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KAAN DAN LUANG PANDASANG
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within it. The essential element is that they violently dis-
possess the master, and afterwards carry away the ship itself,
or any of the goods, with a felonious intent ".
14. Again, in the case of the Magellan pirates (1853) 1 Ecc. & Add, 81, Dr. Lushington, after remarking that
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in the administration of our criminal law generally speaking,
all persons are held to be pirates who are found guilty of
piratical acts, and piratical acts are robbery and murder upon 'the high seas
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and went on (at p. 84) to approve the definition contained in Russell 10 on Crimes to the effect that :-
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the offence of piracy at common law consists in committing those acts of robbery and depredation upon the high seas which
if committed upon land would have amounted to felony "there".
15.
The cases decided in the Courts of the United States seem to proceed upon the same principle, thus, in The United States v. Smith 5 Wheaton, 153, Mr. Justice Story after approving of the definition in R. v. Dawson to the effect that piracy is only a sea term for robbery, concluded:-
so that whether we advert to the writers on the common law or the maritime law or the law of nations, we shall find that they universally treat piracy as an offence against the laws of nations and that its true definition by that law is robbery upon the sea
16. It is a significant fact that no single case of piracy jure gentium has it is believed ever come before the Courts of England in which there has not been a completed robbery of some sort.
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18. While there is, as perhaps is to be expected, no unanimity amongst writers on international law as to the constituent elements of piracy jure gentium it is submitted that their views on this question could not in any case be regarded as authoritative on a matter which must now be regarded as coming within the purview of the criminal law of the Realm. It is however submitted that the opinions and views of eminent lawyers who have considered the question of piracy jure gentium in its relationship to English law and its administration may be of some assistance in determining the question in this reference 10 if not already covered by judicial decisions.
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17. A case involving the very point now under consideration was recently decided in the Supreme Court of Hong Kong, and it 30 was the decision then arrived at which led to the present reference. In that case two Chinese junks attacked a third Chinese junk with the object of capturing her. Shots were fired, but owing to the inter- vention of other vessels the chase was unsuccessful and the crew of the attacking vessels were brought to Hong Kong and put on trial for the crime of piracy. Acting Chief Justice Wood, in a judgment to which Mr. Justice Lindsell agreed, decided that as the robbery had been frustrated there was no offence of piracy cognizable within the jurisdiction of the Court.
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19. In Hale's Pleas of the Crown, Vol. II. p. 370, the learned Lord Chief Justice in giving his reasons for his view that no clergy was allowable in the case of piracy speaks of " piracy or robbery upon the sea by pirates and rovers
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Earlier in the 1st Volume at p. 354 he expressed the opinion that if an indictment of piracy before the Commissioners under the statute of 28 H 8
be formed as an indictment of robbery at common law, ciz, vi et armis et felonicè etc. that he might be thereupon attainted, ' and the blood corrupted; for whatever any say to the contrary, it is out of the question, that piracy upon the statute is robbery, and the offender have been indicted, convicted and executed for it in the king's bench, as for a robbery, as I have elsewhere made it evident. But indeed, if the indictment before these commissioners run only according to the style of the civil law, "viz. piratice depraedavit, then the attainder thereupon the statute of 28 H. 8, though it gives forfeiture of land and goods, corrupts not the blood, and so are those two books of the same author Co. P.C. cap 49 and Co. Litt. 745 to be reconciled which without this diversity would be contradictory: Vide H. 13 Car. B.R. Hilliar & Moore ".
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20. In Hawkin's Pleas of the Crown I p. 251, Sec. 3, the definition of a pirate is given as
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A Pirate, at the common law, is a person who commits any of those acts of robbery and depredation upon the high seas, which
if committed on land would have amounted to felony there". 21. The learned author goes on to say:-
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Sec. 11. First, That the statute 28 Hen, 8 c. 15 does not
'alter the nature of the offence so as to make that which was
before a felony only by the civil law, now become a felony
by the common law; for the offence must still be alleged as done
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RECORD.
APANIMEN