Accordingly a sessions of Admiralty being held at the Old Bailey, in May 1701, Capt. Kidd, Nicholas Churchill, James How, Robert Lumly, William Jenkins, Gabriel Loff, Hugh Parrot, Richard Barlicorn, Abel Owens and Darby Mullins, were arraigned for piracy and robbery on the high seas, and all found guilty except three; these were Robert Lumly, William Jenkins and Richard Barlicorn, who proving themselves to be apprentices to some of the officers of the ship, and producing their indentures in court, were acquitted.
The three above mentioned, though they were proved to be concerned in taking and sharing the ship and goods mentioned in the indictment, yet, as the gentlemen of the long robe rightly distinguished, there was a great difference between their circumstances and the rest; for there must go an intention of the mind and a freedom of the will to the committing an act of felony or piracy. A pirate is not to be understood to be under constraint, but a free agent; for in this case, the bare act will not make a man guilty, unless the will make it so.
Now a servant, it is true, if he go voluntarily, and have his proportion, he must be accounted a pirate, for then he acts upon his own account, and not by compulsion: and these persons, according to the evidence, received their part, but whether they accounted to their masters for their shares afterwards, is the matter in question, and what distinguishes them as free agents, or men that did go under the compulsion of their masters; which being left to the consideration of the jury, they found them _not guilty_.
Kidd was tried upon an indictment of murder also, viz. for killing Moor, the gunner, and found guilty of the same. Nicholas Churchill, and James How pleaded the king's pardon, as having surrendered themselves within the time limited in the proclamation, and Col. Bass, governor of West Jersey, to whom they surrendered, being in court, and called upon, proved the same. However, this plea was overruled by the court, because there being four commissioners named in the proclamation, viz. Capt. Thomas Warren, Israel Hayes, Peter Delannoye, and Christopher Pollard, Esquires, who were appointed commissioners, and sent over on purpose to receive the submissions of such pirates as should surrender, it was adjudged no other person was qualified to receive their surrender, and that they could not be entitled to the benefit of the said proclamation, because they had not in all circumstances complied with the conditions of it.