CO129-547-8 Piracy- case of Rex v. Chung Tam Kwong 22-3-1934 - 14-12-1934 — Page 43

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reference to the law of England, and it must be carefully noticed that the municipal policy of a particular state may treat as piratical acts (e.g. the slave trade) which do not bear that complexion by the law of nations. Piracy in international law is commonly defined by writers as the offence of depre- dating on the seas [Bynkershoek adds or land' (Quæst. Jur. Pub. lib. i, c.xvii). The extension is reasonable when the acts are performed by persons descending on the land from the sea.] without being authorised by any sovereign state, or with com-

missions from different sovereigns at war with each other. 10 [Wheaton (ed. Phillipson), p. 204 cf. the various authorities that are cited in the American case, United States v. Smith (1820) 5 Wheaton, 157]. But both this definition and that of Sir Charles Hedges are too narrow, in that they imply that animus furandi is essential; whereas the essential characteristic of piracy is that the acts complained of are done without the authority of a sovereign state or a politically organised society, and for private ends, and 'robbery' or depredation is not necessarily an ingredient of the offence. As Sir L. Jenkins has it: [Works, vol. ii, p. 714: cited 20 Wheaton, 1 c.p. 205n]

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The law distinguishes between a pirate who is a highwayman and sets up for robbing, either having no "commission at all or else hath two or three, and a lawful

man of war that exceeds his commission'.

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The definition given above makes it impossible to treat as

pirates the bearers of letters of marque. A tendency has been

shown from time to time to extend the definition so as to comprehend such persons, but however objectionable the prac-

tice of issuing privateer commissions to foreigners was (for 30 privateering has been abolished by the Declaration of Paris, 1856), the bearers were clearly not pirates, insomuch as they had behind them a politically organised and responsible "society.

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The doctrine above set forth was much discussed in the case of The Huascar. In 1877, in the course of a revolution in Peru, the crew of the Huascar seized the vessel and com- 'mitted acts of violence on some British steamers. The Peruvian Government by decree repudiated all responsibility for the acts of the ship. Under these circumstances the British commander 40

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in the Pacific, regarding the acts of the Huascar as piratical, engaged her in an indecisive encounter. The Peruvian Government then made a demand for satisfaction on the un- tenable ground that the acts of the Huascar did not amount to piracy. Piratical in the vulgar sense they certainly were not, but they were most clearly so within the meaning of inter- national law. So far from there being a responsible, there was not even a belligerent society behind the vessel. She stood completely alone [Parl. Papers, Peru, No. 1, 1877]”.

(iii) Phillimore's International Law 2nd Edition Vol. I, p. 411.

"CCCLVI. To whatever country the Pirate may have "originally belonged, he is justiciable everywhere (a);

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[“ (a) Vide ante. Grotius, 1. iii, c. iii. 1, 2, 3; 1. iii. c. ix. 16; 1. ii. c. xviii. 1, 2, 3; l. ii. c. xxi. 5; l. ii. c. 17, 19-29; 1. ii. e. xiii. 15; 1. ii. c. xvii. 20. Bynkershoek, Quest, J.P., "De Piratica, etc. 1. i. c. xvii. xv. in fine. Loccen, De Jure Marit. 1. ii. c. iii. Ortolan, t. i. c. xii. p. 249. Des Pirates. Dig. L. 16, 118, xlix. 15, 19, 2; 15, 21, 2. Kent's Comm. i. 186. Cicero, De Off. 1. iii. 29, in fine: Nam pirata non est în perduellionum numero definitus, sed communis hostis omnium, cum hoc nec fides debet, nec jusjurandum esse commune.]

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his detestable occupation has made him hostis humani generis, "and he cannot upon any ground claim immunity from the

tribunal of his captor.

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With professed Pirates' (Lord Stowell says) there is no state of peace. They are the enemies of every country, and at all times; and therefore are universally subject to the extreme rights of war '(b).

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"[ (b) The Le Louis, 2 Dodson's Adm. Rep. pp. 244, 246'].

No

"The Pirate has, in fact, no national character. captures made by them affect ownership, the rule of law being "that a piratis capta dominium non mutant. Piracy is an assault upon vessels navigated on the high sea, committed animo furandi, whether the robbery or forcible depredation be effected or not, and whether or not it be accompanied by murder or "personal injury ".

FC

RECORD.

Case for the Secretary of State for the Colonies.

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