(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.

Quære 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?

Quære 2. Whether, by this proclamation, murders committed by such pirates are pardoned?

Quære 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?

Quære 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 Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to us by Mr. Popple, we have considered of the annexed quæries, proposed to us by your Lordships; and as to the first quære, "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 quære," whether, by this proclamation, murders

I

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 quære, "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 quare, "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 quære, 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.

EDW. NORTHEY.
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

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 :

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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 quære 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 quære, 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.

G. HAY.

C. YORKE.

F. NORTON.

Jurisdiction

NOTES TO CHAPTER IV.

The jurisdiction of Vice-Admiralty Courts in Her Majesty's possesof Vice-Admi- sions abroad is regulated by statute 26 & 27 Vict. c. 24, extended and ralty Courts. amended by 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); Rolet 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.

Piracy is defined to be the offence of depredation on the seas without authority from any sovereign state, or with commissions from different 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 a privateer or other armed vessel commissioned against one nation, depredates upon another. Offences of this kind entitle the injured party to compensation, but 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 the parent state are 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 the high seas which remains under the lawful control of its officers is not piracy; but if the 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 so 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 the subject. "Every man, by the usage of our European nations, is justiciable in the 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 medietate. So far we have been speaking of piracy by the law of nations; but there may be piracy created by municipal law, and this can only be tried by the State within whose territorial jurisdiction and on board of whose vessels the offence so created was committed : Wheaton, s. 124. "When the crime consists in having overpowered the ship, it becomes a crime within the jurisdiction of every civilized nation; but 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., Re Ternan, 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 R. v. Zulueta, 1 C. & K. 215. It has been decided that attainder of piracy does not work cor