By Manushag N. Powell, Purdue University
The history of the pirate, Henry Every, is an excellent illustration in how trial by jury can go wrong. The trial of six of Henry Every’s pirates, the only ones of his considerable gang ever convicted, first ended in a hung jury, embarrassing the English government. These were not especially intrepid or sympathetic pirates. Instead of staying like many of their fellows in the pirate-friendly colonies, they happened to be snapped up by an Irish sheriff while trying to flee to Mayo County.
Every and the East India Company
The government was determined to make an example of the handful of Henry Every’s pirates they had, though. Both to reassure Aurangzeb, the Mughal emperor whose vessel every man had attacked, and to prevent the East India Company from going rogue in its capitalistic distress. One man among them, Joseph Dawson, pleaded guilty. The rest said they were not guilty, and so to trial they went. The concerns and loyalties of the judges and attorney general were made clear from the start.
Sir Robert Newton, the prosecutor, warned the jury men in as many words that if Every were not convicted as a pirate, the East India Company might lose all its Indian trade entirely. The jury responded by acquitting everyone on all charges. It turned out they were far less the patriotic fans of that monopolistic behemoth than Newton had been banking on.
The public record of that first humiliating trial is purposefully incomplete.
Convicted and Dutifully Hanged
The government was mortified. Since the pirates had been acquitted of attacking Aurangzeb’s ship, the Ganj-i-Sawai (which they most certainly had done), they were hastily tried a second time now for the original theft of their flagship, the Fancy. It next turned out, much to the justice’s annoyance, that some of the original company-hating jurors had been seated among the new jury. They were removed. Judge Hedges harangued the new jury that if they screw up like the last set had, “barbarous nations will reproach us as being a nest of pirates, which was not untrue”.
This time the jury convicted. They must have set aside the little bit of awkwardness created when evidence on which the men had just been acquitted was reintroduced as proof of their original piratical intent. The men were dutifully hanged, except for Dawson, who had calculated better on the government’s attitude than his fellows had. He was pardoned for owning his mistakes.
This article comes directly from content in the video series The Real History of Pirates. Watch it now, on Wondrium.
The Navigation Act of 1696
What Every had done reached far beyond the two trials of those unfortunate half dozen, however. New law was made to deal with the embarrassments he’d set off and the outrage of both Aurangzeb and the British Board of Trade. The Navigation Act of 1696 was created, in large part, to deal with Every’s muddle. The act helpfully provided for the creation of colonial courts, presided over by the vice Admiralty.
However, it forgot to patch up a requirement, dating back to Henry VIII, that pirates had to be tried under English Common law, in London. The colonial courts could only arrest them and send them back to England for a trial. The one exception was in Jamaica, where the Assembly passed a 1681 act, providing for local jury trials for pirates. Even then, the juries could be unruly, even willing to nullify, and pirates could also just flee to the Bahamas to avoid them entirely.
The 1700 Anti-piracy Act
This mess was somewhat remedied by the 1700 Anti-Piracy Act, spurred on in part because of the also very embarrassing outrages of Captain Kidd, which allowed for pirates to be tried by special session almost anywhere in the world and without benefit of a jury or benefit of clergy; which allowed for someone found guilty to seek a reduced sentence by passing a nominative test.
The 1700 Act was quickly followed by a failed attempt to pass the 1701 Reunification Bill, which would have abolished a great deal of colonial self-government in favor of direct parliamentary control. It included a clause that colonies, who thumb their noses at the Piracy Act, could lose their charter.
Captain Kidd’s Trial
These reforms were aimed at increasing the efficiency of pirate hunting, not an increasing transparency or justice as Kidd’s 1701 trial demonstrates. For political reasons, Captain Kidd was, even more than most accused pirates, subject to a prejudiced and inequitable trial.
The foregone nature of his trial have led many Kidd historians and biographers to throw their sympathies in with him. For one thing, it’s felt to be strongly possible that a piece of evidence Kidd wanted badly, the French passes from two of the ship’s he’d taken, including the Quedagh Merchant with its Armenian crew, was intentionally held back to harm him.
Even if it arrived at the correct conclusion, Kidd’s trial was fairly brutal. The opening minutes read to modernize like a parody in which Kidd, having received all of two weeks’ notice of his trial date, begged for legal counsel and for time to procure evidence in his defense instead of entering his plea.
Even the pamphlet covering Kidd’s trial, which was published as a matter of course, like other major business from the old Billy, was unusual in that it included as an appendix copies of his two commissions. Apparently, it was to make it better for the public to judge how he had exceeded the bounds of the privateering he’d been authorized to do. In reality, Kidd was pretty definitely guilty of both murder and piracy and was pretty unrepentant about it, too, even if the wheels of justice were indifferent to his real state of guilt.
Common Questions about the Theatrics of Piratical Justice
Sir Robert Newton warned the jury men in as many words that if Every were not convicted as a pirate, the East India Company might lose all its Indian trade entirely.
The Navigation Act of 1696 forgot to patch up a requirement that pirates had to be tried under English Common law, in London.
The 1701 Reunification bill included a clause that colonies, who thumb their noses at the Piracy Act, could lose their charter.
