28th. Hen. 8th. c. 15. “For Pirates.”2 Where Traytors, Pirates, Thieves, Robbers, Murtherers, and Confederates upon the Sea, many times escaped unpunished, because the Tryal of their offences, hath heretofore been ordered, judged and determined before the Admiral, or his Lieutenant or Commissary, after the Course of the civil Laws, the Nature whereof is, that before any Judgment of Death can be given against the offenders, either they must plainly confess their offences, (which they will never do, without Torture or Pains) or else their offences be so plainly and directly proved by Witness indifferent, such as saw their offences committed &c.3 for Reformation whereof be it enacted, That all Treasons, Felonies, Robberies, Murthers, and Confederacies, hereafter to be committed in or upon the Sea, or in any other Haven, River, Creek, or Place where the Admiral or Admirals, have or pretend to have Jurisdiction, Authority, or Power, shall be enquired, tried, heard, determined, and Judged, in such Shires and Places in the Realm, as shall be limited, by the Kings Commission, &c. as if the Offence done upon Land, &c. after the common Course of the Laws of this Realm.4

§. 2d. to enquire by the Oaths of twelve good and lawfull Men &c. in the shire limit in the Commission.5

11. and 12. W. 3, c. 7. An Act for the more effectual Suppression of Piracy.6

All Pyracies, Felonies, and Robberies, committed in, or upon the 286Sea, or in any Haven, River, Creek, or Place, where the Admiral or Admirals have Power, Authority, or Jurisdiction, may be examined, enquired of, tried, heard, determined, and adjudged, according to the directions of this act, and in any Place at sea, or upon the Land, in any of his Majestys Islands, Plantations, Colonies, Dominions, Forts or Factories to be appointed for that Purpose by the K's Commission &c. under the great seal of England, or the Seal of the Admiralty of England, directed to all or any of the Admirals, Vice Admirals, Reer Admirals, Judges of Vice Admiralties, or Commanders of any of his Majestys Ships of War, and also to all or any such Person or Persons as his Majesty shall please7 to appoint; &c. which said Commissioners shall have full Power jointly or severally, by Warrant under the Hand and seal of them or anyone of them to commit to Safe Custody, any Person &c. vs. whom Information of Pyracy, Robbery or Felony upon the Sea shall be given upon oath &c.8 and to call and assemble a Court of Admiralty on shipboard, or upon the Land &c.9 and such Persons so assembled, shall have full Authority, according to the Course of the Admiralty, to issue Warrants for bringing any Person accused of Piracy or Robbery before them, to be tried &c.10 to summon, and examine Witnesses &c. and to do all Things necessary for the Hearing and final Determination of any Case of Piracy, Robbery, and Felony; and to give Sentence and Judgment of Death, and to award Execution of the offenders convicted and attainted as aforesaid, according to the civil Law, and the Methods and Rules of the Admiralty.11

This Statute is the Foundation of the Special Commission, and of the present Proceeding, and upon it a Question has been made by Mr. Otis whether the Prisoners have not a Right to a Jury? He says that Magna Charta, in a Case of Life, at least must be expressly repealed, not by Implication, or Construction only. And that in England a Jury is summoned every day for the Tryal of such offences committed at sea. But I think that the statute of 28th H.8. before cited explains this Difficulty. And this Case seems to be but one Instance among many others, of the partial Distinctions made between British subjects at Home and abroad. The civil Law, The Course of the Admiralty, and 287the Methods and Rules of the Admiralty, will be construed to take away the Benefit of a Jury.—†Turn to the last Leaf but one.12

† Mr. Otis, from his first Retainer in the Cause, has been very sanguine, to move for a Jury. He has mentioned his Resolution in all Companies, and last Week at Plymouth he mentioned it to the Lt. Govr. and the rest of the Judges.13 Mr. Fitch happening to hear of our Design to move for a Jury, went to rummaging up Acts of Parliament to satisfy himself, and found the 4. of G, c. 11. An Act for the further preventing of Robbery &c. and for declaring the Law upon some Points relating to Pirates.14 In the 7th section of this statute “It is hereby declared, that all and every Person and Persons who have committed or shall commit any offence, or offences, for which they ought to be adjudged, deemed and taken to be Pirates, Felons, or Robbers, by an Act made in the Parliament holden in the 11. and 12. Years of the reign of his late majesty King Wm. 3d, intituled 'An Act for the more effectual suppression of Piracy' may be tried and judged for every such offence, in such Manner and Form as in and by an Act 28. H. 8. is directed and appointed for the Tryal of Pirates.”15 This statute Fitch discovered to Sewall and Sewall shewed it to the Governor and Lt. Govr., and the rest of the Court, the first Morning of the Courts sitting, in the Council Chamber. They were all struck and surprised, and the Lt. Govr. observed that this Statute cleared up, what had always to him appeared a Mistery. In the State Tryals, the Tryal of Stede Bonnet before Judge Trott at Carolina 1718. 5. G. 1.—V. 6. 156. It being the next Year after the statute, Bonnett had a Grand and Petit Jury.16

In the Council Chamber the Court, however agreed, that they would go into the Court House and take the oaths &c. and then the Court would publickly propose a Jury. This was done and the statutes 28. H. 8. 11. & 12. W. 3. and 4. G. 1. were read and then the Commission &c. and then the Govr. proposed, to adjourn the Court to Thurdsday,17 288and to hear Council i.e. Counsel this afternoon in the Council Chamber, upon the subject of a Jury.

In the afternoon We accordingly attended, and a Difficulty was started by the Lt. Governor about the Venire's. Whether they should be directed to the Sherriff, to summon a Jury as in England, or whether the Venires should issue in any manner analogous to the Laws of this Province relative to this subject? In the Afternoon, We had the argument, and the whole Court seemed convinced that a Jury must be had. The Govr. indeed, talked that they might be sent to England for Tryal, &c.

But the next Morning, when Mr. Otis was to have prepared and produced a Venire facias to the Sherriff to return a Jury, We found all aback. The whole Court, Advocate Genl. Mr. Sewall, and Mr. Fitch all of opinion that we had been all wrong, and that a Jury could not be had. The Lt. Govr. had in the Course of his Lucubrations, discovered this great secret, that by Law two Ways of Tryal are pointed out and provided, one by 28. H. 8., the other by 11. & 12. of W. 3. and that his Majesty may grant a Commission in Pursuance of Either. That this Commission was expressly limited to 11. & 12. W. 3. and therefore could not proceed, according to 28. H. 8.

Humbly shews Michael Corbit of Marblehead in the County of Essex, Mariner that this Hon'ble Court ought not to take Cognizance of the Matters and Things sett forth and alledged in the said Articles exhibited against him by Ezekiel Price Gentleman, because the said Michael says, that by an Act of Parliament made in the Twenty Eighth Year of the Reign of King Henry the Eighth, it is among other Things enacted, “That all Treasons, Felonies, Robberies, Murthers, and Confederacies, hereafter to be committed in or upon the Sea, or in any other Haven, River, Creek or Place where the Admiral or Admirals, have or pretend to have Power, Authority or Jurisdiction shall be inquired, tried, heard, determined, and judged, in such Shires and Places in the Realm as shall be limited by the Kings Commission or Commissions to be directed for the same, in like Form and Condition, as if any such offence or offences had been committed or done in or upon the Land; and such Commissions shall be had under the Kings Great Seal, directed to the Admiral or Admirals, or to his or their Lieutenant, Deputy, and Deputies, and to three or four such other substantial Persons, as shall be named or appointed, by the Lord Chancellor of England for the Time being, from Time to Time, and as oft as need shall require, to hear and determine such offences after the common Course of the Laws of this Realm, used for Treasons, Felonies, Murthers, and Confederacies of the same, done and committed upon the Land within this Realm,” And “that such Persons to whom such Commission or Commissions, shall be directed, or four of them at the least, shall have full Power and Authority to enquire of such offences, and of every of them, by the oaths of Twelve good and lawfull Inhabitants in the shire limited in their Commission, in such like manner and Form, as if such offences had been committed upon the Land within the same shire, and that every Indictment found and presented before such Commissioners, of any Treasons, Felonies, Robberies Murthers, Manslaughters, or such other offences, being committed or done, in or upon the Seas, or in or upon any other Haven, River or Creek, shall be good and effectual in the Law and if any Person or Persons happen to be indicted for any such offence, done or hereafter to be done upon the seas, or in any other Place above limited, that then such order, Proscess, Judgment and Execution shall be used, had, done and made, to and against every such Person and Persons, so being indicted, as against Traytors, Felons and Murtherers, for Treason, Felony, Robbery, Murther or other such offences done upon the Land, as by the Laws of this Realm is accustomed; and that the Tryal of such offence or offences, if it be denied by the offender or offenders, 290shall be had by twelve lawfull Men, inhabited in the shire limited within such Commission, which shall be directed as is aforesaid, and no Challenge or Challenges to be had for the Hundred; and such as shall be convict of any such offence or offences, by Verdict, Confession or Proscess, by authority of any such Commission, shall have and suffer, such Pains of Death, Losses of Lands, Goods and Chattells, as if they had been attainted and convicted of any Treasons, Felonies, Robberies, or other the said offences done upon the Lands.”2

And the said Michael further shews, that by another Act of Parliament made and passed in the Parliament holden in the Eleventh and Twelfth Years of the Reign of King William the third, it is, among other Things declared and enacted “That all Piracies, Felonies, and Robberies committed in or upon the sea, or in any Haven, River, Creek or Place, where the Admiral or Admirals have Power, Authority or Jurisdiction, may be examind, enquired of, tried, heard and determined and adjudged, according to the Directions of this Act, in any Place at Sea, or upon the Land, in any of his Majestys Islands, Plantations, Colonies, Dominions, Forts or Factories, to be appointed for that Purpose by the Kings Commission or Commissions under the Great Seal of England, or the Seal of the Admiralty of England, directed to all or any of the Admirals, Vice Admirals, Reer Admirals, Judges of Vice Admiralties, or Commanders of any of his Majestys Ships of War, and also to all or any such Person or Persons, officer or officers, by Name, or for the Time being, as his Majesty shall think fit to appoint, which said Commissioners shall have full Power jointly or severally, by Warrant under the Hand and Seal of them, or any one of them, to commit to safe Custody any Person or Persons against whom Information of Piracy, Robbery, or Felony upon the sea, shall be given upon oath which oath they or any one of them, shall have full Power, and are hereby required to administer and to call and assemble a Court of Admiralty on ship board, or upon the Land, when and as often as occasion shall require; which Court shall consist of seven Persons at the least” and “that such Persons called and assembled,” as in said Act is particularly described, “shall have full Power and Authority, according to the Course of the Admiralty, to issue Warrants for bringing any Persons accused of Pyracy or Robbery before them to be tried, heard and adjudged and to summon Witnesses, and to take Informations and Examinations of Witnesses upon their oath; and to do all Things necessary for the Hearing and final Determination of any Case of Pyracy, Robbery and Felony; and to give sentence 291and Judgment of Death and to award Execution of the offenders convicted and attainted as aforesaid, according to the civil Law, and the Methods and Rules of the Admiralty; and that all and every Person and Persons so convicted and attainted of Pyracy or Robbery, shall have and suffer such Losses of Lands, Goods and Chattells, as if they had been attainted and convicted of any Piracies, Felonies and Robberies, according to the aforementioned statute, made in the Reign of King Henry the Eighth.”3

And the said Michael further saith that by another Act of Parliament made and passed in the fourth Year of the Reign of King George the first it is among other Things declared, “that all and every Person and Persons who have committed or shall commit any offence or offences, for which they ought to be adjudged, deemed, and taken to be Pirates, Fellons, or Robbers, by an Act made in the Parliament holden in the Eleventh and Twelfth Years of the Reign of his late Majesty King William the Third, intituled, 'an Act for the more effectual suppression of Pyracy,' may be tried and judged for every such offence in such manner and Form as in and by an Act made in the twenty Eighth Year of the Reign of King Henry the Eighth is directed and appointed for the Tryal of Pyrates, and shall and ought to be utterly debarred and excluded from the Benefit of Clergy, for the said offences; any Law or statute to the Contrary thereof in any wise notwithstanding,” and “that this Act shall extend to all his Majestys Dominions in America, and shall be taken as a public Act.”4

Now the said Michael says that the Commission whereby this Honourable Court is constituted authorises it, to proceed only according to the Directions in the said Act made in the Reign of King William the third, according to the Course of the Admiralty, According to the civil Law, and the Methods and Rules of the Admiralty;5 and that the Matters and Things contained in the Articles aforesaid against the said Michael, ought now by Law to be heard and tryed, by a Court constituted according to the said Act made in the Reign of King Henry the Eighth, and ought to be tryed and judged in such manner and Form as in and by the same Act is directed and appointed, that is to say by a grand Jury and a petit Jury of the said County of Suffolk and as by the Laws of the Realm of Great Britain is accustomed.

Wherefore the said Michael says prays Judgment if this Court 292will take any further Cognizance of the Matters and Things charged upon said Michael in said Articles.6