mughal. If they were going to make the grand statement—to establish the overarching story that England was no longer willing to turn a blind eye to the predations of the pirates—they were going to have to do it with the men waiting to be released from Newgate Prison.

  The solution to this quandary arrived through what historian Douglas Burgess calls a “brilliant act of legal legerdemain”: If the Grand Mughal of a distant nation had not made for a particularly sympathetic victim, why not recast the role with a victim that would be more appealing to a British jury? The pirates had stolen from Aurangzeb, but they had also stolen from James Houblon and the investors of Spanish Expedition Shipping. Instead of accusing them of robbing the Gunsway, what if the state centered its argument on the theft of the Charles II? The men had been acquitted of piracy, but the state could still charge them with mutiny.

  On Saturday, October 31, the six original prisoners found themselves back at the bar at the Old Bailey, listening as a new indictment was read against them. As the new jurors were introduced in the court, Judge Holt made no effort to conceal his displeasure with the verdict rendered in the original trial. “If you have returned any of the former jury, then you have not done well,” he thundered from the bench, “for that verdict was a dishonor to the Nation.”

  In his formal opening statements to the grand jury, Judge Hedges took a more subtle tone, craftily linking the mutiny aboard the Charles with the general crimes of piracy itself. “Now Piracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty,” he explained. “If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without a legal authority, this is robbery and piracy.” Whether you were stealing a boat in a Spanish harbor or treasure in the Indian Ocean, you were engaged in acts of piracy. This conflation of piracy and mutiny appeared in the main clause of the indictment: the accused had “upon the high and open seas, in a certain place about three leagues from the Groyn, and within the jurisdiction of the Admiralty of England, piratically and feloniously set upon one Charles Gibson . . . the Commander of a certain merchant-ship called, The Charles The Second.”

  The prisoners listened to the indictment in utter confusion. Hadn’t they just been acquitted of all charges against them? Why were they back in Old Bailey, standing before a judge and jury?

  The court officer asked them how they pled, starting with Every’s original quartermaster, who had pled guilty in the first trial.

  “How say’st thou, Joseph Dawson, art thou guilty of this piracy and robbery, or not guilty?”

  Baffled by the situation, Dawson replied, “I am ignorant of the proceedings.”

  “He pleads ignorance,” the officer reported. A clerk reminded Dawson that he had only two options.

  “Guilty,” Dawson said, returning to his original plea.

  Edward Forsyth and William May repeated their not guilty pleas, but when the officer turned to young William Bishop, the disorientation in the court was palpable.

  “How say’st thou, William Bishop, art thou guilty or not guilty?”

  “I desire to hear the whole indictment read again.”

  “You have heard it just now,” one of the justices replied, “and may hear it again if you desire it.”

  “The former indictment,” Bishop clarified.

  “No, there is no occasion for that,” the justice replied sharply. “This is an indictment for a fact distinct from that.”

  In the end, the five men pled out the way they had in the first trial. The jury had found them all not guilty of committing piratical acts against Aurangzeb in the initial trial. Now they would have to determine if the men were guilty of doing the same to James Houblon.

  The Advocate General for the Admiralty, Thomas Littleton, rose and addressed the jury, with a ringing condemnation of the defendants. “Their wickedness has been as boundless and as merciless as the element upon which their crimes have been committed,” he thundered. What’s more, their crimes had slandered England’s reputation in the eyes of the world; the entire planet, he claimed with only some exaggeration, “has been sensible of their rage and barbarity.”

  Joseph Gravet, a second mate of the Charles, was the first called to the witness box. Gravet relayed the details of the original mutiny, claiming that Every’s men had seized him and locked him in his cabin under armed guard. He described how Every had “kindly” given him a coat and waistcoat when Gravet ultimately decided to leave the Charles in the longboat. And then he relayed what would become a crucial piece of evidence. As he was boarding the longboat, Gravet claimed, “William May took me by the hand and wished me well home, and bid me remember him to his wife.”

  “Was there liberty for any of them that
would go ashore?” one of the prosecutors inquired.

  Gravet nodded, “Captain Gibson told me so, and there were about seventeen that went off.”

  “Would the boat hold more?”

  “Yes, sir.”

  * * *

  —

  THOMAS DRUIT, the first mate of the James, took the stand next. He narrated his confused reception of the secret code for the mutiny—“the drunken boatswain”—and his failed attempts to compel the mutineers to return to the James.

  “I went to command them back,” Druit told the jury, “and they refused.”

  After Druit’s testimony, the state called to the witness box David Creagh, the other second mate of the Charles, who had declined to run off with Every. Creagh had taken the honorable route in Spain, but had subsequently been involved in “piratical” activity that had landed him in Newgate Prison under a separate indictment. Creagh recounted his conversation with Every at the helm of the Fancy, where the captain asked if Creagh would “go with him.” And he delivered another blow against William May’s protestations of innocence. “As I was going down [to my cabin], I met with William May, the prisoner at the bar,” he explained to the court. “‘What do you do here?’ says he. I made him no answer, but went down to my cabin. And he said: ‘God damn you, you deserve to be shot through the head,’ and he then held a pistol to my head.”

  Creagh went on to describe the exchange between Every and Captain Gibson, and Every’s command that Gibson and his followers row back to the mainland in the pinnace. “I heard them order the Doctor be secured, but if there was any more would go into the boat they might.”

  Once again, the prosecution returned to the crucial question of the empty space in the pinnace. “Was there any room for more in the boat,” Conniers asked.

  “Yes there was,” Creagh replied.

  “Was there liberty for any more to go?”

  “Yes, my Lord.”

  * * *

  —

  AFTER CREAGH’S TESTIMONY, the prosecution turned to its two key witnesses, John Dann and Philip Middleton, men who had chosen—or had been compelled—to stay on board the Fancy and who could relate, on the record, the full story of Every’s crimes against humanity—even if the crimes officially at stake in the trial were limited to the mutiny at A Coruña. Dann’s account goes on for several pages in the trial transcript, including a detailed survey of the Fancy’s layover in Madagascar and her misadventures at the mouth of the Red Sea. After Dann described the battle with the two Indian treasure ships, Justice Holt intervened from the bench to ask about the distribution of profits from the heist.

  “That was a brave prize, was it not, the best you had all the voyage?” Holt asked.

  “Yes, my Lord,” Dann confirmed.

  “Did you all share?”

  “Yes, all that were in the ship.”

  Holt then asked Dann to confirm that each prisoner standing at the bar had received their share of the bounty. Having implicated the defendants in the robbery of the Gunsway, the prosecution invited them to ask questions of their former shipmate. William May seized the opportunity to introduce what would become a key plank of his defense: that he had fallen ill shortly before the Fancy had made its final approach to the Red Sea, and had been left behind in the Comoro Islands, only to be reunited at a later point—thereby missing the entire Gunsway assault.

  “My Lord, may I speak for myself?” May queried Holt.

  “If you will ask him any questions, you may. You shall be heard again to speak for yourself by and by,” Holt explained.

  “My Lord, I desire you will ask him, whether he thinks I had any knowledge of the going away of the ship.”

  Dann declined to answer: “I have no knowledge of that.”

  The line of questioning provoked a sharp rebuke from Justice Holt. “You were there and you had a share of the prize,” he snapped back at May. “You drank a health to the success of your voyage.”

  May backed down in response to Holt’s outburst: “I hope, my Lord, you will not be angry for asking questions.”

  “No, nobody is angry,” Holt replied. “You may ask what questions you will.”

  Philip Middleton took the stand next. He spoke uninterrupted for around ten minutes, retracing the narrative that Dann had conveyed in his testimony. Middleton described the negotiations with Nicholas Trott in the Bahamas, and the bribe that the proprietor governor had accepted. At the end of his account, the prosecutors asked Middleton to affirm that all five of the accused men had arrived in Nassau with Every, and that all five had ultimately been welcomed by Trott. Taking over the prosecutorial reins from Newton, Holt had the witness review the distribution of stolen goods after the Gunsway heist. Perhaps explaining why he had turned against his shipmates, Middleton claimed that he had been granted a hundred pounds as his share of the loot, but that John Sparkes had subsequently stolen it from him.

  The testimony of both Dann and Middleton made it clear that the state was using the second trial as a stage to denounce international piracy, despite the fact that the case itself involved the theft of a ship belonging to British citizens. Technically speaking, the attack on the Gunsway and the illicit negotiations with Trott had nothing to do with the mutiny that they were being accused of. And yet Newton and his allies on the bench spent hours of court time establishing the “rage and barbarity” of the men’s crimes in the Indian Ocean, and the corruption of the colonial powers in the Bahamas. Had the defendants been granted actual legal representation, their lawyers would no doubt have objected to all the extraneous accounts of their Indian Ocean predations; these were crimes the men had already been acquitted of, after all. But common law courts were heavily weighted toward the authority of the state. The five men at the bar had no legal expertise in their corner, so Holt and Newton took the opportunity to drag all the offenses from the first trial onto the stage of the second.

  * * *

  —

  “THE KING’S COUNSEL have done with the evidence,” Holt announced to the defendants at the end of Middleton’s testimony. “Now is your time for to speak, if you have any thing to say for yourselves.”

  In turn, each prisoner was allowed to make a statement or call back witnesses who had testified earlier. One by one, the prisoners made variations of the same argument: they had been forced into piracy against their will. Edward Forsyth asked for Thomas Druit to return to the witness box, and asked the former first mate of the James if he had not commanded him, on the night of the mutiny, to board the pinnace with the aim of fighting off the mutineers aboard the Charles.

  “Yes, you were commanded,” Druit acknowledged. “And then I commanded you to come back, and you refused.”

  “You did not command me back,” Forsyth replied.

  “Yes I did, and fired at you and shot through the boat.”

  Forsyth explained that his options were limited, once the other mutineers had joined him on the pinnace. “I held water with my oar. That was all I could do.”

  “Instead of rescuing the ship,” Holt interjected, “you run away with her. He commanded you back and you refused to come back.”

  “I could not bring her back myself, nor come back, unless I should leap over board.”

  Holt asked Forsyth if he had anything else to say in his defense. Forsyth’s final lines would be echoed by his fellow defendants: he had been swept up in the chaos of the mutiny and had been unable to return to the James.

  “My lord,” Forsyth began, “when I was in the boat. I knew not who was in it, nor how many. When I came aboard the Charles, the sails were loose and I was in a very sorry condition. They cut the boat off and put her in a drift. I could not get into her; she was gone in a minute’s time. I did not know which way or what men there were in her, nor heard nothing til two o’clock the next day. And I hope, my Lord, as we are but poor sea-faring men, and do not understand the la
w, you will take it into consideration.”

  Holt bristled at Forsyth’s profession of naiveté. “But all you sea-man understand that law that it is not lawful to commit piracy,” he snapped, “and he that doth deserves to be hanged.”

  Young William Bishop, James Lewes, and John Sparkes all relayed a similar narrative: commanded by Thomas Druit to man the pinnace, they had quickly found themselves overpowered by mutineers intent on joining their ringleader, Henry Every, aboard the Charles.

  In his testimony, Bishop attempted to address one of the most damning elements from the original testimony: the undeniable fact that Every had allowed some of the sailors—including Gibson and Creagh—to leave the Charles of their own volition, in a boat that had room for many more.

  “When we came aboard the ship Charles,” Bishop explained, “they commanded the innocent to do what they pleased, with pistols and cutlasses, and they commanded me to go into the hold, to do what they pleased . . . And I heard afterwards, that none went ashore but whom they pleased—that is, Every and his crew. And I not knowing of it, could not go. And if I had known it, I had not been admitted to go.”

  * * *

  —

  THE MIDDLE-AGED STEWARD WILLIAM May attempted the most impassioned defense of the five prisoners. He began by stating that he knew nothing of the mutiny plot. “I believe very few knew of it; I believe not above nine or ten.”