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keeping one day in seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to the state, considered merely as a civil institution. It humanizes the manners of the lower classes; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness: it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker. And therefore the laws of king Athelstan forbad all merchandizing on the Lord's day, under very severe penalties. And by the statute 27 [*72] Hen. 6, c. 5, no fair or market shall be held on the principal festivals, Good Friday, or any Sunday (except the four Sundays in harvest), on pain of forfeiting the goods exposed to sale. And since, by the statute 1 Car. 1, c. 1 (t), no persons shall assemble out of their own parishes, for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or bearbaiting, interludes, plays, or other unlawful exercises, or pastimes; on pain that every offender shall pay 3s. 4d. to the poor. This statute does not prohibit, but rather impliedly allows to persons, any innocent recreation or amusement, within their respective parishes, even on the Lord's day, after divine service is over. But by statute 29 Car. 2, c. 7 (u), no person (x) is allowed to work on the Lord's day, or use any boat or barge, or expose any goods to sale; except meat (y) in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of 5s. Nor shall any drover, carrier, or the like, travel upon that day, under a penalty of 20s. (z). (638)

X. Indecent beha

* X. Lastly, any person who is guilty of riotous, violent, or inde[*73] cent behaviour in church, or in any place of religious worship duly certified under 18 & 19 Vict. c. 81, whether during the celebraviour in church. tion of divine service or at any other time, or in any churchyard or burial ground, or who shall molest the clergyman or minister, is liable to fine and imprisonment (a).

(t) See 26 & 27 Vict. c. 125.

(u) A person can commit but one offence against this statute on the same day. Crepps v. Durden, 1 Smith, L. C. 6th ed. 666.

(x) A farmer is not within the statute, Reg. v. Silvester, 33 L. J. M. C. 79.

(y) Mackerel also may be sold on Sundays before and after divine service; 10 & 11 Will. 3, c. 24. As to the sale of liquors on Sunday, see 18 & 19 Vict. c. 118; 23 Vict. c. 27; 11 & 12 Vict. c. 49; 3 & 4 Vict. c. 61.

See as to the making and selling of bread within the city of London and liberties thereof, and the weekly bills of mortality, 3 Geo. 4, c. 106; without those limits, 6 & 7 Will. 4, c. 37.

As to killing game on Sunday, see 1 & 2 Will. 4, c. 32, s. 3. The 21 Geo. 3, c. 49, was passed to restrain an indecent practice, which had become prevalent in London and West

minster; it enacts, that if any house, room, or place is opened upon a Sunday for any public entertainment, or for debating upon any subject whatever, to which persons are admitted by money or tickets, the keeper of it shall forfeit 2007., the manager or president 100%., and the receiver of the money or tickets 50%.; and every person advertising, or printing an advertisement of such a meeting, shall forfeit 501. for every offence, to any person who will prosecute.

(2) By the 3 Car. 1, c. 1, no carrier with any horse, nor waggonman with any waggon, nor carrier with any cart, nor drover with any cattle, shall travel on Sunday, on pain of 208.

(a) 23 & 24 Vict. c. 32, s. 2. See 1 Mar, sess. 2, c. 3, ss. 2-4. See also stat. 52 Geo. 3, c. 155, s. 12.

(638) As to what constitutes works of necessity or charity, excepted from the various statutes punishing Sabbath desecration, see McClary v. Lowell, 44 Vt. 116; Com. v. Jacobus, 1 Leg. Gaz. Rep. (Penn.) 491; Crockett v. State, 33 Ind. 416; Morris v. State, 31 id. 189; Myers v. State, 1 Conn. 502; Com. v. Knox, 16 Mass. 76; Murray v. Com., 24 Penn. St. 270; State v. Goff, 20 Ark. 298.

VOL. II. -48

[*74]

*CHAPTER VI.

OFFENCES AGAINST THE LAW OF NATIONS.

ACCORDING to the method marked out in the preceding chapter, we are next to consider offences more immediately repugnant to that universal law of society, which regulates the mutual intercourse between one state and another; or, at all events, such of them as are particularly animadverted on by the English law. (639)

tions.

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilised inhabitants of the world (a); General observa- in order to decide disputes, to regulate 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 of them (b). This general law is founded upon the 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 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 with which [*75] 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 civilised world. Thus in mercantile questions, such as bills of exchange and the like: in marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law-merchant (d), which is a branch of the law of nations, is regularly and constantly adhered to. And whensoever international questions yet more momentous arise, 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.

(a) Dig. 1. 1, 9.

(b) Ante, vol. i. p. 36.

(c) Montesq. Sp. L. b. 1, c. 7.
(d) Ante, vol. i. p. 74.

(639) In the United States jurisdiction over such offenses is vested in the federal

courts.

But, though in civil transactions and questions of property between the subjects of different states, the law of nations, as adopted by the law of England, has much scope and extent, yet the present branch of our inquiries will fall within a narrow compass, since an offence 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 the whole states or nations; in which case recourse can only be had to war; which is an appeal * to [*76] 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 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 safeconducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy. (640)

I. Violation of safe-conducts or passports.

*

I. As to the first, violation of safe-conducts (e) or passports, expressly granted by the crown or its ambassadors (f) to the subjects of a foreign power in time of mutual war; or committing acts of hostility against such as are in amity, league, or truce with us, and 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 any such offence may, according to the writers upon the law of nations, constitute a just ground of 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 delinquent, but he [*77] 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 sovereign and the law: and, more especially, as it is one of the articles of magna carta, 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 (e) As to which see Phill. Intern. L. iii. 146, (f) See vol. i. p. 309. et seq.

(640) Any conduct in one of our citizens, or in a foreigner within our borders, tending to involve our government in difficulty with a foreign power, is an offense for which an indictment can be maintained. Of this nature are endeavors to excite a revolt against a government at peace with ours; and such, also, in a time of war between our government and another, are the violation of safe conducts or passports given under authority of ours to an enemy. See 1 Bish. Crim. Law, § 484. See, also, Act of Congress, April 30, 1790, § 28.

by indictment in the name of the sovereign, whose honour is more particularly engaged in supporting his own safe-conduct (g).

II. Offences against ambassadors.

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 (h). It may here be sufficient to remark, that the common law of England recognizes them in their full extent, by immediately stopping legal process sued out through the ignorance or rashness of individuals, which may trench 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, severe penalties have been attached to any breach of it by the statute law (i). (641)

III. Lastly, the crime of piracy (k), 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 (1), hostis humani generis. As therefore he *has renounced the benefits of society and government, III. Piracy. [*78] and has reduced himself afresh to the savage state of nature, by declaring war against mankind, mankind must declare war against him; so that every community has 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 inflict, for an invasion of his person or property. (642)

(g) "The grantor of the safe conduct tacitly pledges himself to protect the grantee and to punish any person subject to his command, who may violate it," Phill. Intern. L. iii. 147. Several ancient statutes upon the above subject are repealed by 26 & 27 Vict. c. 125.

(h) Ante, vol. i. p. 301.
(i) Ante, vol. i. p. 304.

(k) See R. v. Golding, 12 St. Tr. 1270.
(2) 3 Inst. 113.

(641) See ante, vol. i, note 82. Ambassadors and their attendants are exempted from all responsibility to our laws for crimes committed by them. See Schooner Ex. v. McFaddon, 7 Cranch, 116; Respublica v. De Longchamps, 1 Dall. 111; The State v. De La Foret, 2 Nott & McCord (S. C.), 217. And this exemption is held to protect the ambassador while coming, remaining, and going; and also to extend to one not sent to us, but passing through our territory, on his way to or from another country. See Dupont v. Pichon, 4 Dall. 321; 1 Kent's Com. 38.

If any person shall in any manner infract the law of nations by offering violence to the person of an ambassador or other public minister, such person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court. 1 Bright. Dig. 41; 1 Stat. at Large, 117, § 28. It is held to be no defense, upon an indictment under this provision, that the defendant was ignorant of the public character of the minister. U. S. v. Liddle, 4 Wash. C. C. 209; U. S. v. Ortega, id. 531.

The only remedy for the misbehavior of an ambassador is to discharge him and send him home. See 1 Kent's Com. 38, 39; 1 Bish. Crim. Law, § 126.

(642) By the law of nations a pirate is one who roves the sea in an armed vessel, without a commission from any State, upon his own authority, for the purpose of seizing by force and appropriating any vessel he may meet. United States v. Baker, 5 Black. C. C. 6. And see Davison v. Seal-skins, 2 Paine, 324; United States v. Smith, 5 Wheat. 153.

In the United States, piracy is punishable only in the federal courts, and under a statute enacted by congress. See Acts of Congress, April 30, 1790, chap. 9, § 8; Act March 3, 1819, chap. 76, § 5; Act May 15, 1820, chap. 113, § 3; Act August 8, 1846, chap. 98, § 5; Act

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, since the statute of treason, 25 Edw. 3, st. 5, c. 2, it was held to be only felony in a subject (m). Formerly it was only cognisable by the admiralty courts, the proceedings in which were mainly regulated by the rules of the civil law (n). 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 the common law of the land, the statute 28 Hen. 8, c. 15, established a new jurisdiction for this purpose, proceeding according to the course of the common law, of which we shall say more hereafter.

*

The offence of piracy, at common law, consists in committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there (o). But, by statute, some other offences are made piracy also: as by statute 11 & 12 Will. 3, c. 7 (p), if any natural born subject commits any act of hostility upon the high seas, against others of her 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 [*79] construed piracy in a subject. And further, 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 endeavouring to make a revolt on board; shall, for each of these offences, be adjudged a pirate, felon, and robber. (643) By the statute 8 Geo. 1, c. 24 (g), 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 forcibly boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods overboard, shall be deemed piracy. Also, by statute 18 Geo. 2, c. 30, any natural born subject, or denizen, who in time of war shall commit hostilities at sea against any of his fellow-subjects, or shall assist an enemy on that element, is liable to be tried and convicted as

(m) 3 Inst. 113.

(n) 1 Hawk. P. C. 98.

(0) 1 Hawk. P. C. 100. Piracy at common law seems now to be punishable in like manner as if the act had been done upon land. Russ. Cr. 4th ed. i. 147 n.

(p) Several sections of which enactments (viz., ss. 1—6, 13 and 15) are repealed by 30 & 31 Vict. c. 59.

(2) Made perpetual by 2 Geo. 2, c. 28, s. 7, and see 30 & 31 Vict. c. 59.

March 3, 1847, chap. 51; Act August 5, 1861, chap. 48. The act of 1820 makes the slave trade piracy.

Robbery on the high seas is piracy by the act of congress, as well as by the law of nations. See United States v. Smith, 5 Wheat. 153; United States v. Brig Malek Adhel, 2 How. 210.

(643) No commands from a superior officer will justify a subordinate in the commission of what the latter knows to be piracy. United States v. Jones, 3 Wash. C. C. 209.

A confederacy by citizens of this country, whether on land or on board of an American ship, with such as are sea-robbers or pirates by the law of nations or the yielding of a vessel by a citizen to them, is within the provisions of the act of April 30, 1790, chap. 9, § 8. So, also, any intercourse with pirates calculated to promote their views, or an endeavor by a mariner to corrupt the master so as to induce him to go over to them. United States v. Howard, 3 Wash. C. C. 340.

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