CHAPTER V
KIDD’S FIRST TRIAL AT THE OLD BAILEY

If any of the great personages involved in Kidd’s case took the trouble to look into the voluminous papers relating to it, which had been sent over to England by Bellamont for presentation to Parliament, they must at once have realized that Kidd’s prosecution was attended with great difficulties. Notwithstanding the public prejudice which had been aroused against him, and the fact that he was not only a Scotchman, but also a Colonial, they could hardly have believed that an English jury could be asked with safety to convict him of piracy, on any of the grounds on which Bellamont had committed him to gaol at Boston, either because he had been described by the Lords Justices as a notorious pirate or because he was thought to look guilty, or because during his examination he had in Bellamont’s opinion seemed at one time unduly cheerful, and at another unduly grave, or even because some one else had been so impertinent as to ask prematurely for the return of a bond. Kidd’s own simple narrative, which it is impossible to doubt that some of them must have read with interest, if not with shame, supported as it was by the depositions of such of his crew as had remained faithful to him, contained no inherent improbabilities, but bore the impress of truth, and satisfactorily accounted for his detention at Madagascar. No flaw was apparent in either of the French passes, which he had taken with his prizes, and which were included amongst the papers sent over by Bellamont. It is difficult to believe that any one who read them failed to come to the same conclusion that Bellamont had expressed, that they would justify the seizure of the two vessels to which they related. The sole foundation for the suspicions that attached to Kidd, apart from his unfortunate and disreputable connection with Lord Chancellor Somers, and other unpopular members of the Ministry, was the vague allegation made some years before by the East India Company, that “they had received some information from their factories that he had committed several acts of piracy, particularly in seizing the Quedagh Merchant.” From the papers presented to Parliament it seemed now clear that his capture of that ship was justified; and that he was on his way home with her to New England with the object of getting her adjudicated a lawful prize, when his men had gone over to Culliford, and prevented him from carrying her to Boston. As one at least of the adventurers, Orford, the late First Lord of the Admiralty, should have known, she could not have been condemned as a lawful prize in the East Indies, owing to the neglect of the Admiralty to follow the advice of their own judge, to erect a Vice-Admiralty Court there, as had been done in the West Indies. The East India Company must have been pressed after Kidd’s arrest, to substantiate their vague charges against him. It is inconceivable, having regard to their interest in his conviction, that they left any stone unturned to procure evidence against him during the two years that he remained in confinement. But whatever their efforts may have been, they seem to have been unsuccessful. No person was found to come forward and allege that he had any knowledge of Kidd’s alleged piracies, except Cogi Babba, one of the owners of the Quedagh Merchant. And for the reason already explained, his evidence would be valueless, if the French passes were produced in Court.

But the Old Bailey practitioners of that day, who were no doubt consulted in due course, were adepts in their trade, and it is unlikely that they entertained any serious doubt from the first as to the lines on which Kidd’s prosecution in the interests of their clients should proceed, or as to its ultimate success. They knew that he was friendless and that it was nobody’s interest in England but his own that he should be acquitted. They knew that no London jury that tried him could fail to be influenced by their knowledge that he had been denounced by the Lords Justices and the East India Company as a notorious pirate, or dismiss from their minds the innumerable wild tales which had for years been disseminated to his disadvantage.[12] They knew also, none better, the practical difficulties which confronted every poor wretch brought to trial in those days on a capital charge by unscrupulous persons, who could afford to bribe or terrify miscreants into bearing false evidence against him. Incredible as it may seem to us with our modern notions of fair play and the belief which has been instilled into some of us of the wisdom of our ancient common law, much of which was as hopelessly absurd as many of the nostrums and theories of the medical men of those days, accused persons in criminal cases were forced to conduct their own defence and were not allowed the assistance of counsel, for the purpose of examining or cross-examining witnesses or commenting on any question of fact. Counsel on their behalf were only permitted to address the Court on questions of law; the legal fiction being that there was no necessity for a prisoner to employ counsel to elucidate the facts: that the judge could be trusted to see that this was properly done: and that the jury could be trusted to give the prisoner the benefit of any reasonable doubt. Needless to say this fiction led to the frequent conviction of innocent persons, and was a great encouragement to perjured witnesses. Many a villain, who but for it would have hesitated to be suborned, was induced by it to come forward for a small consideration and swear to anything that his employers desired. Still more ready were some poor creatures to do this, if they had brought their own necks within measurable distance of the noose, and their refusal to swear away the life of the accused would entail their own death by hanging. In the present case, no trustworthy evidence of reputable witnesses being forthcoming against Kidd, the legal advisers of the Crown very naturally had recourse to the well-known last resort open to them, and set themselves to find some one or more scoundrels, who would be willing to turn King’s evidence against him. Twelve seamen, most of whom had remained faithful to their commander, were now imprisoned with him, awaiting their trial for piracy. We shall never know how many of these were approached by the prosecution. What we do know is, that not one of them was induced to become King’s evidence. If Kidd had been guilty of the crimes of which he was accused, this in itself would have been a remarkable circumstance: for some of these poor men might have been expected to reconcile their consciences to the saving of their own lives by giving evidence against him. Not one of them did so. The only witnesses who could be found to testify against him were two rogues, who on their own admission had deserted him at Madagascar, and joined Culliford in open piracy against all nations. These men had imprudently returned to London, where unfortunately for themselves and Kidd, they were unearthed by emissaries of the prosecution before the trial came on. Their lives would justly have been forfeited if they had not agreed to give the evidence on which their old commander and comrades were convicted. What that evidence amounted to, will be seen in due course.

Another hardship to which the accused were subjected in those days was this, that besides being deprived of the assistance of counsel to cross-examine and comment on the evidence, they were left in ignorance sometimes to the last moment of the charges to be made against them. Kidd had every reason to believe, when brought into Court for trial, that the only charge he had to meet was piracy. He had been committed by Bellamont for piracy, and examined before the Admiralty and the House of Commons on that charge. The great men with whom he had been associated were supposed to have employed him because he was a pirate. No suggestion had been made that he had been guilty of any other crime. And yet when he came into Court, the first charge against him was not that he had been a pirate, but that he was guilty of an offence of a totally different character, a charge of which no notice whatever had apparently been given him, and to meet which he had had no opportunity of obtaining legal advice or preparing his defence.

Nor was this all. He was a man of substance in America when arrested. But in gaol in England he was without money or friends to prepare for his trial. Although the Court had ordered fifty pounds to be paid to him that he might have legal advice, the money was not delivered to him till the night before he was tried. What was, if possible, unfairer than any of these things was the deliberate withholding from him by the officials of the papers, which the House of Commons had ordered to be delivered to the Admiralty for the purposes of his trial, and in particular the two French passes, on which he relied to prove that he had been justified in taking the two prizes, in respect of which he was accused of piracy. No wonder that he pleaded hard for the production of these papers and the postponement of his trial, until he was allowed access to them. That there can be no question of the accuracy of the foregoing statements, appears clearly from the verbatim report of his trial, perused and approved by the judges and counsel who took part in it. Take first this extract from that report.

“Kidd. May it please your Lordships, I desire you to permit me to have counsel.

“Recorder (Sir Salathial Lovel). What would you have counsel for?

“Kidd. My lord. I have some matter of law, relating to the indictment, and I desire I may have counsel to plead to it.” (He had evidently been coached up on this point that morning or the night before by his legal advisers.)

“Dr. Oxenden. What matter of law can you have?

“Clerk of Arraigns. How does he know what he is charged with? I have not told him.

“Recorder. You must let the Court know what these matters of law are, before you can have counsel assigned you.

“Kidd. I know what I mean. I desire to put off my trial as long as I can, till I can get my evidence ready.

“Dr. Oxenden. It cannot be matter of law to put off your trial.

“Kidd. I beg your Lordships’ patience till I can procure my papers. I had a couple of French passes, which I must make use of in order to my justification.

“Recorder. That is not matter of law.

“Kidd. I sent for them, but I could not have them.

“Dr. Oxenden. Where were they then?

“Kidd. I brought them to my Lord Bellamont in New England.

“Recorder. Mr. Kidd, the Court sees no reason to put off your trial—you must plead.

“Kidd. If your Lordship will permit those papers to be read they will justify me.

“Recorder. Mr. Kidd, you must plead.

“Kidd. I cannot plead till I have those papers I have insisted upon.

“Mr. Lemmon (one of his counsel). He ought to have his papers delivered to him, because they are very material for his defence. He has endeavoured to have them, but could not get them.

“Mr. Coniers (one of the counsel for the prosecution). You are not to appear for any one until he pleads, and that the Court assigns you for his counsel.

“Recorder. They would only put off the trial.

“Mr. Coniers. He must plead to the indictment.

“Kidd. It is a hard case, when all these things shall be kept from me, and I shall be called on to plead.

“Clerk of Arraigns. Make silence.

“Kidd. My papers were all seized, and I cannot make my defence without them. I desire my trial to be put off until I can have them.

“Recorder. If he will not plead, there must be judgment.

“Kidd. My lord, I insist upon my French passes. Pray let me have them.

“Recorder. Mr. Kidd, I must tell you, if you will not plead, you must have judgment against you, as standing mute.

“Kidd. If your Lordships permit those passes to be read, they will justify me. If I plead, I shall be accessory to my own death, till I have persons to plead for me.

“Recorder. You are accessory to your own death, if you do not plead.

“Kidd. My lord, would you have me to plead, and not have my vindication by me?”

After a long altercation, Kidd was at length persuaded to hold up his hand in token that he pleaded not guilty. His first indictment was then read, of which the following are the most material parts: “The jurors of our sovereign Lord the King do upon their oath present that William Kidd, late of London, mariner, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, against the peace of our Sovereign Lord the King, violently, feloniously, voluntarily, and of malice aforethought, did make an assault in and upon one William Moore upon the high seas near the coast of Malabar in the East Indies, and within the jurisdiction of the Admiralty, with a certain wooden bucket, bound with iron hoops of the value of eight pence, giving the said William Moore with the bucket aforesaid upon the right part of the head one mortal bruise, of which mortal bruise the aforesaid William Moore did languish and die. How sayst thou, William Kidd, art thou guilty of this murder, whereof thou standest indicted, or not guilty?”

Poor Kidd may well have been taken aback, as he listened to this astounding indictment. So this was what that rascally Clerk of Arraigns had been hinting at, when he said he did not yet know what he was charged with. What on earth was the meaning of all this legal chicanery? He had been committed by Bellamont at Boston, because he was supposed to be a pirate, and sent over to London to be tried, because piracy was not a hanging offence in America. Murder was a hanging offence in America. If he was supposed to be a murderer, why had he not been tried for murder there? If he was to be tried for murder here, why had no notice of this charge been given him, unless it were to prevent him from preparing his defence, and getting his evidence ready? He had been examined at great length by Bellamont and his Council, and by the Admiralty and the House of Commons as to his supposed piracy; but in neither examination does it appear that the slightest suggestion had been made that he was a murderer. By whose trick was it that he was now to be tried for murder? But although the accusation seemed too ridiculous for any one to bring against him, except lawyers at their wits’ ends to find some excuse for hanging him, it had to be met, and he met it promptly by pleading, “Not guilty.” Then he again proffered his request to have counsel assigned him, naming Dr. Oldish and Mr. Lemmon, whom he had apparently consulted that morning or the night before, after getting his fifty pounds. His application was granted, but subject only to the condition that he had to plead any matter of law.

His counsel then addressed the Court, but only on the question of the postponement of his trial for piracy.

“Dr. Oldish. My lord, he moves that his trial for piracy may be put off for several reasons. It is very fit that it should be put off for some time, because he wants some papers very necessary for his defence. It is very true he is charged with piracy in several ships. But they had French passes, when the seizure was made. Now if there were French passes, it was a lawful seizure.

“Justice Powel. Have you those passes?

“Kidd. They were taken from me by my Lord Bellamont, and those passes would be my defence.

“Mr. Lemmon. My lord, I desire one word as to this circumstance. He was doing his King and country service instead of being a pirate. For in this very ship, there was a French pass, and it was shown to Mr. Davies and carried to my Lord Bellamont, and he made a seizure of it. And there was a letter[13] writ to testify it, which was produced before the Parliament” (apparently neither Kidd nor his counsel were aware that the passes themselves had been laid before Parliament and delivered over to the Admiralty for production at the trial), “and that letter has been transmitted from hand to hand, so that we cannot at present come by it. There are several other letters and papers that we cannot get, and therefore we desire the trial may be put off till we can procure them.

“Lord Chief Baron Ward. Where are they?

“Mr. Lemmon. We cannot yet tell whether they are in the Admiralty, or whether Mr. Jodrell hath them.

“Justice Powel. Let us see on what you go. What ship was it that had the French passes?

“Mr. Lemmon. The same we were in. The same he is indicted for.

“The Solicitor General. They have had a fortnight’s notice to prepare for the trial.

“Dr. Oldish. We petitioned for money, and the Court ordered fifty pounds, but the person that received it went away, and we had none till last night.

“Lord Chief Baron Ward. You ought to make it out that there is a reasonable cause to put off the trial, otherwise it cannot be allowed. What notice have they had?

“The Solicitor General. A fortnight’s notice—this day fortnight.

“Dr. Oldish. My lord, he should have had his money delivered to him.

“Kidd. I had no money nor friends to prepare for my trial till last night.

“Mr. Lemmon. My lord, we will be ready to-morrow morning.

“The Solicitor General. My lord, this we will do. In the meantime let him be tried for the murder, wherein there is no pretence of want of witnesses and passes.”

This preposterous proposal, which in effect was that Kidd should be tried at once on an indictment for murder sprung upon him a few moments before, arising out of an incident that had occurred some three and a half years previously, and be forced on the spur of the moment without conferring with any legal adviser, to conduct his own defence with the Solicitor General and other eminent counsel against him, seems to have excited no comment, but to have been assented to as a matter of course.

“The Clerk of Arraigns. Set aside all but Captain Kidd. William Kidd, you are now to be tried on the bill of murder. The jury is going to be sworn. If you have any cause of exception you may speak to them, as they come to the Book.

“Kidd. I shall challenge none. I know nothing to the contrary, but that they are all honest men.”

The greater part of the evidence in this trial has already been given verbatim in the narrative of the voyage of the Adventure Galley. It is clear from it that the crew for some time before the altercation, which led to Moore’s death, had been on the brink of mutiny; that Moore was the spokesman of the mutineers who were prevented by Kidd from seizing the Dutch ship, and that he and his associates had concocted a plan, by which they thought they might have seized her and extorted documentary evidence from the Dutchmen to excuse themselves and Kidd in the event of their being called in question for doing so. The balance of evidence is strongly in favor of Moore’s having upbraided Kidd in the altercation which ended in the fatal blow, for not having allowed the mutineers to have their own way. When Kidd called him “a lousie dog,” his answer practically was that if Kidd had taken his advice, he and his companions, so far from being “lousie dogs,” would have made their fortune and been gentlemen. Kidd seems to have knocked him down in a moment of very justifiable indignation, and without any intention of killing him. It is not even clear from the evidence that Moore died of the blow. The only two witnesses against Kidd at the trial were Palmer and Bradenham. On Kidd’s behalf three of the prisoners, Owens, Parrott, and Barlicorn, gave evidence, and Kidd offered to call the rest of them if necessary. When he asked Bradenham, the principal witness against him, with a view to test the value of his evidence, whether he had not been in the mutiny himself, he was prevented from insisting on an answer by the Lord Chief Baron Ward, who said, “You will not infer that if he was a mutineer it was lawful for you to kill Moore.” Not only was he prevented from eliciting this fact, which would have tended to discredit the chief witness against him, but he was prevented from calling evidence as to his own character. The Lord Chief Baron summed up very summarily against him, being evidently desirous of ending the case as quickly as possible.

“The prisoner is indicted,” said he, “for murder. Now to make the killing of a man to be murder, there must be malice prepense either express or implied. The law implies malice, when one man without any reasonable cause or provocation kills another. You have had this cause opened to you. What mutiny or discourse might be a fortnight or month before will not be any reason for so long continuance of passion.” (Had the Lord Chief Baron ever been in command himself of a mutinous crew, he might have thought otherwise.) “But what did arise at the time, the witnesses tell you.” (As a matter of fact, they were far from agreeing as to the conversation.) “The first witness” (King’s evidence) “tells you, the first words that were spoken were by Mr. Kidd, and upon his answer, Mr. Kidd calls him, ‘lousie dog.’ The reply was, ‘If I am so, you have made me so.’ Now, gentlemen, I leave it to you to consider, whether that could be a reasonable occasion or provocation to take a bucket and knock the deceased on the head and kill him. Now for the prisoner on such a saying, and without any other provocation to take a bucket and knock a man on the head and kill him must be deemed an unjustifiable act. For, as I have said, if one man kill another without provocation or reasonable cause, the law presumes and implies malice; and then such killing will be murder in the sense of the law, as being done of malice prepense. If there be a sudden falling out and fighting and one is killed in heat of blood, then the law calls it manslaughter, but in such a case as this, that happens on slight words, the prisoner calls the deceased a ‘lousie dog,’ and the deceased says, ‘If I be so, you have made me so,’ can this be a reasonable cause to kill him? and if you believe them not to be a reasonable cause of provocation I cannot see what distinction can be made, but that the prisoner is guilty of murder. Indeed, if there had been a mutiny at that time, then there might have been a reasonable cause for him to plead in his defence, and it ought to have been taken into consideration. But it appears that what mutiny there was, was a fortnight at least before.” (There can be little doubt that the crew were on the brink of mutiny for months before and months after this occurrence.) “Therefore, gentlemen, I must leave it to you, if you believe the King’s witness, and one of the prisoner’s own” (Query, and disregard the evidence of Kidd and the others), “that this blow was given by the prisoner in the manner aforesaid, and are satisfied that it was done without reasonable cause or provocation, then he will be guilty of murder, and if you do believe him guilty of murder on this evidence, you must find him so, if not you must acquit him.”

The jury then withdrew, and in about an hour returned and gave in their verdict “Guilty.”

Clerk of Arraigns. “Look to him, keeper.”