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 over-ruled by the court, because there being four commissioners named in the proclamation, viz. Capt. Thomas Warren, Israel Hayes, Peter Delannoye, and Christopher Pollard, Esqrs. who were appointed commissioners, and sent over on purpose to receive the submission 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 free-booters, which weighing with the jury, they brought him in guilty with the rest.