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where there is no absolute duty a demand for payment is not necessarily contrary to public policy. The duty here being of imperfect obligation, is not so absolute as to preclude a charge. I would add that, in any event, I have grave doubts whether the duty of imperfect obligation to defend the subject from enemies by the use of troops ex- tends to the suppression of piracy on the seas. By 11 & 12 William III., chapter 7, section 11, an Act for the more effectual suppression of piracy, specific power is given to the Judge of the High Court of Admiralty and other persons to raise and levy upon the owners of a ship and goods defended by officers, seamen and mariners, against pirates, enemies, or sea rovers, money to be distributed among the defenders, their widows and children. And, al- though for certain statutory purposes a pirate is to be deemed to be an enemy, (Naval Discipline Act, 29 & 30 Victoria, chapter 109, section 49) yet the definition of a pirate stated in Hawkins Pleas of the Crown, chapter 20, at page 251, still stands, "that a pirate is one who to enrich himself either by surprise or open force sets upon merchants or others trading by sea, to spoil them of their goods or treasure
A pirate at the common law is a
•
person who commits any of those acts of robbery and de- predation upon the High Seas, which, if committed on land, would have amounted to a felony there".
Were there no other obstacle in the way in the argument of the Appellants in contending for the duty of the Crown, this consideration would have to be considered: whether the obligation of the Crown, such as it is, to protect the subject extends to a protection against pirates upon the High Seas, and if so, whether it is not a duty cast upon the Navy and not the Army.
The duty of the King to protect his subjects is stated in Chitty on Prerogative, thus: "Protection, that is the security and governance of his Dominions according to law, is the duty of the Sovereign". Blackstone, page 262, in- dicates than monarchial government has for one of its purposes the protection of weakness of individuals by the united strength of the community. But as regards the duty of protection by sea, I do not know that such a duty can be put higher than is stated by Lord Stowell in the "Mary Anne", that there is an obligation upon King's ships to assist the merchant vessels of this country; see also the observations of Sir J. Hannen in the "Ulysses", 13 Probate Division, page 205, at page 208, which indicate that the Admiralty is the normal protector of the subject against pirates. Piracy is robbery within the jurisdiction of the Admiralty, (Attorney-General for Hong-Kong v. Kwok-a-Sing, (Law Reports, 5 Privy Council, page 180, at page 200); R v. Dawson (13 State Trials, page 454).
I can find no obligation upon the Army to protect merchant ships. If there be any such duty in the Crown, it would appear to be imposed not upon the Army but upon the Sea Forces of the Crown, for the use of which there is no complaint as to charge in the present case. In any event, in such a case it is for the Crown to decide what resources in its armoury, Naval or Military, it will employ.
For all these reasons I am of opinion that this appeal must be dismissed.
23.