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Trials, Evidence and Defence Rights

How an accused pirate of about 1690 to 1725 was charged, tried and sentenced under two machineries, the common law jury trial of 1536 and the juryless colonial commission court of 1700, with the rules of evidence each applied and what an accused could do in his own defence.

Also writtenPiracy trials; Pirate trials; Commission courts for the trial of pirates; Courts of Admiralty under the Act of 11 and 12 William III; Admiralty sessions of oyer and terminer under 28 Henry VIII c. 15; The forced man defence

Two separate machineries tried piracy between about 1690 and 1725, and most popular statements about pirate justice are true of one and false of the other.

Two machineries

The older came from the Offences at Sea Act of 1536, 28 Hen. 8 c. 15, which took piracy from the Admiral's civil law court and gave it to commissioners of oyer and terminer. They tried it at common law, on a grand jury indictment and the verdict of twelve. It acquitted Henry Every's men at the Old Bailey in October 1696 and convicted them a fortnight later; William Kidd stood under it in 1701.1

The second was made because the first had failed in the plantations. The Act for the more effectual suppression of piracy, 11 Will. 3 c. 7, assented to in 1700, let the Crown commission courts of Admiralty in its colonies and forts rather than ship offenders home for trial. Those courts had no jury. Each "shall consist of Seaven Persons at the least", its members, in the statute's own classes, merchants, factors, planters, sea officers and shipmasters: a bench of the class the trade robbed. Judgment followed "according to the Plurality of Voices". Boston in 1717 and 1726, Cape Coast Castle in 1722 and Newport in 1723 sat under it.2

What the statute gave the accused

The juryless court was in some respects more generous than the English felony trial of those years. The prisoner declared his questions and the president put them to the Crown's witnesses. He could bring witnesses "who shall be sworne and examined upon Oath as the Witnesses were that testified against him", which an English felony defendant is generally said not to have obtained until 1702, and was then "fairly heard what he can say for himselfe". One clause ran the other way: silence was conviction, where the Old Bailey pressed a mute defendant under weights.2

Counsel, the charge and the witness list

At Boston in 1717 the court went further still. Before plea the prisoners "prayed the Court, That they might have the benefit of Council", and it was granted. Thomas Davis, arraigned separately, was assigned an attorney, served with the indictment "with the Names of the Witnesses annexed", and given two days to prepare. In England a copy of the indictment and the witness list were rights of a treason defendant after 1696 and of no felon, and counsel was refused to Kidd in terms. The statute says nothing of counsel, and no such application is recorded at Newport in 1723 or at Boston in 1726.3

What the accused could not do

Evidence had to come from living mouths: an affidavit favourable to Davis, sworn before a notary in Britain, was rejected as "contrary to Act of Parliament, which directs that all Evidences respecting Pirates shall be given into Court Viva Voce". Under either machinery a man could not compel a witness or reach one across an ocean; William May, tried at common law in 1696 with his witness at Virginia, put it in one sentence: "I cannot have my Witnesses for me." Davis, in gaol and not yet indicted, was refused as a witness for his shipmates; eight days later Thomas South, himself just acquitted, was sworn against him for the King.4

The civil law of proof

James Smith, Advocate General at Boston in October 1717, set out that standard fullest. Two witnesses to one fact "are not required in proving a crime by the Civil Law" where the crime is reiterable, "as in Adultery, Piracy, and Robbery". Presumptions were good proof in crimes secretly committed, joined so that those too weak alone "fall upon his head like a Storm of Hail and overwhelm him." He then quoted authority against himself: proofs should be "as clear as the Sun", and "it is better that a guilty man pass Unpunished, than that an Innocent man should be Condemned".5

The forced man, and the three circumstances

One defence was entered at every one of these trials, by men who cannot have compared accounts: that they were forced. Edward Foreseith said it in 1696 and was told "You all compell'd one another." The prosecutor at Boston in 1726 called it "that Hackney Defence made by every Pirate upon Trial". The courts tested it on conduct: had a man grieved before his victims, had he tried to get away ashore. Two prisoners at Newport produced owners' newspaper advertisements as proof of duress; the same class of proof produced opposite results in one sitting, Swetser acquitted and Libbey hanged, because the evidence of their conduct differed.6

The working test is clearest at Cape Coast, in the proceedings as the 1724 General History of the Pyrates prints them. There the court heard evidence on "the three Circumstances that compleat a Pyrate": volunteering at the beginning, at a taking, or in accepting a share of the booty. The same book has the bench acquit Roberts's mate Harry Glasby because "Artists had the best Pretension to the Plea of Force", and meet compulsion with the company's own constitution: those were "still your own Acts, since done by Orders from Officers of your own Election". The words are a compiler's, and how far they follow the court's own record is unsettled.7

Acquittals, and the numbers that will not close

The foregone verdict is refuted by the courts' own figures: across the five proceedings whose printed tallies survive complete, 258 persons were tried and 100 acquitted, an earlier count giving 259. At Cape Coast Castle the 1724 column gives 74 acquitted against 52 executed out of 165 dealt with. Five well recorded courts are not a general rate. Joseph Gibbs's 2019 sampling of trials from 1670 to 1731 found them "rapid affairs, few extending beyond a single calendar date".8

A standard modern narrative holds that vice admiralty courts had no juries; for the Charles Town proceedings of 1718 the 1724 book, the printed trial's title page and that court's public history all contradict it. Whether Judge Trott sat under the older statute instead is unsettled.

What the proceedings preserve

These proceedings are, on four counts, probably the best documentary evidence of golden-age piracy that survives: contemporaneous, usually within weeks; sworn; adversarial, so a statement has been tested by someone interested in contradicting it; and preserving the words of ordinary seamen, who otherwise wrote nothing. Edward Low's articles survive in the Newport pamphlet, attested in court by the acquitted surgeon, and the forced men and the ages and birthplaces of ordinary crews come out of printed trials. So do their limits: they are prosecution publications, and the courts asked about robbery, so pirate institutions appear in them only incidentally.

Everything here rests on one statute and five printed proceedings. Nothing in the High Court of Admiralty series, and none of the returns the 1700 Act required the colonial courts to send home, has been read, so how far the pamphlets are edited is unknown. Whether the grant of counsel at Boston in 1717 was usual, and why these courts acquitted as often as they did, remain open; and the surviving transcription of the Newport trial is illegible at dozens of points, including in the prosecutor's key sentence on the forced man plea.

What the evidence does not settle

Jury practice at Charles Town, 1718

  • Judge Trott may have tried the case under the 1536 statuteLikely

Grant of counsel at Boston, 1717

  • Whether Boston's 1717 grant of counsel was usual is unknownUnverified

Trial and acquittal totals

  • Total tried across five proceedings is given as 258 or 259Very likely

Each line is one question with its own grade, taken from the register where a claim carries it. Nothing here is graded as a whole.

Sources for this record

Every statement above that rests on a checked claim carries a small number; the numbers lead here. Each entry gives what is claimed, how far the record supports it, and where it comes from.

  1. Piracy was tried in this period under two distinct machineries, the common law jury trial before commissioners of oyer and terminer under the Offences at Sea Act of 1536, 28 Hen. 8 c. 15, which tried the offence on a grand jury indictment and the verdict of twelve as though it had been done on land, and the juryless colonial commission court created by the Act for the more effectual suppression of piracy of 1700. Likely More likely than not on the evidence we have. Statute text and period printed narrative: An Act for the more effectuall Suppressions of Piracy, 11 Will. 3 c. 7, Statutes of the Realm VII, pp. 590 to 594; A General History of the Pyrates, second edition, London 1724, appendix abstract of 28 Hen. 8 c. 15
  2. The Act of 1700 let the Crown commission courts of Admiralty in its colonies and forts rather than ship accused pirates home for trial, required each court to "consist of Seaven Persons at the least" drawn from known merchants, factors and planters and from sea officers of the navy and the merchant service, directed judgment "according to the Plurality of Voices" on a poll of the bench, and gave the prisoner cross examination through the president, witnesses "sworne and examined upon Oath as the Witnesses were that testified against him" and the right to be "fairly heard what he can say for himselfe", while treating a prisoner who would not plead as having confessed. Confirmed Directly supported by the record. Statute text: An Act for the more effectuall Suppressions of Piracy, 11 Will. 3 c. 7, sections I to V, Statutes of the Realm VII, pp. 590 to 594
  3. At the Boston court of admiralty of October 1717 the prisoners "prayed the Court, That they might have the benefit of Council" before plea and the request was granted, and Thomas Davis, arraigned separately, was assigned an attorney on his own motion, served with a copy of the indictment "with the Names of the Witnesses annexed" and given two days to prepare, none of which an English felony defendant of those years could claim, though the statute is silent on all three and no comparable application is recorded at Newport in 1723 or at Boston in 1726. Unverified Reported, not yet checked against the record. Trial pamphlet: The Trials of Eight Persons Indited for Piracy, Boston, printed by B. Green for John Edwards, 1718, Evans-TCP N01688, for the Boston grants; the comparison with the English felony trial rests on modern accounts of Old Bailey procedure
  4. The same court rejected an affidavit sworn before a notary in Great Britain and favourable to Thomas Davis as "contrary to Act of Parliament, which directs that all Evidences respecting Pirates shall be given into Court Viva Voce", and refused to let Davis, then in gaol and not yet indicted, testify for his shipmates on the ground that an accomplice in custody could not lawfully be a witness for prisoners, while eight days later Thomas South, acquitted on 22 October, was sworn as a witness for the King against Davis. Unverified Reported, not yet checked against the record. Trial pamphlet: The Trials of Eight Persons Indited for Piracy (Boston, 1718), Evans-TCP N01688
  5. James Smith, Advocate General at Boston on 30 October 1717, set out the civil law of proof under three heads, holding that confession was "the strongest and surest proof in Law", that two witnesses concurring in one fact "are not required in proving a crime by the Civil Law" where the crime is reiterable, "as in Adultery, Piracy, and Robbery", and that presumptions joined together "fall upon his head like a Storm of Hail and overwhelm him", while quoting in the same speech the authorities that a charge wants proofs "as clear as the Sun" and that "it is better that a guilty man pass Unpunished, than that an Innocent man should be Condemned". Unverified Reported, not yet checked against the record. Trial pamphlet: The Trials of Eight Persons Indited for Piracy (Boston, 1718), Evans-TCP N01688
  6. The plea that the accused was a forced man was entered in every printed proceeding behind this record, Edward Foreseith being answered at the Old Bailey in 1696 with "You all compell'd one another" and the Advocate General at Boston in 1726 attacking it as "that Hackney Defence made by every Pirate upon Trial", and the courts tested it on evidence of conduct, two prisoners at Newport in 1723 producing newspaper advertisements placed by their owners as documentary proof of duress, of whom Joseph Swetser was acquitted and Joseph Libbey convicted and hanged. Confirmed Directly supported by the record. Trial pamphlets: The Tryals of Joseph Dawson, Edward Forseith, William May, William Bishop, James Lewis, and John Sparkes, London 1696, EEBO-TCP A63217; Tryals of Thirty-Six Persons for Piracy, Newport, printed by Samuel Kneeland, Boston 1723, Evans-TCP N29929; The Tryals of Sixteen Persons for Piracy, Boston 1726, the printed proceedings against William Fly's company
  7. The 1724 General History of the Pyrates, a compiler's printing and not a court publication, carries the Cape Coast Castle proceedings of 1722 in which the court resolved to hear evidence on "the three Circumstances that compleat a Pyrate", namely volunteering at the beginning, volunteering at a taking or robbing, and voluntarily accepting a share of the booty, held that "Artists had the best Pretension to the Plea of Force" in acquitting Bartholomew Roberts's mate Harry Glasby, and answered pleas of compulsion by ruling that the acts were "still your own Acts, since done by Orders from Officers of your own Election". Unverified Reported, not yet checked against the record. Period narrative printing court material: A General History of the Pyrates, second edition, London, printed for and sold by T. Warner, 1724, the Cape Coast Castle trial section; A General History of the Robberies and Murders of the Most Notorious Pyrates
  8. Across the five proceedings 258 persons were tried and 100 acquitted by the register's tabulation, an earlier count giving 259. Very likely Strong evidence, short of proof. Trial pamphlets, period narrative and arithmetic performed on them: A General History of the Pyrates, second edition, London 1724, the Cape Coast disposal column and the Charles Town lists; Tryals of Thirty-Six Persons for Piracy, Newport 1723, Evans-TCP N29929; The Trials of Eight Persons Indited for Piracy, Boston 1718, Evans-TCP N01688; The Tryals of Sixteen Persons for Piracy, Boston 1726, for the Boston figures of that year