Was Captain Kidd Guilty

He is known as the most notorious pirate in the history of buccaneers. But searching old documents requires us to ask: was Captain Kidd guilty or not? The court records themselves tell two different stories.

This is a two part article. Part I: The True Story of Captain Kidd: His 1689 to 1699 Ventures
Part II: THIS Page: Captain Kidd - Guilty or not?

Confirmatio

Illegal: Denied Council or Representation

The first proof of corruption is the fact that he was denied legal council. In spite of being held in prison from July 1699 to May 1701, he was not charged until two weeks before his trial. Even then, he was not allowed a lawyer until the night before - merely hours before the trial began.

The trial opened with a demand for his plea (guilty or not-guilty.) William Kidd immediately asked for counsel, i.e. “May I please talk to my lawyer.” It was a reasonable request. Defendants pleading not guilty suffered more severe consequences if the jury concluded they were.

The court repeatedly refused his request for council, demanding he first make his plea. He stated that documents proving his innocence were taken from him. He was told “That is not a legal matter but a factual matter, and you cannot speak to your lawyer about a factual matter until you have pled.” (Source: His Majesty’s Commission, 1701. pages 3 and 4. See references below)

He pled not guilty.

His newly appointed lawyers finally spoke. Mr. Lemons and Mr. Oldish reiterated Kidd’s point - the missing papers were essential to his defense. The court answered, “Perhaps such documents would help with the charge of piracy, but not murder. Therefore, the murder trial can go forth without the documents.”

His legal council was apparently permitted to go search for the stated documents as they never spoke again. William was left to defend himself without council on the murder charge. Immediately after the murder trial, the piracy trial began - lawyers absent. He was alone against the nation’s most powerful lawyers.

Bogus Murder Charge: Assassination by Bucket

The invalid murder charge is the next proof of a rigged trial. The prosecutor declared “That the aforesaid William Kidd, feloniosly, voluntarily, and of his Malice afore-thought did kill and murther the aforesaid William Moore upon the High Sea” (His Majesty's Commission, 1701, page 5)

The charge is ridiculous: no murderer would plan to kill someone by throwing a wooden bucket at them. A ship’s captain in particular had more efficient options: pistol, sword, throwing overboard. Captains had the authority to charge, beat, and imprison the sailors under their command. Kidd had no need of a bucket.

In addition to “malice afore-thought” they also stated it was unprovoked. “My Lord and Gentlemen of the Jury, We will prove this as particularly as can be, that William Kidd was Captain of the Ship, and that William Moore was under him in the Ship, and that without any Provocation he gave him this Blow, whereof he died.” (His Majesty's Commission, 1701, page 13)

The first witness’ testimony is written here in modern language. (See pages 7-10 in the original.)

The testimony of Joseph Palmer
Moore was sharpening a chisel. Kidd passed Moore and stopped.
Kidd: You claimed I could have attacked that Dutch ship and been in the clear. Just how could that have ever been legally cleared?
Moore: Sir, I never said any such thing or even thought any such thing.
Kidd: You are a lying, lousy dog.
Moore: If I am a lousy dog, you have made me so; you have brought me and many others to ruin.
Kidd: Have I ruined you, you Dog?
Then Kidd took a wooden bucket with an iron rim and threw it at Moore. (6)
Following Palmer’s testimony, the Surgeon Bradinham agreed with Palmer’s account and stated Moore, who had previously been in good health, died the next day from the injury. Kidd’s witness contradicted him reporting that the sickly gunner died several days to a week after his injury.

Palmer and the surgeon maintained there was absolutely was no mutiny on the ship. Meanwhile Kidd and his crew members insisted there had been calls for mutiny to attack non-French ships.

Is the modern reader left without clues to which of the long-gone witnesses lied? No, the inconsistency is right there in the testimony. According to Palmer, Moore stated he never even thought about attacking the Dutch ship. But then Moore said, “You have brought us to ruin.” Kidd’s refusal to turn pirate was the cause of their financial hardship: the very thing they argued about.

Palmer and Bradinham specifically stated there was no mutiny on board. But it is a fact that these two abandoned Kidd to join Culliford the arch-pirate. That is mutiny -which they claimed was not onboard. A dishonest court had a reason to send Kidd’s newly engaged lawyers away.

Controlled: Court Prevented Kidd from Discussing Mutiny or Defending Himself

At this point Kidd attempted himself to show the inconsistency of their testimony by stating those witnesses were mutineers - as any lawyer would have done. But the solicitor stopped him: “Even if they were mutineers, that didn’t give you the right to kill Moore.”

Kidd had a valid point: how could Bradinham deny mutiny when he himself had engaged in it?

Kidd called three witnesses from his crew. They contradicted Palmer and Bradinham on several points. No one sought to clarify the contradictions. They simply assumed it was the accusers who told the truth.

As the beleagered captain began to contradict Palmer’s statement, he was stopped. “You may ask the witness questions,” he was told, “but you can’t make your own statements.” (His Majesty's Commission, 1701, page 11) )

Asked if he wished to call other witnesses or make an assertation, he declined, since all statements made by him were cut short; all statements made by his crew were brushed aside.

Now the prosecutor addresses the jury. A crime of passion, he explained, is manslaughter. But a premeditated attack is murder. He then then reiterated the accusations of malice, aforethought, without provocation.

Captain Kidd attempted to answer the charge but was forbidden to speak. His time was up. The prosecution could address the jury; defense could not. Prosecution could summarize his arguments; defense never got to make one. Not once was William Kidd allowed to tell what happened.

All jurors found him guilty of murder.

Dishonesty: Seized Documents Withheld

After the murder trial, immediately the court proceeded to try Kidd and nine former crew members of piracy. His lawyers remained absent. The fourth proof of corruption is that fact that his seized documents were missing - as he had stated at the outset.

These missing papers included the French passes of the two ships he seized. Again, the instructions to the jury were correct: “If Kidd was right that the ship had a French pass, it was legal for him to take it. But if it did not have a French pass, it was an act of piracy.” (transliterated into modern English.)

Perhaps, even as these words were spoken, his lawyers were trying unsuccessfully to locate the papers. The prosecutor’s next words must have galled the captain:

Now what does Capt 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 will excuse him from being a Pirate, for if he takes the Goods of Friends he is a Pirate, he had no authority of that : there is no color from either of his Commissions for him to take them. And as to the French Passes, there is nothing of that appears of any Proof, and for ought I can see, none saw them but himself, if there were ever any. (His Majesty's Commission, 1701, page 34) At the end, in a statement that left Kidd speechless, the judge reprimanded him about his claim of the missing passes:

“If you had anything of Disability upon you to make your defense, you should have objected at the beginning of your trial. What you mean by it now, I cannot tell.” (His Majesty's Commission, 1701, page 32)

For two centuries Kidd was labeled a pirate and mocked for his claim of taking two ships with French passes. Then, in a twist of historical fate, these two French passes were located in 1911. William Kidd had told the truth - the ships for which he was charged with piracy were indeed included under his commission.

Today we call that hiding exculpatory evidence - preventing a person from having access to evidence of their innocence. It was his word against his accusers - and the court had already assumed his guilt.

With sunlight shining on those French passes, the charge of piracy evaporates.

Misrepresentation: Goods Taken From the Ship

Some might contend that it was mere incompetence, not corruption, that accounted for the missing documents. Yet our fifth evidence of intentional corruption is the next set of indictments brought against the ten men. From page 41 to 57 of the trial, in great detail, Palmer and Bradinham testified of the goods sold and the shares distributed among the sailors. The indictment stated they “Piratically and Feloniously did Steal and Carry away:

• Coffee, pepper, myrrh, Arriabian Gold - designated as worth 21 British pounds from Qudah Merchant
• Cotton, 2 horses, 50 quilts and 500 pounds of British money - valued at 585 pounds from the Moorish ship Roupelle/November
• Sugar candy, sugar, tobacco - total value 81 pounds also from Roupelle/November
• Money, opium, rice, beeswax, butter, iron - listed value 76 pounds also from Roupelle/November (His Majesty's Commission, 1701, page 35-38)

The total value amounts to 763 British pounds. The Qudah Merchant alone was valued at 30,000 to 70,000 pounds. If one deducts the 500 pounds of English currency, the goods the sailors sold were only 263 pounds. At no point did anyone attempt to tell the jury that these stolen goods were only about one per cent of the value.

Kidd did try to explain that the mutineers had, by the time these goods were sold, seized control of the ship. Yet, as previously outlined, he was thwarted from discussing mutiny.

They were found guilty of piratically and feloniously stealing.

Fruit of a Poisoned Tree: No Valid Witnesses

In the twenty-two months from his arrest until Captain Kidd’s trial, the government could not come up with a single credible witness. If he had indeed been a “notorious pirate,” why could they not - in nearly two years - find a witness from a captain, a sailor, or a passenger that had been illegally waylaid?

The only two witnesses for all indictments were Joseph Palmer and Surgeon Bradinham - both pirates. Kidd’s servant Barlicorn testified that the surgeon was “as foreward as anyone” in urging piracy. (His Majesty's Commission, 1701, page 11)

William Kidd asked Bradinham, “Did you save your own skin by agreeing to lie in order to take mine.” The prosecutor wouldn’t allow him to answer.

The inability to secure any real witnesses and the use of known pirates constitutes the sixth evidence of corruption.

Gaslighting: Declared Guilty Before The Trial

The overwhelming act of gaslighting on the part of the government is the seventh proof of corruption. For the last three centuries, the name “Kidd” and “notorious” are tightly bound. At the time of his arrest, all of England was against him.

When his ship docked in the Carribean, the crew first learned Kidd was declared a pirate. They saw posters offering pardons to any who turned themself in EXCEPT William Kidd and Henry Avery. Avery was considered “the king of pirates” whose crimes initiated “the golden era of piracy.” He had disappeared years before. By equating Kidd with Avery, his guilt was announced before his trial.

Ask anyone if they ever heard of Captain Kidd and they will undoubtedly agree he was one of the most villanous of all pirates. Then ask them what he had done. He threw a bucket at a mutineer? He took two ships which he was hired to attack - though the proof had mysteriously disappeared? His mutinous crew left him?

If he was a pirate, he was the most unsuccesful one in history.

Injustice: The Real Pirates Were Pardoned

The final piece of evidence that they decided to eliminate him via a rigged trial is demonstrated by the comparison of Kidd with Culliford. Robert Culliford was the more dangerous pirate. He captured dozens of ships, razed towns, and murdered and raped villagers. He, too, was captured and tried. At his trial the same month he, too, was found guilty.

So if William Kidd was hung, what should have happened to the fiercer, more violent buccaneer?

He was pardoned in a plea-deal to help bring another pirate to justice: Samuel Burgess. The arch-pirate testified against the arch-arch pirate.

So what happend to Burgess? He also was pardoned. Burgess went on to become a slave trader. Culliford sailed into the west - free and forgotten.

Culliford 4: Kidd 0.

Refution

The unforgiving public has been reluctant to let Captain Kidd off the hook. Pirate lore is a popular commodity, particularly with a treasure chest beneath it. Hence the critics of Captain Kidd point to four facts to try to maintain his legacy of notoriety.

1. William Kidd associated with pirates.
2. He buried gold and valuables to hide his guilt.
3. Accusations against him were widespread.
4. Three of his crew members pleaded guilty.

Such evidence, we shall see, is weak.

Pirate Associate

Because Kidd had associated with pirates, some claim, he must have been a guilty pirate himself. Indeed, he won his original fame and fortune due to his privateering venture in the West Indies: an area swarming with pirates. His knowledge of their methods was what incited the financiers to choose Kidd in the first place. And while no one has yet proved he ever willingly took part in a pirate-attack, there are several known incidents where he refused to do so. If he was a pirate, he was certainly a reluctant one.

Buried Treasure

“But,” the critics will argue, “what about fact that he buried the treasure? Surely that proves his guilt.”

As a matter of historical record, pirates did NOT bury treasure. John Gardiner turned over Kidd’s chest to government officials who sent it to England. Robert Stevenson picked up on the theme when he wrote Treasure Island, forever creating an association between pirates and buried treasure - and connecting Captain Kidd.

So why would William Kidd leave gold and valuables on the property of John Gardiner?

Very simple: he didn’t trust Governor Bellomont. He had been suspicious of him before he ever set sail.

Prior to the start of the journey, as the legal details of this venture emerged, Kidd had become apprehensive. As with all privateer ventures, the navy and king would share proceeds and the crew and captain would get their cut. But the pirate hunting aspect was different: Bellomont and his anonymous partners were to get an astounding 75% commission. The men who risked their lives at sea would get no salary and share the remaining 25%.

In the trial, Colonel Hewson testified that Kidd had complained before the voyage that Bellomont had threatened to take his ship and prevent him from leaving if he backed out.

“When he went this voyage, he consulted me and told me they had engaged him on such an expedition. And I told him he had enough (ie money) already, and might be contented with what he had. And he said that was his own inclination; but my Lord Bellamont had told him, if he did not go this voyage, that there were great men and they would stop his brigantine in the river, if he did not go.” (His Majesty's Commission, 1701, page 47)

Bellomont was, indeed, shady. His carefully contrived plan was that all captured ships were to sail to New York, not London, and away from the scrutiny of the nosy Admirality. (Source: Dalton, 1911. Page 239)

William Kidd’s wariness was correct. It was Bellomont who had him arrested in spite of offering him clemency. It was Bellomont who seized the documents that proved his innocence. Bellomont even imprisoned Mrs. Kidd and took away her entire estate, though she had no part in the venture, and owned her estate before she married William. It was Bellomont who begged the British government to give him a share of the goods he unwillingly sent with his prisoner to England. Bellomont, desperate for a piece of a rapidly shrinking pie, started the legacy of missing treasure.

Bellomont, as a whole, was a failure of a govenor. His only successful act was having William Kidd arrested. Kidd was right to think that - even if he had not been arrested - Bellomont would have arranged to take all of the goods and deprive him and his crew of any reward for their years of labor.

In spite of his suspicion, Kidd was eager to clear his reputation, choosing to face the governor and rejecting the council to flee. If he was a pirate, he was a very naive one.

Widespread Suspicion Throughout the Empire

Another justification for Kidd’s guilt is the fact that the entire British empire was against him. How could that many people be wrong?

Since the time Commodore Warren sent out the bulletin that Kidd had decided to turn pirate off the coast of Africa, all of history agreed.

In 1724 Charles Johnson, an early pirate historian, stated Kidd made the decision to turn pirate as he rounded the Cape of Good Hope. (Source: Johnson, 1724. Page 65-80) That timing was based on Warren’s claims - not on Kidd’s.

In his 1834 History of Buccaneers, John Abbott wrote: “Captain Kidd had probably, in his silent thoughts, decided to turn freebooter. Though as yet he had divulged his secret to no one, and had committed no overt act, he had passed the Rubicon, and was in heart a pirate.” (Source: Abbott, 1874, page 42) The only problem with the testimony of these confident mind readers is they have no proof of what Kidd thought.

With the French passes still missing, he declared this about Kidd’s seizure of the Qudah Merchant:

Kidd received them in his cabin, and upon inquiry ascertained that the ship and cargo belonged to Mongol merchants; that they had intrusted the command to a Dutch captain, as was not unfrequently the case in those days, and that the French gentleman was merely a passenger accidently on board, passing from one port to another.

These tidings, to use a sailor’s phrase, “struck him all aback.” Holland, as we have mentioned, was England’s ally. The Great Mogul was England’s friend. Kidd must release the ship, or confess himself a pirate and an outlaw, and run the imminent risk of being hanged should he ever return to England. For a moment he seemed lost in thought, bewildered. Then his wicked mind, now rapidly descending into the abyss of sin and shame, rested in a decisive resolve. (Abbott, 1874, page 50)

Since the French passes were still missing in 1834, perhaps Abbott can be forgiven. But for the past one hundred years authors continue to write that he decided “to turn to piracy” at that magic moment when he rounded the Cape of Good Hope. How would they know he decided to become a pirate then? Because all his contemporaries said so.

But which contemporaries were against him? The navy despised the arrogance of the colonial upstart who would not bow to them. The East India Company felt threatened by the king’s commission in an ocean they thought belonged to them. The Indian merchants who had no use for European wars were not at all pacified that the captured ships bore French passes.

And the ruling party: the Whigs? When the names of Bellomont’s partners were disclosed, the entire country was scandalized:

• Sir John Somers: Lord Chancellor and Keeper of the Great Seal
• Admiral Edward Russell: First Lord of Admirality
• The Duke of Shrewsbury, Charles Talbot: Secretary of State
• The Earl of Romney, Henry Sidney: Master General of Ordnance
•           And finally: King William. (Dalton, 1911, pg 30)

The entire court was in jeopardy, the East India Company officials in jail, and the monarchy itself threatened.

In fact, herein lies another proof of his innocence. The Tory party was waiting for him to implicate the king and his Whig court. All Kidd had to do was state that the Whigs had told him to steal other ships and they would offer him a pardon. (Gray, 1933, page 206) But Kidd wouldn’t do it: even as the noose was slipped around his neck, he denied piracy.

If he was a pirate, he was a principled one.

Three sailors pled guilty

The final dispute against Kidd’s innocence is the fact that three of the nine mariners tried with him had pled guilty and claimed the right of a pardon. They responded to the king’s December 8, 1698 offer of a pardon to all pirates who would turn themselves in to Commodore Warren before July 31, 1699. They rightfully expected they would get more leniency if they surrendered and declared themselves guilty.

Hence, these three pled guilty and requested the pardon Even then the trial solicitor would not acquit them - stating the pardon didn’t mean they couldn’t be tried - merely that the punishment should not be meted out if they qualified for the terms offered.

Then, in another shady act, he declared the three men were not qualified for the pardon because they had not submitted themselves to any of the four officials named in the offer. These were Commodore Thomas Warren, Israel Hayes, Peter Dallanoye and Christopher Pollard, most of them at sea. This is equivalent to someone turning themselves over to the local police because there is no FBI office in their town.

They were found guilty.

In fact this strengthens the proof of corruption: the officials respected neither the pardon they had offered or a reduced sentence in exchange for a guilty plea. For years to come pirates ignored offers of pardons due to the court’s response to Kidd’s crew. (Gray, 1933, page 207)



But, just for the sake of argument, let’s agree with the mind-reading critics. Imagine the French passes didn’t exist and Captain Kidd seized two unauthorized ships. He displayed his commission knowing it was invalid - like a bank robber flashing his driver’s license - and then released everyone unharmed.

If he was a pirate, he was a dumb one.

Peroratio

He stood at his trial and at his execution the man he always been: a seaman, a Scottsman, a colonial - a mere commoner against powerful men who used him in a secret plan to enrich themselves. His written statement and verbal explanations remained consistent with the facts. Their excuses did not.

Imagine today if a government created an anti-theft division. They confiscated all stolen goods, sold them, and distributed the profits to themselves. That was the plan of Bellomont and the anonymous other lords.

Some say Kidd was unlucky. To say he was unwise is perhaps more accurate. Privateering was an all around bad business: no purchase/no pay, perpetual wars, conscription, a powerful corporation struggling to maintain control, a ruling class that disdained commoners, and the ever-present stench of human slavery. Kidd’s instincts told him to bail as details emerged; Bellomont’s threats prevented him from doing so.

He should have listened to his instincts. He lost the Antigua anyway - and so much more. He did not fear death, he said, but he hated the dishonor to his reputation which he valued highly.

If he was a pirate, he was an honorable one.