What happened during the next few hours can only be conjectured11. 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 Baron12 Ward13, who had been present in Court the day before, and heard the arguments for the postponement14 of the[171] 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 monstrous15 miscarriage16 of justice, which ensued, was the result of mere17 accident, negligence18, 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 lurch19 to conduct[172] his own defence, with the disastrous20 results that might have been anticipated. It is very difficult to avoid the suspicion of foul21 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, impeachments22 were pending23 in Parliament against Orford, the late First Lord of the Admiralty, and Somers, for their participation24 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 untoward25 disclosures on his part so long as he remained alive. Coming to the last of the very significant close coincidences of date that abound26 in this case, we find that Somers deferred27 putting in his reply to the Articles of Impeachment[173] drawn28 up against him by the Commons until the day after Kidd’s execution. In order to appease29 public opinion and the East India Company, some scapegoat30 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 salvation32 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 melancholy33 reading by those who still retain some belief in the impartiality34 of the judges and the honesty of the counsel of that age. Three of the latter, the Solicitor35 General, the advocate of the Admiralty, and their junior Mr. Coniers, with their trained wits and long experience in criminal cases, were long odds36 for poor Kidd and his companions[174] to contend against, although the only evidence produced by the prosecution37 consisted of the uncorroborated testimony38 of two of the mutineers who had deserted39 their colours at Madagascar and joined Culliford in open piracy40. These men had evidently been carefully taken by the attorneys through every incident in the voyage of the Adventure Galley42, which lent itself to ingenious misrepresentation, tending to the discredit43 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 promptly44 reduced to silence by the reminder45 that when the time came, he could question the witnesses. He did ask them some very pertinent46 questions, from the answers to which it[175] was clear that they had wilfully47 endeavoured to deceive the Court. But he was, of course, no adept48 in the art of systematic49 and persistent50 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 unnaturally51 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 indictment52 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?[176] 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 rogues53 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 folly54.”
It might have been thought that the testimony given by such unimpeachable55 witnesses as Colonel Hewson, Captain Bond, Captain Humphreys, and Mr. Cooper of the character and eminent56 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 confession57 joined Culliford in[177] 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 doctrine58 “Nemo repente fuit turpissimus.”
Bradenham, before he had been caught by the police in London, had been seen by one[178] 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 mighty59 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 truthfulness60 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[179] to cast it into such a shape that it would in the opinion of the legal advisers61 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 condemned63, 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 condemn62 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,[180] “My lord, I designed to take that frigate64 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 justified65 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 fully41 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 amity66 with the King: and Captain[181] 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 confiscation67: but if they were goods of persons in amity with the King, and the ship was not navigated68 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 unaware69 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[182] 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 pretence70 of a French pass?”
[183]
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 ashore71, 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[184] 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[185] 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 shameful72 suppression of these passes at Kidd’s trial is not one of them. Had they been produced, as they ought undoubtedly73 to have been in accordance with the order of the House of Commons, it[186] 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, apprentices74 to the Captain, the Mate and the cook were acquitted75 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 Bass76, the Governor of East Jersey77, 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 gaol78 awaiting their trial for nearly two years. But their plea was disallowed79 on the ground that they had surrendered to the wrong persons.[187] 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 Cape31 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 inflicted80 upon those who should continue obdurate81.” 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 eastward82 of the Cape of Good Hope to surrender[188] themselves to the four commissioners83 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 construed84 strictly85. “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[189] 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 obedience86 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 mutinous87 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.[190] 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[191] 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[192] old judge, let us hope that this obtuseness88 was not feigned89, and that he had really forgotten, though it is difficult to see how he could have done so, Kidd’s impassioned entreaties90 at the beginning of his trial on the preceding day for the production of these papers, the protracted91 discussion which took place thereon in which he had himself taken part and the undertaking92 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 perjured93 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.”
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seizure
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| n.没收；占有；抵押 | |
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alleged
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| a.被指控的，嫌疑的 | |
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piracies
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| n.海上抢劫( piracy的名词复数 )；盗版行为，非法复制 | |
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minor
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postponed
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| vt.& vi.延期，缓办，（使）延迟vt.把…放在次要地位；[语]把…放在后面（或句尾）vi.（疟疾等）延缓发作（或复发） | |
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lucidity
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lawful
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| adj.法律许可的，守法的，合法的 | |
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procured
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| v.（努力）取得， （设法）获得( procure的过去式和过去分词 )；拉皮条 | |
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apparently
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jauntily
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| adv.心满意足地；洋洋得意地；高兴地；活泼地 | |
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conjectured
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| 推测，猜测，猜想( conjecture的过去式和过去分词 ) | |
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baron
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| n.男爵；(商业界等)巨头，大王 | |
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ward
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| n.守卫，监护，病房，行政区，由监护人或法院保护的人（尤指儿童）；vt.守护，躲开 | |
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postponement
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monstrous
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miscarriage
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mere
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negligence
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lurch
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disastrous
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foul
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impeachments
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| n.控告( impeachment的名词复数 )；检举；弹劾；怀疑 | |
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pending
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participation
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untoward
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abound
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deferred
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| adj.延期的，缓召的v.拖延，延缓，推迟( defer的过去式和过去分词 )；服从某人的意愿，遵从 | |
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drawn
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appease
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scapegoat
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cape
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salvation
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melancholy
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impartiality
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solicitor
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odds
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prosecution
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testimony
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deserted
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piracy
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| n.海盗行为，剽窃，著作权侵害 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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galley
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| n.（飞机或船上的）厨房单层甲板大帆船；军舰舰长用的大划艇； | |
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discredit
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| vt.使不可置信；n.丧失信义；不信，怀疑 | |
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promptly
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| adv.及时地，敏捷地 | |
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reminder
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| n.提醒物，纪念品；暗示，提示 | |
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pertinent
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| adj.恰当的；贴切的；中肯的；有关的；相干的 | |
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wilfully
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| adv.任性固执地；蓄意地 | |
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adept
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| adj.老练的，精通的 | |
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systematic
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| adj.有系统的，有计划的，有方法的 | |
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persistent
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| adj.坚持不懈的，执意的；持续的 | |
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unnaturally
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| adv.违反习俗地；不自然地；勉强地；不近人情地 | |
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52
indictment
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| n.起诉；诉状 | |
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53
rogues
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| n.流氓( rogue的名词复数 )；无赖；调皮捣蛋的人；离群的野兽 | |
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54
folly
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| n.愚笨，愚蠢，蠢事，蠢行，傻话 | |
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unimpeachable
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| adj.无可指责的；adv.无可怀疑地 | |
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eminent
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| adj.显赫的，杰出的，有名的，优良的 | |
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confession
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| n.自白，供认，承认 | |
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doctrine
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| n.教义；主义；学说 | |
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mighty
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| adj.强有力的；巨大的 | |
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truthfulness
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| n. 符合实际 | |
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advisers
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| 顾问，劝告者( adviser的名词复数 )； （指导大学新生学科问题等的）指导教授 | |
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62
condemn
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| vt.谴责，指责；宣判(罪犯)，判刑 | |
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condemned
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| adj. 被责难的, 被宣告有罪的 动词condemn的过去式和过去分词 | |
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64
frigate
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| n.护航舰，大型驱逐舰 | |
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justified
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| a.正当的，有理的 | |
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66
amity
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| n.友好关系 | |
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confiscation
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| n. 没收, 充公, 征收 | |
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navigated
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| v.给（船舶、飞机等）引航，导航( navigate的过去式和过去分词 )；（从海上、空中等）横越；横渡；飞跃 | |
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unaware
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| a.不知道的，未意识到的 | |
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pretence
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| n.假装，作假；借口，口实；虚伪；虚饰 | |
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ashore
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| adv.在(向)岸上，上岸 | |
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72
shameful
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| adj.可耻的，不道德的 | |
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undoubtedly
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| adv.确实地，无疑地 | |
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apprentices
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| 学徒，徒弟( apprentice的名词复数 ) | |
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acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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bass
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| n.男低音(歌手)；低音乐器；低音大提琴 | |
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jersey
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| n.运动衫 | |
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gaol
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| n.(jail)监狱；(不加冠词)监禁；vt.使…坐牢 | |
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disallowed
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| v.不承认（某事物）有效( disallow的过去式和过去分词 )；不接受；不准；驳回 | |
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inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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obdurate
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| adj.固执的，顽固的 | |
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82
eastward
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| adv.向东；adj.向东的；n.东方，东部 | |
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83
commissioners
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| n.专员( commissioner的名词复数 )；长官；委员；政府部门的长官 | |
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84
construed
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| v.解释（陈述、行为等）( construe的过去式和过去分词 )；翻译，作句法分析 | |
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85
strictly
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| adv.严厉地，严格地；严密地 | |
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86
obedience
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| n.服从，顺从 | |
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87
mutinous
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| adj.叛变的，反抗的；adv.反抗地，叛变地；n.反抗，叛变 | |
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obtuseness
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| 感觉迟钝 | |
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89
feigned
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| a.假装的，不真诚的 | |
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90
entreaties
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| n.恳求，乞求( entreaty的名词复数 ) | |
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91
protracted
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| adj.拖延的；延长的v.拖延“protract”的过去式和过去分词 | |
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92
undertaking
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| n.保证，许诺，事业 | |
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93
perjured
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| adj.伪证的，犯伪证罪的v.发假誓，作伪证( perjure的过去式和过去分词 ) | |
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