At that very time the House of Commons had impeached the Earl of Oxford and Lord Somers, for their connection with Kidd, and for the extraordinary commission which they had been instrumental in placing in his hands. It was said that commission and grants had been conferred upon him, which were highly prejudicial to the interests of trade and dishonorable to the king. In accordance with this commission, Kidd could capture any ship, and, without referring the question to any court of inquiry, could, of his own pleasure, declare the ship to be a pirate. He could then confiscate ship and cargo to his own use, and dispose of the crew in any way which to him might seem best. This was the course which, under the commission, he did pursue.
These were certainly very extraordinary powers. It was contended that they were contrary to the law of England and to the Bill of Rights. To these arguments it was replied, by the friends of the impeached nobles, that pirates were the enemies of the human race; that as such any person had a right to destroy them, and seize the property they had so iniquitously acquired, and to which they had no legitimate title. It was also declared, though perhaps the royal commission would hardly sustain the statement, that Kidd was authorized to seize only that property for which no other owner could be found. Certainly there was no provision made for searching out such ownership. It was, however, urged, and very truthfully, that the commission contained the all-important clause:
“We do also require you to bring, or cause to be brought, such pirates, freebooters, or sea-rovers, as you shall seize, to legal trial, to the end they may be proceeded against according to the law in such cases.”
The fact that Kidd entirely ignored these instructions, constituting himself the court to try and condemn, could not justly be brought as a charge against the ministers who commissioned him.
Upon these questions popular feeling ran high. Parties took sides. Agitating rumors filled the air. It was confidently affirmed that the lords then on trial, with the connivance of the ministry, that they might escape the investigation which the trial of Kidd would involve, had set the Great Seal of England to the pardon of the pirate. This roused the anti-ministerial party to the highest state of exasperation. They resolved at all events to hang Kidd, hoping thus to prove that the ministers were alike guilty with him. And on the other hand, the ministers themselves had come to the conclusion that any attempt to shield Kidd would redound to their own ruin. It had become essential to their own reputation that they should manifest more zeal than any others to bring Kidd to the scaffold.
Thus the wretched pirate had no chance of a fair trial. Undoubtedly he was guilty. But it is very doubtful whether he were proved to be guilty when called before the court. The bill of impeachment against the lords was not carried. Though their participation with Kidd in the profits of an expedition which was authorized only by their own official acts was deemed very censurable, when the vote was taken there were but twenty-three in favor of the impeachment, while there were fifty-six opposed to the bill.
The Earl of Bellomont, harassed by the procedure in the House of Commons, and knowing that measures were about to be instituted against him for his recall from the provincial government, and perhaps for his still more severe punishment, was taken sick and died in New York, in March, 1700. Thus he escaped from the further troubles of this ever-troubled world.
At the close of the year 1700, the papers which had been sent for arrived from the East Indies. A petition came from several of the East-Indian merchants, subjects of the King of Persia, giving a minute recital of the capture of the Quedagh Merchant, and praying that the property of which they had thus been robbed, and much of which had been conveyed to the North American colonies, might be restored to them. A very distinguished East Indian, by the name of Cogi Baba, came to London in behalf of the petitioners. He was summoned to appear before the House of Commons. At the same time Kidd himself was brought from his prison before the bar.
After an examination, a motion was made to the House to declare the grant made to the Earl of Bellomont and others of the company, of all the treasure taken by Kidd, to be null and void. But this motion was negatived. A vote was then taken requesting the king to institute immediate proceedings against Captain Kidd for piracy and murder. He was accordingly brought to trial, under this indictment, at the Old Bailey, in the year 1701.
Several of Kidd’s confederates were tried with him. Some of them pleaded the king’s pardon, saying that they had surrendered themselves within the time limited in the royal proclamation. The governor of New Jersey, Colonel Bass, then in court, testified to the truth of this assertion, the surrender having been made to him.
To this it was replied, “There were four commissioners named in the proclamation, Thomas Warren, Israel Hayes, Peter Delanoye, and Christopher Pollard. These commissioners were sent to America to receive the submission of such pirates as should surrender. No other persons were entitled, to receive their surrender. They therefore have not complied with the conditions of the proclamation.”
They were condemned and hanged. One of the crew, Darby Mullens, made the following strong defence:
“I served under the king’s commission. I could not therefore disobey my commander, without exposing myself to the most severe punishment. Whenever a ship goes out upon any expedition, under the king’s commission, the men are never allowed to call their officers to account. Implicit obedience is required of them. Any other course would destroy all discipline. If anything unlawful is done, the officers are to answer for it, for the men, in obeying orders, only do what is imperiously their duty.”
The court replied, “When a man is acting under a commission, he is justified only in doing that which is lawful, not in that which is unlawful.”
The prisoner responded, “I stand in need of nothing to justify me in what is lawful. But the case of a seaman is very hard, if he is exposed to being scourged or shot if he refuse to obey his commander, and of being hung if he obey him. If the seaman were allowed to dispute the orders of his captain, there could be no such thing as command kept up at sea.”
The court replied, “The crew, of which you were one, took a share of the plunder; they mutinied several times; they undertook to control the captain; they paid no regard to the commission; they acted in all things according to the customs of pirates. You are guilty, and must be hanged.” He was hanged.
Kidd was tried for piracy, and for the murder of William Moore. He was not allowed counsel, but was left to make his own defence. On the whole, he appeared remarkably well while passing through this dreadful ordeal. In opening his defence, he said:
“I was a merchant in New York, in good repute and in good circumstances, when I was solicited to engage, under the royal commission, in the laudable employment of suppressing piracy. I had no need of embarking myself in piratic adventures. The men were generally desperate characters, and they rose in mutiny against me. I lost all control over them. They did as they pleased. They threatened to shoot me in my cabin. Ninety-five deserted at one time, and destroyed my boat. I was thus disabled from bringing the ship home. Consequently I could not bring the prizes before any court to have them regularly condemned. They were all taken by virtue of the commission, under the Broad Seal, and they had French papers.”
When the jury was impanelled, and he was invited to find cause, if he wished to do so, for the exclusion of any of them, he replied:
“I shall challenge none. I know nothing to the contrary but that they are all honest men.”
Kidd was greatly agitated during the trial, and frequently interrupted the court with his exclamations and explanations. He was first tried for the murder of William Moore. This indictment gave a very particular account of the event, stating that the gunner died of a mortal bruise received at the hands of the captain; that from the thirtieth day of October to the one-and-thirtieth day, he did languish and languishing did live, but that on the one-and-thirtieth day he did die; and that William Kidd, feloniously, voluntarily, and of malice aforethought, did kill and murder him.
To this Kidd replied,