the Court in want of Form, more essentially supply'd with Integrity and Impartiality.
But, perhaps, if there was less Law, there might be more Justice, than in some other Courts; for, if the civil Law be a Law of universal Reason, judging of the Rectitude, or Obliquity of Mens Actions, every Man of common Sense is endued with a Portion of it, at least sufficient to make him distinguish Right from Wrong, or what the Civilians call, Malum in se.
Therefore, here, if two Persons were equally Guilty of the same Fact, there was no convicting one, and bringing the other off, by any Quirk, or turn of Law; for they form'd their Judgments upon the Constraint, or Willingness, the Aim, and Intention of the Parties, and all other Circumstances, which make a material Difference. Besides, in Crimes of this Nature, Men bred up to the Sea, must be more knowing, and much abler, than others more learned in the Law; for, before a Man can have a right Idea of a Thing, he must know the Terns standing for that Thing: The Sea-Terms being a Language by it self, which no Lawyer can be supposed to understand, he must of Consequence want that discriminating Faculty, which should direct him to judge right of the Facts meant by those Terms.
The Court well knew, it was not possible to get the Evidence of every Sufferer by this Crew, and therefore, first of all, considered how that Deficiency should be supplied; whether, or no, they could pardon one Jo. Dennis, who had early offered himself, as King's Evidence, and was the best read in their Lives and Conversations: Here indeed, they were at a Loss for Law, and concluded in the Negative, because it look'd like compounding with a Man to swear falsly, losing by it, those great Helps he could have afforded.
Another great Difficulty in their Proceedings, was, how to understand those Words in the Act of Parliament, of, particularly specifying in the Charge, the Circumstances of Time, Place, &c. i. e. so to understand them, as to be able to hold a Court; for if they had been indicted on particular Robberies, the Evidence had happened mostly from the Royal African Company's Ships, on which these Gentlemen of Cape-Corso-Castle, were not qualify'd to sit, their Oath running, That they have no Interest directly, or indirectly, in the Ship, or Goods, for the Robbery of which, the Party stands accused: And this they thought they had, Commissions being paid them, on such Goods: And on the other Side, if they were incapacitated, no Court could be formed, the Commission absolutely requiring three of them by Name.
To reconcile all Things, therefore, the Court resolved, to bottom the whole of their Proceedings on the Swallow's Depositions, which were clear and plain, and had the Circumstance of Time when, Place where, Manner how, and the like, particularly specified according to the Statute in that Case made, and provided. But this admitted only a general Intimation of Robbery in the Indictment, therefore to approve their Clemency, it looking Arbitrary on the Lives of Men, to lump them to the Gallows, in such a summary Way as must have been done, had they solely adhered to the Swallow's Charge, they resolved to come to particular Tryals.
Secondly, That the Prisoners might not be ignorant whereon to answer, and so have all fair Advantages, to excuse and defend themselves; the Court farther agreed with Justice and Equanimity, to hear any Evidence that could be brought, to weaken or corroborate the three Circumstances that complete a Pyrate; first, being a Volunteer amongst them at the Beginning; secondly, being a Volunteer at the taking or robbing of any Ship; or lastly, voluntarily accepting a Share in the Booty of those that did; for by a Parity of Reason, where these Actions were of their own disposing, and yet committed by them, it must be believed their Hearts and Hands joyned together, in what they acted against his Majesty's Ship the Swallow.
The Tryals of the Pyrates,
Taken by his Majesty's Ship the Swallow, begun at Cape Corso-Castle, on the Coast of Africa, March the 28th, 1722.
THE Commission impowered any three named therein, to call to their Assistance, such a Number of qualified Persons as might make the Court always consist of seven: And accordingly Summons were signed to Lieut. Jo. Barnsley, Lieut. Ch. Fanshaw, Capt. Samuel Hartsease, and Capt. William Menzies, viz.
‘BY Virtue of a Power and Authority, to us given, by a Commission from the King, under the Seal of Admiralty, You are hereby required to attend, and make one of the Court, for the trying and adjudging of the Pyrates, lately taken on this Coast, by his Majesty's Ship the Swallow.
Given under our Hands this 28th of March, 1722, at Cape Carso-Castle.
Mungo Heardman,
James Phips,
Henry Dodson,
Francis Boy,
Edward Hide.
The Commissioners being met in the Hall of the Castle, the Commission was first read, after which, the President, and then the other Members, took the Oath, prescribed in the Act of Parliament, and having directed the Form of that for Witnesses, as follows, the Court was opened.
I, A. B. solemnly promise and swear on the Holy Evangelists, to bear true and faithful Witness between the King and Prisoner, or Prisoners, in Relation to the Fact, or Facts, of Pyracy and Robbery, he or they do now stand accused of. So help me God.
The Court consisted of Captain Mungo Heardman, President.
James Phips, Esq; General of the Coast,
Mr. H. Dodson, Mer.
Mr. F. Boye, Mer.
Mr. Edward Hyde, Secretary to the Company.
Lieut. John Barnsley,
Lieut. Ch. Fanshaw.
The following Prisoners, out of the Pyrate Ship Ranger, having been commanded before them, the Charge, or Indictment, was exhibited.
Prisoners taken in the Ranger.
| Mens Names. | Ships from | Time when. |
| * James Skyrm | Greyhound Sloop | Oct. 1720 |
| * Rich. Hardy | Pyrate with Davis | 1718 |
| * Wm. Main | Brigantine Capt. Peet | June 1720 |
| * Henry Dennis | Pyrates with Capt. Davis | 1718 |
| * Val. Ashplant | Pyrates with Capt. Davis | 1719 |
| * Rob. Birdson | Pyrates with Capt. Davis | 1719 |
| * Rich. Harris | Phœnix of Bristol, Capt. Richards | June 1720 |
| * D. Littlejohn | Phœnix of Bristol, Capt. Richards | June 1720 |
| * Thomas How | at Newfoundland |
