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.