scandal of permitting any secular business to be publicly transacted on that day, in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit: it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness: it imprints on the minds of the people that sense of their duty to God, so necessary to make them good itizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker. And therefore the laws of King Athelstan (8) forbade all merchandizing on the Lord's day, under very severe penalties. And by the tatute 27 Hen. VI, c. 5, no fair or market shall be held on the principal festivals, Good Friday, or any Sunday (except the four Sundays in harvest), on pain of forfeiting the goods exposed to sale. And since, by the statute 1 Car. Î, c. 1, no person shall assemble out of their own parishes, for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or *bear-baiting, interludes, plays, or other unlawful exercises, or pas[*04] times; on pain that every offender shall pay 3s. 4d. to the poor. This statute does not prohibit, but rather impliedly allows, any innocent recreation or amusement, within their respective parishes, even on the Lord's day, after divine service is over. But by statute 29 Car. II, c. 7, no person is allowed to toork on the Lord's day, or use any boat or barge, or expose any goods to sale; except meat in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of 58. Nor shall any drover, carrier, or the like, travel upon that day, under pain of twenty shillings. X. Drunkenness is also punished by statute 4 Jac. I, c. 5, with the forfeitare of 58.; or the sitting six hours in the stocks: by which time the statute presumes the offender will have regained his senses, and not be liable to do inischief to his neighbours. And there are many wholesome statutes, by way of prevention, chiefly passed in the same reign of King James I, which regulate the licensing of alehouses, and punish persons found tippling therein; or the master of such houses permitting them. XI. The last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill-fame, which is an indictable offence; (t) (11) or by some grossly scandalous and public indecency for which the punishment is by fine and imprisonment. (u) (12) In the year (11) The keeping of a bawdy-house is a nuisance at the common law, and indictable as Buch. Smith v. State, 6 Gill, 425; Smith v. Commonwealth, 6 B. Monr., 21; State v. Evans, 5 Ired., 603; Commonwealth v. Harrington, 3 Pick., 26; People v. Erwin, 4 Denio, 129 And any form of open and notorious lewdness and indecency. See the following note. And probably frequenting houses of ill-fame may be so open and scandalous as to constitute a public offense, also, but single acts of private lewdness certainly are not such at the common law. (12) The indecent exposure of one's person to public view is an indictable offense at common law. 1 Sid., 168; Britain v. State, 3 Humph., 203; State v. Roper, 1 Dev. and Bat., 208; State v. Rose, 32 Mo., 560. It would seem, however, that the exposure must be such as would be offensive to more than one person. See Commonwealth v. Catlin, 1 Mass, 8; State v. Millard, 18 Vt., 574. Publishing obscene books and pictures was indictable at common law. Commonwealth v. Holmes, 17 Mass., 336; Commonwealth v. Sharpless, 2 S. and R., 91. It is also in many states made indictable by statute. To procure the seduction of a woman, or to lead one into prostitution, or to conspire to seduce one, are crimes at common law, 3 Burr., 1434. As to the force of American statutes punishing enticement for purposes of prostitution, see Kauffman v. People, 18 N. Y. (Sup. Ct.), 1650, when the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, or committing fornification, were (upon a second conviction) made felony without benefit of clergy. (w) But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of *such unfashionable rigour. And these offences have been ever since left to the [*85] feeble coercion of the spiritual court, according to the rules of the canon law; a law which has treated the offence of incontinence, nay, even adultery itself, with a great degree of tenderness and lenity; owing perhaps to the constrained celibacy of its first compilers. The temporal courts therefore take no cognizance of the crime of adultery, otherwise than as a private injury. (x) (13) But, before we quit this subject, we must take notice of the temporal punishment for having bastard children, considered in a criminal light; for with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large. (y) By the statute 18 Eliz. c. 3, two justices may take order for the punishment of the mother and reputed father; but what that punishment shall be is not therein ascertained; though the contemporary exposition was that a corporal punishment was intended. (z) By statute 7 Jac. I, c. 4, a specific punishment (viz., commitment to the house of correction) is inflicted on the woman only. But in both cases it seems that the penalty can only be inflicted if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered as a degree of punishment. By the last-mentioned statute the justices may commit the mother to the house of correction, there to be punished and set on work for one year; and, in case of a second offence, till she find sureties never to offend again. (14) CHAPTER V. OF OFFENCES AGAINST THE LAW OF NATIONS. ACCORDING to the method marked out in the preceding chapter, we are next to consider the offences more immediately repugnant to that universal law of society which regulates the mutual intercourse between one state and another; (z) Dalt. Just. ch. 11. (w) Scobell, 121. (x) See book III, p. 139. (y) See book I, p. 458. 82; People v. Roderigas, 49 Cal., 9; Osborn v. State, 52 Ind., 526; People v. Carrier, 46 Mich., 442. Under the old English law there was in strictness no property in a dead body. Burial rights were within the cognizance of ecclesiastical courts. But removal of a dead body and stealing the grave clothes were indictable offenses. In the United States it has been held that there is a quasi-property in a dead body; that relatives have rights over it which a court of equity will protect, and enjoin the removal of dead bodies against their will. See Pierce v. Proprietors, &c., 10 R. I, 227; S. C., 14 Am. Rep., 667; Bogert v. Indianapolis, 13 Ind., 134, 138; Guthrie v. Weaver, 1 Mo. App., 136; Wynkoop v. Wynkoop, 42 Penn. St., 293; Meagher v. Driscoll, 99 Mass., 281. In the United States the violation of graves and defacing of monuments, &c., is generally made criminal by statute. (13) Adultery and seduction are punished criminally in some of the United States. In others the only redress is by civil action for the recovery of damages. (14) The statute 7 James I, c. 4, was repealed by 50 Geo. III, c. 51, which made new provisions for these cases. In the United States the statutes upon the subject of bastard children do not usually go much beyond the protection of the public against the bastard becoming a public charge. With this object in view proceedings may be taken against the putative father, and he may be compelled to support the child, either alone or with the assistance of the mother. 313 VOL. II.-40 those, I mean, which are particularly animadverted on, as such, by the English law. (1) The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; (a) in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. (b) This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to their own real interests. (c) And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those *principles of natural justice, in which all the learned of every nation [*67] agree; or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject. In arbitrary states, this law, wherever it contradicts, or is not provided for by, the municipai law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspend 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 have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered 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 civilized world. Thus, in mercantile questions, such as bills of exchange, and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law merchant, (d) which is a branch of the law of nations, is regularly and constantly adhered to. So, too, in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. (2) But though in civil transactions and questions of property between the subjects of different states, the law of nations has much scope and extent, as adopted by the law of England; yet the present branch of our inquiries will fall *within a narrow compass, as offences against the law of na[*68] tions can rarely be the object of the criminal law of any particular state. For offences against this law are principally incident to whole states or nations, in which case recourse can only be had to war; which is an appeal to the God of hosts, to punish such infractions of public faith as are committed by one, independent people against another: neither state having any superior jurisdiction to resort to upon earth for justice. But where the individuals of any state violate this general law, it is then the interest as well as duty of the gov ernment, under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained. For in vain would (a) Ff. 1, 1, 9. (b) See book I, p. 43. (c) Sp. L. b. 1, c. 8. (d) See book I, p. 273. (1) The offenses enumerated in this chapter are in the United States cognizable by the federal courts. They will be found treated of by Mr. Wheaton in his International Law, as well as in other treatises on that subject, and those on criminal law. (2) The ransom of ships is forbidden by statute 33 Geo III, c. 66, and contracts and securities for that purpose are made void. nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first to demand satisfaction and justice to be done on the offender, by the state to which he belongs, and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject's crime, and draws upon his community the calamities of foreign war. The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safeconducts; 2. Infringement of the rights of ambassadors; and 3. Piracy. I. As to the first, violation of safe-conducts or passports, expressly granted by the king or his ambassadors (e) to the subjects of a foreign power in time of mutual war; or committing acts of hostilities against such as are in amity, league, or truce with us, who are here under a general implied safe-conduct: these are breaches of the public faith, without the preservation of which there can be no intercourse or commerce between one nation and another: and such offences may, according to the writers upon the law of nations, be a just ground of a national war; since it is not in the power of the foreign prince to [*69] cause justice to be done to his subjects by the very individual delinquent, but he must require it of the whole community. And as during the continuance of any safe-conduct, either express or implied, the foreigner is under the protection of the king and the law: and, more especially, as it is one of the articles of magna carta, (ƒ) that foreign merchants should be entitled to safe-conduct and security throughout the kingdom; there is no question but that any violation of either the person or property of such foreigner may be punished by indictment in the name of the king, whose honor is more particularly engaged in supporting his own safe conduct. And, when this malicious rapacity was not confined to private individuals, but broke out into general hostilities, by the statute 2 Hen. V, st. 1, c. 6, breaking of truce and safe conducts, or abetting and receiving the truce-breakers, was (in affirmance and support of the law of nations) declared to be high treason against the crown and dignity of the king; and conservators of truce and safe-conducts were appointed in every port, and empowered to hear and determine such treasons, (when committed at sea) according to the ancient marine law then practiced in the admiral's court; and, together with two men learned in the law of the land, to hear and determine according to that law the same treasons when committed within the body of any county. Which statute, so far as it made these offences amount to treason, was suspended by 14 Hen. VI, c. 8, and repealed by 20 Hen. VI, c. 11, but revived by 29 Hen. VI, c. 2, which gave the same powers to the lord chancellor, associated with either of the chief justices, as belonged to the conservators of truce and their assessors; and enacted that, notwithstanding the party be convicted of treason, the injured stranger should have restitution out of his effects, prior to any claim of the crown. And it is farther enacted by the statute 31 Hen. VI, c. 4, that if any of the king's subjects attempt or offend upon the sea, or in any port within the king's obeysance, against any stranger in amity, league, or truce, or under safe-conduct; and especially by attaching *his person, or spoiling him, or robbing him [*70] of his goods, the lord chancellor, with any of the justices of either the king's bench or common pleas, may cause full restitution and amends to be made to the party injured. It is to be observed, that the suspending and repealing acts of 14 and 20 Hen. VI, and also the reviving act of 29 Hen. VI, were only temporary, so that it should seem that, after the expiration of them all, the statute 2 Hen. V continued in full force; but yet it is considered as extinct by the statute 14 Edw. IV, c. 4, which revives and confirms all statutes and ordinances, made before the accession of the house of York, against breakers of amities, truces, (e) See book I, page 260. (f) 9 Hen. III, c. 30. See book I, page 259, &c. leagues, and safe-conducts, with an express exception to the statute of 2 Hen. V. But (however that may be) I apprehend it was finally repealed by the general statutes of Edw. VI, and Queen Mary, for abolishing new-created treasons; though Sir Matthew Hale seems to question it as to treasons committed on the sea. (g) But certainly the statute of 31 Hen. VI remains in full force to this day. As to the rights of ambassadors, which are also established by the law of nations, and are therefore matter of universal concern, they have formerly been treated of at large. (h) It may here be sufficient to remark, that the common law of England recognizes them in their full extent, by immediately stopping all legal process sued out through the ignorance or rashness of individuals, which may intrench upon the immunities of a foreign minister or any of his train. And, the more effectually to enforce the law of nations in this respect, when violated through wantonness or insolence, it is declared, by the statute of 7 Ann. c. 12, that all process whereby the person of any ambassador, or of his domestic or domestic servant, may be arrested, or his goods distrained or seised, shall be utterly null and void; and that all persons prosecuting, soliciting, or executing such process, being convicted by confession or the oath of one witness, before the lord chancellor and the chief jus[*71] tices, or any two of them, shall be deemed violators of the laws of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the said judges, or any two of them, shall think fit. (¿) (3) Thus, in cases of extraordinary outrage, for which the law hath provided no special penalty, the legislature hath intrusted to the three principal judges of the kingdom an unlimited power of proportioning the punishment to the crime. III. Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Čoke, (k) hostis humani generis. As, therefore, he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community hath a right, by the rule of self-defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property. By the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien, to be felony only; but now, since the statute of treasons, 25 Edw. III, c. 2, it is held to be only felony in a subject (1). Formerly it was only cognizable by the admiralty courts, which proceed by the rules of the civil law. (m) But it being inconsistent with the liberties of the nation that any man's life 1 Hal. P. C. 267. (h) See book I, p. 253. (1) See the occasion of making this statute, book I, p. 255. (3) For similar statutory provisions in the United States, see act of April 30, 1790, 1 Stat. at Large, 117; Brightly's Dig., 40. As to privileges of foreign ambassadors and consuls, see Const. U. S., art. 3, § 2; Rev. Stat. 1878, S$ 563, 687, 4062, et seq. A foreign minister is protected from arrest and his goods from seizure. R. S., § 4062, et seq. His household and the attaches of the legation are likewise protected. United States v. Benner, 1 Bald., 240; Same v. Lafontaine, 4 Cranch C. C., 173; Same v. Jeffers, 4 Cranch C. C., 704; Ex parte Cabrera, 1 Wash. C. C., 232. The protection exists even after the minister has his passports. Dupont v. Pichon, 4 Dall., 321. And when a minister is passing through the country accredited to another. Holbrook v. Henderson, 4 Sandf., 619. The minister's property is identified with his person in protection. United States v. Hand, 2 Wash. C. C., 435. Ignorance is not a defense to an action for injury to a minister. United States v. Ortega, 4 Wash, C. C., 531; Same v. Liddle, 2 Wash. C. C., 205. A consul has not the same privilege, but he can only be sued in the federal courts. United States v. Ravara, 2 Dall., 297; Davis v. Packard, 7 Pet., 276. Recognition of foreign representatives by the president is conclusive upon the judiciary. United States v. Ortega, supra. See in general, note to same case, 11 Wheat., 468. |