4

 

Receive the Fugitive

BY THE LATE EIGHTEENTH CENTURY, America had long afforded a refuge for Europeans in flight. Religious dissenters, land-hungry families, men on the make all flocked to the New World in search of freedom and economic opportunity. As early as 1584, the English clergyman Richard Hakluyt promoted the North American wilderness as a humane remedy for overpopulation and mounting poverty. Petty thieves and vagrants might one day “be raised againe.” Although a dumping ground, in time, for British convicts, the American colonies, for burgeoning numbers of Europeans, embodied a land alive with possibilities, where neither church nor state ruled with a whip hand. A massive influx of immigrants from continental Europe, Ireland, and Scotland in the 1700s, some persecuted for their faiths, attested to the colonies’ far-flung reputation as the “best poor man’s country” in the world.¹

Not until the War of Independence, however, did multitudes at home and abroad increasingly view America as an asylum for liberty, besieged by the same sinister, tyrannical forces that had oppressed free peoples throughout history. To an unprecedented degree, America’s exceptionalism acquired profound political significance. “For while the greatest part of the nations of the earth are held together under the yoke of universal slavery,” exclaimed Reverend Samuel Williams of Massachusetts, “the North-American provinces yet remain the country of free men.” That the American wilderness stood as a beacon of liberty testified to its physical isolation—uncontaminated, as yet, by “the fatal arts of luxury and corruption.” More, this uncharted, primitive land with its vast forests bred a spirit of simplicity, self-reliance, and individual initiative—all prerequisites of a liberty-loving people—while affording newcomers the means to achieve propertied independence.² It was this uplifting vision of America’s unique role in a world of larger, more dangerous nations that defined the broader purpose of its struggle for self-determination. At stake for future generations, as for the revolutionaries themselves, was the very survival of freedom. “In our destruction,” declared a Philadelphia patriot, “liberty itself expires, and human nature will despair of evermore regaining its first and original dignity.” With liberty’s preservation, America would offer sanctuary to the oppressed in foreign tyrannies. In Thomas Paine’s climactic words, “Freedom hath been hunted around the globe….Receive the fugitive, and prepare in time an asylum for mankind.”³

Implicit in America’s mission was the revolutionary conviction that victims of oppression would flock to its shores, forsaking Old World allegiances to become naturalized citizens, removed from the venality of Europe. America, an essayist affirmed in 1786, “invited the persecuted of the earth to her open bosom, there to be safe from the despot’s rod of wrath.” In the view of the Founders, citizenship was volitional, not the indelible consequence of birth (“perpetual allegiance,” as the British insisted). Equally axiomatic in the afterglow of independence was the belief that émigrés would embrace the ideals of republicanism. According to Tench Coxe of Pennsylvania, they would assist in forging not only a new nation but also “a political fellowship” of and by the people dedicated to advancing civil and religious liberty. In the public mind, Americans already stood united, not by ancestry or tradition but by the “choice of freedom over tyranny.”⁴

In the early Republic, with a white population of just over three million in 1790, immigration assumed heightened importance, as much for its impact on the nation’s principles as for its contribution to an expanding country. Nearly one hundred thousand Europeans landed in the United States during the 1790s. Few issues were thought as vital to shaping the nation’s destiny, or to the preservation of liberty. One of the charges laid at the feet of George III in the Declaration of Independence had been that he obstructed “the laws for the naturalization of foreigners; refusing to pass others, to encourage their migration hither.” During the first year of George Washington’s presidency, Congress gave broad support to a comprehensive naturalization law, among the most important of its legislative accomplishments. In keeping with the spirit of revolutionary idealism, ports stayed open to “free white persons” of all nationalities and creeds, as did citizenship. After just two years, naturalized aliens stood to receive the full rights and privileges of native-born Americans, aside from being eligible to seek the presidency. Tragically, nonwhites, as might be expected, were excluded due to deep-seated racism; but for Europeans, the law welcomed victims of government oppression. Even so, there were opponents of any probationary restrictions. “We shall be inconsistent with ourselves,” complained Congressman John Page of Virginia during a debate on the House floor, “if, after boasting of having opened an asylum for the oppressed of all nations…we make the terms of admission to the full enjoyment of that asylum so hard as now proposed.”⁵

And yet, once the initial euphoria of the Revolution faded, attitudes toward European immigration grew perceptibly ambivalent. Even before passage of the Naturalization Act of 1790, Thomas Jefferson, for one, had feared the inundation of uprooted aliens untutored in republican values. Later, in 1795, pangs of uncertainty led to a new law extending the residential requirement for citizenship to five years, a compromise in lieu of a more stringent proposal favoring ten. The act insisted on proof of the applicant’s “good moral character” and fidelity to the principles of the Constitution. It also required newly minted citizens to renounce all prior allegiances and, at the insistence of the fledgling Republican Party, all titles of nobility. Without comment, President Washington approved the bill, notwithstanding his professed hope at the beginning of the year “to render this country more and more a safe and propitious asylum for the unfortunate of other countries.”⁶

Not, however, until the full-scale emergence of political parties coupled with spreading concern over both the French Revolution and unrest in Ireland did nativist sentiment intensify. And more and more, the most strident voices belonged to members of the Federalist camp, aghast by the prospect of a sudden influx of French Jacobins. Every bit as licentious, in Federalist eyes, were newly arrived emigrants from Ireland. With thousands disembarking each year, they, even more than French radicals, progressively fueled nativist fears. Notwithstanding widespread prejudice toward Catholics, it mattered not that most newcomers were Presbyterians from Ulster. Having embraced England as a bastion of civil order during France’s Reign of Terror, Federalists, whose strength lay centered in New England, identified the Irish with poverty, drink, and crime. They became reviled all the more for their growing insurgence, with French aid, against British occupation. In the meantime, the “wild Irish,” settled in western Pennsylvania, were thought to have played a major role in the Whiskey Rebellion of 1794 before its collapse in the face of an army led by Alexander Hamilton and Henry “Light Horse Harry” Lee. By contrast, Jefferson, despite his earlier qualms, increasingly championed the plight of Irish immigrants, whom he and other pro-French Republicans considered victims of British oppression in need of America’s shelter. If Republicans’ motives were principled, their support for Irish Americans was no less shrewd, since Irish votes gave the party new grounds for hope in seeking to expand its predominantly southern base.⁷

Fresh from winning the presidency in 1796 and control of both houses, Federalists grew more xenophobic. It did not help that party stalwarts blamed Irish American voters for John Adams’s narrow margin of victory. Thus commenced a concerted effort in Congress to impose additional impediments to naturalization, designed not only to deter citizenship but to discourage immigration altogether. The imposition of a $20 federal fee on naturalization certificates in 1797 barely failed after a robust debate in the House of Representatives. The Federalist representative from Massachusetts, Harrison Gray Otis, railed that he did “not wish to invite hoards of wild Irishmen, nor the turbulent and disorderly of all parts of the world, to come here with a view to disturb our tranquility, and who after unfurling the standard of rebellion in their own countries, may come hither to revolutionize ours.” Nephew of the Revolutionary hero James Otis, he favored a new naturalization act lengthening, yet again, the residence requirement for citizenship. “There was a moment of enthusiasm in this country,” Robert Goodloe Harper of South Carolina remarked, “when we were not satisfied with giving to immigrants every blessing which we had earned with our blood and treasure, but admitted them instantly to the rights of citizenship.” Proposing instead the abolition of any path to citizenship apart from birth, Harper flatly declared, “We were wrong.”⁸

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THE UNITED STATES HELD A powerful allure for members of the Hermione’s crew quitting the Spanish Main. America’s material prosperity, breadth, and proximity, let alone its Caribbean shipping connections, made it an inviting haven. With English the predominant language, the mainland colonies had long been a favorite destination for deserters from the Royal Navy, nearly fifteen thousand seamen during the Revolutionary War alone. In the spring of 1798, the nation’s political neutrality only heightened its appeal. An ever-widening war, by contrast, engulfed much of Europe, including the Low Countries, which had afforded foreigners a refuge since the sixteenth century. Alternately, the fragility of the infant U.S. government made it ill equipped to monitor newly arrived seamen virtually indistinguishable in appearance and speech from American mariners, many of whom were themselves British émigrés. Nor, presumably, did authorities have cause to expel foreign fugitives. Was America not, as Tom Paine pledged, an asylum for mankind? A land of liberty, not least for victims of British oppression? “Here in happy America,” boasted a South Carolina planter in 1792 to a Scottish baronet, “we find the end of Governt completely answered in the freedom & happiness of the people.” No wonder that Vice Admiral Parker thought the United States a natural refuge, or that the mutineer Joseph Montell, who left La Guaira no later than February 1798, volunteered, when caught, that as many as ten shipmates may already have departed for the American mainland.⁹

At around the same time, the American schooner Hannah, out of Santo Domingo, dropped anchor in the harbor of Wilmington, Delaware. A bustling port boasting six hundred homes, predominantly brick and attractively laid out, Wilmington rested on a small rise beside the Delaware River fewer than thirty miles south of Philadelphia, the nation’s capital. Among the crew on board the merchant ship was an Italian seaman named Simon Marcus, who’d blurted to a shipmate that he had served aboard the Hermione. An idle boast perhaps, but Marcus was immediately detained on shore. In a strange twist, word of this reached Fanny Martin, widow of the slain boatswain, who had arrived in New York City from La Guaira in late December. On February 16, she swore out a deposition before a notary attesting to her “certain knowledge” of Marcus’s presence during the mutiny. At five feet nine or five feet ten in height, the seaman, according to Martin, bore a slender frame, a “swarthy” complexion with facial scars from smallpox, and “remarkably long and thick black hair.” Ringleaders, she added, had included “Dick Redman, a West Country man,” “Thomas Nash, an Irishman,” “Jack Smith, a young man with a fair complexion, marked with the small pox,” and “one [H]arry Croker, gunner’s mate,” who had murdered her husband. As a prosecution witness, Martin was a mixed blessing, having by then blamed Pigot’s cruelty for the mutiny in a widely reprinted newspaper story.¹⁰

Gilbert Stuart, Sir Robert Liston, 1800 Credit 14

Within days, a copy of the affidavit reached the hands of the British envoy, Robert Liston, in Philadelphia. Though he was no friend of Sir Hyde Parker, his own zeal in pursuit of the Hermione’s crew nearly matched the admiral’s. An adroit diplomat who spoke ten languages, Liston was a faithful servant of the crown. In a painting by Gilbert Stuart in 1800, he possessed a long, ruddy face with a pleasing smile. Since arriving in Philadelphia with his bride, Henrietta, he was thought an improvement over the previous ambassador, George Hammond, whose prickly demeanor had alienated much of the capital. “A sensible, pleasant, easy, and agreeable man,” observed a Federalist politician of Liston in May 1796—“much superior in fullness of character to the former minister.” Henrietta reported to her uncle in Scotland, “People seem disposed to entertain of Mr. Liston.” A frequent guest at dinner parties, he assiduously cultivated ties to leading figures in the Washington and Adams administrations, none more promising or powerful than the secretary of state, Timothy Pickering.¹¹

A native of Salem, Massachusetts, and a graduate of Harvard College, Pickering had served as quartermaster general for Washington’s Continental Army during the last years of the Revolutionary War. Tall in height and ramrod stiff, with an angular nose, balding pate, and piercing eyes, he was a conservative Federalist, albeit with little pretense to elegance or wealth to indulge the trappings of aristocracy. Before serving in a succession of federal posts, he nearly went bankrupt in 1790. Nor had his sympathies long favored Great Britain. Initially supportive of the French Revolution, even after the executions of Louis XVI and Marie Antoinette, Pickering was said by George Hammond in 1795 to exhibit “a most blind and undistinguishing hatred of Great Britain.” By then, however, the secretary’s attitudes were shifting, chiefly because of his unwavering support for the Treaty of Amity, Commerce, and Navigation as an alternative to war with Britain. In 1794, Washington had dispatched John Jay, chief justice of the Supreme Court, to London to negotiate terms pertaining to a number of issues straining relations between the two nations. Ultimately approved by the Senate in June 1795 with Washington’s belated support, the British Treaty, as it was known, as much as any single controversy gave rise to America’s first political party system. The treaty was a bargain with the devil, in the view of critics. So revolted was Pickering by the ferocity of Republican opposition that he feared for the government’s stability at the hands of “Jacobins” in league with the French.¹²

Gilbert Stuart, Timothy Pickering, ca. nineteenth century Credit 15

But Pickering, as secretary of state, also endeavored to halt the worst abuses of the Royal Navy, which he rightly thought the major cause of persistent opposition to the treaty. A “continual irritation in the public mind,” he confided to Thomas Pinckney, the U.S. minister to Britain. No problem proved more urgent than the impressment of American seamen, which the accord had failed to address. “While they remain subjected to impressments, even against proof of their citizenship,” Pickering wrote Robert Liston in June 1796, “conciliation will be a visionary idea.” He repeatedly complained of the flagrant disregard for American rights shown by officers under the command of Vice Admiral Parker, who, the secretary wrote, “from the very beginning has thrown obstacles in the way.” “What is worse, and past enduring” was that American seamen “were brought to the gangway and whipped” for writing U.S. officials. Even more appalling to Pickering was the flogging of Captain William Jessup in July 1796. Instructing Rufus King, the new minister in London, to protest “the tyrannical and inhuman conduct of Captain Pigot,” Pickering expressed his astonishment “at the quiet submission of Captain Jessup and other American citizens, victims of the frequent tyranny and cruelty of British officers, and that some of them do not take instant vengeance on the ruffians who thus put them to the torture.”¹³

Despite strong differences at times with Pickering, Robert Liston was not unsympathetic to American grievances and often expedited the secretary’s inquiries into the impressment of U.S. citizens. Liston, of course, had also clashed with Parker over Jessup’s mistreatment. Both in their early fifties, Liston and Pickering dealt with each other on an equal footing, enjoying a working relationship that was even at times good humored and warm, rooted perhaps in their shared middle-class origins as well as in their enmity for France. Pickering, Henrietta informed her uncle in July 1797, “is an honest good man, more the true Republican in figure, manners and mode of living than any man I have seen in America.” The following March the Listons invited Pickering and his wife, Rebecca, to dinner. Replying that although he would be pleased to accept the invitation, Pickering reluctantly declined. “Congress do not allow persons with executive offices under the United States (unless they possess private fortunes) to have any convivial intercourse with foreign ministers….It is deemed honor enough for executive officers to toil without interruption for their country and indulgence enough to live on mutton, mush, and cold water.”¹⁴

On receiving Fanny Martin’s affidavit in February, Liston immediately busied himself with notifying Pickering. In a letter dated the nineteenth, which he hand delivered, Liston requested the arrest “without delay” of Simon Marcus, “an accomplice” to murder, in anticipation of his extradition to Britain in keeping with the terms of the recent Anglo-American treaty.¹⁵

Favored as a means of avoiding conflict by such prominent scholars of international law as Hugo Grotius and Emmerich de Vattel, extradition went back at least to the thirteenth century b.c., when the Egyptian pharaoh Ramses II negotiated a treaty with the Hittites. Beginning in the 1500s, however, Britain had grown wary of surrendering residents to foreign powers, though it remained eager to retrieve criminal suspects from abroad. No less an authority than the jurist Sir Edward Coke was deeply skeptical of extradition, citing not only the Magna Carta but also Deuteronomy, which cautioned, “Thou shalt not deliver unto his master the servant who is escaped from his master unto thee.” The Habeas Corpus Act of 1679 stipulated that “no inhabitant” or “resident” could be sent “beyond the seas” to a foreign country against his will. Britain made an exception in its treaty with the United States in light of their shared legal heritage and the accord’s specificity. According to Article 27, in the event of flight from one nation to the other after the commission of murder or forgery, the suspect was to be returned to the home country, “provided that this shall only [my italics] be done on such evidence of criminality as according to the laws of the place where the fugitive or person so charged shall be found would justify his apprehension and commitment for trial, if the offence had there been committed.” It was on the insistence of Lord Grenville, the principal British negotiator, that “only,” for added emphasis, was inserted before the clause mandating probable cause.¹⁶

Amid escalating tensions between Federalists and Republicans over the British Treaty, Article 27 had provoked scant concern, even though the Washington administration had previously resisted extraditing fugitives to France “upon reasons of law and magnanimity.” A pro-Federalist newspaper in New York proclaimed, “By the ref[u]sal of refuge to murderers and forgers, we add security to life and property,” a sentiment seemingly shared by most Republicans. In the view of Congressman William Branch Giles of Virginia, a staunch opponent of the treaty on other grounds, the article “was not objectionable.” Only the Revolutionary poet Philip Freneau of Philadelphia wrote publicly in opposition, declaring unconstitutional the article’s denial of trial by jury in an American court. Thomas Jefferson, as George Washington’s secretary of state, had privately voiced misgivings about extradition as early as 1792. Underlying his unease was a harsh appraisal of foreign courts. Certainly, suspects accused of treason, Jefferson believed, should not be surrendered. “The unsuccessful strugglers against tyranny,” he wrote in a diplomatic memorandum, “have been the chief martyrs of treason laws in all countries….We should not wish, then, to give up to the executioner the patriot who fails and flees to us.” More broadly, he feared that fugitives, once returned, would not receive just trials in their own countries. “The evil of protecting malefactors of every dye is sensibly felt here as in other countries; but until a reformation of the criminal codes of most nations, to deliver fugitives to them would be to become their accomplices.”¹⁷

On receiving Liston’s request of the nineteenth, Pickering immediately informed President John Adams. Ordinarily, the secretary reported, Adams would “with promptitude” cause Marcus “to be apprehended and delivered up to justice”—by which Pickering appears to have meant a British rather than an American court. But he relayed the president’s apprehension that Fanny Martin’s affidavit had not implicated the seaman in the murders or in any violence aboard the Hermione. (Then, too, unknown to Pickering and Adams, Marcus now claimed from his jail cell that he had left the ship weeks before the mutiny.)¹⁸

Liston barely had time to lick his wounds before learning that three additional members of the Hermione’s crew had been seized on board the Relief from Santo Domingo on March 10. The brigantine lay anchored in the harbor of Amboy, New Jersey, a small port just across a tidal strait from Staten Island, New York. Tipped off by the vessel’s master, Yellis Mandeville, officials confined the seamen to the Middlesex County jail in nearby New Brunswick, a modest market town settled by the Dutch that lay on the King’s Highway connecting New York and Philadelphia. Whether or not the trio arrived in the United States in search of asylum is not known. All three suspects, John Evans, Joannes Williams, and William Brigstock, had been traveling under aliases. A local alderman charged each with “feloniously murdering on the high seas the captain and other officers of his Britannic Majesty’s ship the Hermione” and “piratically delivering up the said ship Hermione to the officers of the king of Spain, now at war with his said Britannic Majesty.” Besides Article 27 of the British Treaty, the arrest warrant cited Article 20, denying protection to pirates.¹⁹

The shipmates freely admitted to having served on board the Hermione at the time of the mutiny. They also confirmed the veracity of Simon Marcus’s absence, thereby freeing the young sailor from his Wilmington cell. All three men, nonetheless, denied having any hand in the uprising. Little is known of Williams, apart from his Swedish ancestry. Neither he nor the others appeared on any list of ringleaders. Bedridden with scurvy on the night of the mutiny, Evans, an Englishman, had been treated by the ship’s surgeon, Hugh Sansum, shortly before he was thrown overboard. Brigstock, an American citizen, was pressed aboard the Success in Kingston prior to joining the Hermione as a boatswain’s mate. Unknown to British and American officials, Brigstock and Evans had accompanied John Elliot, one of Pigot’s murderers, to Curaçao on the first leg of their journey from La Guaira.²⁰

On the twenty-ninth of March, Liston requested that the three sailors be delivered up to Great Britain. Enclosed in a letter to Pickering was a fresh affidavit, just three days old, from Fanny Martin attesting to Brigstock’s “active part” in the officers’ deaths. Noting that a magistrate had examined the seamen, Liston asserted that not “a moment’s doubt” should arise regarding the “propriety” of their surrender. By then, Secretary Pickering had inquired of Charles Lee, the attorney general, whether there was sufficient evidence among the documents, which included an affidavit from Master Mandeville of the Relief, to charge the suspects. If so, Pickering informed Lee that the men should be turned over to the British in accordance with the treaty.²¹

Lee’s assent was not certain. A moderate Federalist, he was a staunch critic of the French. But he was no one’s footboy, least of all Great Britain’s. The younger brother of Henry Lee, the famed Revolutionary cavalry officer, Charles had practiced law in Virginia since 1781. Named attorney general in late 1795 by Washington, he had retained the post under Adams. Possessing a healthy respect for the American legal system, Lee promptly informed Pickering that the United States had no obligation to surrender the suspects. The alleged murders had not occurred within British jurisdiction, as the treaty required. No nation’s territorial authority, in his view, extended to the high seas. Nor should the United States voluntarily honor Liston’s request. Brigstock, Lee emphasized to Pickering, was an American citizen—as were, possibly, Evans and Williams—currently “in the custody of our laws for trial.” Whether citizens or not, he wrote, “I believe it more becoming the honor, justice, and dignity of the United States that the trial should be in our courts.”²²

Cephas Thompson, Charles Lee, 1807 Credit 16

—

FROM THE FIRST REPORTS IN November 1797, Americans had kept abreast of the mutiny, followed by British efforts to apprehend the Hermione’s crew. Major cities along the Eastern Seaboard, in fact, often received news from the Caribbean more quickly than did London or Bristol. Unlike newssheets prior to independence, papers by the end of the century, owing to a sharp rise in political consciousness, devoted more ink to substantive news and commentary, often of a highly partisan nature, as the breach between political parties widened.²³

Early coverage of the mutiny was straightforward. Minor inaccuracies arose, but none of the gross distortions that littered British newspapers. Neither Pigot’s cruelty nor the crew’s violence was omitted from a preliminary account that appeared in papers extending from the Carolina lowcountry to northern New England. With winter’s arrival, however, Republican newspapers tilted sharply in favor of the mutiny, notwithstanding its heavy loss of life. As Republicans had already shown in their response to the French Revolution, violence, even indiscriminate carnage, afforded a legitimate weapon against tyranny. In the struggle against despotism, it was altogether necessary at times to rely upon popular vengeance—what Jefferson referred to as the “arm of the people, a machine not quite so blind as balls and bombs, but blind to a certain degree.” Outraged by British depredations in the Atlantic, Republicans overwhelmingly identified with the mutineers. Memories of the Hermione only shook the hornet’s nest. The ship’s notoriety was compounded by a widespread hatred of Pigot—the “same Captain Pigot,” emphasized the City Gazette & Daily Advertiser of Charleston, South Carolina, “that so inhumanly abused Capt. Jessup of the American ship Mercury.” A large number of Pigot’s crew, the paper erroneously pointed out, “were impressed Americans.” Besides Jessup’s humiliation, the Bee of Hartford, Connecticut, also reminded readers of Pigot’s impressment of American seamen: “The cruelty of tyrants sometimes recoils on their own heads.”²⁴

Still, no commentary matched the vitriol spewed by the Aurora and General Advertiser of Philadelphia less than a week after the arrest of the three Hermiones in New Jersey. Fiercely Republican, the paper had been founded in 1794 by Benjamin Franklin Bache, Franklin’s grandson, also known as “Lightning Rod Junior.” Noting that the Hermione was “one of the frigates that did the greatest mischief to American trade by the impressment of American seamen,” a correspondent confessed feelings of “intense satisfaction” on learning of the “extirpation of the officers of this execrable corsair,” which “every man must feel who wishes for the liberty of American seamen.” United States authorities, the writer urged, should refrain from “apprehending the actors of this most laudable enterprise,” whereas every British ship guilty of impressing seamen, whether Americans or not, deserved the Hermione’s fate. Rather than imprisonment, he declared, those who fought British oppression merited a pension or a gold medal.²⁵

On Thursday, the fifth of April, a grand jury convened in the U.S. circuit court in the New Jersey city of Trenton. Lying across the Delaware River from Pennsylvania, just thirty miles from Philadelphia, the state capital contained fewer than three thousand inhabitants. “The streets are commodious, and the houses neatly built,” noted a visitor, with the best homes, constructed of brick, fronting the main road. A market, four churches, and sundry inns in addition to the courthouse joined the statehouse, a “heavy, clumsy edifice.”²⁶

Only Fanny Martin testified before the grand jury. Indicted the following day, the three seamen—Brigstock, Evans, and Williams—were each charged with “turning pirate,” betraying “the trust in them reposed as mariners,” and “run[ning] away” with a ship valued at $50,000. Stolen, too, were a gold watch ($100) along with a silver tankard ($50) and spoon ($2). In addition, the court indicted Brigstock—“not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil”—with wielding a tomahawk to inflict a “mortal bruise” on the right side of Lieutenant Henry Foreshaw’s skull. All of which, the court claimed, was “against the peace of the United States,” despite the ship’s nationality and its location, at the time, off the coast of Puerto Rico. The indictment identified Brigstock as “a citizen of New York, one of the United States of America,” and “late of the kingdom of Great Britain.” His two shipmates were also said to be “late” of Great Britain. Hopeful of the outcome, specially in regard to Brigstock, Liston wrote Pickering from New York: “If, after hearing the testimony of Mrs. Martin, the Grand Jury shall find against him [for murder], there will then no longer be any possible doubt but that he is strictly within the terms of the treaty; and I beg leave to repeat my request that he may in that case be without delay delivered up.”²⁷

Pickering had not told Liston of Lee’s judgment, and President Adams, if kept informed, did nothing to curtail the trial. In addition to convening in New Jersey, the U.S. Circuit Court for the Middle Circuit, by virtue of the Judiciary Act of 1789, typically sat twice a year in Virginia, Maryland, Delaware, and Pennsylvania. On Monday, it assembled in Trenton with Supreme Court Justice Samuel Chase presiding. Just days shy of his fifty-seventh birthday, Chase, a native of Maryland, had been a fervent anti-Federalist at the time of the Constitution’s ratification, but he had grown steadily convinced of the need for a strong central government. Beside him on the bench sat Robert Morris, who at age forty-five had been nominated by Washington for the federal district court of New Jersey. A co-counsel joined the district attorney for New Jersey, Lucius H. Stockton, while the defense marshaled two attorneys of its own.²⁸

Other than a brief appearance by Martin, six defense witnesses testified, all of them, presumably from New York, on behalf of Brigstock’s character. The trial consumed eleven hours, but the jury of twelve men required only twenty minutes before the foreman, Ellet Tucker, at one o’clock in the morning, in a resounding verdict, declared the defendants not guilty of the charge of piracy. Their presence aboard the Hermione, in the absence of more compelling evidence, did not confirm their participation in the mutiny. Nonetheless, the court ordered Brigstock remanded to custody to answer the charge of murder.²⁹

It was left to Pickering to inform Robert Liston of the acquittals. In a letter of April 13, he explained that the evidence had failed to prove that “they had any agency in the horrible deed, excepting Brigstock, against whom it is said the proof is strong.” The secretary of state also reported the attorney general’s opinion that Article 27 of the British Treaty did not extend to the open sea. With Evans and Williams already discharged, Brigstock would again face trial in a U.S. court. Equally disheartening from Liston’s perspective, Pickering wrote of the seaman, “He is a citizen of the United States whose friends live in New York, and probably he was impressed on board the Hermione.”³⁰

John Wesley Jarvis, Samuel Chase, n.d. Credit 17

But the letter was never delivered. “The original remains in the office,” Pickering noted in the margin. The explanation for his reluctance is not hard to find. Almost certainly, Pickering did not wish to put the United States on record endorsing Lee’s narrow interpretation of the British Treaty. Notified informally, Liston wrote Lord Grenville in early June, “[President Adams] has been embarrassed by the contrary opinion of the Attorney General, which goes to a direct disapprobation of the surrender.”³¹

No less curious was a letter written by Brigstock on April 23 from the New Brunswick jail. “Loaded with Irons,” he addressed the note to Edward Livingston, a congressman from New York City, while the House was meeting in nearby Philadelphia. Probably Livingston was the seaman’s representative. More important, in 1796 he had spearheaded passage of an act for the “Relief and Protection of American Seamen” from British impressment; and the following year, he had chaired a committee to investigate changes that the law had implemented in the distribution of protection certificates to mariners. Sailors, Livingston declared in Congress, were “a very important and meritorious class of men, whose value seemed to be overlooked, and whose dearest rights were either shamefully neglected, or ignominiously surrendered.”³²

Letter from William Brigstock to Edward Livingston, April 23, 1798. “Sir I am in Brunswick Gaol at this Present Time Loaded with Irons By being So Unfortunate as To belong to His Majesties Frigate the Hermione.” Credit 18

For all of this and more, Brigstock could not have selected a more fitting champion. Born in 1764 at Clermont, situated south of Albany in Columbia County, the youngest of eleven children, Livingston belonged to one of the state’s most prominent landed families. Educated at the College of New Jersey (now Princeton University), he married and practiced law in New York City before entering politics. Elected to the House in 1794, he was a true-blue Republican, a turncoat to his class, with no interest in warming a backbench. If not handsome, his prominent features—a sharp nose framed by large eyes, topped by a crop of unruly black hair—left an indelible impression. It was said that Edward lived “like a nabob” but talked “like a Jacobin.” And talk he did, beginning in 1796 in vociferously opposing both British impressment and funds for the British Treaty. As a freshman congressman, he surprised elder members of his party by calling on the president to supply documents pertinent to the treaty, a request that George Washington refused and the Aurora in Philadelphia applauded. By the following year, Livingston had earned the antipathy of Federalists as well as a reputation for giving three-hour speeches. But “Beau Ned” was no demagogue. During his tour of the United States, the Duke de La Rochefoucault Liancourt deemed him “one of the most enlightened and eloquent members of the opposition party in congress.”³³

Anonymous, Edward Livingston, nineteenth century Credit 19

In his letter, Brigstock identified himself as a native of New York who had been “press’d” aboard the Success in Kingston, Jamaica, before joining the Hermione. Referring to Evans and Williams, he stated, “I have had two of my shipmates tried and acquitted that is ready to appear in my behalf at any time what ever to convince the public of my innoncency.” His mother, he explained, who had arrived at the jail to lend comfort, urgently wanted to know “how to forward a Special Court”—by which he evidently meant a special court of oyer and terminer, a state court occasionally convened to try serious crimes. Whether Brigstock hoped to delay his May 1 trial in a federal court, perhaps in order to garner public support, is not known. Otherwise, there appears to have been little to distinguish one court from the other, apart from the judges. In both courts, guilt or innocence was to be determined by a jury, and murder in each qualified as a capital offense. On the other hand, Brigstock and his mother may not have known that benefit of clergy, a privilege in Anglo-American law dating to the Middle Ages that had previously allowed first-time offenders to escape the death penalty, had been abolished just two years earlier by the New Jersey Assembly, as it had already been in federal courts.³⁴

Whether Livingston replied to Brigstock’s appeal became moot when events took an unexpected turn. Without warning, the case unraveled. Following a delay in the trial, Pickering wrote the New Jersey district attorney on June 8 to request the court to discharge the prisoner by “special command” of the president. Liston had received news from Vice Admiral Parker a week earlier impeaching the credibility of Fanny Martin. Fresh evidence also confirmed that Simon Marcus, the first to be arrested, had indeed been discharged from the Hermione prior to the mutiny. More than that, Parker reported that Brigstock had incurred the wrath of leading mutineers for his refusal to join in the bloodshed. And as punishment, the seaman had been forced to swab the decks. For all the disappointing news, Liston, in writing Lord Grenville, tried to make a virtue of necessity. “By this means,” he stated, “an innocent man will be released from unmerited punishment, and we shall avoid the establishment by precedent of an unfavourable interpretation of the Article [27] in question.” Yet another dividend, Liston explained, accrued to President Adams. In words reminiscent of Pickering’s unsent letter, he reported that Brigstock’s conviction “would have been very unpopular with a large portion of the publick; for Brigstock is a American born, has a family at New York, and was pressed on board Captain Pigot’s ship, who,” he related with unsparing candor, “is supposed here to have treated his ship’s company with unusual severity.” Left unsaid, though surely known by Liston, was that the state of New York, as in the presidential election of 1796, would be critical to Adams’s chances for reelection in the coming year. The New-Jersey Journal, in reporting Brigstock’s release from jail, wrote of “his numerous and respectable connexions now living in the city of New York.”³⁵

Under the circumstances, a fortuitous outcome all around.

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STUNG BY THE EMBARRASSMENT TO Britain, the Gazette of the United States, the prominent Federalist newspaper in Philadelphia, blamed Brigstock’s botched prosecution on the testimony of Widow Martin—“an infamous and abandoned woman”—all the while ignoring more perplexing problems threatening British attempts to extradite members of the Hermione’s crew. Plainly, Attorney General Lee could not be relied upon to expedite future requests when, as seemed likely, they again arose. Pickering, notwithstanding his hostility to impressment, remained London’s most loyal ally in the administration. This was all the more important given the uncertainty of President Adams’s reading of Article 27. One matter, at a minimum, was indubitably clear. American jurors, if permitted during a trial to render judgment, would invariably acquit seamen whom they viewed as victims of British oppression, whether or not they were U.S. citizens.³⁶

Scarcely had the three Trenton prisoners regained their freedom when another fugitive was chanced upon. It was not in New Jersey but in Virginia that British persistence paid off. That August, the American frigate Constellation, the first U.S. naval vessel to put to sea, lay moored near the port of Norfolk after her maiden voyage. The captain, Thomas Truxton, a highly respected naval officer during the Revolutionary War, read aloud to his crew descriptions received from Jamaica of the mutiny’s ringleaders. Not long afterward, an officer noticed a seaman by the name of Hugh Williamson “in a tremor.” On being questioned, he quickly gave up his real name, John Watson, and admitted to having been a quarter gunner on the Hermione. Having learned that a shipmate on the Constellation was going to inform on him for reward money, Watson confessed so that “his blood might not be sold by one of his companions.” It was later said at his court-martial that in the days following the mutiny, he was “always stupid with liquor.” From La Guaira, he had made his way to Curaçao and then to Norfolk, whose vessels carried on a flourishing trade in provisions, tobacco, and timber to the Caribbean. Once in port, Watson had signed aboard the Constellation.³⁷

Norfolk lay on the right bank of the Elizabeth River just south of its juncture with the James and the Chesapeake Bay. On August 20, Watson was escorted ashore under the supervision of the British consul, Colonel John Hamilton, a North Carolinian who had served as a Loyalist officer during the Revolution. Once labeled a “blockhead” by General Charles Cornwallis, Hamilton, short and stout, was a controversial figure in the politically polarized port. He was widely despised by local Republicans, though embraced by British merchants and naval officers as well as by former Loyalists. (While visiting Norfolk in late 1797, Liston and his wife resided at Hamilton’s home at 118 Main Street, where, according to Henrietta, “all is kindness, ease & cheerfulness.”) During the Revolution, much of the town had been burnt to the ground due to the torching of Loyalist homes and British naval bombardments. In later years, the community rebounded to become the state’s busiest port, home to some eighty deepwater ships. But it also fell prey in the summer to yellow fever, and the rebuilt town ranked among Virginia’s ugliest, suffering from unpaved streets (either dusty or muddy depending on the weather), makeshift houses, and the noxious smell of open sewage ditches best crossed on wooden planks. Wharves and warehouses crowded the riverfront. Surrounded by mosquito-infested swamps filled with brushwood and pine trees, Norfolk contained a population of three thousand. Qualified magistrates were notoriously scarce, and the jails “small and ill conducted,” according to a visitor in 1797.³⁸

It was a borough magistrate, Dr. John K. Read, who saw to Watson’s confinement. After questioning the “scoundrel” in his shop, Read ordered him sent to jail under British custody. By then a crowd, from curiosity, had assembled outdoors. On leaving the shop, Watson, according to an eyewitness, “declared that he was an American impressed on board the Hermione, and that if the thing was to do over again, he would act in the same manner rather than be confined on board a British vessel.”³⁹

Informed of Watson’s incarceration pending transport to Jamaica, Liston notified neither Secretary Pickering nor the Republican governor of Virginia, James Wood, who was less than one hundred miles distant in Richmond, the state capital. Never mind that neither Read nor the jailer possessed authority to surrender Watson. Jailhouse procedures were indeed lax. Questioned more than a year later, the keeper John Brannon recalled that he had been seriously ill at the time of Watson’s detention, whose crime he “never knew.” “To officiate” during his absence, he had “procured an English gentleman,” who happened to room near the jail. Of the prisoner, the keeper never learned “what became of him, or who committed him.” And though he later searched the jail’s files for a warrant of commitment, “it could not be found.”⁴⁰