!
129
8
Grand Jury, as reported in the case of Nix vì Dawson, 13 State Trials, 654, and which was made in the presence, and with the approval of Chief Justice Holt, and several other Common Law Judges, contains a correct exposition of the Law as to what constitutes piracy jure gentium. He there says "Piracy is only a sea term for robbery, piracy being a robbery within the jurisdiction of the Admiralty. If the mariners of any ship shall violently dispossess the master, and afterwards carry away the ship itself or any of the goods with a felonious intention in any place where the Lord Admiral hath jurisdiction, this is robbery and piracy." Of course
there can be no difference between mariners and passengers, and there was unquestion- ably evidence that Kwok-a-Sing was a party to violently dispossessing the master and carrying away the ship itself and the goods therein; and the only question can be whether there was sufficient evidence that e act was done with a felonious, that is a piratical, intention. In their Lordships' opinion, there was evidence of such an intention on the part of Kwok-a-Sing fit to be left to a jury, though they wish to be understood as giving no opinion which way a jury ought to find on this question.
Next, it must be considered what was the legal duty of the Magistrate when he had received the evidence; ought he to have signed a warrant enabling the Governor to deliver Kwok-a-Sing to the Chinese authorities to be tried for both murder and piracy, or ought he to have com- mitted him to be tried for the piracy at Hong Kong? In their opinion he ought to have com- mitted him to be tried for the piracy at Hong
Kong. They think that the acts of piracy jure
gentium with which Kwok-a-Sing was charged may
be plainly distinguished from those acts of piracy which they have before stated to be, in their opinion, within the Ordinance and the Treaties. If Chinese subjects starting from, and returning to, Chinese territory, attack a ship of some other nation, whether in harbour or at sea, they, making that territory as it were the base of their operations, must be held to commit an offence against the municipal law of China and against the Chinese Government, whether they commit an act of piracy
7
9
jure gentium or not; but if Kwok-a-Sing committed
an offence against the municipal law of any nation
he committed an offence against the municipal law of France, to which he was subject at the time, and not against the municipal law of China, and if he is punishable by the law of China, he is only so punish- able because he has committed an act of piracy which, jure gentium, is justiciable everywhere. They are of opinion that such an offence is not an offence against the law of China within the meaning of the Ordinance. On the whole, therefore, they are of opinion that the warrant by which the magistrate authorized the Governor, if he thought fit, to deliver Kwok-a-Sing to the Chinese authorities to be tried by them for murder and piracy, was an illegal warrant
and one beyond his jurisdiction, and that, therefore,
the first order of the Chief Justice for the release of Kwok-a-Sing was right and ought to be affirmed.
Having come to this conclusion, their Lordships need not give any opinion upon the validity of the other grounds on which the Chief Justice thought that Kwok-a-Sing ought, on the first occasion, to be discharged. They think, however, it is right to state that they do not agree with the Chief Justice that the evidence before him proved that "La Nouvelle Pénélope " was a slave-ship, and that Kwok-a-Sing and the other coolies who acted with him were justified in killing the captain and the French sailors, for the purpose of obtaining their liberty. There was evidence from which it might be inferred that some of the coolies had, by fraud or by threats on the part of other Chinese, beeu induced
to go to the barracoon, and embark on board the ship against their will. They appear, however, all
to have professed to the Portuguese authorities at Macao that they were willing emigrants; and there was, in their Lordships' opinion, no sufficient evidence upon the depositions that either the Portuguese authorities at Macao, or the French captain and crew, were any parties to compelling any of the coolies to leave China against their
will.
Their Lordships have next to consider whether the judgment and order of the 22nd of May, 1871, whereby Kwok-a-Sing was, for the second time, dis- charged from custody, was valid. He was discharged solely upon the ground that he had been committed
}