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wait for the Judge without certain peril and loss, Justice may be done on them by the Law of Nature, and the same may be there executed by the captors." Again in para. 14 he puts the case where " a pirate at sea assaults a ship but by force is prevented from entering her" and goes on to distinguish the rule as to accessories at the common law and by the law marine. A some- what similar definition of a pirate is given by the almost contem- porary Italian jurist, Casaregis who wrote in 1670, and says Proprie pirata ille dicetur qui sine patentibus alicujus principis expropria tantum et privata auctoritate per mare discurrit depredante causa."
." But in certain trials for piracy held in England under the Act of Henry VIII, a narrower definition of piracy seems to have been adopted.
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Thus in 1696, the trial of Joseph Dawson took place. It is reported in State Trials Vol. XIII, col. 451. The prisoners were indicted for "feloniously and piratically taking and carrying away from persons unknown a certain ship called the "Gunsway
upon the high seas ten leagues from the Cape St. John near Surat in the East Indies." The court was comprised of Sir Charles Hedges, then Judge in the High Court of Admiralty, Lord Chief Justice Holt, Lord Chief Justice Treby, Lord Chief Baron Ward and a number of other Judges. Sir Charles Hedges gave the charge to the Grand Jury. In it he said “
now piracy is only a sea-term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction and his ship or goods violently taken away without legal authority, this is robbery and piracy." Dawson's case was described as the sheet anchor for those who contend that robbery is an ingredient of piracy. It must be remembered, however, that every case must be read secundum subjectam materiam and must be held to refer to the facts under dispute.
94.
In Dawson's case, the prisoners had undoubtedly committed robbery in their piratical expeditions. The only function of the Chief Judge, was to charge the Grand Jury and in fact to say to them "Gentlemen, if you find the prisoners have done these things, then you ought to return a true bill against them." The same criticism applies to certain charges given to Grand Juries by Sir Leoline Jenkins (1623-1685) Judge of the Admiralty Court (1685). See the "Life of Leoline Jenkins," vol. I, p. It cannot be suggested that these learned Judges were purporting to give an exhaustive definition of piracy and a moment's reflection will show that a definition of piracy as sea robbery is both too narrow and too wide. Take one example only. Assume a modern liner with its crew and passengers, say of several thousand aboard, under its national flag, and suppose one passenger robbed another. It would be impossible to contend that such a robbery on the high seas was piracy and that the passenger in question had committed an act of piracy when ho
robbed his fellow passenger, and was therefore liable to the penalty of death. That is too wide a definition which would embrace all acts of plunder and violence in degree sufficient to constitute piracy simply because done on the high seas. As every crime can be committed at sea, piracy might thus be extended to the whole criminal code. If an act of robbery or murder were committed upon one of the passengers or crew by another in a vessel at sea, the vessel being at the time and continuing under lawful authority and the offender were secured and confined by the master of the vessel to be taken home for trial, this state of things would not authorise seizure and trial by any nation that chose to interfere
or within whose limits the offender might afterwards be found," Dana's Wheaton 193, note 83, quoted in Moore's Digest of Inter- national Law (Washington 1906) Article "Piracy," p. 953.
we are
But over and above that we are not now in the year 1696, now in the year 1934. International law was not crystallised in the 17th century, but is a living and expanding code.
In his treatise on international law, the English textbook writer Hall (1835-94) says at p. 25 of his preface to the third edition (1889), "looking back over the last couple of centuries we see international law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Progressively it has taken firmer hold, it has extended its sphere of operation, it has ceased to trouble itself about trivial formalities, it has more and more dared to grapple in detail with the fundamental facts in the relations of States. The area within which it reigns beyond dispute has in that time been infinitely enlarged and it has been gradually enlarged within the memory of living man."
Again another example may be given. A body of international law is growing up with regard to aerial warfare and aerial trans- port, of which Sir Charles Hedges in 1696 could have had no possible idea.
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A definition of piracy which appears to limit the term to robbery on the high seas, was put forward by that eminent authority Hale (1609-76), in his “Pleas of the Crown " Ed. 1737, cap 27, p. 305, where he states, it is out of the question that piracy by the statute is robbery." It is not surprising that subsequent definitions proceed on these lines.
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Hawkins (1673-1746) “Pleas of the Crown" (1716), 7th Ed., 1795, vol. 1, defines a pirate rather differently, at p. 267, a pirate is one who to enrich himself either by surprise or open force sets upon merchants or others trading by the sea to spoil them of their goods or treasure.” This does not necessarily import robbing. Blackstone (1726-80) 20th Ed., Book IV, p. 76, states, 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."
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