Thirty Years' View (Vol. 2 of 2) / or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850

by Thomas Hart Benton

Mr. O. H. Perry, the commander's clerk and nephew, the same whose blunder in giving the order about the mast, occasioned it to break; and, in breaking, to become a sign of the plotting, mutiny, and piracy; and the same that held the watch to mark the ten minutes that Spencer was to live: this young gentleman was not forgotten, but came in liberally for praise and spoil—the spoil of the young man whose messmate he had been, against whom he had testified, and whose minutes he had counted, and proclaimed when out:

"If I shall be deemed by the Navy Department to have had any merit in preserving the Somers from those treasonable toils by which she had been surrounded since and before her departure from the United States, I respectfully request that it may accrue without reservation for my nephew O. H. Perry, now clerk on board the Somers, and that his name may be placed on the register in the name left vacant by the treason of Mr. Spencer. I think, under the peculiar circumstances of the case, an act of Congress, if necessary, might be obtained to authorize the appointment."

All these recommendations for reward and promotion, bespeak an obliquity of mental vision, equivalent to an aberration of the mind; and this last one, obliquitous as any, superadds an extinction of the moral sense in demanding the spoil of the slain for the reward of a nephew who had promoted the death of which he was claiming the benefit. The request was revolting! and, what is equally revolting, it was granted. But worse still. An act of Congress at that time forbid the appointment of more midshipmen, of which there were then too many, unless to fill vacancies: hence the request of the commander, that his nephew's name may take the place in the Navy Register of the name left vacant by the "treason" of Mr. Spencer!

The commander, through all his witnesses, had multiplied proofs on the attempts of Spencer to corrupt the crew by largesses lavished upon them—such as tobacco, segars, nuts, sixpences thrown among the boys, and two bank-notes given to Cromwell on the coast of Africa to send home to his wife before the bank failed. Now what were the temptations on the other side? What the inducements to the witnesses and actors in this foul business to swear up to the mark which Mackenzie's acquittal and their promotion required? The remarks of Mr. Fenimore Cooper, the historian, here present themselves as those of an experienced man speaking with knowledge of the subject, and acquaintance with human nature:

"While on this point we will show the extent of the temptations that were thus inconsiderately placed before the minds of these men—what preferment they had reason to hope would be accorded to them should Mackenzie's conduct be approved, viz.: Garty, from the ranks, to be an officer, with twenty-five dollars per month, and fifty cents per diem rations: and the prospect of promotion. Wales, from purser's steward, at eighteen dollars a month, to quarter-deck rank, and fifteen hundred dollars per annum. Browning, Collins, and Stewart, petty officers, at nineteen dollars a month, to be boatswains, with seven hundred dollars per annum. King, Anderson, and Rogers, petty officers, at nineteen dollars a month, to be gunners, at seven hundred dollars per annum. Dickinson, petty officer, at nineteen dollars a month, to be carpenter, with seven hundred dollars per annum."

Such was the list of temptations placed before the witnesses by Commander Mackenzie, and which it is not in human nature to suppose were without their influence on most of the persons to whom they were addressed.

The commander could not close his list of recommendations for reward without saying something of himself. He asked for nothing specifically, but expected approbation, and looked forward to regular promotion, while gratified at the promotions which his subordinates should receive, and which would redound to his own honor. He did not ask for a court of inquiry, or a court-martial, but seemed to apprehend, and to deprecate them. The Secretary of the Navy immediately ordered a court of inquiry—a court of three officers to report upon the facts of the case, and to give their opinion. There was no propriety in this proceeding. The facts were admitted, and the law fixed their character. Three prisoners had been hanged without trial, and the law holds that to be murder until reduced by a judicial trial to a lower degree of offence—to manslaughter, excusable, or justifiable homicide. The finding of the court was strongly in favor of the commander; and unless this finding and opinion were disapproved by the President, no further military proceeding should be had—no court-martial ordered—the object of the inquiry being to ascertain whether there was necessity for one. The necessity being negatived, and that opinion approved by the President, there was no military rule of action which could go on to a court-martial: to the general astonishment such a court was immediately ordered—and assembled with such precipitation that the judge advocate was in no condition to go on with the trial; and, up to the third day of its sitting, was without the means of proceeding with the prosecution; and for his justification in not being able to go on, and in asking some delay, the judge advocate, Wm. H. Norris, Esq., of Baltimore, submitted to the court this statement in writing:

"The judge advocate states to the court that he has not been furnished by the department, as yet, with any list of witnesses on the part of the government: that he has had no opportunity of conversing with any of the witnesses, of whose names he is even entirely ignorant except by rumor in respect to a few of them; and that, therefore, he would need time to prepare the case by conversation with the officers and crew of the brig Somers, before he can commence the case on the part of the government. The judge advocate has issued two subpœnas, duces tecum, for the record in the case of the court of inquiry into the alleged mutiny, which have not yet been returned, and by which record he could have been notified of the witnesses and facts to constitute the case of the government."

The judge advocate then begged a delay, which was granted, until eleven o'clock the next day. Here then was a precipitation, unheard of in judicial proceedings, and wholly incompatible with the idea of any real prosecution. The cause of this precipitancy becomes a matter of public inquiry, as the public interest requires the administration of justice to be fair and impartial. The cause of it then was this: The widow of Cromwell, to whom he had sent his last dying message, that he was innocent, undertook to have Mackenzie prosecuted before the civil tribunals for the murder of her husband. She made three attempts, all in vain. One judge, to whom an application for a warrant was made, declined to grant it, on the ground that he was too much occupied with other matters to attend to that case—giving a written answer to that effect. A commissioner of the United States, appointed to issue warrants in all criminal cases, refused one in this case, because, as he alleged, he had no authority to act in a military case. The attempt was then made in the United States district court, New York, to get the Grand Jury to find an indictment: the court instructed the jury that it was not competent for a civil tribunal to interfere with matters which were depending before a naval tribunal: in consequence of which instruction the bill was ignored. Upon this instruction of the court the historian, Cooper, well remarks: "That after examining the subject at some length, we are of opinion that the case belonged exclusively to the civil tribunals." Here, then, is the reason why Mackenzie was run so precipitately before the court-martial. It was to shelter him by an acquittal there: and so apprehensive was he of being got hold of by some civil tribunal, before the court-martial could be organized, that he passed the intervening days between the two courts "in a bailiwick where the ordinary criminal process could not reach him."—(Cooper's Review of the Trial.) When the trial actually came on, the judge advocate was about as bad off as he was the first day. He had a list of witnesses. They were Mackenzie's officers—and refused to converse with him on the nature of their testimony. He stated their refusal to the court—declared himself without knowledge to conduct the case—and likened himself to a new comer in a house, having a bunch of keys given to him, without information of the lock to which each belonged—so that he must try every lock with every key before he could find out the right one.

The hurried assemblage of the court being shown, its composition becomes a fair subject of inquiry. The record shows that three officers were excused from serving on their own application after being detailed as members of the court; and the information of the day made known that another was excused before he was officially detailed. The same history of the day informs that these four avoided the service because they had opinions against the accused. That was all right in them. Mackenzie was entitled to an impartial trial, although he allowed his victims no trial at all. But how was it on the other side? any one excused there for opinions in favor of the accused? None! and history said there were members on the court strongly in favor of him—as the proceedings on the trial too visibly prove. Engaged in the case without a knowledge of it, the judge advocate confined himself to the testimony of one witness, merely proving the hanging without trial; and then left the field to the accused. It was occupied in great force—a great number of witnesses, all the reports of Mackenzie himself, all the statements before the council of officers—all sorts of illegal, irrelevant, impertinent or frivolous testimony—every thing that could be found against the dead since their death, in addition to all before—assumption or assertion of any fact or inference wanted—questions put not only leading to the answer wanted, but affirming the fact wanted—all the persons served as witnesses who had been agents or instruments in the murders—Mackenzie himself submitting his own statements before the court: such was the trial! and the issue was conformable to such a farrago of illegalities, absurdities, frivolities, impertinences and wickednesses. He was acquitted; but in the lowest form of acquittal known to court-martial proceedings. "Not proven," was the equivocal mode of saying "not guilty:" three members of the court were in favor of conviction for murder. The finding was barely permitted to stand by the President. To approve, or disprove court-martial proceedings is the regular course: the President did neither. The official promulgation of the proceedings wound up with this unusual and equivocal sanction: "As these charges involved the life of the accused, and as the finding is in his favor, he is entitled to the benefit of it, as in the analogous case of a verdict of not guilty before a civil court, and there is no power which can constitutionally deprive him of that benefit. The finding, therefore, is simply confirmed, and carried into effect without any expression of approbation or disapprobation on the part of the President: no such expression being necessary." No acquittal could be of lower order, or less honorable. The trial continued two months; and that long time was chiefly monopolized by the defence, which became in fact a trial of the dead—who, having no trial while alive, had an ample one of sixty days after their deaths. Of course they were convicted—the dead and the absent being always in the wrong. At the commencement of the trial, two eminent counsel of New York—Messrs. Benjamin F. Butler and Charles O'Connor, Esqs.,—applied to the court at the instance of the father of the young Spencer to be allowed to sit by, and put questions approved by the court; and offer suggestions and comments on the testimony when it was concluded. This request was entered on the minutes, and refused. So that at the long post mortem trial which was given to the boy after his death, the father was not allowed to ask one question in favor of his son.