by John Sugden
Nor must Nelson’s actions be judged outside another essential context. As Dr Rodger has informed us, eighteenth-century naval justice was considered to be more lenient than that exercised in English civil courts. It stipulated, for example, only a tithe of the number of offences for which men could be executed. Naval officers were apt to regard the civil courts as vindictive and unjust, and Nelson’s case was not unique. Commodore Keppel had once refused to surrender a marine to the attorney general of Jamaica in the belief that he would not receive a fair trial. Nelson had exactly those same misgivings in 1786. The people of Bridgetown were prejudiced against the navy, and particularly the Boreas for her part in stopping illegal trade. The cases of the Jane and Elizabeth and Brilliant were stirring those embers at the very time Elliott had been shot. In the captain’s opinion Scotland would not have been tried fairly in Barbados. The civil authorities had already proved themselves to be corrupt and incompetent in the matter of prize, while in the proceedings against Scotland an inquest had been wound up without any witnesses from the Boreas having been called. Reflecting thus darkly, Nelson believed there was no justice to be had in Bridgetown. He could not abandon Scotland to its mercies. Nelson’s actions may have been misguided, and were unquestionably duplicitous, but they were not devoid of principle or courage.37
One thing is certain: the Elliott affair ended cooperation between Nelson and Parry, and with it any hopes that the governor would unlock the stymied proceedings in the prize courts. As late as October, Parry stormily reminded Nelson of the steps he had been ‘compelled’ to take ‘in support of the dignity of the king’s government’ and ‘the lives, liberties, and properties of His Majesty’s subjects’ as a result of the activities of the Boreas. Nelson was so furious that he forwarded the correspondence to Lord Sydney, affecting ‘total’ ignorance of the roots of Parry’s insinuations and demanding the governor specify his charges.38
And against this background Nelson’s battle with the Barbadian prize court raged on and reached a dramatic climax.
6
The Elliott–Scotland case smouldered but Nelson’s search for illegal traders continued without remission. Among the suspicious vessels he examined was Collingwood’s old nemesis, the Dolphin, now renamed the Greyhound. Horatio would have loved to arrest her, but the vessel was still under judicial appeal and beyond his reach. In fact no more ships were seized at Barbados, and as Nelson’s relations with the islanders deteriorated he was ever more impatient to bring the suit against his existing prizes to a conclusion and be gone.39
The Jane and Elizabeth and Brilliant were still in his hands, but the people of Bridgetown were so ‘very tumultuous’ that Nelson feared an attempt might be made to take them from him by force. He even had the king’s mark, a broad arrow, carved into their masts so that they could be identified if stolen. Yet without proper maintenance the vessels themselves were also decaying. Their hulls leaked and their cables rotted, and Nelson talked about unloading their cargoes to save them from shipwreck. Still ‘the door of Justice’ remained closed. Judge Weeks obstinately refused to act on the crown suit, and Brandford, the king’s advocate prosecuting the case for Nelson, would submit no other. ‘Thus circumstanced the vessels will soon require no information to be filed against them,’ Nelson complained to Parry on 1 May. ‘They will either be driven on shore or out to sea, for their cables are getting very bad.’40
But Parry was refusing to see him, and when Brandford waited on the governor Parry would only say that while he thought the judge wrong he had no powers to intervene. Perhaps he spoke the truth, for Nelson heard that when Parry’s secretary called upon Weeks to persuade him to give way, the judge declared that he would ‘never’ yield to the governor, nor to any order but that of the king in council. Finally, on 20 May Brandford informed Nelson that he doubted there was any ‘probability’ of the ships ‘being brought to a speedy trial here’. He planned removing the case to England.41
By then similar ideas were occurring to the naval officers. In May, Hughes and Nelson had sent three letters across the Atlantic voicing their frustration to the Admiralty, and the law did eventually vindicate their opinion. In August, Admiralty solicitors would rule that Weeks was wrong to refuse to proceed against Nelson’s prizes, but back in steaming Barbados such long-winded procedures were of no use whatsoever.42
Nelson had a quicker remedy up his sleeve. Very well, he decided: if the Barbadian court refused to deal with his prizes, he would take them to a court that had no such qualms. It was a high-risk strategy, involving the removal of prizes from one jurisdiction to another and a pick-and-choose courts policy of doubtful legality, but Nelson had never been afraid of using his initiative.
Reclaiming the relevant papers from an astonished king’s proctor, Nelson had the sails of the Boreas set and put to sea on the 21st, taking both of the prizes with him. He sailed for Nevis, the scene of earlier victories over the illegal traders, where his influence with island officials was the strongest. President Herbert, his prospective father-in-law, and the attorney general Stanley were both worried about their health and planning to retire to England, but at the moment they were still at their posts and powerful allies of the little captain. Magnus Morton, Herbert’s brother-in-law, and John Ward, who had helped Horatio in the past, were both judges of the vice-admiralty court. They did not fail Nelson at this crucial moment. The ships were condemned on 26 June.
In Bridgetown the administrators were furious. The court had lost its fees for processing the suits, the customs service saw its claim to the Brilliant disappearing and Governor Parry was forced into the open about his own ambitions to profit from the sale of the Jane and Elizabeth. He insisted that it was a governor’s prerogative to share in confiscated prizes, and when the ship was condemned in Nevis he appealed against the distribution of the proceeds. He wanted a traditional third for himself, ‘for the sake of his successors’. Equally, perhaps, he and his associates felt a loss of face. Nelson’s actions volubly proclaimed the inability of the Barbadian court to perform its duty.43
Parry thundered that Nelson had acted in ‘direct violation of every existing act and statute in the parliamentary and constitutional annals of Great Britain, for which he will, doubtless, on a future day be made responsible’. Later in the year his agent went to London to pursue ‘the general conduct of Captain Nelson’ with the home secretary, but the mission may only have prompted more questions about the governor’s relationship with officials he affected to be unable to control. The agent was none other than Joseph Keeling, the collector of customs at Barbados.44
In England an investigation was mounted. From letters written by Sir Richard Hughes on 10 and 18 May 1786, the Admiralty learned that Nelson had the entire confidence of his commander-in-chief. On 17 July the board asked their proctor, George Gostling, to prepare an opinion of the case, and eleven days later his résumé went for confirmation to senior law officers of the crown, the attorney general, king’s advocate and advocate for the Admiralty. All agreed that the Barbadian court had erred in declining to proceed with Brandford’s suit, but matters stalled when a memorial arrived from Judge Weeks himself. Dated 8 October, it gave his version of the affair, and the Admiralty delayed announcing their judgement until the new document had been fully considered. Finally, on 5 July 1787, the legal process torpedoed the hopes of Weeks and Parry by reaffirming the initial decision. Though ‘willing to believe that the judge [Weeks] acted to the best of his judgement’, the law officers concluded, ‘we cannot but censure the irregularity of his proceedings . . . Captain Nelson’s conduct in carrying the ships away to another jurisdiction was certainly not regular, but under the circumstances in which he stood we do not think that it calls for reprehension.’ Dissatisfied, Parry continued to press his case until the end of the year, but without success. The reputation of his administration had been damaged, and its morale may have already been weakening. Brandford had resigned in January 1787, ostensibly because of ill health.45
&
nbsp; The captain of the Boreas had met the most obdurate court in the Lesser Antilles head-on and beaten it on every front.
But the personal cost had been considerable. His relations with Parry were ruined and the months of sliding on thin ice had drained him. He suffered from severe headaches, and the malarial pains that had intermittently troubled his chest for ten years returned. For a time his physician feared that Nelson had consumption, but the diagnosis was revised and the patient consigned to a regimen of ass’s or goat’s milk and beef tea. He was exhausted. ‘My activity of mind is too much for my puny constitution,’ Horatio wrote wearily. ‘I am worn to a skeleton.’46
7
Looking over his accounts Nelson decided that the profiteering in the Barbadian prize court ran scandalously deep. Now that the Jane and Elizabeth and Brilliant had been condemned he was able to compare the charges for the unsuccessful suit in Barbados with those in Nevis, and he was incensed by the result.
There, on the Barbados account, was Mr Brandford’s notorious retaining fee of £26 8s. 0d., as he expected. But the differences in the charges made for similar services in the two courts were the most striking. In Nevis, for example, the charge for drawing up the indictments was £3 6s. 0d.; in Barbados it also amounted to £26 8s. 0d. In Nevis Mr Adye had charged £30 6s. 8d. for travelling from St Kitts, arguing the cases against the two ships in court, and securing condemnation; in Barbados Brandford’s fee for attending with ‘nothing done’ was £33. And Nelson found several entries in the Barbadian account that utterly baffled him. There was the £39 12s. 0d. for consulting Captain Nelson. ‘What could they consult with me about!’ Horatio raged. ‘My only questions were to know when the vessels were likely to be tried, and if I might not carry them away if trial of them was refused.’ A further charge concerned appeals, though technically no appeals could have been lodged in Barbados, since the judge had refused to allow the suits into court. Summing it all up, Nelson found that fees for the successful proceedings at Nevis totalled £44 3s. 0d. and those for the unsuccessful suits in Barbados £174 17s. 4d.47
Nothing annoyed seamen more than the feeling that quill-pushing bureaucrats were creaming the prize money granted captors to encourage their perilous exertions at sea. As late as 1811 there were no standard rates for fees at the vice-admiralty courts, and the firebrand naval officer and Member of Parliament Lord Cochrane fiercely condemned the rapacity of officials. On one occasion he amused the House of Commons by unfurling a proctor’s bill ‘long enough to reach from one end of the House to the other’. The result was a commission in 1812 and the consequent establishment of scales of fees. Back in 1787 Nelson similarly fumed at the parasites he believed to be robbing honest sailors and damaging the public service. That February he fired off a complaint to the Admiralty. It was not a thoughtless document, and praised more officials than it condemned, but it accused Brandford and Byam, his counterpart in Grenada, of being unworthy of their offices.48
These were transitionary times in the evolution of public service. The past, in which individuals accepted the burdens of office and compensated themselves by charging fees, was slipping away too slowly; the future, in which professional civil servants were rewarded by regulated salaries and pensions, was still whimpering in its cradle. Nelson had no doubt where he stood, but his charges went to the Treasury and disappeared in obscure government files.49
Some things were changing in the Leeward Islands, however.
There were signs that the campaign against illegal traders was having an effect. On 8 July, while cruising off St Kitts, Nelson seized his last contraband trader, the schooner Eagle from Trinidad. She sailed beneath Spanish colours, and was filled with Spanish mules and cattle, but papers on board revealed a remarkable ‘transmogrification’. She was an American ship taking advantage of a twenty-year-old loophole in the navigation laws that allowed Spanish colonists to export bullion to the British in return for manufactured goods. Originally the loophole had been considered beneficial to the British islands, enabling them to exchange any unwanted English products for bullion that could be used to import foodstuffs from other British colonies. Gradually the latitude had been extended from bullion to livestock. From what Nelson could make out, American merchants began to use this route as their attempts to trade directly with the British colonies got riskier. The ruse involved discharging part of their merchandise in the Spanish colonies, hiding the rest behind fresh cargoes of livestock and sailing for British ports under Spanish flags and papers. Nelson vowed to stamp out the practice, and this ship was condemned at Nevis on 17 July, but at least it suggested that the navy’s enforcement of the navigation laws was achieving some success.
Nelson felt further vindicated when the British government strengthened the navy’s powers to deal with clandestine trade. ‘I have smoothed the way for those who may come after me,’ he wrote. ‘The captains of men-of-war are now invested with great additional powers, enough to carry on the business of doing good for the nation without interruption.’50
Another change occurred on 1 August 1786, when the Boreas fired a final salute to Sir Richard Hughes as he sailed from Nevis for England. Sir Richard Bickerton was supposed to be coming out to succeed him, but in the meantime Nelson was de facto commander-in-chief of the station. The rebel had taken charge. When the Boreas holed up in English Harbour for his last hurricane season, Nelson occupied the commanding officer’s house ashore and received invitations to the table of Sir Thomas Shirley.
The two men had already restored their working relationship, and in July Nelson had performed a mission for Shirley by visiting the Swedish island of St Bartholomew as an ambassador. Nelson admired Scandinavians, whom he considered kin of the English, and the previous year had written to the Swedes to extend his best wishes for their ‘new’ settlement and ‘the ties of friendship between our countries’. He had offered his help, and true to his word ferried the Swedish governor, Baron Rayalin, from St Kitts to St Bartholomew in February 1786. Nelson was therefore an ideal choice for the new assignment. In Antigua there were worries that a new Swedish proclamation would entice enslaved blacks of British islands to St Bartholomew in search of sanctuary. On 13 July Nelson spoke to the governor, and received assurances that his proclamation would not be allowed to act to the detriment of British territories.51
Nelson and Shirley buried the hatchet, but Horatio never really trusted him. He had grown cynical during his dealings with West Indian politicos, and learned that ‘artful men will never want an artful story, and oaths will not be wanting to confirm any tale’.52
With Hughes gone, there were also new burdens, and few caused greater irritation than appointments. At the end of August, Commander Wilfred Collingwood passed him a letter he had received from William Lewis, surgeon of the Rattler. Lewis was ill, and charged Nelson with behaving ‘no better than a brute’ in refusing him permission to seek sick quarters ashore. The evidence suggests that Collingwood, through whom communications between Lewis and Nelson had gone back and forth, was at fault. Lewis said that Nelson refused him a sick ticket; Nelson that neither the necessary report on Lewis’s health nor a ticket had been presented him or sought. As soon as he grasped the situation, Horatio implemented the relevant procedures, and Lewis went ashore while Thomas Morgan, surgeon’s mate of the Boreas, stood in for him. The matter should have ended there, but Lewis’s attack on Nelson had been so public and intemperate that he was discharged from his post and the Navy Board refused to appoint him to any other unless he obtained a letter expiating his offence. There followed a grovelling letter from Lewis to Nelson, and the captain declaring, with his deep-seated decency, that honour was satisfied.53
Throughout all these tribulations, new and old, Nelson had at least one pleasurable task to pursue, a suit not less diverting but entirely different from any of his tiresome clashes with furtive officials and foreign traders. His quarry was the recipient of the series of gossipy letters he was now addressing to ‘my dearest Fanny’.
8
September 1786 found him languishing amid the heat, mosquitoes and monotony of English Harbour, ritually sitting out storms and reporting on the number of French ships about the islands. He felt strength returning. A few months earlier a doctor had said that he had to get out of the islands, but the pains in his lungs had subsided and he concluded that the ‘Great Being who has so often raised me from the sick bed has once more restored me, and to that health which I very seldom enjoy’. Still, he had been more than two years on the station and expected to be recalled. Unfinished business demanded attention.54
In particular, he looked to a permanent happy union with Fanny. Family and friends approved, as their letters had told him, and Mrs Moutray, in the midst of losing most of her significant others, also sent her blessing. Nelson was surprisingly frank about Mary, and Fanny had become accustomed to reading his impassioned tributes. Mary wished them happiness ‘equal to what she enjoyed but far far more lasting’, but was beset with misfortunes. ‘My dearest, I can’t express what I feel for her,’ Nelson continued, ‘and your good heart I am sure will sympathise with mine. What is so truly affecting as a virtuous woman in distress? . . . When you know her you must love her.’55
Money remained an obstacle to his own matrimony. Still uncertain about how deeply President Herbert would dip into his pockets to assist them, the couple decided to postpone the marriage until Horatio received his recall to England. Nelson hoped that further employment would then support whatever Suckling and Herbert might supply. He was still corresponding with Lord Hood and hoped to tap his patronage.