CAPTAIN KIDD, A PIRATE WITH A ROYAL COMMISSION.

Captain William Kidd, the hero of, as it may be called, this political

and nautical romance, was born in the town of Greenock, in Scotland, and

bred up for a seaman’s life. Having quitted his native country, he

resided at New York, where he became owner of a small vessel, with which

he traded among the pirates, and thus obtained a thorough knowledge of

their haunts, and could give a better account of them than any other

person whatever. He was a man not particularly remarkable for courage,

but very avaricious. He could never resist the tempting influence of the

rapid profits made by pirates, and to this was owing his connection with

them. While in their company, he used to converse and act as they did;

yet at other times he would make singular professions of honesty, and

intimate how easy a matter it would be to extirpate sea robbers, and

prevent their future depredations. His frequent remarks on this subject

engaged the notice of several considerable planters in the state of New

York, who, forming a more favourable opinion of him than his true

character would warrant, procured him the patronage with which he was

afterwards honoured. For a series of years complaints had been made of

the piracies committed in the West Indies, which had been greatly

encouraged by some of the inhabitants of North America, on account of

the advantage they derived from purchasing effects thus fraudulently

obtained. This coming to the knowledge of King William III., he, in the

year 1695, bestowed the government of New England and New York on his

devoted follower, Richard Coote, Earl of Bellamont, an Irish noble of

distinguished character and abilities, who immediately began to consider

of the most effectual method to redress the evils complained of, and

consulted with Colonel Levingston, a gentleman who had great property in

New York, on the most feasible steps to obviate the evils so long

complained of. At this juncture Captain Kidd, having made money at New

York, was sailing pompously about in a sloop of his own. The colonel

fixed on him as the very man needed, and mentioned him to Lord Bellamont

as a bold and daring personage, fit to be employed against the pirates,

especially as he was perfectly acquainted with the places they resorted

to. The plan met with the fullest approbation of his lordship, who

reported the affair to King William, and recommended it to the notice of

the Board of Admiralty. Yet such were then the hurry and confusion of

public affairs in that troubled reign, that, though the design was

approved of, no steps were taken towards carrying it into execution.

Accordingly, Colonel Levingston made application to Lord Bellamont, that

as the affair would not well admit of delay, it was worthy of being

undertaken by some private persons of rank and distinction, and carried

into execution at their own expense, notwithstanding State encouragement

was denied it. His lordship acceded to the project, and, after some

difficulties, the Lord Chancellor Somers, the Duke of Shrewsbury, the

Earl of Romney, the Earl of Orford, and some other high persons, with

Colonel Levingston and our gallant Captain Kidd himself, agreed to raise

£6,000 for the expense of the voyage; and the colonel and the captain

were to have a fifth of the profits of the whole undertaking. Matters

being so far adjusted, a royal commission in the usual form was granted

to Captain Kidd, to take and seize pirates, and bring them to justice;

but though a second commission was added, there was, beyond the general

direction not to molest the king’s friends, and to bring ships taken to

legal trial, no special clause or proviso to restrain his conduct, or

regulate the mode of his proceeding. Kidd was known to Lord Bellamont,

and another gentleman presented him to Lord Romney. With regard to the

rest of the parties concerned, he was wholly unacquainted with them; and

so ill was this affair conducted, that he had no private instructions

how to act, but received his sailing orders from Lord Bellamont, the

purport of which was, that he should act agreeably to the letter of his

commission. Behold Kidd now a great man bearing the commission of the

bellicose monarch of the Revolution, and with powers unbounded to crush

all piracy and robbery on the sea.

A ship was purchased and equipped in the port of London; it received the

name, which this affair made so known, of the _Adventure Galley_. In

this vessel Captain Kidd crossed the Atlantic, and then towards the

close of the year 1695 sailed from New York and made prize of a French

ship. Thence he went on to Madeira islands, to Bonavista, and St. Jago,

and to Madagascar, acting fairly enough at first; but the sight of so

many rich and defenceless merchant ships he met on his way was too

strong for him. He could not resist the temptation, and lo! he, the

authorised destroyer of pirates, turns pirate himself, and becomes a sea

robber with a royal commission. He prowled at the entrance of the Red

Sea, and, sailing to Calicut, he began a fearful career of crime by

taking a ship of one hundred and fifty tons burthen, which he carried to

Madagascar, and disposed of there. Having sold this prize he again put

to sea, and at the expiration of five weeks fell upon and seized the

_Quedagh Merchant_, a ship of four hundred tons burthen, the master of

which was an Englishman, named Wright, who had two Dutch mates on board,

and a French gunner; but the crew consisted of Moors, natives of Africa,

and were about ninety in number. Kidd carried this ship to St. Mary’s,

near Madagascar, where he burnt the _Adventure Galley_, belonging to his

owners, and divided the lading of the _Quedagh Merchant_ with his crew,

taking forty shares to himself. He and his crew then went on board the

_Quedagh Merchant_, and sailed for the West Indies. It is uncertain

whether the inhabitants of the West India islands knew that Kidd was a

pirate; but he was refused refreshments at Anguilla and St. Thomas’s,

and therefore sailed to Mona, between Porto Rico and Hispaniola, where,

through the management of an Englishman, named Bolton, he obtained a

supply of provisions from Curaçoa. He now bought a sloop of Bolton, in

which he stowed great part of his ill-gotten effects, and left the

_Quedagh Merchant_, with eighteen of the ship’s company, in Bolton’s

care. While at St. Mary’s, ninety men of Kidd’s crew left him, and went

on board the _Mocca Merchant_, an East India ship, which had just then

commenced pirate. Kidd sailed in the sloop, and touched at several

places, where he disposed of a great part of his cargo, and then steered

for Boston, in New England. In the interim Bolton sold the _Quedagh

Merchant_ to the Spaniards, and immediately sailed as a passenger in a

ship for Boston, where he arrived a considerable time before Kidd, and

gave to Lord Bellamont information of what had happened. Kidd,

therefore, on his arrival, was seized by order of his lordship, when all

he had to urge in his defence was, that he thought the _Quedagh

Merchant_ a lawful prize, as she was manned with Moors, though there was

no kind of proof that this vessel had committed any act of piracy. Upon

this, the Earl of Bellamont immediately despatched an account to England

of the circumstances that had arisen, and requested that a ship might be

sent for Kidd, who had committed several other notorious acts of piracy.

News in those days travelled slowly, but one may conceive the excitement

that arose in England when it became at length known that an adventure

in which the Lord Chancellor and other high men of the State were

shareholders, was being piratically carried on to the terror and ruin of

the peaceful merchant ships afloat, and the unoffending inhabitants of

coasts not at war with us. A perfect storm burst out against the

Government. “Was this to be the system of the king who had dethroned the

Stuarts in the name of justice to persons and protection to property?”

cried the Jacobites. “A strange revolution and for little purpose,”

thought the less ardent of the Whigs. Even the ultra followers of King

William stood aghast.

The Government met the uproar boldly, honestly, and determinedly.

Somers, who held the Great Seal so worthily, did not flinch for an

instant. It was resolved to treat Kidd as a common culprit, and to

subject him to a full and open trial, in which every particular would

come out. Meanwhile an inquiry was called for in the House of Commons,

and it was there moved, that “The letters patent, granted to Richard

Earl of Bellamont and others, of all goods taken from pirates, were

dishonourable to the king, against the law of nations, contrary to the

laws and statutes of this realm, an invasion of property, and

destructive to commerce.” After a long and stormy debate, the motion was

negatived by a majority of 13—the ayes being 185, the noes 198. In the

Lords, Lord Somers and the Earl of Orford refuted victoriously the

charge insinuated against them of giving countenance to pirates, and

showed that the Earl of Bellamont was as innocent as they were. A motion

was, however, carried in the Commons to address his majesty, that “Kidd

might not be tried till the next session of Parliament, and that the

Earl of Bellamont might be directed to send home all examinations and

other papers relative to the affair.” The king complied with the

request. As soon as Kidd arrived in England, he was sent for, and

examined at the bar of the House of Commons, with a view to fix part of

his guilt on the parties who had been concerned in sending him on the

expedition, but nothing arose to criminate any of those distinguished

persons. Kidd, who was actually in a state of semi-intoxication when he

came to the bar of the House, made there a very contemptible appearance,

on which a member, who had been one of the most earnest to have him

examined, violently exclaimed, “This fellow, I thought he had been only

a knave, but unfortunately he happens to be also a fool.”

The trials of Kidd and his companions came on at the Old Bailey in May,

1701. The proceedings were very lengthy, and consisted of several

distinct trials; the first was for murder against Kidd alone, the other

trials were for various acts of piracy committed by him and different

members of his crew. Kidd was found guilty in every case, and his men

mostly so in the trials in which they were included.

The charge of murder against Kidd was evidently brought to secure his

being capitally convicted, in case there might be acquittals on the

charges of piracy; however, the act itself was a very brutal one. The

victim of Kidd’s violence was William Moor, a gunner of his crew, whom

Kidd, after he had become a pirate, happened, when on board, in a moment

of anger to call “a dog.” “If I am a dog,” retorted Moor, “you have made

me so; yes, you have made me so; you have brought me to ruin and many

more.” Kidd, stung to madness by the reproach, seized a wooden bucket

hooped with iron, and struck Moor on the head with it. The blow was

fatal: the unfortunate creature was carried to the gun-room and died the

next day. On this charge, the jury found Kidd guilty of murder; and then

came on the chief trial, which interested all England, viz., that of

Kidd and nine of his crew, Nicholas Churchill, James Howe, Robert

Lamley, William Jenkins, Gabriel Loff, Hugh Parrot, Richard Barlicorn,

Alexander Owens, and Darby Mullins, for piracy and robbery on a ship

called the _Quedagh Merchant_.

There was a great judicial array on the Bench: the Judges were Sir

Edward Ward, Lord Chief Baron; Sir John Turton and Sir Henry Gould,

Judges of the Court of King’s Bench; Sir John Powell, a Judge of the

Court of Common Pleas: and Dr. Oxenden, Judge of the Admiralty. The

Solicitor-General, Sir John Hawles; Dr. Newton, Advocate for the

Admiralty; Mr. Cowper, M.P. (afterwards the great Lord Chancellor

Cowper); Mr. Coniers, and Mr. Knapp conducted the prosecution. Dr.

Oldish, Mr. Nixon, and Mr. Moxon were momentarily allowed to intervene

for Kidd and others; but this was only by indulgence, the barbarous

custom being then in full force of not allowing counsel for prisoners

charged with felony to act at all, unless on some admitted question of

law that might arise. However, for those times, the trial was pretty

fairly conducted, and bears a strong contrast to the judicial

investigations before the Revolution, and indeed to some that had

occurred immediately after.

As the speech of Dr. Newton, the counsel for the Admiralty, gave a full

summary of the whole of the affair, I extract from the State Trials his

address to the jury. He spoke as follows:—

“My lord and gentlemen,—The prisoner at the bar, Captain William Kidd,

late commander of the _Adventure Galley_, and nine other mariners in the

same vessel, stand indicted for feloniously and piratically assaulting

and taking a ship, called the _Quedagh Merchant_, on the high sea, near

Cutsheen, in the East Indies, about the 30th of January, in the ninth

year of his majesty’s reign: the ship was considerable for its force and

bulk, being above four hundred tons, and more considerable for its

lading, having on board to the value of many thousand pounds.

“This Captain Kidd, who thus acted the pirate himself, went from England

in April, 1696, with a commission, dated the 26th of January preceding,

to take and seize pirates in the Indian seas, which were very much and

very dangerously infested by them, to the great hazard and loss and ruin

of the merchant.

“The ship carried thirty guns, and there were on board about eighty men;

but the Captain being come from New York, in July, 1696, pretending, as

indeed it was designed he should, and he had undertaken to make that

design good, that he was going to Madagascar (which was the known and

common receptacle of the pirates in those seas) to take pirates, and

free the seas from those disturbers of the commerce of mankind; so many

came into him, being invited by articles publicly set up by him in that

place, that his number quickly increased to one hundred and fifty-five

men; a force sufficient, if he had meant well, to have made him useful

to the public; and to prove as mischievous, if his designs were

otherwise: and what those were will quickly appear.

“After calling in at several places for provisions, and, among others,

at Madagascar, in July, 1697, he sailed to Bob’s Key, a small island at

the entrance of the Red Sea, and a convenient station for the observing

what vessels went from thence to the Indies; and now, instead of taking

pirates, he becomes one himself, and the greatest and worst of all. He

stayed three weeks, in expectation of the Mocca fleet, to make his

benefit and his fortune out of it; for, whatever he had before

pretended, that was his real design, and now so possessed his mind, that

he could not refrain from declaring, and that often to his men, that now

he should make his voyage, and ballast his ship with gold and silver.

After long expectation the fleet, on the 14th of August, to the number

of fourteen, came by; he fell in with the middle of them, fired several

guns at them; but finding they had an English and a Dutch convoy, that

design happily failed of the wished-for success.

“This disappointment, however, did not discourage him, but that he

proceeded on for the coast of Malabar, where he knew the trade was

considerable, and hoped his advantage would be proportionable in the

disturbing it; and there accordingly, for several months, he committed

many great piracies and robberies, taking the ships and goods of the

Indians and others at sea, Moors and Christians, and torturing cruelly

their persons, to discover if anything had escaped his hands; burning

their houses, and killing after a barbarous manner the natives on the

shores, equally cruel, dreaded and hated both on the land and at sea.

“These criminal attempts and actions had rendered his name (to the

disgrace and the prejudice of the English nation) too well known, and

deservedly detested, in those remote parts of the world; and he was now

looked upon as an arch-pirate, and the common enemy of mankind; and

accordingly two Portuguese men-of-war went out in pursuit of him, and

one met with him and fought him for several hours, but Kidd’s fortune

reserved him for another manner of trial.

“Amongst the great number of vessels he took on that coast was the ship

he stands indicted for, the _Quedagh Merchant_, being then on a trading

voyage from Bengal to Surat, the commander English (Captain Wright), the

owners Armenian merchants, and others. He had taken Moors before, but

Moors and Christians are all alike to pirates; they distinguish not

nations nor religions. Those on board the vessels offered 30,000 rupees

for her ransom, but the ship was too considerable to be parted with even

for so great a sum, so Kidd sold goods out of her on the neighbouring

coast to the value of £10,000 or £12,000, out of which he took whatever

he could pretend to for ammunition and provisions, with forty shares for

himself, and the remainder was disposed of amongst the crew, and

particularly those who are here indicted with him, who accompanied him,

who assisted him throughout all his piracies, and who now, too, share

the spoils and the guilt with him.

“With this ship and another, and the remainder of the goods not sold on

the coast, he sailed once more for Madagascar, where he arrived in the

beginning of May, 1698, and there again what was left on board was

divided according to the same proportions, and amongst the same persons

as before, each mariner having about three bales to his share.

“It is not to be omitted that, at his return to Madagascar, there came

on board to him some persons from the ship the _Resolution_, formerly

the _Mocca_ frigate (for the piratically seizing of which vessel there

have been formerly trials and convictions in this place), of which

Captain Culliford, a notorious pirate, now in custody, and against whom

two bills have been found for piracy by the grand jury, was the

commander. They at first seem to have been afraid of Kidd, but without

any grounds, as his former actions had demonstrated, and the sequel

showed. They, who were hardened pirates, and long inured to villanies,

could scarce think that any man could so betray the trust and confidence

the public had placed in him, and said they thought he came to take and

hang them: but Captain Kidd assured them that he had no such design, and

that rather his soul should be lost than do them any harm; bid them not

be afraid, and swore he would be true to them; and here, indeed, he did

not break his word. This was his way of being true to his trust, and

making good the end of his commission, in acting with the greatest

treachery and the greatest falseness that ever man did; and to make all

that has been represented of him true, Captain Kidd and Captain

Culliford went on board, treated and presented each other; and, instead

of taking Culliford, as it was his duty to have done, and his force was

sufficient to have performed it, he gave him money and ammunition, two

great guns and shot, and other necessaries to fit him out to sea, that

he might be better able to take and seize other innocent persons.

“His own ship he now left, and went on board the _Quedagh Merchant_;

several of his men then went from him, but not as prisoners. They were

all along well-wishers and assistants to him, fought for him, divided

the plunder with him, and are now come to be tried with him.

“This, gentlemen, is the crime he is indicted for—piracy; the growing

trouble, disturbance, and mischief of the trading world and the

peaceable part of mankind, the scandal and reproach of the European

nations and the Christian name (I wish I could not say that the Kidds

and the Averys had not made it more particularly so among the English),

amongst Mahometans and Pagans in the extremest parts of the earth, which

turns not only to the disadvantage of the immediate sufferers, but of

all such as traffic in those countries, whether companies or single

merchants, who are to suffer for the misfortunes of others, with whom,

it may be, they have no dealings, and for the villanies of such, whom

they and all mankind equally and justly detest and abhor.

“This is the person that stands indicted at that bar, than whom no one

in this age has done more mischief, in this worst kind of mischief; or

has occasioned greater confusion and disorder, attended with all the

circumstances of cruelty and falsehood, and a complication of all manner

of ill.

“If, therefore, these facts should be proved upon him, you will then,

gentlemen, in finding him guilty, do justice to the injured world, the

English nation (our common country), whose interest and welfare so much

depend on the increase and security of trade; and, lastly, to

yourselves, whom the law has made judges of the fact.”

The evidence bore out this statement, and indeed the prisoners had no

defence on the facts (beyond Kidd’s urging falsely that the _Quedagh

Merchant_ sailed under a French pass), but three of them—Howe,

Churchill, and Mullins—put forward a plea that they were entitled to the

king’s pardon, as they had surrendered themselves on a proclamation of

the king’s gracious pardon to such pirates, except Kidd, as gave

themselves up. They had certainly so surrendered themselves, but the

crown lawyers objected that they had not surrendered to the actual

commissioners appointed to carry out the proclamation. Mr. Moxon for the

prisoner Churchill thus put the point:—

“My lord, about the year 1698, there was a special commission given to

four persons, and they were to proceed in their voyage to the Indies,

and they carried a great number of proclamations, that all the pirates

in such and such places should surrender themselves. Now they came to

St. Helena with them, and Captain Warren was sent to St. Mary’s, and he

was to deliver some of these proclamations there, and the commissioner

had then the ambassador to the Great Mogul on board, and this Captain

Warren these proclamations. Warren comes and delivers the proclamations

out, and, among the rest the prisoner at the bar having notice of this,

he goes to the governor, and confesses he had been a pirate, and desired

them to take notice that he surrendered himself; and we have the

governor of St. Mary’s here to give an account of this matter.”

_Lord Chief Baron Ward._—“The proclamation says, They must surrender

themselves to such and such persons by name: see if it be so. [Then the

proclamation was read again.] Here are several qualifications mentioned;

you must bring yourselves under them, if you would have the benefit of

it.”

_Dr. Newton._—“Let them show that they surrendered themselves to the

persons they were to surrender to.”

_Mr. Moxon._—“My lord, we will prove we gave notice within the time, by

this paper.”

_Solicitor-General_ (Sir John Hawles).—“There is no time mentioned in

it. [The affidavit was read.] Charles Hally, gent., maketh oath, that in

the year 1698, there being notice of his majesty’s gracious pardon to

such pirates as should surrender themselves, James Howe, Nicholas

Churchill, and Darby Mullins, in May, 1699, did surrender themselves to

Jeremiah Bass, governor of St. Mary’s, and he did admit them to bail.”

_Lord Chief Baron Ward._—“There were four commissioners named in the

proclamation: there is no governor mentioned that is to receive them,

only those four commissioners.”

_Mr. Moxon._—“But, my lord, consider the nature of this proclamation,

and what was the design of it, which was to invite pirates to come in.”

_Mr. Coniers._—“We must keep you to the proclamation: here is not enough

to put off the trial.”

_Lord Chief Baron Ward._—“If you had brought yourselves within the case

of the proclamation, we should be very glad: you that offer it must

consider it is a special proclamation, with divers limitations; and if

you would have the benefit of it, you must bring yourselves 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 name mentioned in this

proclamation.”

This was, after all, but a legal quibble on the part of the crown, and

the king at least should have interfered (which he certainly did not for

Mullins) to save from death prisoners who had thus surrendered.

On Kidd’s urging that he acted under a royal commission, Mr. Justice

Powell properly observed to the jury, “I understand, that he had a

commission; therefore if any one has a commission, and he acts according

to it, he is not a pirate; but if he takes a commission for a colour,

that he may be a pirate, it will be bad indeed: and therefore, if the

crown can prove that he was a pirate all along, this will be a great

evidence against him.”

Lord Chief Baron Ward summed up the case to the jury, and his address to

them is so complete a _résumé_ of the facts proved by the witnesses, and

so lucid a statement of the law of piracy and felony touching the case,

that I cannot do better than give his lordship’s entire speech. It was

as follows:—

_Lord Chief Baron Ward._—“Gentlemen of the jury,—The prisoners at the

bar, William Kidd, Nicholas Churchill, James Howe, Robert Lamley,

William Jenkins, Gabriel Loff, Hugh Parrot, Richard Barlicorn, Abel

Owens, and Darby Mullins, in number ten, stand all here indicted for the

crime of piracy, charged to be committed by them. And the instance of

the crime is for feloniously and piratically seizing and taking the ship

called the _Quedagh Merchant_, with the apparel and tackling thereof, to

the value of £400, and divers goods mentioned in the indictment to the

value of £4,500, the goods of several persons unknown, from the mariners

of the said ship, and this at high sea, within the jurisdiction of the

Court of Admiralty, about ten leagues from Cutsheen in the East Indies,

the 30th of January, 1697, and in the eighth year of her Majesty’s

reign. Now, whether all, and any, and which of these prisoners are

guilty of this crime of piracy laid in this indictment, or not guilty,

it is your part to determine according to the evidence given on both

sides. The crime charged on them is piracy, that is, seizing and taking

this ship and goods in it, piratically and feloniously: the time and

place is also laid in the indictment. To make good this accusation, the

king’s counsel have produced their evidence, and two witnesses have been

examined in this case; each of them were in the ship which took the

_Quedagh Merchant_, and very well acquainted with all the proceedings;

that is, Robert Brandinham and Joseph Palmer. The first has given you an

historical account of the whole proceedings of Captain Kidd, from his

first going out of England in the _Adventure Galley_, to the time of

this fact charged on them. They tell you, that about May, 1696, the king

entrusted this Captain Kidd with two commissions, and they were both

read to you. By one of them under the Admiralty seal, he was authorised

to set out as a privateer the _Adventure Galley_, and therewith to take

and seize the ships and goods belonging to the French king, or his

subjects, and such other as were liable to confiscation. And by the

other commission, under the broad seal of England, authority was given

for the taking of some pirates by name, and all other pirates in the

several places therein mentioned; but in no sort to offend or molest any

of the king’s friends or allies, their ships or subjects, by colour

thereof. And by both commissions command was given to bring all such

ships and goods, as should be taken, to legal trials and condemnations.

They tell us that this ship set out from Plymouth about May, 1696, and

that in their passage they did take a French ship, and they did condemn

that ship. Now, gentlemen, you must bear this in your minds, that to

make it piracy, it must be the taking piratically and feloniously upon

the high sea, within the jurisdiction of the Admiralty of England, the

goods of a friend—that is, such as are in amity with the king. Now, you

see what way they went to work, and what measures they took. Captain

Kidd goes out, and goes to New York; and when he was there, he has a

project in his head, of setting up articles between himself and the

people that were willing to be concerned with him: for now, whether it

seems more probable from what followed, that Captain Kidd designed to

manage himself according to the measures given him, and the powers of

his commissions, or any other way, you must consider: for it is told

you, that between one hundred and fifty and one hundred and sixty men

came in under these articles, whereof the other prisoners were part, and

concerned in them. And as to those articles, the import of them was,

that whatever should be taken by these people in their expeditions

should be divided into one hundred and sixty parts, whereof Captain Kidd

was to have forty shares for his part, and the rest were to have

according to the merits of each party, some whole shares, and some half

shares.

“Now, after these articles, you perceive what progress they made, and

what course they took; they went from one place to another, and used a

great deal of severity wherever they came. A design they had to go into

the Red Sea, and they had expectations of the Mocca fleet that lay at

Mocca, and they sent their spies three times to get intelligence: the

two first times they could make no discovery; but the third time they

made an effectual discovery that the fleet was ready to sail; and in the

meantime Captain Kidd lay there in expectation of this fleet; and as the

first witness tells you, Captain Kidd said, he intended to make a voyage

out of this fleet. Well, he had a discovery of this fleet, and they came

accordingly; and they tell you, that he and his men did attack one of

the ships; but these ships being guarded by two men-of-war, he could

make nothing of them; however, he showed what his intention and design

was. Could he have proved that what he did was in pursuance of his

commissions, it had been something; but what had he to do to make any

attack on these ships, the owners and freighters whereof were in amity

with the king? This does not appear to be an action suitable to his

commissions. After he had done this, he came to land, and there, and

afterwards at sea, pursued strange methods, as you have heard. The

seeming justification he depends on is his commissions. Now it must be

observed how he acted with relation to them, and what irregularities he

went by. He came to a place in the Indies, and sent his cooper ashore,

and that cooper was killed by the natives; and he uses barbarity, and

ties an Indian to a tree, and shoots him to death. Now he went from

place to place, and committed hostilities upon several ships, dealing

very severely with the people.

“But this being something foreign to the indictment, and not the facts

for which the prisoners at the bar are indicted, we are confined to the

_Quedagh Merchant_; but what he did before shows his mind and intention

not to act by his commissions, which warrant no such things. Gentlemen,

you have an account, that he met with this ship, the _Quedagh Merchant_,

at sea, and took her; that this ship belonged to people in amity with

the king of England; that he seized this ship, and divers goods were

taken out of her and sold, and the money divided pursuant to the heads

contained in those articles set up in New York. The witnesses that speak

to that come home to every one of the prisoners; they tell you that the

dividend was made; that Captain Kidd had forty shares of the money, and

the rest of the prisoners had their proportions according to the

articles, some a whole share, and some a half share of that money. After

they had seized the ship, you hear of a certain sort of project, that a

Frenchman should come and pretend himself the master, and procure, or

pretend to procure a French pass, under a colour that these people’s

ship and goods, who were Moors, should be Frenchmen’s ship and goods, or

sailed under a French pass, and so justify what he did under the colour

of his commission from the king. Now, no man knows the mind and

intentions of another, but as it may be discovered by his actions. If he

would have this to be understood to be his intention, or that it was in

reality, that he took this as a French ship, or under a French pass,

then he ought to have had the ship and goods inventoried, and condemned

according to law, that he might have had what portion belonged to him,

and that the king might have had what belonged to him, as his

commissions directed; but here was nothing of that done, but the money

and goods which were taken were shared, and you have an account likewise

how some of the goods were sold, and the money disposed of, and how the

remaining goods were disposed of; and one witness speaks positively of

the distribution of the goods that remained unsold, that they were

divided according to the same proportions as the articles mentioned, and

every one of the prisoners had his share: there belonged forty shares to

Captain Kidd, and shares and half-shares to the rest.

“Now, this is the great case that is before you, on which the indictment

turns: the ship and goods, as you have heard, are said by the witness to

be the goods of Armenians, and other people that were 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 that

were so, as Captain Kidd says, it was a lawful prize, and liable to

confiscation; but if they were the 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 taking of them. 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 was a French pass

shown or seen. He appeals indeed 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, said the witness, I said that Captain Kidd said he had a

French pass, but I never saw it. Now, after all, the taking the _Quedagh

Merchant_ is brought down to Mr. Kidd, and the prisoners with others,

and the distribution of the money procured by the sale of the goods

among Mr. Kidd and his crew, whereof every one of the prisoners were

present at the same time, and had proportions.

“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 plain piracy. And if you believe the

witnesses, here is the taking of the goods and ships of persons in

amity, and converting them to their own use; such a taking at land as

this would be felony, and being at sea it will be piracy; for this is a

taking the ship from the right owners, and turning it to their own use.

So that you have evidence as to the seizing of the ship, and dividing

the money rising from the goods sold, and sharing the remainder

according to the articles.

“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

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 for him 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 were ever any. It

is proved that the people that were owners of the goods made him very

large offers to redeem the ship (twenty thousand rupees, as I remember);

but he would not accept their proposals, but said, ‘That is a small sum;

the cargo is worth a great deal more,’ or to that effect: and further

said, ‘he must answer these people, that his men will not part with it:’

and a Frenchman was to be set up for a mock business, as you have heard;

and if the witness say true, they were said by the captain of the ship

to be, and were reputed to be, the ship and goods of friends, and not of

enemies; and if they were so, and had no French pass, then is he, and

those that were concerned with him, guilty of piratically taking this

ship, and of piratically seizing the goods in the ship; and neither of

his commissions will justify such an action as this. If he had acted

pursuant to his commission, he ought to have condemned the ship and

goods, if they were a French interest, or sailed under a French pass:

but by his not condemning them, he seems to show his aim, mind, and

intention, that he did not act in that case by virtue of his commission,

but quite contrary to it; for he takes the ship, and shares the money

and goods, and is taken in that very ship by my Lord Bellamont, and he

had continued in that ship till that time;[8] so there is no colour or

pretence appears that he intended to bring this ship to England to be

condemned, or to have condemned it in any of the English plantations,

having disposed of the whole cargo as aforesaid. Here I must leave it to

you to consider whether, according to the evidence that appears, there

is any ground for him to say he has acted by his commission in taking

the _Quedagh Merchant_ and goods in her, or whether he has not acted

contrary thereto.

“Now, for himself, 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, about ten or twelve years he did good service there. Why, so

he might and might have, 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 whatever he might have been so many years ago, that

is not a matter to be insisted on now, but what he hath been since, and

how he hath acted in this matter charged against him: so that,

gentlemen, as to Mr. Kidd, I must leave to you, whether he is guilty of

piracy or no. If you believe him guilty upon the evidence, you will find

him so; if not, you will acquit him.

“Now, for the other prisoners, it is proved they were all concerned in

taking and sharing the ship and goods in the indictment, yet their

circumstances differ pretty much among themselves. There are three of

them, that it has been made out to you, and owned by the king’s

witnesses, that they were servants, Robert Lamley, William Jenkins,

Richard Barlicorn. All these are made out to be servants, and you have

had the indentures of two of them produced, and the king’s witnesses

prove them so, and they were admitted to be servants. Now, gentlemen,

there must go an intention of the mind, and a freedom of the will, to

the committing of a felony or piracy. A pirate is not to be understood

to be under constraint, but a free agent, for in this case the bare act

will not make him guilty, unless the will make it so. Now a servant, it

is true, if he go voluntarily, and have his proposition, he must be

accounted a pirate, for then he acts upon his own account, and not by

compulsion. And these persons, according to the evidence, received their

part; but whether they accounted to their masters for their shares

afterwards, yea or no, as they pretend, but make no proof of it, I must

leave that to you; and therefore there is a consideration to be had of

them: for if these men did go under the compulsion of their masters, to

whom they were servants, and not voluntarily, and upon their own

accounts, it may difference their case from others, who went and acted

willingly in this matter, and upon their own accounts. So that as to

those that were servants under the command of their masters, that were

present with them, I must leave it to you, whether you will distinguish

between them and the others, that were not servants, but free agents. It

is true, that a servant is not bound to obey his master but in lawful

things, which they say they thought this was, and that they knew not to

the contrary, but that their masters acted according to the King’s

commission; and therefore their case must be left to your consideration,

whether you think them upon the whole matter guilty or no. If you

believe them guilty, you will find them so; otherwise you will acquit

them.

“For the other persons, some of them pretend they came in on his

majesty’s proclamation, and for that you must consider the evidence, and

take it altogether, and consider whether you are satisfied by what they

have said or proved, that they have brought themselves within the

benefit of the king’s favour by that proclamation. You have heard it

read, and observed the qualifications and directions by it, and the

terms upon which the pardon was promised, which are not made out to you,

to be complied with by them; they may apply another way for the king’s

mercy; this court must proceed according to the rules of law and

justice: but then all of them hold on this; we were, say they, under the

captain, and acted under him as their commander: and, gentlemen, so far

as they acted under his lawful commands, and by virtue and in pursuance

of his commissions, it must be admitted they were justifiable, and ought

to be justified: but how far forth that hath been, the actions of their

captain and their own will best make it appear. It is not contested, but

that these men knew, and were sensible of what was done and acted, and

did take part in it, and had the benefit of what was taken shared

amongst them; and if the taking of this ship and goods was unlawful,

then these men can claim no advantage by these commissions, because they

had no authority by them to do what they did, and acted quite contrary

to them. What had they to do to enter into such articles, and to act as

they did? You must consider the evidence given here, according to the

rules of the law; and if you are satisfied that they have knowingly and

willfully been concerned or partaken with Captain Kidd in taking this

ship, and dividing the goods, and that piratically and feloniously, then

they will be guilty within this indictment. It is worthy of

consideration what appears upon the evidence, that they met with one

reputed to be a notorious pirate, called Culliford; he was esteemed an

arch-pirate, and known to be so; yet this Captain Kidd that was

commissioned to take pirates, instead of taking him, grows to such an

intimacy with him, that he said he would have his soul lost before he

would hurt him, or to that effect, and so they made presents one to

another; and Captain Kidd left three of his men with him. Whilst men

pursue their commissions they must be justified; but when they do things

not authorised, or never acted by them, it is as if there had been no

commission at all. I have distinguished the evidence as well as my

memory serves me, and must leave it to you to determine upon the whole

matter, who are guilty, and who are not. And such as you are satisfied

to be guilty, you will find so, and such as you are not satisfied to be

guilty you will acquit.”

The jury, after half an hour’s consultation, brought in all the

prisoners guilty, except Lamley, Jenkins, and Barlicorn, whom, as being

servants, they acquitted.

A second trial of the same ten persons for a further act of piracy had

the same result. Further indictments were gone into, in which men of the

name of Culliford (Captain Culliford, the pirate already mentioned),

Hickman, and Eldridge were included. Culliford and Hickman pleaded

guilty, and Eldridge was found guilty. The result of the whole

proceedings was, that a law point being raised in favour of Culliford,

judgment against him was respited, and Dr. Oxenden pronounced sentence

of death upon Kidd, Churchill, Howe, Loff, Parrot, Owens, Mullins,

Hickman, and Eldridge.

Kidd was executed with one of his companions, Darby Mullins, an

Irishman, at Execution Dock, on the 23rd of May, 1701. After Kidd had

been tied up to the gallows, the rope broke, and he fell to the ground;

but being immediately tied up again, the Ordinary, who had before

exhorted him, desired to speak with him once more; and on this second

application, entreated him to make the most useful care of the few

farther moments thus providentially allotted him for the final

preparation of his soul to meet its important change. These exhortations

seemed to have the wished-for effect; and he was left, professing his

charity to all the world, and his hopes of salvation through the merits

of his Redeemer. Some others of the men sentenced were also executed.

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