As to their trials, if we should give them at length it may appear tedious to the reader, for which reason I have, for the avoiding tautology and repetition, put as many of them together as were tried for the same fact, reserving the circumstances which are most material, with observations on the dying behaviour of such of them as came to my knowledge.
And first, it may be observed from the list that a great part of these pirate ships’ crews were men entered on the coast of Africa not many months before they were taken; from whence, it may be concluded, that the pretended constraint of Roberts on them was very often a complotment between parties equally willing. And this Roberts several times openly declared, particularly to the Onslow’s people, whom he called aft, and asked of them “who was willing to go, for he would force nobody?” As was deposed of some of his best hands, after acquittal; nor is it reasonable to think he should reject Irish volunteers, only from a pique against Kennedy, and force others, that might hazard, and, in time destroy, his government. But their behaviour soon put him out of this fear and convinced him that the plea of force was only the best artifice they had to shelter themselves under in case they should be taken, and that they were less rogues than others only in point of time.
It may likewise be taken notice of that the country wherein they happened to be tried is, among other happinesses, exempted from lawyers and law-books, so that the office of registrar of necessity fell on one not versed in those affairs, which might justify the court in want of form, more essentially supplied with integrity and impartiality.
But perhaps if there was less law there might be more justice than in some other courts; for if the civil law be a law of universal reason, judging of the rectitude, or obliquity of men’s actions, every man of common sense is endued with a portion of it, at least sufficient to make him distinguish right from wrong, or what the civilians call malum in se.
Therefore, here, if two persons were equally guilty of the same fact, there was no convicting one and bringing the other off by any quirk or turn of law; for they formed their judgments upon the constraint, or willingness, the aim and intention of the parties, and all other circumstances, which make a material difference. Besides, in crimes of this nature men bred up to the sea must be more knowing and much abler than others more learned in the law; for before a man can have a right idea of a thing he must know the terms standing for that thing. The sea-terms being a language by itself, which no lawyer can be supposed to understand, he must of consequence want that discriminating faculty which should direct him to judge right of the facts meant by those terms.
The court well knew it was not possible to get the evidence of every sufferer by this crew, and therefore first of all considered how that deficiency should be supplied; whether or no they could pardon one Jo. Dennis, who had early offered himself as King’s evidence, and was the best read in their lives and conversations; here indeed they were at a loss for law, and concluded in the negative because it looked like compounding with a man to swear falsely, losing by it those great helps he could have afforded.
Another great difficulty in their proceedings was how to understand those words in the Act of Parliament of “particularly specifying in the charge the circumstances of time, place,” &c., i.e., so to understand them as to be able to hold a court; for if they had been indicted on particular robberies the evidence had happened mostly from the Royal African Company’s ships, on which these gentlemen of Cape Corso Castle were not qualified to sit, their oath running “That they have no interest, directly or indirectly, in the ship or goods, for the robbery of which the party stands accused.” And this they thought they had, commissions being paid them on such goods; and on the other side, if they were incapacitated, no court could be formed, the commission absolutely required three of them by name.
To reconcile all things, therefore, the court resolved to bottom the whole of their proceedings on the Swallow’s depositions, which were clear and plain and had the circumstances of time when, place where, manner how, and the like, particularly specified according to the statute in that case made and provided. But this admitted only a general intimation of robbery in the indictment; therefore, “to approve their clemency,” it looking arbitrary on the lives of men to lump them to the gallows in such a summary way as must have been done had they solely adhered to the Swallow’s charge, they resolved to come to particular trials.
Secondly, “that the prisoners might not be ignorant whereon to answer,” and so have all fair advantages to excuse and defend themselves, the court farther agreed with justice and equanimity to hear any evidence that could be brought to weaken or corroborate the three circumstances that complete a pirate: first, being a volunteer amongst them at the beginning; secondly, being a volunteer at the taking or robbing of any ship; or, lastly, voluntarily accepting a share in the booty of those that did; for by a parity of reason where these actions were of their own disposing, and yet committed by them, it must be believed their hearts and hands joined together in what they acted against his Majesty’s ship the Swallow.