These men belonged to a pirate ship, called the Resolution, formerly the Mocha Merchant, whereof one Capt. Culliford was commander, and which lay at anchor not far from them. Kidd went on board with them, promising them his friendship and assistance, and Culliford in his turn came on board of Kidd; and Kidd, to testify his sincerity in iniquity, finding Culliford in want of some necessaries, made him a present of an anchor and some guns, to fit him out for sea again.
The Adventure galley was now so old and leaky, that they were forced to keep two pumps continually going; wherefore Kidd shifted all the guns and tackle out of her into the Queda Merchant, intending her for his man-of-war; and as he had divided the money before, he now made a division of the remainder of the cargo; soon after which, the greatest part of the company left him, some going on board Capt. Culliford, and others absconding into the country, so that he had not above 40 men left.
He put to sea, and happened to touch at Amboyna, one of the Dutch spice islands, where he was told that the news of his actions had reached England, and that he was there declared a pirate.
The truth of it is, his piracies so alarmed our merchants that some motions were made in parliament, to inquire into the commission that was given him, and the persons who fitted him out. These proceedings seem to lean a little hard upon Lord Bellamont, who thought himself so touched thereby, that he published a justification of himself in a pamphlet, after Kidd's execution. In the meantime it was thought advisable, in order to stop the course of these piracies, to publish a proclamation, offering the king's free pardon to all such pirates as should voluntarily surrender themselves, whatever piracies they had been guilty of, at any time before the last day of April, 1699--that is to say, for all piracies committed eastward of the Cape of Good Hope, to the longitude and meridian of Socatora, and Cape Cormorin; in which proclamation, Avery and Kidd were excepted by name.
When Kidd 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, as 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 Boston laden with booty, with a crew of swaggering companions at his heels. But no sooner did he show himself in Boston, than the alarm was given of his reappearance, and measures were taken to arrest him. The daring character which Kidd had acquired, however, and the desperate fellows who followed like bull-dogs at his heels, caused a little delay in his arrest. He took advantage of this to bury the greater part of his immense treasure, which has never been found, and then carried a high head about the streets of Boston. He even attempted to defend himself when arrested, but was secured and thrown into prison. Such was the formidable character of this pirate and his crew, that a frigate was sent to convey them to England for trial.
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.
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 commission, 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 any thing 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 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.