E. A. Wheeler’s memory of the events of that day was slightly different. He seemed to recall thirty-six men—not eight—trussed into the rigging and flogged, each man being given three dozen lashes. According to Wheeler, Captain Waterman had Douglass lay on the punishment with a piece of ratline.
But the whole story would come out in Judge Hoffman’s U.S. District Court, newly moved to Merchant Street. It was fortunate for all parties that Hoffman was to preside in the Challenge cases. He towered over many of his colleagues of the bench. Like Levi Parsons, the jurist of Dutch descent was a brilliant debater. If slightly flowery and overornate in his language, he was still clear and strong in his arguments. He had, like Colonel Edward D. Baker, a truly national fame as an orator.
Born in New York City in 1822, Hoffman began the study of law at Dane Law School, Harvard, under Simon Greenleaf and Judge Story. After being admitted to practice, but before hanging up his shingle, he took a grand tour of Europe, spending a great deal of time in Paris where he picked up the French language. He began his law practice in New York but then went west, arriving in San Francisco in May 1850. Here, after only a very short time in practice, he was appointed to the bench of the United States District Court, in March 1851, by President Millard Fillmore. Hoffman, during his career, sat upon many important cases including the contest over the New Almadén quicksilver mines and the Limantour Fraud case, but the Challenge cases were to prove, in the long run, the most important trials with which he was connected, in terms of the social history of the West. They were the first “hellship” trials and, by the very fact that they did occur, they made possible, many years later, the freedom of the American merchant sailor from the brutality and tyranny of masters and mates.
Before the mutiny itself was taken up, the matter of the second mate’s alleged brutality and culpability in the death of seaman Stevens—forced off the yard—had to be taken up. Seaman George Hill was the first man to testify in the case of the U.S. v. Alex Coghill. As the first witness, Hill was unsure of himself and not as glib as some of his shipmates were to prove themselves to be, later. But, under prodding by counsel, he testified that all of Stevens’ watch had been sent aloft to take in the mizzen topsail during a gale. The second mate had ordered them to pick up the yard when the chief mate himself ordered them to lie out on the yard and pick up the sail. Then, perhaps rhetorically, Douglass asked his comrade-in-arms, Coghill, “Why the hell don’t you keep those sons of bitches on the yard?” He did not wait for a reply and probably did not expect one. (Few men aboard the clipper, mates or matelots, talked back to Black Douglass.) Douglass next suggested to “Second” that if he didn’t keep his men on the yard, he, Douglass, would come up personally and kick them to hell off of it. Coghill, aloft with his men, saw one of them fall a moment after this. He called to the other men to trim the yard or they’d all be knocked off. To enforce his point, the second mate kicked the seaman, Stevens. The latter was not next to him but beyond George Hill, who stood next to the second mate. The kick did not send Stevens flying but a moment later, perhaps confused by the kick, Stevens lost his hold when the sail came over the yard. He was swept off with another man. Stevens fell into the sea and the other fellow on deck. Hill, watching them fall, was almost knocked off his perch too as the sail whipped about over his head. It was his honest opinion that the mate’s kick had nothing to do with Stevens’ fall. It could not have been much of a kick, after all, since he was standing between the two men when it was delivered. He explained to the court that it was the leech (a rope) on the edge of the sail which carried Stevens off the yard to his watery grave.
Andrew Nicoll (or Nichol) was next called. He could only testify that he saw the two men fall, but knew nothing else of the matter. Another hand, Thomas Johnson, who was at the wheel during the blow, testified that he saw the walloping sail knock one man off but did not see Coghill kicking anybody. Having heard this testimony, the Court discharged Coghill from the accusation of murder but held him on bail for assault and battery and unjustifiable treatment of the deceased and other seamen. He was also committed on a charge of mutiny, to boot, despite his vehement denials of having had any part in the tumult.
From a room at the county jail, Mate Douglass submitted an affidavit which led to the arraignment of seamen Frederick Birkenshaw, Ralph Smith and Downey on charges of mutiny, as well as Coghill. The first witness called in the mutiny trial was Mr. Bradhurst, a passenger. He had indeed seen Douglass, on the day of the mutiny, lying on the deck with at least twenty sailors—one of whom was Downey—hovering over him and beating him. Yes, he saw the nasty stab wound on the mate but, no, he did not see the blow struck.
Bradhurst dropped several bombshells in Justice Hoffman’s courtroom. First, he stated under oath that when Waterman was going to put the mutinous men below decks in irons, they threatened to iron him, and Douglass, if he dared to punish them for their little scrum with the mate. Secondly, the passenger flatly stated that mutineer Birkenshaw told Waterman that the second mate was not only in on the plot to seize the ship but had guaranteed to supply the mutineers with irons for imprisoning Waterman and Douglass.
Richard Morse, another passenger, was next called. He reported that he had heard a rush on deck on the morning of August 17, and then saw men tied to the rigging as punishment for stabbing the mate and attempting to take the ship. Morse testified that he, like all the passengers and the ship’s officers, was led to believe by the crew that the ringleader of the attack, Birkenshaw, had jumped overboard after stabbing Douglass. Morse understood that the mate had hunted all over the Challenge for the culprit, without success, and had finally accepted the story of his jumping into the sea.
Bradhurst and Morse both explained that thirty days after the scuffle, Birkenshaw was found lurking in the hold, hiding under some coils of rope. It was Morse who revealed that Birkenshaw was finally betrayed by one of the crew. When he was hauled on deck from his hiding place, the mutineer claimed that all of the crew save four were in on the plot. If he was guilty, they all were. Morse corroborated Bradhurst’s testimony that Birkenshaw definitely incriminated the second mate by saying that Coghill would supply the mutineers with irons. Morse also recalled that of the ten men marched by Waterman to his cabin immediately after the mutiny for questioning, all but one of them admitted that they had heard of the plan. Only one, Ralph Smith, however, confessed to a part in the mutiny.
E. A. Wheeler described the finding of Birkenshaw, but not from the witness stand. He claimed that the captain questioned Birkenshaw after he was found and then ordered Wheeler to bring a tail block and rope. These he was ordered to take up to a yard and to make them fast. Douglass then tied the mutineer’s arms and legs while Waterman made a hangman’s noose. This he slipped about the Englishman’s neck and gave it a jerk every few minutes to stimulate Birkenshaw’s powers of recollection toward total recall. As he blurted out the details of the mutiny, Cornelius Sterling, one of the passengers, took down his words. Finally, the rope was slipped off and the mutineer was put in irons. Wheeler’s testimony was never introduced in court but he was only too willing to tell his account to anyone—to everyone—interested.
The third witness was another passenger, William C. Masten. On the day of the affray he had first seen the “sullen” sailors about 11: 20 a.m. This was when Douglass ordered them to bring their bags and sea chests on deck for inspection. Someone had complained of having had some of his gear stolen. Douglass was busy overhauling the men’s chests when Birkenshaw slipped quickly up behind him, grabbed him by the collar, and pulled him back. George Smith then jumped the mate and shoved him across the boat above the gangway. It was only seconds before Captain Waterman leaped into the fray, crying out “What’s the matter here?” He swung a marlinspike as he put the question to Smith, knocking that luckless fellow galley-west and preventing any answer for the moment. He pulled Smith off the mate, on top of whom he had fallen, and ordered him aft. S
mith, though stunned, was still in an ugly mood and refused to obey, so Waterman grabbed a length of rope and trussed him up. The mate, bleeding from a three-cornered wound in his leg made by a dirk or marlinspike, took off his coat and gave it to Masten. Bleeding as he was, the tough Douglass snatched up a stick and laid about with it among his attackers. Aleck, killed later in the voyage, Smith and “five or six” others were tied to the main rigging for punishment. The mate then ordered Coghill to search the forecastle for Birkenshaw. Coghill did as ordered but came back to report that there was no sign of him. The whole ship was then searched but without success.
Masten was in the cabin when Waterman questioned the ten sailors—Ralph Smith, George Smith, Johnson, a boy known as George, and six others. Masten amended his “five or six” men triced to the rigging for flogging to four, under cross-examination. The other men were sent forward, unflogged. It was Masten who saw Birkenshaw on September 18th, when he was discovered, and who identified the limey as Douglass’s attacker of a month earlier. During the fight on deck, the mate had not had time to see just who was stabbing him and who was not.
The crowd in the courtroom looked forward to the appearance of Douglass himself with great anticipation. They were not disappointed. There was a great buzzing and even Judge Hoffman craned forward with new interest as the sometime-prisoner, sometime-witness came forward. The tough mate spoke his piece right out, without mincing words. He made a good impression. M. Derbec who was there as a reporter, told his readers, “Elle a fait une grande impression sur l’auditoire et, probablement, aussi sur les jurés.”
Douglass explained, “I was ordered to make a search of the trunks in consequence of reports that property had been stolen from some of the crew. I was standing on deck seeing the chests overhauled when I was seized from behind and thrown down. About all of the crew were present. While I was falling, I received a wound. I felt the knife as I fell, but did not see who struck me with it. There were several kicking me. I rose and [George] Smith had hold of me with both hands around my neck. I struck him twice but he still retained his hold. I called on the men for assistance and reached out and got a stick. I called upon the boatswain and Prescott, the third mate, for something to defend myself with. I understood him [Prescott] to say, ‘I cannot help you’ Captain Waterman then came to my assistance. The men ran off. The captain came up and told Smith to let go and then seized him and broke his hold. He took Smith and carried him aft and ordered all hands aft. I then started in search of Birkenshaw, learning that he was the man who first seized me. I ordered the second mate to search for him. He appeared very dilatory and could not find Birkenshaw. I too searched for him but could not find him. Two of the crew told me that they had seen him last on the topgallant forecastle. When I got aft, some of the prisoners were tied. Smith said the mutiny had been in contemplation for a month.”
When Coghill returned empty-handed, Douglass told him, “This [fight] is a made-up thing among them. I advise you to carry something of this kind with you.” He pulled a knife from his belt to show Coghill. The second mate replied to the effect that he would depend on his fists rather than cold steel, but Douglass was not listening. He was swearing and muttering, “God damn their souls, I am damned glad the row has occurred. I can lick them as much as I like and they can’t do anything with me when I get to California.”
On November 7, Birkenshaw was committed to answer to the charge of mutiny before H. B. Jones, U.S. Commissioner. When Coghill was called to the stand in the mutiny trial, he testified that he had had absolutely no knowledge of any revolt until the third mate awoke him to say “There’s a row on deck!” When he got topside, Coghill found men already tied in the rigging on both the lee and weather sides of the ship. Douglass immediately snapped at him, “Mr. Coghill, I want you to look for that man and be damned quick about it!” “What man?” asked the puzzled Coghill. “That ‘Fred’ in your watch.” shouted the bloodied Douglass.
On the 11th, James Douglass’s application for bail, presented to U.S. Commissioner Jones, was refused. On the very same day, James McCartney, the sailor whose affidavit had originally caused Douglass’s arrest and confinement, died in the U.S. Marine Hospital.
Hardly had one trial terminated but another began. U.S. Commissioner John A. Monroe next examined Douglass on a charge of the murder of a seaman known only as Pawpaw. Witnesses were called and Charles C. Weldon testified that he had known the old man well and that he had died on the Challenge as she was rounding the Horn. Pawpaw had no shoes or socks and when he was ordered on deck his feet froze and he could hardly move. Weldon’s testimony damned Waterman because he swore he saw the captain beat the old Italian on the head and shoulders with a belaying pin the very day before his death. Pawpaw had been a little too slow in letting go a line for Waterman. He complained of being sick and, the next day, Douglass found him hidden below. He tried to question him after hauling him on deck although the old man could hardly speak a word of English. The mate tried to beat some fluency into him by striking him five or six times with his fists. Pawpaw staggered below but Douglass followed him and held him up while he pounded him in the face and ribs for fully two minutes while Weldon stood by, fists clenched, helpless.
When the mate finally left Pawpaw, Weldon carried him to his bunk. Here the old Italian lay groaning in a daze. His eyes were so swollen shut that he could not see. He was not suffering from scurvy and he was beaten far worse than any of the other “skulkers.” There was no doubt in the minds of the crew that Douglass had, in effect, murdered Pawpaw. An hour after Weldon left him and went on deck, one of his shipmates came up to tell him the Italian was dead. George Hall backed up Weldon’s testimony in the main, although his facts did not jibe exactly with those of the prior witness. He had seen the beating of Pawpaw from aloft. He claimed that Douglass wielded a large stick on the man after ordering him into the rigging. Pawpaw’s blood ran freely on the deck and into the scuppers from his prostrate body. According to Hall, Bully Waterman sent some wine and water to Pawpaw after the beating by Douglass, but it was too late. He was dead.
Hall and a buddy named Jerry were elected to bury Pawpaw. They sewed him up in a blanket before throwing him over the side. But first, Jerry suggested, “Let’s overhaul him.” So they opened his shirt to find his chest and left side all black and blue. His head was bloody, the hair matted down with gore. Although he had only one shoe on, the man was warmly dressed otherwise in thick pants and two flannel shirts. He was often seen on deck with only one shoe on.
On Monday, December 7, Waterman, Douglass, W. C. Masten and W. W. Broadhurst (sic) were sworn in open court to testify before the grand jury. On the ninth, John Leggett and J. B. Lamar were sworn. That same day, Douglass’s attorney, Noyes, appeared for his claimant and was allowed two days in which to file a claim and answer. Also on the ninth, the grand jury presented its report including bills of indictment against Waterman for assault on Fred Birkenshaw and against Coghill and Birkenshaw for “an attempt to make a revolt.”
Two days later, Captain Waterman waived an examination and was committed to trial on four different warrants—one of murder and three of assault. Seaman Michael Gallagher that day was sworn in open court to testify before the grand jury. Waterman, as yet without counsel, appeared in court and read a statement which he had prepared:
“The truth is that when my ship Challenge was in the neighborhood of Rio de Janeiro, about thirty of the crew fell on the first mate, Jim Douglass, with the declared intention of killing him, and afterwards me. This act they later confessed to, which signed confessions I have in my possession at this time.
“On the occasion in question, I was on the bridge, taking observations while the Mate, Douglass, stood forward at the galley. Mutinous leaders of the indictment stabbed Mr. Douglass and had beaten him shockingly before I could get to him. I struck down three of the mutineers with my sextant, rescued the mate and quelled the mutiny. I flogged e
ight of the confessed mutineers. Off Cape Horn, three men fell from the mizzen tops’l yardarm and were killed, and after a few weeks, four more men died of dysentery and syphilis; none of them, however, were among the mutineers.
“For most of the voyage, I was in sole command since the mates, Jim Douglass and Hugh Patterson, were still unable to attend their regular duties, having not yet recovered from the beatings of the mutinous crewmen. So for eighteen days I was continuously on duty, not once going below to my cabin for rest since no available helmsman could be trusted alone at the wheel. Upon reaching San Francisco, some of the blacklegs or mutineers in the crew, the better to conceal their own guilt, spread slanderous falsehoods and outlandish stories to the newspapers, as has been proven, so that a mob of idlers, many bolstered up with free rum, were out with the aim of stringing me up, according to police accounts.
“I have already agreed with the authorities and the Vigilantes Committee to stand trial in open court at any appointed time. Now it can and will be shown that the toughs of the crew of the Challenge received only such treatment—severe as it seemed to be—as was necessary for the successful operation of the ship and the safety of the four passengers aboard.”
Waterman asked for time before pleading, until the following Friday morning, and this request was granted. When he did make his plea it was “Not Guilty.” He was arraigned in District Court on the 17th of November on the indictment for assault on Frederick Birkenshaw. It looked for a time as if it would be impossible to obtain a jury, as most of the men summoned admitted that their minds were strongly biased. Eventually, a sufficient number were secured and a jury impaneled as U.S. District Attorney Calhoun Benham and his assistant, Mr. Barbour, prepared for combat with the legal forces Waterman had mustered in his defense—Attorneys Hamilton, R. M. McLane and Austin. Also coming to his defense now was a good portion of the public. The tide of public opinion was changing. Waterman partisans reminded the press that in twenty years of command, the captain had never had a serious complaint lodged against him. And he had certainly never killed a man. They recalled that six seamen followed him from the Natchez to the Sea Witch, sailing on all his voyages in these vessels. This sort of loyalty to an admitted driver was extraordinary and was a fine character reference for the defendant. Thomas Gray’s statement for the Vigilantes, noted earlier, pointing out that nine crewmen of the Challenge were ready to continue to China with Waterman, was also quoted again.
Shanghaiing Days: The Thrilling account of 19th Century Hell-Ships, Bucko Mates and Masters, and Dangerous Ports-of-Call from San Francisco to Singapore Page 11
