Pirate tales from the law

by Arthur M. Harris

The job of defending against this blanket charge probably looked too great to Sir David Cunningham, for he drops out at this point and the load falls back on Sir David Thoirs and his colleagues.

In addition to the charge, the indictments set out, through several pages of close print, the entire evidence which the Crown expected to prove. A great rigamarole, this, containing a particular recitation of everything that George Haines had said to the widow Seaton, her daughter Anne, Will Wood of the artillery, and Jamie Wilkie, with which we are already acquainted.

Incorporated with all this, was a long-winded yarn by the ship’s doctor, May, who had been granted the comfort of turning state’s evidence, and from which it appeared that the doctor himself and some others (among whom was the second mate, Reynolds, according to the oral admission of the Fiscal) being ashore and hearing the firing of guns, came to the water’s edge and saw a captive ship riding at the stern of the Worcester. The cannonading had ceased by that time, so the surgeon went aboard, where he found the decks of the Worcester littered with goods. He asked the reason of it all of one of the crew, whereupon John Madder, first mate, overhearing him, turned angrily to the doctor “in a tarpaulin temper” as the doctor says, and exclaimed, “D—n you! What have you to do to inquire? Meddle with your plaister-box!” The surgeon then went down to his “chest” and called for the wounded to dress them; three of whom, “Antonio Ferdinando, and one Duncan McKay, now dead, and another” came for treatment. These refused to tell him how they came by their wounds “whereupon the chirurgeon refused to dress them if they would not tell him how they got their wounds, and the said John Madder came to the chirurgeon in a passion, and asked what his business was to ask so many questions, when he did see the wounds so plain before him, calling him a blockhead for not dressing them,” and winding up by ordering the doctor ashore. There the surgeon met the ship’s interpreter, hired locally for the sojourn, who told him that some of the crew of the Worcester had brought the captured ship into the Keilon River and sold it to Cogi Commodo.

Such were the indictments, and they were so drawn because of the peculiar nature of the jury’s verdict under the Scotch practice, which did not find the fact of guilt “as charged,” but merely the truth of each item of the evidence, leaving to the court to pronounce the legal significance of those findings. It’s a jumbled-up thing and would take a treatise to explain. Some historians charge that this form of verdict was the child of political skullduggery and framed first to catch covenanters and other radicals for whom juries were showing too much sympathy and were acquitting on the general verdict; the idea being that a jury would have to find as a fact that Dougal was meeting in a bog with his confreres, while the judge could remove from the jury the temptation of turning in “Not guilty” by reserving to himself the declaration of the legal import of the finding of fact as to Dougal’s actions.

Next, after arraignment the indictment (we refer to it in the singular as both documents were of the same effect) must be approved by the judges; that is, the court must declare that if the evidential facts set out in the indictment are proved, such facts will make a proper charge and, if found by the jury, will be sufficient to convict.

Obviously, then, the big battle of this campaign must be fought across the indictment. Alec the Fiscal, with his army, will struggle to get it approved; Davy Thoirs and his gallant legion are ready to break their hearts in an effort to get it condemned. The actual trial will not be important, for if the indictment be held good, the Fiscal’s witnesses will simply recite what is already written in that indictment, and all the jury will be able to say will be that sometime in February, March, April or May, 1703, the Worcester was off the coast of Malabar, that the ship’s doctor heard but did not see firing, that he was told the prize was sold to a Malabar merchant; that a drunken sot babbled in a widow’s house, and the court will have already pledged itself to declare those circumstances constitute piracy, robbery and murder.

Three occasions, March 5, 7 and 13, mark the chronology of this high forensic conflict. Its most lucent presentation requires that the time element be disregarded here, and the arguments put together as a whole. The debates were oral but we know what passed because, according to the fashion of the time, what was said in court must afterwards be put in writing by counsel and given to the clerk “to be entered upon the court books.”

Choosing our own time arrangement, then, first the defense attacked the jurisdiction of the court to hear the case at all. It was argued that the alleged crimes were committed on the coast of Malabar and by Englishmen, therefore the accused should be sent to England for trial. Alec the Fiscal countered that the crime charged being piracy, and pirates subject to arrest anywhere, the place of arrest and not the place of offense determined the court’s jurisdiction,—what you might call the geographical boundaries of its power. What Alec the Fiscal is thinking of is the indisputable principle that pirates actually in the act of crime may be taken anywhere. That is not the same—and he must have known it—as a presumably innocent ship being informed against on suspicion. English admiralty practice was somewhat of a bar to the Fiscal’s theory, so he kicked the English admiralty courts out of the window, saying, “as for what may be the custom in England, it doth not concern, nor can be any rule for us.” Looking at it that way, of course the judges had little trouble finding themselves competent to arbitrate the fight. Roars of delight from the Darien stockholders.

Second, the gentlemen of the defense now threw their weight against the indictment itself. They urged that it was too informal, too general, too indefinite; that it did not specify day or place, and only by far-drawn implication charged that the vessel pirated was the Speedy Return. Here’s the exact language of their protest:

That the libel (indictment) was irrelevant, as being general and indefinite, not condescending (stating) upon the name, designation, or any other sign or evidence by which the ship alleged to be seized might be particularly distinguished, nor yet the persons’ names alleged to have been murdered, or to whom the ship and goods robbed did belong; which seem to be absolutely necessary in all such criminal indictments, not only as a requisite in form, but in equity and reason; without which, persons accused should be in great hazard from general and indefinite libels, and precluded from their means of defense, which otherways are obvious, when the accusation is certain, special and pointed.