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the Offences at Sea Act, 1536, (28 Hen. VIII, c. 15). It is from this Judgment of latter statute that the courts in England trace their jurisdiction to Wood, Acting C.J.
proceed in the trial of piracy jure gentium. By section 1 of this statute all treasons, felonies, robberies, murders and confederacies
hereafter to be committed in or upon the sea etc, shall be
delivered
1st April,
L
1931
-continued.
L
inquired offence
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C
in like form and condition as if any such had been committed
upon the land
after the common course of the laws of this realm used for treasons, felonies, murders, robberies and confederacies of the same done and committed upon the land within this realm ". It is under 10 this act that indictments in England for piracy have been laid and criminal proceedings have been conducted. This act is not concerned only with piracy but includes the other crimes set out in its terms. is now definitely recognised that the act conferred a jurisdiction over foreigners in foreign ships in respect of piracy but that in respect of other crimes the jurisdiction granted is confined to British subjects and/or to British ships.
It
At the trial I refused an application to quash the indictment. The application was made on the ground that no robbery was disclosed. The matter was not then argued very fully. When I allowed the 20 trial to proceed, my decision was influenced by the idea that the Admiralty Offences (Colonial) Act, 1849, (12 & 13 Vict., c. 96), on which the jurisdiction of this court to adjudicate upon offences committed at sea depends, was in its effect parallel with the statute of Henry VIII in England, and, therefore, that as the later act authorised the trial both of misdemeanours and of felonies, the act of Henry VIII might be correctly construed in the same sense. I at that time supposed that the definitions of piracy contained in text- books relating to English criminal law represented merely the personal opinion of each writer. These opinions, with few exceptions, 30 necessitate that the offence of piracy, in respect of which an accused person became liable to conviction in the courts of the realm, must amount in its constituent acts to a felony if those acts had occurred upon land. The standard definition is contained in East's Pleas of the Crown (volume II. p. 796) : The offence of piracy by 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." I then regarded this definition as the ipse dixit of the scholar and I was lead to the conclusion that though no conviction has been recorded under the statute of Henry VIII 40 unless for felony, yet that fact was merely accidental. The offence
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charged against the prisoners in these proceedings if committed on land would have amounted to an assault with intent to rob. That Judgment of offence in the reign of Henry VIII was, under the common law, a C.J.
Wood, Acting misdemeanour and not a felony, and was made a felony by statute delivered during the eighteenth century (see 17 Geo. II, c. 21). If, therefore, 1931
1st April, the orthodox definition of piracy be correct, it would appear that --continued. without a robbery no conviction could be obtained for the crime of piracy. However, on the question at that time, the validity of that limitation was not accepted by me and I allowed the indictment to 10 go to the jury.
Now, in consideration of the question of law reserved, my attention has been drawn to the record in East's Pleas of the Crown (volume II, at p. 807) where it appears that this interpretation placed upon the statute of Henry VIII is not a matter of scholastic opinion but is based upon a decision reached by the judges in con- ference, Holt C.J. presiding, in 1702, in connection with the trial of Rex v. Snape and Aires. The judges decided, with two dissentients, that the statute of Henry VIII extended only to such offences as would be felony if committed on land. By that decision this court 20 is bound.
It is not open to this court at this time to hold that incidents at sea which do not constitute a felony can amount to a piracy punishable under the statute of Henry VIII. Unless, there- fore, the statute founding the jurisdiction of this court in admiralty offences has created a wider jurisdiction in piracy than that con- ferred by statute upon the courts in England it would appear that my decision to entertain this indictment was wrong in law.
The following point may perhaps be considered arguable, but it seems to me a correct proposition to say that the jurisdiction of the English courts in piracy which was created by the statute of Henry 30 VIII was at no time enlarged by the subsequent statutory additions
in England to the list of felonies.
Apart from the distinction drawn in the law of England between felony and misdemeanour it is also necessary in interpreting the Admiralty Offences (Colonial) Act, 1849, to inquire what meaning has been given in England both in statutes and in indictments to the word piracy". It has been agreed that, so far as recorded cases have been investigated in connection with the present matter, no case has been found in which a conviction for piracy has been entered in The authoritative circumstances where no stealing has occurred.
40 statement for the courts of British Colonies is contained in the judg
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