« НазадПродовжити »
[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, whenever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and held to be the law of the land. Hence 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. 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 accom[plice or abettor of his subject's crime, and draws upon his community the calamities of foreign war (c).]
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, are in respect of offences of three kinds : I. Violation of safe-conducts ; II. Infringement of the rights of ambassadors; and, III. Piracy.
I. [As to the first, violation of the safe-conducts or passports, expressly granted by the sovereign or his ambassadors, to the subjects of a foreign power, in time of mutual war; or the committing acts of hostility against such as are in amity, league, or truce with us, who are,
, in this case, 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 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, that foreign merchants should be entitled
(c) It has not been thought convenient to disturb the general statement on this subject which is given in the text as originally laid down by Blackstone.
But it may be worth notice here, that since his time attempts have more than once been made by international arrangements to refer such disputes, as are of a nature to admit of amicable settlement, to peaceful arbitration, in place of an appeal to war. Thus, in the year 1861, certain ves. sels, afterwards used against the United States by the Confederates of the South, having been built
and equipped in this country, and allowed to escape from our ports, it was insisted by the United States that, not having used due diligence in the matter, we were liable for the damages they had sustained by the depredations of these ships. This question was by treaty referred to the arbitrament of certain of the European powers, and it was by them decided, at a sitting held at Geneva in the year 1872, that we
nsible for such dan ges to the extent of about three millions sterling
[to safe-conduct and security throughout the kingdom (d); —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 sovereign ; whose honour is more particularly engaged in supporting his own safeconduct. 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, the 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 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 antient marine law then practised in the admiral's court. 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 it was 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 further enacted by the statute 31 Hen. VI. c. 4, that if any of the king's subjects offend, upon the sea or in any port within the king's obeisance, against any stranger in amity, league or truce, or under safe-conduct,--and especially by attacking his person, or spoiling him or robbing him of his goods ;-the lord chancellor, (with any of the justices of either the King's Bench or Common Pleas,) may cause full restitution and amends to be made to the party injured.
It is to be observed, that the suspending and repealing Acts of the fourteenth and twentieth years of Henry the
(a) 9 Hen. 3, c. 30.
(sixth, and also the reviving Act of the twenty-ninth of the same monarch, were only temporary; so that it should seem that, after the expiration of them all, the statute of the second year of Henry the fifth 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 of the statute of 2 Hen. V. st. 1, c. 6. And however that may be, this statute was finally repealed by the general statutes of Edward the sixth, and Queen Mary, for abolishing new created treasons (e); though Sir Matthew Hale seems to question it, as to treason committed on the sea (f).] But the statute of 31 Hen. VI. remained in force on our statute book till repealed as obsolete in the year 1863.
II. As to the rights of ambassadors, they have formerly been treated of at large, in that part of this work in which we discussed the nature and extent of the royal prerogative. And it may be recollected, that any violation of them amounts, by express legislative enactment, to a crime of a highly penal nature (9).
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, hostis humani generis (h). 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,
(@) Vide sup. p. 162, and 4 BI. Com. p. 70.
(f) i Hale, P. C. 267.
(9) Vide sap. vol. II. p. 484.
[in a state of nature, have been otherwise entitled to do, for any invasion of his person or personal property.
By the antient common law, piracy if committed by an alien was felony, but if by a subject, was held to be a species of treason, being contrary to his natural allegiance; but now, since the statute of treasons, 25 Edw. III. c. 2, it is held to amount only to an ordinary felony (i). At the common law, it consisted in committing those acts of robbery and depredation upon the high seas, or other places where the admiralty has jurisdiction, which, if committed upon land, would have amounted to felony there (k). But, by statute, some other offences have been made piracy also; as, by stat. 11 & 12 Will. III. c. 7, made perpetual by 6 Geo. I. c. 19, 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 be only an act of war in an alien, shall be construed piracy in a subject. And further (by the same Act), 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 his ship, or confining him, or making or endeavouring to make a revolt on board (1); shall be adjudged a pirate, felon, and robber. Again, by the statute 8 Geo. I. c. 24, made perpetual by 2 Geo. II. c. 28, s. 7, the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in anywise consulting, combining, confederating, or corresponding with them; or the forcibly boarding any merchant vessel, (though without seizing or carrying her
(i) 3 Inst. 113.
(k) Hawk. P. C. b. 1, c. 37. As to the admiralty jurisdiction, vide sup. vol. 1. p. 116; et post, c. XIV.
(1) See R. v. M'Gregor, 1 Car. & Kir. 430; R. r. Hastings, 1 M. C. C. R. 82.