In the matter of a Reference under the Judicial Committee Act, 1833, in the matter of Piracy jure gentium
REPORT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE
PRIVY COUNCIL, DELIVERED THE 26TH JULY, 1934.
Present at the Hearing:
THE LORD CHANCELLOR (VISCOUNT SANKEY).
LORD ATKIN.
LORD TOMLIN.
LORD MACMILLAN.
LORD WRIGHT.
[Delivered by THE LORD CHANCELLOR.]
:
On the 4th January, 1931, on the high seas, a number of armed Chinese nationals were cruising in two Chinese junks. They pursued and attacked a cargo junk which was also a Chinese vessel. The master of the cargo junk attempted to escape, and a chase ensued during which the pursuers came within 200 yards of the cargo junk. The chase continued for over half an hour, during which shots were fired by the attacking party, and while it was still proceeding, the S.S. "Hang Sang" approached and subsequently also the S.S. "Shui Chow." The officers in command of these merchant vessels intervened and through their agency,
the pursuers were eventually taken in charge by the Commander of H.M.S. "Somme," which had arrived in consequence of a report made by wireless. They were brought as prisoners to Hong Kong and indicted for the crime of piracy. The jury found them guilty subject to the following question of law :-" Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred." The Full Court of Hong Kong on further consideration came to the conclusion that robbery was necessary to support a conviction of piracy and in the result the accused were acquitted.
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The decision of the Hong Kong court was final and the present proceedings are in no sense an appeal from that court, whose judgment stands.
Upon the 10th November, 1933, His Majesty in Council made following order :-"The question whether actual robbery is an
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essential element of the crime of piracy jure gentium or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium is referred to the Judicial Committee for their hearing and consideration."
It is to this question that their Lordships have applied them- selves, and they think it will be convenient to give their answer at once and then to make some further observations upon the matter.
The answer is as follows :——
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Actual robbery is not an essential element in the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.”
In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include Treaties between various States. State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of jurisconsults or text book writers. It is a process of inductive reasoning. It must be remembered that in the strict sense international law still has no legislature, no executive and no judiciary, though in a certain sense there is now an international judiciary in the Hague Tribunal and attempts are being made by the League of Nations to draw up codes of international law. Speaking generally, in embarking upon international law, their Lordships are to a great extent in the realm of opinion and in estimating the value of opinion it is permissible not only to seek a consensus of views, but to select what appear to be the better views upon the question.
With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes and the trial and punishment of the criminals are left to the municipal law of each country. But whereas acccording to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also re- cognised as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but hostis humani generis and as such he is justiciable by any State anywhere. Grotius (1583-1645) "De Jure Belli et Pacis," vol. 2 cap 20 § 40.
Their Lordships have been referred to a very large number of Acts of Parliament, decided cases and opinions of jurisconsults or text book writers, some of which lend colour to the contention that robbery is a necessary ingredient of piracy, others to the opposite contention. Their Lordships do not propose to comment on all of them but it will be convenient to begin the present discussion by referring to the Act of Henry VIII, cap 15, in the
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year 1536, which was entitled An Act for the punishment of pirates and robbers of the sea." Before that Act, the jurisdiction
over pirates was exercised by the High Court of Admiralty in England and that Court administered the civil law. The civilians however, had found themselves handicapped by some of their canons of procedure, as for example, that a man could not be found guilty unless he either confessed or was proved guilty by
two witnesses. The Act recites the deficiency of the Admiralty jurisdiction in the trial of offences according to the civil law and after referring to "all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or upon the sea, etc." (it is not necessary to set out the whole of it), proceeds to enact that all offences committed at sea, etc., shall be tried according to the common law under the King's Commission, to be directed to the Admiralty and others within the realm.
Many of the doubts and difficulties inherent in considering subsequent definitions of piracy are probably due to a mis- apprehension of that Act. It has been thought, for example, that nothing could be piracy unless it amounted to a felony as dis- tinguished from a misdemeanour, and that, as an attempt to com- mit a crime was only a misdemeanour at common law, an attempt to commit piracy could not constitute the crime of piracy because piracy is a felony as distinguished from a misdemeanour. This mistaken idea proceeds upon a misapprehension of the Act. In Coke's (1532-1634) Institutes Part III Ed. 1809, after a discussion on felonies, robberies, murders and confederacies committed in or upon the sea, it is stated (p.112) that the statute did not alter the offence of piracy or make the offence felony, but "leaveth the offence as it was before this Act, viz., felony only by the civil law, but giveth a mean of triall by the common law and inflicteth such pains of death as if they had been attainted of any felony done upon the land. But yet the offence is not altered, for in the indictment upon this statute the offence must be alleged upon the so as this act inflicteth punishment for that which is a felony by the civil law and no felony whereof the common law taketh knowledge.”
sea;
The conception of piracy according to the civil law is ex- pounded by Molloy (1646–1690) "De Jure Maritimo et Navali "
"A Treatise of affairs Maritime and of Commerce."
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That book was first published in 1676 and the ninth edition in 1769. Chapter IV is headed " Of Piracy." The author defines a pirate as a sea thief or hostis humani generis who to enrich himself either by surprize or open face sets upon merchants or other traders by sea.' He clearly does not regard piracy as necessarily involving successful robbery or as being inconsistent with an unsuccessful attempt. Thus in para. xiii he says: "So likewise if a ship shall be assaulted by Pirates and in the attempt the Pirates shall be overcome if the Captors bring them to the next Port and the Judge openly rejects the Trial, or the Captain cannot