same; any thing in this act to the contrary thereof notwith"standing.' fectual suppression of piracy. How and where piracies, felonies, &c. com mitted on the sea may be tried. C. Sect. 21. And it being doubted whether the 28 Hen. 8. c. 15. had not taken away the trial of piracy before the admiral, his lieutenant or commissary, which occasioned a total disuse of such manner of trial, to the encouragement of pirates who could not be tried by this statute until brought to England, at a great trouble and expense, it was enacted by 11 and 12 Will. 3. c. 7. "That all piracies, felonies, and robberies committed in or upon "the sea, or in any haven, river, creek, or place, where the ad"miral or admirals have power, authority, or jurisdiction, should "be tried by commissioners to be appointed according to the "directions of that act, in any foreign colony, but they were to "proceed according to the course of the civil law, as was the practice in the admiral's court, but now by stat. 46 Geo. 3. "c. 54. it is enacted, "That all treasons, piracies, &c. and other "offences of what nature or kind soever committed upon the sea, "or in any haven, river, &c. where the admiral or admirals, &c. "have jurisdiction, may be enquired of, tried, heard, determined, "and adjudged, according to the common course of the laws of "this realm used for offences committed upon the land within "this realm, and not otherwise, in any of his majesty's islands, plantations, colonies, &c. under and by virtue of the king's commission, under the great seal to be directed to any four or "more discreet persons as the lord chancellor, keeper, &c. for "the time being shall from time to time think fit to appoint, and "that the said commissioners or any three of them shall have "such and the like powers and authorities for the trial of such "murders, piracies, &c. within any such island, as any commis"sioners appointed according to the statute 28 Hen. 8. by any "laws now in force would have for the trial of the said offences "within this realm; and that all persons convicted of any of the "said offences, by virtue of any such commission, shall be sub'ject and liable and shall suffer the same pains and penalties, &c. 66 66 as by any law or laws now in force, the persons convicted "would be subject to, in case the same were determined within "this realm, by virtue of any commission, according to the direc"tions of the statute 28 Hen. 8." 66 And by 43 Geo. 3. c. 113. s. 5. which recites, "it is convenient that accessaries on the high seas should be tried according to the provisions of the st. 28 Hen. 8." enacts, "That in all cases in "which any person, &c. shall hereafter procure, direct, counsel, "&c. any other person in committing any felony whatsoever, or "shall become an accessary before the fact to any felony whatsoever, whether such principal felony be committed within, "the body of any county within the realm, or upon the high seas, or whether such procuring, &c. or otherwise becoming accessary, before the fact, shall have been committed within "the body of any county within this realm, or upon the high "seas, then, in all such cases, the offence of procuring, &c. or becoming accessary before the fact, shall be tried, &c. in case the principal felony was committed within the realm, by "the course of the common law, either within such county where 66 66 "the 66 "the principal felony shall have been committed, or within the "county wherein the offence of procuring, &c. or otherwise becoming accessary before the fact shall have been committed " or done; and in case the principal felony shall have been com"mitted upon the high seas, then the offence of procuring, &c. "or becoming accessary before the fact, shall and may be enquired of in and by such court, and in such manner and form, "as in and by the st. 28 Hen. 8. is appointed and directed." " Persons once tried are not again to be tried by any court or jurisdiction whatsoever. This statute extends only to accessaries before the fact. In the case of one Scandling, who had abetted one Exon, who was committed for piracy, to break out of prison, the court held that as it was an accessorial act to the piracy, which was not cognizable at common law, neither was the accessorial act cognizable at common law. And it was not long after fully settled, that one who knowingly receives and abets a pirate in the body of a county, was not triable by the common law, the original offence being cognizable only by another jurisdiction (Yelverton, 134. 18 Co 53.)-but see st. 10 and 11 W. 3. c. 7. s. 10. and 8 Geo. 1. c. 24. s. 3. whereby accessaries are declared principals, and to be tried as such. Sect. 32. By 11 and 12 Will. 3. c. 7. s. 16. "Provided How commissions for trying always, that whensoever any commission for the trial and pu- of offences "nishment of the offences aforesaid, or any of them, shall be di- within the juris"rected or sent to any place within the jurisdiction of the Cinque diction of the Cinque Ports "Ports, that then every such commission shall be directed unto habe direc "the lord warden of the Cinque Ports for the time being, or to ted, and inquisi"his lieutenant, and unto such other persons as the lord high tion made. "chancellor or keeper of the great seal of England for the time "being, or commissioners for the custody of the great seal, shall "name and appoint; and likewise that every inquisition and trial, "to be had by virtue of such commission so directed and sent to any place in the said Cinque Ports, shall be made and had by "the inhabitants of the said Cinque Ports, or the members of "the same; any thing in this act to the contrary thereof notwithstanding." 66 + Sect. 33. And by 4 Geo. 1. c. 11. s. 7. "All and every per- Offenders "son and persons who have committed or shall commit any against 11 & 12 "offence or offences, for which they ought to be adjudged, deem- be tried as by W. 3. c. 7. may ❝ed and taken to be pirates, felons, or robbers, by an act made 28 Hen. 8.c. 15. "in the parliament holden in the eleventh and twelfth years of "the reign of his late majesty king William the Third, intituled "An act for the more effectual suppression of piracy, may be tried "and judged for every such offence in such manner and form as "in and by an act made in the twenty-eighth year of the reign of See farther, "king Henry the eighth is directed and appointed for the trial of 6 Geo. 1. c. 19. pirates, and shall and ought to be utterly debarred and excluded and 8 Geo. 1. "from the benefit of clergy for the said offences; any law or "statute to the contrary thereof in any wise notwithstanding." 66 c. 24. + Sect. 33. By 18 Geo. 2. c. 30. s. 2. it is enacted," That any Not to be tried again for the person same crime as high treason. Criminals not may be tried for 66 person who shall be tried and acquitted, or convicted, according to this act, for any of the said crimes, shall not be liable to "be indicted, prosecuted, or tried again in Great Britain, or "elsewhere, for the same crime or fact as high treason." Sect. 34. By 18 Geo. 2. c. 30. s. 3. it is provided, "That tried by this act "nothing in this act contained shall be construed to extend to prevent any persons guilty of any of the said crimes, who shall "not be tried according to this act, from being tried for high "treason within this realm, according to the aforesaid act of the twenty-eighth year of king Henry the eighth." high treason, by 28 H. 8. c. 15. A session of the court of admi ralty to be held in March and October yearly. Commissioners of the court, and justices of the peace, impower cy, &c. 66 Sect. 35. And for the more speedily bringing offenders to "justice, and to prevent the inconveniences occasioned by want "of frequently holding a session of admiralty, it is enacted by 32 Geo. 2. c. 25. s. 20. "That from and after the first day of June one thousand seven hundred and fifty-nine, a session of $6 oyer and terminer and gaol-delivery, for the trial of offences "committed upon the high seas within the jurisdiction of the "admiralty of England, shall be held twice at the least in every year; that is to say, in the several months of March, and Octo"ber, in each year, at Justice Hall in the Old Bailey, London; except at such times as the sessions of oyer and terminer and gaol-delivery for the city of London and county of Middlesex "shall be appointed to be there held; or in such other places, "within that part of Great Britain called England, as the lord high admiral of Great Britain, or the commissioners for executing the office of lord high admiral of Great Britain "for the time being, or any three or more of them, shall by any "letter or order in writing under their hands directed to the judge of the high court of admiralty in England for the time "being, appoint.' 66 66 + Sect. 36. And by 32 Geo. 2. c. 25. s. 21. it is further enacted, "That from and after the first day of June one thousand seven hundred and fifty-nine, it shall and may be lawful, not ed to take infor- only to and for any one or more of the commissioners for the mations of pira-"time being, named in the commission of oyer and terminer for "the trying of offences committed within the jurisdiction of the admiralty of England, but also to and for any one or more of "the justices of the peace for the time being, of any county, riding, division, or place, within that part of Great Britain "called England, and they are hereby respectively authorised "and empowered, from time to time, to take any information or "informations of any witness or witnesses in writing upon oath, "touching any piracy, felony, or robbery, done or committed, or "charged to have been done or committed, in or upon the sea, "or in any haven, river, creek, or place, where the admiral or ad"mirals hath or have power, authority, or jurisdiction; and thereupon (if such commissioner or commissioners, or justice or justices of the peace respectively shall see cause) by any "warrant or warrants under his or their hand and seal, or hands " and seals, to cause the person or persons accused in such infor"mation or informations to be apprehended and committed to "the gaol of the county or place wherein the same information "or informations shall be taken, there to remain until discharged 66 by due course of law." 66 Sect. 37. And by 32 Geo. 2. c. 25. s. 22. it is further enacted, "That such of the said commissioners, or justices of the peace, "who shall cause any such person or persons to be committed "as is last mentioned, shall, and he or they is or are hereby respectively required at the same time to oblige all and every "such other person or persons whom such commissioner or com"missioners, or justice or justices of the peace shall judge neces"sary to prosecute and give evidence against the person or per"sons who shall be so committed as aforesaid, to enter into one or more recognizance or recognizances to his majesty, in a "sufficient penalty, for his, her, or their appearing at the then "next session of oyer and terminer, and gaol-delivery, to be held "for the jurisdiction of the admiralty of England, there to pro"secute and give evidence against the person or persons who "shall be committed as aforesaid: And if any person shall "refuse to enter into such recognizance to prosecute or give "evidence as shall be required, he, she, or they so refusing, shall "be committed by any such commissioner or commissioners, "justice or justices, to the gaol of the county or place in which "the person so refusing shall be, until the next sessions of admiralty shall be held, or such persons shall enter into such recog“nizance as shall be required as aforesaid; which recognizance " or recognizances, together with the information or informations "taken touching the offence or offences wherewith the person "or persons to be committed as aforesaid shall be charged, the "said commissioner or commissioners, or justice or justices of "the peace, before whom the same shall be taken, shall and they " are hereby respectively required to transmit with all convenient "speed to the register for the time being of the high court of "admiralty of England, to be by him forthwith laid before the "judge for the time being of the same court, and afterwards to "be kept among the records of that court." 66 other peace + Sect. 38. And by 32 Geo. 2. c. 25. s. 23. it is further The marshal, enacted, “That the marshal of the admiralty for the time being, sheriffs, and "and his deputy or deputies, and all sheriffs, bailiffs, stewards, officers, are to "constables, headboroughs, tythingmen, keepers of gaols and obey and exeprisons, and all other officers whatsoever, for keeping of the cute all prepeace (as well within liberties as without), shall, and they, and cepts and orevery of them, are hereby respectively authorized and required, commissioners " from time to time, diligently to execute, perform, and obey all and justices. "such precept and precepts, warrant and warrants, and other "order and orders, as shall at any time or times hereafter be made, directed, issued, or given to them or any of them respectively, by any one or more of the said commissioners "named in the commission of oyer and terminer, or justices of "the peace, by virtue or in pursuance of this act, touching any " of the matters or things herein contained." ders of the Sect. 39. It hath been determined, that two justices may Rex v. Mulltake a recognizance for the appearance of one charged with man, Hilary, felony on the high seas at the sessions of admiralty, and the recognizance may be estreated into the exchequer. $ 2 As 6 Geo. S. Parker, 241. The punishment of offenders. 1 Salk. 85. Co. Lit. 391. a. Moor, 756. pl. 1044. Offenders convicted on this act, excluded the benefit of clergy. 3 Inst. 112. 3 Inst. 114. As to THE THIRD POINT, viz. In what manner piracy is punished. 66 Sect. 40. By 28 Hen. 8. c. 15. s. 2. it is enacted, "That such as shall be convict of any such offence or offences, by "verdict, confession, or process, by authority of any such commission, shall have and suffer such pains of death, losses of lands, goods and chattels, as if they had been attainted and "convicted of any treasons, felonies, robberies, or other the said "offences done upon the lands." 66 86 Sect. 41. By 28 Hen. 8. c. 15. s. S. it is recited, "That for "treasons, robberies, felonies, murders and confederacies done upon the sea or seas, or in any place above rehearsed, the "offenders shall not be admitted to have the benefit of his or "their clergy, but be utterly excluded thereof and from the same, "and also of the privilege of any sanctuary." + Sect. 42. By 8 Geo. 1. c. 24. s. 4. it is further enacted, "That all and every offender or offenders convicted of any piracy, felony, or robbery, by virtue of this act, shall not be "admitted to have the benefit of clergy, but be utterly excluded "of and from the same." Sect. 43. An attainder for this offence corrupts not the blood, inasmuch as the statute only says that the offender shall suffer such pains of death, &c. as if he were attainted of a felony at common law; but says not that the blood shall be corrupted, &c. (2) Sect. 44. Yet it has been resolved, that an offender standing Dyer, 241. 508. mute on an arraignment by force of this statute, shall have judgment of peine forte et dure; for the words of the statute of 28 Hen. 8. c. 15. are, that a commission shall be directed to hear and determine such offences after the course of the common law of the land, &c.-+ But by 12 Geo. 3. c. 3. "standing mute "in piracy amounts to a conviction, and the court shall award "the same judgment as on a conviction by verdict or confession." Encouragement and mariners to defend their ships against pirates, &c. 66 As to THE FOURTH PARTICULAR, viz. Of the means which may be used to prevent piracy. Sect. 45. By 11 and 12 Will. 3. c. 7. s. 11. it is recited, for commanders "That it will conduce to the suppressing of robberies on the sea, if due encouragement be given, and rewards allowed to such commanders, masters, and other officers, seamen and mariners, as shall either bravely defend their own ships, or take, seize, and destroy pirates, sea rovers, and enemies;" and enacted, “That "when any English ship shall have been defended against any pirates, enemies or sea rovers, by fight, and brought to her designed port, in which fight any of the officers or seamen "shall (2) Lord Hale thinks that an indictment for piracy before commissioners under st. H. 8. may be framed on an indictment at common law, namely, vi et armis et felonicè, for that piracy upon the statute is robbery; and that offenders have been indicted, convicted, and executed for it in the King's Bench as for a robbery. But, however this might have been formerly, there appears no instance of any such proceeding for several centuries. (2 East, 805.) |