CHAPTER VI
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.”