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 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 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 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, it 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, 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 surrender themselves 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.”