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(iv) Hall's International Law 8th Edition p. 314.
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The various acts which are recognised or alleged to be 'piratical may be classed as follows:-
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1. Robbery or attempt at robbery of a vessel, by force or intimidation, either by way of attack from without, or by way of revolt of the crew and conversion of the vessel and cargo to their own use ".
(v) Stephen's Commentaries 19th Edition Vol. IV, p. 152.
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Section IV-Offences against International Law.
"2. Piracy. The offence of Piracy, though of ancient 10 origin, is scarcely susceptible of precise definition. It is indeed a vague and elastic term, capable of varying interpretation in "international and mercantile law, in criminal and commercial
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At Common Law it may be said to comprise' any armed violence at sea which is not a lawful act of war. The "essential test is that it should be committed without authority from any recognized State. It is the work of a private indi- "vidual not of a public force; and the object of the depredation
is personal plunder and not national advancement. In the 20 language of Lord Coke, the pirate is the enemy of the human
race'.
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(vi) Kenny's Outlines of Criminal Law, 13th Edition p. 319.
Offences against International Law.
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(2) Of piracy according to International Law (or piracy
jure gentium ') we obtain a good example when the crew of a
"vessel mutiny, and seize the ship. But, old and famous though
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the crime is, there is not, even now, any authoritative definition
of it [Stephen, Hist. Cr. Law, II. 27: Dig. Cr. Law, Arts. 108-122]. Clearly it is not every felony that becomes piracy 30
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by being committed on board ship; for violence is essential, so mere larcenous pilfering would not suffice. The Judicial "Committee of the Privy Council has endorsed [In Attorney- General of Hong Kong v. Kwok-a-Sing, L.R. 5 P.C. 199] the rule, laid down so long ago as 1696, that piracy is only a sea term for robbery. But this is not [cf. Oppenheim's Inter- national Law, 2nd Ed. I. 340-348] absolutely precise; for an unsuccessful though violent attempt at pillage would be treated as a piracy if committed at sea; although on land it would
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"not be a robbery but only an assault with intent to rob. More-
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over some menacing thefts which by English Law do technically
amount to robberies would not be regarded as piracy if they
were committed at sea. Probably the best approach to a correct
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definition is any armed violence at sea which is not a lawful act of war'; e.g. by mutineers on board. For a pirate must be one who may be taken to be a source of danger to the vessels of all nations; and therefore those who act solely against
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a particular belligerent and in the interests of the Power that is at war with it, are not pirates, even though they go beyond "their commission [ Enemies not of the human race, but solely of a particular State'; for the essence of Piracy' consists in the pursuit of private, as contrasted with public, ends; see Republic of Bolivia v. Indemnity Co. Ltd., L.R. (1909) 1 K.B. 785]. Nor will they be, even though their action be spontaneous and without any commission at all from the Power (whether a recognised State or not) whose interests they serve [In re Tivnan, 5 B. and S. at p. 680, ef. L.R. (1909) 1 K.B. 785]. But, whatever be the precise limits of piracy jure gentium, it is at least clear that nothing that does not fall within them would be taken account of, as a piracy, by the common law ".
(vii) Serhassan. 2. W. Rob. p. 354.
**
(viii) The Trial of Smith and the Enquiry into the deaths of Ratcliffe Warren and others. Archives of Maryland. 1837/8 to September 1664.
Jan,
Record.
P. 18.
5.
As will be seen from the foregoing citations, there is a diver- gence of opinion amongst text-book writers as to the exact definition of piracy jure gentium. As far as can be ascertained, the reported cases dealing with piracy (other than the two cases referred to in 30 the preceding paragraph) are all cases in which actual robbery or murder had in fact been committed and it is believed that the question as to whether or not actual robbery is an essential element in the crime of piracy jure gentium has never fallen to be considered by the Courts of this country. In those cases no occasion arose to consider the question upon which the consideration of the Judicial Committee is now sought.
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6. In view of the matters hereinbefore set out it is submitted that actual robbery is not an essential element in the crime of piracy jure gentium.
T. W. H. INSKIP.
WILFRID LEWIS.
(29016-43) Wt. 11875-16 50 5/34 P. St. G, 804
RECORD.
Case for the Secretary of State for the Colonies.
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