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.

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, 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, 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, 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, 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.

Notes

• March. Com. p. 183.
• 3 Inst. 113. q.
• 4 Inst. 140, 141. x.
• Hale's Pleas of the Crown, p. 43.