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.”

CHAPTER SIX

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.”