THE SUBSEQUENT TRIALS FOR PIRACY
On the following day Kidd and his fellow prisoners were tried at the Old
Bailey for the piratical seizure of the _Quedagh Merchant_ and other
alleged piracies of minor importance, this trial having, as has already
been explained, been postponed in order that Kidd might get the papers
which had been ordered by the House of Commons to be handed over to the
Admiralty for the purposes of his trial. With admirable brevity and
lucidity his two counsel, Dr. Oldish and Mr. Lemmon, had explained to
the Court that these papers would constitute his defence, inasmuch as
the French passes would clearly show that his seizure of his two prizes
had been lawful, and that in taking them, so far from being a pirate,
he had done his King and country service. Their plea that the trial
should be put off in order that these papers might be procured had been
allowed as reasonable; and the glibber of his two counsel, Mr. Lemmon,
had apparently satisfied himself that they would be forthcoming; for he
had ended by jauntily observing: “My lord, we will be ready to-morrow
morning.”
What happened during the next few hours can only be conjectured. What
does seem certain is, that when the morning came, neither Dr. Oldish
nor Mr. Lemmon appeared on Kidd’s behalf; nor had the French passes
and other papers that had been promised, been furnished to Kidd; that
his trial began and ended without their production; and that not one
of the judges who took part in it, the most prominent of whom was the
Lord Chief Baron Ward, who had been present in Court the day before, and
heard the arguments for the postponement of the trial, made any comment
on the absence of Kidd’s counsel, or asked for any explanation from the
Admiralty officials or any one else for the non-production of the passes,
which they had been told would constitute Kidd’s defence. Indeed, as will
be seen, the Lord Chief Baron in his summing up went so far as to suggest
that they existed only in Kidd’s imagination.
It is inconceivable that the monstrous miscarriage of justice, which
ensued, was the result of mere accident, negligence, or stupidity. It was
clearly the duty of the officials of the Admiralty, in whose court Kidd
was being tried, to allow him access to the papers, including the passes,
which had been delivered to them by the order of the House of Commons for
that purpose. It was clearly the duty of Kidd’s two paid counsel to put
in an appearance and press for a further postponement of the trial, until
these passes had been produced, instead of leaving him, as they did, in
the lurch to conduct his own defence, with the disastrous results that
might have been anticipated. It is very difficult to avoid the suspicion
of foul play on behalf of one or more of the great personages interested
in the case. In this connection there are certain facts which it is
impossible to ignore. At the time of the trial, impeachments were pending
in Parliament against Orford, the late First Lord of the Admiralty, and
Somers, for their participation in Kidd’s enterprise. No efforts had
been spared by their political opponents to induce Kidd to make damaging
disclosures against them. Thus far they had been unsuccessful. Kidd had
remained faithful to his employers. But dead men tell no tales; and
neither Orford nor Somers could have felt any security against untoward
disclosures on his part so long as he remained alive. Coming to the last
of the very significant close coincidences of date that abound in this
case, we find that Somers deferred putting in his reply to the Articles
of Impeachment drawn up against him by the Commons until the day after
Kidd’s execution. In order to appease public opinion and the East India
Company, some scapegoat was indispensable, if these two great men were
to be allowed to go scot free. Can it reasonably be doubted that it was
this consideration that induced the officials of the Admiralty to keep
back from Kidd and from the Court the two French passes which would have
been his salvation and which had been delivered to them by the House of
Commons, in order that he might have access to them?
The report of his trial will be found melancholy reading by those who
still retain some belief in the impartiality of the judges and the
honesty of the counsel of that age. Three of the latter, the Solicitor
General, the advocate of the Admiralty, and their junior Mr. Coniers,
with their trained wits and long experience in criminal cases, were
long odds for poor Kidd and his companions to contend against,
although the only evidence produced by the prosecution consisted of the
uncorroborated testimony of two of the mutineers who had deserted their
colours at Madagascar and joined Culliford in open piracy. These men had
evidently been carefully taken by the attorneys through every incident
in the voyage of the _Adventure Galley_, which lent itself to ingenious
misrepresentation, tending to the discredit of Kidd and his companions.
In some instances they obviously tried to mislead the jury, and were
only prevented from doing so by Kidd’s simple questioning of them.
Ignorant of the rules of the court he tried more than once to break in
and give his own version whilst they were giving theirs. “Hear me,” he
cried, springing up in court on one occasion; but was promptly reduced
to silence by the reminder that when the time came, he could question
the witnesses. He did ask them some very pertinent questions, from
the answers to which it was clear that they had wilfully endeavoured
to deceive the Court. But he was, of course, no adept in the art of
systematic and persistent cross-examination. As time went on, and it
became evident that whenever he asked any question with the object of
testing the credibility of the two deserters, he was stopped by the
judge, and whenever their evidence was in conflict with his statements
or those of any of his men, it was readily believed, he not unnaturally
became impatient, and after a while gave up the hopeless job in despair.
It must not be forgotten that he and his men were placed at a great
disadvantage by being all included in the same indictment for piracy,
and that consequently not one of them could be called and examined as a
witness for the defence. Kidd seems to have felt this keenly. On being
told by the Junior Counsel for the prosecution, “Now, if you will ask
this witness any question, you may,” he replied, “What signifies it to
ask him any question? We have no witnesses, and what we say signifies
nothing.” At last in reply to the Solicitor General whether he had any
further questions to ask, he replied, “No, no. So long as he swears it,
our words or oaths cannot be taken;” and again, “It signifies nothing to
ask any questions. A couple of rogues will swear to anything.”
The SOLICITOR GENERAL. “Will you ask any further questions?”
KIDD. “No, no, I will not trouble the Court any more: for it is a folly.”
It might have been thought that the testimony given by such unimpeachable
witnesses as Colonel Hewson, Captain Bond, Captain Humphreys, and Mr.
Cooper of the character and eminent public services of Kidd was entitled
to some weight, in cases where the question for the jury to decide was
the relative credibility of Kidd and such of his men as had remained
faithful to him, and that of the two mutineers who had by their own
confession joined Culliford in open piracy, and had since been promised
their lives if they would take Kidd’s. This, however, was clearly not the
view of the Lord Chief Baron. Speaking of Kidd in his summing up he said:
“He has called some persons here to give an account of his reputation,
and of his services done in the West Indies, and one of them says” (as a
matter of fact they all swore to it) “he did good service there. Well,
so he might and might have” (_sic_) “and it is very like he had such
reputation, when the King trusted him with these commissions, else I
believe he had never had them, so that (_sic_) whatever he might be so
many years ago, that is not a matter to be insisted on now, but what he
hath done since, and how he hath acted in this matter charged against
him.” The Lord Chief Baron evidently had no belief in the doctrine “_Nemo
repente fuit turpissimus_.”
Bradenham, before he had been caught by the police in London, had been
seen by one of Kidd’s witnesses, a Mr. Say, at the Marshalsea. This
witness, on being told by a friend that Bradenham had been Kidd’s
surgeon, had observed: “There is a mighty noise about Captain Kidd,”
on which Bradenham admitted that he had been with Kidd at Madagascar,
but expressed his opinion that Kidd “had done nothing but what he could
answer for, and nothing that could do him any hurt.” The truthfulness
of this evidence was not questioned by the prosecution: but it was
swept aside contemptuously by the Lord Chief Baron. “Mr. Bradenham,”
he said, “was with him there. There is no doubt of that. It is not to
be questioned, that he would not say anything ill against him then.”
In other words, Bradenham in the judge’s opinion, was a witness whose
voluntary evidence on an ordinary occasion was worthless. His testimony
could only become of value, when given under compulsion, with the object
of saving his own life, and after he had been drilled to cast it into
such a shape that it would in the opinion of the legal advisers of the
Crown, imperil the life of another man of unimpeachable antecedents, whom
the Government desired to destroy. It is to be feared that such views of
the value of King’s evidence were by no means rare in those days. When
questioned by the Judge, why, if he thought the _Quedagh Merchant_ was
a lawful prize, he did not have her condemned, Kidd’s simple answer was
that his men would not allow him to do so. As a matter of fact he was on
his way to the nearest Court of Admiralty competent to condemn her, when
his men mutinied. “My lord,” he said, “there were ninety-five men that
deserted my ship and took away what they pleased. We could not stand in
defence of anything.” He explained that he had nothing to do with the
sharing of the goods amongst his men, and knew nothing of it. He was
never near them. Questioned as to his coming to terms with Culliford,
he replied, “My lord, I designed to take that frigate and I designed
to come to England, I said let us take this ship, and did they not all
consult and say, where there is one that will fire against the pirate
there are ten that will fire against you? And so they went and took the
goods and left me.”
The main question at issue was not however whether Kidd had been
justified in failing to keep the deserters in hand, or in coming to terms
with Culliford, after they had left him, but whether the two prizes which
he had taken had French passes on board when captured.
This was fully recognised by the Lord Chief Baron who in his summing up
in the case of the _Quedagh Merchant_ said: “Now this is the great case
before you, on which the indictment turns. The ship and goods as you have
heard, are said by the witnesses” (_i. e._, by the King’s evidence) “to
be the goods of Armenians and other people that are in amity with the
King: and Captain Kidd would have them to be the goods of Frenchmen, or
at least that the ship was sailed under French passes. Now if it were as
Captain Kidd says, it was a lawful prize and liable to confiscation: but
if they were goods of persons in amity with the King, and the ship was
not navigated under French passes, it is very plain it was a piratical
seizing of them.”
There can be no doubt therefore that if Kidd had been able to produce the
passes in court, he would have had a perfect defence. Unfortunately he
seems to have been unaware that Bellamont had sent them over to England.
His case was that he had given them to Bellamont, and he believed that
Bellamont was keeping them back. Being unable to get them, or to have his
trial postponed until they could be obtained, he tried as a last resource
to get Bradenham and Palmer to admit that they knew of their existence.
KIDD (_to Bradenham_). “Did you not see any French passes aboard the
_Quedagh Merchant_?”
BRADENHAM. “You told me you had French passes. I never did see them.”
KIDD. “Did you never declare this to anybody that you saw the French
passes?”
BRADENHAM. “No, I never did see any; but I only said I heard you say you
had them.”
KIDD (_to Palmer_). “I ask him whether I had no French passes.”
PALMER. “Indeed, Captain Kidd, I cannot say. I did hear him say he had
French passes, but I never saw them. I have heard Captain Kidd say
several times that he had French passes.”
KIDD. “And did you hear nobody else say so?”
PALMER. “No.”
KIDD. “It is in vain to ask any questions.”
LORD CHIEF BARON WARD. “What was that pretence of a French pass?”
PALMER. “I saw none.”
KIDD. “But you have heard of it.”
PALMER. “I have heard of it, but I never saw it.”
Unable to get any admissions from these two, Kidd called another witness,
Mr. Davis.
KIDD. “I desire Mr. Davis may be called--Mr. Davis, pray give an account,
whether you did not see a French pass.”
DAVIS. “I came a passenger from Madagascar, and from thence to Amboyna”
(evidently a clerical error for Anguilla) “and there he sent his boat
ashore, and there was one said Captain Kidd was published a pirate in
England, and he gave him those passes to read--the Captain said they were
French.”
LORD CHIEF BARON WARD. “Who gave them?”
DAVIS. “Captain Kidd gave them.”
KIDD. “You heard Captain Elms say they were French passes.”
DAVIS. “Yes. I heard Captain Elms say they were French passes. Says he,
If you will, I will turn them into Latin.”
Summing up this evidence, the Lord Chief Baron said: “Gentlemen, it is to
be considered what evidence Captain Kidd hath given to prove that ship
and goods to belong to the French King or his subjects, or that the ship
was sailed under a French pass, or indeed that there ever was a French
pass shown or seen. He appeals to the witnesses over and over again, Did
you never see it? No, say they. Nor did not you, saith he, say you saw
it. No, saith the witness. I said that Captain Kidd said he had a French
pass, but I never saw it.”
“Now, gentlemen, this must be observed, If this was a capture on the high
sea, and these were the goods of persons in amity with the King and had
no French pass, then it is a plain piracy.”
“Now what does Captain Kidd say to all this? He has told you he acted
pursuant to his commission: but that cannot be, unless he gives you
satisfaction that the ship and goods belonged to the French King, or his
subjects, or that the ship had a French pass. Otherwise neither of them
(_sic_) will excuse him from being a pirate; for if he takes the goods of
friends, he is a pirate: he had no authority for that; there is no colour
from either of his commissions to take them. And as to the French passes
there is nothing of that appears by any proof; and for aught I can see,
none saw them but himself, if there ever were any.”
Fortunately for Kidd’s memory, these passes, as has already been stated,
had been made Parliamentary papers. Verbatim copies of them will be found
in Appendix C.
The Admiralty may well look back with pride to some of the performances
of its officials, but the shameful suppression of these passes at
Kidd’s trial is not one of them. Had they been produced, as they ought
undoubtedly to have been in accordance with the order of the House of
Commons, it would have puzzled even the Lord Chief Baron to discover an
excuse for directing the jury to find Kidd and such of his crew as had
remained faithful to him guilty of piracy.
Of the latter, three, Barlicorn, Jenkins, and Lumley, apprentices to the
Captain, the Mate and the cook were acquitted by the jury. Four others,
Howe, Churchill, Mullins, and Owens, the cook, pleaded that they had
surrendered under the King’s Proclamation, the first three to Colonel
Bass, the Governor of East Jersey, and the fourth to a Justice of the
Peace in Southwark. There is no question but that these men had been
misled by this proclamation into thinking that if they surrendered as
they did, they would have a free pardon, and that but for being so misled
they would have been at large. Three of them had been in gaol awaiting
their trial for nearly two years. But their plea was disallowed on the
ground that they had surrendered to the wrong persons. The proclamation
was dated the eighth of December, 1698. It had been sent out to St.
Marie’s on board of Captain Warren’s squadron, which was conducting the
ambassador of the Great Mogul on a tour to the Eastern seas that he
might see with his own eyes that the Government was at last making a
serious effort to suppress the Eastern piracy. It declared the King’s
intent to be “That such as had been guilty of any acts of piracy in
the seas East of the Cape of Good Hope, might have notice of His Most
Gracious Intention of extending His Most Royal mercy to such of them as
should surrender themselves, and to cause the severest punishment to be
inflicted upon those who should continue obdurate.” The King’s intent
seemed therefore plain, that he would pardon all those who surrendered
themselves. But the proclamation “required and commanded all persons who
had been guilty of any act of piracy in any place eastward of the Cape
of Good Hope to surrender themselves to the four commissioners named
in it;” and it empowered these gentlemen only, who were traveling about
with the Great Mogul’s ambassador and were not readily accessible, “to
give assurances of the King’s Most Gracious pardon to all such as should
surrender themselves.” The Lord Chief Baron held that the proclamation
must be construed strictly. “It says,” said he, “they must surrender
themselves to such and such persons by name. See if it be not so. Here
are several qualifications mentioned. You must bring yourselves under
them, if you would have the benefit of it.”
Mr. MOXON (_counsel for one of the prisoners_). “But, my lord, consider
the nature of this proclamation, and what was the design of it, which was
to induce pirates to come in.”
LORD CHIEF BARON WARD. “If you would have the benefit of it, you
must bring yourself under the conditions of it. Now there are four
Commissioners named that you ought to surrender to. But you have not
surrendered to any one of these, but to Colonel Bass, and there is no
such man named in the proclamation.”
The consequence of this decision was that all four of the men who had
surrendered under the proclamation were condemned to death along with
Kidd, and their comrades, some of whom when it became clear that they
would be condemned were desirous that their loyal obedience to their
captain should be placed on record, _e. g._:
GABRIEL LOFFE (_a foremast man from New York_). “I have nothing to say,
but to ask him” (Bradenham) “whether I did ever disobey my captain’s
commands, or was in any way mutinous on board the ship.”
BRADENHAM. “No. I cannot say you did.”
PARROT (_the Plymouth boy_). “My lord, I desire you would ask the
witnesses, whether I ever disobeyed my captain’s commands. Mr. Palmer,
did you ever see me guilty of an ill thing? Did I ever disobey my
captain?”
PALMER. “You were always obedient to your captain.”
MULLINS (_the Irishman_). “Mr. Bradenham, did I do anything against my
captain’s commands?” (It is to be feared he did, in leaving him.)
BRADENHAM. “I cannot say, but that he did always obey the Captain’s
commands.”
MULLINS (_again, this time to Palmer_). “Did not Captain Kidd often say
that his commission would bear him out in what he did?”
PALMER. “Yes. I have often heard him say that.”
Judge TURTON. “But how came you to go aboard Culliford?”
MULLINS. “For want, my lord.”
LOFFE (_again_). “My lord, I was a servant under Captain Kidd and always
obeyed his commands, and had no share. I came home with Captain Kidd to
Boston, and went to my Lord Bellamont.”
HOWE. “Have I not obeyed my captain in all his commands?”
LORD CHIEF BARON WARD. “There is no doubt made about that.”
Kidd himself on being asked whether he had anything more to say replied,
“My lord, I had many papers for my defence if I could have had them.”
LORD CHIEF BARON WARD. “What papers were they?”
KIDD. “My French passes.”
LORD CHIEF BARON WARD. “Where are they?”
KIDD. “My Lord Bellamont had them.”
LORD CHIEF BARON WARD. “If you had anything of disability upon you to
make your defence, you should have objected it at the beginning of your
trial. What you mean by it now, I cannot tell.”
In mercy to the memory of this wicked old judge, let us hope that this
obtuseness was not feigned, and that he had really forgotten, though
it is difficult to see how he could have done so, Kidd’s impassioned
entreaties at the beginning of his trial on the preceding day for the
production of these papers, the protracted discussion which took place
thereon in which he had himself taken part and the undertaking that the
papers should be produced.
When the jury had brought in their verdict, Kidd, asked whether he had
anything to say for himself why he should not die according to the
law, replied, “My lord, I have nothing to say, but that I have been
sworn against by perjured and wicked people.” After sentence had been
pronounced, he added, “My lord, it is a very hard sentence. For my part,
I am the innocentest person of them all, only I have been sworn against
by perjured persons.”
CHAPTER SEVEN