“Kidd.My papers were all seized, and Icannot 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: “Thejurors 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 betried 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 severalships. But they had French passes, when the seizure was made. Now if there were French passes, it was a lawful seizure.
“JusticePowel. 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), “andthat 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.
“LordChief Baron Ward. Where are they?
“Mr.Lemmon. We cannot yet tell whether they are in the Admiralty, or whether Mr. Jodrell hath them.
“JusticePowel. 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.
“TheSolicitor 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.
“LordChief 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?
“TheSolicitor 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.
“TheSolicitor 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 thespur 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.
“TheClerk 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 theAdventure 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 Kiddfrom 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’sbehalf 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 impliesmalice, 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 aman 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, wasa 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 VITHE SUBSEQUENT TRIALS FOR PIRACY
On the following day Kidd and his fellow prisoners were tried at the Old Bailey for the piratical seizure of theQuedagh Merchantand 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 thetrial, 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 conducthis 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 Impeachmentdrawn 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 companionsto 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 theAdventure 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 itwas 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.”
TheSolicitor 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 inopen 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 oneof 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 drilledto 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 theQuedagh Merchantwas 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 theQuedagh Merchantsaid: “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 CaptainKidd 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 notsee any French passes aboard theQuedagh 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 Elmssay 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, unlesshe 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 inAppendix 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, itwould 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 surrenderthemselves 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. Nowthere 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.”
JudgeTurton. “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 obeyedhis 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 wickedold 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.”
CHAPTER VIIKIDD’S END
Kidd’s experience of the legal profession and the procedure of our English courts, though short, had been painfully instructive. After his return to Newgate, he seems to have had no more to do with either of them. But he had yet to reckon with his political and religious advisers, who combined to beset him to the last.
Bellamont’s apologist says: “Dr. G——g knows who the person was, who was with Kidd more than once some few days before his execution and dealt so freely with him as to advise him to charge two lords by name with somewhat that was material, which he said was the only way he could save his life. And the more to provoke the poor wretchto follow his advice, swore to him that those lords and their friends, were restless in soliciting to have him hanged, and therefore it was reasonable for him to do their business.” “God,” he adds, “disappointed all these cursed designs. Perhaps the unhappy creature knew himself incapable to make a probable story, or to carry on one though made to his hands, and that deterred him from hearkening to these counsels of devils. I rather hope that as wicked as he had been, he was not arrived at such a pitch, as to attempt to take away other men’s lives and honour by deliberate perjuries.”
It never seems to have occurred to this gentleman, or indeed to any one else, during Kidd’s last days, that he was innocent of the crimes laid to his charge, and that he was not likely to go back on his word. Not only in his statements with respect to his employers, but also in his simple written narrative to Bellamont and in the oral evidence given at his trial of the various incidents in hisvoyage he had told a plain unvarnished tale, from which he had never deviated. So far as his dealings with his employers were concerned he had sworn in his examinations before the Admiralty and also in the House of Commons, that he had never seen Somers or Shrewsbury, or heard more of them, than that Bellamont had told him they were two of the owners of theAdventure Galley; that Bellamont had introduced him to Orford and that Colonel Hewson had carried him to Romney in his coach which was all that he knew of them. He had been recalled and pressed to make some further disclosure with regard to these great personages, and asked categorically if he knew anything in relation to Bellamont, Romney, Shrewsbury, Somers, or Orford, or any of the other owners, in relation to his expedition, or any other matter, touching any private directions, articles or instructions, given to him by word of mouth or otherwise. And after taking time “to recollect himself well,” hehad affirmed that “he had nothing more to say in relation to the owners than that he had before declared.” It may safely be assumed that his answer to Dr. G——g’s mysterious friend, whoever he may have been, was to the same effect.
It remained now for him to undergo that last trial of his patience, to which all condemned prisoners had in those days to submit, the well-meant attempts on the part of the Chaplain of the gaol to extort from them confessions of their guilt. If Kidd had yielded to this cruel pressure, he would have left this world with a lie upon his lips, as it is to be feared many poor creatures did before and after him. Witness the confessions of some of those convicted of witchcraft. It is no small confirmation of his innocence that he was able to emerge even from this trying ordeal without discredit to his veracity.
The Ordinary of Newgate at that time was the Rev. Paul Lorrain, well known inhis day as the author of innumerable “Last Dying Speeches and Confessions” of noted criminals, who seems to have combined with the more serious duties of his calling as confessor to the doomed the somewhat incongruous functions discharged in these latter days by enterprising press interviewers of celebrities in whose personal peculiarities and proclivities the reading public may be supposed to take an interest. He can rarely, if ever, have had more promising subjects for his professional treatment, or men of whose last days his account was likely to have a wider circulation, than Kidd and his fellow sufferers.
There are two extant records of the “Behaviour, Confessions and Last Dying Words of Kidd and the other Pirates that were Executed with Him.” Both were published by the same printer, E. Mallet at the Hat and Hawk in Bride Lane. One of these accounts is signed by Lorrain on the day of the execution, and concludes withthese words: “This is all the account, which (in this hurry) can be given of these persons by Paul Lorrain. Friday, May the 23rd 1701.” It is clear from internal evidence that the earlier part of this account had been carefully composed before the day of execution, and that it was only the concluding portion of it which was hurriedly written on that day. No inconsiderable part of the earlier paragraphs is devoted to the texts and heads of the discourses delivered by the Ordinary to the prisoners, on the two preceding Sundays when they had had the privilege of listening to him. These, admirable as they may be, it is unnecessary to reproduce in the present narrative. From the remainder of this account it appears that Lorrain on the day after their trial visited the prisoners, and “did pray with them and admonish them to self examination and repentance,” that during his whole attendance on them, which was “every day, both forenoon and afternoon” until the day of execution,he “pressed upon them the acts of faith and repentance, exhorting them to confess their crimes.” “I at last,” he says, “prevailed on them to uncover and own those crimes which they had before so industriously endeavoured to hide or excuse, particularly Captain Kidd, who vainly flattering himself with hopes of a reprieve, deferred his confession so long that there was hardly any time left for taking it in any exactness or order.” (It is clear from the latter part of his account that Kidd never confessed to any of the crimes of which he had been convicted.) “Darby Mullins, one of the condemned pirates was of all the rest the most ready and free to open himself to me: and therefore I shall begin with his confession.” Let us see what the free and open confession of this poor man amounted to and what were the heinous crimes, which he had so industriously endeavoured to hide or excuse.
“I.Darby Mullins, about 40 years old,born in Ireland hard by Mullingfelt, about 16 miles from Londonderry. He said he lived in his own country and with his parents and followed the plough, while he was young, but being kidnapped he was carried away into the West Indies, where he served a planter for the space of four years. Afterwards he turned a waterman, and followed several other employments in and about Jamaica. And when the earthquake happened there he was miraculously preserved, yet took no great notice of his deliverance, so as to be thankful (as he ought) to God for it, which is now matter of trouble and grief to him. After this earthquake he went to Kingston, a town in these parts, and there he built himself a house and sold liquors, etc. Then he came to New York, with his family in theCharity, Captain Sims commander, and continued there two years. At the end of which he took his passage on boardCaptain Sladeto the Madeiras, where he stayed but three weeks and then returnedto New York; and some time after having bury’d his wife there, he was not able any longer to keep house; but apply’d himself to carrying and fetching wood from place to place in a boat of his own, about 20 tons. Then he left off this employment and engaged himself with Captain Kidd and afterwards with Captain Culliford, not knowing but that it was very lawful (as he said he was told) to plunder the enemies of Christianity. But now he being shew’d that those were the greatest enemies to Christ and his religion, who did such unaccountable things, as he and his companions did, contrary to the laws of Christianity, which they profess, he said he heartily begged pardon of God and the world for it, and wished he had not been such an offender. He confessed he had been a great sinner in that he had not served God as he should have done, but far from that had of late very much given himself up to swearing, cursing and profaning the Sabbath Day, which had deservedly brought thiscalamity upon him. He seemed to be very penitent of the facts, for which he was justly condemned, and prayed to God to forgive both these and the other errors and miscarriages of his past life. He was a poor unlearned person, not very much acquainted with the principles of religion. Yet he was very willing to be directed and express’d great hopes that through the merits of Christ he should find mercy and salvation.”
“II.Captain William Kidd, condemned for murder and piracy. He was about 56 years of age. I found him very unwilling to confess the crime he was convicted of, or to declare anything, other than that he had been a great offender, and lived without any due consideration either of God’s mercys or judgments, or of his wonderful works which had so often been set before him. That he” (like Mullins) “never remembered to have returned Him thanks for the many great deliverances he had received from him, or call’dhimself to account for what he had done. But now he owns that God is a just God, and he is a vile and wretched sinner. He says he repents of all his sins and hopes to be saved through the merits of Christ. He further declares that he dies in charity with all the world.” So far, it is clear, he had made no confession either of murder or piracy.
“On the day being the day of execution, I went betimes to these condemned persons, and had them up to the Chappel both morning and afternoon, where having given them further admonitions to Faith and Repentance, they seemed to me very desirous and earnestly striving to die in God’s favour. Only I was afraid the hardness of Captain Kidd’s heart was still unmelted. I therefore apply’d myself with particular exhortations to him” (‘the innocentest person of them all,’ to quote his own words) “and laid the judgment of God against impenitent and hardened sinners, aswell as his tender mercies to those that were true and sincere penitents, very plainly before him. To all which he readily assented and said that he truly repented of all his sins, and forgave all the world: and I was in good hopes that he did so. But having left him to go a little before him to the place of execution, I found to my unspeakable grief, when he was brought thither, that he was inflamed with drink,” (Some kind fellow countryman had possibly given the poor old man a wee drappie of which he must have stood sorely in need, after all these exhausting religious exercises and his confinement for over a year in Newgate), “which had so discompos’d his mind that it was now in a very ill frame, and very unfit for the great work now or never to be perform’d by him. I prayed for him, and so did other worthy divines that were present, to whom as well as to myself the Captain appeared to be much out of order, and not so concerned or affected as he ought to have been.’Tis true he spoke some words expressing his confidence in God’s mercys through Christ, and likewise declared that he died in Charity with all the world. But still I suspected his sincerity” (Why?) “because he was more reflective upon others than upon himself” (as he might well be) “and would still endeavour to lay his faults upon his crew and others, going about to excuse and justify himself much about the same manner, as he did upon his trial. When I left him at Newgate he told me he would make a full confession at the tree,” (so he did, of everything he had to confess) “but instead of that he was unwilling (contrary to my expectation) to own the justice of his condemnation or so much as the providence of God, who for his sins had deservedly brought him to this untimely end. I continued to pray for him and the rest, who (to outward appearance) were very humble and penitent, particularly Darby Mullins, who persisted in asserting what he had told me beforeand said it was the truth and he had nothing to add to or diminish from it. This being done and the Captain having warned all mariners of ships and others to have a care of themselves, and take warning from him” (the words of his warning were very significant as will be seen below) “I then sang with them a Penitential Psalm, and after another short prayer, recommending them to God, I parted with them and left them to the Divine Mercy. And then they were turned off.”
“But here I must take notice of a remarkable (and I hope a most lucky) accident which then did happen,” (it may be doubted whether the reverend gentleman would have considered it so lucky if it had befallen himself) “which was this, that the rope by which Captain Kidd was ty’d broke, and so falling to the ground he was taken up alive, and by this means had opportunity to consider more of that Eternity he was launching into. When he was brought upand ty’d again to the tree, I desired leave to go to him again, which was granted. Then I showed him the great mercy of God in giving him unexpectedly this further respite, that so he might improve the few moments left now so mercifully allowed him in perfecting his Faith and Repentance. Now I found him in much better temper than before. But as I was unwilling, and the station also very incommodious and improper for me to offer anything to him by way of question, that might have perhaps discomposed his spirit, so I contented myself to press him to embrace (before it was too late) the Mercy of God now again offered him upon the easy conditions of Stedfast Faith, True Repentance and Perfect Charity, which now he did so fully and freely express, that I hope he was hearty and sincere in it, declaring openly that he repented with all his heart, and dy’d in Christian Love and Charity with all the world” (as he had repeatedly said before). “This he said, as hewas on the top of the ladder (the scaffold being now broken down) and myself halfway on it, as close to him as I could, who having for the last time prayed with him, left him with a greater satisfaction than I had before, that he was penitent.”
From the later account above referred to which purports to be “The only True Account of the Dying Speeches of the Condemned Pirates,” and is possibly a revised edition of the earlier account by Paul Lorrain, we learn that “all the prisoners were conveyed from Newgate to the execution dock in Wapping by the officers of the Admiralty and others, carrying the Silver Oar before them according to the usual custom:” that Kidd’s “behaviour in Newgate after condemnation was not so serious and devout as became a person under his circumstances, but whether it proceeded from an heroick temper in not seeming to be in any way terrified or afraid on the approaches of death (tho’ in a violent manner) he being naturallyof an undaunted mind and resolution, or from a conceited hope of obtaining a reprieve, there being great endeavours tho’ in vain used for that purpose, is yet unknown.”
The author of this account also informs us that Kidd “could hardly be brought to a charitable reconciliation with those persons, who were evidences against him alleging that they deposed many things that were inconsistent with truth and that much of their evidence was by hearsay: and in the general part of his discourse seemed not only to reflect on thembut on several others, who instead of being his friends as they professed, had traitorously been instrumental in his ruin!” “He further declared that as to the death of William Moore, his gunner, the blow that he gave him, it was in a passion, as being provoked by him to do so, but not with an intention of any manifest injury, much less to kill or murder him. Nay, he was so far from bearing any malice against him, that he freely gave £200 for his ransom,and further said that all his sailors knew he always had a great love and respect for him; adding that if any one concerned in his tryal had acted contrary to the dictates of his or their own conscience he heartily forgave them, and desired that God would do the like.” “He expressed abundance of sorrow for leaving his wife and children without having the opportunity of taking leave of them, they being inhabitants in New York. So that the thoughts of his wife’s sorrow at the sad tidings of his shameful death was more occasion of grief to him than that of his own sad misfortunes.” “He desired all seamen in general, more especially Captains in particular to take warning by his dismal unhappiness and shameful death and that they would avoid the means and occasions that brought him thereto, and also that they would act with more caution and prudence, both in their private and public affairs by sea and land, adding that this was a very fickle andfaithless generation.” (He had undoubtedly found it so.) “After he had ended his discourse to the people, he spent the rest of his time in Prayer and other pious and Godly exercises with the Ordinary of Newgate and other ministers: and at last seemed very devout and penitent, expressing his hearty sorrow for his manifest transgressions, especially the unhappy and sudden death of William Moore his gunner—but would not call it murder to the very last, esteeming it rather an accidental misfortune than a murder by reason that there was but one blow given and that in passion without any premeditated malice.”
No reference is made in this account to Kidd’s being “inflamed with drink.” It is clear from it that whether or not he had been given a drop of whiskey on his way to execution, he was to the end in the full possession of his faculties.
The only member of his crew who was hung with him was poor Darby Mullins,the remainder being at the last moment reprieved. Why Mullins, who had surrendered himself to the Governor of East Jersey along with two others, relying on the King’s proclamation, was selected as Kidd’s fellow-sufferer, is not clear. It is true that he was an Irishman, and in the opinion of the chaplain in a better frame of mind to meet his death than any of his companions: but neither of these circumstances in itself seems quite a satisfactory justification for hanging him. He had no doubt joined Culliford, unquestionably by far the most guilty of all the seamen implicated, but for whose presence at Madagascar, when theAdventure Galleyarrived there, Kidd in all probability would have been able to bring his prizes home before the hue and cry had been raised against him. But Culliford, though indicted for several piracies about the same time as Kidd, apparently escaped scot free, having been clever enough to save his neck by surrendering to the rightpersons under the King’s proclamation, and to secure the services of a counsel who did not fail to put in an appearance on his behalf, when his case came on for hearing; the result of which was that “his case” (according to a note in the State Trials) “being particular and argued by Counsel he was respited.”
To come now to the last painful incident in this disgraceful tragedy. The day after Kidd’s corpse had been hung aloft in chains on the gallows, Somers dared at last to break the silence he had so long maintained and to put in his reply to the Articles of Impeachment brought against him by the Commons. The allegations he had to meet were that in the grant of the goods of the pirates to the co-adventurers, the name of Samuel Newton, one of the Grantees, had been “used in trust and for the sole benefit of” himself: that “the grant manifestly tended to the obstruction of trade and navigation, the great loss and prejudice of merchantsand others, His Majesty’s subjects, and the dishonour of the King and his Kingdom:” and that “by procuring and passing it,” he had been guilty of a notorious breach of his duty. In his reply he was forced to admit that Newton had been named in the grant, “by and in trust for him,” and was apparently unable to give any excuse whatever for this discreditable deception. He pleaded that the grant “did not in any way tend to the obstruction or discouragement of trade or navigation, or to the loss or prejudice of His Majesty’s subjects, nor to the dishonour of His Majesty or His Kingdom.” He denied (and the denial implied what would be considered in these days a very low estimate of official honesty) that the passing of the grant was any breach of duty, inasmuch as it “was formed as a recompense to the grantees, who at their own charge had provided and fitted out the said Ship” (theAdventure Galley) to enable Kidd “to execute the powers in thesaid grant mentioned,whereby the public might have received great benefit had the said William Kidd faithfully discharged the trust reposed in him by His Majesty and the Grantees, which he failing to do, the owners of the said ship had lost their expenses, and had not received any benefit from the grant.”
As a matter of fact, it may well be doubted whether any of the grantees, excepting Kidd and Livingstone, lost any part of their expenses. As has already been shown, one of the conditions on which their legal advisers had been careful to insist had been that if the prize moneys were insufficient to make good the full amount advanced by the grantees, other than Kidd and Livingstone, the deficiency was to be made good by Kidd and Livingstone, both of them men of substance. We have seen with what eagerness, and with what disastrous results to Kidd, Livingstone had endeavoured to get his bond restored to him byBellamont. That Kidd’s estate of itself, notwithstanding the fact that he was unable in Newgate to get funds for his defence until the night before his trial, was sufficient to have covered any loss sustained by the great men, who had exploited him, is clear from the fact that of his effects forfeited to the Crown, six thousand four hundred and seventy-one pounds were afterwards given by Queen Anne towards the establishment of Greenwich hospital.[14]But whether or not these great men found it inconvenient to reclaim their one thousand pounds apiece, it is impossible to doubt that when making this cruelly unjust charge of faithlessness against Kidd the day after his death, Somers was fully acquainted with the essential facts of the case. It is incredible that he had not read Kidd’s narrative, the depositions of his men, and Bellamont’s correspondence, and that he was not cognizantof all the proceedings at Kidd’s trial, the keeping back of the French passes by the Admiralty officials: the failure of Kidd’s counsel to put in an appearance on the critical day when he was tried for piracy; the break-down of the most material parts of the King’s evidence; and the manner in which the trials had been conducted throughout by the Lord Chief Baron. It is to be feared that he not only knew all this, but that his was the unseen master hand that had held the strings, which had been so skilfully and ruthlessly manipulated as to bring about Kidd’s death so opportunely by the verdicts of London juries. If this be so, what is to be said of the Whig historians, who have dealt with Kidd’s case? Is it possible to believe in the face of indisputably recorded facts, that Somers really was the immaculate politician of his day depicted for us by Macaulay, “whose integrity,” we have been assured, “was ever certain to come forth bright and pure from the mostsevere investigation”? In the foregoing pages an attempt has been made, it is believed for the first time, to allow the personages who took part in this melancholy business to speak for themselves, so far as the extant records permit. Hitherto by a conspiracy of silence, their voices have been hushed, and the facts of the case studiously suppressed or perverted by eminent advocates, who have thought it necessary, if the memories of Somers and his colleagues were to be cleansed from the stigma which clung to them in their own day from the part they took in it, that Kidd’s reputation should be blackened, and that he should be depicted as a villain of the deepest dye, whom, on account of his unexceptionable antecedents, these great men were fully justified in employing, but whose character underwent so rapid a deterioration after he had once come into contact with them, that he betrayed them for the purpose of enriching himself with spoils, of which as amatter of fact he stood in little need and which he made no effort to secure for himself. He has been represented by Macaulay not only as a rapacious pirate, but also as a monster of cruelty, who for his own ends depraved his crew and led them into every kind of wickedness. To quote but one passage from Macaulay’s indefensible and inexcusable travesty, “With the rapacity he had the cruelty of his odious calling. He burnt houses: he massacred peasantry. His prisoners were tied up and beaten with naked cutlasses, in order to obtain information about their concealed hoards. One of his crew, whom he had called a dog, was provoked into exclaiming in an agony of remorse, ‘Yes, I am a dog: but it is you that have made me so.’ Kidd in a fury struck the man dead.”
These accusations have obtained ready credence; but their absurdity will be evident to any one who will take the pains to examine the records. There is no reasonwhatever for believing that Kidd was cruel or rapacious. The only ground for suggesting that “he massacred peasantry” is the one case, when his cooper’s throat having been cut by the natives, he retaliated by ordering one native to be shot. This was the only time when it was ever alleged in his own day that he had burnt houses: and we have it on the authority of Palmer, the King’s evidence against him, that on this occasion Kidd had given express orders to his men to spare the houses that had white flags hoisted on them, because their inmates had helped to water his ship. The episode on the strength of which Macaulay accuses him of causing his prisoners to be beaten with cutlasses, in order to extort from them information as to their concealed hoards, has already been explained. The men in question were not his prisoners. He allowed them to proceed peacefully on their voyage, and their ship was not taken from them. Kidd never went on board of her, muchless did he give directions to his crew to ill-use them. Questioned as to whether any gold had been taken from them, Palmer freely admitted that he did not see any. Asked further by Kidd, whether it was not the case that a parcel of rogues had gone on board and done the deed complained of, he virtually admitted that it was so by making no reply. In the matter of cruelty there is a marked difference between the reported doings of Kidd and of the pirates of whom the East India Company were repeatedly complaining. In these complaints mention is often made of the outrages committed: but in the case of Kidd the Company made no complaint of similar misdeeds. From all that can be learned of him, he seems to have been a kind-hearted man. There is no reason to doubt the truth of his dying statement that he had paid two hundred pounds for his gunner Moore’s ransom, probably on the occasion when the natives had cut his cooper’s throat. One ofthe reasons which led Bellamont to employ him is stated by Bellamont’s apologist to have been Kidd’s well-known affection for his wife and family, which was also relied on by Bellamont as being strong enough to prevent him from attempting to escape by forsaking them on his return. And we have it on the record of a witness who certainly had no bias in his favour that his chief solicitude in Newgate after he had been sentenced to death was for them and not for himself.
The suggestion that Moore, when knocked on the head by Kidd, was “in an agony of remorse” for acts of piracy which Kidd had led him to commit, is almost too ludicrous to call for comment. It is absolutely clear from the evidence of every witness of the occurrence that so far from Kidd having led Moore astray, Moore had vainly endeavoured to induce Kidd to become a pirate, and that it was his failure to succeed in this endeavour that led to the altercation which ended in his death.
But the most flagrant fiction fabricated by a Whig historian in relation to poor Kidd, is not to be found in Macaulay’s history, but in the pages of a grave historical work, compiled by an eminent lawyer, who in his day had filled not only the office of Lord Chief Justice, but also that of Lord Chancellor. That great legal luminary, Lord Campbell, in his “Life of Somers” has not hesitated to insert a circumstantial fable to the effect that Kidd was caught red-handed on the high seas in the midst of his criminal career. In the fifth volume of his “Lives of the Chancellors,” pages 126 and 127, he tells the tale thus: “A noble vessel called theAdventure Galleywas fitted out, and the command of her given to William Kidd, a naval officer, esteemed for honour as well as for gallantry. On arriving in the Indian Seas, he turned pirate himself, and cruised against the commerce of all nations indiscriminately, till after a sharp engagement with an Englishfrigate in which several fell on both sides, he was captured and brought home in irons.” To such depths can history sink when written by political partisans of the highest rank and respectability.