Part 3

“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.