tment 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.

This seemed to be the best defence the thing could bear; but his taking
a share of the plunder, the seamen's 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 Capt. Kidd's defence, he insisted much on his own innocence, and
the villainy of his men. He said, he went out in a laudable employment
and had