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appeared in evidence at a trial for murder that the accused, from a point on land 200 yards from the shore, killed the deceased who was in a boat about 100 yards from the shore; and it was held by the judges that the accused was rightly tried by the Admiralty Jurisdiction, because the offence is committed where the death happens, and not at the place from whence the cause of the death proceeds.
Therefore, according to the technical criminal rules of venue, persons on an unarmed British merchant ship which is torpedoed or shelled without warning by a German submarine who are shot or drowned are persons murdered on a British ship, and the offence is clearly committed within the jurisdiction of the Common law of England.
Next, as to piracy. It was urged in the columns of The Times, on the inth March, 1915, that "piracy is not, in itself, a capital offence.” Here, again, the contrary is too clear to admit of dispute. Piracy is felony by the Civil law (not by the Common law)?; and, when accompanied with violence, it is punishable by Statute (7.Will. IV and 1 Vict., c. 88, s. 2 (1837)) with death.
By the laws of most States, piracy is punishable by death, and Lord Stowell observed, in The Le Louis (2 Dodson's Adm. Rep., 244, 246), that pirates are “universally subject to the extreme rights of war.” This dictum of Lord Stowell somewhat impairs the conclusion of Sir Herbert Stephen in The Times, on the rith March, 1915, that all definitions of piracy in English law have referred to matters occurring during peace.
A cursory reference to the Piracy Act 1837, by which an assault with intent to commit piracy is made a capital offence, shows that it contains none of the limitations suggested. The Statute nowhere states that only the
11 Russell on Crimes, Ed. 1909, p. 33, referring to the language of Cockburn, C.J., in R. v. Keyn, 2 Ex. Div., p. 234; and see R. v. Coombes, i Leach, 388 (1785).
i Phillimore, International Law, s. 356, p. 388.
members of the crews of a private armed vessel can be indicted for piracy. No clause exempts the officers and crews of the public vessels of a foreign State, whether at war or in amity with this country, from criminal responsibility for piracy. In the important case of the Magellan Pirates, Dr. Stephen Lushington, then Judge of the Admiralty Court (1851), observed that “in the administration of our Criminal law, generally speaking, all persons are held to be pirates who are found guilty of piratical acts, and piratical acts are robbery and murder upon the high seas.” 1 The language of Lord Mersey, in the Falaba enquiry, shows that an indictment for piracy is certainly appropriate to the case of the officers of German submarines who indiscriminately destroy unarmed merchant vessels and sacrifice human life. Lord Mersey is reported to have said that he was driven to the conclusion that the captain of the submarine desired and designed, not merely to sink the ship, but, in doing so, also to sacrifice the lives of the passengers. A reference to the report of the contemporaneous Commission on the Criminal law, and to a note in the succeeding editions of The Life of Romilly,+ shows that the intention of the Piracy Act 1837 was to punish piracy capitally only when committed animo occidendi (not animo furandi); in other words, only when it was accompanied with actual injury to the person, or acts endangering human life.
It passes the wit of man to see how piracy can be committed without an assault; and, therefore, the effect is, that piracy is made a capital offence in all cases by the Act of 1837.
N. W. SIBLEY.
i Phill., Int. Law, sect. 357, p. 392. 3 The Times, July 9th, 1915; and see Lord Mersey's findings in the Lusitania Case. The Times, July 19th, 1915.
8 Second Rep. from the Commissioners on the Criminal Law; Parl. Paper, 1836 ; Cd. 343, p. 32.
4 Life of Sir Samuel Romilly, Vol. 3, 337 n (1818).
VI.-CURRENT NOTES ON INTERNATIONAL
Destruction of Neutral Shipping.
submissiveness of the most powerful neutrals in face of extraordinary interferences on the part of belligerents. Can anyone suppose that if a British ship had been sent to the bottom by a Federal at the time of the Trent affair, Anglo-American relations would not have been in a blaze? Can anyone imagine the American flag being submerged by a German in the war of 1870 without the most serious consequences? Yet the W. P. Frye was sunk by a German the other day, and the perpetrator of the atrocity was received with calm hospitality in an American port. Instead of a flaming demand passing through the country that every American ship should be safe from violent destruction everywhere on the high seas, there is a tame request to Berlin for-the value of the hull and freight! Not a cent for the insult to the flag. Not a dollar for the interruption to the safety of American ships as carriers of Allies' goods under the Declaration of Paris. Not a word of apology or promise for the future. It is very remarkable. Probably more real appreciation of the menace to neutral shipping was shown by the Dutch, who have taken the destruction of the Medea and the Katwyk very seriously, as an invasion of the inviolable rights of Her Netherland Majesty's flag. Norwegian ships and a Greek ship have also been sunk by Germans. The curious thing is that all this is the completest novelty. Whether or not the doctrine of ex-territoriality was accepted, the fact was that neutral vessels never have been destroyed in this way throughout modern history. It has been customary of late to decry the value and reason of the doctrine of ex-territoriality, whether in the case of ambassadors or of merchant vessels, and to represent it as a fiction, valuable only as a striking metaphor. The present occurrences show that metaphors cannot be too striking to secure respect for the ideas they embody. So long as the ship was regarded as "a floating portion of territory," so long would these violent brutalities have been impossible. They would at once have touched the national sense of self-respect. That the United States should be satisfied to have all their mercantile marine destroyed, on payment of the value of the hulls and freight, is surely a deplorable admission. A strong naval power could clearly, under colour of exercising its warlike rights, use this novel power to ruin its neutral rivals. Germany has actually invited the United States to wait and see whether the W. P. Frye may not be condemned ex post facto by a German Prize Court. This may be according to the Declaration of London, but it is not according to common sense or national self-respect.
Trading with the Enemy: Penal Aspect. Mr. Wechster was more lucky than Mr. Oppenheimer. He wrote on behalf of the Yöst Typewriter Co., Ltd., to its Stockholm agent that he had no objection to certain typewriter pads being supplied to the Company at Stockholm, from a firm at Berlin which owed the Company money. An application for a licence was pending, but had not actually been granted. Certainly, the supply of goods to a branch in a neutral country is not a "trading with the enemy" in the International law sense; nor is the relief of an enemy from his indebtedness. Such acts, however, clearly appear to come within the penalties of the Trading with the Enemy Act and proclamations. Mr. Wechster had to pay £10. But Mr. Oppenheimer got two months and had to pay crushing costs, for simply getting his own lithographic transfers away from Germany. It was argued that the proclamations only applied to dealings by way of trade--but the Court of Criminal Appeal extended these highly penal provisions to all obtaining of goods from Germany, whether one's own or not. It is common learning that, to enable seizure of goods as prize, it is not necessary to establish the fact of trade in the commercial sense (The Rapid)', but it is an extremely harsh measure to make the recovery of one's own goods a matter for two months' jail.
The recent proceedings” against iron merchants who were sentenced to imprisonment on a charge of supplying ore to German buyers-indeed, to Messrs. Krupp-induces mixed reflections. The procedure was in substance lenient, because it is highly probable that to afford assistance to the King's enemies in arins amounts to high treason. At any ratethis is so in England, where it has been held that when the Statute of Treasons speaks of giving the King's enemies aid and comfort within the realm, it also means giving it them outside. It is, perhaps, possible that so singular a construction, adopted as it was by Viscount Alverstone on somewhat uncritical grounds, would not be followed in so logical a part of the country as Edinburgh; and the Court of Justiciary cannot be controlled by the House of Lords. On the other hand, the inconvenience of a divergence in the interpretation of the law of treason, which the Act of Union stipulated should be alike in the two Kingdoms, would be such that the Scots Courts would scarcely be likely to interpret the Statute differently from the King's Bench Division in London. While, however, the procedure adopted was lenient in substance, in form it took the unfortunate shape of invoking a retrospective Statute, which ex post facto
18 Cranch, 155. 2 L.-A. v. Hetherington and Wilson ([1915), 2 S. L. T. 90). 8 R. v. Lynch (L. R. (1903], 1 K. B. 444).