If any of the great personages involved in Kidd’s case took the trouble to look into the voluminous papers relating to it, which had been sent over to England by Bellamont for presentation to Parliament, they must at once have realized that Kidd’s prosecution was attended with great difficulties. Notwithstanding the public prejudice which had been aroused against him, and the fact that he was not only a Scotchman, but also a Colonial, they could hardly have believed that an English jury could be asked with safety to convict him of piracy, on any of the grounds on which Bellamont had committed him to gaol at Boston, either because he had been described by the Lords Justices as a notorious pirate[142] or because he was thought to look guilty, or because during his examination he had in Bellamont’s opinion seemed at one time unduly cheerful, and at another unduly grave, or even because some one else had been so impertinent as to ask prematurely for the return of a bond. Kidd’s own simple narrative, which it is impossible to doubt that some of them must have read with interest, if not with shame, supported as it was by the depositions of such of his crew as had remained faithful to him, contained no inherent improbabilities, but bore the impress of truth, and satisfactorily accounted for his detention at Madagascar. No flaw was apparent in either of the French passes, which he had taken with his prizes, and which were included amongst the papers sent over by Bellamont. It is difficult to believe that any one who read them failed to come to the same conclusion that Bellamont had expressed, that they would justify the seizure of the two vessels to which they[143] related. The sole foundation for the suspicions that attached to Kidd, apart from his unfortunate and disreputable connection with Lord Chancellor Somers, and other unpopular members of the Ministry, was the vague allegation made some years before by the East India Company, that “they had received some information from their factories that he had committed several acts of piracy, particularly in seizing the Quedagh Merchant.” From the papers presented to Parliament it seemed now clear that his capture of that ship was justified; and that he was on his way home with her to New England with the object of getting her adjudicated a lawful prize, when his men had gone over to Culliford, and prevented him from carrying her to Boston. As one at least of the adventurers, Orford, the late First Lord of the Admiralty, should have known, she could not have been condemned as a lawful prize in the East Indies, owing to the neglect of the Admiralty to follow the advice[144] of their own judge, to erect a Vice-Admiralty Court there, as had been done in the West Indies. The East India Company must have been pressed after Kidd’s arrest, to substantiate their vague charges against him. It is inconceivable, having regard to their interest in his conviction, that they left any stone unturned to procure evidence against him during the two years that he remained in confinement. But whatever their efforts may have been, they seem to have been unsuccessful. No person was found to come forward and allege that he had any knowledge of Kidd’s alleged piracies, except Cogi Babba, one of the owners of the Quedagh Merchant. And for the reason already explained, his evidence would be valueless, if the French passes were produced in Court.

But the Old Bailey practitioners of that day, who were no doubt consulted in due course, were adepts in their trade, and it is unlikely that they entertained any serious[145] doubt from the first as to the lines on which Kidd’s prosecution in the interests of their clients should proceed, or as to its ultimate success. They knew that he was friendless and that it was nobody’s interest in England but his own that he should be acquitted. They knew that no London jury that tried him could fail to be influenced by their knowledge that he had been denounced by the Lords Justices and the East India Company as a notorious pirate, or dismiss from their minds the innumerable wild tales which had for years been disseminated to his disadvantage.[12] They knew also, none better, the[146] practical difficulties which confronted every poor wretch brought to trial in those days on a capital charge by unscrupulous persons, who could afford to bribe or terrify miscreants into bearing false evidence against him. Incredible as it may seem to us with our modern notions of fair play and the belief which has been instilled into some of us of the wisdom of our ancient common law, much of which was as hopelessly absurd as many of the nostrums and theories of the medical men of those days, accused persons in criminal cases were forced to conduct their own defence and were not allowed the assistance of counsel, for the purpose of examining or cross-examining witnesses or commenting on any question of fact. Counsel on their behalf were only permitted to address the Court on questions of law; the legal fiction being that there was no necessity for a prisoner to employ counsel to elucidate the facts: that the judge could be trusted to see that this was properly done: and that[147] the jury could be trusted to give the prisoner the benefit of any reasonable doubt. Needless to say this fiction led to the frequent conviction of innocent persons, and was a great encouragement to perjured witnesses. Many a villain, who but for it would have hesitated to be suborned, was induced by it to come forward for a small consideration and swear to anything that his employers desired. Still more ready were some poor creatures to do this, if they had brought their own necks within measurable distance of the noose, and their refusal to swear away the life of the accused would entail their own death by hanging. In the present case, no trustworthy evidence of reputable witnesses being forthcoming against Kidd, the legal advisers of the Crown very naturally had recourse to the well-known last resort open to them, and set themselves to find some one or more scoundrels, who would be willing to turn King’s evidence against him. Twelve seamen, most[148] of whom had remained faithful to their commander, were now imprisoned with him, awaiting their trial for piracy. We shall never know how many of these were approached by the prosecution. What we do know is, that not one of them was induced to become King’s evidence. If Kidd had been guilty of the crimes of which he was accused, this in itself would have been a remarkable circumstance: for some of these poor men might have been expected to reconcile their consciences to the saving of their own lives by giving evidence against him. Not one of them did so. The only witnesses who could be found to testify against him were two rogues, who on their own admission had deserted him at Madagascar, and joined Culliford in open piracy against all nations. These men had imprudently returned to London, where unfortunately for themselves and Kidd, they were unearthed by emissaries of the prosecution before the trial came on. Their lives would[149] justly have been forfeited if they had not agreed to give the evidence on which their old commander and comrades were convicted. What that evidence amounted to, will be seen in due course.

Another hardship to which the accused were subjected in those days was this, that besides being deprived of the assistance of counsel to cross-examine and comment on the evidence, they were left in ignorance sometimes to the last moment of the charges to be made against them. Kidd had every reason to believe, when brought into Court for trial, that the only charge he had to meet was piracy. He had been committed by Bellamont for piracy, and examined before the Admiralty and the House of Commons on that charge. The great men with whom he had been associated were supposed to have employed him because he was a pirate. No suggestion had been made that he had been guilty of any other crime. And yet when he came into Court, the first charge[150] against him was not that he had been a pirate, but that he was guilty of an offence of a totally different character, a charge of which no notice whatever had apparently been given him, and to meet which he had had no opportunity of obtaining legal advice or preparing his defence.

Nor was this all. He was a man of substance in America when arrested. But in gaol in England he was without money or friends to prepare for his trial. Although the Court had ordered fifty pounds to be paid to him that he might have legal advice, the money was not delivered to him till the night before he was tried. What was, if possible, unfairer than any of these things was the deliberate withholding from him by the officials of the papers, which the House of Commons had ordered to be delivered to the Admiralty for the purposes of his trial, and in particular the two French passes, on which he relied to prove that he had been justified in taking the two prizes, in respect[151] of which he was accused of piracy. No wonder that he pleaded hard for the production of these papers and the postponement of his trial, until he was allowed access to them. That there can be no question of the accuracy of the foregoing statements, appears clearly from the verbatim report of his trial, perused and approved by the judges and counsel who took part in it. Take first this extract from that report.

“Kidd. May it please your Lordships, I desire you to permit me to have counsel.

“Recorder (Sir Salathial Lovel). What would you have counsel for?

“Kidd. My lord. I have some matter of law, relating to the indictment, and I desire I may have counsel to plead to it.” (He had evidently been coached up on this point that morning or the night before by his legal advisers.)

“Dr. Oxenden. What matter of law can you have?

“Clerk of Arraigns. How does he know[152] what he is charged with? I have not told him.

“Recorder. You must let the Court know what these matters of law are, before you can have counsel assigned you.

“Kidd. I know what I mean. I desire to put off my trial as long as I can, till I can get my evidence ready.

“Dr. Oxenden. It cannot be matter of law to put off your trial.

“Kidd. I beg your Lordships’ patience till I can procure my papers. I had a couple of French passes, which I must make use of in order to my justification.

“Recorder. That is not matter of law.

“Kidd. I sent for them, but I could not have them.

“Dr. Oxenden. Where were they then?

“Kidd. I brought them to my Lord Bellamont in New England.

“Recorder. Mr. Kidd, the Court sees no reason to put off your trial—you must plead.

[153]

“Kidd. If your Lordship will permit those papers to be read they will justify me.

“Recorder. Mr. Kidd, you must plead.

“Kidd. I cannot plead till I have those papers I have insisted upon.

“Mr. Lemmon (one of his counsel). He ought to have his papers delivered to him, because they are very material for his defence. He has endeavoured to have them, but could not get them.

“Mr. Coniers (one of the counsel for the prosecution). You are not to appear for any one until he pleads, and that the Court assigns you for his counsel.

“Recorder. They would only put off the trial.

“Mr. Coniers. He must plead to the indictment.

“Kidd. It is a hard case, when all these things shall be kept from me, and I shall be called on to plead.

“Clerk of Arraigns. Make silence.

“Kidd. My papers were all seized, and I[154] cannot make my defence without them. I desire my trial to be put off until I can have them.

“Recorder. If he will not plead, there must be judgment.

“Kidd. My lord, I insist upon my French passes. P............