Pirate tales from the law

by Arthur M. Harris

Under modern circumstances, this trial would have been a very close, keen struggle. The accused would have been able to engage the most expert counsel, who might be expected to make the prosecution exert itself in the matter of proving its charges; not an easy thing to do from some angles.

There were five trials upon six indictments,—one for the murder of Gunner Moore and five for acts of piracy. Kidd was alone, of course, in the trial for murder; on the charges of piracy, he was in the dock with his nine seamen.

The murder trial should be carefully noticed, in view of the modern vogue for exonerating Kidd of all guilty acts in the Indies. Those who attempt to show that Kidd was “judicially murdered,” as the result of a political plot carried on by factions opposed to the noble gentlemen who backed the Kidd enterprise, must prove this murder trial to have been unfair, for if it were not, then Kidd was liable to the death penalty regardless of the crimes of piracy.

To clear himself, Kidd called three of his own men in an effort to show that he slew Moore as Moore was in the act of leading a mutiny; in other words, what we would call justifiable homicide. But his own witnesses proved that the mutiny concerning the Loyal Captain occurred from two to four weeks before the death of the gunner—a fact which in modern law would have sufficed to convict Kidd—there being no “immediate” emergency, as our statutes would say. No modern court would upset the verdict of the jury who tried Kidd for murder, on the ground that it was not supported by the evidence.

With the bewhiskered seafarers in the dock before him, the clerk of arraignments of the Old Bailey arose and hurled eighty clauses at the accused, eighty or more clauses, with no longer pause between them than a semicolon. It may be submitted that this is no fair way to come at a man whose method of combat is entirely different; who thrusts, for instance, with a cutlass instead of a verb; hurls round-shot in place of mere nouns, with a wooden bucket, say, for purposes of punctuation. A fine fellow this clerk of arraignments with his wig and gown and fat, subservient bailiffs about him! But put him on the tipsy decks of the Adventure, and, mark’ee, that would be another story. So, perhaps, the captain thought, as he stood up before this broadside of words.

If English justice is swift in these days, it must have been greased lightning in the days of William III. Half an hour after the grand jury met and returned the indictments, Kidd went to trial before the petit jury, and three days sufficed for all five indictments.

A battery of prosecutors shelled the accused. The crown was represented by Mr. Knapp, Dr. Newton, Advocate of the Admiralty; Sir John Hawles, Sir Salathiel Lovell, Recorder; the Solicitor General and the Attorney General. On the bench, sometimes ably assisting the prosecution, were Baron Gould, Baron Hatsell; Justice Turton, Justice Powel and Chief Baron Ward, who divided the job of presiding in groups of judges.

Now, in those days one accused of crime was not allowed the assistance of counsel on matters of fact. On a pure question of law he was permitted to consult a lawyer. This was just the opposite of what, according to a more enlightened jurisprudence, it should have been. Perhaps the extraordinary importance of the real science of evidence had not occurred to our forefathers. Great injustice was the result of thus handicapping a defendant. Kidd and his nine colleagues had to carry the big job of defense unadvised.

The state used just two witnesses, Palmer and Bradinham, both old Kidd men who were turned king’s evidence. Palmer had been a common seaman on the Adventure and was called by Kidd a “loggerhead”; Bradinham had been surgeon aboard, and was accused by Kidd of being a lazy, thieving, perjured rascal. Every man was running for his own neck then, and no one could afford to be too particular as to how he saved it.

All of the piracies we have set down, as well as the murder of Moore, came from the evidence of Palmer and Bradinham, somewhat corroborated by the expressions of the nine sailors who were not delicate to save their commander in this pinch.