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different Municipal Laws. The several States may confine them- selves to punishing as piracy fewer acts of violence than those which the Law of Nations defines as piracy. On the other hand they may punish their own subjects as pirates for a much wider range of acts. Thus, for instance, according to the criminal law of England, every British subject is inter alia, deemed to be a pirate who gives aid or comfort upon the sea to the King's enemies during a war, or who transports slaves on the high seas. However, since a State cannot enforce its Municipal Laws on the open sea against others than its own 10 subjects, it cannot treat foreigners on the open seas as pirates, unless they are pirates according to the Law of Nations.”
4. In The Queen v. Keyn L.R. 2 Ex. Div. at p. 160 Chief Justice Cockburn laid down two propositions :---
(1) No proposition of law can be more incontestable or more universally admitted than that, according to the general law “of nations, a foreigner, though criminally responsible to the law of a nation not his own for acts done by him while within the
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limits of its territory, cannot be made responsible to its law for acts done beyond such limits.
(2) This rule must, however, be taken subject to this qualifi- cation, namely, that if the legislature of a particular country "should think fit by express enactment to render foreigners subject "to its law with reference to offences committed beyond the
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limits of its territory, it would be incumbent on the Courts of
such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations.”
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6. In summing up the history of the jurisdiction formerly exer- cised by the Admiral on the high seas the Chief Justice concludes with the following passage:---
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At all events, it appears that the Court of King's Bench, in dealing with cases occurring below low-water mark, and "therefore dehors the limits of any country, was deemed to be exceeding its lawful authority. For Lord Hale informs us that this jurisdiction of the Common Law Courts in cases of felonies and treasons, and other crimes committed upon the seas, was interrupted by a special order of the King and his council, in the 35 Edw. III, and by a supersedeas issued shortly after;' since which, says Lord Hale, 'I have not observed that the King's Bench or Courts of common "law have proceeded criminally in cases of crimes of this "nature committed on the high sea.
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The only exception to the first proposition would appear to be the assumption of jurisdiction over foreigners charged with the crime of 30 piracy jure gentium.
5. From the earliest times of our legal history it is indisputable that the Court of the Admiral had jurisdiction in cases of piracy jure gentium. Down to the 16th Century it is submitted that the sole jurisdiction to adjudicate upon and punish for crimes committed on the High Seas rested on the Admiral though it does appear that prior to the 35 Edw. III the Court of King's Bench purported to exercise jurisdiction in four cases of piracy, cited in Hale's Pleas of the Crown Vol. II p. 12, and referred to in the above case of The Queen v. Keyn, at page 163 as having possibly been dealt with on the principle that 40 piracy is triable anywhere and everywhere.
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The probability is that the exercise of this jurisdiction was looked upon as a usurpation of authority, which
it was thought necessary to restrain. Certain it is that from "that time to this no such jurisdiction has ever been exercised or claimed by the Courts of common law. There cannot possibly be a question that, in respect of any offences committed on the sea, out of the body of a county, the jurisdiction was formerly exclusively in the Admiralty, and is at the present time, in the courts to which the Admiralty jurisdiction has 'been transferred. Upon this all authorities on criminal law
are entirely agreed ".
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7. But, in the words of Cockburn C.J. in R. v. Keyn, at
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p. 168, the jurisdiction of the admiral, though largely asserted "in theory, was never, so far as I am aware--except in the case
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of piracy, which, as the pirate was considered the communis
hostis of mankind, was triable anywhere-exercised, or attempted to be exercised, in respect of offences, over other than "English ships."
8. A few lines further down the Chief Justice in the following passage shows how the jurisdiction of the Admiral came to be transferred simpliciter to the Common Law Courts.
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He says:
And though, by 25 Hen. 8, c. 15, the trial of offences previously within the jurisdiction of the admiral was transferred to commissioners to be appointed by commission
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RECORD.
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