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 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 amity with the King: and Captain Kidd would have them to be the goods of Frenchmen, or at least that the ship was sailed under French passes. Now if 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 not 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?”