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Piracy - part 1

Office for Foreign Affairs, 29th September, 1785 : The secretary of the United States, for the Department of Foreign Affairs, in obedience to the order of Congress, reports the draft of an ordinance for the trial of piracies and felonies committed on the high seas.

To view the original document within the Documents of the Continental Congress Collection in American Memory, search on "foreign affairs."

OFFICE FOR FOREIGN AFFAIRS, 29th SEPTEMBER, 1785.

The SECRETARY of the United States, for the Department of FOREIGN AFFAIRS, in Obedience to the Order of Congress, reports the Draft of an Ordinance for the Trial of PIRACIES and FELONIES committed on the High Seas.

YOURsecretary observes, that prior to the reign of Henry the eighth of England, piracies, treasons, felonies, c. committed on the high seas, were tried before the admiral, according to the course of the civil law.

That in the 28th year of his reign, an act was passed, declaring that they should in future be tried as such places in the realm as should be assigned by the king's commission, and in like manner as if committed on the land--which commission should be issued as often as need might require, directed to the admiral or his lieutenant, and three or four other substantial persons to be named by the lord chancellor:--Their proceedings were to be according to the common law.

The provisions in this act were rendered more extensive and effectual by one passed in the 11th and 12th of William the 3d, which was also amended by 18th George the 2nd, by which and other subsequent statutes many useful things on this subject were enacted, but which the present powers of Congress are not supposed to reach.

Your secretary also observes that the power given to Congress by the confederation, is not to declare what is or shall be felony or piracy, nor to declare what shall be the punishment of either, but merely to appoint courts for the trial of piracies and felonies committed on the high seas --Whence it seems to follow that the wise end in view, viz. the rendering both the trial and punishment of those offences similar in all the states, cannot be accomplished by an ordinance of Congress, in virtue of that article in the confederation.

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But as piracy is war against all mankind, which is the highest violation of the laws of nations; as the execution of those laws demands the care of the sovereign who is responsible for the observance of them in his dominions, and as the conduct of the United States towards all their enemies in open war against them, (whether nations or individuals) is to be regulated by their federal government, your secretary thinks that Congress would not exceed their powers by ordaining the punishment to be inflicted throughout the United States in cases of piracy. This reasoning however does not in the opinion of your secretary, apply to cases of felony, as distinguished from piracy; and therefore the design of this reference with respect to them, can only be so far attained by an ordinance of Congress, as that they shall be tried (though not punished ) in like manner in all the states.

It appears singular to your secretary, that the confederation should confine the authority of Congress to piracies and felonies, and not extend it to treasons, which can not be regularly comprehended under either of those denominations. The revolution has done away so much of the former law respecting treasons, and such new relations between citizen and sovereign have taken place, that it is very difficult, if practicable, to say what is the exact extent and meaning of treason in the United States. There is an allegiance resulting from compact which is due from the citizens of each state to the sovereign of it, and there is also an allegiance less understood, which is due from the citizens of all the states to their federal sovereign. The nature of both these sovereignties differ so exceedingly from monarchy, with respect to offences of [lesoe?] majestatis; that laws and penalties proper to support the latter, would be impolitic and injurious to the former.

Your secretary is aware that this is a deviation from the line of the reference, but as the importance of introducing precision, uniformity and system in this essential branch of the law, merits attention, he hopes this short digression from his proper subject will be excused.

AN ORDINANCE FOR THE TRIAL OF PIRACIES AND FELONIES
COMMITTED ON THE HIGH SEAS

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WHEREAS by the ninth article of confederation and perpetual union between the United States, it is declared that they shall, when assembled in Congress, have the sole and exclusive right and power of appointing courts for the trial of piracies and felonies committed on the high seas.

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Wherefore be it ordained by the United States in Congress assembled, and it is hereby ordained by the authority of the same, that whenever, and so often as any person or persons, charged with having committed piracy or felony, on the high seas, shall either be apprehended in, or brought from sea or foreign parts to any one of the said states, the governor, lieutenant governor, or other magistrate or magistrates then exercising the executive power of such state, shall forthwith, at the expence of the United States, send such person or persons for trial to such other of the said states, where the witnesses and proofs of such piracy or felony may more easily and expeditiously be had. But in all cases where the said person or persons may as well, or more conveniently, be tried there, is in another state, and in all cases where a person or persons so charged, shall there be brought from another state for trial, the said executive magistrate or magistrates shall within thirty days after the commitment of such person or persons, issue a commission, to continue in force for forty days, and no longer, under the great seal of the state, to the judge of the court of admiralty thereof, and to three or [four?] such other learned and discreet men, as the said executive power may think proper, constituting them judges to hear, determine, and judge all piracies and felonies committed on the high seas, by any person or persons then being within that state, or who may come or be brought to it before the expiration of that commission, in the manner and form specified in this ordinance, which shall be recited at length in the said commission.

As it is further ordained by the authority aforesaid, that the majority of the said judges, of which the judge of the admiralty shall always be one, do constitute a quorum; and that every question proper for their discussion, shall be decided by the major voice of them all if present, or of the quorum aforesaid if all should not be present.

It shall be and is hereby declared to be the duty of the said judges respectively, to take the following oath before they proceed to execute the said commission, viz. I. A. B. one the judges appointed by commission under the great seal of this states, bearing date the..........day of..........issued in pursuance of the ordinance of Congress therein recited for hearing, determining, and judging all piracies and felonies committed on the high seas, by any person or persons now within this state, or who may come or be brought to it before the expiration of the said commission; DO swear on the holy Evangelists of Almighty God, that I will faithfully, diligently, and impartially do my duty as one of the said judges, according to justice, law, and right, and to the best of my skill and understanding. So help me God.

The said judges shall then appoint a clerk to their court, and administer to him the following oath, viz.

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I A. B. appointed clerk to the court about to set for hearing, determining, and judging all felonies and piracies committed on the high seas, by any person or persons now within this state, or who may come or be brought to it before the expiration of the said commission, DO swear on the holy Evangelists of Almighty God, that I will faithfully, diligently, and impartially do my duty therein according to the best of my skill and judgment.

The said judges shall then decide in what county of the state, and at what place in such county, it will be most convenient for all parties, and most conducive to the furtherance of justice, that they should open and hold their court; and having so decided, they shall there remain and not remove the court to any other place. They shall forthwith proceed, by precept under their hands and seals, to command the sheriff of that county, to have before them at the place aforesaid, and at a certain day therein to be assigned, not less than twelve, nor more than twenty-four good and lawful men of his bailiwick, to form a grand jury, who on oath shall enquire, and true presentment make of all piracies and felonies committed on the high seas, by any person or persons within the said state, or who may come or be brought to it before the expiration of the said commission. This precept shall be issued within seven days after the date of the commission, and shall be returnable within eight days after its own date exclusively.

The said judges shall also at the same time that they issue the precept aforesaid, issue another to the same sheriff, to empannel and have before them twenty-four other good and lawful men of his bailiwick, out of whom as occasion may require, pettit juries to consist of twelve, shall be chosen by ballot, for the trial of such indictments as may be presented as aforesaid, and to which the party indicted shall plead not guilty. This last precept shall be returnable on the fourth day inclusive after the return of the other precept.

It shall be the duty of the attorney general of the said state, to prosecute the pirates and felons in question, in like manner as if their offences had been committed within the body of the county, in which the said judges shall sit.

The grand jury shall be sworn and charged in open court, and they shall demean themselves, and proceed in doing business in the manner and form directed by the common law, and by this ordinance; and the court shall have the like authority over them, and over the pettit juries summoned to attend them, and over witnesses, and over all ministerial officers of justice throughout the whole state, as a court of gaol delivery, or of oyer and terminer of right hath, in the particular county for which they may be commissioned.

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And it is further ordained by the authority aforesaid, that so soon as an indictment against any person or persons for the offences aforesaid, or either of them, shall be presented to the said court, they shall, if not already done, cause the person or persons so indicted, to be apprehended, by issuing a precept for that purpose, to the sheriff and other ministerial officers, or either or any of them, of the county in which such person or persons may be supposed to be.

When the person or persons so indicted, shall be brought before the court, they shall be allowed counsel, a copy of the indictment shall be delivered to each of them, and one day allowed them to consider of the same. They shall be then separately arraigned, and called upon to plead. Against such as shall stand mute, or refuse to plead, judgment shall be entered in like manner as by consession. If he shall plead not guilty, a copy of the pannel shall be forthwith delivered to him, and he shall have at the least two days to prepare for his trial, and more if good cause for such indulgence be shewn to the court.

The witnesses shall be sworn and examined viva voce in presence of the court, the jury and the prisoner; and the whole trial shall be conducted according to the course of the common law. Written examination of the prisoner or prisoners duly taken before a proper magistrate, and signed by the party and the magistrate, shall be given in evidence, but ex parte affidavits shall in no case, nor on any pretence be admitted.

If any of the prisoners so indicted of piracy, shall be duly convicted thereof, the judgment against him shall be, that he be hanged by the neck until he be dead. And the sheriff of the county shall cause the said judgment to be executed, at such time and place, as the said judges shall order. It also shall be in the discretion of the judges, to order the body of the offender to be hung in chains, if the circumstances of the offence be so aggravated and attrocious, as in their opinion to render such example of severity useful and proper.

If any of the prisoners so indicted of felony, shall be duly convicted thereof, the judgment against him shall be the same, and it shall be executed in like manner, as if the said felony had been committed within the body of the said county.

It is also ordained by the authority aforesaid, that from time to time that the said court shall be first opened, they shall have power to adjourn only from day to day; but in case they shall have dispatched all the business before them, before the expiration of the forty days limited for the duration of their commission, they shall then adjourn sine die.

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It is further ordained by the authority aforesaid, that reasonable compensation shall be made to the clerk of the court, and to the sheriff, for their respective services, to be ascertained by the court, who shall also admit and tax such accounts of such incidental expences, as may have been indispensibly necessary---such for example, as provisions for the prisoners, chains for such as they may have directed to be hanged in them, and the like. All these allowances and expences, certified by the judges, shall be paid in the first instance, out of the treasury of the state, and repaid out the treasury of the United States, to the order of the chief executive magistrate, on the accounts being transmitted to the commissioners of the treasury board, and passed in the usual form.

And whereas in providing for the administration of justice, care should be taken not to exclude mercy where circumstances may render the extension of it proper;

Therefore it is also ordained by the authority aforesaid, that it shall be in the power of the chief executive magistrate or magistrates of the state, for the time being, on the recommendation of the judges aforesaid, to respite the execution of any judgment against any pirate or felon convicted as aforesaid, until the pleasure of Congress shall be known, and for that purpose notice of the said respite, and the reasons, shall be without delay communicated to Congress.

It is also ordained by the authority aforesaid, that such person or persons as shall be indicted and tried before the said court, for either of the offences aforesaid, and shall be thereof acquitted, shall not be again questioned or tried for the same in that or any other of the United States. And in order that such person or persons may, if so again indicted, have the better opportunity of pleading and proving such previous acquittal in bar thereto, It is further ordained, that the proceedings in every such cause, shall be duly entered up of record, on parchment rolls, by the clerk of the court, with the advice and assistance of the attorney general, and shall be returned by the said courts, together with, and annexed to, their commission, to the chief executive magistrate or magistrates who issued the same; and who, on receipt thereof, shall cause the said commission and proceedings to be filed in the court of chancery of the said state; or if there should be no court of chancery established in the said state, then the same shall be filed with the keeper of the records of the superior court of judicature for the said state; and an exemplification of any of the said rolls or records, under the great seal of the state, shall be good evidence in any subsequent court to be appointed or held in any of the United States for the trial of piracies and felonies committed on the high seas.

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And whereas the friendless and destitute situation in which such men often are, may put it out of their power to obtain such exemplifications, and whereas the term of forty days assigned for the duration of the commission, may not admit of sending for, and having it from a distant state, in season, --Therefore it is further ordained, that whenever a person indicted in the said court, for either of the offences aforesaid, shall plead a formal acquittal on a trial for the same supposed offences, in a similar court, in one of the other United States; it shall be the duty of the court to receive the plea, and immediately write a letter to the chief executive magistrate of that state, informing him thereof and requesting him, as the life of a man is in question, to make diligent search for the record of the cause alluded to, and at the expence of the United States, to send to them an exemplification thereof in due form. The prisoner shall then be recommitted to prison. If the exemplification demanded, shall arrive before the expiration of the forty days, and it shall clearly appear to the court, from comparing that record with the present indictment, that he had been indicted, tried and acquitted of the same offence, for which he stands indicted before them; they shall forthwith discharge him--But if the said chief executive magistrate or magistrates, shall answer, that there is no such record, and shall also enclose a certificate, of the proper keeper of such records, under his oath of office, that there is no such record, then judgment shall be entered against the said prisoner, as by consession.

But if no answer whatever shall be received from the said executive magistrate, before the expiration of the said forty days, then the executive power of the state, shall by a short commission, reciting the date of the former, continue it for forty days longer. And as it may so happen, that the cause in which such plea may be made, may be the only one before the court, and it would be a hardship to keep the court sitting from day to day, until the answer aforesaid should arrive, it shall be lawful for the said court on such a contingency, to adjourn for a week, ten days, or other term, that they may think expedient.

And it is also ordained by the authority aforesaid, that all accessaries to piracy, whether before or after the fact, shall be considered as principals; but that all accessaries to felonies committed on the high seas, shall be considered by the said said judges, as they are considered by the laws of the state in which the offenders shall be tried as aforesaid. And further, that all lands, goods and chattles, which may be forfeited on the convictions before mentioned, shall pass and belong to the state within which such convictions shall be had, excepting only such lands as may be in another state, for they shall belong to that other state.

Lastly, it is ordained, that the ordinance of the 5th April, 1781, entitled, an ordinance for establishing courts for the trial of piracies and felonies committed on the high seas, shall be, and hereby is repealed.

DRAFT OF A COMMISSION.
STATE OF..........ss.

TO ALL to whom these presents shall come, I..........governor, (lieutenant governor, president, c. as the case may be,) of the state (or commonwealth) of..........SEND GREETING: Whereas the United States of America in Congress assembled, did on the..........day of in the year of our Lord, one thousand seven hundred and eighty-five, make and publish an ordinance in the words following, viz. (here recite it verbatim) Now know ye, that by virtue of the authority to me by the said ordinance given, I have nominated, constituted and appointed, and by these presents do nominate, constitute and appoint. A. B. esquire, the present judge of the court of admiralty in and for this state,C. D. of E. F. of..........and G. H. of..........and the majority of them, of whom the said..........shall always be one, judges to hear, judge, and determine all piracies and felonies committed on the high seas, by any person or persons now within this state, or who, before the expiration of this commission, shall come or be brought to the same. In the doing whereof, the said judges are hereby directed, to proceed in the manner specified and ordained in and by the said ordinance, and to exercise all the powers and authorities given to them by the same. This commission shall remain in force forty days from this day exclusive, and at the expiration thereof, the said judges are to return the same to me, or to the person who may then exercise the executive power of this state, together with the records and minutes of their proceedings annexed thereto, and certified by an indorsement under their hands and seals, or the hands and seals of a majority of them.

In witness whereof, I have hereunto subscribed my name, and caused the great seal of this state to be affixed. ALL which is submitted to the wisdom of Congress.

JOHN JAY.

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