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(11.) Joint Opinion of the Kings Advocate, Sir ChrisTopher Robinson, and the Admiralty Advocate, Mr. Arnold, on the appointment of H.R.H. the Duke of Clarence to be Lord High Admiral, and his Rights as such. 1827.
The Lord High Admiral's patent grants to him the appointment of Vice-Admirals, and in law they are termed his ViceAdmirals (5 Eliz. c. 6, s. 50). The practice has been invariable, so far as we learn, that during the time of a Lord High Admiral they shall be appointed in his name. That form was observed in the time of Prince George of Denmark and the Earl of Pembroke.
These instances occurred subsequently to the statute of 2 Will. & Mary 2, c. 2, and we refer to them more particularly because that statute having declared the powers of the Commissioners to be the same as those of the Lord High Admiral, has been supposed to render the forms used under Commissioners applicable also to acts done in the time of a Lord High Admiral. But it is to be observed that during the vacancy of the office of Lord High Admiral, the style and title of the office are merged in the Crown; the royal authority therefore alone is expressed.
In instruments issued in the reign of James II. in his name, the reason is explained: "Cum nos officium Domini Magni Admiralli Auglire nomine nostro regio exerceamus."
In the form of the sentence of condemnation of droits in modem times the condemnation also is expressed to be, " and to our Sovereign Lord the King, he enjoying the rights of the Lord High Admiral of Great Britain at present."
These instances, therefore, appear to confirm the right and title of the Lord High Admiral, when there is such an officer, to act in his own name in all things to be done under his patent, and we cannot venture to advise that it would be safe to depart from that form, otherwise than under the authority of the legislative enactments, if it should be deemed expedient to make any alteration.
It may be proper to direct the other particulars referred to in Mr. Swabey's letter, to be settled by the advice of counsel, or on further application to the Secretary of the Admiralty, when his Royal Highness' pleasure shall be signified on the form of the warrant,
Christ. Robinson. Doctors' Commons, May 19, 1827. J. H. Abnold.
(12.) Opinion of Sir Richard Lloyd, Judge of the Court of Admiralty, on the proceedings in Jamaica against Beane the Pirate (i).
May It Please Your Lordships,—In obedience to your Lordships' commands to report my opinion whether the trial and condemnation of John Deane for piracy by my Lord Vaughan, as Vice-Admiral to his Royal Highness in Jamaica, can be justified by law, as also what has been the practice of the High Court of Admiralty here before the statutes of the 27 & 28 Hen. 8, and since, as to the trial of pirates, I do most humbly certify your Lordships:—
1. That though it doth not appear by any instances out of the records in the Admiralty Court that pirates were de facto tried by the rules of the civil law (there being no record I can meet with to that purpose so ancient as the said statutes), yet I take it for granted they were so tried; for the said statutes were enacted, as in the preamble is expressed, to reform the trial that was by the civil law.
2. That ever since the said statutes, which were made when Henry, Duke of Richmond and Somerset, was High Admiral, neither the Lord High Admiral, nor his lieutenant or commissary, have (for aught appears) ever tried pirates but by commission of oyer and terminer under the Great Seal of England, directed to them and other justices.
3. There bo upon the Bill multitudes of such commissions in the times of the several admirals to this very day.
4. The Lord High Admirals of England, ever since the said statutes, have a clause in their patents whereby there is granted to them all amerciaments, issues, fines, and perquisites, mulcts and pecuniary pains, or forfeitures of whatsoever recognizances before the said High Admiral, their deputy or deputies, or any justices of
(t) From a M.S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott. 1676.
the Admiralty, assigned or to be assigned by commission of the King's Majesty under the great seal, to hear and determine all treasons, felonies, robberies, murders, homicides, confederacies, &c., after the course of the laws of the land, and custom of the Admiralty.
5. That the very same clause is in his Royal Highness' patent, whereby he is constituted Lord Admiral of the Foreign Plantations.
6. That by the statutes and ordinances made by Edward Lord Clinton, afterwards Earl of Lincoln, Lord High Admiral in the reign of King Philip and Queen Mary, every vice-admiral or his deputy is required, within half a year after he is so constituted, to procure such a commission in due form to be made under the great seal to them and other justices therein named, to hear and determine matters of piracy, &c.
All which being considered, I do most humbly conceive, with submission, that my Lord Vaughan, as Vice-Admiral to his Ro)Tal Highness, has not regularly proceeded in the aforesaid trial aud condemnation, for the Lord Admiral himself cannot, in his ordinary capacity, try piracy; but as he is chief in the commission of oyer and terminer, I must confess that Dr. Exton, in his book of the Sea Jurisdiction, cap. 17, doth affirm that the aforesaid statutes do not take away the Admiral's power of trial of the same offences by the course of the civil law, as had been formerly used, but leaveth him to proceed in causes of that nature either way, as the proof of the fact may be most fitly had or made, but I do not find that any have, since the said statutes, been otherwise tried than by commission. I am afraid his assertion will hardly be maintained. True it is that pirates and sea-rovers are, in the eye of the law, hostes humani generis; they are diffidati outlawed, as I may say, and out of the protection of the law of nations; every man is commissioned to seize and slay them, if they make opposition; but if they yield, or be taken, they are to be tried criminally according to the prescribed form, and the practice in such cases.
July 20, 1676. Richard Lloyd.
(10.) Joint Opinion of the Attorney and Solicitor General, Sir Edward Northey and Sir William Thomson, on the Pardon of Pirates in the Colonies. 1717.
Quaere 1. Whether the proclamation is a full and sufficient pardon to any persons who may have committed piracies and robberies upon the high seas in America within the time therein mentioned; or, if not, what steps must be taken to obtain it of the Governors in America?
Qusere 2. Whether, by this proclamation, murders committed by such pirates are pardoned?
Qusere 3. Whether the persons who have committed any robberies, or piracies, or any others, by that title can hold the monies and effects they may be so possessed of, and not liable to be prosecuted for them?
Quaere 4. Whether, if any persons having notice of this proclamation, should, between such notice and the 5th of January next, commit any piracies or robberies, are entitled to the benefit of it?
To the Right Honourable the Lords Commissioners for Trade and
May It Please Your Lordships,—In obedience to your Lordships' commands, signified to us by Mr. Popple, we have considered of the annexed quseries, proposed to us by your Lordships; and as to the first qusere, "whether the proclamation is a full and sufficient pardon to any persons who may have committed piracies and robberies upon the high seas in America within the time therein mentioned* or, if not, what steps must be taken to obtain it of the Governors in America," we are of opinion, that the proclamation does not contain a pardon of piracy, but only his Majesty's gracious promise to grant pirates such pardon on the terms mentioned in the proclamation, on which every subject may safely rely; but, that it will be reasonable for his Majesty to give instructions to his Governors in America, to grant the persons surrendering themselves according to the terms of such proclamation, his Majesty's most gracious pardon for piracies and robberies on the high seas.
As to the second quaere, " whether, by this proclamation, murders
committed by such pirates are pardoned," we are of opinion, that, where the murder is committed in the piracy, it was his Majesty's intention to pardon the murder so committed, and that, therefore, it may be reasonable, in the instructions to his Majesty's Governors, to direct them to insert in the pardons by them to be passed, of the piracies and robberies committed on the high seas, a pardon of all murders committed in the same.
As to the third quwre, " whether the persons who have committed any robberies, or piracies, or any other, by that title can hold the monies and effects they may be so possessed of, and not be liable to be prosecuted for them," we are of opinion that, as to the proper goods of the pirates, they being pardoned, the same will not be forfeited; but, as to the goods of other persons which they have taken unlawfully from them, the property thereof by such taking is not altered; but the owners, notwithstanding any pardon, may retake them, or they may recover the same by an action to be brought against the robber for the same.
And as to the fourth quaere, "whether, if any persons having notice of this proclamation, should, between such notice and the 5th of January next, commit any piracies or robberies, are entitled to the benefit of it," we are of opinion, that there is no exception of any notice in the proclamation, and his Majesty has been pleased to give his royal promise, which he will never break, to pardon pirates surrendering themselves, all piracies committed, or to be committed, before the said 5th day of January; and for preventing the mischiefs hinted at in this quaere, his Majesty's officers are to be diligent in apprehending all pirates, for his Majesty has not been pleased to promise pardon to any pirates but such as surrender voluntarily, according to the terms of the proclamation.
November 14, 1717. Wm. Thomson.
(11.) Joint Opinion of the King's Advocate, Dr. Hay, and the Attorney and Solicitor General, Hon. C. Yorke and Sir F. Norton, on the Admiralty Jurisdiction in the case of Murder committed on the High Seas. 1761.
Gentlemen,—I am directed by the Lords Commissioners for Trade and Plantations to send you the inclosed copies of a letter