CHAPTER THE FIFTH.
OF OFFENCES AGAINST THE LAW OF
NATIONS.

ACCORDING to the method marked out in the preceding chapter, we are next to confider the offences more immediately repugnant to that univerfal law of fociety, which regulates the mutual intercourfe between one ftate and another ; thofe, I mean, which are particularly animadverted on, as fuch, by the Englifh law.

THE law of nations is a fyftem of rules, deducible by natural reafon, and eftablifhed by univerfal confent among the civilized inhabitants of the world ^a ; in order to decide all difputes, to regulate all ceremonies and civilities, and to infure the obfervance frequently occur between two or more independent ftates, 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 poffible, without prejudice to their own real interefts ^c. And, as none of thefe ftates will allow a fuperiority in the other, therefore neither can dictate or prefcribe the rules of this law to the reft ; but fuch rules muft neceffarily

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^a Ff.1.1.9.
^b See Vol.L. pag.43.
^c Sp.L.b.1.c.3.
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refult
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refult from thofe principles of natural juftice, in which all the learned of every nation agree : or they depend upon mutual compacts or treaties between the refpective communities ; in the conftruction of which there is alfo no judge to refort to, but the law of nature and reafon, being the only one in which all the contracting parties are equally converfant, and to which they are equally fubject.

IN arbitrary ftates 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 queftion arifes which is properly the object of it's jurifdiction) 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 thofe acts parliament, which have from time to time been made to enforce this univerfal law, or to facilitate the execution of it's decifions, are not to be confidered as introductive of any new rule, but merely as declaratory of the old fundamental conftitutions of the kingdom ; without which it muft ceafe to be a part of the civilized world. Thus in mercantile queftions, fuch as bills of exchange and the like ; in all marine caufes, relating to freight, averafe, demurrage, infurances, bottomry, and others of a fimilar nature ; the lawmerchant ^d, which is a branch of the law of nations, is regularly and conftantly 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 univerfal law, collected from hiftory and ufage and fuch writers of all nations and languages as are generally approved and allowed of.

BUT, though in civil tranfactions and queftions of property between the fubjects of different ftates, the law of nations has much fcope and extent, as adopted by the law of England ; yet the prefent branch of our enquiries will fall within a narrow

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^d See Vol.I. pag.273.
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I 2
compafs,
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compafts, as offences againft the law of nations can rarely be the object of the criminal law of any particular ftate. For offences againft this law are principally incident t owhole ftates or nations : which cafe recourfe can only be had to war ; which is an appeal to the god of hofts, to punifh fuch inftaction of public faith, as are committed by one independent people againft another : neither ftate haaving any fuperior jurifdiction to refort to upon earth for juftice. But where the individuals of any ftate violate this heneral law, it is then the intereft as well as duty of the government under which they live, to animadvert upon them with a becoming feverity, that the peace of the world may be maintained. For in vain would nations in their collective capacity obferve thefe univerfal rules, if private fubjects were at liberty to break them at their own difcretion, and involve the two ftates in a war. It is therefore incumbent upon the nation injured, hrft to fatisfaction and juftice to be done on the offender, by the ftate to which he belongs ; and, if that be refufed or neglected, the fovereign them avows himfelf an accomplice or abettor of his fubject's crime, and draws upon his community the calamities of foreing war.

THE principal offence againft the law of nations, animadverted on as fuch by the municipal laws of England, are of three kinds ; 1. Violation of fate-conducts ; 2. Infringement of the rights of embaffadors ; and, 3. Piracy.

1. AS to the firft, violation of fafe-conducts or paffports, expreffly granted by the king or his embaffadors ^e to the fubjefts of a foreign power in time of mutual war ; or, committing acts of hoftility againft fuch as are in amity, league, or truce with us, who are here under a general implied fafe-conduct ; the are breaches of the public faith, without the prefervation of which there can be no intercourfe or commerce between one naiton and another : and fuch offences may, according to the writers upon the law of nations, be a juft ground

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^e See Vol.1. pag.260.
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of

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of a national war ; fince it is not in the power of the foreign prince to caufe juftice to be done to his fubjects by the very individual delinquent, but he muft require it of the whole community. And as during the continuance of any fafe-conduct, either exprefes or implied, the foreigner is under the protection of the king and the law ; and, more efpecially, as it is one of the articles of magna carta ^f, that foreign merchants fhall be intitled to fafe-conduct and fecurity throught the kingdom ; there is no queftion no queftion but that any violation of either the perfon or property of fuch foreigner may be punifhed by indictment in the name of the king, whofe honour is more particularly engaged in fupporting his own fafe-conduct. And, hen this malicious rapacity was not confined to private individuals, but broke out into general hoftilities, by the ftatute 2Hen.V.ft.1.c.6. breaking of truce and fefe-conduct, or abetting and receiving the trucebreakers, was (in affirmance and fupport of the law of nations) declared to be high treafon agianft the crown and dignity of the king ; and convervators of truce and fafe-conducts were appointed in every port, and impowered to hear and determine fuch treafons (when committed at fea) 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 ftatute, fo far as it made thefe offences amount to treafon, 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 , notwithftanding the party be convected of treafon, the injured ftranger fhould have reftitution out of his effects, prior to any claim of the crown. And it is farther enacted enacted by the ftatute 31 Hen.VI. c.4. that if any of the king's fubjets attempt or offend, upon the fea, or in port within the king's obeyfance, againft any ftranger in amity, league, or under fafe-conduct ; and

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^f 9Hen.III. c.30. See Vol.I. pag.259, &c.
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efpecially
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efpecially by attaching his perfon, or fpoiling him, or robbing him of his goods ; the lord chancellor, with any of the juftices of either the king's bence or common pleas, may caufe full reftitution and amends to be made to the injured.

IT is to be obferved, that the fufpending and ripealing acts of 14&20 Hen. VI, and alfo the reviving act of 29 Hen. VI, were only temporary ; fo that it fhould feem 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 ftatute 14Edw.IV.c.4. which revives and confirms all ftatutes and ordinances made before the acceffion of the houfe of York againft breakers of amities, truces, leagues, and fafe-canducts, with an exprefs exception to the ftatutes of 2.Hen.V. But (however that may be) I apprehend it was finally repealed by the general ftatutes of Edward VI and queen Mary, for abolifhing new-created treafons ; though fir Matthew Hale feems to queftion it as to treafons committed on the fea ^g. But certainly the ftatute of 31Hen.VI remains in full force to this day.

II. AS to the rights of embaffadors, which are alfo eftablifhed by the law of nations, and are therefore matter of univerfal concern, they have fromerly been treated of at large ^h. 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 htrough the ignorance or rafhnefs of individuals, which may intrench upon the immunities of a foreign minifter or any of hsi train. And, the more effectually to enforce the law of nations in this refpect, when violated through wantonnefs or infolence, it is declared by the ftatute 7 Ann.c.12. that all procefs whereby the perfon of any embaffador, or of his domeftic or domeftic fervant, may be arrefted, or his goods diftreined or feifed, fhall be utterlyu null and void ; and that all perfons profecuting, foliciting, or executing fuch procefs, being convicted by confeffion or the oath of one

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^g 1Hal. P.C.262.
^h See Vol.I. pag.253.
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witnefs
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witnefs, before the lord chancellor and the chief juftices, or any two of them, fhall be deemed violaters of the laws of nations, and difturbers of the public repofe ; and fhall fuffer fuch penalties and corporal punifhment as the faid judges, of any two of them, fhall think fit ⁱ. Thus, in cafes of extraordinary outrage, for which the law hath provided no fpecial penalty, the legiflature hath intrufted to the three principal judges of the kingdom an unlimited power of proportioning the punifhment to the crime.

III. LASTLY, the crime of piracy, or robbery and depredation upon the high feas, is an offence againft the univerfal law of fociety ; a pirate being, according to fir Edward Coke ^k, boftis humani generis. As therefore he has renounced all the benefits of fociety and government, and has reduced himfelf afrefh to the favage ftate of nature, by declaring war againft all mankind, all mankind muft declare war againft him : fo that every community hath a right, by the rule of felf-defence, to inflict that punifhment upon him, which every individual would in a ftate of nature have been otherwife entitled to do, any invafion of his perfon or perfonal property.

BY the antient common law, piracy, if committed by a fubject, was held to be a fpecies of treafon, being contrary to his natural allegiance ; and by an alien to be felony only : but now, fince tha ftatute of treafons, 25 Edw. III. c.2. it is held to be only felony in a fubject ^l. Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law ^m. But, it being inconfiftent with the liberties of the nation, that any man's life fhould be taken away, unlefs by the judgment of his peers, or the common law of the land, the ftatute 28 Hen.VIII. c.15. eftablifhed a new jurifdiction for this purpofe ; which proceeds according to the courfe of the common law, and of which we fhall fay more hereafter.

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^l See the occafion of making this ftature ; Vol.I. pag.255.
^k 3Inft.113. 1 Ibid.
^m 1 Hawk. P.C.98.
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THE offence of piracy, by common law, confifts in committing thofe act of robbery and depredation upon the high feas, which, if committed upon land, would have amounted to felony there ⁿ. as, by ftatute 11&12 W.III.c.7. if any natural born fubjeft commits any act of hoftility upon the high feas, againft others of his majefty's fubjefts, under colour of a commiffion 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 perfon confing the commander of a veffel, to hinder him from fighting in defence his fhip, or to caufe a revolt on board ; fhall, for each of thefe offences, be adjudged a pirate, felon, and robber, and fhall fuffer death, whether he be principal or acceffory. By the ftatute 8 Geo. I. c.24. the trading with known pirates, or furnifhing them with ftores or ammunition, or fitting out any veffel for that purpofe, 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 ; fhall be keemed piracy : and all acceffories to piracy, are declared to be principal pirates, and felons without benefit of clergy. By the fame ftyatutes alfo, (to encourage the defence of merchant veffels againft pirates) the commanders or feamen qounded, 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 entitled to the penfion of Greenwich hofpital ; 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,

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ⁿ 1 Hawk. P.C.100.
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if
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if fhe carries guns or arms, or fhall difcharge the mariners from fighting, fo that the fhip falls into the hands of pirates, fuch commander fhall forfeit all his wages, and fuffer fix months imprifonment.

THESE are the principal cafe, in which are the ftatute law of England interpofes, to aid and enforce the law of nations, as a part of the common law ; inflicting an adequate punifhment upon offences againft that univerfal law, committed by private perfons. We fhall proceed in the next chapter to confider offences, which more immediately affect the fovereign executive power of our own particular ftate, or the king and government ; which fpecies of crimes branches itfelf into a much larger extent, than either of thofe of which we have already treated.

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