The Trials of five persons for piracy, felony and robbery, who were found guilty and condemned, at a Court of Admiralty for the trial of piracies, felonies and robberies, committed on the high seas, held at the court-house in Boston, within His Majesty's province of the Massachusetts-Bay in New-England, on Tuesday the fourth day of October, anno domini, 1726. Pursuant to His Majesty's royal commission, founded on an act of Parliament made in the eleventh and twelfth years of the reign of King William the Third, entituled, An act for the more effectual suppression of piracy; and made perpetual by an act of the sixth year of the reign of our sovereign Lord King George.

THE TRIALS OF Five Persons For Piracy, Felony and Robbery, Who were found Guilty and Condemned, at a Court of Admiralty for the Trial of Piracies, Felonies and Robberies, commit|ted on the High Seas, Held at the Court-House in Boston, within His Majesty's Province of the Massachusetts-Bay in New-England, on Tuesday the Fourth Day of October, Anno Domini, 1726. Pursuant to His Majesty's Royal Commission, founded on an Act of Parliament made in the Eleventh and Twelfth Years of the Reign of King William the Third, Entituled, An Act for the more effectual Suppression of Piracy; And made Perpetual by an Act of the Sixth Year of the Reign of our Sovereign Lord King GEORGE.

BOSTON: Printed by T. Fleet, for S. Gerrish, at the lower End of Cornhill. 1726.

Anno Regni Regis GEORGIJ, Magnae Britaniae, Franciae & Hiberniae, Decimo Tertio.

At a Court of Admiralty for the Trial of Piracies, Felo|nies and Robberies upon the High Seas, Held at the Court-House in Boston, within the Province of the Massachusetts-Bay in New-England, on Tuesday the Fourth Day of October, Anno{que} Domini, 1726.

PRESENT,

THE Honourable WILLIAM DUMMER Esq Lieut. Governour and Commander in Chief in and over His Majesty's Province of the Massachusetts-Bay aforesaid, President of the said Court, and the other Honourable Commissioners following, viz.

• William Tailer Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Penn Townsend Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Nathaniel Byfield Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Thomas Hutchinson Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• John Clark Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Thomas Fitch Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Adam Winthrop Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Elisha Cooke Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Jonathan Belcher Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Jonathan Dowse Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Samuel Thaxter Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• John Turner Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Daniel Oliver Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Thomas Palmer Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• Edward Hutchinson Esq Of the Council of His Majesty's Province of the Massachusetts-Bay aforesaid.
• John Frost Esq one of His Majesty's Council for the Province New-Hampshire.
• John Menzies Esq Judge of the Court of Vice Admiralty.
• Josiah Willard Esq Secretary of the Province of the Massachusetts-Bay aforesaid.

Proclamation was made by the Cryer of the Court, Commanding all Persons to keep Silence, upon pain of Imprisonment, whilst His Majesty's Commission for the Trial of Piracies, Felonies and Robberies, was in Reading.

Then His Majesty's Royal Commission, Founded upon the Statute or Act of Parliament made in the Eleventh and Twelfth Years of the Reign of King William the Third, Entituled, An Act for the more ef|fectual Suppression of Piracy; and made perpetual by an Act of the Sixth Year of King GEORGE, was openly Read, and the Court solemnly and publickly Called and Proclaimed.

After Reading the said Commission, His Honour the President of the Court, took the Oath appointed by the aforesaid Statute, and then Administred the same Oath to the other Commissioners before-named.

And in Regard the afore-mentioned Statute directs, that a Notary Publick shall be Register of this Court, the Honourable Commissioners were pleased to chuse Mr. Samuel Tyley, a Notary Publick, to be Register of the said Court, who was Sworn to the true and faithful Discharge of the said Office of Register.

Afterwards Proclamation was made by the Cryer, for all Persons that could Inform this Court, or the Advocate General, of any Piracies, Fe|lonies or Robberies committed upon the High Seas, within the Juris|diction of the Admiralty of Great Britain, to come forth and declare it, and they should be heard.

Then Capt. Samuel Doty, Nathaniel Sprague, John Roberts, Silas Cooke and Phillip Sachimus were Called, they being bound over by Recogni|zance to appear at this Court, to give Evidence on His Majesty's be|half, concerning Acts of Piracy, Felony and Robbery committed on board the Sloop Tryal, by John Baptist Jedre, alias Laverdure, John Baptist Junior, James Mews, Philip Mews and John Missel; And the said Witnesses being all present, the Court, at the Motion of Robert Auchmuty Esqr. His Majesty's Advocate General, directed the Register to issue out a Warrant to Arthur Savage Esqr. Marshal of the Admiralty, Requiring him forthwith to bring into Court the said John Baptist Jedre, alias Laverdure, and John Baptist Junior from His Majesty's Goal in Boston, where they were Committed for the aforesaid Crimes, upon the Accusation of the Kings Witnesses before named.

The Marshal of the Admiralty, pursuant to the Warrant directed and delivered to him by the Register, brought the aforesaid two Prisoners into Court; who were Arraigned at the Bar upon Articles of Piracy, Felony, and Robbery, Exhibited against them by the Advocate General, which were read, and are as followeth, viz.

Province of the Massachusetts-Bay, Suffolk, ss. At a Court of Admiralty for the Trial of Pira|cies, Felonies and Robberies on the High Seas, within the Jurisdiction of the Admiralty of Great Britain, Held at Boston, within the County of Suffolk, on the fourth Day of October, in the Thirteenth Year of the Reign of our Sovereign Lord GEORGE, of Great Britain, France and Ireland, King, Defendder of the Faith, &c. Anno{que} Domini, 1726.

ARTICLES of Piracy, Felony and Robbery, exhibited by Robert Auchmuty Esq His Majesty's Advocate General, against John Bap|tist Jedre, alias Laverdure, and John Baptist Junior.

First, For that the said John Baptist Jedre, alias Laverdure, and John Baptist Junior, Not having the Fear of GOD before their Eyes, but be|ing Instigated by the Devil, on the Twenty Fifth Day of August last, about the Hour of Two in the Afternoon of the said Day, together with James Mews, Philip Mews, John Missel, Indians, and others, in or near Mallegash Harbour, about Thirty Leagues Eastward to the Head of Cape Sables, on the High Seas, and within the Jurisdiction of the Admiralty-Court of Great Britain; with Force and Arms, Piratically and Feloni|ously, did Surprize, Seize, Take and possess themselves of a Sloop named the Tryal, Samuel Doty Master, Burthen about Twenty Five Tons, & of the Value of Five Hundred Pounds, being the Property of His said Majesty's good Subjects; and then and there, with Force as afore|said, the said Master, Nathaniel Sprague, John Roberts and Philip Sachi|mus, Mariners on Board the said Vessel, and all His said Majesty's good Subjects, and in the Peace of our said Lord the KING being, did Pi|ratically, and Feloniously, make, hold and detain as their Prisoners on board the said Vessel, for the space of Twenty Hours, or there|abouts.

Secondly, For that said John Baptist Jedre, alias Laverdure, and John Baptist Junior, with others, as aforesaid, and with the like Force as

aforesaid, then and there within the Jurisdicton aforesaid, Feloniously and Piratically did Rob, Plunder, and Consume all or the greatest part of the Stores and Provisions belonging to said Vessel, of the Value of One Hundred Pounds; and did Rob, Seize, Take and possess them|selves of Clothes, Gold Rings, and Silver Buckles, all of the Value of Fifty Pounds, and the Property of His Majesty's said Subjects.

Thirdly, For that the said John Baptist Jedre, alias Laverdure, and John Baptist Junior, with others as aforesaid, on board the said Vessel as aforesaid, and within the said Jurisdiction, with Force and Arms as aforesaid, and immediately after the taking the said Vessel as aforesaid, Piratically and Feloniously sail'd in quest of other Vessels, in order them Piratically and Feloniously to Seize, Take and Plunder.

All which said several Acts of Piracies, Felonies and Robberies, were by the said John Baptist Jedre, alias Laverdure, and John Baptist Junior, Done and Committed in Manner as aforesaid, contrary to the Statutes and Laws in such Cases Made and Provided, and to the Peace of our said Lord the King, His Crown and Dignity.

R. Auchmuty, Advoc. Gen.

Upon reading the aforesaid Articles, John Baptist Jedre, alias Laver|dure, desired that the same might be interpreted to him and his Son John Baptist Junior in the French Language, for that he the said John Baptist (the Father) did not understand English very well; and his Son was wholly Ignorant of the English Language.

Whereupon Messieurs Peter Lucy and Peter Frazier, both of Boston, Merchants, were Sworn Interpreters between the Court and the Priso|ners; and then Interpreted the said Articles to the Prisoners, Article by Article; to which they severally pleaded not Guilty.

Then the Court were pleased to Appoint George Hughes, Gentleman, Attorney at Law, to be Advocate for the Prisoners, who accepted that Trust, and prayed for a Copy of the Articles Exhibited against them, & for a further time to prepare for their Trials; And the Court thereupon was Adjourned to three a Clock in the Afternoon.

Tuesday, October 4th. 1726. At three a Clock post Meridiem. The Court met according to the said Adjournment.

PRESENT, The Honourable WILLIAM DUMMER Esq Lieut. Governour and Commander in Chief of the said Province, President; and all the other Commissioners before-named.

Then the Prisoners were brought to the Bar, and their Advocate hav|ing been served with a Copy of the Articles exhibited against them, and prepared for their Trial, the said Articles were read again.

After reading thereof, His Majesty's Advocate made a Speech to the Court as followed, viz.

MAY it please Your Honour Mr. President, and the Honourable the Com|missioners, John Baptist Senior, and John Baptist Junior, the Prisoners at the Bar, stand Articled against for Acts of Piracy, Robbery and Felony, Com|mitted upon the High Seas, within the Jurisdiction of the Admiralty of Great Britain, contrary to the Peace of our Sovereign Lord the King, His Crown and Dignity, and the Statutes in such Cases Made and Provided: To which upon Arraignment, they have severally pleaded Not Guilty.

The Word Pirate, with inconsiderable Variation, is taken from the Greek Substantive Peirates, Praedo Marinus, and therefore a Pirate in a Legal Sense is called a Robber on the High Seas: And under this Consideration I'm humbly of Opinion, the Prisoners at the Bar will evidently appear to your Honours, in the Series of this their Trial: Persons whom the Law with the greatest Pro|priety justly Terms Pirates. And however others may pride themselves in accurately handling abstruse and knotty Cases; I esteem it my Felicity, that the Articles now exhibited to your Honours, are grounded upon plain and clear Matters of Fact; Facts which proceed from the Rancour and Virulency of their evil Hearts, from a craving Appetite, and an insatiable Thirst after inordinate Gain. And finally, Facts if not now timely Corrected by Your Honours experienced Justice, will most certainly terminate in the breaking up of our Fishery, the most valuable Branch of our New-England Trade. But for as much as I'm sensible Glosses with your Honours pass not for Arguments, or Varnish for Evidence; So I'm well assured, when positive and direct Proofs appear before You in their full Proportion, they will have their Usual and Legal Weight in Your Honours Determination: And therefore upon the Evidences I shall produce on the part of the King, I may reasonably expect in Justice to His Majesty, in Compliance with the Laws of our Land, and in

a due and tender Regard to this His Majesty's Province, and the Safety and Preservation of the Lives and Properties of His Majesty's most Loyal and Du|tiful Subjects in this Government, Your Honour and the Honourable the Commissioners will adjudge the Prisoners at the Bar respectively Guilty of all and every the Articles exhibited against them, &c.

Then the Cryer of said Court was directed by Mr. Advocate to call the King's Evidences.

Afterwards the Witnesses for our Sovereign Lord the King, Namely, Captain Samuel Doty, Nathaniel Sprague, John Roberts, Silas Cooke, and Philip Sachimus, were Called and Sworn, and severally Deposed as fol|loweth, viz.

SAmuel Doty of Plymouth in New-England Mariner, and Master of the Sloop Tryal, Deposeth and Saith, That on Wednesday the 25th Day of August last past, (with the consent of his Men) he put into Malegash Harbour, to Water, & from thence designed to Prosecute their Fishing-Voyage near the Isle of Sables; And seeing John Baptist, the Father, on Shoar, the Deponent haled him, and asked him to come on board. And soon after the Prisoners at the Bar, came on board the Sloop in a Canno, when the Deponent ask'd what News? The said John Baptist Jedre, alias Laverdure, answered there was Peace between the English and Indians, and particularly at Boston, Annapolis, and Causo; And there|upon the said Baptist and the Deponent went into the Cabbin, and left the said John Baptist Junior upon Deck; After the Deponent, and John Baptist had drank together, the Deponent went upon Deck with intent to go ashoar in the Canno, but Baptist's Son was gone ashoar in it, then the Deponent with the Mate and three more Men, took the Sloops Canno, and went ashoar, leaving the said Baptist on board, with Philip Sachimus, the said Baptist declining to go a Shore with them when ask'd, saying he would Call his Son, and he should carry him on Shore. That some short time after the Deponent and his Men had left the Sloop, the said Baptist called to his Son on Shoar, and spake to him in a Lan|guage unknown to the Deponent, and presently John Baptist Junior, with two Indians, namely, James Mews and Philip Mews, went into the said Baptist's Can|no, and after they had got about a Gun shot from the Shore, one of the Indians held up his Gun and Fired it, & called to the Deponent and Company as they stood on the Shoar, saying, You English Men, ask for Quarter; and after the Indians had got on board the Sloop, they took down the English Ensign then fly|ing, which the Deponent perceiving, he then went to the House of Mrs. Giddery, Mother to the said John Baptist, and desired her, with her Son Augustine to go on board the Sloop with him, and intercede with the said Baptist that the Depo|nent might have his Sloop again. And after some Considerable Time, Mrs. Giddery and her Son went on board with the Deponent, when he the Deponent saw the Ensign girded round Baptist's middle, and a Pistol tuckt in it, which

belonged to one of the Deponents Men, namely John Roberts. At which time there were several more Indians on board the Sloop, who pusht the Deponent about the Vessel, and Evilly treated him; and one of them Attempted to strike him with his Hatchet, but was prevented by another Indian. The Deponent further saith, That towards the Evening, the said John Baptist Jedre ordered him to come to Sail, and to Steer the Sloop Eastward; And the next day early in the Morning, they discovered a Vessel, which they tho't was an English Vessel, when the said John Baptist and the Indians gave out, that they would go and Kill all the English Men on board, and then the Deponent should have his Sloop again; but she proved to be a French Scooner belonging to Cape Breton, which had been at Malegash the day before the Deponents Sloop arrived there. That when the Scooner appeared in sight, the Prisoners with the Indians, divi|ded the Powder and Shot which belonged to the Sloop, put new Flints into their Guns, cut up the Fishing Leads to make Sluggs for their small Arms, and load|ed them with design (as they said) to take the said Scooner, if she had been an English Vessel.

And further the Deponent saith, That afterwards he Steered the Sloop for Mahoon Bay, to the Eastward of Ashpetauget, by Order of the said Baptist, who sometimes Steered himself; And when she was about seven Leagues Eastward of Malegash, the Deponent and his Company having agreed to rise upon the French and Indians, took their Opportunity to do it, soon after they had been at Breakfast, on the 26th. of August, when Baptist and three Indian Men with an Indian Woman and two Children were in the Cabbin; And the Deponent shut the Cabbin-Door upon them; but Baptist hearing the English scuffling with the Indians upon Deck, soon came out of the Cabbin, having burst open the Cabbin-Door, and the Mate struck him down with a Club, and Phillip Sachimus threw him overboard; Soon after the English fired into the Cabbin, and the three Indi|an Men got out of the Cabbin-Windows into the Sea, in order to Swim on Shoar; and Young Baptist and the other Indians were thrown into the Hold; And after the Prisoners and Indians were subdued, Baptist was taken on board the Sloop again from out of a Canno, which lay astern.

NAthaniel Sprague, Mate of the Sloop Tryal saith, That on the 25th. of August last, he went on Shoar at Malegash with Mr. Doty and others, and left John Baptist and Phillip Sachimus on board the Sloop. That soon after the Deponent got on Shoar, Baptist called to his Son to come on board, as the Deponent be|lieves, (tho' he spake in Language to him unknown) and thereupon the said Bap|tist's Son, with two Indians Armed, put off from the Land in a Canno, and when the Canno was some distance from the Shoar, one of them fired a Gun, and said to the English on Shoar, you English Men call for Quarter, and then the said John Baptist Junior, and the two Indians, viz. James & Philip Mews, went on board the said Sloop. And the Deponent, as he stood on Shoar, saw some of them with Baptist take the Sloop's Ensign down, and then they fired se|veral small Arms into the Air.

The Deponent further saith. That he tarried on Shoar till Mr. Doty called to him from the Sloop▪ and told him he believed the French and Indians would give him good Quarter if he came on board; So the Deponent and Silas Cooke ven|tured to go on board, and as they came along side the Sloop, several of the Peo|ple on board presented their Guns at them; Some of them had their Hatchets, and others their Knives, and they haul'd him along the Vessel, and Barbarously treated him; And two Indians afterwards held the Mazzles of their Guns at him with intent, as he thought) to Shoot him, so to escape the danger, he jumpt into the Hold. Soon after the said Baptist called to him, and bid him come out of the Hold, or else he would be killed; So the Deponent came upon Deck, and the said Baptist and others bound him with Lines. That Baptist called himself Skipper of the Sloop, and James Mews an Indian, called himself the Captain of her. The Deponent farther saith, that the next day, viz. the 26th. of August, looking out of the Hold, he saw the said Baptist with his Pistol tuckt through the Sloops Ensign, which was round his Waste, and heard him order Mr. Doty to take the Helm. That young Baptist walked the Deck with his Gun. That the French and Indians eat the Sloops Bread, Butter, Pork, and Sugar, and Drank the Rum and other Liquors which belonged to the English. That after Breakfast, one of the English Men called to the Deponent in the Hold, and told him that there was a good Opportunity to rise upon the French and Indians, there being but three or four of them upon Deck; Whereupon the Deponent came upon the Deck and saw Mr. Doty put to the Cabbin-Door, and then he took hold of one of the Indians, who was too strong for the said Doty, and threw him down. By this time John Baptist Junior, who before was lying down on his Gun, got up with it, but the Deponent struck him down, and Baptist (the Father) hearing the Noise, burst open the half Door of the Cabbin, and came out with the Sloops Ensign round his middle, and a Pistol tuckt in it, and got hold of the Deponent, but he flung the said Baptist a-cross the Gunnel, and Philip Sachimus, (who stood to keep the Cabbin-Door fast) took the said Baptist and threw him over-board: About this time John Baptist Junior cryed for Quarter, yet after|wards got a Fisherman's Pew, and struck at the Deponent with all his might, but mist his Blow, and only tore the Deponents Shirt; Who then knockt the said Baptist down, and he was thrown into the Sloops Hold, together with Philip and James Mews, and the Hatches were shut down upon them; And three Indians who were in the Cabbin, got out of the Cabbin-Windows in order to Swim on Shoar.

That after the Prisoners were subdued, the Deponent saw Baptist the Father, with two Rings and a pair of Stockings taken from John Roberts; And John Baptist Junior had on Mr. Doty's Cap.

JOhn Roberts deposeth and saith, That he heard John Baptist when he first came on board the Sloop say, there was Peace. That the Deponent went ashoar with Mr. Doty and his Mate, and soon after saw Philip Mews strike the Colours,

that the Deponent tarried on Shoar till the Evening when the Sloop came to Sail.

That when he came on board, the Sloops Colours were round Baptist's mid|dle, with the Deponents Pistol tuckt thro' the same, and he saw a Gold Ring belonging to him the Deponent upon the said Baptists Finger. That young Baptist stood over the Scattle with a Musket in his Hand. That he loaded a Pistol, and his Father then took it from him. That Baptist called the Deponent Son of a Bitch, hauled him out of his Hammock upon the Floor, and bid him come up and Steer. The next Morning early they discovered a Scooner, when Baptist consulted with the Indians, and supposing she was an English Vessel, they put new Flints in their Guns, and loaded them, and told the Deponent, that if they took the Scooner, they would Kill the English and keep the Scooner, and then the said Doty and Company should have their Sloop again But the Vessel proved to be a French Scooner, which as the said Baptist said, had been lately at Malegash; Baptist then Ordered the Deponent to Steer for Mahoon Bay: But soon after the Deponent assisted the said Doty and Company in subduing the French and Indians as before is Deposed by him the said Doty and his Mate.

SIlas Cooke Deposeth and saith, That he saw John Baptist Junior with a Gun, which was taken from him, and afterwards one of the English Men fired it into the Cabbin, whereupon three Indian Men got out of the Cabbin Window into the Sea. The Deponent further saith, That he saw the Sloop's Colours round Baptist's Waste, with a Pistol tuckt into it, and several times he had ano|ther Gun in his Hands. That he Ordered the Deponent to Steer for Mahoon-Bay. That the said Baptist took the Vessel's Biscake, Butter and Cheese, and made use of the Sugar, Tobacco and Pipes, and divided the Powder, and Young Baptist made Sluggs for the Small Arms, with the Leads of the Fishing Lines belonging to the Sloop.

PHilip Sachimus being Called Deposeth and saith, That he heard John Baptist when he first came on board the Sloop, say there was a very good Peace. And afterwards Capt. Doty & his Men went ashoar, and left him the Deponent and Baptist on board. That Mr. Doty ask'd him to go a Shoar, but the said Bap|tist answered he would Cast his Son. After the English Men got a Shoar Baptist Called to his Son John Baptist, who together with James and Phillip Mews, two Indians, came aboard in a Canno. That Phillip Mews and Baptist (the Father) talk'd together, and James Mews took out his Knife and run after the Deponent and struck at him. That young Baptist pointed a Gun at him, but he can't tell whether he snapt it or no. That the two Indian afterwards tied the Deponent under the Windless, so he could not see who struck the Colours, but afterwards he saw them round Baptist's middle. That he saw them take the English Mens Guns. This Deponent saw John Baptist Junior had a Pistol and make Sluggs with the Fishing Leads; he also saw John Roberts his Rings upon Baptist's Finger, and the French and Indians had the Command of the Sloop the Capt. Do•••• and his Company overcame them the next day.

After the Evidences for the King were heard, Mr. George Hughes, Advocate to the Prisoners at the Bar pleaded in their Behalf, in Manuer following, viz.

May it please Your Honour, Mr. President, and the rest of the Honourable Commissi|oners of this Court:

IT is not without Regret that I appear before this Honourable Court in behalf of the Prisoners at the Bar: But the Sense of my Duty, and my real Desire that the World, and more especially their Country men, should be convinced of the fair and impartial Trial they will receive, weigh down all Objections to my appearing for them. And although they may labour under some Inconveniences on Account of their not understanding the English Tongue, yet I take that to be sufficiently made up to them, by the great Candour and Impartiality your Honours have shown in granting them Interpreters and other|wise.

As it is my Province to speak only to Matters of Law, I shall endeavour to perform it as well as the very little time I have had will allow; and waving any Observations upon the Evidences that have been Sworn, humbly beg your Honours Consideration of two Matters, which I conceive worthy thereof. The first of which relates equally to both the Prisoners, the last to John Baptist Junior only.

I am well perswaded there hath been a great peice of Villany lately acted in the Harbour of Malagash, by the seizing and taking of Capt. Doty and his Men and Vessel, in which the Prisoners may have borne their part, but your Honour, and the rest of the Honourable Court, will well distinguish Crimes of different Na|tures, and not Condemn Persons for Piracy because they may be Guilty of No|torious Robberies or other Crimes, and I submit it to your Honours whether the Prisoners can be adjudged Guilty of Piracy. My Lord Chief Justice Hale in his Plac. Coron. treating of Piracy says,

It extends not to Offences in Creeks or Ports within the Body of a County, because punishable by the Common Law.

Pag. 77. Jacob's Edition. And says another Book,

If a Pirate en|ter a Port or Haven, and Assaults and Robs a Merchant-Ship at Anchor there, this is no Piracy, because it is not done Super Altum Mare, but it is a downright Robbery at the Common Law, the Act being infra Corpus Comita|tus, Jacob's Lex Mercat. Pag. 183.

Medio, both which agree with the Defini|tion of Piracy given by my Lord Coke in his Comments upon Littleton, Pag. 291. a. If then it appears to your Honours, (as I think it must by the Evidence) that the Facts charged upon the Prisoners were Committed in an Harbour within the Body of a County: And supposing they were the real Actors there|of, they are not guilty of Piracy, but ought to be tried at the Common Law, as Robbers, by a Jury, and your Honours will acquit them of the Articles now exhibited against them by the Advocate General on His Majesty's behalf.

But, May it please your Honours, The Case of the young Lad at the Bar, John Baptist Junior, is distinguished from that of his Father, on account of his tender Years; being (as his Father informs me) not fourteen Years of Age; an Age which renders a Person incapable in the Law, of committing any Crime so as to be punished with Death, he being set upon the same Foot with a Mad-man by my Lord Coke upon Litt Pag. 247. b. who says,

That in Criminal Causes, as Felony, &c. the Act and Wrong of a Mad-man shall not be imputed to him, for that in those Causes, Actus non facit reum, nisi Mens fit rea: And he is Amens (id est) sine mente, without his Mind and Discretion, and Furiosus solo furore punitur, A Mad man is only punished by his Madness. And so it is of an Infant, until he be of the Age of Fourteen, which in Law is accounted the Age of Discretion.

It cannot be expected I should produce any Evidence of the Age of this Lad, who was born and educated in the Woods among the Wild and Salvage Indians, where no Register of Births or Burials is kept; he knows not his own Age, but by the Information of his Father, who here declares in publick Court, his Son is but Fourteen this Fall; there is no Evidence to disprove him in this Assertion, and where the Scale is but even, Your Honours will give the Bal|lance in favour of Life.

Your Honours will likewise be pleased to consider the great Influences a Father hath upon his Son, not only in his Example but Precepts, as corrupt Nature is prone enough to evil; the Perswasions of a Father, or the fear of his Frowns and severe Corrections, back'd with his Example, are strong and pow|erful Instigators to do Evil.

Upon the whole, I submit the Case of the Prisoners to Your Honours wise Consideration, not in the least doubting of your just and impartial Judgment.

Then the said John Baptist in his own Defence alledged, That the People belonging to the aforesaid French Scooner (who he said had been at Malegash lately to buy Cattle to carry to Cape Breton) prevailed with him to do what he had done; telling him, that it would be the best way in order to get his Son Paul from the English, to take and keep one of their Vessels till they got him out of their Hands.— And further he added, That he had no de|sign to kill any of the English, but hindred the Indians from hurting them with their Knives.

John Baptist Junior pleaded for his Excuse, That what he did was by his Father's Order, and that the Indians advised him to assist in taking the said Vessel.

Afterwards John Baptist (the Father's) Examination, taken before Samuel Checkley and Habijah Savage Esqrs. two of His Majesty's Justices of the Peace, was Read, and is as follows, viz.

The Examination of John Baptist Jedre, alias Laverdure.

THIS Examinant saith, That he lived at Malegash, and that on Wednesday the 25th Day of August last past, a Sloop with English Colours flying, came into the Harbour of Malegash, one Doty Master, and the Examinant and his Son went on board in a Canno; and his Son presently went on Shoar in the Canno. Soon after Mr. Doty and all his Men (except one) went on Shoar in the Sloop's Canno, to drink some Punch (as they said) at the Examinant's Mother's House, and he was asked by Captain Doty to go on Shoar with him, but he saw so many in the Canno, he told the said Doty he would call his Son to fetch him ashoar in his the said Baptist's Canno, which he went ashoar in: So the Examinant, with an Indian Man called Philip, were left on board the Sloop.— After some time the Examinant called to his Son, who with two Indians came on board the Sloop in a Canno; and after them two Indians more, namely one Jerman and his Son Lewis, came on board in another Can|no.— The Examinant saith, That his Brother-in-Law Philip Mews, one of the Indians, struck the Sloop's Colours, and gave 'em to him, and he tyed 'em round his middle.— That he told the English there was Peace with the In|dians; Afterwards another Canno came on board with two Indian Men, a Squaw and two Children. And further the Examinant saith, That the Indian Philip, who was left on board, was tyed soon after the Indians came on board, least he should do them some Mischief, but afterwards they sent him ashoar to tell the Master to come on board. He saith that he saw the Cabbin-Door open, but can't tell whether it was broke open or no.— That his Son had John Ro|berts's Pistol but fell a sleep with it, and so the Examinant took it, and fastened it thro' his Girdle, that he never fired it, his Hands being weak he had not strength to fire; The Examinant saith his Mother came on board the Sloop, but did not ask the Indians on board, the Reason why they took the Sloop from the English in time of Peace, because she understood some time before, they designed to take what English Vessels they could, notwithstanding the Peace, by way of Reprizals, by Reason the Examinant's Son Paul, and his Brother-in-Law Francis Mews were detained by the English.

The Examinant further saith, That the French at Louisbourg told the Indians the Peace which was made with the English would not continue long.— The Examinant also saith, That the Indians intended to carry the Sloop to his Plantation; and accordingly James Mews the Indian Captain, ordered the Skipper Doty to weigh Anchor towards the Evening, and set sail for Mohune Bay.— That that Night they dressed some Victuals, that the next Morn|ing early they saw a Scooner, which they supposed at first to be an English Vessel, but when they came near they discovered she was a French Scooner which

they had traded with some Days before at Malegash.— That when they first espied her, they Cut up the English Fishing Leads, and beat them into Sluggs, divided among them the English Men's small Arms, and loaded them with the Sluggs, and the Indians took the English Mens Cloaths & other things, and parti|cularly the Examinant took from the Indians two Gold Rings and a pair of Sil|ver Buckles, which they said they found in the Cabbin in a Handkerchief.— And after Breakfast on the 26th. day of August in the Morning, the English took their Opportunity to rise upon the Indians, when there was but a few of them upon Deck, and the Examinant with three Indian Men, an Indian Woman and her two Children were then in the Cabbin, when the Skipper Doty came from the Helm, and shut the Cabbin Door, but the Examinant opened it, and was no sooner come upon Deck but the Mate knockt him down and threw him over-board, but he took hold of the Sloops Canno which lay astern, and the English took him on board again. The Examinant says, That one of the Indi|ans, who jumpt out of the Cabbin Window into the Sea, had on the Master's Jacket; And when the Examinant came on board again, the Indian Woman in|formed him that her Husband and two more Indian Men being in the Cabbin, the English fired two Guns into the Cabbin, and they three got out of the Cab|bin Windows, but the Examinant believes they were Drowned, the Sloop then being about four Miles from the Shoar, and the French Scooner bearing away from them, as the Indian Woman told him.

Signum John X Baptist Jedre, alias Laverdure.

Suffolk, ss. Boston, Septemb. 3. 1726.

• Taken and Signed before us, Samuel Checkley, Habijah Savage, Just. Pacis.
• Stephen Boutineau, Interpreter.
• Attest. Samuel Tyley, Not. Pub.

Which Examination was then Interpreted by Messieurs Lucy and Frazier, to to the said Baptist, who owned the same to be true.

Then the King's Advocate. Recapitulated the Evidences, and Replied upon the Prisoner's Advocate in the following manner.

May it please your Honours,

THE Prisoners at the Bar having nothing further to offer, nor their Ad|vocate for them, I shall therefore with all possible Brevity, discharge

the remaining part of my Duty, in closing this Trial, that has thus long ex|excised your Honours great Patience; and in order to this, I shall in the first Place recount the several principal Facts proved upon the Prisoners, and as I humbly conceive, unquestionably maintain my Charge against them, and lastly consider the Defence made by their Advocate for them. The Matters of Fact appear so Full and Irresistable, that neither the Prisoners themselves attempt to falsify them, or even to suggest any colourable Argument for their Extenua|tion: And are such, that were they committed upon the High Sea, their Ad|vocate concedes would clearly amount to Piracy.

And therefore I shall only summarily Mention to your Honours, that be|sides the general Evidence against the Prisoners, of their Aiding, Assisting, Con|curring and Assenting with others in the Taking, Robbing and Plundering the Sloop Tryal, mentioned in the Articles, it's proved particularly upon the Priso|ners, they were the first that entered the said Vessel: That Baptist the Father, under a pretence of going ashoar in his Son's Canno, prevailed on the Master to leave him aboard; and to give the greater Terror to His Maje|sty's Subjects, and Aggrandize himself, he made a Sash of the Ensign, and there|in tuckt Roberts's Pistol, assuming the Name of Skipper, ordered Mr. Doty to come to sail, and to steer the Sloop Eastward; and when a Scooner appeared in sight, he and his Son, with others, divided the Powder and Shot belonging to the Vessel, new flinted their Guns, converted the Fishing-Leads into Sluggs, and therewith loaded their Small-Arms: That he helped with others to bind the Mate of said Vessel, and also piratically robbed Roberts of two Rings and a pair of Stockings, and was active in consuming and destroying the Vessel's Provisions and Stores.

The Facts proved upon John Baptist Junior, the other Prisoner, are for the most the same in Substance; more especially that he was originally let into the Secret, for when the Canno was but not half way in her return to the Sloop, then it was that a Gun was fired into the Air, and the English were required to cry for Quarters. That he was not only the Person confided in for bringing about their wicked Designs, but that he had so well executed that part that was judged the most Trusty, that he was left to stand Gentry over the Arms: That he charged his Father's Pistol; was Armed with a Gun; had on him a Cap, the Pro|perty of one of the Men belonging to the Sloop; And finally, with a Fisher|man's Pew made several attempts to destroy Sprague, even after he had Quar|ters given. All which in the Law amount to several Acts of Piracy.

From whence it evidently appears, that the Articles in respect to Matters of Fact, are fully proved upon the Prisoners; but whether such Facts amount to Piracy at Sea, or Robbery at Land, in Point of Law, remains a Question; which naturally leads me to the Consideration of those Points in Law offered by the Prisoner's Advocate in their Defence.

And First, he argues, that the Vessel when seized and taken by the Priso|ners and others, was at an Anchor in the Port of Malegash, near the Land, and Infra Corpus Comitatus, and therefore is only Robbery at the Common Law.

If a Pirate enters a Port or Haven, and Assaults and Robs a Merchant-Ship at Anchor there, this is no Piracy,* 5.1 because it's not done Super Altum Mare, but a down right Robbery at the Common Law, and the Anonimous Author for this quotes Moor, 756.

In Answer, the Case is not truly given us by that Author, as reported by Sir Francis Moor; neither is the Author in putting said Case consistent with himself; for his following Words are,

And if the Crime be committed either Super Altum Mare, or in great Rivers within the Realm, which are looked up|on as Common High-Ways, then it is Piracy.

Which plainly militates with what the Author immediately before asserted for Law. But to return to the Case in Moor's Reports; the first Question there put by the Lord Chancellour to all the Judges was, If the Clergy extended to Piracy, upon an Arraignment on the Stat. 28. H. 8. And Resolved, It did not, unless the Piracy was done in a Creek or other River, in which the Common Law before the Stat. had Jurisdiction; and not if it was done in Alto Mari, and out of the Body of the County. And these Words, In which the Common Law before the Stat. had Jurisdiction, fully im|ply, since the Stat. the Common Law has not Jurisdiction. And the Words of the Stat. are,

All Treasons, Felonies, Robberies, &c. Committed in or upon the Sea, or in any other Haven, River, Creek or Place where the Admiral hath, or pretends to have Power, Authority, or Jurisdiction, &c.

My Lord Coke thereupon Comments thus;

These Words,* 5.2 says he, (Or pretends to have, &c.) are thus to be understood: Between the High-Water Mark and Low-Water Mark: For tho' the Land be Infra Corpus Commitatus at the Re-flow; yet when the Sea is full, the Admiral hath Jurisdiction super aquam, as long as the Sea flows.

Now the Place where the Seizing and piratically Taking the Vessel in the Articles, was in the Port of Malegash, where the Sea is always full, and consequently within the Admiral's Jurisdiction. But the Books make a further distinction between Creeks, Ports and Ha|vens, actually challenged as part of the Bodies of Counties,* 5.3 and from whence a Jury may come. And Ports, Creeks and Havens, that are out of every County, from whence no Jury can come, the former appertains (as is said) to the Jurisdiction of the Common Law Courts, the latter confessedly to the Admiralty. But if all Ports, Creeks and Harbours are generally and without this Distinction, out of the Admiralty's Jurisdiction, then these Words of the Stat. 28. H. 8.

Upon the Sea, or in any other Ha|ven, Creek, or other Place where the Admiral hath, or pretends to have Power, &c.

would be Vain and Idle, as also the Words of the Stat. of the 12, 13. W. 3. Ch. 7 which say,

All Piracies. &c. Committed upon the Sea, or in any Haven, Creek or Place where the Admiral hath Jurisdiction, &c.

All which clearly shews, that there are such Havens, Rivers and Creeks where the Legislature supposes the Admiral to have Jurisdiction; and which

most indisputably are such Havens, Rivers and Creeks, that (in my Lord Coke's Words) are out of every County, and from whence no Jury can come; which is the Circumstance of the Port where this Vessel was piratically taken by the Prisoners. But what silences all Arguments of this Nature, in respect to the Admiralty's Jurisdiction in Ports, Creeks and Havens, touching Acts of Piracy, and removes all Pleas of this sort, are the Words of the Stat. 8. K. G. Ch. 24. Sect. 1.

And if any Person belonging to any Ship or Vessel whatsoever, upon meeting any Merchant-Ship upon the High Seas, or in any Port, Haven or Creek whatsoever, shall forcibly Board and Enter into such Ship, and tho' they do not seize and carry her off, shall throw over-board or destroy any part of the Goods or Merchandizes belonging to such Ship, the Persons guil|ty thereof, shall be deemed and punished as Pirates:

And therefore I shall rest this part of the Prisoner's Defence, and proceed to the Consideration of the other Point of Law offered by their Advocate, and Calculated for John Baptist Junior, namely, That he was at the time of the taking the said Vessel, an In|fant under the Age of Fourteen, not sui juris, and by Law no Act of Piracy or Felony can be imputed to him.

To which I answer, The Gentleman is wrong in his Hypothesis, as by Evidentiâ Personae; neither did the Father or any other pretend to say the Priso|ner was under the Age of Fourteen. And for as much as such a Special De|fence is to exempt the Party from the Punishment of a General Statute, it's incumbent upon the Gentleman to make Legal Evidence of the Fact relied upon. But my Lord Hale, under Murther, says,

An Infant within the Age of Discretion,* 5.4 kills a Man, no Felony; as if he be Nine or Ten Years old: But if by Circumstances it appear|eth he could distinguish between Good and Evil, it is Felony; as if he hide the Dead, make Excuses, &c.

That the Pirates looked upon this John Baptist Junior as a Person capable of distinguishing, is evident by committing the greatest Trust and Charge unto him, namely, the Guard over the Arms; and that he could distinguish between Good and Evil, is plain, when he cry'd for Quarters, and afterwards when he thought himself sufficiently armed with a Fisherman's Pew, attempted the Destruction of Sprague, thereby as far as in him lay, preventing the regaining of the Vessel: By all which, and by many more incident Matters of Fact that turned out in the Evidence, it clearly appears he was a free Agent, and capable of making Legal Distinctions. And for as much as there is no Discrimination in respect to the Crimes charged upon the Prisoners, as Your Honour values the preser|vation of the Laws of the Land, the Lives and Properties of His Majesty's Subjects, and would studiously avoid any fatal Consequence that may attend an illegal Acquittal; I hope there will be as little distinction in respect to their Sentence, but that Your Honour will justly pronounce them equally Guilty.

The Advocate General having Concluded, the Court was cleared; and after mature and deliberate Consideration of what the King's Witnesses

Deposed, the Prisoners Defence made by themselves and their Advocate, together with the Replication of the Advocate General, the Court voted Unanimously, that the said John Baptist Jedre, alias Laverdure, and John Baptist Junior, are severally Guilty of Piracy, Felony and Robbery, ac|cording to the Articles Exhibited against them.

Then they were brought to the Bar again, and the President pronoun|ced the said John Baptist Jedre, alias Laverdure, and John Baptist junior severally Guilty. — Whereupon the Advocate on Behalf of His Ma|jesty moved, that Sentence might be given against them according to Law. Then they were severally askt if they had any thing further to say why Sentence of Death should not be pronounced against them, and they Alledging nothing but what was offered before in their behalf on their Tryal, the President pronounced Sentence against them severally in the words following, viz.

You— are to go from hence to the place from whence you came, and thence to the place of Execution, there to be hanged up by the Neck until you are Dead, and the Lord have Mercy upon your Soul.

After Sentence was given against the Prisoners, the Marshal of the Ad|miralty was Ordered to remand and keep them in safe Custody within His Majesty's Goal in Boston.

Then the Court was Adjourned to Wednesday, the fifth day of October Current, at ten a Clock in the Forenoon.

Wednesday October the fifth 1726. ten a Clock Ante Meridiem.

PRESENT, All the Commissioners before-named.

THe Court being opened by Proclamation, the King's Advocate moved, That James Mews, Philip Mews and John Missel, three Indians, who were imprisoned for Acts of Piracy, Felony and Robbery, might be brought to the Bar, to Answer to Articles exhibited against them for those Crimes. And accordingly the Marshal of the Admiralty in Obedience to a Warrant to him directed, brought them into Court, and they were Arraigned at the Bar, upon the said Articles, which were read, and are as followed, viz.

Province of the Massachusetts-Bay, Suffolk, ss. At a Court of Admiralty for the Trial of Pi|racies, Felonies and Robberies on the High Seas, within the Jurisdiction of the Admiralty of Great Britain, Held at Boston, within the County of Suffolk, on the fourth Day of October, in the Thirteenth Year of the Reign of our Sovereign Lord GEORGE, of Great Britain, France and Ireland, King, Defender of the Faith, &c. An|no{que} Domini, 1726.

ARTICLES of Piracy, Felony and Robbery, exhibited by Robert Auchmuty Esq His said Majesty's Advocate General, against Philip Mews, James Mews and John Missel, Indians.

First, For that the said Philip Mews, James Mews, and John Missel, not having the Fear of GOD before their Eyes, but being Instigated by the Devil, on the Twenty Fifth Day of August, last, about the Hour of Two in the Afternoon of the said Day, together with John Baptist Jedre, alias Laverdure, John Baptist Junior, and others, in or near Malegash Harbour, about Thirty Leagues Eastward to the Head of Cape Sables, on the High Seas, and within the Jurisdiction of the Admiralty-Court of Great-Britain; with Force and Arms, Piratically and Feloniously, did Surprize, Seize, Take and possess themselves of a Sloop named the Tryal, Samuel Doty Master, Burthen about Twenty Five Tons, and of the Value of Five Hundred Pounds, being the Property of His said Ma|jesty's good Subjects; and then and there, with Force as aforesaid, the said Master, Nathaniel Sprague, John Roberts and Philip Sachimus, Ma|riners on Board the said Vessel, and all His said Majesty's good Sub|jects, and in the Peace of our said Lord the KING being; did Pirati|cally, and Feloniously, Make, Hold and Detain as their Prisoners on board the said Vessel, for the space of Twenty Hours, or there|abouts.

Secondly, For that the said Philip Mews, James Mews, and John Missel, with others as aforesaid, and with the like Force as aforesaid, then and there, within the Jurisdiction aforesaid, Feloniously and Piratically did Rob, Plunder and Consume all, or the greatest part of the Stores and Provisions belonging to said Vessel, and of the Value of One Hundred Pounds; and did Rob, Seize, Take and possess themselves of Clothes,

Gold Rings, and Silver Buckles, all of the Value of Fifty Pounds, and the Property of His Majesty's said Subjects.

Thirdly, For that the said Philip Mews, James Mews, and John Missel, with others as aforesaid, on board the said Vessel as aforesaid, and with|in the said Jurisdiction, with Force and Arms as aforesaid, and immedi|ately after the taking the said Vessel as aforesaid, Piratically and Felo|niously sail'd in quest of other Vessels, in order them Piratically and Feloniously to Seize, Take and Plunder.

All which said Acts of Piracies, Felonies and Robberies, were by the said Philip Mews, James Mews, and John Missel, Done and Committed in Manner as aforesaid, contrary to the Laws and Statutes in such Cases Made and Provided, and to the Peace of our said Lord the KING, His Crown and Dignity.

R. Auchmuty, Advoc. Gen.

Then Captain John Gyles was Sworn Interpreter, between the Court and the Prisoners at the Bar, and Interpreted the said Articles to them in the Indian Language, Paragraph by Paragraph, to which they plead|ed severally, not Guilty.

And Mr. George Hughes, who was appointed by the Court to be Ad|vocate for the Prisoners, prayed that he might have a Copy of the Ar|ticles Exhibited against them, and time allowed to prepare for their De|fence, and that the said Captain Gyles the Interpreter might be with them. To which the Court consented, and Ordered that their Tryal should come on in the Afternoon at three a Clock, to which time the Court was Adjourned.

October the fifth, three a Clock Post Meridiem.

The Court met according to the said Adjournment.

PRESENT, All the Commissioners afore-named.

The Prisoners, viz. James Mews, Philip Mews, and John Missel, were brought to the Bar, and the Articles exhibited against them (which their Advocate was served with a Copy of) were read again.

Then the Witnesses for our Sovereign Lord the King, Namely, Samuel Doty, Nathaniel Sprague, John Roberts, Silas Cooke and Philip Sachimus were called and Sworn, and severally Deposed as follows, viz.

SAmuel Doty saith, That on the 25th. day of August last, two of the Prisoners, viz. Philip Mews and James Mews, together with John Baptist Junior, went on board the Deponent's Sloop in Baptist's Canno Armed, and about a Gun shot from the Shoar, one of them held up his Gun and fired, and said to the said Deponent and his Company, then standing on the Bank, Now you English Men call for Quarter: And soon after they got on board the Sloop, they took down her Ensign, and fired a volley with their small Arms. That about a Quarter of an Hour afterwards, John Missel with three more Indians went aboard.

That sometime afterwards, when the Deponent went on board, James Mews, one of the Prisoners took the Deponents Hat from him, and spake to him in En|glish saying, Now I am Captain of the Vessel, do you call your Men a board, or I'le send ashoar presently and kill them all.

That James Mews told the Deponent there was Peace Proclaimed between the English and Indians; but the said Mews said he never would make Peace with the English, for the Governour of Boston kept his Brother, and he would Burn the Sloop and keep the Goods till his Brother was sent home.

That afterwards when the Deponent's Mate came on board, two of the Priso|ners, viz. James Mews and Philip Mews, took hold of him and dragg'd him up|on the Deck, threatning to kill him; and also told the Deponent that he would go on Shoar, and kill the rest of his Men that were there, unless he called them an board; and soon after they got on board, the Vessel came to sail by Baptist's Order, and the said Philip and James Mews hoisted up the Anchor.— That the said Philip Mews searched the Deponent's Pockets afterwards, and tools se|venteen Shillings from him.— That John Baptist for the most part Ordered the Deponent what Course to Steer; Captain James Mews, as he called himself, having got Drunk.

That all the Prisoners in their turns, draw'd the Rum which belonged to the English Men; Drank plentifully, and eat of the Sloop's Cheese, Butter and other Provisions.— And lighted a great Number of Candles, which were burning all Night— That the next Morning they saw a Scooner which was supposed to be an English Vessel, and all the Prisoners (except James Mews who was then in Drink) divided the English Mens Arms, Powder and Shot, put new Flints into their Guns, and made ready to fight the English on board the said Vessel; John Missel in particular charged his Gun, but when they came up with her, they dis|covered she was a French Scooner belonging to Cape Breton, that had lately been at Malegash for Cattle, as the Deponent understood. Then John Baptist Ordered the Deponent to Steer for Mahoon-Bay, near his Plantation — But soon after the English perceiving that Baptist, and three Indian Men were in the Cabbin, that James Mews and John Baptist Junior were asleep upon Deck, and that John Mis|sel

was a Fishing, and Philip Mews only was walking on the Deck, who with the said Baptist were Ordered to stand as a Guard over the English, they took this Opportunity to rise, and made themselves Masters of the Vessel, three of the In|dians having jumpt over board out of the Cabbin Windows, and others being thrown from the Deck into the Hold.

That John Missel helpt to seize the Mate when he first went on board, and was as Active afterwards as the rest of the Indians upon all Occasions.— That the Indians struck the Mate several blows, hauled him by the Head and Shoul|ders, and threatned to kill him with their Hatchets and Knives which they held in their Hands.

NAthaniel Sprague Deposeth and saith, That on the 25th. of August last, when he got on Shoar it Malegash, he saw the three Prisoners now at the Bar, with other Indians on Shoar, and asked them what News, the said James and Phi|lip Mews answered there was a very good Peace. The Deponent ask'd the Indians how they knew 'twas Peace? Philip Mews answered that the Penobscut and Cape Sable Indians had lately been at Annapolis with the Governour, who informed them he had made Peace with the Indians.— That the Depo|nent heard John Baptist on board the Sloop call to his Son on Shoar, who soon after with James and Philip Mews went Armed in a Canno towards the Sloop. That one of them fired a Gun, and said to the English on Shoar: You English Men call for Quarter, and then went on board the Sloop, and he saw one of them take up an Ax and break open the Cabbin Door; then two of them went into the Cabbin; afterwards they struck the Colours, and discharged their small Arms.— That afterwards the Deponent saw two Cannos with Indians in them go on board the Sloop.— And some time after they sent on Shoar an Indian belonging to the Sloop, namely Philip Sachimus, to tell the English to come on board and they would give 'em good Quarter; but if they would not come on board, to inform them they should all be killed. Where|upon the said Mr. Doty went on board.— And afterwards the said Doty called to the Deponent and Silas Cooke, and told them there were two Indians on Shoar would kill 'em, if they did not come on board; so they went on board, and some of the Indians stampt on the Deponent, others hauled him about, and held their Hatchets over his Head, threatning to kill him; but others came to his help— And particularly James Mews (one of the Prisoners at the Bar) threatned to kill him, and would have taken away his Life, (as this Deponent believes) had not another Indian Interposed. Afterwards the Depo|nent got into the Hold, where he had not been long, before some of the Com|pany bid him come upon Deck, and threatned if he did not they would cut him all to peices, so he went upon Deck, when James Mews and other Indians kickt him, and struck him several blows.— That Philip Mews stood by when Baptist bound him. And James Mews held a Knife to his▪ Throat, and told him he would be the Death of him; And once Swore at him, saying, God Dam your Blood, you shall not live a Minute longer, and struck at him

with his Knife, but another Indian Interposed, and while they were striving together the Deponent got from them.

The Deponent further saith. That he saw the said James Mews have a Gold Ring, a pair of Silver Shoe-Buckles, and a Neckcloth belonging to John Roberts, and Philip Mews had a pair of Trowzers belonging to another of Mr. Doty's Men.

That when the English rose upon the French and Indians, James Mews was on the Windless, Philip was near him, and John Baptist Junior was lying upon or near his Gun.— Missel was on the Deck with a Gun in one Hand, and a Fishing line in the other, a Fishing.

That the Deponent saw Mr. Doty leave the Helm, and put to the Cabbin Door, and he took hold of Philip Mews Gun, but he flung Mr. Doty on the Floor, then Roberts and Cooke went to the said Doty's Assistance; John Missel in the Interim went to the Cabbin Door, and endeavoured to open it, but was hindred by an Indian belonging to Mr. Doty, viz. Philip Sachimus, who stood by the Door; But Baptist got out at the Cabbin Door, and was soon thrown over board— The Deponent further saith, That John Missel, with a Gauft struck the Deponent, and tried to haul him into the Hold with it, but the Deponent having a Fisherman's Pew in his Hand, struck at the said Missel, who fell backward, and so escaped the blow.

JOhn Roberts Deposeth and saith, That when he went ashoar at Malegash, he saw the three Prisoners, with three other Indians and two French Men, and the Deponent shook Hands with Philip Mews, and ask'd him whether there was Peace? He answered (in the hearing of other Indians) there was a good Peace, and that now the English and Indians were all one Brothers. That afterwards the said James and Philip Mews and Young Baptist put off from the Shoar in a Canno, and some distance from the Shoar one of them fired a Gun, and bid the English call for Quarter. That the Deponent afterwards saw them go aboard the Sloop, and James Mews with an Ax cut open the Cabbin Door, and Philip Mews and John Baptist struck the Colours.— That the Depo|nent with Philip Sachimus, and another Indian belonging to the Sloop, returned on board the Sloop when she was under Sail going out of the Harbour, about eight a Clock at Night.— That when he got on board, Philip Mews and John Missel, two of the Prisoners, took hold of him, and thrust him into the Fore-castle.

That afterwards James Mews called him Son of a Bitch, struck him several blows, and threatned to kill him.— That Philip Mews stood Century with the Deponent's Gun.— That James Mews had the Deponent's Ring, a pair of Buckles and a Handkerchief.— That John Missel, in his turn, stood Century with his Gun.— That Philip Mews took a Plush pair of Breeches, and a pair of Trowzers from him.

That Baptist order'd the Deponent to go to James Mews for Bread, who took up a Bag with the Bisket in it, and beat him round the Cabbin, calling him Son of a Bitch, &c.

That Philip Mews told the Deponent, when they saw the Scooner which they took for an English Vessel, that they would kill the English and give Mr. Doty and his Men their Sloop again.

SIlas Cooke Deposeth and saith, That the Shot and Powder belonging to the English was divided by Missel and others; And afterwards when they went in quest of another Vessel, he shew'd his Satisfaction at it.

PHilip Sachimus Deposeth and saith, That Philip and James Mews came by him with a Knife when they first came on board the Sloop, and tyed him, and threw him before the Windless. And broke open the Sloop's Cabbin Door, and afterwards assisted in carrying the said Sloop away.—— And that John Missel stood Century upon Deck with a Gun.

Then the Examination of the Prisoners taken upon their first Arrival at Boston, before Samuel Checkley and Habijah Savage Esqrs. two of His Majesty's Justices of the Peace, were read to the Prisoners in the words following, viz.

The Examination of James Mews.

JAmes Mews, Indian, Examined saith, That he lived at Malegash, that about twelve or thirteen days agone, he with five more Indians bought of the French there a Bottle of Rum, and were going over a carrying place when John Baptist and others called to them, and told them there was an English Vessel coming into the Harbour of Malegash, and the said Baptist and his Son John, his Brothers Paul and Gold, and his Son in Law Augustine, all living at Malegash, gave the Examinant and the other five Indians a Bottle of Rum, and over per|swaded them to turn back and go on board the Sloop, and told them, now was their time to get Provisions.— The Examinant further saith, That the said John Baptist and his Son went first aboard the Sloop, which had English Colours, and struck the Colour or Ensign, and tied it round his middle: That afterwards the Examinant with Salmon and Lewn went aboard in one Canno; and three more Indians, viz. Missel, Philip and Marsel, went aboard in another Canno; and sometime after Marsel went on Shoar again, and brought his Squaw and two Children on board the Sloop; and after them a French Woman with the English Master of the Sloop, and a French Man went aboard the Sloop: That the Indians told the English that no Harm should come to them after they got on board.— The Examinant saith, that when he first went on board the Sloop, there was an Indian belonging to the Sloop, tied, but he was soon set at liberty; that two of the three Indians that got out at the Cabbin Windows help'd to weigh the Anchor, and gave Orders to carry the Sloop round the Point to the Indian Wigwams.— That the next Morning after the Sloop

was taken, he went to Breakfast, and Drank so much that he knows not how the English overcame the French and Indians on board; but when he came to be sober, he found himself bound in the Hold of the Sloop, and he was kept tied till he came to Boston in the Sloop. The Examinant further saith, That about a Month ago he was at Menis, where there were near two hundred Indi|ans with the French Fryar, who came together to say Prayers, and then they scattered themselves about the Country; the French told the Indians that there was no Peace then, and bid the Indians, if they met any English Men, to take them. Since which time he hath been at Menis twice from Malegash, where he had been, at times, about thirteen days, and most of the French at Menis, when he was there last, told him there was no Peace, and that the Indians might take the English Vessels as they did formerly.— But at the same time some few of the French there, told him that there was Peace.— He heard the Fryar say there was no Peace, and the Indians said be must be gone, if there be a Peace, because he has been very much for War.— He knows of no Feast or Consultation at Malegash, between the French and Indians, to take any English Vessels there by way of Reprizals.

James Mews,his X Mark.

Suffolk, ss. Boston, Septemb. 5th. 1726.

• Taken and Signed before us, Samuel Checkley, Habijah Savage, Just. Pacis.
• John Gyles, Interpreter.
• Attest. Samuel Tyley, Not. Pub.

The Examination of Philip Mews.

PHilip Mews being Examined, saith, That he lived at Malegash, and came from thence about fourteen Days agone.— That he was at Malegash when Captain Doty's Sloop arrived there. That he went on board in a Canno with two Persons, viz. his Brother James Mews, and Baptist's Son, John Baptist Junior, and found Baptist (the Father) on board, and one Indian Man, belonging to the Sloop.— He says the Indians were perswaded by the French to go on board the first Vessel they saw, and take one half the Company of English and keep them Prisoners, and send 'tother half with the Vessel to Boston; for otherwise if they did not, the French at Menis, and also Indians that came from

Cape Breton, told the Examinant, that the English would not deliver up the Indian Prisoners. That two of the Indians who jumpt over board, Advised the Examinant when they saw the Sloop to go on board, and Baptist called to him and the other Indians, to make haste and come on board.— The Indians before they went aboard, had Rum of Mr. Gold, and drank it near his House, and three of them got Drunk; and as they were going to their Wigwams, they saw Mr. Doty's Sloop coming into the Harbour of Malegash, and then the French at Malegash, viz. Baptist, and two of the Indians that jumpt over board, perswad|ed the Indians to go on board the Sloop, which then had Red Colours, such as English Men wear.— That Salmon when he come on board, said he wou'd cut the Colours to peices, but Baptist and the Examinant took 'em down, and Baptist tyed 'em round his middle. That James Mews was present, and bid 'em take care that the Indians did not cut 'em to peices.— Old Salmon's Son tyed Philip the Indian belonging to the Sloop. That the Drunken Indians fired seve|ral Guns up into the Air, tho' the Examinant desired them not to fire — That he went down the Hold and loosed the Mate in the Hold, and also loosed the Indian that belonged to the Sloop who was bound, which made the Drunken Indians angry with him, and they struck him for doing so.— That he assisted in hauling up the Anchor with another Indian now in Prison, called John, alias Attaw••n, (and one English Man) and Sailed round a great Neck in order to go to their Wigwams, where they intended to keep three of the English Men, and send the rest away to Boston in the Sloop. The next Morning they saw a Scooner, which proved to be the French Vessel they had been on board some days before▪ The Indians prepared to meet 'em, and loaded their Arms; and the Drunken Indians said, if she had been an English Vessel, they would have taken her, but the sober Indians said one Vessel was eno' to take.— That the Examinant had none of the Ammunition, and was careful that so the English might loose nothing.— That James had a Gold Ring, and afterwards returned it to the English. That Lewis had the Silver Buckles, and they were returned to the English after they took their Vessel again; The Examinant saw Baptist have a pair of the English Mens Stockings; Salmon had a Wastcoat, and Marsel had a pair of Breeches.— That when the English rose up against the Indians, the Examinant was on Deck, and Baptist's Son and the Examinants Brother were asleep. That there were three Indian Men, a Woman and two Children in the Cabbin, besides Baptist, who was coming out, and an English Man knockt him down and threw him over board: That the Examinant had several blows. That three Indians went out of the Cabbin Window about a Mile from the Shoar, and the French Scooner was near, and two Cannos astern were a drift, so he believes they were not Drowned.— That Baptist said one Vessel was enough to take.

Signum Philip 〈☐〉〈☐〉 Mews.

Suffolk, ss. Boston Septemb. 5th. 1726.

• Taken and Signed before us, Samuel Checkley, Habijah Savage, Just. Pacis.
• John Gyles, Interpreter.
• Attest. Samuel Tyley. Not. Pub.

The Examination of John Missel.

JOhn Missel Examined saith, That he formerly lived at Seckenecto, that two Years agone he lived at Menis, and this Summer, viz. about a Month ago he came from Menis to Malegash, where he was when Mr. Doty's Sloop arrived in that Harbour. As the Indians sat on the Bank, they saw the Sloop come in. Mr. Baptist and his Son first went on board the Sloop.— Baptist's Son came on Shoar, and talk'd with the Indians as they were going over a carrying place, but he was at some distance, so don't know what was said.— Then James Mews and his Brother Philip wert on board with Baptist's Son; before which time the English were come on Shoar in their Canno.— That he and Salmon, with a Squaw and two Children went on board in a Canno, being first called upon by Baptist to come on board.— That James Mews or Baptist hail'd the Indians on Shoar, and told 'em they had taken the Vessel, and bid 'em come on board; When they called, Baptist and Philip took the Colours down; and when he came on board, Baptist tyed 'em round his middle. He knows not who tied the Indian belonging to the Sloop.— That when it was Even|ing, the English came on board.— That the French made a Prisoner of the Master Doty, at an Old Woman's House, and she with her Son and the Master went on board together. That James Mews said, lets come to Sail, and gave orders to hoist the Anchor, and Marsel and Lewis help'd to weight it with Salmon. They were to go to Baptist's Plantation round the Point. The next day in the Morning early they saw a Vessel, which proved to be a Vessel which the French said they saw some days before.— Some of the Indians fitted their Arms, saying, that if it was an English Vessel they believ'd she would fight 'em, seeing the Indians had taken the Sloop.—— That Baptist perswaded them to carry the Sloop round towards his Plantation, but soon after Breakfast was over, some of them were Drunk, and he and Philip were Fishing, and three Indian Men and the Squaw and two Children, with John Baptist, were in the Cabbin, and the Skipper shut the Cabbin Door upon 'em; that the English were all upon Deck, and struck him down, that James and Baptist's Son were asleep forward.—

That the said Baptist came out of the Cabbin, and was knockt down and thrown over board, the English fired into the Cabbin, and three Indians thereupon got out of the Cabbin Windows; there was one Canno adrift, which the Indians tryed to get into, but the Canno oversat; 'twas not far from the French Vessel, but he believes the People on board did not see the Indians; 'twas about a Mile from the Shoar, and he believes they were Drowned — He had his share of the English's Powder and Shot, but he had no Gun.— He heard the Indians had been at Port-Royal, and heard some of them say that there was Peace with the English and Indians. But he heard some of the Indians say they won|dred that if there was Peace, they did not bring the Indian Prisoners from Boston.

Signum John 〈☐〉〈☐〉 Missel.

Suffolk ss. Boston Septemb. 5th. 1726.

• Taken and Signed before us, Samuel Checkley, Habijah Savage, Just. Pacis.
• John Gyles, Interpreter.
• Attest. Samuel Tyley, Not. Pub

After Reading the above Examinations, the Prisoners were severally Askt whether the same were true? And altho' their Advocate advised them, that they were not obliged to own in Court, what they owned before the Justices aforesaid; Yet they severally acknowledged that their Examinations were true.

Then was Read the Ratification made the fourth day of June last, at His Majesty's Fort of Annapolis-Royal, of the Articles of Peace stipulated by the Delegates at Boston, the fifteenth day of December foregoing, (which Articles were also Read) in behalf of the Penobscot, Narridgwalk, Saint John's, Cape Sables, and other Indian Tribes belonging to, and Inhabiting within His Majesty's Territories of Nova-Scotia, &c. And by Major Paul Mascarene, Commissioner for the Province of Nova-Scotia, in behalf of His Majesty.

Afterwards the Prisoners being ask'd whether they had seen any of the Indians that were at the Ratification of the Peace at Annapolis? They answered, they had been in Company with several of the Indians, whose Names were subscribed to the said Ratification; And particularly James Mews owned, that about twenty days before the said Doty's Sloop was taken, he was in Company with Antoin, one of the Chiefs of the Indians at Menis, and about eight or ten days afterwards, he saw Indian Simon, who used to carry Letters from Menis, &c. to Annapolis-Royal, and was present, as he understood, at the Negotiation of the Peace; and the said James and Philip Mews, both signified to the Court their belief that Antoin was at Annapolis treating of the Peace; and they also own|ed, that they lately saw Captain Walker, alias Piere, one of the Chiefs of the Indians at or near Malegash and Sabuckatook, who was at Annapo|lis at the Treaty; and that his Brother Catouse was returned from thence, since the Ratification of the Peace.

Then the Prisoners Advocate made his Pleas in their Defence, in the following manner, viz.

I Now a second Time appear before Your Honour, Mr. President, and the rest of the Honourable Commissioners of this Court, in behalf of some Persons accused of Piracy: Who tho' they be Indians, have and will experi|ence so much Candour and Indulgence from this Court, as must convince even the barbarous and Salvage Tribes to which they belong, of Your great Justice and Impartiality. Your Honours, I doubt not, are sensible I am not send of this Office: But my Duty to Your Honour, and the Honourable Court, and desire that nothing may be neglected, which in Justice to the Pri|soners ought to be declared, engage me in this Affair.

I humbly submit it to Your Honours, Whether at the Time the Facts they are accused of, are laid to be committed, they were not Enemies, or in a State of War with us: 'Tis true it appears, that the Ratification of the Peace between His Majesty's Government of Annapolis-Royal, and the Cape Sable In|dians, was made at Annapolis on the fourth of June last; but that regards that Government only; and the Covenant on the part of the Indians, that they not commit Hostilities, &c. extends to the Inhabitants of that Province only. The Vessel seized at Malegash, in which the Evidences for the King were, belongs to His Majesty's Subjects of this Province: And the Prisoners declare, that at the Time of the taking Capt. Doty and his Vessel, they nei|ther knew or heard of the Ratification of the Peace between this Province and the Indians at Cas••••; but on the contrary, were informed even by Eng|lish

men, as well as French, among the latter of which, were (as they inform me) Monsieur St. A••••••e of Me••••, and his Son John Baptist, and by two eminent Cape Sable Indians, S••••••••age and A••••••••••age, that there was no Peace made, but only talked of; and that but a Day or two before the Facts are charged in the Articles to be committed.

The Ratification indeed at Cases, was on the fifth of August, but that does not argue that the Prisoners were acquainted with it, they living in a far, re|mote and distant Place of another Government: And being but an inconside|rable Number of People, the Law will not, with Submission, presume a Per|son to be knowing of a thing, unless there appear some Circumstances by which it may be reasonably concluded, he cannot but know it. If therefore the Prisoners were in a State of War with us, what they have done, they may well justify, by the Laws of GOD, Nature, Nations and Arms: And their declaring to Doty and his Men, that it was Peace, may be reasonably accounted a Stratagem of War, to draw and ensnare them in their Churches; which fort of Stratagems are very frequently made use of in War.

Your Honours may well remember what I urged yesterday in favour of the two French-men, which therefore I shall not spend Your Time in insisting on, since the Sentence You have passed upon them, manifests it to be over-ruled; I mean, that the Fact charged being committed within the Body of a County, amounts only to a Notorious Robbery, which is triable at the Common-Law by a Jury, and not to Piracy: And herewith agrees the Definition of Piracy, given by Mr. Advocate General. I shall only beg leave to add to what I then said, That as the Fact was certainly begun when the Vessel was at Anchor in the Harbour; so it being but one continued Act, ought to be tried where it was begun, i. e. within the Body of the County.

The Carriage of the Prisoners to the Men, was very Unjustifiable in their beating of them, &c. But this I attribute partly to their barbarous Natures and Customs, and partly to their Drink. John Missel seems to have had the least share in the Affair, he not coming on board till after the Colours were struck: But I shall leave their Cases to Your Honour's wise Consideration, and doubt not of a Judgment equal to the Merit and Justice thereof.

Afterwards the Prisoners being ask'd, if they had any thing to say for themselves, more than their Advocate had observed on their behalf?— James Mews said, he was in Liquor; and they all excused themselves by alledging, that it was the first Offence of that Nature they had been Guilty of, &c.

Afterwards the King's Advocate Reply'd upon the Prisoners Advo|cate, as follows, viz.

May it please Your Honour, Mr. President, and the Honourable Com|missioners,

I Shall not now Trespass upon Your Patience, in reiterating the several Matters of Fact proved upon the Prisoners: And more espe|cially when I consider they turn out as strong, if not stronger against them, than against those two that justly received their Sentence Yester|day.— And of this their Advocate is perfectly convinced, and there|fore industriously waves any Advantage that otherwise may be taken to the weakness of the Evidence; and rests their Defence on an Allega|tion, That at the Time of Committing these Facts, they were in a State of Enmity with us, ignorant of the Ratification of the Peace, and therefore not guilty of Piracy, by the Law of Arms, &c.

To which I Answer:— That the Gentleman is the second Time mistaken in Fact. For on the Fifteenth Day of December, 1725. the several Tribes of the Eastern Indians, St. John's and Cape Sables, &c. by their Delegates, did enter into Articles of Pacification at Boston, with the Governments of the Massachusetts-Bay, New-Hampshire and Nova-Scotia, whereby among other things, they promised in behalf of their respective Tribes,

That they will cease all Acts of Hostility, Injuries and Discords, towards all the Subjects of the Crown of Great Britain, and not offer the least Hurt, Violence or Molestation to them, or any of them, in their Persons or Estates; but will henceforward Hold and Maintain a firm, constant Amity and Friendship with all the Eng|lish, and will never Confederate or Combine with any other Nation to their Prejudice.

And further, there are also inserted in the said Articles of Pacification these Words, viz.

We (meaning the said Delegates, in behalf of themselves and their respective Tribes) Sub|mitting our selves to be Ruled and Governed by His Majesty's Laws, and desiring to have the Benefit of the same.

And on the fourth Day of June following, at Annapolis-Royal, the Chiefs and Representatives of the said Indians, in Compliance with the said Articles, stipulated as aforesaid, by their Delegates, and in Obedience thereunto, Solemnly Confirmed and Ratified the same. By all which it most evidently ap|pears, that the Indians were not, as pretended, at the Time of execu|ting the several Acts of Piracy charged upon them, in a State of War with the Crown of Great Britain, but in firm Amity with His Sacred Majesty, and to be Governed by His Majesty's Laws, and Entituled to the Benefit of them.

And if any Foreigner, Subject to any Prince or State in Amity with the Crown of England, commit Piracies on the Ships or Goods of the English, the same is Piracy, within the Stat. 28. H. 8. Sea-Laws, p. 478. q.

Having thus unanswerably acquitted this Prosecution from the Exception, I beg leave to give a shot Answer to what further was offered by the Advocate for the Prisoners, under this Head, namely, that they were ignorant of these Negotiations, and therefore the Crime of Piracy ought not to be imputed to them.

I must observe to Your Honours, It's a settled Maxim in respect to the Breaches of Penal-Laws, Ignorantia non excusat Legem. And was the Fact truly so, who is chargeable with the Omission? The Chiefs and Delegates in Duty ought to apprize (as doubtless they did) their re|spective Tribes, of the said Articles of Pacification and Confirma|tion, and not the Government that stipulated with them. But from their own Words, and Words spoke in their hearing, as appeared in the Evidence, and also from the Circumstances in the Case, it must be collected they were fully sensible of all these Solemn Treaties and Proceedings; for ashoar one of them saluted the English as the French did aboard, by saying, It's Peace; the English are now all one as Bro|thers: And by their own Acknowledgement, they had seen and con|versed with some of their Chiefs, that had at Annapolis Confirmed the said Articles of Pacification since such Confirmation, and once in par|ticular, but a very inconsiderable Time before their perpetrating this their wicked Act; so that there is neither Colour or Shadow to sup|pose them Ignorant; or according to Law would such Ignorance ex|empt them from the Punishment justly due to their Demerits.

Therefore I doubt not but Your Honours will in like manner declare them Guilty, as You lately have the other Accomplices in these their wicked Actions.

The Advocate General having Concluded, the Court was cleared; Then the Commissioners fully and deliberately weighed and considered the Evidences against the Prisoners, and also the Defence made by them and their Advocate, together with Mr. Advocate General's Replication, &c. And Voted Unanimously, That the said James Mews, Philip Mews, and John Missel, were severally Guilty.

Then the Prisoners were brought to the Bar again, when the President Pronounced them severally Guilty of Piracy, Felony and Robbery, ac|cording to the Articles Exhibited against them.

Whereupon the Advocate General on His Majesty's behalf, demanded Sentence against them.

And the Prisoners when ask'd what they had further to say, why Sen|tence of Death should not be Pronounced against them, alledging, they had nothing to say more than had been offered upon their Trial; The President of the Court accordingly Pronounced Sentence against them severally, in the Words following, viz.

You — are to go from hence to the place from whence you came, and from thence to the place of Execution, and there to be hanged up by the Neck, until you are Dead; and the Lord have Mercy upon your Soul.

FINIS.

Notes

• * 5.1

  March. Com. p. 183.
• * 5.2

  3 Inst. 113. q.
• * 5.3

  4 Inst. 140, 141. x.
• * 5.4

  Hale's Pleas of the Crown, p. 43.