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for which the punishment is by fine and imprisonment. 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 (16); 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. * u i Siderf.168.
See Vol. III. pag. 139. w Scobell. 121,
(16) It is not intended by these general words to lay down that the of fence of keeping a brothel is not punishable by the temporal courts, for undoubtedly the keeping such a house is a nuisance at common law, and punishable as other nuisances. See post, p. 167. The proceedings in respect of them are much facilitated by the 25 G. 2, c. 36. by which it is enacted, that if two inhabitants of any parish or place, paying scot and lot therein, shall give notice in writing to the constable of any person keeping a bawdyhouse in such parish or place, the constable shall go with such inhabitants to a justice, and upon their making oath that they believe the notice to be true, and entering into a recognizance in 201. each to produce material evidence against the person for such offence, the constable shall enter into a recognizance in the sum of 301, to prosecute the same with effect, at the next sessions or assizes, as to such justice shall seem meet. Provision is made for the payment of the constable's expences in the prosecution, and also of iol. to each of such inhabitants by the overseers of the parish,
The party accused is to be brought by warrant before the magistrate, and bound over to appear at the next sessions or assizes; and the magistrate may also take security for his good behaviour in the mean time.
The indictment cannot be removed by the defendant to any other court; and upon the trial, if it shall be proved that he has appeared to act as the master or person having the management of the house, he shall be deemed to be the keeper, though he may not be the real owner.
But, before we quit this subject, we must take notice of 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. 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. (17)
y See Vol. I. pag. 458. ? Dalt. Just. ch. 11.
(17) The 7 Jac. 1. C. 4., as to this purpose, is repealed by the 50 G. 3. c. 51., which enacts, that the mother of a bastard child, chargeable to the parish, may, after the expiration of one calendar month from her delivery, be committed by two justices for a time not exceeding twelve calendar months, nor less than six weeks; but when she has been confined six weeks, any two justices at the petty sessions for the division, wherein the parish charged is situate, may discharge her from farther confinement upon their own knowledge, or on certificate from the keeper of the house of correction of her good behaviour, and of the reasonable expectation of her reformation.
CHAPTER THE FIFTH.
OF OFFENCES AGAINST THE LAW OF
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 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 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. 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 [ 67 ] principles of natural justice, in which all the learned of every contracting parties are equally conversant, and to which they are equally subject.
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
a Pf. 1. 1.9.
See Vol. I. p. 43.“
c Sp. L. b. 1. c. 3.
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 it's 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 it's 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", which is a 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 universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. (1)
See Vol. I. pag. 273.
(1) The word average has three significations : Ist, it means a partial loss of any thing insured. Thus, if the ship or goods, which are insured for a voyage, reach their destination, but are in some degree injured by any of the accidents insured against, this is an average loss, and the insurer is bound proportionately to compensate the insured. If, secondly, the master of a ship in distress throws overboard insured goods, with a view to preserve the whole ship and cargo, that is a total loss to the owner of those goods; but that loss so sustained for the general welfare is brought into a general average, and all who are concerned in the ship, freight, and cargo, must bear their proportional parts of it; which average loss so borne by them, their insurers, if they have any, must make good to them. This is a second meaning of the term. A third is that in which it signifies a small payment, which merchants who send goods in'the ships of other men make to the master, over and above the freight, for his personal care and
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 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 three kinds: 1. Violation of safe-conducts; 2. Infringement of the rights of embassadors; and, 3. Piracy.
1. As to the first, violation of safe-conducts or passports, expressly granted by the king or his embassadorse to the sub
See Vol. I. pag. 260.
attention to the goods entrusted to him. Park on Insurance, 160. 7th edit.
Demurrage is an allowance which freightors make to the master of a ship, for the time which he may be detained in port loading or unloading their goods beyond that stipulated in their agreement.
For an explanation of bottomry, see Vol. II. p. 457., and of ransom bills, Vol. III. p. 436. (6).