Sivut kuvina

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 hofts, 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 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 obferve these univerfal 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 justice to be done on the offender, by the ftate to which he belongs; and, if that be refused or neglected, the fovereign then avows himfelf an accomplice or abettor of his fubject'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 embaffadors; and, 3. Piracy.


I. As to the first, violation of fafe-conducts or passports, expreffly granted by the king or his embaffadors to the fubjects of a foreign power in time of mutual war; or, committing acts of hoftility 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 preservation 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 just ground • See Vol. I. pag. 260.


[ocr errors]
[ocr errors]

of a national war; fince it is not in the power of the foreign prince to caufe juftice 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 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 person or property of such foreigner may be punished by indictment in the name of the king, whofe honour is more particularly engaged in fupporting his own fafe-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 fupport 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 sea) according to the antient marine law then practifed 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 treafons, when committed within the body of any county. Which statute, fo far as it made thefe offences amount to treason, was fufpended 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 fhould have reftitution 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 fubjects attempt or offend, upon the fea, or in any port within the king's obeyfance, against any tranger in amity, league, or truce, or under fafe-conduct; and

f 9 Hen. III., 30. Sce Vol. I. pag. 259, &c.

[ocr errors]


especially by attaching his perfon, 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 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 seem that, after the expiration of them all, the ftatute 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 safe-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 queftion it as to treafons committed on the fea. But certainly the ftatute of 31 Hen.VL 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 univerfal concern, they have formerly been treated of at large. It may here be fufficient to remark, that the common law of England recognizes them in their full extent, by immediately ftopping all legal process, fued out through the ignorance or rashness 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 wantonness or infolence, it is declared by the ftatute 7 Ann. c. 12. that all procefs whereby the perfon of any embaffador, or of his domestic or domestic fervant, may be arrested, or his goods diftreined or seised, shall be utterly null and void; and that all perfons profecuting, foliciting, or executing fuch process, being convicted by confeffion or the oath of one

11 Hal. P. C. 267.

See Vol. I. pag. 253.


witness, before the lord chancellor and the chief juftices, or any two of them, fhall be deemed violaters 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, fhall think fit. Thus, in cafes 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.

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 fir Edward Coke *, boftis 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 muft declare war against him: fo that every community hath a right, by the rule of felf-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 fubject, was held to be a fpecies of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, fince the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a fubject'. 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 course of the common law, and of which we shall say more hereafter.

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

THE offence of piracy, by common law, confifts in committing thofe acts of robbery and depredation upon the high feas, which, if committed upon land, would have amounted to felony there". But, by ftatute, fome other offences are made piracy alfo as, by ftatute 11 & 12 W. III. c. 7. if any natural born fubject commits any act of hoftility upon the high seas, against others of his majesty's subjects, under colour of a commiflion from any foreign power; this, though it would only be an act of war in an alien, fhall be conftrued piracy in a fubject. And farther, any commander, or other feafaring perfon, betraying his truft, and running away with any fhip, boat, ordnance, ammunition, or goods; or yielding them up voluntarily to a pirate; or confpiring to do thefe acts; or any person confining the commander of a veffel, to hinder him from fighting in defence of his fhip, or to cause a revolt on board; fhall, for each of these offences, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal or acceffory. By the ftatute 8 Geo. I. c. 24. the trading with known pirates, or furnishing them with ftores or ammunition, or fitting out any veffel for that purpose, or in any wife confulting, combining, confederating, or correfponding with them; or the forcibly boarding any merchant veffel, though without feifing or carrying her off, and deftroying or throwing any of the goods overboard thall be deemed piracy: and all acceffories to piracy, are declared to be principal pirates, and felons without benefit of clergy. By the fame ftatutes alfo, (to encourage the defence of merchant veffels against pirates) the commanders or seamen wounded, and the widows of fuch feamen as are flain, in any piratical engagement, fhall be entitled to a bounty, to be divided among them, not exceeding one fiftieth part of the value of the cargo on board: and fuch wounded feamen fhall be entitled to the penfion of Greenwich hospital; which no other feamen are, except only fuch as have ferved in a fhip of war. And if the commander fhall behave cowardly, by not defending the fhip,

[blocks in formation]
« EdellinenJatka »