Case on the enemies tria ble as piracy. with the ship, or to commit any act of piracy, was an offence within 11 and 12 W. 3. c. 7. s. 9., and that the conviction was therefore right. (z) 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 to the king's cruising in their ships could be tried as piracy under the usual commission granted by virtue of the statute 28 Hen. 8. c. 15. 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 virtue 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 consideration 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. stolen anchors, &c. Of accessories 11 and 12 W. 3. c. 7. The 48 Geo. 3. c. 130. s. 7, 10. 49 Geo. 3. c. 122. s. 1. and s. 13, 16. and 1 and 2 Geo. 4. c. 75. (a) relate to the unlawfully keeping possession of anchors and other materials belonging to ships, and the receiving of such stolen articles, &c. Accessories to piracy were triable only by the civil law if their offence was committed on the sea, and were not triable at all if their offence was committed on land, until the statute 11 and 12 W. 3. c. 7. The tenth section of that statute enacts, "that every 66 66 person and persons whatsoever, who shall either on the land, or upon the seas, knowingly or wittingly set forth any pirate; or aid " and assist, or maintain, procure, command, counsel, or advise, any person or persons whatsoever, to do or commit any piracies or robberies upon the seas; and such (*) Rex v. Hastings and Meharg, East. T. 1825. Ry. and Mood. 82. (k) Lord Loughborough, Lord C. B. Skynner, Gould, J. Willes, J. Ashhurst, J. Eyre, B. Perryn, B. and Heath, J., who met Nov. 11, 1782. (1) Evans's case, MS. Gould, J. 1 East. P. C. c. 17. s. 5. p. 798, 799. The third person and persons shall section of the 18 Geo. 2. c. 30, provides that the act shall not prevent any offender who shall not be tried according thereto from being tried for high treason within this realm according to the stat. 28 Hen. 8. c. 15. (a) Post, Book IV. Chap. xxiii. 66 on "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, "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 rob66 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 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 66 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 to the accessories described in 11 & 12 W. 3., and declares them to be principals, and that they shall be tried accordingly. The statute is the 8 Geo. 1. c. 24., which in the third section reciting that "whereas there are some defects in the laws for bringing persons who are accessories to piracy and robbery upon the seas "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 little before this case the law appears to have been so considered in the case of one Scadding, who was committed by the Court of Admiralty for aiding a pirate to escape out of prison; and, But acces sories are declared to be principals, and are to be ingly by 8 Geo. 1. c. 24. tried accord The 28 H. 8. c. 15. takes away clergy in the cases of piracy to which that statute applies :(n) and some of the offences made piracy by subsequent statutes are also expressly excluded from clergy. The statute 4 Geo. 1. c. 11. 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. (0) 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 some 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 Admiralty, 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 (n) See the stat. s. 3., and 2 East. mitted on the high seas, and those committed in creeks and rivers within the body of a county; considering the latter as within the restoring clause of 1 Ed. 6. c. 12. and as intimating that the distinction will reconcile 11 Rep. 31 b. with the other authorities. (0) It should be observed of this act of Geo. I. that by s. 8. it is not to extend to such as are convicted or attainted in Scotland; but that by s. 9. it is to extend to all the King's dominions in America. (p) See the preamble to 1 Geo. 4. c. 90. And see i Ed. 6. c. 12. s. 10. and 2 Hale 17. 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. SECT. II. 28 H. 8. c. 15. Offences to be tried in the places limited Of the Place in which the Offence may be committed. THE statute 28 Hen. 8. c. 15. s. 1. enacts that all treasons, felonies, robberies, murders, and confederacies, committed in or upon the sea, or in any haven, river, creek, or place, where the Admiral has, or pretends to have, power, authority, or jurisdic- by commistion, shall be enquired, tried, &c. in such shires and places as shall be limited by the King's commission, as if any such offences had been committed upon the land. síon. risdiction of the common law and Admiralty in Milford haven, &c. In a late case at the Admiralty session, of a murder committed Concurrent juin a part of Milford Haven where it was about three miles over, about seven or eight miles from the mouth of the river, or open sea, and about sixteen miles below any bridges over the river, a 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(2) 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. (a) 3 Inst. 111. 4 Inst. 134. (b) Bruce's case, 2 Leach 1093. Russ. & Ry. 243. This was a case of murder. The stat. 15 Rich. 2. c. 3. gives the Admiral jurisdiction to enquire of the death of a man, and of a mayhem done in great ships hovering in the main stream of great rivers, beneath the bridges of the same rivers nigh to the sea, and in none other places of (c) MS. Bayley, J. (d) 3 Inst. 113. 2 Hale 17.; and see 2 Hawk. c. 9. s. 14. as to the jurisdiction of the coroner in offences on the sea-shore. the line of demarcation between the county and the high sea in harbours, or below the bridges in great rivers. The question is often more a matter of fact than of law, and determinable by local General rules. evidence: but some general rules upon the point are collected by Mr. East. He says, that "in general it is said that such parts of "the rivers, arms, or creeks, are deemed to be within the bodies "of counties, where persons can see from one side to the other. "Lord Hale, in his treatise De jure maris, says, that the arm or "branch of the sea which lies within the fauces terræ, where a "man may reasonably discern between shore and shore, is, or at "least may be, within the body of a county. Hawkins, however, "considers the line more accurately confined by other authorities, "to such parts of the sea where a man, standing on the one side "of the land, may see what is done on the other; and the reason "assigned by Lord Coke in the Admiralty case (s) in support of "the county coroner's jurisdiction, where a man is killed in such "places, because that the county may well know it, seems rather "to support the more limited construction. But at least, where "there is any doubt, the jurisdiction of the common law ought to "be preferred." (t) Shooting from the land, and killing on the sea. The question, whether the fact were committed on the sea or within the body of a county, is of main importance. For if it turn out that the goods were taken any where within the body of a county, the commissioners under the statute of Hen. 8. can have no jurisdiction to enquire of it; and if it should appear that the goods were taken at sea and afterwards brought on shore, the offender cannot be indicted as for a larceny in that county into which they were carried, because the original felony was not a taking of which the common law takes cognizance. (u) And the statute 39 Geo. 3. c. 37. (v) relates only to offences committed on the high seas, and out of the body of any county. It was decided that where A., standing on the shore of a harbour, fired a loaded musket at a revenue cutter, which had struck upon a sandbank in the sea, about one hundred yards from the shore, by which firing a person was maliciously killed on board the vessel, it was piracy; for the offence was committed where the death happened, and not at the place from whence the cause of death proceeded. (w) And if a man be struck upon the high sea, and die upon the shore after the reflux of the water, the Admiral, by virtue of his commission, has no cognizance of the offence.(x) And as it was doubtful whether it could be tried at common law, it is provided by statute that the offender may be indicted in the county where the party died. (y) The second section of the 28 Hen. 8. c. 15. introduces " manslaughters;" and uses the words "havens, &c." without the qualification in the first section, where the Admiral has a jurisdiction. One of the mischiefs recited in the first section is, that the wit |