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adultery itself, with a great degree of tenderness and lenity; owing per haps 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 (a) (26).
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 as. certained ; though the contemporary exposition was that a corporal punishment was intended (2). 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 (27).
OF OFFENCES AGAINST THE LAW OF NATIONS (1).
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; those, I mean, which are particularly animadverted on, as such, by the English law (2).
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, lo 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 independant () See Book III. page 139.
(2) Dalt. Just. ch. 11. (y) See Book I. p. 458.
(a) Ff. 1. 9. (26) In New York, incest is punished by charge her from further confinement. By secimprisonment for not more than 10 years. (2 tion 4, justices are restrained from committing R. S. 688.)
any woman till she has been delivered one (27) The 7 Jac. I. c. 4. 6.7, (which provided mouth. The child must be chargeable, or certain punishments, for lewd females who likely to become so, in order to authorize a had bastards), is repealed by 50 Geo. III. e. conviction. 2 Nolan. 256. Third edition. 51, g 1, which enacts “that in cases when a (1) As to the law of nations in general, see woman shall have a bastard child which may Vattel's L. Nat. 1 Chitty's Com. L. 28. 74. be chargeable to the parish, any two justices 2 Chity's Crim. L. 52 to 58. before whom such woman shall be brought, (2) The matters contained in this chapter may commit her, at their discretion, to the are beyond the legislative power of the seve. house of correction, in their district. for a time ral states; they are regulated hy the general not exceeding twelve calendar months, nor law of nations, or by Congress, or by treaties less than six weeks. By section 3, upon the These offences are punishable in the US poman's good behaviour during her confine- courts. ment, any two justices may release and dis
states, and thy individuals belonging to each (6). This general law u foundeil upon this principle, that different nations ought in time of peace to do one anuther 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 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 municipal 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 de cisions, 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 (3).
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 [ *68 ) inquiries will fall *within a narrow compass, as offences against
the law of nations can rarely be the object of the criminal law of any particular state. For offences against this law are principally in. cident to whole states or nations; in which case recourse can only be had to war; which is an appeal to the God of hosis, 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 voilate this general law, it is then the interest as well as duty of the goverment, 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 na. (0) See Book I. p. 43.
(d) See Book I. page 272. (c) Sp. L. b. I, c. 7.
(3) By the 33 Geo. III. c. 66. it was enact- cence therein mentioned, were absolutely ou, that it was unlawful for any of his inajes. void : and that ev ry person who entered into ty's sulijecis to ransom, or enter into any con- such a contract, should be subject to a penalty tract for ransoming, any ship or merchandise of 5001. captured by an enemy: and that all contracts In the U. S. the commrn lav remains unal and securities for that purpose, without the li- tered.
tions in their collective capacity observe these universal rules, if priva's 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 coinmunity 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 safe-conducts ; 2. Infringement of the rights of embassabors; and 3. Piracy.
1. As to the first, violation of safe-conducts or passports, expressly granted by the king or his embassadors @ to the subjects of a foreign power in time of mutual war (4); 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 preserva. tion 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 cause justice to be done [ *69 ] 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 foreignet is under the protection of the king and the law : and, more especially, as it is one of the articles of magna charla (s), 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 honour 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 practised 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 belonge ed to the conservators of truce and their accessors ; 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 cnacted 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 trace, or
(d) Soo Book I. page 260.
(f) 9 Hen. III. c. 30. See Book I. page 259, &c
(4) See 1 Story's laws U. S. 89, 0 27.
[ 70 ] under safe-conduct; and especially by attaching his person, or
spoiling him or robbing him of his goods ; the lord chancellor, with any of the justices of either the king's bench or common pleas, may csuse full restitution and amends to be made to the party injured.
It is to be observed, that the suspending and repealing acts of 14 & 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, truccs, leagues, and safe-conducts, with an express exception to the statute of 2 Hen. V. But (however that may be) 1 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.
II. As to the rights of embassadors, 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 7 Ann. c. 12. that all process whereby the person of any embassadors (5), or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void (6); and that all persons prosecuting, soliciting, or
executing such process, being convicted by confession or the oath [*71] of one witness, before tho *lord chancellor and the chief justices,
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 (i) (7). 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 be(g) 1 Hal. P. C. 267.
(i) See the occasion of making this statuta (h) See Book I. page 253.
Book I. page 255. (5) "Or other public minister of a foreign S.C. But if the servant do not reside in the prince or state."
amliassador's house, and have gnods in his own (6) A consul is not a public minister with house, more than are necessary for his conve in the act. Ante, 3 book, 289. The party, to nience as such servant, they are not within the entitle him to the protection of the act, must protection of the act. 1 B. & C. 554. 2 D. be a servant, or employed in the ambassador's & R. 833. S. C. The servant's name must house, 3 D. & R. 25; and a servant within the be registered in the secretary of state's office, meaning of the act must be actually and bona and transmitted to the sheriff's office, to sup. fide such servant. Tidd Prac. 8 ed. 193. 4 port a proceeding against the sheriff for such Burr. 2016, 7. It does not matter whether the arrest. I Wils. 20. and sect. 5. of the statute. servant is a native of the county where the Tidd Prac. 8 ed. 194. See further on this ambassador resides, or a foreigner; and real subject, ante, 1 book, 257. n. (13). servants, though net residing with the ambas. (7) See post, 269. and see 3 Chitty's Co L. sador, are within the act. 2 Stra. 797. 3 1090 to 1093. Wils. 35. 1 B. &. C. 563.2 D. & R 840.
ing, according to sir Edward Coke (k), hostis humani generis. As therefore he has renounced all the benefits of society and government, and bas 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 ihe ancient common law, piracy, is committed by a subject, was held to be a species of high treason, being contrary to his natural allegiance; and by an alien to be felony only : but now, since the statute of treason, 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 should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction for this purpose, which proceeds according to the course of the common law, and of which we shall say more hereafter (8).
*The offence of piracy, by common law, consists in commit- [*72 ) ting those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there (n). But, by statute, some other offences are made piracy also : as by statute 11 and 12 W.Ill. c. 7. if any nalural born subject commits any act of hostility upon the high seas, against others of his majesty's subjects, under colour of a commission from any foreign power; this, though it would only be an act of war in an alien, shall be construed piracy in a subject. And farther, any coinmander, or other seafaring person, betraying his trust, and runuing away with any ship, boat, ordnance, ammunition, or goods ; or yielding them up voluntarily to a pirate ; or conspiring to do these acts; or any person assaulting the commander of a vessel to hinder hin from fighting in defence of his ship, or confining him, or making or endeavour. ing to make a revolt on board ; shall, for each of these offences, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal, or merely accessary by setting forth such pirates, or abetting them before the faci, or receiving or concealing them or their goods after it. And the statute 4 Geo. I. c. 11. expressly excludes the principals from the benefit of clergy. By the statute 8 Geo. I. c. 24. the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in any wise consulting, combining, confederating, or corresponding with them : or the forcibly boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods over-board, shall be deemed piracy: and such accessaries to piracy as are described by the statute of king William, are declared to be principal pirates, and all parties convicted by virtue of this act are made felons without benefit of clergy. By the same statutes also (to encourage the defence of merchant vessels against pirates), the com manders or seamen wounded, and the widows of such seamen as are slain,
(k) 3 Inst. 113. (1) Ibid.
(m) 1 Hawk. P. C. 98.
(8) Post, 289.