When Kid left Amboyna he knew nothing of this proclamation, for certainly had he had notice of his being excepted in it he would not have been so infatuated to run himself into the very jaws of danger; but relying upon his interest with the Lord Bellamont, and fancying that a French pass or two he found on board some of the ships he took would serve to countenance the matter, and that part of the booty he got would gain him new friends—I say, all these things made him flatter himself that all would be hushed, and that justice would but wink at him. Wherefore he sailed directly for New York, where he was no sooner arrived but by the Lord Bellamont’s orders he was secured with all his papers and effects. Many of his fellow-adventurers who had forsook him at Madagascar, came over from thence passengers, some to New England, and some to Jersey, where, hearing of the king’s proclamation for pardoning of pirates, they surrendered themselves to the governor of those places. At first they were admitted to bail, but soon after were laid in strict confinement, where they were kept for some time, till an opportunity happened of sending them with their captain over to England to be tried.
Accordingly, a Sessions of Admiralty being held at the Old Bailey, 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 arraigned for piracy and robbery on the high seas, and all found guilty except three: these were Robert Lumley, 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.”
Kid 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 Colonel 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., Captain Thomas Warren, Israel Hayes, Peter Delannoye, and Christopher Pollard, Esqs., 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.
Darby Mullins urged in his defence that he served under the king’s commission, and therefore could not disobey his commander without incurring great punishments; that whenever a ship or ships went out upon any expedition under the king’s commissioners, the men were never allowed to call their officers to an account, why they did this, or why they did that, because such a liberty would destroy all discipline; that if anything was done which was unlawful, the officers were to answer it, for the men did no more than their duty in obeying orders. He was told by the court that acting under the commission justified in what was lawful but not in what was unlawful. He answered, he stood in need of nothing to justify him in what was lawful, but that the case of seamen must be very hard, if they must be brought into such danger for obeying the commands of their officers, and punished for not obeying them; and if they were allowed to dispute the orders, there could be no such thing as command kept up at sea.
This seemed to be the best defence the thing could bear. But his taking a share of the plunder, the seamen mutinying on board several times, and taking upon them to control the captain, showed there was no obedience paid to the commission, and that they acted in all things according to the custom of pirates and freebooters, which weighing with the jury they brought him in guilty with the rest.
As to Captain Kid’s defence, he insisted much upon his own innocence, and the villainy of his men. He said he went out in a laudable employment, and had no occasion, being then in good circumstances, to go a-pirating; that the men often mutinied against him, and did as they pleased; that he was threatened to be shot in his cabin, and that ninety-five left him at one time, and set fire to his boat, so that he was disabled from bringing his ship home, or the prizes he took, to have them regularly condemned, which he said were taken by virtue of a commission under the broad seal, they having French passes. The captain called one Colonel Hewson to his reputation, who gave him an extraordinary character, and declared to the court that he had served under his command, and been in two engagements with him against the French, in which he fought as well as any man he ever saw; that there were only Kid’s ship and his own against Monsieur du Cass, who commanded a squadron of six sail, and they got the better of him. But this being several years before the facts mentioned in the indictment were committed, proved of no manner of service to the prisoner on his trial.
As to the friendship shown to Culliford, a notorious pirate, Kid denied, and said he intended to have taken him, but his men, being a parcel of rogues and villains, refused to stand by him, and several of them ran away from his ship to the said pirate. But the evidence being full and particular against him, he was found guilty as before mentioned.
When Kid was asked what he had to say why sentence should not pass against him, he answered that “he had nothing to say, but that he had been sworn against by perjured, wicked people.” And when sentence was pronounced, he said, “My lord, it is a very hard sentence. For my part I am the innocentest person of them all, only I have been sworn against by perjured persons.”