« EelmineJätka »
11 and 12 W.
force upon the captain, and the carrying away the ship, which was explained by the use of it afterwards, was adjudged piracy; and they were executed. (h) But in a subsequent case where the master of a vessel loaded goods on board at Rotterdam, consigned to Malaga, which he caused to be insured, and after he had run the goods on shore in England the ship was burned, when he protested both the ship and cargo as burned, with intent to defraud the owner and insurers; the Judges of the common law, who assisted the Judge of the Admiralty, directed an acquittal upon an indictment for piracy and stealing the goods; because, being only a breach of trust and no felony, it could not be piracy to convert the goods in a fraudulent manner until the special trust was determined. ©
It has been decided to be an offence within the statute 11 and 12 Case upon. W.3. c. 7. s. 9. to make a revolt in a ship, or to endeavour to make
Take 3. c. 7. 8. 9. one, though the object was not to run away with the ship, or to Making a coinmit any act of piracy, but to force the captain to redress sup- revolt in a posed grievances. The prisoners were charged by the first count si of the indictment with betraying their trust and turning pirates, and with confederating piratically and feloniously to steal and run away with the ship; by the second, with piratically and feloniously attempting to corrupt other persons of the crew so to steal and run away with the ship; by the third, with piratically and feloniously inciting a revolt in the ship, the master being on board; and, by the fourth, with endeavouring to make such revolt. All the counts concluded against the form of the statute. It appeared clearly from the evidence that there was a revolt in the ship, and that the prisoners participated; refusing to obey orders, and being guilty of many acts of insubordination and violence. The counsel for the prisoners endeavoured to shew, that the prisoners and their adherents had in view a redress of supposed grievances, and not the intention of assuming the command for the purpose of carrying off the ship: and though there was some evidence that the prisoners had an ulterior object than that of redressing ill-usage, of which it appeared they had complained, yet their acquittal upon the two first counts led to the conclusion that the jury did not impute to them any other real intention than that of redressing their supposed grievances. The point made by the prisoners' counsel, and submitted to the consideration' of the Judges, was, that in order to satisfy the intent of the statute, and the words of the indictment, “piratically and feloniously revolted,” the object of the revolt must have been to take possession of or to run away with the ship, or to enable the prisoners to commit some act of piracy, and not merely to resist the captain's authority in order to force him to redress alleged grievances. But the Judges who (with the exception of Best, L. C. J. and Littledale, J.) met and considered this case, were unanimously of opinion, that making or endeavouring to make a revolt, with a view to procure a redress of what the prisoners thought grievances, and without any intent to run away
(h) Rex v. May, Bishop, and others, Nov. 1696, MS, Tracy 77.* 2 East. P. C. c. 17. s. 3. p. 796.
(0) Mason's case, Old Bailey, 9 Geo. 1. on a special commission, 8 Mod. 74. 2 East. P. C. c. 17. s. 3. p. 796. S. C.
with the ship, or to commit any act of piracy, was an offence within Il and 12 W.3. c. 7. s. 9., and that the conviction was therefore
right. (2) Case on the
Upon an indictment on the statute 18 Geo. 2. c. 30. a question 18 Geo. 2. c. 30. adhering
was made whether adhering to the King's enemies in hostilely
was made to the king's cruising in their ships could be tried as piracy under the usual
emies tria- commission granted by virtue of the statute 28 Hen. 8. c. 15. ble as piracy.
The statute 18 Geo. 2. recites that doubts had arisen whether subjects entering into the service of the king's enemies, on board privateers and other ships, having commissions from France and Spain, and having by such adherence been guilty of high treason, could be deemed guilty of felony within the intent of the act of 11 and 12 W. 3. c. 7, and be triable by the court of Admiralty appointed by virtue of the said act; and then enacts that persons who shall commit hostilities upon the sea, &c. against his Majesty's subjects by virtuc or under colour of any commission from any of his Majesty's enemies, or shall be any otherwise adherent to his Majesty's enemies upon the sea, &c. may be tried as pirates, felons, or robbers, in the said Court of Admiralty in the same manner as persons guilty of piracy, felony, and robbery, are by the said act directed to be tried : but it does not say that they shall be deemed pirates, &c. as in the stat. 11 and 12 W. 3. c. 7. The prisoner having been convicted, the question was reserved for the considera tion of the Judges; and it was agreed by eight who were present,(k) that the prisoner had been well tried under the commission. For that taking the two statutes of 11 and 12 W. 3. and 18 Geo. 2. together, and the doubt raised in the latter, and also its enactment that in the instances therein mentioned, and also in case of any other adhering to the king's enemies, the parties might be tried as pirates by the Court of Admiralty according to that statute, it was substantially declaring that they should be deemed pirates; and that it was a just construction in their favour to allow them to be
tried as such by a jury. (1) Receiving, &c. The 48 Geo. 3. c. 130. s. 7, 10, 49 Geo. 3. c. 122. s. 1. and s. 13, stolen an 16. and 1 and 2 Geo. 4. c. 75. (a) relate to the unlawfully keeping chors, &c.
possession of anchors and other materials belonging to ships, and
the receiving of such stolen articles, &c. Of accessories Accessories to piracy were triable only by the civil law if their 11 and 12 W. 3. c. 7.
offence was committed on the sea, and were not triable at all if
(z) Rex v. Hastings and Meharg, section of the 18 Geo. 2. c. 30, proEast. T. 1825. Ry. and Mood. 82. vides that the act shall not prevent
(K) Lord Loughborough, Lord C.B. any offender who shall not be tried Skynner, Gould, J. Willes, J. Ash- according thereto from being tried for hurst, J. Eyre, B. Perryn, B. and high treason within this realm accordHeath, J., who met Nov. 11, 1782. ing to the stat. 28 Hen. 8. c. 15.
(1) Evans's case, MS. Gould, J. I East. a) Post, Book IV. Chap. xxiii. P. C. c. 17. s. 5. p. 799, 799. The third
“thereupon do or commit any such piracy or robbery, then all and “ every such person or persons whatsoever, so as aforesaid setting “ forth any pirate, or aiding, assisting, maintaining, procuring, 6 commanding, counselling, or advising, the same either on the “ land or upon the sea, shall be and are hereby declared, and shall “ be deemed and adjudged to be accessory to such piracy and roba “ bery, done and committed; and further, that after any piracy or “ robbery is or shall be committed by any pirate or robber what
*** “soever, every person and persons, who, knowing that such pirate “ or robber has done or committed such piracy and robbery, shall “ on the land or upon the sea, receive, entertain, or conceal, any “such pirate or robber, or receive or take into his custody any ship, “ vessel, goods, or chattels, which have been by any such pirate or “ robber piratically and feloniously taken; shall be, and are hereby “ likewise declared, deemed, and adjudged, to be accessory to such “ piracy and robbery.” And then the statute directs that all “such accessories to such piracies and robberies shall be inquired “ of, tried, heard, determined, and adjudged, after the common “course of the laws of this land, according to the statute 28 Hen. 8. “ as the principals of such piracies and robberies may and ought to “ be, and no otherwise: and being thereupon attainted, shall suffer “ such pains of death, losses of lands, goods, and chattels, and in “ like manner, as such principals ought to suffer, according to the “statute 28 Hen. 8. which is thereby declared to continue in full "force.”
A subsequent statute, however, makes an alteration with respect But acces-, to the accessories described in Il & 12 W. 3., and declares them
clared to be to be principals, and that they shall be tried accordingly. The principals, statute is the 8 Geo. 1. c. 24., which in the third section reciting and are to be that “whereas there are some defects in the laws for bringing in
tried accord“persons who are accessories to piracy and robbery upon the seas Geo. 1. c. 24. “to condign punishment, if the principal who committed such “piracy or robbery is not or cannot be apprehended and brought " to justice,” enacts, “ that all persons whatsoever, who by the “ stat. 11 & 12 W. 3. are declared to be accessory or accessories " to any piracy or robbery therein mentioned, are hereby declared “ to be principal pirates, felons, and robbers, and shall and may “be enquired of, heard, determined, and adjudged, in the same “ manner as persons guilty of piracy and robbery may, according “ to that statute; and being thereupon attainted and convicted, “shall suffer death and loss of lands, &c. in like manner as pirates " and robbers ought by the said act to suffer.” And the fourth section of the statute excludes all such offenders from the benefit of clergy.
It has been fully settled that one who knowingly receives and abets a pirate within the body of a county is not triable by the common law, the original offence being cognizable alone by another jurisdiction. (m)
(m) Admiralty case, 13 Co. 53. And a pirate to escape out of prison ; and, a little before this case the law appears on a return to a habeas corpus, the to have been so considered in the case prisoner was remanded, though it apof one Scadding, who was committed peared that the fact was committed by by the Court of Admiralty for aiding him within the body of a county. The
who shal felons, ded froers c
ind robbe heir clergy; any pira.com
Of clergy in The 28 H. 8. c. 15. takes away clergy in the cases of piracy to cases of piracy, which that statute ar and offences
Yo which that statute applies :(n) and some of the offences made committed on piracy by subsequent statutes are also expressly excluded from the high seas. clergy. The statute 4 Geo. 1. c. ll. s. 7. enacts that all persons
who shall commit any offence for which they ought to be adjudged pirates, felons, and robbers, by the statute 11 & 12 W.3. c. 7., shall be excluded from their clergy. (o) And by the 8 Geo. 1. c. 24. s. 4. all offenders convicted of any piracy, &c. by virtue of that act are also excluded from clergy. With respect to other offences than piracy committed upon the high seas, the 39 Geo. 3. c. 37. makes a provision, after reciting the statute 28 Hen. 8. c. 15., and the offences of treason, felony, robbery, murder, and confederacy, thereby directed to be tried under the King's commission, and that it would be expedient to declare that other offences committed on the seas might be enquired of, tried, and determined in like manner. It enacts, and declares that all offences which shall be committed upon the high seas out of the body of any county of the realm, shall be (and they are thereby declared to be) offences of the same nature respectively, and liable to the same punishments respectively, as if they had been committed upon the shore, and shall be enquired of, heard, tried, determined, and adjudged, in the same manner as treasons, felonies, murders, and confederacies, are directed to be by that statute. The second section of this statute, 39 Geo, 3., enacts, that when any person shall be tried for the crime of murder or manslaughter committed upon the sea, by virtue of a commission under the 28 Hen. 8., and shall be found guilty of manslaughter only, such person shall be entitled to the benefit of clergy as if such manslaughter had been committed on the land. This enactment appears to have occasioned soine doubts whether persons so tried under a commission for any other crime than those of murder and manslaughter were entitled to the benefit of clergy ; (p) and, consequently, it is enacted by 1 Geo. 4. c. 90. s. 1. that when any person shall be tried for any capital offence committed upon the sea, out of the body of any county of this realm, and within the jurisdiction of the Adiniralty, by virtue of any commission directed under the said act of the 28 Hen. 8., and shall be found guilty of any offence which, if committed upon land, would be clergyable, such person
Court of K. B. holding; that because mitted on the high scas, and those Scadding's offence depended on the committed in creeks and rivers within piracy committed by the principal, of the body of a county; considering the which the temporal judges had no coge latter as within the restoring clause of nizance, and was, as it were, an acces- 1 Ed. 6. c. 12.; and as intimating that sorial offence to the first piracy which the distinction will reconcile 1 i Rep. was determinable by the Admiral, it 31 b, with the other authorities. was a sufficient ground for remanding (0) It should be observed of this him. Yelv. 134. 2 East. P. C. c. 17. act of Geo. 1. that by s. 8. it is not to s. 14. p. 810.
extend to such as are convicted or at, (n.) See the stat. s. 3., and 2 East. tainted in Scotland ; but that by s. 9. P. C. c. 17. s. 15. p. 810., where the it is to extend to all the King's domireasons are given why clergy is not nions in America. extended to this offence by the statute (P) See the preamble to i Geo. 4. c. I Ed. 6. c. 12.: and 2 Hawk. P. C. c. 90. And see i Ed. 6. c. 12. s. 10. and 33. s. 41. is referred to as distinguish- 2 Hale 17. ing between such piracies as are com
shall be entitled to receive the benefit of clergy in respect of such offence in like manner, and shall be subject to the same punishment for such clergyable offence as if it had been committed upon the land.
Of the Place in which the Offence may be committed.
TAE statute 28 Hen. 8. c. 15. s. l. enacts that all treasons, 28 H. 8. c. 15. felonies, robberies, murders, and confederacies, committed in or Offences to be
he tried in the upon the sea, or in any haven, river, creek, or place, where the ,
1 places limited Admiral has, or pretends to have, power, authority, or jurisdic- by commistion, shall be enquired, tried, &c. in such shires and places as sion. shall be limited by the King's commission, as if any such offences had been committed upon the land.
In a late case at the Admiralty session, of a murder committed Concurrentju. in a part of Milford Haven where it was about three miles over, risdi
ove, the common about seven or eight miles from the mouth of the river, or open law and Admisea, and about sixteen miles below any bridges over the river, a ralty in Mil
m ford haven, question was made whether the place where the murder was committed was to be considered as within the limits to which commissions granted under the statute 28 Hen. 8. c. 15. do by law extend. Upon reference to the Judges, they were unanimously of opinion that the trial was properly had. And it is said that during the discussion of the point the construction of this statute by Lord Hale(z) was much preferred to the doctrine of Lord Coke;(a) and that most, if not all of the Judges, seemed to think that the common law has a concurrent jurisdiction with the Admiralty in this haven, and in all other havens, creeks, and rivers, in this realm.(b) It appeared to them that the 28 Hen. 8. applied to all great waters frequented by ships; that in such waters the Admiral in the time of Henry 8. pretended jurisdiction ; that by havens, &c., havens in England were meant to be included, though they are all within the body of some county; and that the mischief from the witnesses being seafaring men was likely to apply to all places frequented by ships. (c)
It is clear that upon the open sea-shore the common law and High and low the Admiralty have alternate jurisdiction between high and low water-mark. water-mark :(d) but it is sometimes a matter of difficulty to fix (z) 2 Hale 16, 17.
the sea, and in none other places of (a) 3 lost. 11. 4 Inst. 131.
the same rivers; which jurisdiction is (6) Bruce's case, 2 Leach 1093. Russ. only concurrent with, and not in ex& Ry. 243. This was a case of mur- clusion of, the common law. 1 East. der. The stat, 15 Rich. 2. c. 3. gives P. C. p. 368. the Admiral jurisdiction to enquire of (c) MS. Bayley, J. the death of a man, and of a mayhem (d) 3 Inst. 113. 2 Hale 17.; and see done in great ships boyering in the 2 Hawk. c. 9. s. 14, as to the jurisdicmain stream of great rivers, beneath tion of the coroner in offences on the the bridges of the same rivers pigh to sea-shore.