Fighting piracy, however, was not solely the province of Annesley’s “salt-water faujdar”; with eight members of Every’s crew in custody, the Crown could now make a public case against these enemies of all mankind in the strongest terms possible. The romantic myth of swashbuckling Captain Every had been spread by the balladmongers and pamphleteers. The government, however, had a tool at its disposal that the emergent popular press lacked: a criminal trial.
To be sure, the popular press thrived almost parasitically off the drama and lurid details that criminal trials provided. (A large number of the “ballads” sung by the balladmongers were effectively homicide trial transcripts set to music.) But the barkers and proto-journalists couldn’t control the trial itself; they could only transmit it, albeit with the usual distortions designed to make the story more salacious to their consumers. In a public trial, the government would be given a megaphone—most powerfully in the opening and closing statements of the prosecution—to establish what the historian Douglas R. Burgess Jr. calls a “dominant historical narrative of piracy”:
The crown and its Board of Trade had an image crisis. England was perceived as a “nation of pirates” and was now learning (to its chagrin) that this charge was true, at least in the colonies. Of paramount importance, superseding even the enormity of doing justice to Every’s men and re-establishing relations with the Mughal, was to use the trial as a means for making the government position crystal clear: pirates were hostis humani generi . . . not merely enemies of England but of the entire world. It placed the Every pirates in the highest echelon of international criminals and committed the English state to regarding their eradication as a first priority.
The criminal trial also offered the state another key resource in establishing that “dominant historical narrative”: capital punishment. The spectacle of Every’s men dangling on Execution Dock would send an unequivocal message to the world that England had no tolerance for the international criminals behind the Gunsway attack.
All these elements gave the English state a commanding platform not just in a court of law, but, just as important, in the broader court of public opinion—what the German sociologist Jürgen Habermas famously called the “public sphere,” the emerging realm of coffeehouse debate, pamphleteering, and sidewalk oration that would play such a defining role in the Enlightenment culture of the eighteenth century. But all those tools—the public theater of a criminal trial, the spectacular violence of a state-sponsored execution—were themselves dependent on recent shifts in the legal jurisdiction that governed cases of piracy. Because the crimes committed by pirates were almost always committed far outside the geographic domain of British law, they had historically been treated as civil law cases adjudicated by the Admiralty. Those trials were not open to the public; they granted the defendants extensive legal representation; and, crucially, the Admiralty lacked the authority to issue death sentences. A late-seventeenth-century criminal trial under English common law, on the other hand, shifted the entire balance of power toward the state: not only was capital punishment on the table, but the accused were not allowed to have their own counsel. Trained experts delivered the case for the prosecution, while the defense was supported exclusively by the limited legal expertise of the defendants themselves. And criminal trials could be attended by the general public, their twists and turns and dramatic resolutions transformed into a theatrical narrative by the pamphleteers and balladmongers.
Over the course of the 1600s, as it became increasingly clear that the civil law precedent for piracy cases was limiting the government’s ability to successfully prosecute pirates, a series of legal reforms were set in motion, creating a special class of piracy-related crimes that would exist in a strange dual state: technically defined as civil law crimes under the jurisdiction of the Admiralty, they would nonetheless be prosecuted in common law courts, thanks to their extreme nature and the threat they posed to the stability of the English nation and to its trade relations. Had Every’s gang committed their crimes a century earlier, the trial would have been a far weaker vehicle for establishing a dominant narrative about piracy—and the men themselves would have had no fear of execution. At the same time, the shift to common law did give the pirates one potential advantage: common law trials were decided by a jury. The pirates’ innocence or guilt would be determined not by the elder statesmen of the Admiralty who were predisposed to revile piracy in all its forms, but rather by a jury of ordinary citizens, whose attitudes toward piracy were shaped by the balladmongers and pamphleteers more than the venerable legal tradition of hostis humani generis.
Then there was the question of witnesses. None of the actual victims of the Gunsway attack were available to testify, of course. And a jury of ordinary British citizens circa 1696 would be unlikely to find a Muslim merchant’s account of being robbed at sea particularly sympathetic. (As for the sexual violence on board the Gunsway, rape trials were infrequent in seventeenth-century England, and effectively nonexistent if the victim happened to be a foreigner.) If the prosecution was going to make a compelling case for executing Every’s men, they would need eyewitnesses drawn from the pirate’s gang itself. In other words, they needed to compel at least one of the men in custody to flip.
Fortunately for the state’s case, they found such a turncoat in the very first man they had managed to capture: John Dann. It is unclear what means the authorities used to extract a confession from the Rochester pirate, but within days of having the Turkish coins discovered in his jacket, Dann had offered a full account of the Every gang’s predations. On August 3, Dann delivered a sworn testimony that relayed the entire sweep of the previous two year’s events, from the initial mutiny in Spain to the Indian Ocean attacks to the safe harbor provided by Nicholas Trott—all the way to Dann’s arrival with Every in Ireland. The very next day, the Lords Justices in Ireland would hear a similar testimony from Philip Middleton. (Subsequent court committee minutes from East India House reveal that the company made several payments to Middleton’s mother to compensate him for testifying against his mates.) Thanks to the legal reforms of the preceding decades, the government had a legal platform that allowed them to demonstrate to the world just how abhorrent piracy was to British values. Now, with Dann and Middleton talking, they had something else: evidence.
With the star witnesses in place, one final question remained for the government to resolve: Which crimes in particular should the prisoners be charged with? The list of potential offenses was long. They had committed mutiny against a British captain and stolen a ship of force owned by prominent Londoners. They had committed acts of piracy on board the Fath Mahmamadi and the Gunsway; they had raped and tortured the men and women aboard those ships; they had stolen from the English and the Danes in the summer of 1694; they had burned a mosque in Maydh.
The government took several months to prepare its line of attack. In the end, the objective of extinguishing England’s reputation as a “nation of pirates” won out. In consultation with the Lords Justices and the Admiralty, the lead prosecutor, Dr. Henry Newton, opted to orient the charges around the offenses committed against the Grand Mughal. It would be a show trial with a global audience, giving the state—and its collaborators at the East India Company—the opportunity to display to the entire world that piracy would be given no quarter by the British government.
The six men put on trial in October 1696 were guilty of many crimes, but the indictment read against them would only mention one: “feloniously and piratically taking, and carrying away, from persons unknown, a certain ship called the Gunsway.”
29
THE GHOST TRIAL
Old Bailey, London
October 19, 1696
The northern stretch of Old Bailey road, just inside the original boundaries of the City of London, has ties to the justice system that date back almost a thousand years. The Romans had built one of their seven main gates into the city there, and sometime in the twelfth century
, that stretch of the wall was reengineered to house a small prison for debtors and felons. Over time, it came to be known as Newgate Prison. A few centuries later, a medieval courthouse rose on the site, allowing easy transfer of accused and convicted criminals between their trials and their jail cells. The courthouse took its name—Old Bailey—from the wall itself: a “bailey” is the outer enclosure of a castle or a fort. The original courthouse burned to the ground in the fire of 1666. Seven years later, a three-story Italianate courthouse replaced it. An etching from 1675 shows the building’s most distinctive feature: the main ground-floor courtroom opened on its eastern side to an outdoor area called the Sessions House Yard. The courtroom had been left open to the elements as a hygienic measure; typhus was so rampant in Newgate Prison that it had acquired the nickname “gaol fever,” and it was thought that keeping the courtroom flushed with fresh air would protect the lawyers and magistrates from contracting the disease. As a public health intervention, the open-air design had little effectiveness. (Typhus is largely transmitted by the bites of fleas and ticks.) But the architecture of the courthouse had a meaningful impact on the legal system’s relationship to the public itself: because the courtroom was open to the elements, crowds of spectators and reporters could gather on the street and follow the proceedings of high-profile trials, sometimes heckling and jeering. More than a few juries were swung by the sound of the mob outside in Sessions House Yard.
The crowds gathered early outside Old Bailey on the morning of October 19, eager to catch a glimpse of the notorious Every gang—and even better, to overhear some of their testimony. In the public space in front of the courthouse, the witnesses John Dann and Philip Middleton mingled with onlookers and court personnel, waiting to be admitted into the courtroom. A brick wall crowned by iron spikes separated Dann and Middleton from six of their former shipmates, clustered together in a space known as the bail dock. Most of them had been in prison, awaiting trial, for more than a month.
Standing in the bail dock, the prisoners could hear the bailiff announce the names and titles of the justices who would oversee the case. The names were likely meaningless to the uneducated seamen, but anyone familiar with Britain’s legal system at the time would have immediately recognized how formidable the list was. Sir Charles Hedges, Judge of the High Court of Admiralty, would preside over the case, accompanied by Sir John Holt, the Lord Chief Justice of the King’s Bench, the branch of the judicial system that dealt with cases that involved the king himself in some fashion. Chief Justices from the Court of Common-Pleas and the Court of the Exchequer—courts that oversaw common law cases involving private property, such as theft—were seated at the bench as well. The most powerful and accomplished justices, drawn from all the major branches of the English judicial system, had gathered at Old Bailey to oversee the pirate trial. Isaac and James Houblon’s brother John, former Lord Mayor of London and inaugural governor of the Bank of England, observed the proceedings as well, accompanied by other dignitaries.
Such exceptional legal firepower had been assembled not to ensure a fair trial for Every’s men, but rather to ensure a conviction. The Lords Justices presiding over the trial were the same ones who had issued the original proclamation in July denouncing Every as a “common pirate” who had done “great Damage to the Merchants of England.” The justices had worked as partners with Isaac Houblon and the special committee of the East India Company to broadcast news of the manhunt for Every to the farthest reaches of Britain’s trade networks; they had welcomed the company’s £500 reward for Every’s capture. (Earlier in 1696, Judge Hedges had summarily dismissed the lawsuit by the unpaid crew of Spanish Expedition Shipping, ruling in favor of James Houblon and the other investors in the doomed venture.) While technically the prosecution of the pirates would be led by Henry Newton, Justices Hedges and Holt would actively participate in the interrogation of Every’s men, making no pretense of their disposition in the case. To translate it into a modern context, imagine if the O. J. Simpson case had been tried in front of the United States Supreme Court, with the judges blithely arguing the prosecution’s case—and interrogating Simpson himself—from the bench. This was the legal environment that the Every gang found themselves confronting that October morning in Old Bailey.
Judge Hedges began the proceedings by delivering his initial instructions to the grand jury. They were to provide (or withhold) a “billa vera” approving the indictment. While six men were standing in the bail dock, the indictment was read against seven: the middle-aged steward William May; nineteen-year-old John Sparkes, Edward Forsyth, William Bishop, Joseph Dawson, James Lewes—and one Henry Every. (The subsequent court documents appended a curt “not taken” to explain his absence at Old Bailey.) Judge Hedges gave the jury a brief summary of the facts, explained the unusual hybrid legal jurisdiction that applied to piracy, and dispatched the jurors to assess the plausibility of the prosecution’s case. According to the court records, the grand jury returned after “a little time” with an indictment. At Hedges’s command, guards ushered the six defendants into the courtroom, to stand trial for their crimes against humanity.
The architecture of the courthouse was explicitly designed to channel and concentrate the flow of power within the space. The decor of the room magnified the authority of the state, with heralds and crests testifying to the solemn authority of the Crown. Nautical icons—including three anchors on a tapestry displayed beneath the bench—signaled the presence of the Admiralty. Rebuilt from scratch only a few decades earlier, the Old Bailey courtroom would almost certainly have been the most richly appointed room the defendants had ever set foot in. And their placement in the room only emphasized their status as outsiders. The judges towered above the prisoners from a dais. A mirror hung above them, reflecting the sunlight streaming in from Sessions House Yard directly into their eyes. The explicit purpose of the contrivance was to illuminate the facial expressions of the accused so that the jury could better assess their honesty or contrition. (Sounding boards also amplified their speech.) On the rare sunny day in London, the effect could be blinding. But even in the city’s usual gloom, the message was unmistakable: the accused were on a stage, under surveillance, examined by the discerning eye of the state.
Standing at the bar, the prisoners listened as Judge Hedges read the indictment against them. Five of them maintained their innocence. Only Joseph Dawson pled guilty.
After the swearing in of the petty jury, the chief prosecutor, Henry Newton, in powdered wig and ruffled white collar, rose and launched into his opening statements. Echoing the language of the indictment itself, Newton began with the crimes the accused had committed against Aurangzeb: “The prisoners are indicted for piracy, in robbing and plundering the ship Gunsway belonging to the Great Mughal and his subjects, in the Indian Sea to a very great value.” He then relayed a short synopsis of Henry Every’s career as a pirate: the mutiny in Spain, the “many and great piracies” in the Atlantic and Indian Oceans, leading up to the Gunsway attack.
The facts of the case outlined, Newton then turned to the key argument: England would not tolerate piracy. Here he borrowed extensively from the argument that John Gayer had been making from Bombay Castle for the preceding year: if England wanted to profit from its trade with India, if England wanted to engage in reliable commerce with any nation in the world, the country needed to denounce piracy in the strongest way possible. The Gunsway heist, Newton explained, was “likely to be the most pernicious in its consequences, especially as to trade, considering the power of the great Mughal, and the natural inclination of the Indians to revenge.” But the jury possessed a unique opportunity to remedy those “pernicious consequences,” by delivering “that judgment from you their crime deserves.” The crime in question, Newton argued, was in its nature far more serious than conventional robberies, because it threatened not just an individual’s property rights, but also the growing network of global trade:
Piracy . . . by so much exceeds Theft
or Robbery at land; as the interest and concerns of kingdoms and nations are above those of private families or particular persons. For suffer pirates and the commerce of the world must cease, which this nation has deservedly so great a share in, and reaps such mighty advantage by. And if they shall go away unpunished when it is known whose subjects they are, the consequences may be to involve the nationals concerned in war and blood, to the destruction of the innocent English in those counties, the total loss of the Indian trade, and thereby, the impoverishment of this kingdom.
The last lines of Newton’s opening statement might as well have been lifted directly from Gayer’s anguished missives to the East India Company directors back in London. If the jury did not perform its sworn duty and bring the Every gang to justice, Newton argued, the consequences would extend far beyond letting a group of guilty men walk free. It would lead to the “impoverishment of this kingdom.”
The stakes of the trial thus established, the prosecution called its two key witnesses. John Dann and Philip Middleton were escorted to the witness box, directly opposite the defendants standing at the bar. Just a few months before, all eight men had been toasting to the success of their heist on a tropical island; now they stood face-to-face in the Old Bailey courtroom, antagonists. Whatever solidarity had held their pirate collective together for the past two years had evaporated under the threat of Execution Dock. They were sworn enemies now.
We do not know what transpired in the subsequent hours. We know Dann and Middleton told a story of piracy on the high seas, that they accused their former partners of crimes against humanity. We know that Newton interrogated the defendants; presumably the six men standing at the bar without legal representation made some attempt to defend themselves, drawing upon their limited knowledge of the law. The rest, however, is conjecture. No trial transcripts were ever published. In fact, the state went to great lengths to suppress any record of the trial at all. This blank spot on the map of Henry Every’s career—the vanishing act of the piracy trial—was not simply a casualty of unreliable archives. No record of the trial beyond Newton’s opening statement exists because at the end of the trial, the jury returned a verdict that sabotaged the dominant narrative of piracy, sending a message to Aurangzeb that confirmed his worst suspicions about the English. William May, John Sparkes, Edward Forsyth, William Bishop, Joseph Dawson, James Lewes—they were all, to a man, declared not guilty.
Enemy of All Mankind Page 19