Accordingly a Sessions of Admiralty being held at the _Old Baily_, in _May_ 1701, Captain _Kid_, _Nicholas Churchill_, _James How_, _Robert Lumley_, _William Jenkins_, _Gabriel Loff_, _Hugh Parrot_, _Richard Barlicorn_, _Abel Owens_, and _Darby Mullins_, were arraign'd for Pyracy and Robbery on the High Seas, and all found guilty, except three; these were _Robert Lumley_, _William Jenkins_, and _Richard Barlicorne_, 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, tho' they were proved to be concern'd 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 Pyracy. A Pyrate 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 Pyrate, 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.
_Kid_ was tryed 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 Colonel _Bass_, Governor of _West Jersey_, to whom they surrendered, being in Court, and called upon, proved the same; however, this Plea was over-ruled by the Court, because there being four Commissioners named in the Proclamation, _viz._ Captain _Thomas Warren_, _Israel Hayes_, _Peter Delannoye_, and _Christopher Pollard_, Esqrs; who were appointed Commissioners, and sent over on Purpose to receive the Submissions of such Pyrates as should surrender, it was adjudged no other Person was qualified to receive their Surrender, and that they could not be intitled to the Benefit of the said Proclamation, because they had not in all Circumstances complied with the Conditions of it.