the municipal law of England. For, besides the notorious indecency and 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 citizens; 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 (s) forbad all merchandizing on the Lord's day, under very severe penalties. And by the statute 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. I. 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- [*64] baiting, interludes, plays, or other unlawful exercises, or pastimes; 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 work 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 5s. Nor shall any drover, carrier, or the like, travel upon that day, under pain of twenty shillings (22).

X. Drunkenness is also punished by statute 4 Jac. I. c. 5. with the forfeiture of 5s.; 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 mischief to his neighbours. And there are many wholesome

(s) c. 24.

(22) It has been recently held, that the driver of a stage-van to and from London to York is a common carrier within the meaning of 3 Car. I. c. 1, and subject to the penalties thereof for travelling on Sunday. Rex v. Middleton, 4 D. and R. 824. Where a parol contract was entered into for the purchase of a horse above the value of 101., on a Sunday, with a warranty of soundness, and the horse was not delivered and paid for until the following Tuesday, held, first, that the contract was not complete until the latter day; and second, that supposing it to be void within the 29 Car. II. c. 7, 2, still it was not an available objection on the part of the vendor in an action for a breach of the warranty, the vendee being ignorant of the fact, that the former was exercising his ordinary calling on the Sunday. Bloxsome v. Williams, 5 D. & R. 82. 3 B. and C. 232.

The 11 and 12 W. c. 21, and all other Acts for the regulation of watermen plying upon the river

Thames, are repealed by the 7 and 8 Geo. IV. c. 75, which permits a limited number of watermen, under certain regulations, to ply upon the Thames, within certain specified limits, on Sundays. By 29 Car. II. c. 7. no arrest can be made, nor process served, on a Sunday, except for treason, felony, or breach of the peace. Ante book iii. 290. Neither is the hundred answerable to the party robbed, for a robbery committed on a Sunday. But where a plaintiff was robbed in going to his parish church, in his coach, on a Sunday, he recovered against the hundred, under the statute of Winton, 13 Ed. I. st. 2. the court observing, that the statute of Charles must be construed to extend only to cases of travelling, and that it might have been otherwise if the plaintiff had been making visits, or the like. Teshmaker v. the Hundred of Edmonton, M. 7 Geo. I. See 1 Stra. 406. Com. 345. Killing game on a Sunday is prohibited, under heavy penalties, by 13 Geo. III. c. 80.

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 (23).

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) (24); or by some grossly scandalous and 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 clergy (w). But at the restoration, when men, from an abhorrence of the

hypocrisy of the late times, fell into a contrary extreme of licen[*65] tiousness, 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

(t) Poph. 208.

(u) 1 Siderf. 168.

(23) Justices of the peace have an absolute and uncontrolled power and discretion in granting and refusing ale-licences; but if it should appear from their own declarations, or the circumstances of their conduct, that they have either refused or granted a licence from a partial or corrupt motive, they are punishable in the court of King's Bench by information, or they may be prosecuted by indictment. I Burr. 556. 1 T. R. 692.

But the court of King's Bench refused a mandamus to justices to rehear an application for an alehouse licence, which they had refused, though it was suggested that their refusal had proceeded from a mistaken view of their jurisdiction. Rer v. Farringdon Without (Justices), 4 D. and R. 735. So they refused a mandamus to rehear a similar application, at any other period of the year than within the first twenty days of September, though the justices might have refused the licence under a mistake of the law. Rex v. Surrey (Justices), 5 D. and R. 308.

(24) As to the offence of keeping or frequent ing bawdy-houses, see posts 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. 2 Camp. 89. 1 Keb. 620. And by the vagrant act, 5 Geo. IV. c. 83. s. 4. exposing a man's person with intent

(w) Scobell, 121.

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 assises or quarter sessions.

+ See accordingly, 2 R. S. 688.

adultery itself, with a great degree of tenderness and lenity; owing perLaps 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) (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 ascertained; 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).

CHAPTER 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 (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, 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 independant

(z) See Book III. page 139. (y) See Book I. p. 458.

(26) In New-York, incest is punished by imprisonment for not more than 10 years. (2 R. S. 688.)

(27) The 7 Jac. I. c. 4. 7, (which provided certain punishments, for lewd females who had bastards), is repealed by 50 Geo. III. c. 51,1, which enacts "that in cases when a woman shall have a bastard child which may be chargeable to the parish, any two justices before whom such woman shall be brought, may commit her, at their discretion, to the house of correction, in their district, for a time not exceeding twelve calendar months, nor less than six weeks. By section 3, upon the woman's good behaviour during her confine ment, any two justices may release and dis

(z) Dalt. Just. ch. 11.
(a) Ff. 1. 9.

charge her from further confinement. By section 4, justices are restrained from committing any woman till she has been delivered one month. The child must be chargeable, or likely to become so, in order to authorize a conviction. 2 Nolan. 256. Third edition.

(1) As to the law of nations in general, see Vattel's L. Nat. 1 Chitty's Com. L. 28. 74. 2 Chitty's Crim. L. 52 to 58.

(2) The matters contained in this chapter are beyond the legislative power of the several states; they are regulated by the general law of nations, or by Congress, or by treaties. These offences are punishable in the U. S. courts.

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 [*67] 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 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 (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 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 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

(b) See Book I. p. 43. (c) Sp. L. b. 1, c. 7.

(3) 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 merchandise captured by an enemy: and that all contracts and securities for that purpose, without the li

(d) See Book I. page 273.

cence therein mentioned, were absolutely void; and that every person who entered into such a contract, should be subject to a penalty of 500.

In the U. S. the common law remains una tered.

tions 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 embassabors; 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 (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 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 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 foreigner is under the protection of the king and the law and, more especially, as it is one of the articles of magna charta (f), that foreign merchants should be entitled to safeconduct 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 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. 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 (f) 9 Hen. III. c. 30. See Book I. pago 259, &c.

(e) See Book I. page 260.

(4) See 1 Story's laws U. S. 89, § 27.

And