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CHAPTER VIII.

OF OFFENCES AGAINST THE LAW OF NATIONS.

[ACCORDING to the method marked out in the preceding chapter, 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, at least, which are particularly animadverted on, as such, by the English law.]

The law of nations, to which we have before had occasion briefly to advert (a), is a system of rules, [established by universal consent, among the civilized inhabitants of the world (b); in order to decide all disputes, to regulate all ceremonies and civilities, and to ensure 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: being founded upon this general principle, that different nations ought, in time of peace, to do to one another all the good they can: and in time of war, as little harm as possible, without prejudice to their own real interests (c). 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,] and to which all civilized States have assented.

[In arbitrary States this law, whenever it contradicts, or is not provided for by the municipal law of the country, is (a) Vide sup. vol. 1. p. 25. (c) Sp. L. b. 1, c. 7. (b) Ff. 1, 1, 9.

[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 held to be 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 civilized world. Thus, in mercantile questions, such as bills of exchange and the like, and in all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature, the law merchant is constantly adhered to (d).

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, 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 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

(d) As to the law merchant, vide sup. vol. 1. p. 56.

[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 cases [in which the statute law of England interposes to aid and enforce the law of nations, as a part of the common law, by inflicting an adequate punishment upon offences against that universal law committed by private persons] are, in respect of offences of three kinds: I. Violation of safe-conducts; II. Infringement of the rights of ambassadors; and, III. Piracy.

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 (e) ; or the committing acts of hostilities against such as are in amity, league, or truce with us, who are, in this case, 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 subject 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 Charta, that foreign merchants should be entitled to safe-conduct and security throughout the kingdom (f);-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

(e) Vide sup. vol. 11. p. 516.

(f) 9 Hen. 3, c. 30.

[the sovereign; 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, the 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 treason against the crown and dignity of the king; and conservators of truce and safe-conducts, were appointed in every port, and empowered to hear and determine such treasons when committed at sea, according to the antient marine law then practised in the admiral's court. 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 it was 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 obeisance, 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 the fourteenth and twentieth years of Henry the sixth, and also the reviving Act of the twenty-ninth of the same monarch, were only temporary; so that it should seem that, after the expiration of them all, the statute of the second year of Henry the fifth 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 safe-conducts, with an express exception to the statute of 2 Hen. V. st. 1, c. 6. But however that may be,] this statute was, (according to Blackstone,) [finally repealed by the general statutes of Edward the sixth, and Queen Mary, for abolishing new created treasons (g); though Sir Matthew Hale seems to question it, as to treason committed on the sea (h). But the statute of 31 Hen. VI. remains in full force to this day.

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,] in that part of this work in which we discussed the nature and extent of the royal prerogative. And it may be recollected, that any violation of them amounts, by express legislative enactment, to a crime of a highly penal nature (i).

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 Sir Edward Coke, hostis humani generis (k). 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

(g) Vide sup. p. 245, and 4 Bl. Com. p. 70.

(h) 1 Hale, P. C. 267.

(i) Vide sup. vol. 11. p. 506 et

seq.

(k) 3 Inst. 113.

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