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 OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

Law as Performance
OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

LAW AND LITERATURE

The Law and Literature series publishes work that connects legal ideas to literary
and cultural history, texts, and artifacts. The series encompasses a wide range of
historical periods, literary genres, legal fields and theories, and transnational subjects,
focusing on interdisciplinary books that engage with legal and literary forms,
methods, concepts, dispositions, and media. It seeks innovative studies of every kind,
including but not limited to work that examines race, ethnicity, gender, national
identity, criminal and civil law, legal institutions and actors, digital media,
intellectual property, economic markets, and corporate power, while also
foregrounding current interpretive methods in the humanities, using these
methods as dynamic tools that are themselves subject to scrutiny.

Series Editors
Robert Spoo, University of Tulsa
Simon Stern, University of Toronto
 OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

Law as Performance
Theatricality, Spectatorship, and the Making of Law
in Ancient, Medieval, and Early Modern Europe

JULIE STONE PETERS

OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

Great Clarendon Street, Oxford, OX2 6DP,

United Kingdom
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© Julie Stone Peters 2022
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First Edition published in 2022
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 OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

For Kaia and Nathaniel

OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi
 OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

Acknowledgments

A number of institutions have supported this project as it evolved, most notably

the Columbia and Harvard English Departments and the Guggenheim
Foundation. I am indebted to them, as well as to the many librarians who have
offered vital assistance: Ian Beilin and Jeffrey Wayno, to whom I have repeatedly
turned for their erudition and their ability to answer the most obscure of ques-
tions; Insaf Ali, Mayra Alvarez, Nancy Friedland, Hollyann Kozlowski, Meredith
Levin, the indefatigable Nikhil Raghuram, John Toffanelli, and Sherry Wei.
This book would not have been possible without the extraordinary group of
research assistants with whom I’ve had the good fortune to work during the
project’s various phases. Two of these served more as colleague-consultants than
as assistants: the medievalist Eugene Petracca, whose vast learning saved me from
many errors; and the classicist Francesco Cassini, who made several key scholarly
discoveries. Their translations appear throughout this book. Nathan May, on
whose brilliant research skills I came to depend, became the project’s mainstay.
Clara Beccaro spent hundreds of hours, often working around the clock. Others
who made significant contributions include Berra Akcan, Toby Berggruen, Josue
Chavez, Lauren Green, Nicholas Lopez, Sofia Riva, Chloe Schneewind, and
Melanie Shi. I am profoundly grateful for what each brought to the project.
While no portion of this book has previously appeared in print, I have pub-
lished a number of essays that developed its theoretical armature, and have
received invaluable feedback on these from collection editors: Elizabeth Anker,
Maksymilian Del Mar, Lawrence Douglas, Mitchell Greenberg, Bernadette
Meyler, Subha Mukherji, Austin Sarat, Simon Stern, Martha Merrill Umphrey,
and Richard Weisberg. Many of these essays began as talks or seminar presenta-
tions: at the American Comparative Literature Association, Amherst College,
Harvard Law School, John Jay College of Criminal Justice, the NEH Summer
Institute for College and University Faculty, New York University, Queen Mary
College (University of London), the Stanford Law School Law and Humanities
Workshop, Trinity College Cambridge, UC Berkeley, the UCLA Center for
Medieval and Renaissance Studies, the University of Lisbon Faculdade de Letras,
and the University of Toronto Law School. I am indebted to my interlocutors
there, as well as to the many students with whom I have discussed this work both
in and out of the classroom.
I am also thankful to those who responded generously to my queries, made
helpful suggestions, small and large, or otherwise offered their time and wisdom:
April Alliston, Laurie Barron, Daniel Blank, Sarah Cole, Jean-Michel David,
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viii 

Francesco De Angelis, Frédéric Elsig, Alison Feit, David Freedberg, Thomas

Fudge, Rhonda Garelick, Darren Gobert, Max Harris, Jean Howard, Rebecca
Kastleman, Laura Kendrick, Pamela King, John Kuhn, Maureen Miller, Molly
Murray, Alan Nelson, Andy North, Adam Peters, Lisa Peters, Sarah Rose, Kirsi
Salonen, Wolfgang Schild, Karl Shoemaker, Andrew Solomon, Alan Stewart,
Eloisa Thompson, Jerome Wakefield, Hannah Weaver, Lauren Whitney,
W. B. Worthen, and Claire Zion.
I am especially grateful to those who took time to read and respond to my
unduly long chapter drafts or (in some cases) the entire manuscript: Leanne
Bablitz, Christopher Baswell, Maksymilian Del Mar, Helene Foley, Thomas
Fudge, Peter Goodrich, Eleanor Johnson, Bernadette Meyler, C. D. C. Reeve,
and the anonymous OUP readers. I owe a particular debt to the OUP Law and
Literature series editors, Robert Spoo and Simon Stern, who not only enthusias-
tically welcomed my contribution and read multiple drafts, but went to extraor-
dinary lengths to track down image permissions, troubleshoot, and generally offer
support and friendship. I feel very lucky to be included in their series, as well as to
be working with the OUP editorial team, most notably Jacqueline Norton, Aimee
Wright, and Philip Dines, and with Jayaprakash P. (JP), whose expert and gracious
guidance has helped speed the book through production.
My interlocutors also, of course, include the many colleagues, friends, and
relatives whose conversation sent me down new pathways, inspired revelations,
opened worlds, or illuminated the shadows, or whose friendship offered consola-
tions intellectual and otherwise during the journey: too many to name, but they
are here between the lines. I am grateful to Sandra Peters for the magical sanctuary
in Mexico where this book finally took shape, and to the memory of Melvin Peters
who created that sanctuary and whose spirit still resides there. It is to the memory
of Sandra Stone that I owe whatever poetry may be in these pages. Above all, I am
indebted to Nathaniel Berman, my greatest interlocutor, supporter, partner in all
senses, and to Kaia Berman Peters, ever-astonishing daughter and comrade: my
ultimate inspiration and moral compass.
 OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

Contents

List of Illustrations xiii

Note on Citations, Texts, and Translations xv
Introduction 1
Tothill Fields (1571): Law versus Theatre in “the Last Trial by Battel” 1
Law as Performance: Legal Theatricality and Antitheatricality as
Idea and Practice 5
Law as Spectatorship: Public Trials, Open Courts, and the “Audience” 11
Performance, Theatricality, Gender, Law, and the Question of
Anachronism 17
Representations of Legal Performance versus Legal Performance as
Representation 21
Chapter Summaries 23
1. Theatre, Theatrocracy, and the Politics of Pathos in the
Athenian Lawcourt 27
Introduction: Aeschines vs. Demosthenes 27
Theatricality and Antitheatricality in the Athenian Lawcourt 30
Trial as Theatre 30
Against Histrionics 35
Plato’s Theatrocracies 36
Theatrocracy and Theatrical Sophism versus the Laws 36
The Law and Its Double: Rival Actors and the Laws as Noble Tragedy 39
Aristotle on Hypokrisis and Pathos 42
The Vulgar Crowd and the Power of Hypokrisis 42
The Poetics of Hypokrisis and Pathos 46
Catharsis as Judgment and the Mobilizing of Emotion 49
Against Alcibiades: Theatrical Tears versus Righteous Outrage in
the Legal Theatrocracy 51
Conclusion 54
2. The Roman Advocate as Actor: Actio, Pronuntiatio, Prosopopoeia,
and Persuasive Empathy in Cicero and Quintilian 56
Introduction: Posing Fonteius 56
The Roman Legal Theatre 61
Courtroom as Theatre 61
The Art of Actio and Pronuntiatio 65
The Actor’s Apprentice: Be Theatrical . . . But Not Too Theatrical 67
Staging Emotion 70
Universal Languages: Emotion, Gesture, Voice 70
Speaking Scenes: Caesar’s Robe, the Blood-Bespattered Plaintiff,
the Litigant’s Face 72
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x 

Prosopopoeia as Impersonation and Ventriloquism: Weeping

for Milo in Cicero’s Pro Milone 77
Emotion as Practice 81
Masks and Faces: Personae and the Ethics of Decorum 81
Training Empathy 83
The Art of the Real 86
Conclusion 88
3. Courtroom Oratory, Forensic Delivery, and the Wayward Body
in Medieval Rhetorical Theory 89
Introduction: Alain de Lille’s Rhetorica (c.1182–84) in the Courtroom,
or How to Win a Lawsuit in the Middle Ages 89
Medieval Courtroom Actors 95
The Lawyer: Robed Vulture with Venal Tongue or Priest of the Laws? 95
Forensic Oratory in Medieval Theory and Practice 99
On Forensic Delivery 103
Four Rhetorical Theorists on Courtroom Delivery 108
Alcuin of York (c.735–804): Allegorical Insignia, Eschatological Space,
and Bodily Decorum in the Carolingian Court 108
Boncompagno da Signa (c.1165–1240): The Leaky Body as “Organic
Instrument” and Courtroom Trickster 124
Guilhem Molinier ( fl.1330–50): Delivery According to the Laws of Love 129
Jean de Jandun (c.1285–1328): Signifying the Passions, Warping
the Judge, Entertaining the Crowd 134
Conclusion 140
4. Irreverent Performances, Heterodox Subjects, and the Unscripted
Crowd from the Medieval Courtroom to the Stocks and Scaffold 142
Introduction: Mooning the Law with Calefurnia and
Catharina Arndes 142
Ideals of Order, Scripted Trials, and the Disorderly Crowd 149
The Doge, the Judge, and the Sword: Allegorizing Justice as Terror
and Pleasure in Venetian Civic Spectacle (c.1311) 149
Rex as Lex before the Throng in Jean Fouquet’s “Lit de Justice de
Vendôme” (1458) 150
Noisy Crowds, Lawyers’ Harangues, and Scripted Trials: Thomas
Basin’s Proposal (1455) 153
Open Courtrooms, Festive “Law-Days,” and the German Rechtstag
as Mock Trial 157
Heretics and Witches: Staging Heterodoxy in the Fifteenth-Century
Courtroom 165
Performing Radical Theology as Legal Counter-Narrative:
The Trial and Defrocking of Jan Hus (1415) 165
Spitting at the Inquisitor: Helena Scheuberin, Heinrich Institoris,
and the Innsbruck Witch Trial (1485) 176
The Spectacle of Punishment Beyond the Script 185
Execution as “Sacred Event” and “Theater of Devotion”? 185
Deterrent Terror, Crowd Vengeance, and Going Off-Script 188
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 xi

Politics and the Heterogeneous Crowd 190

Jeering “Like the Jews [Against] Jesus” 192
Penal Pleasures 196
Conclusion 198
5. Performing Law in the Age of Theatre (c.1500–1650) 200
Introduction: The Priest’s Bastard and the Prince’s Grace:
Entertaining the Polish Ambassadors in the “Greatest Theatre
Ever” (1573) 200
The Rhetorical Tradition and the Figure of Theatre 204
Delivery Handbooks for Lawyers and the Study of “Mute Eloquence” 204
Learning from Roscius 210
Theatre and Lawyers in the Anti-Rhetorical Tradition 216
Humanist Legal Antitheatricality 216
The Forum, the Stage, and the Sewer 222
The Modern Courtroom as “Theatre” 225
The Politics of a Trope 225
The Courtroom as Encyclopedic Anatomy Theatre: Dissecting
the Legal Body 232
Pasquier’s Hands 236
The Legal Entertainment Industry 237
Learning from Marino’s Evil Cousin 237
Critical Court-Watchers and the Feverish Crowd 239
Pasquier Defends “the Slaughterer”: The Trial of Jean d’Arconville (1571) 244
6. Legal Performance Education in Early Modern England 251
Introduction: Rehearsing the Revels in St. Dunstan’s Tavern (1628–29) 251
Directions for the Study of Law: Learning to Act Like a Lawyer 256
Rhetorical Education as (Legal) Performance Training 256
Manuals for the English Law Student 262
The Noble Arts and Courtroom Carriage 265
Practicing Performance: Moots and Disputations 267
Rehearsal and Mimesis 267
Public Spectacle, Battle, Theatre, Farce 270
Impersonation, Make-Believe, and the Mise-en-Abîme 273
Theatre in the Temple of Law: What the Revels Taught 280
Defending Academic Theatre: Impersonation and Dissimulation
for Lawyers 280
The Trial of the Sorcerer in Gray’s Inn (1594): The Lawyer as Lord
of Misrule 286
Conclusion 295
Epilogue 298

Works Cited 303

Primary Sources 303
Secondary Sources 315
Index 341
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List of Illustrations

0.1. Worldly Justice. Joost de Damhouder, Praxis rerum civilium (Antwerp:

Joannem Bellerum, 1567), sig. ****1v. Rare Book Collection, Lillian Goldman
Law Library, Yale Law School. 7
0.2. Hamburg municipal courtroom (c.1497). Staatsarchiv Hamburg, 111-1
Senat, Nr. 92693: Stadtrecht, 1497 [Altsignatur: Cl. VII Lit. L a Nr. 2
Vol. 1 c]. 14
0.3. Courtroom. Joost de Damhouder, Praxis rerum criminalium (Antwerp:
Joannem Bellerum, 1562), sig. ***4v. The Bodleian Libraries, University
of Oxford, Douce D 230, sig. ***4v. 15
0.4. Toulouse Parlement. Nicolas Bertrand, Opus De Tholosanorum Gestis
(Toulouse: Johannis Magni Johannisi, 1515).
The Bodleian Libraries, University of Oxford, Vet. E1 d. 46, frontispiece. 16
2.1. Geremia Discanno’s early nineteenth-century sketch of a feast-day mural
from Veranius Hypsaeus’ fullery in Pompeii (first-century CE). Emil
Presuhn, ed. Pompeii: Die neuesten Ausgrabungen von 1874 bis 1878,
2nd ed. (Leipzig: T. O. Weigel, 1882), 4. The Bodleian Libraries, University
of Oxford, 487.8 POM.670, 4. 74
3.1. Courtroom scene in Cicero’s orations (1483). By permission of the British
Library. MS Harley 2681, f. 2. 107
3.2. “Reason” in manuscript of Prudentius’ Psychomachia (c.1000). St. Gallen,
Stiftsbibliothek, Cod. Sang. 135, p. 420—Carmina. 116
3.3. Last Judgment panel (c.800). © Victoria and Albert Museum, London. 118
3.4. Speculative restoration of c.796 chapel dome. Peter Horree/Alamy Stock
Photo. 121
3.5. Charlemagne’s throne in his Palace Chapel, Aachen Cathedral.
Image Professionals GmbH/Alamy Stock Photo. 121
3.6. Heavenly and Earthly Justice, Würzburg (c.1400). Würzburg Museum am
Dom. Abteilung Kunst der Diözese Würzburg, Thomas Obermeier, 2021. 123
4.1. Calefurnia in Heidelberg Sachsenspiegel (c.1295–1304). Heidelberg
University Library, Cod. Pal. germ. 164. 143
4.2. Calefurnia in Martin Le Franc, Champion des dames (Lyon: n.p., 1488),
sig. s8r. Newberry Library, Chicago, Special Collections. 145
4.3. Trial of the Duc d’Alençon. Jean Fouquet, Lit de Justice de Vendôme (1458).
Bayerische Staatsbibliothek München Cod.gall. 6 fol. 2v. 151
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xiv   

4.4. Defrocking of Jan Hus. Ulrich Richenthal, Das Concilium so zu Constanz

gehalten ist worden (Augsburg: H Steyner, 1536), fol. 25v. Courtesy of
Princeton University Library. 173
4.5. Execution in the Nequambuch from Soest, Westphalia (1315). Soest
Nequambuch. Stadtarchiv Soest (Westfalia), A 2771. 191
4.6. Urs Graf ’s “Ecce Homo” (1503). Johannes Geiler von Kaysersberg, Passio
domini nostri Jesu Christi, ex evangelistarum textu (Strasbourg: Johann
Knoblouch, 1508), sig. D3v. Courtesy of Princeton University Library. 193
5.1. Rhetorica. Matthijs de Castelein, De const van rhetoriken (Ghent:
Jan Cauweel, 1555), sig. *4v. Ghent University Library. 212
5.2. Justice surrounded by Lactantius, Cicero, Aristotle, and Virgil.
Council Chamber in the Geneva Hôtel de Ville (Town Hall).
© Office du patrimoine et des sites, Geneva—Sandra Pointet
photographer, 2009. 212
5.3. Rhetorica. Gregor Reisch, Margarita philosophica (1505 ms.).
Ghent University Library, BHSL.HS.0007, fol. 74r. 213
5.4. John Bulwer, Chirologia: or The Naturall Language of the Hand
(London: Tho. Harper, 1644), frontispiece. Call #: B5462. Permission of the
Folger Shakespeare Library under a Creative Commons
Attribution-ShareAlike 4.0 International License. 215
5.5. Crispijn de Passe’s “Rhetorica” (c.1599). Engraving after M. de Vos.
Wellcome Collection. Public Domain Mark. 223
5.6. Courts of King’s Bench and Chancery in Westminster Hall
(early seventeenth century sketch). © The Trustees of the British Museum. 229
5.7. “Auditores” and “Spectatores.” Joost de Damhouder, Pupillorum patrocinium
(Antwerp: Johannem Bellerum, 1564), fol. 85v. The Bodleian Libraries,
University of Oxford, 4 D 6(7) Jur. fol. 85v. 231
5.8. Courtroom. Jean Milles de Souvigny, Praxis criminis persequendi
(Paris: Simonem Colinaeum, Arnoldum et Carolum Les Angeliers, 1541),
fol. 8r. Beinecke Rare Book and Manuscript Library, Yale University. 234
6.1. Gray’s Inn Hall. Percy Fitzgerald, Picturesque London (London:
Ward & Downey, 1890), 112. The Bodleian Libraries, University of Oxford,
G.A. Lond. 4 164, 112. 275
6.2. William Hogarth’s frontispiece to Nicholas Amhurst’s Terrae-Filius: Or,
The Secret History of the University of Oxford (London: R. Francklin, 1726).
The Bodleian Libraries, University of Oxford, Douce A 466. 291
 OUP CORRECTED PROOF – FINAL, 10/3/2022, SPi

Note on Citations, Texts, and Translations

To keep notes short, I have attempted to give the minimum information necessary
for readers to pursue my references without having to consult the Works Cited at
the end of this volume. I give volume and page, folio, or signature numbers after
short titles. Where information in brackets follows these, it gives additional
information, such as book, chapter, or line numbers, or traditional section iden-
tification numbers. References to early texts are to the earliest extant printed
editions unless otherwise noted. References to Loeb Classical Library editions
are to the most recent revisions, available online at www.loebclassics.com.
Throughout, I have generally preserved original orthography, modernizing
only the letters u, v, i, j, and s, and eliminating ligatures. In translations—as in
quotes originally in English—I use brackets to indicate substantial changes to
individual words, such as modification of number or tense: for instance, the Latin
curiae (courts) might appear as “cour[t]” in my translation to indicate the change
to singular; perago (I accomplish or perform) might appear as “I perform[ed]” to
indicate the change to past tense. Where translations are my own or where the
phrasing of a text is important to my claims, I include the original in the notes.
I am grateful to all those who have made my work easier by providing the many
extraordinary translations on which I have drawn.
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 OUP CORRECTED PROOFS – FINAL, 23/2/2022, SPi

Introduction

Tothill Fields (1571):

Law versus Theatre in “the Last Trial by Battel”

On June 18, 1571, over four thousand spectators gathered in Tothill Fields,
Westminster for an extraordinary event: a trial by battle.¹ All around the field
(or “lists”) were scaffolds “for people to stande and beholde” (1152). Trial by battle
was long obsolete: the last in England had been in 1456 (a nasty fight involving
penis and nose biting). Perhaps this one would be equally riveting. Following
tradition, the litigants would not themselves take the field. Instead, “champions”
would represent them. After a public ceremony of casting down the “Gauntlet[s]”
(1151), the champions were “sworn . . . to perform the battle” (fol. 301b), and the
fight was on. The contrast between the two champions added further spice to the
spectacle. The defendant’s champion, George Thorne, was “a bigge, broade, strong
set fellowe.” The plaintiffs’ champion, fencing master Henry Nayler, was, on the
contrary, very “slender” and certainly “not . . . tall.” But he was handsome:
altogether “a proper . . . man” (1151). It would be lithe skill plus sex appeal against
brute force, David against Goliath. Moreover, Nayler had something even more
important than skill and sex appeal: exceptional theatrical flair. This he had gained
in part from performing regularly as a “prize player” in public fencing matches in
the London theatres.² As “servant to the . . . Earle of Leicester” (1151) he was also

¹ For “the last trial by battel,” see Blackstone, Commentaries (2016 ed.), 3:223. All in-text citations to
this event refer to John Stow’s Chronicles of England (1580 ed.), 1151–2; or the first English translation
of Sir James Dyer’s reports: Reports of Cases (1794), fol. 301a–302a. These are the two principal
accounts. Stow’s first appeared in his Summarye of the Chronicles (1573). Dyer’s first appeared in Cy
ensuont ascuns novel cases (1585). Holinshead repeats Stow’s account with a few minor embellishments
(Firste [Laste] Volume of the Chronicles [1577 ed.], 1858–60). Before arriving on appeal in the Court of
Common Pleas, the case had already been adjudicated in at least three courts. The two plaintiffs were
technically “demandant[s]” (petitioners) here, but to simplify, I refer to them as the “plaintiffs” and to
the respondent as the “defendant.” For later accounts, see Filmer, Chronicle of Kent, 69–70; Furley,
History of the Weald of Kent, 173; and Berry, Noble Science, 6.
The Church had opposed “trial by battle” (also called “trial by combat” or “wager of battle”) since the
ninth century, and it had been largely discarded as a mode of proof by the fourteenth. The 1571 event,
however, was not in fact the last attempt to try a case by battle: litigants continued to occasionally
invoke their right to battle—for instance in 1631, 1638, and (astonishingly) 1817—but courts managed
to forestall actual combat.
² The manuscript recording the activities of the Masters of Defence identifies thirty prizes that were
played in public playhouses and fifteen more in places that were to become public playhouses (Berry,
Noble Science, 2, noting that “these prize playings were a form of drama, competing with plays for
audiences in some of the same ways and places”).

Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe.
Julie Stone Peters, Oxford University Press. © Julie Stone Peters 2022. DOI: 10.1093/oso/9780192898494.003.0001
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probably an actor in Leicester’s troupe, performing alongside the master of the

bawdy jig Richard Tarlton, who studied fencing with Nayler and was to become
the most famous comic actor of his era.³
Nayler’s dramatic march to Tothill Fields on June 18th and his costume change
in the field suggest how much he had learned from his experience as a showman.
At 7 a.m., dressed in flamboyant crimson satin, with a fashionably slashed doublet
and a black velvet hat sporting a colossal red feather, he had begun his parade
through the streets of London. As he marched—preceded by a fife-and-drum
orchestra and followed by a Yeoman of the Queen’s Guard bearing a horn-tipped
staff and leather shield (1152)—he held aloft a sword with Thorne’s glove dangling
from its tip. Proceeding through the Palace of Westminster, pausing before the
great doors of Westminster Hall (the hall of law), he then paraded along King
Street, through “the Sanctuary,” onto Tothill Street. Taking his time (to increase
anticipation and keep Thorne waiting), he arrived at Tothill Fields and then
disappeared into his tent. When a herald at last called upon the plaintiffs to
produce their champion, Nayler emerged in full glory. Having stripped off his
fancy doublet and plumed chapeau, he now appeared in a sort of medieval-
Roman-gladiator costume, “in red sandals over armour of leather, bare-legged
from the knee downward, and bare-headed, and bare arms to the elbow.” A knight
carrying “a red b[a]ton of an ell long, tipped with horn” and the Yeoman “carrying
a target made of double leather” led him into the field, where he proceeded to
march around its perimeter and finally into the center “of the lists,” to the
admiration of the thousands of spectators (fol. 301b–302a).
This was clearly theatre: a cross between Roman circus, medieval joust, and
carnival; entertainments of the kind Tothill Fields regularly hosted.⁴ But it was
also law. For there was a real case to be decided: one so dull that no one could
possibly mistake it for entertainment (a dispute over title to a property somewhere
in Kent, involving “a writ of entry sur disseisin, in the nature of assise . . . ” [yawn])
(fol. 301a). Not only was it a real case: it was a real court. For the entire Court of
Common Pleas had decamped to Tothill Fields, furniture and all. There the court
was to “sitte” just as it sat in Westminster Hall. A “stage . . . representing the court”
contained an exact replica (1152): a “place or seat for the Judges of the Bench
was made without and above the lists, and covered with the furniture of the
same Bench [as] in Westminster Hall.” There was even “a bar made there” for
the lawyers (the “Serjeants at law”). To begin proceedings, three “Justices of the
Bench,” including Sir James Dyer, Chief Justice of the Common Pleas, wearing

³ Tarlton started his theatrical career in the Earl of Leicester’s troupe. Probably around the same
time, he became Nayler’s fencing student and eventually became a fencing master under Nayler’s
sponsorship. See Berry, Noble Science, 5–6 and 12–13.
⁴ Tothill Fields was a traditional site of jousts and duels. It had hosted a weekly market and annual
fair since at least the thirteenth century (extended to a month-long fair in the fourteenth century), and
had a pleasure ground with a maze and bearbaiting spectacles.
 OUP CORRECTED PROOFS – FINAL, 23/2/2022, SPi

 3

“their robes of scarlet, with the appurtenances and coifs,” took their places on
the bench. The two serjeants-at-law took their places at the bar. And three
“Oyes” (“Hear-ye”s) proclaimed that the trial had begun (fol. 301b). Thorne
“approach[ed] the bar before the Justices with three solemn congies [bows]” and
was instructed to stand to the right of the court. Nayler “approach[ed] the bar
before the Justices with three solemn congies” and was instructed to stand to the
left of the court (fol. 301b–302a).
All was proceeding just as it did in Westminster Hall. Except that they were
sitting in the middle of Tothill Fields surrounded by four thousand spectators
about to watch two champions in a prize fight, with coifed, scarlet-robed judges
presiding as umpires. What happened next was a surprise: a woefully anticlimactic
one. After the champions had paid their respects to the court and stood awaiting
instructions, Dyer “solemnly called” the plaintiffs to appear by the side of their
showy champion (Nayler) (fol. 302a). Everyone waited expectantly . . . , but no one
appeared. Twice. Default judgment for the defendant. There was, after all, to be no
combat. The Judge ordered Nayler to give Thorne back his glove. However, Nayler
was not ready to concede defeat. Standing before the crowd in his Roman
gladiator’s costume, with undiminished bravado, he looked up at the judge and
said “no!” Even for those who could not hear, the scene must have appeared as a
showdown between the scarlet-robed, becoifed judge (standing for law) and the
costumed showman (standing for theatre). His Lordship might command any-
thing else, said Nayler, but he would not give the glove back. Thorne would have to
win it! En garde! Thorne must at least “playe wyth hym halfe a score blowes.” Did
he not realize that they had to “shew some pastime to the Lorde chiefe Justice and
the [spectators] there assembled”? Thorne sullenly declared that he “came to
fighte, and woulde not playe” (1154). Dyer “commend[ed] Nayler for his valiaunt
courage,”—perhaps noting the difference in size between the combatants. But he
was sorry, there was indeed to be neither fighting nor playing: the show was over.
The champions were “bothe quietly t[o] departe the fielde” (1154). And the
spectators were to go home (fol. 302a).
Dyer’s (or his clerk’s) account of the event left out one small detail: the parties
had settled the day before. In exchange for a payoff of five hundred pounds, the
plaintiffs would give up their claim to the property.⁵ However, the Queen—who
had somehow gotten in on the action—had declared that everyone must never-
theless appear in Tothill Fields and make believe that the combat would go
forward: the spectators would gather; the champions would appear; the plaintiffs
would then forfeit by not showing up. The spectacle would dramatize the

⁵ Stow explains: “the matter was stayed, and the parties agreed, that [the defendant] being in
possession, shoulde have the lande, and was bound in five hundred pounde, to consider the Plaintifs,
[which] upon hearing the matter, the Judges should award” (1151–2). This was de facto a settlement,
even if technically the case was merely stayed and there was to be another hearing that would make the
settlement official.
Another random document with
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 At this time the English made an attempt to board, but were
repulsed, with trifling loss. All this time there was a heavy fire kept up
from the guns. The lower ports of the Serapis having been closed as
the vessel swung, to prevent boarding, they were now blown off, to
allow the guns to be run out; and cases actually occurred in which
the rammers had to be thrust into the ports of the opposing ship, in
order to be entered in the muzzles of their proper guns. It was
evident that such a state of things could not last long. In effect, the
heavy metal of the Serapis, in one or two discharges, cleared all
before it, and the main-deck guns of the Richard were almost
abandoned. Most of her people went upon the upper deck, and a
great number collected on the forecastle, where they were safe from
the battery of the Serapis; continuing the fight by throwing grenades
and using muskets.
At this stage of the action, then, the Serapis was tearing the
American to pieces, below, at each discharge of her battery; the
latter only replying to the English fire by two guns on the quarter-
deck, and three or four of her twelve-pounders. To the quarter-deck
guns Jones succeeded in adding a third, by shifting a gun from the
port side; and all these were used with effect, under his own eye,
until the close of the action.
He tried to get over a second gun, from the port side, but did not
succeed.
The fight must now have been decided in favor of the English, but
for the courage and activity of the people aloft. Strong parties were
placed in the tops, and, after a sharp and short contest, the
Americans had driven every man of the enemy from the upper deck
of the English frigate. After this they kept up so sharp a fire of small-
arms upon the quarter-deck of the English ship as to keep it clear,
shooting down many in the operation.
Thus, this singular condition of affairs obtained, that, while the
English had the battle very much to themselves, below, the
Americans had control of their upper deck and tops. Having cleared
the latter, some of the American seamen laid out on the Richard’s
main-yard, and began to throw hand grenades down upon the deck
of the British ship; while the men on the Richard’s forecastle
seconded these efforts by casting grenades, and other combustibles,
through the ports of the Serapis.
At length one man, in particular, became so bold as to take up his
post on the extreme end of the yard; and being provided with a
bucket of grenades and a match, he dropped the explosives upon
the enemy, one of them passing down the Serapis’ main hatchway.
The powder boys of the English ship had got up more cartridges
than were needed at the moment, and had carelessly laid a row of
them along her main deck, parallel with the guns.
The grenade which came down the hatch set fire to some loose
powder on the deck, and the flash passed to these cartridges,
beginning abreast of the main-mast, and running away aft.
The effect of the explosion was awful. More than twenty men were
instantly killed; many of them being left with nothing on them but the
collars and wrist-bands of their shirts, and the waist-bands of their
duck trowsers. This is often the effect of explosions in confined
places.
The official returns of Captain Pearson, made a week after the
action, show that there were no less than thirty-three wounded on
board then, still alive, who had been injured at this time; and thirty of
them were said to be in great danger.
Captain Pearson reported that the explosion destroyed nearly all
the men at the five or six aftermost guns of the Serapis; and,
altogether, nearly sixty of the Serapis’ men must have been instantly
disabled by this sudden blow.
The advantages thus obtained by the coolness and intrepidity of
the topmen of the Bonhomme Richard, in a measure restored the
chances of the fight, and, by lessening the fire of the enemy, enabled
Jones to increase his. And in the same degree that it encouraged the
Americans did it diminish the hopes of the English.
One of the guns, directed by Jones himself, had been for some
time firing against the main-mast of his enemy; while the two others
were assisting in clearing his decks with grape and canister. Kept
below decks by this double attack, where they had a scene of horror
before their eyes in the agonies of the wounded, and the other
effects of the explosion, the spirits of the English crew began to
droop, and a very little would have caused them to surrender. From
this despondency they were temporarily raised by one of the
unlooked-for events which characterize every battle, whether afloat
or ashore.
After exchanging the ineffectual and distant broadsides with the
Scarborough, as already mentioned, the Alliance had kept standing
off and on, to leeward of the two principal ships, and out of the
direction of their shot, when, about half-past eight, she appeared,
crossing the stern of the Serapis, and the bow of the Richard, and
firing, at such a distance, and in such a way, that it was impossible to
say which vessel would suffer the most.
As soon as she had drawn out of range of her own guns, her helm
was put up, and she ran down near a mile to leeward, and hovered
about, aimlessly, until the firing had ceased between the Pallas and
the Scarborough, when she suddenly came within hail, and spoke
both vessels.
Captain Cottineau, of the Pallas, earnestly entreated Captain
Landais, of the Alliance, to take possession of his prize, and allow
him to go to the assistance of the Richard, or else to stretch up to
windward in the Alliance, and go to the succor of the Commodore.
After some delay, Captain Landais took the very important duty of
assisting his consort into his own hands, and, making two long
stretches, under top-sails only, he appeared, at about the time at
which we have arrived in the story of the fight, directly to windward of
the two ships which were locked together in mortal combat. The
head of the Alliance was then to the westward. This ship then
opened fire again, doing at least as much damage to friend as foe.
Keeping away a little, she was soon on the port-quarter of the
Richard; and some of the people of the latter affirmed that her guns
were discharged until she had got nearly abeam.
Many voices now hailed, to inform the Alliance that she was firing
into the wrong ship; and three lanterns were shown in a line on the
off-side of the Richard, which was the regular signal for recognition
in a night action. An officer was then directed to hail, to command
Captain Landais to lay the enemy on board; and, the question being
put as to whether the order was understood, an answer was given in
the affirmative.
 As the moon had now been up for some time, it was impossible
not to distinguish between the two vessels. The Richard was all
black, while the Serapis had yellow sides; and the impression among
the people of the Richard was that Landais had intentionally attacked
her.
Indeed, as soon as the Alliance began to fire, the people left one
or two of the twelves on board the Richard, which they had begun to
fight again, saying that the English in the Alliance had got
possession of the ship and were helping the enemy.
The Alliance’s fire dismounted a gun, extinguished several battle-
lanterns on the main deck, and did much damage aloft. This ship
now hauled off to some distance, always keeping the Richard
between her and the enemy; and then she re-appeared, edging
down on the port beam of her consort, and hauling up athwart the
bows of that ship and the stern of her antagonist. The officers of the
Richard reported that her fire then recommenced, when by no
possibility could her shot reach the Serapis, except through the
Bonhomme Richard. In fact, it appears that this Landais was one of
those men who, for generations, affected the French character for
seamanship and conduct in naval battles.
There were, and are, many excellent French seamen, and as
builders of vessels they are unexcelled. But some men, like Landais,
at that time had destroyed their reputation afloat.
Ten or twelve men appear to have been killed on the forecastle of
the Richard at this time, that part being crowded, and among them
an officer of the name of Caswell, who, with his dying breath,
maintained that he had received his death wound from the friendly
vessel.
After crossing the bows of the Richard and the stern of the
Serapis, delivering grape as he passed, this “lunatic Frenchman” ran
off to leeward again, standing off and on, and doing absolutely
nothing for the remainder of the fight. It was as if a third party, seeing
two men fighting, should come up and throw a stone or two at them
both, and then retire, saying he had rather the little fellow whipped.
The fire of the Alliance certainly damaged the Bonhomme Richard,
and increased her leaks; and the latter vessel by this time had
leaked so much through her shot-holes that she had begun to settle
in the water. Many witnesses affirmed that the most dangerous shot-
holes received by the Richard were under her port bow and port-
quarter; or, in other words, where they could not have been received
from the Serapis. But this is not entirely reliable, as it has been seen
that the Serapis luffed up on the port-quarter of the Richard in the
commencement of the action, and, forging ahead, was subsequently
on her port bow, endeavoring to cross her fore-foot. These shots
may very possibly have been received then, and as the Richard
settled in the water, have suddenly increased the danger. On the
other hand, if the Alliance did actually fire while on the bow and
quarter of the Richard, as appears by a mass of testimony, the
dangerous shot-holes may have very well come from that ship.
Let the injuries have been received from what quarter they might,
soon after the Alliance had run to leeward again an alarm was
spread throughout the Richard that she was sinking.
Both the contending ships had been on fire several times, and the
flames had been extinguished with difficulty; but here was a new
enemy to contend with, and, as the information came from the
Carpenter, whose duty it was to sound the pump-well, it produced a
good deal of alarm.
The Richard had more than a hundred English prisoners on board;
and the Master-at-Arms, in the hurry of the moment, and to save
their lives, let them up from below. In the confusion of such a scene,
at night, in a torn and sinking vessel, the Master of the letter-of-
marque that had been taken off the north of Scotland, passed
through a port of the Richard into one of the Serapis, where he
reported to Captain Pearson that a few minutes would probably
decide the battle in his favor, or carry his enemy down, as he (the
Captain of the privateer) had been liberated in order to save his life.
Just at this moment the gunner of the Bonhomme Richard, who
had not much to do at his quarters, came on deck, and not seeing
Commodore Jones, or Mr. Dale, both of whom were occupied with
the liberated prisoners, and believing the Master (the only other
superior officer of the ship) to be dead, he ran up on the poop, to
haul down the colors, and, as he believed save all their lives.
Fortunately, the flag-staff had been shot away, and as the ensign
already hung in the water, he had no other means of letting his
intentions be known than by bawling out for quarter.
Captain Pearson now hailed, to inquire if the Richard demanded
quarter, and Commodore Jones, hearing the hail, replied “No.”
It is probable that the reply was not heard; or if heard, supposed to
come from an unauthorized source; for, encouraged from what he
had heard from the escaped prisoner, by the cries, and by the
confusion which appeared to reign on board the Richard, the English
Captain directed his boarders to be called away, and, as soon as
they were mustered, he directed them to take possession of the
prize. Some of the Englishmen actually got upon the gunwale of the
American ship, but, finding boarders ready to repel boarders, they
precipitately retreated. The Richard’s topmen were not idle at this
time, and the enemy were soon driven below again, with loss. In the
meantime Mr. Dale (who was afterwards Commodore Dale) had no
longer a gun which could be fought, and he mustered the prisoners
at the pumps, turning their consternation to account, and probably
keeping the Richard afloat by this very blunder that had come so
near losing her.
Both ships were now on fire again, and both sides, with the
exception of a very few guns on board each vessel, ceased firing, in
order to turn to and subdue this common enemy.
In the course of the battle the Serapis is said to have been on fire
no less than twelve times; while, towards its close, as will be seen in
the sequel, the Bonhomme Richard had been burning all the time.
As soon as order was restored in the American ship, after the
gunner’s call for quarter, her chances of success began to increase;
while the English, driven under cover, appeared to lose the hope of
victory. Their fire slackened very materially, while the Richard again
brought a few guns to bear.
It was an example of immense endurance, on either side; but as
time went on, the main-mast of the Serapis began to totter, and her
resistance, in general, to lessen.
About an hour after the explosion, or about three hours and a half
after the first gun was fired, and about two hours and a half after the
ships were lashed together, Captain Pearson hauled down his colors
with his own hands, his men refusing to expose themselves to the
fire of the Richard’s tops.
 As soon as it was known that the English colors were down, Mr.
Dale got upon the gunwale of the Richard, and, laying hold of the
main-brace pendant, swung himself on board the Serapis. On the
quarter-deck he found the gallant Captain Pearson, almost alone,
that officer having maintained his post throughout the whole of this
close and murderous engagement, proving himself a man of great
nerve and ability.
Just as Mr. Dale addressed the English Captain the First
Lieutenant of the Serapis came up from below, to inquire if the
Richard had struck, as her fire had entirely ceased. Mr. Dale
informed the English officer that he had mistaken the position of
things, the Serapis having struck to the Richard, and not the Richard
to the Serapis. Captain Pearson confirming this, his surprised
subordinate acquiesced, offering to go below and silence the guns
on the main deck, which were still playing on the American ship. To
this Mr. Dale would not consent, but passed both the English officers
at once on board the Bonhomme Richard. The firing below then
ceased. Mr. Dale had been closely followed to the quarter-deck of
the Serapis by a midshipman, Mr. Mayrant, with a party of boarders,
and as the midshipman struck the quarter-deck of the prize, he was
run through the thigh with a boarding pike, in the hands of a man
who was ignorant of the surrender. Thus did the close of this
remarkable sea-fight resemble its other features in singularity, blood
being shed, and shot fired, while the boarding officer was in
amicable discourse with his prisoners.
As soon as Captain Pearson was on board the Bonhomme
Richard, and a proper number of hands sent to Mr. Dale, in the prize,
Commodore Jones ordered the lashings to be cut, and the vessels to
be separated, hailing the Serapis, as the Richard drifted from
alongside of her, and ordering her to follow his own ship. Mr. Dale
had the head-sails of the Serapis braced sharp aback, and the helm
put down, but the vessel did not obey either the canvas or the helm.
Mr. Dale was so surprised and excited at this that he sprang from the
binnacle, to see the cause, and fell, full length, on deck. He had
been severely wounded in the leg, by a splinter, and until that
moment had been ignorant of the injury. He had just been picked up
and seated, when the Master of the Serapis came up and informed
him of the fact that the ship was anchored. By this time Mr. Lunt, the
Second Lieutenant, who had been away in the pilot-boat, had got
alongside, and came on board the prize, when Mr. Dale gave him
charge, the cable was cut, and the ship followed the Richard, as
ordered.
Although this protracted and bloody contest had now ended, the
victors had not done with either dangers or labors. The Richard was
not only sinking, from shot-holes, but she was on fire, so that the
flames had got within the ceiling, and extended so far that they
menaced the magazine; while all the pumps, in constant use, could
barely keep the water in the hold from increasing.
Had it depended upon the exhausted crews of the two combatants
the ship must soon have foundered; but the other vessels now sent
men on board to assist. So imminent did the danger from the fire
become, that all the powder left was got on deck, to prevent an
explosion. In this manner did the night of the battle pass, with one
gang always at the pumps and another fighting the flames, until
about ten o’clock in the forenoon of the 24th, when the fire was got
under.
Before daylight that morning eight or ten Englishmen, of the
Richard’s crew, had stolen a boat of the Serapis, and made their
escape, landing at Scarborough. Several other men of the Richard
were so alarmed at the condition of the ship that, during the night,
they jumped overboard and swam to the other vessels. At daylight
an examination of the ship was made. Aloft, on a line with those
guns of the Serapis which had not been disabled by the explosion,
the timbers were nearly all beaten in, or beaten out, for in this
respect there was little difference between the two sides of the ship.
It is said, indeed, that her poop and upper-decks would have fallen
into the gun-room, but for a few futtocks which the shot had missed.
So large was the vacuum, in fact, that most of the shot fired from
this part of the Serapis, at the close of the action, must have gone
through the Richard without touching anything. The rudder was cut
from the stern-post, and her transoms were nearly driven out of her.
All the after part of the ship, in particular, that was below the quarter-
deck, was torn to pieces; and nothing had saved those stationed on
the quarter-deck but the impossibility of elevating guns which almost
touched their object.
The result of the examination was to convince every one of the
impossibility of carrying the Richard into port, in the event of its
coming on to blow.
Commodore Jones reluctantly gave the order to remove the
wounded, while the weather continued fair.
The following night and a portion of the succeeding day were
employed in this duty; and about nine in the morning the officer who
was in charge of the ship, with a party at the pumps, finding that the
water had reached the lower deck, at last abandoned her.
About ten, the Bonhomme Richard wallowed heavily, gave another
roll, and went down, bows foremost.
The Serapis suffered much less than the Richard, as the guns of
the latter were so light, and so soon silenced; but no sooner were the
ships separated, than her main-top-mast fell, bringing with it the
mizzen-topmast. Though jury-masts were erected, the ship drove
about, nearly helpless, in the North Sea, until the 6th of October,
when the remains of the squadron, with the two prizes, got into the
Texel, the port to which they had been ordered to repair.
In this battle an unusual number of lives were lost; but no
authenticated report seems to have come from either side. The
English stated the loss of the Richard to have been about three
hundred, in killed and wounded. This would include nearly all on
board that ship, and was, of course, a mistake. The muster-roll of the
Richard, excluding the marines, which roll was in existence long
after, shows that 42 men were killed, or died of wounds very shortly,
and that 41 were wounded. No list of the casualties of the marines is
given. This would make a total of 83 out of 227 souls. But some of
those on the muster-roll were not in the battle at all, for both junior
lieutenants, and about 30 men with them, were absent in prizes.
There were a few volunteers on board, who were not mustered,
and so, if we set down 200 as the regular crew during the action, we
shall not be far wrong. Estimating the marines at 120, and observing
the same proportion for casualties, we shall get 49 for the result,
which will make the entire loss of the Richard one hundred and
thirty-two.
 It is known, however, that in the course of the action the soldiers
suffered out of proportion to the rest of the crew, and as general
report made the gross loss of the Bonhomme Richard 150, it is
probable that this was about the number.
Captain Pearson made a partial report, putting his loss at 117;
admitting, at the same time, that there were many killed who were
not reported.
Probably the loss of the two ships was about equal, and that
nearly or quite half of all engaged were either killed or wounded.
In a private letter, written some time after, Jones gives an opinion
that the loss of men in the two ships was about equal. Muster-rolls
were loosely kept, in those days.
That two vessels of so much force should be lashed together for
more than two hours, making use of artillery, musketry, and all the
other means of offence known to the warfare of the day, and not do
even greater injury to their crews, must strike every one with
astonishment. But the fact must be ascribed to the peculiarities of
the battle, which, by driving the English under cover early in the fight,
and keeping the Americans above the chief line of fire of their
enemy, in a measure protected each side from the missiles of the
other. As it was, it was a most sanguinary conflict, with a duration
prolonged by unusual circumstances.
Great interest has always attached to this typical sea-fight.
Scarcely any of the eye-witnesses agreed as to the facts. The
principal information was given to Fennimore Cooper by Commodore
Dale. Captain Pearson stated that the Alliance kept about them all
the time, raking them fore and aft. This statement is contradicted by
the certificates of the officers of the Richard, by persons who were
on board the Alliance, by the persons who were in the boat, and by
officers of the other vessels near.
The First Lieutenant and the Master of the Alliance admitted that
they were never on the free side of the Serapis at all, and their ship
never went round her. They also said that they engaged the
Scarborough, at long shot, for a short time; a fact corroborated by
Captain Piercy. They added that their ship was a long time aloof from
the fight, and that she only fired three broadsides, or parts of
broadsides, at the Richard and Serapis.
 From the testimony it is likely that the Alliance injured the Richard
much more than she did the Serapis. This does not detract from the
merit of the gallant Captain Pearson, who could not have known that,
and the proximity of the Alliance no doubt influenced him in inducing
him to lower his flag.
It is and always will be a matter of doubt as to whether the
Scarborough raked the Bonhomme Richard before she was engaged
with the other ships.
Altogether, this was one of the most remarkable sea-fights on
record.
The arrival of Jones and his prizes in the Texel excited much
interest in the diplomatic world. The English demanded that the
prizes should be released and Jones himself given up as a pirate.
The Dutch government, though favorable to the Americans, was not
prepared for war, and therefore temporized. A long correspondence
ensued, and the following expedient was adopted. The Serapis,
which had been refitted, was transferred to France, as was the
Scarborough, while Jones took command of the Alliance; Landais
having been suspended, and ordered to quit the country. Landais
was afterward restored to command, but deposed again, on the
ground of insanity; and eventually discharged the service.

MEDAL AWARDED TO JOHN PAUL JONES BY THE AMERICAN CONGRESS.

THE WASP BOARDING THE FROLIC.
 WASP AND FROLIC. A. D. 1812.

n November 13th, 1812, the American 18-gun ship-

sloop Wasp, Captain Jacob Jones, with a crew of
137 men, sailed from the Delaware, and ran off
southeast, to get into the track of the West India
traders. On the next day she encountered a heavy
gale, and lost her jib-boom and two men who were
upon it. On the 17th, the weather having
moderated somewhat, she discovered several sail,
which were part of a convoy of merchantmen from
Honduras, bound for England, under convoy of the
British 18-gun brig-sloop Frolic, of 19 guns and 110
men, commanded by Captain Whinyates. They had
been dispersed by the gale of the 16th, in which
the Frolic had lost her main yard. The Frolic had
spent the next day in repairing damages, and by dark, six of her
missing convoy had rejoined her. On Sunday, the 18th, which was a
fine day, the convoy was discovered ahead and to leeward of the
American ship, Captain Jones not choosing to close during the night,
as he was ignorant of the force opposed to him.
The Wasp now sent down top-gallant yards, close reefed her top-
sails, and bore down under short fighting canvas. The Frolic lashed
her damaged yard on deck, and hauled by the wind, under her boom
main-sail and close reefed fore-top-sail, hoisting Spanish colors to
decoy the stranger down, and permit her convoy to escape. By half-
past eleven the ships were close together, and running on the
starboard tack, parallel, and not more than sixty yards apart. They
then commenced firing, the Wasp her port, and the Frolic her
starboard battery. The latter fired very rapidly, delivering three
broadsides to the Wasp’s two, both crews cheering loudly as the
ships wallowed through the water, abreast of each other. There was
a very heavy sea running, left by the gale, which caused the vessels
to roll and pitch heavily. The Americans fired as the engaged side of
their ship was going down, aiming at the Frolic’s hull, while the
English fired while on the crest of the seas, their shot going high.
The water flew in clouds of spray over both vessels, which rolled
so that the muzzles of the guns went under, but in spite of this the
firing was spirited and well directed. In five minutes the Wasp’s main-
top-mast was shot away, and fell across the port fore and fore-top-
sail braces, rendering her head yards unmanageable. Ten minutes
after her gaff and mizzen-top-gallant mast came down, and by
eleven o’clock every brace and most of her rigging was shot away,
so that it was impossible to brace her yards.
But in the meantime the Frolic had suffered dreadfully in her hull
and lower masts, and her gaff and head braces were also shot away.
The slaughter among her crew was also very great; but the survivors
kept at their work with the dogged courage of their race. At first the
two vessels ran side by side, but the American gradually forged
ahead, throwing in her fire from a position in which she herself
received little injury. By degrees they drew so close together that the
Americans struck the Frolic’s side with their rammers, in loading, and
began to rake the British vessel with dreadful effect.
The Frolic then fell on board her antagonist, her jib-boom coming
in between the main and mizzen-rigging of the Wasp, and passing
over the heads of Captain Jones and Lieutenant Biddle, who were
standing by the capstan, on the quarter-deck.
This forced the Wasp up into the wind, and she again raked the
Frolic, Captain Jones trying to restrain his crew, who were anxious to
board, until he could put in another broadside. But they could not be
held back, and Jack Lang, a seaman from New Jersey, leaped on
the Frolic’s bowsprit. Lieutenant Biddle then mounted the hammock-
cloth, to board, but got his feet entangled in some rigging, and one of
the midshipmen seizing his coat-tails, to help himself up, the
Lieutenant tumbled back on the deck. As the ship rose to the next
swell he succeeded in getting on the bowsprit, on which were one or
two seamen of his ship. But there was no one to oppose them. The
man at the wheel stood grim and undaunted, and there were two or
three more about the deck, among them Captain Whinyates and his
First Lieutenant, both so severely wounded that they could not stand
without support. There could be no more resistance, and Lieutenant
Biddle hauled down the flag himself, at a quarter-past twelve—just
forty-three minutes after the action commenced. Almost immediately
both the Frolic’s masts went by the board.
Of her crew not twenty men escaped unhurt. Every officer was
wounded and two were killed. Her total loss was thus over ninety,
about thirty of whom were killed outright or died of wounds.
The Wasp suffered severely in her rigging and aloft generally, but
only two or three shots struck her hull. Five of her men were killed—
two in her mizzen-top, and one in her main-top-mast rigging, and five
were wounded, chiefly aloft.
The two vessels were practically of equal force. The loss of the
Frolic’s main-yard had converted her into a brigantine, and as the
roughness of the sea made it necessary to fight under very short
canvas, her inferiority in men was fully compensated for by her
superiority in metal. She had been desperately defended; no men
could have fought more bravely than Captain Whinyates and his
crew. On the other hand, the Americans had done their work with a
coolness and skill that could not be surpassed. The contest had
been mainly one of gunnery, and had been decided by the greatly
superior judgment and accuracy with which they fired. Both officers
and crew had behaved well.
The French Vice-Admiral Jurien de la Gravière, commenting on
this action, says: “The American fire showed itself to be as accurate
as it was rapid. On occasions, when the roughness of the seas
would seem to render all aim excessively uncertain, the effects of
their artillery were not less murderous than under more
advantageous conditions. The corvette Wasp fought the brig Frolic in
an enormous sea, under very short canvas, and yet, forty minutes
after the beginning of the action, the Americans who leaped on board
the brig found on the deck, covered with dead and dying, but one
brave man, who had not left the wheel, and three officers, all
wounded, etc., etc.”
The characteristics of the action are the practical equality of the
contestants in point of force, and the enormous disparity in the
damage each suffered. Numerically the Wasp was superior by five
per cent., and inflicted a ninefold greater loss.
 Captain Jones was not destined to bring his prize into port, for a
few hours afterward the Poictiers, a British 74, hove in sight. Now
appeared the value of the Frolic’s desperate defence; if she could
not prevent herself from being captured, she had at least ensured
her own recapture, and also the capture of her foe. When the Wasp
made sail they were found to be cut into ribbons, and she could not
make off with sufficient speed. The Poictiers soon overtook her, and
carried both vessels into Bermuda. Captain Jones and his officers
and men were soon exchanged, and Congress voted them prize
money for their capture; while the Captain and Lieutenant Biddle
were both deservedly promoted.
 CONSTITUTION. A.D. 1812.

fter the declaration of war with England, on the

18th of June, 1812, Vice-Admiral Sawyer, of the
British Navy, prepared a squadron at Halifax, and
dispatched it, on July 5th, to cruise against the
United States. This squadron was commanded
by Captain Broke, of the Shannon, 38, an officer
of great merit and experience, who had under
him the Belvidera, 36, Captain Byron, another
excellent officer, the Africa, 64, and the Æolus,
32.
On the 9th of July, off Nantucket, they were
joined by the Guerrière, 38, Captain Dacres. This
squadron, on the 16th, fell in with and captured
the United States brig Nautilus, 14, which, like all the brigs of that
day, was overloaded with men and guns; she threw her guns
overboard, and made use of every expedient to escape, but with no
avail.
At 3 p. m. on the following day, when the British squadron was off
Barnegat, and about twelve miles from the shore, a strange sail was
seen in the southeast, or windward quarter, standing to the
northeast. This vessel was the United States frigate Constitution, 44,
Captain Isaac Hull. When the war broke out he was in the
Chesapeake, engaged in getting a new crew. Having on board about
four hundred and fifty souls, he sailed on the 12th of July. His crew
was entirely new, drafts of men coming on board up to the last
moment. Hull wrote, just before sailing, that “the crew are as yet
unacquainted with a ship-of-war, as many have but lately joined and
have never been on an armed ship before. We are doing all that we
can to make them acquainted with their duty, and in a few days we
shall have nothing to fear from any single-decked ship.” On the 17th,
at 2 p. m., Hull discovered four sail to the northward, heading to the
westward. An hour after, the wind being very light, the Constitution
made more sail, and tacked ship, being in eighteen and a-half
fathoms. At four p. m. the Constitution discovered a fifth sail, which
was the Guerrière. At about six o’clock the wind shifted and blew
lightly from the south, bringing the American ship to windward, and
she immediately wore, with her head to the eastward, set studding-
sails and stay-sails, and at half-past seven beat to quarters,
intending to speak the nearest vessel, the Guerrière. The two
frigates neared each other gradually, and the Constitution, at ten p.
m., began making signals. These were not answered, and the two
frigates gradually drew near each other; the Guerrière discovered,
on her lee beam, the other British vessels, and signalled to them.

CAPTURE OF THE GUERRIÈRE BY THE CONSTITUTION.

They did not answer the signals, thinking she must know who they
were—a circumstance which afterwards gave rise to sharp
recriminations. Dacres, concluding them to be Commodore Rodgers’
American squadron, tacked, and stood away from the Constitution
for some time before discovering his mistake.
 The next morning, soon after daylight, Hull had just enough
steerage-way to keep the Constitution’s head to the east, on the
starboard tack. On his lee quarter, bearing northeast by north, were
the Belvidera and Guerrière, and astern the Shannon, Æolus, and
Africa. At half-past five in the morning it fell dead calm, and Hull
called away his boats, to tow the ship to the southward. At the same
time he got two long guns aft, and cut away the taffrail, to give them
more room to work; while he ran out of the cabin windows two of the
long main-deck 24’s.
By this time the British had followed his example, and had their
boats out to tow. Soon, however, a light breeze sprang up, and the
Constitution set all studding-sails and stay-sails. At this time the
Shannon opened upon her with her bow-guns, but ceased when she
found she did not reach the American ship. By half-past six in the
morning the light breeze had died away again, and the Shannon
began to gain on the Constitution, in consequence of most of the
boats of the British squadron being set to tow her. Just then the
Constitution sounded in twenty-six fathoms, and Lieut. Charles
Morris suggested to Captain Hull to try kedging. This was adopted,
and all the spare rope bent on to the kedges, paid out into the
cutters, and then one kedge run out half a mile ahead and let go.
The crew then clapped on and walked the ship up to the kedge—
over-running and tripping it as she came to the end of the line.
Meanwhile, the other kedge and lines were carried out; and the ship
thus glided away from her pursuers.
At half-past seven a. m. a little breeze sprang up, and the
Constitution then set her ensign and fired a shot at the Shannon—
the first shot of this remarkable chase. It soon fell calm again, and
the Shannon began to near. This was a critical time, for, if the
Shannon got close enough to disable in the slightest degree the
spars of the American frigate, she must inevitably be captured. But
about nine o’clock an air from the southward struck the Constitution,
bringing her to windward. The breeze was seen, freshening the
glassy surface of the sea, her sails were trimmed, and as soon as
possible she was brought close upon the port tack. The boats which
were engaged in kedging dropped alongside; those which belonged
to the davits were run up, and the others lifted clear of the water by
purchases from the chains and spare spars, so that they could be
used again at a moment’s notice. The Guerrière, on her lee beam,
now opened fire, but, as it fell short, Hull paid no attention to it.
Again, to Hull’s vexation, it fell calm—it was, indeed, just such a
summer’s day as is often seen off the Jersey coast, when it seems
as if the wind had died out forever—and he started two thousand
gallons of water, and once more lowered his boats to tow; having to
use great exertion to keep the Shannon, which had most of the boats
of the squadron, from gaining on her. Again a breath of air ruffled the
water, and this time the Belvidera gained on the other British ships,
and their boats were all put on to tow her. (Cooper says that this ship
was the Shannon still, but Roosevelt, a very careful writer, says it
was the Belvidera.) Captain Byron, of this ship, observing how the
Constitution crept away from them by warping, did the same thing;
and he even improved upon the operation by working two kedge
anchors at the same time-paying the warp out of one hawse hole as
it was run in through the other. Having men from the other English
ships on board, and a lighter ship to work, he gradually gained upon
the Constitution. Hull fully expected to be overtaken, but he made all
his arrangements to endeavor to disable the first frigate before her
consorts could come up. The English frigates, on the other hand,
were deterred from coming very close, for fear of having their boats
sunk by the American frigate’s stern-chasers.
The Constitution’s crew worked splendidly. Officers and men
regularly relieved each other in the exhausting labor, the officers
lying down on deck for a short rest, and the men sleeping at their
guns. The Constitution rather gained, but the situation continued
critical. The British ships continued towing and kedging, barely out of
gun-shot, all the afternoon, the few light puffs of air being carefully
watched, and made the most of by both sides. At seven in the
evening, it being dead calm again, the towing and kedging was
renewed, the men being much worn by their continued exertions. But
partial breezes during the night gave them some rest, and at daylight
the Belvidera was off the Constitution’s lee beam, with a light breeze
from the southeast. The Æolus was also well up, but the wind now
freshened, and the Constitution and the English frigates were soon
running off on the starboard tack, with every stitch of sail set. The