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CHAPTER THE FIFTH.
OF OFFENCES AGAINST THE LAW OF NATIONS.
CCORDING to the method marked out in the ceding chapter, we are next to confider the offences more immediately repugnant to that univerfal law of fociety, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.
a Ff. 1. 1.9.
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; 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 poffible, without prejudice to their own real interefts. And, as none of these states will allow a fuperiority in the other, therefore neither can dictate or prescribe the rules of this law to the reft; but fuch rules must neceffarily
See Vol. I. pag. 43.
refult from those principles of natural justice, in which all the learned of every nation agree: agree or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is also no judge to refort to, but the law of nature and reason, being the only one in which all the contracting parties are equally converfant, 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 fince in England no royal power can introduce a new law, or fufpend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of it's jurisdiction) is here adopted in it's 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 univerfal law, or to facilitate the execution of it's decisions, are not to be confidered 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 caufes, relating to freight, average, demurrage, infurances, bottomry, and others of a fimilar nature; the lawmerchant, which is a branch of the law of nations, is regularly and constantly adhered to. So too in all difputes relating to prizes, to fhipwrecks, to hoftages, and ranfom bills, there is no other rule of decifion but this great universal law, collected from history and ufage, and fuch writers of all nations and languages as are generally approved and allowed, of..
BUT, though in civil tranfactions and questions of propertybetween the subjects of different states, the law of nations has, much scope and extent, as adopted by the law of England; yet: the prefent branch of our enquiries will fall within a narrow
See Vol. I. pag. 273.
compafs, 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 cafe recourfe 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 ftate having any fuperior jurifdiction to refort to upon earth for juftice. But where the individuals of any ftate 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 fubjects were at liberty to break them at their own discretion, and involve the two ftates in a war. It is therefore incumbent upon the nation injured, firft to demand fatisfaction and juftice to be done on the offender, by the state to which he belongs; and, if that be refused or neglected, the fovereign 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 fuch by the municipal laws of England, are of three kinds; 1. Violation of fafe-conducts; 2. Infringement of the rights of embassadors; and, 3. Piracy.
I. As to the first, violation of fafe-conducts or passports, expreffly granted by the king or his embassadors to the subjects of a foreign power in time of mutual war; or, committing acts of hostility against fuch 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 prefervation of which there can be no intercourfe or commerce betweeen one nation and another: and fuch offences may, according to the writers upon the law of nations, be a juft ground See Vol. I. pag. 260.
of a national war; fince it is not in the power of the foreign prince to cause justice to be done to his fubjects by the very individual delinquent, but he must require it of the whole community. And as during the continuance of any fafe-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, that foreign merchants fhall be intitled to fafe-conduct and fecurity throughout the kingdom; there is no question but that any violation of either the perfon or property of fuch foreigner may be punished by indictment in the name of the king, whose honour is more particularly engaged in fupporting his own safe-conduct. And, when this malicious rapacity was not confined to private individuals, but broke out into general hoftilities, by the ftatute 2 Hen. V. ft. 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 treafon against the crown and dignity of the king; and confervators of truce and fafe-conducts were appointed in every port, and impowered to hear and determine such treasons (when committed at fea) according to the antient 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 fame treasons, when committed within the body of any county. Which statute, fo 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 fame powers to the lord chancellor, affociated with either of the chief juftices, as belonged to the confervators of truce and their affeffors; 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 ftatute 3.I Hen. VI. C.4. that if any of the king's fubjects attempt or offend, upon the fea, or in any port within the king's obeyfance, against any ftranger in amity, league, or truce, or under fafe-conduct; and 9 Hen III. c. 30. See Vol. I. pag. 259, &c.
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 caufe full reftitution 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; fo that it should feem that, after the expiration of them all, the statute 2 Hen. V continued in full force: but yet it is confidered as extinct by the statute 14 Edw.IV. c. 4. which revives and confirms all statutes and ordinances made before the acceffion of the house of York against breakers of amities, truces, leagues, and fafe-conducts, with an express exception to the statutes of 2 Hen. V. But (however that may be) I apprehend it was finally repealed by the general statutes of Edward VI and queen Mary, for abolishing new-created treafons; though fir Matthew Hale feems to question it as to treasons committed on the fea. But certainly the ftatute of 31 Hen. VI remains in full force to this day.
II. As to the rights of embajadors, which are also establifhed by the law of nations, and are therefore matter of univerfal concern, they have formerly been treated of at large 1. It may here be fufficient to remark, that the common law of England recognizes them in their full extent, by immediately. ftopping all legal procefs, fued out through the ignorance or rafhness of individuals, which may intrench upon the immunities of a foreign minifter or any of his train. And, the more effectually to enforce the law of nations in this respect, when violated through wantonnefs or infolence, it is declared by the ftatute 7 Ann. c. 12. that all process whereby the person of any embaffador, or of his domestic or domeftic fervant, may be arrested, or his goods diftreined or feifed, fhall be utterly null and void; and that all perfons profecuting, foliciting, or executing fuch process, being convicted by confeffion or the oath of one 1 Hal. P. C. 267.. See Vol. I. pag. 253.