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"Piracy is only a sea-term for robbery, piracy being a robbery Order in Council committed within the jurisdiction of the Admiralty." It is a crime jure gentium, because "the King of England hath not only Piracy. an Empire and Sovereignty over the British Seas, but also an undoubted jurisdiction and power, in concurrency with other Princes and States, for the punishment of all piracies and robberries at sea, in the most remote parts of the world." (per Sir Charles Hedges, Judge of the High Court of Admiralty, in his charge to the Grand Jury, in R. v. Dawson.)
The warrant for conferring this jurisdiction on the Consular Court is therefore to be found, not in the treaty, but in the fact that the crime is triable by the Courts of all nations irrespective of the nationality of the criminal.
13 State Trials, 454.
It appears from the judgment of the Judicial Committee in A. G. for Hong A. G. for Hong Kong v. Kwok-a-Sing, that oriental States are Si, L.R. 5 P.C. Kong v. Kwok-aincluded among the nations who have this right, at least so far at p. 198. as their own coasts and seas are concerned: "Their Lordships think it may properly be assumed, without proof, that China has laws to punish piracy on her own coast."
The provisions of art, 72 are, however, limited to piracy by British subjects.
The article is independent of the provision of s. 14 of the Foreign Jurisdiction Act, which allows jurisdiction to be exercised cf. p. 63. over British subjects in any vessel at a distance of not more than 100 miles from the coast of China, which has already been
considered. This jurisdiction is defined in art. 80.
NOTE. The judgment of the Judicial Committee above referred to Note on Kwok-acontains a very lucid exposition of the distinction between piracy Sing's case. jure gentium, and piracy by municipal law. The question was whether Kwok a-Sing should have been surrendered to the Chinese Government under art. xxiii of the Treaty of Tientsin, which enables Chinese subjects who have escaped to Hong Kong to be extradited for crimes and offences against the law of China. The facts were that Kwok-aSing was alleged to have murdered the master of a French ship on which he was, bound for Peru, and to have then taken command of the vessel and changed her course to China. The question which the Judicial Committee considered, after having expressed the opinion that there was evidence of a piratical intention, was the following
"Next it must be considered what was the legal duty of the magistrate when he had received the evidence: ought he to have signed a warrant enabling the Governor to deliver Kwok-a-Sing to the Chinese authorities to be tried for both murder and piracy, or ought he to have committed him to be tried for the piracy at Hong Kong?
Order in Council In their opinion he ought to have committed him to be tried for the piracy at Hong Kong. They think that the acts of piracy jure gentium with which Kwok-a-Sing was charged may be plainly distinguished from those acts of piracy which they have before stated to be, in their opinion, within the ordinance and the treaties. If Chinese subjects, starting from, and returning to, Chinese territory, attack a ship of some other nation, whether in harbour or at sea, they, making that territory as it were the base of their operations, must be held to commit an offence against the municipal law of China and against the Chinese Government, whether they commit an act of piracy jure gentium or not. But if Kwok-a-Sing committed an offence against the municipal law of any nation, he committed an offence against the municipal law of France, to which he was subject at the time, and not against the muncipal law of China: and if he is punishable by the law of China, he is only so punishable because he has committed an act of piracy which, jure gentium, is justiciable everywhere. They are of opinion that such an offence is not an offence against the law of China within the meaning of the ordinance.
cf. p. 129 note.
9. p. 24.
Violation of Treaties. [art 73]
The violation or failure to observe any stipulation of any treaty between Great Britain and China, in respect of the violation whereof any penalty is stipulated for in the treaty, is to be deemed guilty of an offence against the treaty and liable to conviction under the Order. The punishment is that provided in art. 60.
Breach of International Regulations. [art 74]
Where by agreement among some or all of the diplomatic or consular representatives of foreign States in conjunction with the Chinese authorities, sanitary, police, port, or game, or other regulations are established, and as far as they affect British subjects, are approved by the Secretary of State, complaints for breach thereof may be entertained by the Court, and payment of the fine enforced as if it were declared to be an offence against this Order.
Seditious Conduct. [act. 75]
Every person subject to the criminal jurisdiction of the Court who prints, publishes, or offers for sale any printed or written newspaper or other publication containing matter calculated to excite tumult or disorder, or to excite enmity between the King's subjects and the Government of China, or between that Government and its subjects, is guilty of a grave offence; the punishment
being under art. 61.
The offender may in addition to, or in lieu Order in Council of any other punishment, be order to give security for good f. p. 130 note. behaviour, and, in default, or on a further conviction, he may be
Offences against Religions. [art. 76]
(a) publicly deriding, mocking, or insulting any religion established or observed within China:
(b) publicly offering insult to any religious service, feast or ceremony established or kept in any part of China, or to any place of worship, tomb, or sanctuary belonging to any religion established or observed within those dominions, or to the ministers or professors thereof:
(c) publicly and wilfully committing any act tending to bring any religion established or observed within those dominions, or its ceremonies, mode of worship, or observances, into hatred, ridicule or contempt, and thereby to provoke a breach of the peace.
The punishment is imprisonment not exceeding 2 years, with or without hard labour, and with or without a fine not exceeding £50, or a fine alone not exceeding £50.
Consular officers are to take precautionary measures for the prevention of such offences.
Contempts of Court. [art. 77]
(a) wilfully, by act or threat, obstructing an officer of, or person executing any process of the Court in the performance of his duty :
(b) within or close to the room or place where the Court is sitting wilfully misbehaves in a violent, threatening or disrespectful manner, to the disturbance of the Court, or to the intimidation of suitors or others resorting thereto:
(c) wilfully insults any member of the Court, or any assessor or juror, or any person acting as clerk or officer of the Court, during his sitting or attendance in Court, or in his going to or returning from Court:
(d) any act in relation to the Court or a matter pending therein, which if done in relation to the High Court in England, would be a contempt.
Order in Council offences.
cf. p. 130 nole.
ct. p. 65.
cf. p. 60.
The offender is guilty of a grave offence againt the Order, punishable under art. 61. The Court has also a power of dealing summarily with the offender.
If an officer of the Court employed to execute an order looses by neglect or omission the opportunity of executing it, the Court may, on complaint of the party aggrieved order him to pay damages.
Extortion. [art. 79]
If a clerk or officer of the Court acting under pretence of the process or authority of the Court, is charged with extortion, or with not paying over money duly levied, or with other misconduct, the Court may enquire into the charge summarily, and may make such order as to repayment as it thinks fit. A fine not exceeding £5 may also be imposed.
AUTHORITY WITHIN 100 MILES OF THE COAST. [art. 80]
This article gives effect to the provisions of s. 14 of the Foreign Jurisdiction Act, and has already been considered in connexion with that section.
By art. 81, if the person charged is in Hong Kong, he may be tried by the Supreme Court of the colony as if the offence had been committed there.
DESERTERS. [art. 82]
The British Minister in China, the Judge of the Supreme Consular Court, any consular officer in China, or the Governor of Hong Kong, on receiving satisfactory information that any soldier, sailor, marine, or other person belonging to the naval or military forces has deserted and has concealed himself in any British ship within 100 miles from the coast of China, may issue a warrant for his search and apprehension, and on being satisfied that any person so apprehended is a deserter, may cause him to be delivered over to the nearest military station or to the officer in command of a man-of-war serving in China.
This article, as has already been pointed out, depends on the general power of legislation for Crown Colonies by Order in Council. It is however limited in the area of its application to the 100 miles from the coast of China specified in s. 14 of the
Foreign Jurisdiction Act: and therefore appears to derive its op. 64. warrant from that section, which, as we have seen, is general in its terms and not limited to foreign jurisdiction.
DEPORTATION. [art. 83]
By this article it is provided that where it is proved that there is reasonable ground to apprehend that a British subject is about to commit a breach of the peace, or that the acts or conduct of a British subject are or is likely to produce or excite to a breach of the peace, the Court may require him to give security to keep the peace, or for his future good behaviour: or where a British subject is convicted of an offence, the Court may require him to give security for his future good behaviour. In either of these cases, if the person so required fail to give security, the Court may order him to be deported to such place as it may direct.
The place is to be a place in some part (if any) of the dominions to which the person belongs, or the Government of which consents to the reception of persons deported. The case is to be reported to the British Minister and to the Secretary of State.
Returning without permission of the Secretary of State is a grave offence, punishable under art. 61, and the person may be f. p. 130 note. again deported.
By article 84, if the deportation is to Hong Kong, the Governor
may cause him to be taken to England, or else discharge him
The authority for these provisions is art. 8 of the Foreign cf. p. 58. Jurisdiction Act.
Fugitive Offenders Act. [44 & 45 Vict. c. 69]
Colonial Prisoners Removal Act. [47 & 48 Vict. c. 31]
Both these Acts are applied by art. 88, with certain adaptations. The first is included among the Acts applied fanalysed on by the schedule to the Principal Act: the second§ among those P. 98. which are applied by special provision in the Acts themselves.
By article 89, the civil jurisdiction of the Consular Court is, as far as circumstances admit, to be exercised on the principles of, and in conformity with, English law for the time being in force.