68 PUBLIC BOOK IV. within a narrow compass, as offences against the law of nations can rarely be the object of the criminal law of any par ticular ftate. For offences against this law are principally in cident to whole ftates 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 state havi ing any fuperior jurisdiction to resort to upon earth for juftice. But where the individuals of any state violate this general 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 these 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, first to demand satisfaction and justice to be done on the offender, by the ftate to which he belongs; and, if that be refufed or neglected, the fovereign then avows himself 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 such by the municipal laws of England, are of three kinds; 1. Violation of fafe-conducts; 2. Infringe ment of the rights of embaffadors; and, 3. Piracy. e I. As to the firft, violation of fafe-conducts or paffports, exprefsly granted by the king or his embaffadors to the fubjects of a foreign power in time of mutual war; or committing acts of hoftilities against such as are in amity, league, or truce with us, who are here under a general implied fafeconduct: these are breaches of the public faith, without the prefervation of which there can be no intercourfe or commerce between one nation and another: and fuch offences may, according to the writers upon the law of nations, be a just ground of a national war; fince it is not in the power of e See Vol. I. pag. 260. the 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 fafe-conduct, either express or implied, the foreigner is un der the protection of the king and the law; and, more efpecially, as it is one of the articles of magna carta, that foreign merchants fhould be entitled to fafe-conduct and fecurity throughout the kingdom; there is no question but that any violation of either the perfon or property of fuch foreigner may be punished by indictment in the name of the king, whose 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 fafe-conducts, or abetting and receiving the truce-breakers, was (in affirmance and support of the law of nations) declared to be high treafon against the crown and dignity of the king; and confervators of truce and safe-conducts were appointed in every port, and impowered to hear and determine fuch treafons (when committed at fea) ac-cording 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 treasons, when committed within the body of any county. Which ftatute, fo far as it made these 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, afsociated with either of the chief juftices, as belonged to the confervators of truce and their acceffors; and enacted that, notwithstanding the party be convicted of treason, the injured ftranger should have reftitution out of his effects, prior to any claim of the crown. And it is farther enacted by the ftatute (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 stranger in amity, league, or truce, or under fafe-conduct; and efpecially by attaching f 9 Hen. III. c. 70. See Vol. I. pag. 259, &c. E 3 hiş 70 PUBLIC Book IV. his perfon, or spoiling him or robbing him of his goods; the lord chancellor with any of the juftices of either the king's-bench, or common pleas, may caufe full reftitution and amends to be made to the party injured. IT is to be obferved, that the fufpending 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 statute 2 Hen. V. continued in full force: but yet it is confidered as extinct by the ftatute 14 Edw. IV. c. 4. which revives and confirms all ftatutes and ordinances, made before the acceffion of the houfe of York, against breakers of amities, truces, leagues, and fafe-conducts, with an exprefs exception to the ftatute 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 abolishing new-created treasons; though fir Matthew Hale feems to question it as to treafons committed on the fea. But certainly the ftatute of 31 Hen. VI. 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 stopping all legal procefs, fued 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 wantonnefs or infolence, it is declared by the statute 7 Ann. c. 12. that all process whereby the perfon of any embaffador, or of his domestic or domestic servant, may be arrested, or his goods diftreined or feifed, fhall be utterly null and void; and that all perfons profecuting, foliciting, or executing fuch process, being convicted by confeflion or the oath of one witness, before the g 1 Hal. P. C. 267. h See Vol. I. pag. 253. lord lord chancellor and the chief juftices, or any two of them, fhall 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 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 punishment to the crime, III. LASTLY, the crime of piracy, or robbery and depredation upon the high feas, is an offence against the univerfal law of society; a pirate being, according to fir Edward Coke, hoftis humani generis. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the favage ftate 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 felf-defence, to inflict that punishment upon him, which every individual would in a state of nature have been otherwife entitled to do, for any invasion of his perfon 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 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 fhould be taken away, unless by the judgment of his peers, or the common law of the land, the ftatute 28 Hen. VIII. c. 15. established a new jurifdiction for this purpofe; which proceeds according to the courfe of the common law, and of which we shall fay more hereafter. THE offence of piracy, by common law, confists 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 feas, against others of his majesty's fubjects, under colour of a commiffion from any foreign power; this, though it would only be an act of war in an alien, shall be construed 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 these acts; or any perfon affaulting the commander of a veffel to hinder him from fighting in defence of his fhip, or confining him, or making or endeavouring to make 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 merely acceffory 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. exprefsly excludes the principals from the benefit of clergy. 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 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 over board; shall be deemed piracy: and fuch acceffories to piracy as are defcribed by the ftatute of king William, are declared to be principal pirates, and all pirates convicted by virtue of this act are made felons without benefit of clergy, By the fame ftatutes alfo, (to encourage the defence of merchant veffels against pirates) the commanders or feamen wounded, and the widows of fuch feamen as are flain, in any piratical engagement, fhall be entitled to a bounty, to n I Hawk. P, C. 100. be |