[*65 ] The having bastard children last mentioned offence. 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 (w). 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 (x). But, before we quit this subject, we must take notice of a branch of the the temporal punishment 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 (y). By the statute 18 Eliz. c. 3, two justices may take order for the punishment of the mother and reputed father; but what that punishment shall be is not therein ascertained; though the contemporary exposition was, that a corporal punishment was intended (z). By statute 7 Jac. I. c. 4, a specific punishment, viz. commitment to the house of correction, is inflicted on the woman only. But in both cases, it seems that the penalty can only be inflicted, if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered as a degree of punishment. By the last-mentioned statute the justices may commit the mother to the house of correction, there to be punished and set on work for one year; and, in case of a second offence, till she find sureties never to offend again (32). (w) Scobell, 121. (x) See vol. III. p. 139. of the other, after a separation thus ille- (y) See vol. I. p. 458. marriage continues, marrying again, Act, 4 & 5 W. IV. c. 76, § 69, all statutes relating to the affiliation of bastards born after the passing of that Act, and to the punishment of the mother or putative father, are repealed. By sect. 70, all securities and recognizances to indemnify parishes against children likely to be born bastards are declared null and void; and all persons in custody for not giving indemnity shall be discharged. By sect. 71, bastards shall follow the settlement of their mothers until the age of sixteen; and the mother of a bastard child, while unmarried or a widow, shall maintain it until the age of sixteen. By sect. 72, if the mother of a bastard child is not able to maintain it, and it thereby becomes chargeable, the sessions, after notice to the putative father, may make an order upon him to reimburse the parish for its maintenance until it is seven years old; but no such order shall be made unless the evidence of the mother is corroborated in some material particular by other testimony; and no part of the money paid by the putative father shall be applied to the maintenance of the mother. By sect. 73, no application for such order shall be heard unless fourteen days' previous notice has been or shall have been given to the putative father; where the application is granted, the costs of maintenance shall be calculated from the birth of the child, if within six months; where the application is refused, the costs of the putative father shall be paid by the parish. By sect. 74, if the putative father does not appear, pursuant to notice, the sessions may hear the case in his absence. By sect. 75, the putative father may be summoned before a magistrate, and, if suspected of intending to abscond, may be required to enter into a recog nizance for his appearance at the sessions; and on refusing may be committed. By sect. 76, if payments ordered to be made by the putative father get into arrear, he may be proceeded against by distress of goods or attachment of wages: And by sect. 57, every man who from and after the passing of this Act shall marry a woman having a child or children at the time of such marriage, whether such child or children be legiti mate or illegitimate; shall be liable to maintain such child or children as a part of his family, and shall be chargeable with all relief, or the cost price thereof, granted to or on account of such child or children, until such child or children shall respectively attain the age of sixteen, or until the death of the mother of such child or children; and such child or children shall, for the purposes of this Act, be deemed a part of such husband's family accordingly. "The effect of this clause," says Mr. Archbold, in his edition of the Statute, p. 93, n. (41), "is to render the husband punishable under the Vagrant Act, as an idle and disorderly person, if he refuse to support the wife's children. Before this statute a husband was not bound to maintain the illegitimate children of his wife by another man. As to her legitimate children, it was at one time holden that he was bound to provide for them; Rex v. St. Botolph's, Aldgate, Foley, 42; Rex v. Clentham, Foley, 39. But all the more modern cases are otherwise; Rex v. Benoire, 1 Bott. 379; case of Woodford and Lilburn, Ibid; Tubb v. Henison, 4 T. R., 118; Cooper v. Martin, 4 East, 76." 66. CHAPTER V. OF OFFENCES AGAINST THE LAW OF NATIONS. the law of na by the English law. Offences against ACCORDING to the method marked out in the preceding tions cognizable 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 are particularly animadverted on, as such, by the English law. The law of nations must be law of nature and reason. The law of nations is a system of rules, deducible by naconstrued by the tural 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 [*67] 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. The law of nations is part of In arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enstatutes enfore forced by the royal power: but since, in England, no royal the law of the land: and the ing it, are mere (a) Ff. 1, 1, 9. (b) See vol. I. page 43. (c) Sp. L. b. 1, c. 7. the common power can introduce a new law, or suspend the execution of ly declaratory of the old, therefore the law of nations, wherever any question law. arises which is properly the object of its jurisdiction, is here common law, and is held to adopted in its full extent by the the law of na zable by the only when com vate subjects; But, though in civil transactions and questions of property offences against between the subjects of different states, the law of nations has tions are cognimuch scope and extent, as adopted by the law of England: municipal law, yet the present branch of our inquiries will fall *within a nar- mitted by prirow compass, as offences against the law of nations can rarely[ *68] be the obiect 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 (d) See vol. I. page 273. (1) By the 33 Geo. III. c. 66, it was enacted, that it was unlawful for any of his Majesty's subjects to ransom, or enter into any contract for ransoming, any ship or merchandize captured by an enemy; and that all contracts and securities for that purpose were ab safe-conducts; 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 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 allows himself an accomplice or abettor of his subject's crime, and draws upon his community the calamities of foreign war. as 1. violation of The principal offences against the law of nations, animad2. Infringement verted on as such by the municipal laws of England, are of ambassadors; 3. three kinds; 1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; and 3. Piracy. of the rights of Piracy. 1. Violation of safe-conducts, prohibited by magna charta, by subsequent statutes. I. As to the first, violation of safe-conducts or passports, expressly granted by the king or his ambassadors (e) to the and punishable 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 safeconduct 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 [*69] *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 (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 |