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)" or by some grossly scandalous and [ 65 ] public indecency for which the punishment is by fine and imprisonment. (u) 25 In the year 1650, when the ruling power 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 fornication, were (upon a second conviction) made felony without benefit of clery. (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 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)

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 fomerly 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 ascer. tained; though the contemporary exposition was that a corporal punishment was intended. (z) By statute 7 Jac. I. c. 4. a specific punishment (viz.

t Poph. 208.

w Scobell. 121.

x See Book III. pag. 189.
z Dalt, Just. ch. 11.

u 1 Siderf. 166.
y See Book I. p. 458.

found collected in Burn's Justice, & ed. tit. Alehouses. The provisions are too numerous and practical to be given here.

(24) As to the offence of keeping or frequenting bawdy-houses, see post, 167. A woman cannot be indicted for being a bawd generally; for the bare solicitation of chastity is not indictable. Hawk. b. 1. c. 74. 1 Salk. 382. As to unnatural offences, see post, 215.

(25) Many offences of private incontinence fall properly and exclusively under the jurisdiction of the ecclesiastical court, and are appropriated to it. But where the incontinence or lewdness is public, or accompanied with conspiracy, it is indictable.

Exposing a party's person to the public view, is an offence contra bonos mores, and indictable. See 1 Sid. 168. 3 Camp. 89. 1 Kek. 620 And by the vagrant act, 5 Geo. IV. c 83. s. 4. exposing a man's person, with intent to insult a female, is an offence for which the offender may be treated as a rogue and vagabond; and so is the wilfully exposing an obscene print or indecent exhibition,-indeed this would be an indictable offence at common law. 2 Stra. 789. 1 Barn. Rep. 29. 4 Burr 2527, 2574. And by the same act of 5 Geo. IV. c. 83. s. 3. every common prostitute wandering in public, and behaving in a riotous and indecent manner, may be treated as an idle and disorderly person within the meaning of that act.

Publicly selling and buying a wife is clearly an indictable offence. 3 Burr. 1438.; and many prosecutions against husbands for selling, and others for buying, have recently been sustained, and imprisonment for six months inflicted.

Procuring or endeavouring to procure the seduction of a girl, seems indictable. 3 St. Tri. 519. So is endeavouring to lead a girl into prostitution. 3 Burr. 1438. And see post. 209. 212. as to the offence of seduction.

It is an indictable offence to dig up and carry away a dead body out of a church-yard. 2 T. R. 733. Leach C. L. 4 ed. 497. S. C. 2 East. P. C. 652. post. 236. ante, 2 Book, 429. And the mere disposing of a dead body for gain and profit, is an indictable offence. Russ. & R. C. C. 366. note. 1 Dowl. & R. N. P. C. 13. And it is a misdemeanor to arrest a dead body, and thereby prevent a burial in due time. 4 East, 465. The punishment for such an offence is fine and imprisonment. 2 T. R. 733.

All such acts of indecency and immorality are public misdemeanors; and the offenders may be punished either by an information granted by the court of king's bench, or by an indictment preferred before a grand jury at the assizes, or quarter sessions. Christian.

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 lastmentioned 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.

CHAP. V.

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.

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 [67] 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 mu tual 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 hich 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 mere. a Ff. 1. 9. b See Book 1. p. 43.

c Sp. L. b. 1. c. 7.

(1) A to the law of nations in general, see ante, 1 Book, 43 note 4. Vattel's L. Nat. 1 Chitty's Com. L. 28. 74. Chitty's Crim. L. 52 to 58.

ly 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."

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 [68] law of nations 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 government, 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 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 safe-conducts; 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 embassadors (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 cause justice to [ 69 ] 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

(2) By the 33 Geo. III. c. 66. it was enacted, that it was unlawful for any of his majesty's subjects to ransom, or enter into any contract for ransoming, any ship or merchandize captured by an enemy; and that all contracts and securities for that purpose, without the licence therein mentioned, were absolutely void; and that every person who entered into such a contract, should be subject to a penalty of 500!.

Chitty.

VOL. II.

54

protection of the king and the law and, more especially, as it is one of the articles of magna charta, (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 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 accord. ing 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 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 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, [70] or 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 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 & 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, 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.

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

4

the person of any embassadors, or of his domestic or domestic servant, may be arrested, or his goods distreined or seized, 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 justices, or any two of them, [71] 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 judges, or any two of them, shall think fit. (i)* 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.

5

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 Coke, (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 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." The offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas, which, if [72] 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. III. c. 7. if any natural 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

i See the occasion of making this statute, Book I. pag. 255.
13 Inst. 113.
m 1 Hawk. P. C. 98.

:

k 3 Inst. 115. n 1 Hawk. P. C. 100.

(3) "Or other public minister of a foreign prince or state."

(4) A consul is not a public minister within the act. Ante, 3 Book, 289. The party, to entitle him to the protection of the act, must be a servant, or employed in the ambassador's house, 3 D. & R. 25.; and a servant within the meaning of the act must be actually and bonâ fide such servant. Tidd Prac. 8 ed. 193. 4 Burr. 2016, 7. It does not matter whether the servant is a native of the country where the ambassador resides, or a foreigner; and real servants, though not residing with the ambassador, are within the act. 2 Stra. 797. 3 Wils. 35. 1 B. & C. 563. 2 D. & R. 840. S. C. But if the servant do not reside in the ambassador's house, and have goods in his own house, more than are necessary for his convenience as such servant, they are not within the protection of the act. 1 B. & C. 554. 2 D. & R. 833, S. C. The servant's name must be registered in the secretary of state's office, and transmitted to the sheriff's office, to support a proceeding against the sheriff for such arrest. 1 Wils. 20. and sect. 5. of the statute. Tidd. Prac. 8 ed. 194. See further on this subject, ante, 1 Book, 257. n. (18).

(5) See post, 269. and see 3 Chitty's Cr. L. 1090 to 1093.

(6) Post, 269.