P. C. 208.

chandize be delivered to a master to carry abroad to a certain port, and he goes away with it to another, and there sells or disposes of it, this is no felony; but if he opens the bale or pack, and takes any thing out, animo furandi, this act may amount to such ! Hawk. a larceny as he may be indicted for in the Admiralty, though it does not amount to a reprisalia; yet if the said master should carry the lading of this ship to the port appointed, and after re-take the whole pack or bale back again, this may amount to a piracy; for he being in the nature of a common carrier, the delivery had taken its effect, and the privity of the bailment is determined.

2. S. ad

In case a ship shall be attacked by a pirate, and the master for her redemption 44 Edw. 3. shall give his oath to p y a sum certain; though there be no taking, yet is the same 14. 4 Hen piracy by the law marine; but by the common law there must be an actual taking, Leg. Rhod, though it be but to the value of a penny, in the same manner as it is in a robbery on the de Jact.1.2, highway.

And if a ship shall be riding at anchor, with part of the mariners in her boat, and the 14 Edw. 3. rest on shore, so that none remain in the ship, yet if she be attacked and robbed, the 115. same is piracy.

Roll's Abr.

Moor's

Rep. 776.

A merchant has procured letters of marque or reprise, and delivered the commission Trin. 7 Jac. to others to endeavour a satisfaction; and if those so commissioned commit piracy, the in B. R. vessel is certainly forfeited; but the merchant is no ways liable to make satisfaction; for 530. though the superior by the civil law is answerable for the actions of his servants, yet as this question must be decided by the law of nations, in virtue of which such commissions are awarded or granted, the merchant by it will be exempted from answering for the behaviour of those he commissioned, unless it can be proved he foreknew that they would commit such a piracy, or spoliation, or that he had any way abetted or consented to the same, by which the right may be forfeited, and the civil law let in, to acquire satisfaction.

If goods are taken by a pirate from one ship, and he afterwards attacks another, by whom he is subdued, he thereby becomes, according to the law marine, an absolute prize to the captor, after a legal condemnation. And,

110.

By the statute of 27 Edw. 3. cap. 13. if a merchant lose his goods at sea by piracy or 3 Bul. 28, tempest, not being wrecked, and they afterwards come to land, if he can make proof 29, March, they are his goods, they shall be restored to him, in places guildable, by the King's officers and six men of the country; and in other places, by the Lords of them, or their officers, with six men.of the country. If a pirate takes goods at sea, and sells them, the property is not thereby changed, no more than if a land thief steals and sells them.

Case. Sigo

Jure Rom.

This law hath a great affinity with that of the Roman, called de Usu Captione, or the Godh. 193. Atinian law; as Atinius therein enacted, that the plea of prescription, or long possession, Barber's should not avail in things that had been stolen, but the interest which the right owners nius de had should remain perpetually. No right to the spoil rests in the piratical captors, jum no right is derivable from them to any re-captors in prejudice, and this appears not only to have been the opinions of the writers on general jurisprudence, but to have been always maintained in our courts of common law. Grot. de Jure Belli, 1. 3. c. 9. s. 16. Godb. 193. Cro. Eliz. 685.

If a mob of rioters board a ship, and occasion a stranding, this is a loss by pirates. 4 Term. Rep. 783.

c.

Abrid. F.

Though it is held by the common law of England, that if a man commit piracy upon Bingley' the subjects of another prince, though in league with us, and brings the goods into cael Rolls England, and sells them in a market overt, the same shall bind, and the owners are for 580. Lit. ever excluded; and, if they should endeavour in the Admiralty to dispute the property G. 1.3. in order to restitution, they will be prohibited.

* F. Nautæ Cap. 1. i. s. 3. Stab. Glanvil, 1. 10. c. 13. 18 Edward 4.

c. 4.

Grot.

c. 9. s. 16

But if the goods are sold to the owners of the ship, though sold in market overt, it seems the sale is void, he being deemed a party to the test. Cro. Eliz. 685. And quære, if after conviction of the pirate by the owner of goods, the property is not revested in the original owner, though there may have been a bona fide sale in market overt 2 Woodd. 431. Roll's Rep. case of Hil

AI.

upon

A ship which belonged to several owners was sent to the Indies on a trading voyage, 285. The and the high sea the mariners committed piracy, for which, on her return to the debrand & River Thames, the admiral seized her as bona pyratarum; but the merchants her owners took the sails and tackle out of her, and there was a decree, that the admiral shall not have the goods stolen from other men, but the owners shall have them. Molloy de It appears by the preamble to the statute of 28 Hen. 8. cap. 15. that this offence. F.67. s. 24. was not punishable by the common law, but the same was determined and judged by the admiral, after the course of the civil law; but by force of the said act the same is enquired of, heard, and determined, according to the course of the common law, as if the offence had been committed on land.

Jure Mar.

27 Hen. 8. c. 4. s. 1.

28 Hen. 8. c. 15. s. 1.

See 1

Cr. 270.
Hob.

b. 146.

But by Lord Hale*, the Court of King's Bench had certainly a concurrent jurisdiction with the Admiralty, in cases of felony committed upon the narrow seas, or coast, though it were high sea, because within the King's realm of England: but this jurisdiction of the common law courts was interrupted by a special order of the King and Council, 35 Edw. 3. and since the 38 Edw. 3. it does not appear that the common law courts take cognizance of crimes committed upon the high seas.

And for the trial of piracy, and to determine what actions come under this denomination, as also to encourage the suppression of it, the following acts have been made, viz.

All offences of piracy, robbery, and murder, done upon the sea, or in any haven, river, or creek, where the admirals pretend to have jurisdiction, shall be inquired into, tried, heard, and determined, in such places in this realm, as shall be limited by the King's commission, as if such offences had been done upon land; and such commis sions shall be under the great seal, directed to the Lord Admiral, or his Lieutenant or Deputies, and other persons named by the Lord Chancellor, to hear and determine such offences after the common course of law, used for felonies committed within the realm.

The remaining sections of this act are omitted, because the act is amended and reenacted 28 Hen. 8. cap. 15. which follows:

All treasons, felonies, robberies, murders, and confederacies, committed upon the sea, or in any haven, river, creek, or place, where the admirals have, or pretend to Hawk. Pl. have, any power or jurisdiction, shall be enquired, heard, and determined in such shires and places in this realm, as shall be limited by the King's commission, as if such offences had been committed upon land, and such commission shall be under the great seal, directed to the admirals, &c. and to three or four such other persons as shall be named by the Lord Chancellor, after the common course of the law used for treason, felonies, &c. committed upon land, within this realm.

Sect. 2.

The keeper of the great seal when there is no Chancellor, may appoint commissioners to hear and determine piracies under this statute. Dyer. 211. b.

Such persons to whom such commissions shall be directed, or four of them, shall have power to inquire of such offences by the oaths of twelve lawful inhabitants in the shire limited in their commission, as if such offences had been committed upon land within the shire; and every indictment found before such commissioners, of any trea sons, felonies, or other such offences committed upon the seas, or in any haven, river,

Hist. Pl. Cr. vol. 2. p. 14, 15.

or creek, shall be good in law; and such process, judgment, and execution, shall be had against every person so indicted, as for treason, felony, or other such offences done upon land; and the trial of such offences shall be by twelve men, inhabiting in the shire limited within such commission, and no challenge to be had for the hundred; and such as shall be convicted of any such offences shall suffer such pains of death, losses of land and goods, as if they had been convicted of the same offences done upon land. For treason, robberies, felonies, murders, and confederacies, done upon the sea, or 23 Hen. 8. in any place above rehearsed, the offenders shall not have benefit of clergy.

c. 15, s. 3.

This act shall not extend to any person for taking any victuals, cables, ropes, an- Sect. 4. chors, or sails, which such person, compelled by necessity, taketh of any ship which may spare the same, so the person pay for the same, money or money-worth, or deliver a bill obligatory to be paid, if the taking be on this side the Straits of Marrock, to be paid within four months; and if it be beyond the said straits, to be paid within twelve months; and that the makers of such bills pay the same at the day limited.

When any such commission shall be directed to any place within the jurisdiction of Sect. 5. the five ports, such commission shall be directed to the Lord Warden of the ports, or his Deputy, and three or four such other persons as the Lord Chancellor shall name. Whensoever any commission shall be directed unto the five ports, 'for the inquisition Sect. 6, and trial of any of the offences expressed in this act, such inquisition and trial shall be had by the inhabitants in the five ports, or the members of the same. This statute was made perpetual by the statute, 6 Geo. 1. c. 19.

Will. 3. e

It is ordained that all the piracies, felonies, and robberies, committed upon the sea, 11 and 12 or in any haven, river, creek, or place, where the admirals have power or jurisdiction, 7. s. 1. may be tried at sea, or upon the land, in any of his Majesty's islands, plantations, colonies, &c. appointed for that purpose by commission under the great seal of England, or the seal of the Admiralty, directed to such commissioners as his Majesty shall think fit, who may commit such offenders, and call a Court of Admiralty thereupon, to consist of seven persons at the least.

* Sect. •

And for want of seven, then any three of the commissioners may call others, as Sect. 2,1 therein is mentioned, and the persons so assembled may proceed, according to the course of the Admiralty, to issue out warrants for bringing persons accused of piracy or robbery before them to be tried, and to summon witnesses, and take examinations, and do all things necessary for the hearing and final determination of any case of piracy, &c. and to give sentence of death, and award execution of the offenders, who shall thereupon suffer loss of lands, goods, and chattels.

So soon as any court shall be assembled, the King's commission shall be read, and Sect. 5 the court shall be proclaimed, and then the President of the Court shall take the fol lowing oath, viz.

I A. B. do swear in the presence of Almighty God, that I will truly and impartially try and adjudge the prisoner or prisoners, which shall be brought upon his or their trials before this court, and honestly and duly on my part, put his Majesty's commission for the trying of them in execution, according to the best of my skill and knowledge; and that I have no interest, directly or indirectly, in any ship or goods, for the piratically taking of which any person stands accused, and is now to be tried.So help me God.

And he having taken this oath, shall administer the same to every person, who shall sit and have voice in the court, and thereupon the prisoners shall be brought before them; and then the register shall read the articles against such prisoners, wherein shall be set forth the particular facts of piracy, robbery, and felony, with the time and

11 and 12.

7. scct. 6.

place, and in what manner it was committed; and each prisoner shall be asked, whether he be guilty or not guilty; whereupon he shall immediately plead guilty or not guilty; or else it shall be taken as confessed; and if any prisoner shall plead not guilty, witnesses shall be produced by the register, and sworn and examined in the prisoner's presence; and after a witness has answered all the questions proposed by the President, and given his evidence, it shall be lawful for the prisoner to have the witness cross-examined, declaring to the court what questions he would have asked, and the President or the court shall interrogate the witness accordingly; and every prisoner shall have liberty to bring witnesses for his defence, who shall be sworn and examined, and afterwards the prisoner shall be heard for himself; which being done, the prisoner, shall be taken away, and all other persons, except the register, shall withdraw; and the court shall consider of the evidence; and the President shall collect the votes of the court, beginning at the junior, and ending with himself; and, according to plurality of voices, sentence shall be given, and pronounced publickly in the presence of the prisoner, being called in again; and, according to such sentence, the persons attainted shall be put to death, in such manner, and in such place upon the sea, or within the ebbing or flowing thereof, as the President, or the major part of the court, by warrant directed to a Provost-Marshal, which they shall have power to constitute, shall appoint.

Some public notary shall be register of the court; and in case of his absence, death, Will. 3. c. or incapacity, or for want of a person so qualified, the President shall appoint a register, giving him an oath, duly, faithfully, and impartially to execute his office; which register shall prepare all warrants and articles, and provide all things requisite for any trial, according to the substantial and essential parts of proceeding in a Court of Admiralty in the most summary way; and shall make minutes of the proceedings, and enter them in a book, and shall transmit the same with the copies of all articles and judgments, unto the High Court of Admiralty of England.

Sect. 7.

Sect. 8.

Sect. 9.

If any of his Majesty's ships shall commit piracy or robbery, or any act of hostility, against others his Majesty's subjects upon the sea, under colour of any commission from any foreign state, or authority from any person whatsoever, such offenders, and every of them, shall be adjudged pirates, felons, and robbers; and being convicted, according to this act, or 28 Hen. 8. cap. 15. shall suffer pains of death, and loss of lands and goods.

If a commander of a ship, or any mariner, shall, in any place where the admiral hath jurisdiction, betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with the ship, or any boat, ordnance, ammunition, or goods, or yield them up voluntarily to any pirate, or shall bring any seducing messages from any pirate, enemy, or rebel; or consult, or confederate with, or attempt to corrupt any commander, officer, or mariner, to yield up or run away with any ship or goods, or turn pirate, or go over to pirates; or if any person shall lay violent hands on his commander, to hinder him from fighting in defence of his ship and goods, or confine his master, or endeavour to make a revolt in the ship, he shall be adjudged a pirate, felon, and robber, and being convicted according to this act, shall suffer death, and loss of lands and goods.

All persons who shall, either on land or upon the seas, knowingly set forth any pirate, or assist or maintain, procure, command, counsel, or advise any person to commit any piracies or robberies upon the seas, and such person shall thereupon commit any such piracy or robbery, all such persons shall be adjudged accessary to such piracy and robbery; and after any piracy or robbery committed, every person who, knowing that such pirate or robber has committed such robbery, shall, on the land or upon the sea, receive, entertain, or conceal any such pirate or robber, or receive any ship or goods by such

pirate or robber, piratically and feloniously taken, shall be adjudged accessary to such piracy and robbery; and all such accessaries may be inquired of, heard, and determined, after the common course of the law, according to the statute 28 Hen. 8. cap. 15. as the principles of such piracies and robberies ought to be; and, being attainted, shall suffer death, and loss of lands and goods.

Will. 3. c. 7. s. 10.

When an English ship shall have been defended by fight against pirates, and any of 11 and 12 the officers or seamen are killed or wounded, the Judge of the Admiralty, or his Surrogate in London, or the Mayor, or chief-officer in the out-ports, assisted by four substantial merchants, may, by process out of the said court, levy upon the owners of such ships, &c. a sum not exceeding 21. per hundred, of the value of the freight, ship, and goods, so defended, to be distributed among the officers and seamen of the said ships, or widows and children of the slain.

A reward of 101. for every vessel of a hundred tons or under, and 151. for every one Sect, 11. of a greater burthen, shall be paid by the captain, commander, or master, to the first discoverer of any combination for running away with or destroying any such ship, at the port where the wages are to be paid.

Sect. 12.

This act shall be in force for seven years, &c. Made perpetual 6 Geo. 1. cap. 19. The commissioners appointed by 28 Hen. 8. cap. 15. or by this act, shall have the Sect, 15. sole power of hearing and determining the said crimes, within all the plantations in America, governed by proprietors, or under charter from the crown, and shall issue their warrants for apprehending any pirates, &c. within any of the said plantations, in order to their being brought to trial within the same, or any other plantation in America, or sent into England; and all governors, &c. in the plantations, governed by proprietors, or under charters, shall assist the commissioners and officers, and deliver up the pirates, &c. in order to their being tried, or sent into England.

If any of the governors in the plantations shall refuse to yield obedience to this act, Sect. 14, such refusal is declared to be a forfeiture of all charters granted for the government or propriety of such plantation.

When any commission, for the trial and punishment of the offences aforesaid, shall Sect. 15. be directed to any place within the jurisdiction of the Cinque Ports, such commission shall be directed to the Lord Warden, &c.

All officers or sailors, who shall desert the ships wherein they are hired to serve for Sect. 16. that voyage, shall forfeit all wages due to them.

In case any master of a merchant ship shall, during his being abroad, force any man Sect. 17. on shore, or wilfully leave him behind in any of his Majesty's plantations, or elsewhere, or shall refuse to bring home with him all such of the men which he carried out, as are in a condition to return, such master shall suffer three months' imprisonment.

c. 11. s. 7.

All persons who shall commit any offences for which they ought to be adjudged 4 Geo. 1. pirates, by the act 11 and 12 Will. 3. cap. 7. may be tried as by the act 28 Hen. 8. cap. 15. and shall be debarred from the benefit of clergy. Nothing in this act to extend to Scotland.

Com. 72.

By 8 Geo. 1. cap. 24. s. 1. if any commander of a ship, or other person, shall trade 8 Geo. 1. with any pirate, or shall furnish any pirate, felon, or robber, upon the seas, with am- c. 24, s. 1. munition, provision, or stores, or shall fit out any ship knowingly, and with a design to trade or correspond with any pirate, &c. upon the seas; or if any person shall con- See 4 Bla, sult, combine, or correspond with any pirate, &c. knowing him to be guilty of any piracy, felony, and robbery, such offender shall be adjudged guilty of piracy, &c. and shall be tried according to the statute 28 Hen. 8. cap. 18. and 11 and 12 Will. 3. cap. 7. and, being convicted, shall suffer death, and loss of lands and goods; and if any person belonging to any ship, upon meeting any merchant ship on the high seas, or in any