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.