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upon the sea, and is no way cognizable by the common law but only by the virtue of this statute, which, by ordaining that "in some respects it shall have the like trial and punishment as are used for felony at common law, shall not be carried so far as to make it also agree with it in other particulars which are not mentioned."
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Sec. 12. Secondly, That this offence remains as before of
a special nature, and that it shall not be included in a general pardon of all felonies, which, as it was. before this statute, to be expounded of no felonies which are such only by the civil 10 law, shall continue still to have the same construction."
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Sec. 13. Thirdly, That no persons shall, in respect of "this statute, be construed to be, or punished as, accessaries to piracies before or after, as they might have been if it had been "made felony by the statute, whereby all those would inci- dentally have been made accessaries in the like cases in which they would have been accessaries to a felony at common law."
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Sec. 14. Fourthly, That the indictment for this offence
must allege the fact to be done upon the sea, and must have
both the words felonicè and piraticè: And that no offence is 20 punishable by virtue of this act as piracy, which would not have been felony if done on the land, and consequently that "the taking of an enemy's ship by an enemy is not within the
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statute.'
22. East's Pleas of the Crown Vol. II, p. 796. defines the offence of piracy in almost the identical words used in the above passage from Hawkin's Pleas of the Crown, Vol. I at page 251.
23. Until the 18th century, an assault with intent to rob being committed on land, would have been merely a misdemeanour and not a felony. This offence was made a felony by statute 17 Geo. II, c. 21. 30
From this it follows that if a frustrated attempt to commit a robbery had taken place on land it would, prior to the last-mentioned Act, have been merely a misdemeanour; and it is submitted it would be illogical that a similar offence committed at sea should be regarded as amounting in effect to a felony.
24. In view of the above decisions and authorities it is submitted that actual robbery is an essential element in the crime of piracy jure gentium.
WILLIAM A. JOWITT. KENELM PREEDY.
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(29919-43) Wt. 11875-18 50 5/3+ P. St, G. 304
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RECORD.