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Calvo (1824-1906), an Argentine jurist and Argentine Minister at Berlin, para. 1134, defines piracy: "Tout vol ou pillage d'un navire ami, toute déprédation, toute acte de violence commis à main armée en pleine mer contre la personne ou les biens d'un étranger soit en temps de paix soit en temps de guerre."
An American case strongly relied upon by those who contend that robbery is an essential ingredient of piracy, is that of the United States v. Smith, 1820, reported at 5 Wheaton, 153. Mr. Justice Story delivered the opinion of the Court and there states (p. 161) "whatever may be the diversity of definitions in other respects, all writers agree in holding that robbery or forcible depredation upon the sea animo furandi is piracy." He would be a bold lawyer to dispute the authority of so great a jurist, but the criticism upon that statement is that the learned Judge was considering a case where the prisoners charged had possessed themselves of the vessel, the "Irresistible," and had plundered and robbed a Spanish vessel. There was no doubt about the robbery and though the definition is unimpeachable as far as it goes, it was applied to the facts under consideration and cannot be held to be an exhaustive definition including all acts of piracy. The case, however, is exceptionally valuable because from pages 163-180 of the report it tabulates the opinions of most of the writers on international law up to that time. But with all deference to so great an authority, the remark must be applied to Mr. Justice Story in 1820 that has already been applied to Sir Charles Hedges in 1696, which is that international law has not become a crystallised code at any time, but is a living and ex- panding branch of the law.
In a later American decision, United States v. The Malek Adhel, 2 How, 211, it was said at p. 232, "if he wilfully sinks or destroys an innocent merchant ship without any other object than to gratify his lawless appetite for mischief it is just as much piratical aggression in the sense of the law of nations and of the Act of Congress as if he did it solely and exclusively for the sake of plunder lucri causa. The law looks at it as an act of hostility and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate and of one who is emphatically hostis humani generis."
Having thus referred to the two cases, Dawson 1696 and Smith 1820, which are typical of one side of the question, their Lordships will briefly refer to two others from which the opposite conclusion is to be gathered.
It will be observed that both of them are more recent. The first is the decision in the case of The Serhassan Pirates, 2 Robin- son's Reports 354, decided in the English High Court of Admiralty by that distinguished Judge, Dr. Lushington (1782–1873), in 1845. It was on an application by certain officers for bounty which, under the statute 6 Geo. IV, cap. 49, was given to persons who captured pirates and the learned Judge said (it is not necessary
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to detail all the facts of the case for the purpose of the present opinion) "the question which we have to determine is whether or not an attack which was made upon the British pinnance and two other boats constituted an act of piracy on the part of the Prahns so as to bring the persons who were upon board within the legal denomination of pirates." He held it was an act of piracy and awarded the statutory bounty. It is true that that was a decision under the special statute under which the bounties were claimed, but it will be noted that there was no robbery in that case; what happened was that the pirates attacked, but were themselves beaten off and captured. A similar comment may be made on the case in 1853 of The Magellan Pirates (1 Spink Eccl. and Adm. Reports 81), where Dr. Lushington said: "it has never, so far as I am able to find, been necessary to enquire whether parties so convicted of these crimes (ie., robbery and murder), had intended to rob on the high seas or to murder on the high seas indiscriminately."
Finally, there is the American case of the "Ambrose Light," reported in Scott's Cases, 1885, 25 Federal Reports, page 408, where it was decided by a Federal Court that an armed ship must have the authority of a State behind it, and if it has not got such an authority, it is a pirate even though no act of robbery has been committed by it.
It is true that the vessel in question was subsequently released on the ground that the Secretary of State had by implication recognised a state of war, but the value of the case lies in the decision of the Court.
Their Lordships have dealt with two decisions by Dr. Lush- ington. It may here be not inappropriate to refer to another great English Admiralty Judge and jurisconsult, Sir Robert Phillimore (1810-85). In his International Law 3rd Ed., Vol. I, 1879, he states: piracy is an assault upon vessels navigated on the high seas committed animo furandi whether robbery or forcible depredation be effected or not and whether or not it be accompanied by murder or personal injury."
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Lastly, Hall, to whose work on international law reference has already been made, states, on p. 314, of the 8th Ed. 1924, "the various acts which are recognised or alleged to be piratical may be classed as follows: robbery or attempt at robbery of a vessel by force or intimidation, either by way of attack from without or by way of revolt of the crew and conversion of the vessel and cargo to their own use." Possibly the definition of piracy which comes nearest to accuracy coupled with brevity is that given by Kenny (1847-1930), "Outlines of Criminal Law," at p. 316, where he says: "piracy is armed violence at sea which is not a lawful act of war. Although even this would include a shooting affray between two passengers on a liner which could not be held to be piracy.
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