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8 Geo. 1.

2.

port, haven, or creek, shall forcibly board or enter such ship, and, though they do not seize and carry her off, shall throw over-board or destroy any of the goods, they shall be punished as pirates.

Every ship fitted out with a design to trade or correspond with any pirate, and all c. 24. s. the merchandizes put on board the same with an intent to trade with any pirate, shall be forfeited, one moiety to the King, and the other to the informer, to be recovered in the High Court of Admiralty.

Sect. 3.

Sect. 4.

Sect. 5.

All persons declared accessaries, by 11 and 12 Will. 3. to any piracy, are by this act declared principal pirates.

Any offender convicted of any piracy, &c. by virtue of this act, shall not have benefit of clergy.

And to encourage seamen and mariners to defend their ships from pirates, the said act ordains, that in case any mariner, on board any merchant ship, shall be maimed in fight against any pirate, upon due proof thereof, he shall not only have and receive the rewards appointed by 22 and 23 Ch. 2. cap. 11. but shall be provided for in Greenwich Hospital, preferable to any other seaman who is disabled from service by age.

Also, in order to encourage the defence of merchant vessels against pirates, the commanders or seamen wounded, and the widows of such seamen as are slain, in any piratical engagement, shall be entitled to a bounty to be divided among them, not exceeding one-fiftieth part of the value of the cargo on board. Blackstone's Comment. vol. 4.

Lord Mansfield said, in the case of Goss and Withers, that in Spain, Venice, and England, the goods go to the captors of a pirate, against the owners, as there can be no condemnation to entitle the pirate; and this is agrecable to Grotius de Jur. Bell. and to Locennius de Jur. Marit.

However, by the marine ordinance of France, in 1681, the ships and effects of their subjects, or of their allies, retaken from pirates, and reclaimed within a year and a day from the declaration which shall be made of them at the Admiralty, shall be restored to the proprietors, on paying one-third of the value of the ships and goods, for charges of the recapture. This ordinance is accounted, by the French writers, a great instance of their national generosity. But the stipulations in treaties of commerce and navigation between England and other powers go still farther, and therefore shall be recited in this place.

"For the greater freedom of commerce and navigation, it is agreed and concluded, that the King of Great Britain and the States General, shall not receive into their havens, cities, and towns, nor suffer that any of the subjects of either party do receive pirates or sea rovers, or afford them any entertainment, assistance, or provision, but shall endeavour that the said pirates and sea rovers, or their partners, sharers, and abettors, be found out, apprehended, and suffer condign punishment, for the terror of others and all the ships, goods, and commodities piratically taken by them, and broughtinto the ports of either party which can be found; nay, although they be sold, shall be restored to the right owners, or satisfaction shall be given either to the owners, or to those who by letters of attorney shall challenge the same, provided the right of their pro-4 perty be made to appear in the Court of Admiralty by due proofs according to law, Treaty with Holland 1667. It was the violation of this treaty on the part of the Dutch which contributed to the rupture between Great Britain and Holland, at the close of the year 1780. The Regency of Amsterdam had not only protected, but given every aid in their power to Paul Jones, a native of Great Britain, who, under a commission granted to him by the rebel subjects of the King of Great Britain in America, engaged and took his Majesty's frigate the Serapis, a sloop called the Countess of Scarborough

and two or three British merchant ships, all of which he carried to the Texel, and sold the merchant vessels and their cargoes, himself appearing publicly on the Exchange of Amsterdam, where he was caressed by the merchants, and the magistrates supplied Jones with provisions, ammunition, &c. for refitting and putting to sea, notwithstanding the repeated remonstrances of Sir Joseph Yorke, the British Minister at the Hague, who demanded restitution of the King's ships, and the seizure of Paul Jones the pirate."

If any commander, or other officer, or seaman of a merchant ship, that carries guns 8 Geo. 1. and arms, shall not fight and endeavour to defend themselves when attacked by a pirate, ©. 24. •. & or shall utter any words to discourage the other mariners from defending the ship, by which means she is taken by the pirate, in such case, the said commander, &c. shall forfeit all the wages due to him or them, to the owner of the ship, and suffer six monthsʼ imprisonment.

No master, or owner of any merchant ship, shall pay to any seaman beyond the seas, Sect, T. any money or effects on account of wages, exceeding one moiety of the wages due at the time of such payment, till such ship shall return to Great Britain, Ireland, or the plantations, or to some other of his Majesty's dominions whereto they belong, on forfeiture of double the money so paid, &c.

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This act shall extend to all his Majesty's dominions in Asia, Africa, or America, & Geo. t. and shall be a public act, and shall continue seven years, &c. made perpetual 2 Geo. 2. cap. 28.

c. 1.&. 10,

Inst. Tit.

The act 11 and 12 Will. 3. ch. 7. does not alter the offence, or make the offence felony, Coke, & but leaves it as it was before this act, viz. felony only by the civil law, but giveth a Admir. mean of trial by the common law, and inflicteth pains of death, as if they had been at- 1 Hawk. tainted of any felony done upon the land.

The indictment must mention the same to be done on the high seas.

P. C. 210.

If any person be feloniously stricken or poisoned upon the sea, or at any place out of a Geo. 2. England, and dies in England, or stricken or poisoned in England, and dies on the sea, ch. 21. or out of England, the fact is triable in any country, according to the course of the common law, except challenges for the hundred.

sect. 16.

A pardon of all felonies does not extend to piracy, but the same ought especially Moore 156 Dy. 308 to be named; and though there be a forfeiture of lands and goods, yet there is no corruption of blood, nor can there be an accessary of this offence tried by virtue of this statute, but if there be an accessary upon the sea to a piracy, he must be tried by civil Ditto p.71. law. The statute of 35 Hen. 8. cap. 2. taketh not away the statute for treasons done upon the sea, nor is clergy allowable to the party on the statute 28 Hen. 8. Though a port be locus publicus uti pars oceani, yet it has been resolved more than once, with respect to all ports, that not only the town, but the water is infrà corpus 1 last, 391, comitatus.

Vide 14
Jac, in B.

R.

Moore 758.
Plac. 104.

Inst. 112.

3

Jure Mar,

P.

If a pirate enters into a port or haven of this kingdom, and assaults and robs a mer-Molloy de chant ship at anchor there, this is not piracy, because the same is not done super altum p.71...zi. mare, upon the high sea, but a downright robbery at common law, for that the act is infrà corpus comitatus, and was inquirable and punishable by the common law before the statute of 28 Hen. 8. cap. 15. An instance of which was in Hide & Al. who robbed the ship of one captain Slue of some merchandize, appertaining to Mr. Moss, a merchant in London, and for which they were indicted at the common law, and found guilty, anno 22 Car. 2. at the Old-Bailey.

By the recited act of 11 Will. 3. it is, amongst other things, enacted, that all piracies 10 Glee, 8, and robberies committed on the sea, or in any haven or place, where the admirals have P. power or jurisdiction, may be examined and adjudged, according to the directions of

VOL, I.

SA

the act, in any place at sea or land, to be appointed by the King's commission.* And also, that if any of his Majesty's natural-born subjects, or denizens of this kingdom, shall commit any piracy or robbery, or act of hostility, against others of his Majesty's subjects on sea, under colour of commission from any foreign prince or state, or pre-, tence of authority from any person, they shall be deemed pirates, felons, and robbers, and being convicted according to the said act, or of 28 Hen. 8. therein recited, shall suffer such pains of death, &c. as pirates, &c. ought to have and suffer: And whereas, : during the war with France and Spain, divers subjects have entered into the service of his Majesty's enemies, on board privateers, or other ships, having commissions from the crowns of France and Spain, and committed hostilities against his Majesty's subjects on the seas, in the West Indies, &c. and as doubts have arisen whether, as such offenders have been guilty of high treason, they can be guilty of felony within the intent of the said act, and as such be tried by the Court of Admiralty thereby appointed; to put an 18 Gen. 2. end to the said doubts, therefore, it is enacted, that all persons, being natural-born subjects or denizens of his Majesty, who, during the present or any future wars have committed, or shall commit, any hostilities on the sea, or in any haven, river, creek, or place where the admirals have power of jurisdiction, may be tried as pirates, felons, and robbers, in the said Court of Admiralty, on ship-board, or on land, as persons guilty of piracy, &c. are by the said act directed to be tried; and being convicted thereof, shall suffer such pains of death, loss of lands, goods, and chattels, as other pirates, &c. by the said act of 11 Will. 3. or any other act, ought to suffer.

p. 661.

P. 662.

Mcore 756, 1 Jac. Par. 1044.

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Geo. 2. p. 1055.

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Any person who shall be tried and acquitted, or convicted according to this act, for any of the said crimes, shall not be tried again for the same fact, as high treason. See s Inst. 112.. 1 Hawk, P. C. c. 281.

Nothing in this act shall 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 28 Hen. 8.

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If such a robbery be made in a creek or port, in such cases, it has by some been conceived that clergy is allowable, upon the statute of 28 Hen. 8. but, if it be done super altum mare, there is no such allowance, as was ruled by the opinion of Sir Lionel Jen, kyns, and the rest of the Judges, upon the piracy committed by Cusack and others, who were executed anno 1674. And if the robbery be committed on great rivers, within the realm, esteemed always as common highways, there it has formerly been doubted, whether the benefit of clergy ought to be granted; however it was seemingly settled by the Judges in the aforesaid case of Hide, and was confirmed by the following act, viz.

Divers wicked and evil-disposed persons, being encouraged to commit robberies and theft upon navigable rivers, &c. by the privilege, as the law now is, of being admitted to the benefit of their clergy; for the, more effectual preventing such felonies for the future, is is enacted, that all persons, who shall at any time, from and after the 24th of June, 1751, feloniously steal any goods or merchandize, of the value of 40s. in any P. 1056, ship, barge, lighter, boat, or other vessel or craft, upon any navigable river, or in any port of entry or discharge, or in any creek belonging thereto, or from off any wharf or quay adjacent to any navigable river, port of entry or discharge, within Great Britain, or shall be present and assisting in committing any of the said offences, being thereof convicted or attainted, or being indicted, shall of malice stand mute, or will not directly answer to the indictment, or shall peremptorily challenge above twenty persons returned to be of the jury, shall be excluded from the benefit of clergy.

By stat. 32 Geo. 2. c. 25. s. 20. a session of Oyer and Terminer and Goal Delivery for the trial of offences committed upon the high seas, within the jurisdiction of the Admiralty of England, shall be holden twice in every year at the Old Bailey.

308.

"One Cobham was arraigned in Southwark, before the cominissioners of Oyer and 3 Inst. 114. Terminer, for a piracy and robbery committed on a Spaniard, and refusing to plead, it er. 241, was moved by the Attorney-General, whether he ought not in this case to have the peine forte & dure, and it was the opinion of the court he should from the words and reasonable intendment of the statute 28 Hen. 8. c. 15. and judgment was given accordingly. But by 12 Geo. 3. c. 20. standing mute in piracy amounts to a conviction, and the court shall award the same judgment as on a conviction by verdict or confession. 1 Hawk. P. C. 281.

If a man is taken on suspicion of piracy, and a bill is preferred against him, and the jury find ignoramus, and the Court of Admiralty will not discharge him, that of the King's Bench will grant a Habeas Corpus, and if there be a good cause, discharge him, or at least admit him to bail; but if the court suspects that the party is guilty, perhaps they may remand him; and therefore in all cases, where the Admiralty legally have an original or a concurrent jurisdiction, the courts above will be well informed before they will meddle or interfere. See the case of the King v. Marsh. 3 Bulst. 27.

Crol. El.

Aiding or assisting the escape of a man in custody for piracy, though the matter is Yelvert. an offence at land, yet the admiralty having jurisdiction to punish the principal, has . 131. likewise power to punish such an offender, who is looked upon quasi an accessary to the 685. Cro. piracy; but on rescuing a prisoner from an officer of their's, they may examine the stiles, 171, cause, but they cannot proceed criminally against the offender.

The exemplification of the sentence of the Court of Admiralty, under their seal, is conclusive evidence in a court of common law.

*

Jac. 269.

340.

And although the statute of 28 Hen. 8. c. 15. does not alter the offence, or make it Lord Rayfelony, but leaves it as it was before that statute, viz. felony only by the civil law, and mond, 893. gives a mean of trial by the common law, and inflicted such pains of death, as if they had been attainted of any felony; yet it was resolved by all the judges and the rest of the commissioners then present, that his Majesty having granted letters of reprisal † to Sir Edmund Turner and George Carew, against the subjects of the States General of the United Provinces, which grant was afterwards called in by proclamation, then notified in the treaty of Breda, and finally suppressed under the great seal; that several having put in execution the said commission, under a deputation from Carew only, without Turner, were indicted for piracy, though they were acquitted, as it was decreed that the same was not a felonious and a piratical spoliation in them, but a caption in order to an adjudication; and though the authority they acted under was deficient, yet not being done by the captain and his mariners, animo depredandi, it could by no means be made piracy.

It has been customary to grant commissions to the commanders of ships bound to the East Indies, for the seizing of pirates, and as I find they have always been to the same purpose, though sometimes variously worded, I shall add the copy of one of them. taken from the original.

ANNE, R..

ANNE, by the Grace of God, Queen of England, Scotland, France, and Ireland, Defender of the Faith, &c. to our trusty and well-beloved A. B. commander of the ship. Triton, burthen four hundred and twenty tons, thirty guns, and seventy men, of to any other the commander of the same for the time being, greeting; whereas, we are informed there are several pirates and sea róvers, which do infest the seas of India," whither you are now going, we have therefore thought fit to authorise and impower,

Sess. Admir. Feb. 18, 1680. Case of Compton Gwithe, & al.

+ Mentioned ante:

10 Rep. 109. Dyer

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and accordingly do by these presents authorise and impower you, to apprehend, seize, and secure the persons of any such pirates, free-booters, and sea rovers, being either our own subjects, or of other nations associated with them, as you shall meet with in any of the ports or places, or upon any of the coasts or seas of India, or in any other seas whatsoever, together with their ships and vessels, and all such merchandize, money, goods, and wares, as shall be found on board, or with them, in case they shall willingly yield themselves; but if they will not submit without fighting, then you are by force to compel them to yield: and we do also require you to bring, or cause to be brought, such pirates, free-booters, and sea rovers, as you shall seize or take, to a legal trial, to the end they may be proceeded against with the utmost severity of law. And we do hereby enjoin you to keep an exact journal of your proceedings in the execution of the premises, and therein set down the names of such pirates, and of their officers and company, and the names of such ships and vessels, as you shall, by virtue of these presents, seize and take, and the quantities and qualities of all arms, ammunition, provi sion, and lading of such ships and vessels, and the true value of the same as near as you can judge, and also to secure and take care of all bills of lading, invoice, cockets, charterparties, and all other papers and writings, of what kind soever, as shall be found on board such ships and vessels: and we do hereby strictly charge and command you, as you will answer the same at your utmost peril, that you do not in any manner offend or molest any of our subjects, or the subjects of our friends and allies, their ships or goods, by colour or pretence of these presents, or the authority hereby granted. In witness whereof, we have caused our great seal of England to be affixed to these presents. Given at our Court at St. James's the thirteenth day of October, 1704, in the third year of our reign."

In the admiral's patent, he has granted to him bona piratarum; the proper goods of 269. Jenk. pirates only pass by this grant, and not piratical goods. So it is of a grant de bonis Cent. 325. felonum, the grantee shall not have goods stolen, but the true and rightful owner: but the King shall have the piratical goods, if the owner be not known.

When a pirate is condemned and executed, he is commonly hung in chains on a gibbet fixed by the river side, as an object to deter others from following such courses which might, sooner or later, bring them to the same unhappy end.

During the war, commenced in 1756, several persons, masters of privateers, were executed for piracy; the facts were, that neutral ships, Dutch and Danes, were stripped in the English Channel by small privateers, and plundered, sometimes by the masters and people of the privateer disguised, at other times more openly. This occasioned the new act concerning privateers, inserted under that article. See ante.

OF CONVOYS AND CRUISERS.

THE Word Convoy, in a mercantile sense, means a fleet, or any number of merchant vessels sailing together to a particular place of destination under protection. And the protection granted to them by the marine department of the state to which they belong, consisting of one or more ships of war, is likewise called a Convoy.

The King of Great Britain in time of war grants convoys for the protection of his.. subjects carrying on their commerce on the ocean, upon application being made by the merchants to the commissioners for executing the office of Lord High Admiral, who appoint such a force as they think proportioned to the danger they are likely to en counter from the enemy on their voyages; and even in times of peace, convoys are

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