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according to the

are

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 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 the 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 estates in a war. It is therefore incumbent upon the nation injured, first to demand satisfaction and justice to be done to 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, animadlaws of England, verted 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, S. Piracy.

37 violation of passports
(punishable before
the chancellor and
a justice of B. R.
C. B.)

I. As to the first, violation of safe-conducts or passports, expressly granted by the king or his embassadors to the subor jects 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 safeconduct 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,

(e) See vol. I. page 260,

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 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 carta, 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 impowered to hear and determine such treasons (when committed at sea) 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 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 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,

(f) 9 Hen. III, c. 70. See vol. I. page 259, &c,

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38 infringement of the

dors, (punishable,

the chancellor and a chief justice),

obeysance, against any stranger in amity, league, or truce, 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 safeconducts, with an express exception to the statute of 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 treasons; though sir Matthew Hale seems to question it as to treasons committed on the sea. 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 estarights of ambassa-blished by the law of nations, and are therefore matter of discretionally, by 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 distreined or seised, shall be utterly null and void; and that all persons prosecuting,

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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, 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. 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.

[1]

III. LASTLY, the crime of piracy, or robbery and depre- and pincy. dation upon the high seas, is an offence against the universal law of society; a pirate being, according to sir Edward Coke, 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 antient 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 treasons, 25 Edw. III. c. 2, it is held to be only felony in a subject'. Formerly it was only cognizable by the admiralty courts, which proceed by the rules of the civil law". 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

(i) See the occasion of making this statute; vol. I. page 255.(m) 1 Hawk, P. C. 98.

(k) S Inst. 113. (1) Ibid.

course

39

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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 committed upon land, would have amounted to felony there" (15). But, by statute, some other offences are made piracy also: as, by statute 11 & 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 only be an act of war in an alien, shall be construed piracy in a subject. And farther, any commander, or other seafaring person, betraying his trust, and running 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 him from fighting in defence of his ship, or confining him, or making or endeavouring 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 accessory by setting forth such pirates, or abetting them before the fact, 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 seising or carrying her off, and destroying or throwing any of the goods overboard; shall be deemed piracy: and such accesso

(n) 1 Hawk. P. C. 100.

(15) The 39 Geo. III. c. 37, enacts that all offences whatsoever committed on the high seas shall be liable to the same punishment, as if committed

ries

on shore; and persons tried for murder or manslaughter, and found guilty of manslaughter only, shall be entitled to the benefit of clergy.

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