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which their Lordships have received from the Lieutenant-Governor of New York, and of a report made to him by commissioners, appointed by a special commission for the trial of the master, mate, and several of the crew of a privateer, charged with the murder of some men belonging to his Majesty's ship Winchester, committed within a bay of that province.
I am further directed to acquaint you that the law of New York upon which the commission for the trial of these persons was founded, was repealed by Order in Council of the 5th of September, 1700, upon consideration of which, and of the statutes of Great Britain which have reference to Admiralty jurisdiction, a doubt has occurred to their Lordships whether there is in the colony of New York, or in any other of his Majesty's colonies in America (unless by laws which may have been passed in the said colonies) any sufficient authority for the trial and punishment of murder committed upon the seas within the Admiralty jurisdiction in the said colonies; and, therefore, their Lordships desire the favour of your opinion upon the following questions as soon as conveniently may be, to the end that if there should be a want of such authority, some remedy may be provided as soon as possible:—
Question 1. Does the Act of 28 Hen. 8, c. 15, entitled "For Pirates" (being passed before the establishment of any of the British colonies), extend to the said colonies? and if it does, how are the regulations therein set down to be executed?
We are of opinion that the statute 28 Hen. 8 does extend to the case of murder committed anywhere on the high seas; and consequently that a commission might issue in the present case into any country within the realm of England, to try the offenders who might be brought over for that purpose, and the witnesses examined and a jury sworn before such commissioners, unless that mode of inquiry and trial should be deemed inconvenient.
Question 2. Does the Act of 11 & 12 Will. 3, c. 7, entitled "An Act for the Effectual Suppression of Piracy," or the 7th section of the Act of 4 Geo. 1, c. 11, entitled "An Act for the further preventing Robbery, Burglary, &c.," contain sufficient authority for the trial and punishment of persons guilty of murder upon the seas or waters within the Admiralty jurisdiction in the plantations?
We are of opinion that neither of the Acts of Parliament mentioned in this qusere were intended to affect the case of murders; they relate merely to such felonies as are equal, or inferior, to the species particularly expressed.
Question 3. If the Act of 28 Hen. 8, c. 15, does not extend to America, and neither the Act of 11 and 12 Will. 3, c. 7, nor the 7th section of the Act of 4 Geo. 1, c . 11, do contain sufficient authority for the trial and punishment of persons guilty of murder upon the seas or waters within the Admiralty jurisdiction in the plantations; by what other authority and jurisdiction are such persons to be tried and punished in the said plantations?
We have already said, in answer to the first quaere, that the statute of Henry VIII. does extend to the present case; but, if that method of trial and proceeding should be found inconvenient, it will be proper to apply to the legislature for some new provision adapted to such case.
Whitehall, Nov. 5, 1761. C. Yorke.
NOTES TO CHAPTER IV.
Jurisdiction The jurisdiction of Vice-Admiralty Courts in Her Majesty's possesof Viec-Admi- 6i0ns abroad is regulated by statute 26 & 27 Vict. c. 24, extended and ralty Courts. amended hy statute 30 & 31 Vict, c. 45. Under sect, 16 of the latter Act, it is made lawful for Her Majesty to empower the Admiralty, by commission under the great seal, to establish Vice-Admiralty Courts in any British possession, notwithstanding that such possession may have previously acquired independent legislative powers. See as to Admiralty jurisdiction abroad, Barton v. The Queen, 2 Moore, P. C. 19 (Gibraltar); Rokt v. The Queen, L. R. 1 P. C. 198 (Sierra Leone); Cassanova v. The Queen, ib. 115 (as to the time limited for appeal). Piracy. i Piracy is defined to be the offence of depredation on the seas without authority from any sovereign state, or with commissions from different I sovereigns at war with each other: Wheaton, s. 122. It has been doubted how far it is lawful to cruise under commissions from different sovereigns allied against a common enemy; but the weight of authority seems to be in favour of the opinion that it is illegal, although not an act of piracy. The reason assigned is because the two cobelligerents may have adopted different rules of conduct respecting neutrals, or may be separately bound by engagements unknown to the party acting under the different commissions: Ibid. s. 123. It is not piracy:if ji privateer or other armed vessel commissioned against one nation, depredates upon another. Offences of this kind entitle the injured party to compensation, hut the jurisdiction belongs to the vessel's sovereign who is responsible for the conduct of his officer: Wheaton, s. 122; Woolsey's Internat. Law, s. 137. As to the question whether rebels cruising in the high seas against the property of tho parent state aro to be considered as pirates, the reader may consult a long note (84) in Dana's 6th edit, of Wheaton, s. 124. It is not every act of plunder and violence on the high seas that constitutes piracy, but it must be said that the offenders at the time are, in fact, free from lawful authority, which they may be by their own deed—so as to be in the predicament of outlaws: see note 83 to Dana's 8th edit, of Wheaton. Thus an act of robbery or murder committed on board a ship on tho high seas which remains under the lawful control of its officers is not piracy; but if tho control of the ship is unlawfully taken away, this is in itself an act of piracy, and so are crimes of plunder and violence committed by the crew of a vessel eo unlawfully in their possession. "It is of no importance, for the purpose of giving jurisdiction, on whom or where the piratical offence has been committed; the pirate is one who by the law of nations may be tried and punished in any country in which he is found:" Kent's Com. i. 186. By statute 28 Hen. 8, c. 15, "treasons, felonies, robberies, murders to compel crews" committed on the sea were to be tried in such shires and places in the realm as .should be limited by the King's commission; other statutes were passed with respect to the trial of such offences, but these have all been repealed, so far as they relate to the punishment of piracy, by 7 Will. 4 and 1 Vict. c. 88, which is now the governing Act on tho subject. "Every man, by the usage of our European nations, is justiciable in tho place where the crime is committed; so are pirates, being reputed out of the protection of all laws and privileges, and to be tried at what ports soever they may be taken:" Sir L. Jenkyns's Works, ii. 714. It would seem to follow that a pirate, although a foreigner, is not entitled to a / jury de medietale. So far we have been speaking of piracy by the law of nations; but there may bo piracy created by municipal law, and this can only be tried by the State within whoso territorial jurisdiction and on hoard of whose vessels tho offence so created was committed: Wheaton, s. 124. "When tho crime consists in having overpowered the ship, it becomes a crime within tho jurisdiction of every civilized nation; hut other cases of robbery on board a ship may be cases of piracy by the municipal law of a country, though not de jure gentium:" per Blackburn, J., Be Tertian, 33 L. J. (M. C.) 211. "Statutes in one country may declare an offence committed on board one of its own vessels to be a piracy, and such an offence may be punishable exclusively by the nation which passed the statute:" Kent's Com. i. 186; and see \ 7 Will. 4 and 1 Vict. c. 88, the Act there referred to. By stat. 4 Geo. 4, c. 113, slave-trading is created piracy: see It. v. Zulueta, 1 C. & K. 215. It has been decided that attainder of piracy docs not work cor
ruption of blood, " for it was no offence at common law:" B. v. Morphet, 1 Salk. 85 (i). It is not very easy to understand this, for by the old common law, piracy, if committed by a subject, was held to be a species of treason; and if by an alien, it was felony—but after the statute 25 Edw. 3, c. 2, it was held to be only felony in a subject: 3 Inst. 113. See as to piracy, ii. v. Hastings, 1 Mood. C. C. 82; B. v. Macgregor, 1 C. & K. 430, and several cases in the State Trials.
(i) Piracy, as is well known to the classical scholar, was not thought a disreputable calling in the heroic ages of Greece: see Homer, Od. iii. 73; Thucyd. i. 5. Cicero says: Pirata non est in perduellium numero definitut, ted communis hostu omnium.—De Off. iii. 29.
ON CERTAIN PREROGATIVES OF THE CROWN.
(1) Lands In The Colonies; (2) Grants; (3) Escheats; (4) Mines; (5) Treasure Trove; (6) Royal Fish; (7) Felons' Goods; (8) Writ Ne Exeat Regno; (9) Proclamations (in Note) ; (10) Cession Of TerriTory; (11) Erection Of Courts Of Justice.
(1.) Joint Opinion of the Attorney and Solicitor General, Sir Edward Northey and Sir William Thomson, on the King's Bight to the Three Lower Counties on Delaware. 1717.
Sir,—The Lords Commissioners for Trade and Plantations having, by your letter of the 13th of February last, required our opinion on the petition of the Earl of Sutherland, praying for a charter of certain lands lying upon Delaware Bay, in America, commonly called the three lower counties, whether it be in the power of the Crown to dispose of those lands petitioned for; which petition had been referred to their Lordships by his Majesty; and his Majesty having been also pleased to refer the said petition to us, we have made our report thereon to his Majesty, and enclosed, have sent you a copy of the said report, which may serve for an answer to the question proposed to us by their Lordships.
Edward Northey. October 28,1717. W. Thomson.
To the King's Most Excellent Majesty.
May It Please Your Majesty,—In humble obedience to your Majesty's commands, signified to your Majesty's Attorney General by the Lord Viscount Stanhope, when Secretary of State, on the memorial of the Right Honourable John, Earl of Sutherland, and your Majesty having been pleased also to signify your commands by Mr. Methuen, when Secretary of State, to refer the said memo