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No. 2 Judgment of Wood, Acting C.J. delivered 1st April, 1931
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menturies on the laws of England 1857 Ed. Volume IV, at p. 62, in a chapter headed Of offences against the law of nations states his opinion in these words :- In arbitrary states this law (i.e. inter
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national law), wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power but since in England no royal power can introduce a new law, or sus- pend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land; and those acts of Parliament which 10 have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be con- sidered as introductive of any new rule but merely as declaratory "of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilised world." Nevertheless, with all respect, I am of opinion that international law does not occupy in the English legal system the pre-eminent position which is here claimed for it.
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Further, this contention of the crown is, in my opinion, founded upou a mis-conception of the constituent elements of international law 20 which in this matter gives no directions but merely negatives a pro- hibition. Outside the limits of a territorial jurisdiction the rule of international law on which the crown here relies is permissive and not obligatory. It is procedural and not positive. Piracy jure gentium is not a crime in the sense in which a breach of the common law is a crime. International law in this branch is merely a succession of precedents from which it may be deduced in what circumstances the action of an individual state may, according to the international system, be interfered with and in what other circumstances each state is free to act (see The Lotus case, Ser. A., No. 10, 7th September, 1927, 30 International Court of the Hague). No international undertaking, even by implication, exists to punish pirates. If a nation provides no legal machinery for the trial within its jurisdiction of persons who commit piracy upon the high seas, that nation is not thereby amenable to international correction.
Following out the train of his argument, the learned Attorney General then proceeded to cite a number of definitions and authorita- tive statements contained in the works of international jurists. A universal definition of piracy has never been adopted. The opinions of jurists can be cited in support of the proposition that an attack at sea without the occurrence of a robbery may constitute
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No. 2
1st April,
continued.
a piracy. I do not, however, propose to discuss these definitions because I am adopting for myself the view that the definition of Judgment of
Wood, Acting the crime of piracy, for the purposes of a trial either in England C.J. or in this Colony, depends in the first instance not upon the law of delivered nations but upon the meaning attached to piracy in the English 1931 statutes and in decisions of the English Courts. I am fortified in my opinion by the opening statement in the chapter on piracy contained in East's Pleas of the Crown (1803 Edition) volume 2, at p. 794, as follows:- By the civil law the punishment of piracy was capital, 10 of which the Admiral took cognizance: but it does not fall within the scope of this work to consider the offence otherwise than as it is a marine felony triable under the King's Special Commission by "virtue of the statute 28 Hen. VIII, c. 15.)
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It is not necessary here to consider in what circumstances the Admiral, acting within his jurisdiction, may be empowered to suppress or exterminate subjects of a foreign state whom he may find following a career of piracy, as that word is understood in the common speech of mankind. It may be that by the law of nations a forcible act of hostility, committed upon the sea without the 20 sanction of a national commission, may by itself be a sufficient foundation for disciplinary action on the part of the Admiral. When interrupted in his operations a pirate is treated as an enemy and as one without the rights of a belligerent. It may well be, as suggested by Sir James Fitzjumes Stephen in his Digest of the Criminal Law that no naval officer would hesitate to seize an armed vessel belonging to no state and obviously cruising for piratical purposes; also, that a pirate is a name of a known class of persons like a soldier or sailor and that a man may be a pirate though he has never actually robbed as he may be a soldier though he has not actually fought. But the 30 legal status of a person arrested for piracy alters when he is brought to trial. A person here accused is no longer hostis humani generis; he is a person on trial under the common law. He enjoys the legal presumption of innocence; and, before he can be convicted, the crown must by evidence establish against him a erime committed within the jurisdiction of the Admiralty which is recognised under the law of the realm interpreted by the judgments of the courts as the crime of piracy punishable by the court in which he is tried.
By the Offences of the Sea Act, 1844, (7 & 8 Vict.. c. 2, s. 1.) Justices of Assize Oyer and Terminer and Gaol Delivery were given 40 all the powers for trying of offences committed within the juris- diction of the Admiralty which had been given to commissioners by
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