Pirate tales from the law

by Arthur M. Harris

Strong, sane, splendid words! Cutting through the fog of passion and prejudice like a clear, pure beam of sun. Whatever may have brought them into the case, Davy Thoirs and his men are here the mouthpieces of the law in all its majestic wisdom.

How did the Fiscal meet this smashing onslaught? He dodged. “He had informed as definitely and closely as the thing would allow,” he whined, “for what sense or reason is there, that the prosecutor should be made to state positively on day and place, in crimes that are crimes at all times and everywhere; unless it be for the very reason that the defender, acknowledging the crime, offers to purge himself by the exception of alibi?”

Hardly credible, is it? A prosecutor should not specify the date and place of a crime lest the defendant prove he was somewhere else at the time. This is the atmosphere, surely, of Alice’s Wonderland. Why, a defendant might actually have been somewhere else than at the place of the crime, and what would a poor Fiscal do then? Sir Patrick Home at the bar rolled a pathetic eye up at Sir John Home on the bench. What will happen in Scotland if people are going to insist on such absurd propositions as that advanced by the defense? Well-a-day and two Alacks!

The judges would consider the matter.

It did not do to make any false moves before Davy Thoirs, and this is just what the Fiscal did when he admitted that John Reynolds, one of the defendants, was ashore at the time of the attack. Swift, hard, the defense hit this point. Under that practice one defendant in a criminal action could not be a witness for a co-defendant until “so purged from being socius criminis (a fellow criminal)” as to be “put in case to be a witness.” If Reynolds could be cleared of the crime he could testify for his fellows. For a situation of that sort the law provided that one defendant wishing to use another as his witness was to “raise an exculpation” on behalf of that witness; that is, he would offer to prove such and such facts concerning the desired witness, upon which a trial was to be had, when, if the party were cleared or “exculpated” he could then take the stand and return the compliment to his erstwhile co-defendants. On behalf of the accused, the defense now offered to exculpate and thus qualify John Reynolds, on the ground that, as admitted by the Fiscal, he was on shore at the time of the crime charged and therefore not particeps criminis.

The Fiscal roared. “You can’t do this,” he yelled, and the noisier he grew the vaguer his argument became; you have to positively offer to prove Reynolds was somewhere else on some exact day or not on his ship for four months together. My indictment may be vague, was what he meant, but your alibi must be as specific as a bookkeeper’s accounts. Why, that was why he had drawn his indictment so loosely,—just to head off alibis.

The judges would consider the matter.

Why continue? It was all on that stripe.

On the morning of the thirteenth, the judges announced the conclusion of their deliberations.

“The judges and assessors,” came the stiletto tones from the seat of Justice, “having advised both the indictments pursued by Mr. Alexander Higgins, Procurator-Fiscal of the High Court of Admiralty, against captain Thomas Green” and the others, find, that “Reynolds being libelled against as socius criminis, a fellow criminal, and there being no specialty or particular ground of exculpation proponed, why he should be previously tried repel” the offer of the defense to exculpate him and “repel the objection against the generality of the indictments, in regard to the nature of the crimes and find the crimes of piracy, or robbery or murder, as libelled, being proven by clear and plain evidence, relevant to infer the pains of death ... and remit the whole to the knowledge of the assize (jury).”