CHAPTER V.

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, I mean, which arc particularly animadverted on, as such, by the English law. (1)

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; (a) 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. (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 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 [ *67] 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 civilized 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, (d) which is branch of the law of nations, is regularly and constantly adhered to. So, too, in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but this great unversal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. (2)

a

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

[*68]

(a) Ff, 1, 1, 9.

(b) See book I, p. 43.

(c) Sp. L. b. 1, c. 7.

(d) See book I, p. 273.

(1) The offences enumerated in this chapter are in the United States cognizable by the federal courts. They will be found treated of by Mr. Wheaton in his International Law, as well as in other treatises on that subject, and those on criminal law.

(2) The ransom of ships is forbidden by statute 33 Geo. III, c. 66, and contracts and securities for that purpose are made void.

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 them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first to demand satistaction 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 three kinds: 1. Violation of safe-conducts; 2. Infringements of the rights of ambassadors; and 3. Piracy.

I. Ás to the first, violation of safe-conducts or passports, expressly granted by the king or his ambassadors (e) 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 on 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 delin- [*69] quent, 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 carta, (f) 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 king, 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, 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 high 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 ancient marine law then practiced 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 same treasons when committed within the body of any county. 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 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 farther 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 obeysance, 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 [*70 ] chancellor, with any of the justices of either the kinge's bench or common pleas, may cause full restitution and amends to be made to the party injured.

(e) See book I, page 260.
VOL. II.-43

(f) 9 Hen. III, c. 30. See book I, page 259, &c.

337

It is to be observed, that the suspending and repealing acts of 14 and 20 Hen. VI, and also the reviving act of 29 Hen. VI, were only temporary, so that it should seem that, after the expiration of them all, the statute 2 Hen. V 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. But (however that may be) I apprehend it was finally repealed by the general statutes of Edw. VI, and Queen Mary, for abolishing new-created treasons; though Sir Matthew Hale seems to question it as to treasons committed on the sea. (g) But certainly 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. (h) 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 Ann. 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 seised, 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 wit ness, before the lord chancellor and the chief justices, or any two of [*1] them, shall 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. (2) (3) Thus, in cases 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 Sir Edward Coke, (k) hostis 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 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 ancient 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 only; but now, since the statute of treason, 25 Edw. III, c. 2, it is held to be only felony in a subject. (1) Formerly it was only cognizable by

(g) 1 Hal. P. C. 267. (h) See book I, p. 253. (i) See the occasion of making this statute, book, I, p. 255. (k) 3 Inst. 113. (1) Ibid.

(3) [A consul is not a public minister, within the act. The party, to entitle him to the protection of the act, must be a servant, or employed in the ambassador's house: 3 D. and R. 25; and a servant within the meaning of the act, must be actually and bona fide such servant. Tidd Prac. 8th ed. 193; 4 Burr. 2016, 2017. It does not matter whether the servant is a native of the country where the ambassador resides, or a foreigner; and real servants, though not residing with the ambassador, are within the act. 2 Stra. 797; 3 Wils. 35; 1 B. and C. 563; 2 D. and R. 840, S. C. But if the servant do not reside in the ambassador's house, and have goods in his own house, more than are necessary for his convenience as such servant, they are not within the protection of the act. 1 B. and Č. 554; 2 D. and R. 833, S. C. The servant's name must be registered in the secretary of states's office, and transmitted to the sheriff's office, to support a proceeding against the sheriff for such arrest. 1 Wils. 20; Tidd Prac. 8th ed. 194.]

For similar statutory provisions in the United States, see act of April 30, 1790, 1 Stat. at Large, 117; Brightly's Dig. 40.

the admiralty courts, which proceed by the rules of the civil law. (m) 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 of 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.

*The offence of piracy, by common law, consists in committing those

acts of robbery and depredation upon the high seas, which, if committed [*72] upon land, would have amounted to felony there. (n) But, by statute some other offences are made piracy also; as, by statute 11 and 12 Wm. III, c. 7, if any natural born subject commits any act of hostility upon the high seas against others of his majesty's subjects, under colour of a commission from any foreign power; this, though it would only be an act of war in an alien, shall be construed piracy in a subject. And, farther, any commander, or other seafaring person, betraying his trust, and running away with any ship, boat, ordnance, ammunition, or goods; or yielding them up voluntarily to a pirate; or conspiring to do these acts; or any person assaulting the commander of a vessel to hinder him from fighting in defence of his ship, or confining him, or making, or endeavoring to make a revolt on board; shall, for each of these offences, be adjudged a pirate, felon and robber, and shall suffer death, whether he be principal, or merely accessory, 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, expressly excludes the principals from the benefit of clergy. By the statute 8 Geo. I, c. 24, the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in any wise consulting, combining, confederating, or corresponding with them: or the forcible boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods overboard, shall be deemed piracy: and such accessories to piracy as are described by the statute of King William are declared to be principal pirates, and all parties convicted by virtue of this act are made felons without the benefit of clergy. (4) By the same statutes also (to encourage the defence of merchant vessels against pirates), the commanders or seamen wounded, and the widows of such seamen as are slain, in any piratical engagement, shall be entitled to a bounty, to *be divided among them [*73] not exceeding one fiftieth part of the value of the cargo on board: and such wounded seamen shall be entitled to the pension of Greenwich hospital: which no other seamen are, except only such as have served in a ship of war. And if the commander shall behave cowardly, by not defending the ship, if she carries guns or arms, or shall discharge the mariners from fighting, so that the ship falls into the hands of pirates, such commander shall forfeit all his wages, and suffer six months' imprisonment. (5) Lastly, by statute 18 Geo. II, c. 30, any natural born subject, or denizen, who in time of war shall commit hostili

(4) [The ordinary punishment of piracy, under the statute law, is now penal servitude for life or any term not less than five years, or imprisonment with or without hard labor for not more than two years.]

(5) In the construction of the common law, as enlarged by the statutes mentioned in the text, it appears, for mariners to seize the captain, put him on shore against his will, and afterwards employ the ship to their use, is piracy. 2 East, P. C. 796. And embezzling a ship's anchor and cable is piracy, though the master of the vessel concur in it, and though the object is to defraud the underwriters, not the insurers. Russ, and R. C. C. 123. Where the master of a vessel insured the ship and cargo, landed the goods, and, on the destruction of the former, protested both as lost, with intent to defraud the owners and insurers, this was holden to be a mere breach of trust and no felony, because there was no determination of the special authority with which the defenant was intrusted. 2 East, P. C. 776. The rules as to larceny will here apply.]

ties at sea against any of his fellow-subjects, or shall assist an enemy on that element, is liable to be tried and convicted as a pirate. (6)

These are 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. We shall proceed in the next chapter to consider offences which more immediately affect the sovereign executive power of our own particular state, or the king and government; which species of crime branches itself into a much larger extent than either of those which we have already treated.

CHAPTER VI.

OF HIGH TREASON.

THE third general division of crimes consists of such as more especially affect the supreme executive power, or the king and his government; which amount either to a total renunciation of that allegiance, or at least to a criminal neglect of that duty, which is due from every subject to his sovereign. In a former part of these Commentaries (a) we had occasion to mention the nature of allegiance, as the tie or ligamen which binds every subject to be true and faithful to his Sovereign liege lord the king, in return for that protection which is afforded him; and truth and faith to bear of life and limb, and earthly honour; and not to know or hear of any ill intended him, without defending him therefrom. And this allegiance, we may remember, was distinguished into two species: the one natural and perpetual, which is inherent only in natives of the king's dominions; the other local and temporary, which is incident to aliens also. Every offence therefore, more immediately affecting the royal person, his crown, or dignity, is in some degree a breach of this duty of allegiance, whether natural or innate, or local and acquired by residence: and these may be distinguished into four kinds; 1. Treason. 2. Felonies injurious to the king's prerogative. 3. Præmunire. 4. Other misprisions and contempts. Of which crimes, the first and principal is that of treason.

*Treason, proditio, in its very name (which is borrowed from the [*75 ] French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror: (b) for treason is indeed a general appellation made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation: and the inferior so abuses that confidence, so forgets the obligations of duty, subjection

(a) Book I, ch. 10.

(6) [See 2 Haw. P. C. pp. 305, 461-465, 480, § 1. v. Cochrane, 3 D. and R. 679; 2 B. and C. 448.

(b) C. 1, § 7.

See also 5 Geo. IV, c. 113, § 9, and Forbes

The statute 9 Geo, IV c. 31, repeals so much of the 22 and 23 Car. II, c. 11, "as relates to any mariner laying violent hands on his commander, as therein mentioned." See also 9 Geo. IV, c. 84.]

Piracy is punished in the United States in the federal courts. The laws of congress prescribe what acts shall be punishable as piracy; and the act of April 30, 1790, 1 Stat. at Large, 113; that of May 15, 1820, 3 id. 300; that of August 8, 1846, 9 id. 73; and that of March 3, 1847, id. 175; are referred to for particulars. The act of 1820 makes the slave trade piracy. The act of March 3, 1819, which was only temporay, provided for the punishment of offences which were piracy by the laws of nations: as to which see U. S. v. Smith, 5 Wheat. 153; and U. S. v. Furlong, id. 184; The Mariana Flora, 11 id. 1. And as to piracy under the act of 1790, see U. S. v. Palmer, 3 Wheat. 610; U. S. v. Klintock, 5 id. 144; U. S. v. Furlong, id. 184. The slave trade is made piracy by English statutes. See statute 6 and 7 Vic. c. 98.