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Punishment for having bastard children.

W

the year 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 willful 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. 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 rigor. And these offenses 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 offense 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.

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. 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 cotemporary exposition was that a corporeal punishment was intended. 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 offense, till she find sureties never to offend again."

w Scobell, 121.

* See vol. iii., page 139.

(26) By 50 Geo. III., c. 51, s. 1, this statute of James was repealed, and two justices were empowered to commit the mother to work for a period not exceeding twelve months, nor less than six weeks. But now, by the Poor Law Amendment Act, 4 & 5 Will. IV., c. 76, 8. 69, all acts of Parliament relating to the liability and punishment of the putative father, and the punishment of the mother, of bastard children, are repealed; and the mother is bound to maintain the child until it is sixteen years of age. Id., s. 71. If she be unable to do so, an order may be made by the Court of

y See vol. i., page 458.
Dalt. Just., ch. 11.

Quarter Sessions (or by the justices in petty sessions, subject to appeal from the putative father to the Quarter Sessions, 2 & 3 Vict., c. 85) for the maintenance and support of the child by the putative father until it be seven years old, provided the evidence of the mother be corroborated in some material particular by other testimony. Id., s. 72. And by 8. 75, the putative father may be summoned before a justice, and if he be suspected of intending to abscond, may be required to enter into a recognizance for his appearance at the sessions, and in case of his refusal to do so, may be committed.*

*See statute on the subject of bastards, 1 R. S., 639, et seq.

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CHAPTER V.

OF OFFENSES AGAINST THE LAW OF NATIONS.1

against the

ACCORDING to the method marked out in the preceding chap- SECONDLY. ter, we are next to consider the offenses more immediately re- Injuries pugnant to that universal law of society which regulates the law of namutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.

tions.

servations.

The law of nations is a system of rules, deducible by natural General obreason, 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. 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. 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 [67] 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 fa

Ff., 1. 1, 9.

b See vol. i., page 43.

C Sp. L., b. 1, c. 7.

(1) As to the law of nations in gen- 74; 2 Chitty's Crim. Law, 52–58. — eral, see ante, vol. i., 43, note 4. Vat- [CHITTY.] tel's L. Nat.; 1 Chitty's Com. L., 28,

cilitate 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.'

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 [68] compass, as offenses against the law of nations can rarely be the object of the criminal law of any particular state. For offenses 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 offenses 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 embassadors; and, 3. Piracy.

d See vol. i., p. 273.

(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 merchandise captured by an enemy; and that all contracts and se

curities for that purpose, without the license therein mentioned, were absolutely void; and that every person who entered into such a contract should be subject to a penalty of £500.-[CHITTY.]

of safe-con

I. As to the first, violation of safe-conducts or passports, ex- I. Violation pressly granted by the king or his embassadorse to the subjects ducts or of a foreign power in time of mutual war; or committing acts passports. 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 offenses may, according to the writers upon the law of nations, be a just ground of a national war, [ 69 ] since it is not in the power of the foreign prince to 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 Charta,f 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 trucebreakers, 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 offenses 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 further 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 attacking his person, or spoiling him or robbing him of his goods, the lord [70] chancellor, with any of the justices of either the King's Bench

• See vol. i., page 260. f 9 Hen. III., c. 30. See vol. i., page 259, &c.

II. Offenses against embassadors.

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 newcreated 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. 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 embassador, or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void; and that all persons prosecuting, soliciting, or exe[71] cuting such process, being convicted by confession or the oath

3

of one witness, before the lord chancellor and the chief justices, or any two of them, shall be deemed violators of the law of nations and disturbers of the public repose, and shall suffer such penalties and corporeal punishment as the said judges, or any two of them, shall think fit. Thus, in cases of extraor

1 Hal., P. C., 267.
h See vol. i., page 253.

(3) "Or other public minister of a foreign prince or state."-[CHITTY.]

(4) A consul is not a public minister within the act, ante, vol. iii., 289. The

See the occasion of making this statute, vol. i., page 253.

party, to entitle him to the protection of the act, must be a servant, or employed in the embassador's house, 3 D. & R., 25; and a servant within the meaning of the act must be actually and

For the violation of a safe-conduct or passport granted under the authority of the United States, the offender is subject to a fine and to imprisonment not exceeding three years.-(Act of Congress, April 30, 1790, § 27.) The same punishment may be inflicted for an infringement of the law of nations, by offering vi olence to the persons of embassadors and other public ministers, or by being concerned in prosecuting or arresting them.-(Ibid., § 25, 26.)

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