CHAPTER FIVE

GROAN O’ THE GALLOWS

Tom Green

I

From the thickly forested heights of Cape Masoala one can, without being one’s self observed, sweep, with an easy turning of the head, the broad Indian Ocean that pounds perpetually upon the rocky beach at the base of the Cape; the blue placidity of Antongil Bay up to its farthest reaches; the huddle of huts which make the town of Mananara, on the opposite shore, and the tiny island of St. Mary’s snuggling close to the other portal of the bay.

That is to suppose that you wish to see and not be seen,--a rather uncommon circumstance in the lives of plain, honest men, but certainly a great advantage to those who conceive that their particular and peculiar interests require secrecy. Cape Masoala has known both sort of folk. The peering botanist has explored it for his specimens; the French surveyor has mapped every inch of it, and the olive-hued Malagassy native has for centuries gone about the Cape on his innocent occasions, all quite careless as to who did or did not observe them. Certain other gentry, however, have from time to time made a use of the ancient Cape not entirely commendable. Sad to relate, such persons not infrequently came ashore from ships wickedly sailing beneath the black bunting of piracy. These climbed the steep, wooded slopes not for the purpose of feasting their souls on the beautiful; but for the pernicious design of observing those worthy people who passed in and out of Antongil Bay upon the lawful errands of commerce. In March, 1702, to take a notable instance of this reprehensible use of the Cape, not many less than fifty men lay sprawled in the tropic undergrowth of the headland watching with quick eyes the tardy evolutions of two square-rigged, stumpily built ships working their way alongside the rickety wharf of Mananara.

At length the two ships were berthed, and up their riggings men, looking like small boys at that distance, climbed and began to take in the canvas. One of the watchers in the wood yawned, stretched his lean arms high over his head and said, as he rattled the thick gold rings in his ears, “We’ll soon be to sea again, Cap’n.”

The man called captain nodded. A great bullock of a fellow he stood, hands on hips, gazing frowningly down at the bay, apparently constructing the strategy of an impending move. He had a flattish, three-cornered hat--somewhat too small for his head--pushed forward over his eyes; the breeches, stockings and buckled shoes of the period had evidently had long and hard wear in contrast with the brilliant sash about his waist from which protruded the handle of a dirk. One great, sinewy hand dangled a belt to which was fastened a thick cutlass. If he were captain, then all these fellows strewn about the grass must be his subordinates. Honest men they no doubt accounted themselves, but their looks belied them; no ordinary man would have cared to picnic with that group in their present beautiful retreat. Their complexions were as colorful as the sashes which almost all of them affected: here was the blond Scandinavian, with his blue, wistful, deep-sea eyes and tawny hair and beard: beside him would be a swart Continental--French predominantly--chattering constantly and continually winding his beard in ringlets about his forefinger, and not a few men of the blackest ebon, the hue of the West Indian negro, not the lighter tint of the native Sakalava. Whatever his color, every man there was capable of committing any violence; that was his qualification for companionship. A hard group, and how hard must the leader of it be! Well, John Bowen, the brawny chieftain, was a hard man.

Although maritime history has failed to spell his name with capital letters, John Bowen was one of the most willing little workers in the red trade of sea robbery. Where he came from and what his finish was we do not certainly know, but while his keel danced its brief hour upon the waters of the Indian Ocean, John Bowen displayed those qualities of resolution, ruthlessness and rapidity which ordinarily earned one a rapid promotion in piracy, and not infrequently a sequential elevation, before an admiring and applauding populace, at the end of the king’s rope.

While, as we say, his origins are obscure, there is little doubt that John Bowen came to this Cape Masoala, in the island of Madagascar, directly or indirectly from the West Indies, which for generations was the _alma mater_ of all the best pirates. A great school of maritime crime was this West Indian group, having, at one time or another, on its faculty such eminent masters as Blackbeard, lecturer on Violent Deaths at Sea, and whose subsidiary course on Ship Scuttling was deservedly popular. Then, too, many earnest young students from all over the world were drawn thither by Morgan’s notable presentation of the subject of the Assault, Capture and Loot of Municipalities. In fact, the whole scheme of instruction was very thorough. Two prominent practitioners of the art of piracy, captains Kidd and Avery, so esteemed the advantages there offered that both, after distinguishing themselves in the actual practice, resorted there for postgraduate work. There was a finish, a fineness about John Bowen’s work which clearly indicated the superiority of his academic training, and stamped him as one of the most promising graduates. Everybody in the Caribbean anticipated a great future for him, and, so far as we can follow his career, these friendly prophecies were amply fulfilled.

Evidently when he faced the world with his sheepskin in his hand and the blush of collegiate honors still on his brow, John Bowen had determined to set up business for himself in the East Indies, a fact which indicated the clarity of his judgment and real appreciation of opportunity, for in the East Indies of his day it was so easy for a competent pirate to get rich as to make one feel that his abilities had never been properly tested. But, of course, there were accidents and unavoidable miscalculations, and John must be supposed to have run into one of those inescapable setbacks to which even pure genius is liable, from the fact that he is perched upon a headland of Madagascar with a crew but without a ship. Of course, time and opportunity would correct that state of affairs, for the matter of appropriating a ship was just elementary freshman work in the university of piracy from which he had graduated, _summa cum laude_. And now, as John gazed down on these two ships below him, he realized with satisfaction that time and opportunity were in happy concurrence.

He selected four Englishmen--two, as it chanced, were from New York--and, directing the rest to meet him at dark in the woods behind Mananara, descended to the beach, where a broken-down native boat was staked. The party crossed the bay and Bowen himself went down to the water front to look at the newly arrived ships. It was now towards evening, and from the cookhouse rose a thin, blue spear of smoke on each ship where the supper was being prepared. Sailors were hanging over the bulwarks, smoking long pipes, and laughing and joking in the burring tongue of Scotland. They noticed the hulking white stranger loafing about the wharf, but made no comment, for one does not long knock about the waters of Madagascar without dulling the faculty of surprise. Bowen marked the names of the two vessels, _Content_ and _Speedy Return_. This latter name he thought unfortunate in view of all the circumstances. _Speedy Return_? Not if Jack Bowen knew anything about the matter.

To get the full value out of this adventure, we have to know a little something about these two doomed ships and why and how they happened to be in this little port of Mananara at this particular time. If we lift the fly-blown, time-stained pages of history we get a queerish kind of a yarn in this connection. It only needs a momentary glance, and when we have taken it, we shall the more appreciate the significance of the sinister meddling of Jack Bowen, who, of course, knew nothing of what we shall know and if he had known he would not have cared two straws,--in fact, would have enjoyed his game all the more.

In June, 1695, some half a dozen years before Jack Bowen comes on the stage, a group of Scotch noblemen, with some other folk of lesser influence, procured a statute from the English parliament and a charter from the English Crown, authorizing them to incorporate an African-Indian trading company. Their chief object was to found a Scotch colony in the Isthmus of Panama, or Darien, as it was then called. Everybody was going to get immensely rich out of the venture. But the noblemen were not stingy about it; they decided to offer the stock of their corporation to the public. They evidently had a wonderful advertising manager, for an old writer tells us that when the stock was put on the market “the nobility, the gentry, the merchants, the people, the royal burghs without the exception of one, and most of the other public bodies subscribed. Young women threw their little fortunes into the stock; widows sold their jointures to get command of money for the same purpose. Almost in an instant four hundred thousand pounds were subscribed in Scotland, although it be now known that there was not at that time above eight hundred thousand pounds of cash in the kingdom.”

That is what you may call promoting,--to get half the cash of the kingdom. It was the last chance anybody ever had of that sort in Scotland.

Everything went so well that the English East India Company became exceedingly jealous and not a little fearful that a powerful rival was rising in the north to challenge its hold in the Far East. In politics, in the financial world, in every way it possibly could, the English company sought to thwart the Scotchmen and upon the whole succeeded very satisfactorily in handicapping the latter. Being Scotchmen, however, they went right ahead, “satisfied of the envy of the English and of their consciousness of the advantages which were to flow to Scotland” from the Darien colony. Six ships were built, each able to carry two hundred emigrants, and on the twenty-sixth of July, 1698, the whole city of Edinburgh streamed down upon Leith to see the Darien voyagers depart, amidst the tears and praises and prayers of relations and friends, and of their countrymen. Many seamen and soldiers, whose services had been refused, because more offered themselves than were needed, were found hid in the ships, and when ordered ashore, clung to the ropes and timbers, imploring to go without reward.

The colony, however, was a dismal and tragic failure. When the people arrived at Darien, the Dutch East India Company--instigated it was believed by agents of the English company--forbade the factors of their forts in that region to give help of any sort to the Scotchmen. Expecting to get supplies locally and being thus refused, “the colonists fell into diseases from bad food and want of food” and almost all of them faded and died. Eight months of horror lagged along and then the colony broke up, only a handful surviving to stagger to the ship for home. In the meanwhile, however, another crowd of thirteen hundred colonists had left Scotland for Darien amid the same hurrah, only to meet the same fate as had the first, and to send back as survivors only a pitiful remnant of thirty.

Scotland laid all the blame upon England in general and the East India Company in particular and deeply smoldered the already traditional hatred between the northern and southern peoples.

Withal, the Scotch African-Indian trading company kept intact, but took on the character of a more private commercial corporation. It entered in the orthodox fashion on the East India trade wherever it could circumvent the English monopoly, and to this end sent forth its young but not unpromising fleet to Indian waters, and of this fleet the _Content_ and the _Speedy Return_ were fair representatives.

But see what an unhappy destiny pursues this Scotch company! Here it is, trying to recuperate from the terrible disaster of Darien, just, as they say of an invalid, getting about again, when wretched, wicked and utterly reprehensible Jack Bowen is here, in far-off Madagascar, lurking about in the woods ready to inflict upon the poor company another terrible adversity!

On May 26, 1701, the _Speedy Return_ and the _Content_ had sailed from Glasgow for the East Indies. What great things they were to accomplish! How they were to return soon--speedily, as the name would seem to hope--laden with gold and gain! The name of John Bowen did not mean a thing in Glasgow. Such is life. They lumbered, after the fashion of the blunt ships of that age, first to Guinea, then to the Cape of Good Hope--propitious name--and there, as well as at Guinea, they discovered there was not a little profit to be had by postponing their arrival at Malabar and the Indian trade proper and diverting themselves to the slave business. In this traffic then they came over from the mainland of Africa to the island of St. Mary’s, in Madagascar, where they loaded their holds with the negroid Sakalaves sold to them by the Hovitas and other superior tribes of the island.

So cargoed, they went on from St. Mary’s, Madagascar, to Mauritius, where they discharged their load of slaves and in March, 1702, were back again in Madagascar, at a place they called Maritan, but which has probably become Mananara, ready for another batch of blacks, and, though naturally this was beyond their expectation, the thunderbolt of as desperate a gang of pirates as ever cast dice with the hangman.

Gradually Bowen’s shipless crew gathered in the woods back of the town and impatiently waited for morning. When the tropic sun at length surged up abruptly from beneath the far, thin, eastern line of the Indian Ocean, they girded their belts about them, looked to their weapons, hefting their cutlasses and attending to the priming of their pistols, and waited the cheerful word of onslaught. Bowen called together the four English-speaking men he had first selected the day before, on the chance of being able to make immediate use of them, and left with them for the very outskirts of the town, where they settled themselves in the lush vegetation and watched their prey. Before separating from the main group, Bowen, like a true general, addressed his troops. “If it comes to trouble,” he said succinctly, “and ye find ye against a man bigger than ye, take your tools quickly”--here he tapped his cutlass, “and cut him down to your size.”

The plan was for the four men and Bowen to board the ship _Speedy Return_ by stratagem, when, if the chance was good, Bowen would sound the bo’sun’s whistle which he carried for that purpose and the reserves were to come up in full force.

Early after breakfast the lurkers noticed what was evidently the captain of the _Speedy Return_, accompanied by a group of men, come ashore and set off through the woods to the neighboring villages, evidently in the transaction of their traffic in human beings. The day burned to high noon and high noon waned towards evening, and still the cautious Bowen, not risking a fizzle in this his great and long-sought opportunity, held his hounds in the leash. Quite late in the afternoon, when it was reasonably certain the captain had gone for a considerable time, and when the remnant of the crews of the two ships were scattered, some about the town and others dozing on the hot decks, John Bowen and his four aides stepped from the brush, strode past the thatched native huts and out on the dock. They ran up the ladder and were on the deck of the _Speedy Return_.

“Ho, mate,” called Bowen, grinning genially to what was evidently the ship’s cook, carrying a butcher knife in one hand and a leg of a sheep in the other, “who’s the master of this ship?”

“Cap’n Rab Drummond, frae Edinburgh,” burred the cook, “and who be ye, mon?”

“Oh, we’re nobody; just come aboard, looking to buy a bit of breadstuff and tobacco, if ye’ve such to spare.”

There were not more than a dozen men aboard, according to Bowen’s swift calculation. Over on the _Content_, a few yards away, there appeared still fewer. The hour had struck. Bowen drew a pistol from the arsenal of his sash and thrust it against the full girth of the cook. “Go on to your cookhouse, my lad,” he commanded. “You’re going to have a few friends for supper.” Thus the chef received notice of the change of management. He took it dully and obediently; anything may happen when one goes so far from Glasgie. Sharp and shrill the signal whistle beat echoingly from the cliffs of the Cape to the heights above the town, and with a terrifying shout, the rest of Bowen’s men hurled themselves over the bulwarks of both the _Speedy Return_ and the _Content_. The gang that boarded the latter had a definitely prescribed job to do and expeditiously they did it. First of all, they ran the gaping sailors off her decks and on to those of the _Speedy Return_; then, hastening back, they smeared the decks of the _Content_ with pitch, set a train to the small powder magazine, and as the thick brown-black clouds of smoke rolled sluggishly over the sides, they fled, whooping as demons may be supposed to whoop at the mouth of the Inferno, for the _Speedy Return_. Her sides they clutched even as she moved away in tow of the ship’s boats, out into the bay, where she picked up a helping breeze; where her hastily hoisted sails began to tauten and whence she began quite prettily to glide out into the wide, the welcome ocean. John Bowen was on a quarter-deck again; it mattered to him little who claimed that same quarterdeck; he was on it and the quartermaster at the whipstaff swung the helm to this side and that, in obedience to his orders. He felt the wind of the free ocean upon his breast and lifted up his great bellowing voice in song. Ha! ha! he! ho! in a jiffy the tables had been turned; John Bowen had had the shore and no ship and now Captain Robert Drummond, of Edinburgh, out of Glasgow, had all the shore he cared to use and no ship.

No stenographer was present to record what Captain Drummond said when he came out of the woods and found the black embers of the _Content_ knocking about the piling or bobbing far out on the bay, and of his ship only the stupid, inarticulate remembrance of the gaping Malagassy natives, but without doubt it was something pretty. Captain Stewart was master of the _Content_ and probably had been absent with Drummond of the _Speedy Return_--although he might have been on his own ship and been captured with the rest of the crew; nobody has given us the precise information--but if he came out of the woods at the same time that Drummond did, there is no doubt the inhabitants beheld two of the angriest Scotchmen they had ever seen or ever were likely to see. We don’t know what happened to Stewart, but a man who spent fifteen years in captivity among the Madagascans came home with the story that Drummond found his way to Tullea, on the southwest coast of the island, where, in an altercation with a Jamaican negro, who was of course one of those far-faring West Indian pirates, he received a wallop from the black rogue which deprived the Scotch African-Indian trading company of a faithful servant and the rising British Merchant Marine of a competent shipmaster.

Now, Bowen, between the two appropriated vessels, very likely gathered in some thirty men, all well-seasoned sailors. We know the names of only two of these honest tars to whom this vivid change of circumstance occurred; Israel Phippany and Peter Freeland. Some of these captives accepted the fate of the sea and even counted themselves among the pirates; others, naturally, found the situation not to their liking and stood by for an opportunity to escape. It was all one to their swaggering captors, whether a man liked it or not; a sailor he was and sail that ship he should. None of that topmast business for the bold pirate boys; in a jam they might lend a hand at working the vessel, but ordinarily they insisted that fighting was their specialty and avoided the rope and the tar bucket as quite beneath their dignity. But they were fair in their way, for when it came to a fight they did not call on the shellbacks for help; that too would have been essentially undignified for a master pirate. This gang of Bowen stood in a rough relation to the sailors aboard as the marines do to a war vessel. Many ships, of course, were completely manned by confessed pirates, and when that was so they had to do sailor work, but whenever they could they were great little chaps for pressing men aboard especially to do the ship’s chores. So the _Speedy Return_ being happily in their possession, the pirates lay back under the awnings and drank copiously of arrack, the universal intoxicant of the East Indies, the while their bold chieftain drove his keel along for joyful fights and glorious plunder.

Swinging smartly around the northern nose of Madagascar, and shooting westerly, Bowen set the course for the Comoro Islands, some three hundred and fifty miles northwest of Madagascar and two hundred miles east of the coast of Africa. Apparently John was going to lose no time in his business, for the Comoros would be the nearest likely place to pick up a prize; no waiting until he made the distant littoral of India, you notice. His ultimate destination was Rajapore, way up in what is now called the Bombay presidency, but he did not care to go as the crow flies, but rather as the vulture does; pausing for anything that might be carrion.

The Comoros was a pretty good guess. At Mayotta, one of those islands, they found a ship commanded by George Weoley, which was loading with sugar, rum, cocoa oil and taking in fresh beef. The fact that Weoley’s vessel was in harbor did not mean anything to John Bowen; if the island itself had been navigable he would have put a crew on it and sailed it away. The _Speedy Return_ shoved alongside their victim, and casually, as men doing an easy job away below their real abilities, a handful of fighters dropped to her decks. Nobody interfered with them but the unimaginative first mate, and his protest was met with a crack on the head which created an immediate promotion for the second mate. A little more than a year after this misfortune Captain Weoley wrote a plaintive letter to Mr. Pennyng, “Chief of the English East India Company’s Factory at Calicut,” giving a full and detailed account of the naughtiness of John Bowen, wherein he states that at Mayotta he fell into Bowen’s hands and was “detained by him after they had slain my chief mate and plundered what they pleased.”

Poor Mr. Weoley and the rest of his people were taken into the forecastle of the _Speedy Return_ and thus recruited that ship’s list of able seamen. Whether Bowen burnt, scuttled or simply abandoned Weoley’s craft the good captain does not inform us, but we may be sure that when he headed off for India, he left that unfortunate vessel no better for his visit.

During the long and uneventful voyage--uneventful, that is, so far as the piracy game went--Captain Bowen, alas! did not observe those little amenities between brother captains which so pleasantly mitigate the sternness of the sea. Doubtless Mr. Weoley had to do many things aboard which drove a bitter iron into his soul. One day he might be lending a hand with the art of navigation if the load of rum captured at Mayotta should happen temporarily to incapacitate Captain Bowen; next day he might pitiably have to fetch and carry water at the behest of the sprawling villains, or again bend his elderly and stiffening back at the eternal task of pumping, and pumping ship in the Indian Ocean must have been--well, hot. He says himself that he received “many hazards of life and abuses from those villains.” Not the least of his grievances was that of listening through the long hours of a torrid night to the liquored Bowen boasting of his wickedness. That remark of Weoley’s places Bowen as the true, deliberate, almost romantic pirate and approximates him to the traditional pirate of fiction.

Off the coast of Malabar, Bowen nearly had to sober up, for he was come to his proper fishing grounds. Up and down this roadstead passed much of the commerce of the East Indies. Quite a medley it was, to be sure. There were craft from the ten-ton sloop belonging to a petty local merchant, up through increasing tonnage chartered by Moors, Persians, Armenians, Hindoos, to the two-and three-decker so-called East Indiaman, the ship of the august and imperial East India Company itself. In disturbing this traffic captain William Kidd had found a fortune in less than six months, and numerous pirates of many nations had here easily enriched themselves.

Captain Bowen, who must have been something of a joker as were so many of his outlaw colleagues, doubtless enjoyed immensely taking a ship with the name of _Prosperous_, which he did shortly after his entry into Indian waters proper. With a chuckle he realized that he had made the owners of the _Content_ discontented; he intended the _Speedy Return_ should go home neither slowly nor speedily, and it is very likely that he put the charterers of the _Prosperous_ into bankruptcy. It might have been of a better omen in those days to name your ship the very opposite to your hopes; say call the _Content_ the _Dissatisfied_; the _Speedy Return_ the _Never Come Back_ and the _Prosperous_, _Hard Times_,--in which case a marauding pirate would at least lose the dramatic pleasure of surprise.

Having bagged the _Prosperous_, Bowen put a crew on board and used her for an auxiliary, and with this augmented command in a few months, according to Weoley, he took “six sail of ship” and “hundreds ruined.” The last of these six ships was one from Surat, evidently of considerable size, for Bowen transferred all hands to her and then, being as drunk as a fool, entertained the amazed city of Rajapore with a grand nautical bonfire made up both of the _Prosperous_ and the _Speedy Return_. How uneasily the stockholders of the Scotch Indian-African trading company would have turned in their beds had that lurid light gleamed against their far-off window panes!

This man Bowen was an incorrigible ship burner, which proves that he had not the heart of a true sailorman or the first instincts of a real conqueror of the sea.

On this captured Surat ship, when Bowen got over his pyrotechnic spree, he counted up his men and found, so Weoley records, “70 Lascars (native of India) and 146 fighting men (the Lascars being used as sailors) of which part are 43 English, the better part of the company French, the rest Negroes (our Jamaica friends), Dutch and other nations that cries ‘yaw’.” Quaint foible! Amid all his sufferings poor Captain Weoley could still find a feeling of irritation for men that “cries ‘yaw’” instead of “yes.”

Bowen steered from Rajapore down along the Malabar coast until he came to Cochin, a Portuguese settlement and where a miscalled Portuguese war fleet made its anchorage. Those old sieves were the local maritime joke, and a brisk pirate would think little of using them for mooring buoys. This aggregation had once gone out after the formidable Captain Kidd and much to its surprise and pain had found him. It had never been known to attempt anything notable since. Certainly, they did not trouble John Bowen. As Bowen dawdled along in these parts, touching at this and that small port for frolic or land robbery or both, “about three leagues to the northward of Cochin” Weoley states that “I got clear of the pirates.” Thus ended the worst seven months in the life of that worthy mariner.

What became of Bowen after Weoley escaped from him we do not know, at least so far as the authentic record we are consulting is concerned. Probably he met the violent end of his ilk; one thing is sure, however; he was never hanged for the piracy of the _Speedy Return_, but--and this makes the dread, dark sequel of the crime--another man who knew not Bowen, Robert Drummond or the ill-fated ship _Speedy Return_ suffered by one of the most notable miscarriages of justice known to the law as the murderer of Captain Drummond and the pirate of the _Speedy Return_.

II

On March 8, 1702, a ship called the _Worcester_ weighed anchor in the Downs and so began the long voyage from England to India. Perhaps on that very day, certainly within a very few days of that date, the brigantine _Content_ was burning to the edge of the waters of a Madagascar bay, and her consort from Scotland, the _Speedy Return_ was romping toward the Comoro Islands beneath the stern and unlawful drive of a sea brigand.

The purpose of the _Worcester_ in the East Indies was to trade, though she did not belong to the East India Company but appears to have been owned by a small group of investors, probably retired sea captains for the most part. To get a swift idea of what was meant by the East-India trade you have only to recall the Hudson’s Bay Company in Canada, for the methods of both these great trading corporations were practically the same. Just as the Canadian company stalked across Canada from fort to fort, so the India company ringed the coast of India with forts, which, like the Canadians, they called “factories” and put in charge of an officer termed a factor. Both companies held exclusive monopolies in their respective regions by virtue of government grants; both maintained fleets for the exportation of native products and the importation of English wares and supplies. Each had to meet a certain amount of competition in spite of its exclusive privileges.

The East India Company was far more seriously challenged by rivals than was the Hudson’s Bay Company, even in the devastating days of the latter’s struggle with the Northwestern Fur Company. Not only England but Holland and numerous other commercial nations of the continent hungered for the loot of India, and between the traders representing all these conflicting greeds an almost continuous state of warfare prevailed, which more than once drew in the governments themselves.

Not only foreign competitors harassed the English East India Company, for among its annoyances was what was called the “interloper,” the English trader who poached in their preserves, in defiance of law, to such an extent that not a few considerable fortunes were thus established. But the company did not always pursue these trespassers with the severity which they might lawfully have used; local conditions on the coast made another English ship, even an interloper, not unwelcome, and at such times these gentry were tolerated and even welcomed with a surprising friendliness.

In addition to the continentals and the interlopers, the Scotch African-Indian company had, as we have seen, following the wreck of the Darien colony, begun to send its ships out for a share of the Indian spoils, two of which ships, through the unwitting kindness of Captain John Bowen, had just been prevented rather forcibly from troubling the sleep of the English company.

The status of the _Worcester_, then, was that of an interloper, but in one of the more genial humors of the monopolizing company, and Captain Thomas Green, her commander, had reason to believe that it would not seriously molest him as he sought to pick up a couple of hundred tons of more or less profitable cargo.

An old, slow, lead-sheathed craft was the _Worcester_, formerly in the whaling business. She was about a hundred feet in length and twenty-two or so feet in breadth, and carried a crew of thirty-five men. Tom Green, her master, was an honest old sea dog, thoroughly loyal to his owners and to his vessel; the admirable sort of man who does Britannia’s drudgery at sea, happy if at last he can step off his quarterdeck with all the limbs he had when he first went up the gangway as a ’prentice, and content to sink into a permanent armchair on the sunny side of a cottage close to tidewater and the lanes of sea trafficking. And but for John Bowen, it is reasonable to suppose that Tom Green would at length have achieved his modest, commendable ambition.

Their objective was Malabar by way of Delagoa Bay. It took her five months to get from the Downs to Delagoa. Here they stayed long enough to build a sloop to be used in river work at Malabar, the materials for which they had brought with them from home. On November 15, after a voyage of a little more than eight months, she came to Anjango (now Aniengo) at the tip of the Malabar coast, where Captain Green politely put ashore to pay his respects to Mr. Brabourne, chief factor of the English East India Company’s fort at that place, and incidentally to make sure that the company was still in the generous notion of living and letting live. One never knew when its policy might suddenly veer like the weathercock on a church steeple.

Happily, Mr. Brabourne and his gentlemen were as genial as a June day. Madeira and compliments were enjoyed together and Green went back to his ship, rejoicing in at least the tacit consent of Mr. Brabourne to his trading operations. With that load off his mind, he sailed for the Keilon River, a few leagues farther on, and there established contact with Cogi Commodo.

We have mentioned big rival corporations and interlopers, but the coveted Indian trade produced another institution,--the petty ’longshore merchant, white or black, most generally a follower of the Prophet from some of the far eastern Mahometan countries. After he had prospered above the peddling stage, this gentleman usually established a little warehouse at the mouth of some one of the sluggish rivers emptying into the Arabian Sea, and there conducted a business which was for the most part illegal. Briefly, he was a purveyor of stolen goods brought to him by the pirates which infested those regions; a “fence” as it is called, and without whom piracy would have been almost impossible, for if a pirate could not dispose of the cargoes he took of perishable or ordinary mercantile stuff, his activity would have been immeasurably curtailed. For instance, before he made his lucky strike, Kidd took tons of butter, cargoes of coffee, opium enough to give his men a thousand years of delightful dreams, far more than could be used aboard his ship and which would have been useless without the obliging fence. This very same Cogi Commodo boasted to the crew of the _Worcester_ that he was “merchant” for Kidd. The Cogi was suspected not only of buying from the pirates but of informing them of the movements of promising ships and even of assisting in their actual assault and capture. Not that Green wanted any such service as this from Commodo; he used him on the more legitimate side of trading, for the Cogi, like the rest of his kind, continually gathered in native products from under the noses of the English forts, for the prime purpose of supplying interlopers. You can see the Cogi was quite an irregular sort of gentleman on whichever side you took him.

The _Worcester_ came to the Keilon River on November 21 by way of Callequilon; December 22 she was back at Callequilon, then made a big jump of a hundred or more miles up to Cochin, reaching there January 10, 1703, just about five years to a day after Kidd had made his big capture of the _Quedagh Merchant_ in those very waters; and but a few months after the unfortunate Captain Weoley had made his escape at that place from the wicked John Bowen. Green’s northward trading seems to have been hurried, for two weeks later he was at Calicut, a month after that back at Cochin, and by March 8 was again anchored in the roadstead of Callequilon.

Life on a trading ship on the coast of Malabar in the morning of the eighteenth century was not easy. Sickness kept a large number of the crew helpless at all times. Doctor May, the ship’s surgeon--a young sawbones of twenty-six years--had so many patients that he had to put up a crude hospital ashore at Callequilon, where the sick were taken from the ship and left while the vessel worked up and down the coast.

Most of the time it was just a job of hard work, either in sailing or in stevedoring the piles of cargo which would be collected at one place and another by various Cogis to await the coming of the _Worcester_. The busiest man aboard was then the supercargo, on whom fell the burden of handling the cargo, keeping the accounts and looking after the financial interests of the owners. The work and worry of it all gave the prevalent fever when it struck him added force, and the supercargo slipped through an open port in a weighted canvas shroud to join the half-dozen or so of his companions who had already preceded him to the muddy hammocks that swing eternally in the tides of the sea.

But there was a lighter side. Even in Keilon a sailor could spend his wages, or gape about at the elephants, the palanquins, the ladies with rings in their noses or stare uncomprehendingly at the fantastic ornamentation of the ancient temple of Shiva. Captain Green himself found time for the social turn, and so ingratiated himself with a lady of the country that she gave him a well-trained young black slave, Antonio Francesco, to be his personal servant. Green thought a great deal of the lady’s kindness, for he took Antonio aboard and to make sure he would not lose him, chained him to a spike in the forecastle floor, in something of the fashion that seamen are wont to bring home a pet monkey.

All of this was very well to be sure, but April was to prove a month of hard luck for the _Worcester_. On the tenth of that month the sloop was driven ashore in a gale and destroyed. In the same storm Green tried to make Keilon, but was forced to anchor between that place and Anjango. Here his cable parted and serious leaks were sprung in his hull. Amid all that, however, he was mannerly enough to fire five rounds in salute to the _Aureng-Zeb_, another trader which happened by and who, as politely, returned the compliment. Green was so worried about the condition of his ship that when the weather moderated he invited the master and mate of the _Aureng-Zeb_ to come aboard and survey his ship. Their unanimous judgment was that the _Worcester_ was then unseaworthy for navigating to England.

That finished the trading cruise. Adverse circumstances had curtailed the enterprise, yet Green had made, on the whole, a profitable stay in Malabar. He had operated in a maximum distance of about one hundred and fifty miles; that is, from Anjango to Calicut, though his dodging back and forth had added much to his mileage. In ordinary event he would have been nearly ready for home. His most serious reverse was in the wreck of his sloop, which his owners had hoped he would be able to sell and convert into goods when he should have finished with her services.

Mr. Brabourne, of the fort, again most obliging, advised Green to go to Bengal for repairs, and on the fifth of May, 1703, the _Worcester_ set forth to pump her way to the shipyards there.

Captain Thomas Green might fairly claim a grudge against the elements. They buffeted him in Malabar to the loss of his sloop, the damage of his ship, the lessening of his trading, laid his keel up for a long time in careen at Bengal, and now on his way home to England, after one would suppose the weather had done its very worst for that voyage, it met him off the coast of Scotland and in a seething fury of wind and wave hurled him into the Scottish port of Leith, where he was fain to run for shelter. Alas! he had fled the fierce wrath of nature to the yet more terrifying wrath of man.

Scotland, in 1704, when the _Worcester_ was thus blown into the port of Leith, was again having her troubles, all of which were turning around the hoodooed Scotch African-Indian company. That afflicted corporation had already marked the _Content_ and the _Speedy Return_ off the register as unaccountably missing, when behold a sister ship of these two, the _Annandale_, imprudently venturing into the Thames, was seized by the English East India Company in the assertion of its exclusive rights in the Indies, one of the impudent things which so endeared that company to the rest of the trading world. Now add that grievance to the dreary Darien affair, already laid, as we have seen, at the door of the English company, and you can understand why “Annandale” became a slogan in Scotland and the focus of all its hate. Public opinion whirled the Scottish authorities into action. These petitioned the return of the _Annandale_, but in vain; the tenacity of the East India Company, capable of holding a country of hundreds of millions of people in its fist, regarded the Scotch protest as lightly as some folks do their debts. To have and to hold was its motto, though all the kilted Highlanders beyond the border skirled in a fury of revenge. The Scot, however, is no baby; nay, he has considerable iron in his own system, and a turn for definite action himself. “Verra guid, mon,” said the north to the south, “verra guid; ther’s an English ship cam’ into Leith; you keep the _Annandale_; we tak’ your Englishman.”

Which they promptly did--none other than the _Worcester_.

Captain Green was certainly now in a pickle. The Scotch government seized his ship and now he had to stand around with his hands in his pockets and wait the problematic issue of all this international bickering. And the thousand pounds’ worth of patiently collected cargo, the fruit of the peculiar industry of many Cogis--that, too, was sealed by the authorities so that a man dare not take as much as enough for a cup of coffee from the hold. If he had been an East Indian Company ship he might have seen a little sense to it all; but what cared he for either the Scotch or the English companies? Very little, indeed, and yet--well, it was beyond words, even purple maritime words. He plumped down in his cabin to wait.

Now, hard by the docks in Leith there was a little parlor groggery kept by a widow named Seaton, who with her nineteen-year-old daughter, Anne, thus labored to make an honest livelihood. A widow, a lovely girl and lots of good Scotch whiskey all under one roof,--why the situation seemed just specially made for the advantage of George Haines, the steward of the _Worcester_. What had looked at first like a long, monotonous detention on a seized ship now suddenly brightened with the most attractive promise. George accepted the opportunity so readily that shortly he became almost a part of the Seaton home, and in an admirably brief space of time nothing less than the accepted suitor of the fair Anne herself. That meant, as any one could see with half an eye, that eventually George Haines would be the proprietor of this neat little business. No more stewing around the East Indies for him; that was all in the past, or very soon would be. Well, truly, it is an ill wind that blows nobody good.

Of course, Mrs. Seaton had neighbors, and just as much of course she talked to them about her business, her customers and her customers’ business. One of these neighbors was a dear old lady by name Mrs. Wilkie, also a widow. She was one of those sad folk who flit down to the docks to see every ship come in and who speak to every sailor that steps ashore, in the quest of loved ones long silent upon the far-off seas. Every one knew Mrs. Wilkie’s story. She was the mother of a bonnie lad by the name of Andrew, who some three years before this, had gone as surgeon on the ship of Captain Drummond, the _Speedy Return_, for a voyage to the Indies, and who, after one letter from Madagascar by way of Mauritius, had not been heard from this long time; neither he or his ship nor his captain. And now the old lady lived with her other son, Jamie, a tailor, and whenever a ship came into port from the East Indies, no matter what the hour of the day or night, the sailors would see a little old gray lady waiting to ask them for news of the _Speedy Return_. To Mrs. Wilkie, then, Mrs. Seaton made mention of the _Worcester_ and of George Haines, its steward.

Mrs. Wilkie and Jamie hastened together to the widow Seaton’s to interview George. They found him in the parlor, comforting himself with a big tumbler of grog. Jamie bought a drink and talked easily of the voyage and hoped that George and all the others had fared well. This seizure business,--that was bad, of course; but it would all come out all right. George felt it was coming out all right for him as it was. Jamie coughed, shifted a bit in his chair and at length came out with the vital question: “Would you be meeting a ship in your travels, the _Speedy Return_, captain Rab Drummond, out o’ Glasgie?”

Mrs. Wilkie’s heart waited. The clock ticked loudly. The widow Seaton paused with her potato-paring knife poised in midair. On the kitchen threshold merry-faced Anne stopped and gazed as though she were watching a stage play.

“Sink me! What have I to do with Captain Drummond?”

Bang came the tumbler on the table; the steward’s loose, foolish jaw was shoved forward defiantly. Yet what was there about him? Something--yes, the steward is in the grip of a great fear. Since frequenting the widow’s shop, George had heard quite a lot about this Captain Drummond, because the captain, young Andrew Wilkie, and doubtless many others of his crew had belonged in this city of Edinburgh, of which, as you know, Leith is the port and a suburb. Folk were always asking him about this Drummond till he was fair sick of it. He leaned over and stuck his fat lips against Jamie’s ear. “While we was on the coast of Malabar,” he began with solemn, nautical preface, “a Dutch ship told us that Captain Drummond, out o’ Scotland was turned--a pirate!” He leaned back and gazed at Jamie’s astonished face. Yes, he had achieved an effect; maybe he could get another. “Aye, sir, so we manned our sloop, we did, putting guns and patereroes aboard, and got ready to give the Scot a pound or two o’ lead.” Now the creeklet of his imagination went dry. “He never came” he ended rather ineffectively.

Jamie was beaten. He drew off his artillery and departed to allow a light fire ship to come alongside. But all Anne got for her wiles and her work was, as she put it, “He found they had a design to pump him; but they should not be the wiser of him, though what he had said he had said.” He was no ship to be pumped, was George; but you see the implication that there was water in the hold.

Among the patrons of the house was a jolly old gunner, Will Wood, who used to come down from the fort in all his splendid regimentals to drink toddy and tickle the chin of the laughing Anne. He got interested in the “pumping” of George Haines, steward of the seized ship which lay outside at the dock, and resolved to try the bluff, hearty, man-to-man approach. He loaded George up with whiskey until he “fell into a melancholy fit,” from the burnt-sienna depths of which he emitted this frightful croak: “It is a wonder that since we did not sink at sea, that God did not make the ground open and swallow us up when we are come ashore, for the wickedness that has been committed during this last voyage on board that old bitch _Bess_.”

By the “old bitch Bess” he meant the _Worcester_, whose spars might be seen through the parlor window dripping in the mournful rain.

Will Wood slapped the steward’s knee. “Come, my lad, take a turn on the links; you’ll feel better; what’s a bit of wet?”

Dolefully George tottered out of the hot parlor. Behind him the genial artilleryman turned and winked portently at the watching company. “Now’s the time,” said the knowing wink; “we’ve almost got him.”

The pair strolled out by the castle, they walked on the golf links; they became intimate. Said jolly Will Wood at the right moment, “I heard a friend of mine say that he knew a man who got it right from a fellow that could swear to the truth of it, that the uncle of your first-mate, Madder, was burned in oil for attempting to set fire to the Dutch ships at Amsterdam.”

George stopped in his walk. He raised a finger toward the sky--a reeling, waving finger--in solemn affirmation. “If what Mr. Madder had done during this last voyage,” he declared slowly, “were as well known, he deserved as much as his uncle had met with.”

Under all the circumstances, that remark could only mean one thing--the _Worcester_ had been concerned in the piracy of the _Speedy Return_ and the murder of her crew, who were then supposed to be all dead. Incredible as it may seem, this drunken maundering of steward Haines, coupled with the unintelligent suspicions of the Wilkies, the Seatons and others, passed from the water front to the city until it reached the officers of the law who--no more intelligent--made it the basis for a charge of piracy and murder against Green and his crew, upon which they were all arrested and marched off to the dark holes of the old Tolbooth prison. The _Annandale_ was forgotten; the _Speedy Return_ and Captain Drummond took its place, and all Scotland roared with one voice for vengeance.

Why did George Haines thus seek to link the _Worcester_ with the piracy of the _Speedy Return_? The conversations above reported between the steward and the Wilkies, the Seatons and Wood are exactly as given on the subsequent trial of Captain Green. At that trial the lawyers for Green and the rest of the crew accused with him of the piracy of the _Speedy Return_ and the murder of Drummond, sought to explain Haines’ motive by his love affair with Anne Seaton and his desire to become proprietor of the little Seaton tavern. They also laid much of his talk to the influence of liquor. There is something in both of these arguments, but it is probable that a greater motive than these two dominated him, and that was fear. With the state of the public mind in Scotland in the condition it was about Darien, the _Annandale_, the English and English East Indian traders, it is not unlikely that a notion blew about the water front when the _Worcester_ came in to Leith and was seized that perhaps this was one of the hated East India Company ships, from which it was just a short step to the suspicion that, as such, or at any rate as an Englishman trading in the East Indies, the _Worcester_ _might_ have had a hand in the disappearance of the long overdue _Speedy Return_. Evidently, reasoned the Scotchmen, the _Speedy Return_ has come to harm; nobody would harm a Scotch ship in the Far East but some Englishman; here was an Englishman from the Indies; ergo, he probably had pirated the Scotchman. This thought, more or less tangible, was all about the _Worcester’s_ men as they loafed on the water front. In those times, such was the rigor of the criminal law and the uncertainty of acquittal, innocent men would rush to turn state’s evidence and take the lesser evil of imprisonment rather than execution. That this was the condition of things would seem to be shown by the fact that Doctor May, the _Worcester’s_ surgeon, became state’s evidence, as did the slave Francesco and another black who had been shipped at Malabar, and as many others made confessions as could hope for leniency. This fear, then, working on the steward’s liquor-muddled brain, together with his desire to ingratiate himself with the Seatons, brought about the last act of a play opened by John Bowen in the Bay of Antongil in Madagascar.

With all of Scotland from north to south and east to west crying for vengeance, very little time was lost in bringing Captain Green and all the rest of his men, excluding the doctor and the two blacks, and including George Haines, who somehow missed the privilege of becoming queen’s evidence, to their trial in the old court in Parliament Square in Edinburgh.

On March 5, 1705, the men of the _Worcester_, with the sturdy and indignant Green at their head, were marched between the bare bayonets of the City Guards from the Tolbooth to the old courthouse in Parliament Square, there to stand their arraignment and trial. George Haines’ liquorous eloquence is about to prove the efficient cause of many and tragic results.

A great crowd clogged the court benches and galleries, so much so that one could not have swung a thought, much less a cat, about one. The plain attitude of these blue-bonneted folk was that the accused and the troubles of Scotland were identical. It is fatal to become a symbol.

Beneath the bench was the lawyers’ table, where now court servants were putting quills and papers and books. Already the prosecution is gathering about their end of the table,--a long string of grave lawyers, under the leadership of Procurator Fiscal, Alexander Higgins. And who will stand up for the poor sailormen? An astounding array, a most impressive alignment of legal ability will. Sir David Cunningham heads the defense, but he will soon drop out and be succeeded by Sir David Thoirs, with whom will be Sir Walter Pringle, Mr. David Forbes, Mr. George Alexander, Mr. John Spotswood and Mr. John Elphinstone. Why, these are names of as much professional weight as are those who will oppose them on behalf of the Crown.

How inspiring to behold this important company of lawyers quick to the defense of the forlorn strangers by the power of a pure love of justice and a jealous wardenship of the bright honor of the Scottish Bar! For how else could these sailors--worth not a penny between them, and with their captain but little wealthier--call to their side these advocates who had won even the dignities of knighthood in the contests of the forum?

For a distressingly cold matter of fact, however, there were several other motives which conceivably prompted the efforts of the gentlemen for the defense, and a way that you would never guess was the one by which they entered the court as procurators (attorneys) for the defense, and that was--but wait, let us not anticipate.

Sir David Cunningham smiled at Sir David Thoirs and presented his snuffbox; Sir David Cunningham bowed to the Procurator Fiscal and did not offer snuff. Mr. Procurator Fiscal could afford to overlook a little thing like that, for he felt this was to be his hour.

Presently the macers came in and the people shuffled to their feet and stood while the Judge of the High Court of Admiralty with his string of “assessors,” or specially appointed assistant judges, all in their scarlet-dappled gowns, solemnly embanked themselves on the seat of authority.

The judges sat; every one but the prisoners sat, and then Mr. Procurator Fiscal, née Higgins, arose, conscious of the spotlight, and with orotund voice emptied himself of two tremendous indictments, alike in word and effect; one directed at one group of defendants and the other shafted at another group. Canny fellow, this fiscal; he split the defendants so that, if by mischance one section were cleared, he might have better luck with the other. Evidently he was an impartial and fair-minded prosecutor.

If it were not that many men and perhaps some women have been hanged on them, those old indictments would be the law’s best joke. Here is what might be called the Fiscal’s charge proper:

“That upon one or other of the days of the months of February, March, April or May, in the year 1703,” the _Worcester_ “did encounter or meet with another ship or vessel, sailed by its own men or crew, upon the coast of Malabar, near Calicut, and the said vessel bearing a red flag, and having English or Scots aboard, at least such as spoke the English language”; which red-ensigned ship Captain Thomas Green and his crew first attacked with their sloop, and afterwards with the _Worcester_; that the defense was overcome, the defenders slain, their bodies cast into the sea and their ship looted.

Notice the fine explicitness of this indictment. On any one of the days of four months, in a vaguely indicated region, the defendants attacked a ship carrying a red flag and manned by English-speaking sailors. The implication was to be gathered that the ship was the _Speedy Return_; but the prosecution could not quite go so far as to paint a name on the bows of the red-flagged ship.

The job of defending against this blanket charge probably looked too great to Sir David Cunningham, for he drops out at this point and the load falls back on Sir David Thoirs and his colleagues.

In addition to the charge, the indictments set out, through several pages of close print, the entire evidence which the Crown expected to prove. A great rigamarole, this, containing a particular recitation of everything that George Haines had said to the widow Seaton, her daughter Anne, Will Wood of the artillery, and Jamie Wilkie, with which we are already acquainted.

Incorporated with all this, was a long-winded yarn by the ship’s doctor, May, who had been granted the comfort of turning state’s evidence, and from which it appeared that the doctor himself and some others (among whom was the second mate, Reynolds, according to the oral admission of the Fiscal) being ashore and hearing the firing of guns, came to the water’s edge and saw a captive ship riding at the stern of the _Worcester_. The cannonading had ceased by that time, so the surgeon went aboard, where he found the decks of the _Worcester_ littered with goods. He asked the reason of it all of one of the crew, whereupon John Madder, first mate, overhearing him, turned angrily to the doctor “in a tarpaulin temper” as the doctor says, and exclaimed, “D--n you! What have you to do to inquire? Meddle with your plaister-box!” The surgeon then went down to his “chest” and called for the wounded to dress them; three of whom, “Antonio Ferdinando, and one Duncan McKay, now dead, and another” came for treatment. These refused to tell him how they came by their wounds “whereupon the chirurgeon refused to dress them if they would not tell him how they got their wounds, and the said John Madder came to the chirurgeon in a passion, and asked what his business was to ask so many questions, when he did see the wounds so plain before him, calling him a blockhead for not dressing them,” and winding up by ordering the doctor ashore. There the surgeon met the ship’s interpreter, hired locally for the sojourn, who told him that some of the crew of the _Worcester_ had brought the captured ship into the Keilon River and sold it to Cogi Commodo.

Such were the indictments, and they were so drawn because of the peculiar nature of the jury’s verdict under the Scotch practice, which did not find the fact of guilt “as charged,” but merely the truth of each item of the evidence, leaving to the court to pronounce the legal significance of those findings. It’s a jumbled-up thing and would take a treatise to explain. Some historians charge that this form of verdict was the child of political skullduggery and framed first to catch covenanters and other radicals for whom juries were showing too much sympathy and were acquitting on the general verdict; the idea being that a jury would have to find as a fact that Dougal was meeting in a bog with his confreres, while the judge could remove from the jury the temptation of turning in “Not guilty” by reserving to himself the declaration of the legal import of the finding of fact as to Dougal’s actions.

Next, after arraignment the indictment (we refer to it in the singular as both documents were of the same effect) must be approved by the judges; that is, the court must declare that if the evidential facts set out in the indictment are proved, such facts will make a proper charge and, if found by the jury, will be sufficient to convict.

Obviously, then, the big battle of this campaign must be fought across the indictment. Alec the Fiscal, with his army, will struggle to get it approved; Davy Thoirs and his gallant legion are ready to break their hearts in an effort to get it condemned. The actual trial will not be important, for if the indictment be held good, the Fiscal’s witnesses will simply recite what is already written in that indictment, and all the jury will be able to say will be that sometime in February, March, April or May, 1703, the _Worcester_ was off the coast of Malabar, that the ship’s doctor heard but did not see firing, that he was told the prize was sold to a Malabar merchant; that a drunken sot babbled in a widow’s house, and the court will have already pledged itself to declare those circumstances constitute piracy, robbery and murder.

Three occasions, March 5, 7 and 13, mark the chronology of this high forensic conflict. Its most lucent presentation requires that the time element be disregarded here, and the arguments put together as a whole. The debates were oral but we know what passed because, according to the fashion of the time, what was said in court must afterwards be put in writing by counsel and given to the clerk “to be entered upon the court books.”

Choosing our own time arrangement, then, first the defense attacked the jurisdiction of the court to hear the case at all. It was argued that the alleged crimes were committed on the coast of Malabar and by Englishmen, therefore the accused should be sent to England for trial. Alec the Fiscal countered that the crime charged being piracy, and pirates subject to arrest anywhere, the place of arrest and not the place of offense determined the court’s jurisdiction,--what you might call the geographical boundaries of its power. What Alec the Fiscal is thinking of is the indisputable principle that pirates actually in the act of crime may be taken anywhere. That is not the same--and he must have known it--as a presumably innocent ship being informed against on suspicion. English admiralty practice was somewhat of a bar to the Fiscal’s theory, so he kicked the English admiralty courts out of the window, saying, “as for what may be the custom in England, it doth not concern, nor can be any rule for us.” Looking at it that way, of course the judges had little trouble finding themselves competent to arbitrate the fight. Roars of delight from the Darien stockholders.

Second, the gentlemen of the defense now threw their weight against the indictment itself. They urged that it was too informal, too general, too indefinite; that it did not specify day or place, and only by far-drawn implication charged that the vessel pirated was the _Speedy Return_. Here’s the exact language of their protest:

That the libel (indictment) was irrelevant, as being general and indefinite, not condescending (stating) upon the name, designation, or any other sign or evidence by which the ship alleged to be seized might be particularly distinguished, nor yet the persons’ names alleged to have been murdered, or to whom the ship and goods robbed did belong; which seem to be absolutely necessary in all such criminal indictments, not only as a requisite in form, but in equity and reason; without which, persons accused should be in great hazard from general and indefinite libels, and precluded from their means of defense, which otherways are obvious, when the accusation is certain, special and pointed.

Strong, sane, splendid words! Cutting through the fog of passion and prejudice like a clear, pure beam of sun. Whatever may have brought them into the case, Davy Thoirs and his men are here the mouthpieces of the law in all its majestic wisdom.

How did the Fiscal meet this smashing onslaught? He dodged. “He had informed as definitely and closely as the thing would allow,” he whined, “for what sense or reason is there, that the prosecutor should be made to state positively on day and place, in crimes that are crimes at all times and everywhere; unless it be for the very reason that the defender, acknowledging the crime, offers to purge himself by the exception of alibi?”

Hardly credible, is it? A prosecutor should not specify the date and place of a crime lest the defendant prove he was somewhere else at the time. This is the atmosphere, surely, of Alice’s Wonderland. Why, a defendant might actually have been somewhere else than at the place of the crime, and what would a poor Fiscal do then? Sir Patrick Home at the bar rolled a pathetic eye up at Sir John Home on the bench. What will happen in Scotland if people are going to insist on such absurd propositions as that advanced by the defense? Well-a-day and two Alacks!

The judges would consider the matter.

It did not do to make any false moves before Davy Thoirs, and this is just what the Fiscal did when he admitted that John Reynolds, one of the defendants, was ashore at the time of the attack. Swift, hard, the defense hit this point. Under that practice one defendant in a criminal action could not be a witness for a co-defendant until “so purged from being _socius criminis_ (a fellow criminal)” as to be “put in case to be a witness.” If Reynolds could be cleared of the crime he could testify for his fellows. For a situation of that sort the law provided that one defendant wishing to use another as his witness was to “raise an exculpation” on behalf of that witness; that is, he would offer to prove such and such facts concerning the desired witness, upon which a trial was to be had, when, if the party were cleared or “exculpated” he could then take the stand and return the compliment to his erstwhile co-defendants. On behalf of the accused, the defense now offered to exculpate and thus qualify John Reynolds, on the ground that, as admitted by the Fiscal, he was on shore at the time of the crime charged and therefore not _particeps criminis_.

The Fiscal roared. “You can’t do this,” he yelled, and the noisier he grew the vaguer his argument became; you have to positively offer to prove Reynolds was somewhere else on some exact day or not on his ship for four months together. My indictment may be vague, was what he meant, but your alibi must be as specific as a bookkeeper’s accounts. Why, that was why he had drawn his indictment so loosely,--just to head off alibis.

The judges would consider the matter.

Why continue? It was all on that stripe.

On the morning of the thirteenth, the judges announced the conclusion of their deliberations.

“The judges and assessors,” came the stiletto tones from the seat of Justice, “having advised both the indictments pursued by Mr. Alexander Higgins, Procurator-Fiscal of the High Court of Admiralty, against captain Thomas Green” and the others, find, that “Reynolds being libelled against as _socius criminis_, a fellow criminal, and there being no specialty or particular ground of exculpation proponed, why he should be previously tried repel” the offer of the defense to exculpate him and “repel the objection against the generality of the indictments, in regard to the nature of the crimes and find the crimes of piracy, or robbery or murder, as libelled, being proven by clear and plain evidence, relevant to infer the pains of death ... and remit the whole to the knowledge of the assize (jury).”

Captain Green’s snuffbox tinkled along the floor. Sir Patrick Home of the prosecution glanced up gratefully at Sir John Home on the bench; the audience breathed a collective Ah! The judges rose and passed out; their gowns were more than dappled,--they now dripped with scarlet.

March 14, and the thing could be quickly finished. The assize, or jury, was impaneled, made up of fifteen members, whose verdict was sufficient, if found by a plurality of votes.

Mr. Fiscal first put on the stand Antonio Ferdinando, cook’s mate. He testified through an interpreter, one captain Yeaman. After asserting that he was twenty-four years of age, single, a Christian and the son of Christian parents, he claimed that he saw the _Worcester_ attack the unnamed ship “upon the coast of Malabar”, practically as set out in the indictment, and that in the engagement he was wounded, in the arm, “which wound he now shows to the view of all.” Sensation in the courtroom! He said it was a running fight and lasted for three days, and occurred between Tellicherry and Calicut. During his testifying it was apparent that he was extremely sick, and from time to time he had to stop and stretch at length on counsel’s table until he could recover his strength to proceed.

Next up was Doctor May, who said he was twenty-six years old, and who, being white, enjoyed the presumption of being a Christian. He repeated the statements which he had given for the indictment. He said he heard the firing while he was at Callequilon. If Ferdinando truthfully told that the attack was at Calicut, the doctor must have had unusual powers of hearing, for that place and Callequilon are more than one hundred miles apart. This was a little too much for even this tragic farce, so towards the end the doctor brazenly switched his testimony and said that the firing happened while he was on the ship “going up the coast of Malabar.”

Antonio Francesco, the slave, was the third to come on. He had been chained to the forecastle floor during the firing, but was told by Ferdinando that the sloop was attacking a ship. He added the highly significant information that Ferdinando was only employed forty-eight hours before the _Worcester_ left Anjango for Bengal and home! If that were so, he was not on the ship at the time Doctor May was at Callequilon, for that was long before the departure for Bengal.

But then, one could amuse one’s self indefinitely picking out this kind of discrepancy among the witnesses.

James Wilkie, Will Wood and the whole Seaton circle, of course, washed their faces and came trippingly to court to tell of the important utterances of George Haines, and to impinge their little personalities a moment upon the national retina.

Under the custom of that day counsel for the criminal defendant could not give his client much help on the facts, but Thoirs went as far as the law would allow him. He disputed the qualifications of the Antonios, claiming that they did not own ten pounds apiece, and therefore could not be heard to testify in a Scottish court. This was easy for the Fiscal. “Oh,” said he, “we calculate that each has wages coming to him from the cruise, which will total more than ten pounds.” And the court declared the witnesses qualified! If Sir David Cunningham knew of this ruling he must have been glad he quit.

Evening came on, yet the court sat through. The macers lit the candles, making little pools of yellow light in the mid-March murk of the old courtroom.

Green essayed a feeble cross-examination but could make little headway with a weapon which requires the finest skill of the most practiced hand, and which, clumsily used, will certainly cut the examiner’s own fingers. As to any affirmative defense, nothing could be advanced under an indictment of the kind laid against him, for what was there that he could specifically approach and rebut; all he could say was no. One thing he did advance and which carried no weight with the assize, but which is meaningful enough for us, and that was that there was indeed firing upon the coast of Malabar and by the _Worcester’s_ guns, but it was nothing more than the five salutes to the ship _Aureng-zeb_.

The “probation” or taking of testimony ended. Sir David Dalrymple, her majesty’s solicitor, rose to “speech the assize” on behalf of the prosecution. “Forgive me,” he blandly began, after complimenting them as persons “so discerning and faithful”, “if, after a _sederunt_ (sitting) of twelve hours ... I detain you a little longer in recapitulating what has passed, with some few observations, I hope not improper, before ye enclose.” Those “few observations”, invariably the preface of the complete bore! For two hours more this fellow rehashed the evidence, in heads and subheads until a mathematician would have endangered his reason keeping count thereof. What a point he made of Captain Thomas Bowrey’s code, found on the seizing of the ship! A regular devil’s document it was. As a matter of fact it was nothing more than a meager little forerunner of the ordinary commercial code of to-day. The whole matter, he asserted, was “as clear as sunshine.” Rather as clear as mud.

Midnight had chimed from the town clock when counsel for the defense took the floor. The candles guttered in their sockets, making jumping blotches of shadow upon the faces of the judges, heavily sunk in their seats, fighting with sleep; in the blackness beneath the bench the macer drooped forward in his chair; Dalrymple left the assize in various postures of exhaustion, some with their heads thrown far back, yawning at the ceiling, others dozing upon their knuckles crooked perspiringly on walking sticks; the panels, or prisoners, hung on doggedly to the bar rail, or squatted defiantly upon the floor, their tropic-tanned faces seamed with the drear sojourn in the Tolbooth,--snared sea birds cruelly caged. In the throng of spectators, nature had triumphantly overcome the curiosity of many and had whisked them away to the realms, somber or sparkling, of dreams; little children lay prone on their mothers’ knees, their locks wet against their fair foreheads, sweet and lovely flowers in this stagnant pool of human passion.

No record has been kept of the speech of the defense; we can easily think, though, from the splendid fight they had maintained, that they did not weaken in this last trench, this so hopeless and shattered barricade.

The trial ended.

The assize was turned loose with orders to come back the next day but one with their verdict, “under pain of three hundred marks.” After wandering all over town for a couple of days, the fifteen good men and true strolled back to court at the time appointed, and gave in the following verdict: “They (the assize), by plurality of votes, find that there is one clear witness as to the piracy, robbery and murder libelled; and that there are accumulative and concurring presumptions proven for the piracy and robbery so libelled; but find that John Reynolds, second mate of the said ship, was ashore at the time libelled.”

So Reynolds would have been “exculpated” after all! What do their honors think of that?

Who could the “one clear witness” have been?

And how shall we salute the anonymous minority who did not subscribe to the verdict?

The quietness which lasted while the verdict was formally sealed was broken by the precise tones of David Forbes, one of the lawyers for the defense. A last blow for his sailors? No. He is telling the court that he is attorney for the Scotch African-Indian company and in their name desires to enter protest against the setting over to the Crown of the ship _Worcester_ and her cargo. Thus one of the little kittens of this narrative jumps from the bag where she has so carefully been kept.

The lawyers for the defense wholly or in part--at any rate considerably--came into the case in the pay of the Scotch African-Indian company!

Strange, is it not? Here’s all Scotland, raw with the sore of Darien, shouting for the healing ointment of English blood, and here is the company, heir of all the grievances and privileges of the Darien disaster, spending money to keep that relief from the angry sufferer.

French folk say that in a mystery one must search for the woman. French folk are too naïve. One should look for the dollar, beside which the woman is but a key of putty with which to unlock the riddles of life.

Here’s the thing: if the men of the _Worcester_ were convicted of piracy, that ship, under the law, would escheat to the Crown; otherwise, the Scotch African-Indian company was entitled to the possession of it as reprisal for the seizure of their ship _Annandale_. Thus thousands of pounds’ worth of ship and cargo would be lost to the company if Green were convicted and his ship set over to the Crown.

In this none too simple world of ours a good end is sometimes strangely forwarded, not by those for whom it may be an advertised goal, but by ones who, so far as they know or care, are serving the completely selfish moment. This strife for the _Worcester_ put the ablest men of the Scotch bar at the service of Green and his crew, and gave his cause, and incidently that of justice in the abstract, the utmost help the times and practices permitted to the defense in a criminal action. These keen, adroit company lawyers wrung every drop of advantage they could, and on the law, as law, utterly routed the prosecution and luminously exposed the prejudice of the court.

On Wednesday, March 21, the _coup-de-grâce_ was given. Captain Green and all the rest, including George Haines--doubtless sober now--received their sentences. It was decreed that one group of the defendants should on Wednesday, April 4, another group on the Wednesday following that, and the remainder on the third Wednesday, or April 18, “be taken to the sands of Leith, within the flood mark, betwixt the hours of eleven o’clock in the forenoon and four o’clock in the afternoon, and there be hanged upon a gibbet until they be dead.”

And--that the ship _Worcester_, as the vessel of the pirates, should be set over to her majesty the queen.

Antonio Ferdinando, cook’s mate, lay fevered on his pallet in one of the high attics of Edinburgh. There was a roaring in the street as of a public celebration; the cries welled up from below, the people of the house exulted on the stairs, and crowding into the sick room shouted, “The pirates are to die.” Antonio shivered, moaned and expired.

III

Gusts of rain were splashed by the spring winds round and about the hilly streets of Edinburgh; the defeated sun lay like a large pale yellow blot against the moist clouds. Yet very early in that morning of April 4 throngs of folk were crowding to the prison gates and scattering about the sands of Leith. For to-day Darien was to be avenged.

In the chambers of the Scottish Estates, in Parliament Square, the privy council assembled, attended by the city magistrates, for a tumult was clearly prophesied.

“The idea!” puffed my lord chancellor, getting into his gown. “Such a clamor about the prison! Would they intimidate us with their uproar. Mr. Magistrate, go sweep them through the gutters to their kennels!”

“My lord, I hae no broom big enow.”

The clerk presented a petition, signed by many of the better consciences of the town, praying a reprieve for the condemned pirates. The council turned the matter about with grave, genteel speech.

“What a file of names! They seem to urge that Reynolds should have had opportunity of exculpation. Well, we discharged Reynolds, did we not?”

“In view of the verdict, my lords, I am inclined to think--well, that he might have been exculpated.”

“And I.”

“And I.”

“The indictment was good, my Lord Chancellor, of course--did we not so hold. But the fact of death--ordinarily, of course, it should be shown. Ordinarily, I say. The other rule is a little dangerous, is it not? The _corpus delicti_--it is a sound doctrine--usually.”

“Oh, ordinarily--certainly. Macer, close the window--the noise from the prison yard is getting intolerable.”

“My lords, my lords, they’re under our windows! Oh, my lords, such a press, and ilk has a stick or a stane ’n’s fist.

“Mr. Magistrate, you will see to the protection of her majesty’s council.”

“Aye, my Lord Chancellor--or die wi’ ye.”

“Tush! tush! Such blathering! Die? Who said die?”

“Heavens! Who’s thumping on that door?”

“My lords, the people cry that you are reprieving the pirates!”

“I pray that no torch be set to the town. Shall I step forth and promise the people, on the honor of a magistrate, there shall be no reprieve?”

“Reprieve, Mr. Magistrate! Who spoke of reprieve?”

A gust of wind from the open door blew the petition fluttering to the floor. None stooped to pick it up.

The council adjourned. The chancellor got as far as the old Tron church when some pudding-face in the crowd shouted the pirates were reprieved. A wave of people beat against the chancellor’s coach, they smashed the glass, crashed in the panels, and might have licked up the blood of the worthy nobleman himself but for the onrushing bayonets of the city guard, and, what was more effective,--a sudden, cyclonic roar from the throng at the prison gate, announcing that Green, Madder and Simpson were departing in the death wagon for the doomful sands of Leith.

Dimmed, indeed, was the honor of Scottish lawyers when bench and bar could thus go hand in hand to cast to the wild beast of public passion the unprotected and the innocent. Even the defense--able, adroit, complete--was not purely disinterested, yet amid all those mad scenes one soul, at least, kept the noblest traditions of the law alive within him and splendidly redeems his profession. For a young, obscure lawyer sat attentively in court during the whole trial, and, on the day of doom, clad himself in a suit of complete mourning and attended at the sands of Leith, and, when Justice had completed its terrific miscarriage, he, at the risk of his life, saw to the decent interment of the poor victims. That young man was to be the future illustrious Duncan Forbes!

None of the other _Worcester_ men were executed. Between March 16 and April 3, Thomas Linsteed, John Bruckley and George Haines made solemn confession of their fictitious crimes before James Graham, the judge admiral. But these confessions are dismissed by a contemporary writer as worthless and purely self-serving; they merely elaborated the tale already told and were obviously made to repair the weakness of the State’s case, and as the prosecution’s apology for an act already beginning to disturb many consciences.

The public blood thirst was slaked. One reprieve followed another, and eventually the whole crew drifted out of prison, out of the country and out of the view of history.

And a few days before the execution of the three ill-fated men, our old friends Israel Phippany and Peter Freeland landed in England, but too late to prevent the tragedy of Leith sands, and revealed the true fate of the good ships _Content_ and _Speedy Return_!

A moralist must find this tale provocative. Mark the factors of evil in the case; the commercial greed which seized the _Annandale_, the violent crime of Bowen in pirating the _Speedy Return_, the blind national anger which perverted public opinion, and which in its turn warped a timid and compliant court and council to its will, the individual habits of a ship’s steward, and the fear for their personal safety which made perjurers of the State’s witnesses. One’s speculation is challenged.

These tragic deaths were not entirely fruitless. Although not the foundation of the principle, nevertheless this celebrated cause went far to rivet unshakably into the foundations of English jurisprudence the vital doctrine of the _corpus delicti_,--proof of the actual fact of death before a charge of homicide will lie.