h 6

XI. The last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness, either by 'keeping, or indeed, it has been said, in even' frequenting, houses of ill fame, which is an indictable offence; or by some grossly scandalous and public indecency, or the sale of immoral pictures and prints,' for which the punishment 'at common law' is by fine and imprisonment, to which hard labour may now be added.' In 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 wilful 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 rigour. And these offences 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 offence 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 whatever openly outrages decency, and is injurious to public morals, is a misdemeanor at common law. Thus, to undress in order to bathe in a place exposed to public view is an offence contra bonos mores, punishable by fine and imprisonment.* The grosser crime of exposure of the person, with intent to insult a female, may also be made the subject of an indictment,' or be summarily punished under the Vagrant Act; " the wilful exposure of an obscene print, whether in a shop window or otherwise, is an offence of the same character." And a common prostitute wandering in public, and behaving in a riotous and indecent manner, may on the like grounds be treated as an idle and disorderly person.'

Poph. 208; R. v. Pierson, 2 Ld. Raym. 1197.

1 Siderfin. 168; R. v. Sedley, 2 Str. 791; 10 St. Tr. App. 93; Rex. v. Wilks, 4 Burr. 2527; and Reg. v. Rowed, 3 Q. B. 180. 14 & 15 Vict. c. 100, s. 29.

m

j Scobell, 121.

Rex. v. Crunden, 2 Camp. N. P. 89. 114 & 15 Vict. c. 100, s. 29.

m 5 Geo. IV. c. 83, s. 4.

n 1 & 2 Vict. c. 83.

5 Geo. IV. c. 83, s. 3.

'A conspiracy to procure the defilement of a young woman is also an indictable misdemeanor at common law, as being an offence against good morals; P and any person who by false pretences, false representations, or other fraudulent means, procures any woman or child under the age of twenty-one years, to have illicit carnal connection with any man, is by statute guilty of a misdemeanor, punishable by imprisonment with or without hard labour for any term not exceeding two years.'

Before leaving this subject, we must take notice of the temporal punishment at one time imposed' 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 might take order for the punishment of the mother and reputed father; but what that punishment should be is not therein ascertained, though the contemporary exposition was that a corporal punishment was intended. By statute 7 Jac. I. c. 4, a specific punishment was inflicted on the woman only, viz., commitment to the house of correction, there to be punished and set to work for one year; and, in case of a second offence, till she found sureties never to offend again, a punishment practically of imprisonment for life. This consideration may possibly have led to the repeal of this extraordinary enactment by the 50 Geo. III. c. 51; but it did not produce any modification in the law itself, which disgraced the statute book until our own day, having been at last repealed by the Poor Law Amendment Act, 4 & 5 Will. IV. c. 76.'

P Rex. v. Mears, 2 Den. C. C. R. 79.

Dalt. Just. ch. ii.

a 24 & 25 Vict. c. 100, s. 49.

55

CHAPTER V.

OF OFFENCES AGAINST THE LAW OF NATIONS.

WE are next to consider the offences more immediately repugnant to that universal law of society, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.

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 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 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 facilitate 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 civilised 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, which is a branch of the law of nations, is, in so far as it has not been altered by act of parliament,' regularly and constantly adhered to. A similar observation applies to all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, for which 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 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, 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 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 offences against the law of nations, animadverted on as such by the municipal laws of England, are of 'four' kinds :

1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; 3. Piracy; and, 4. Trading in slaves.'

I. As to the first, violation of safe-conducts or passports, expressly granted by the sovereign or his ambassadors to the subjects 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 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 offences 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 expressed or implied, the foreigner is under the protection of the sovereign and the law: and, more especially, as it is one of the articles of Magna Charta, 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 sovereign, whose honour is more particularly engaged in supporting his own safe-conduct.

II. As to the rights of ambassadors, 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 Anne, c. 12, that all process whereby the person of any ambassador, 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 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