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 practised 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 c. 8, and repealed by 20 Hen.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 further 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 obeisance, against any stranger in amity, league, or truce, or under safe-conduct; and especially by attaching his person, or spoiling [70] 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.

statutes were

It is to be observed, that the suspending and repealing Some of those Acts of 14 and 20 Hen. VI., and also the reviving Act of only temporary. 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 V. But (however that may be) I apprehend it was finally repealed by the general statutes of Edward VI. and queen Mary, for abolishing new-created treasons; though Sir Matthew Hale seems to question it as to treasons com

2. Infringement of the rights of

punishable at the discretion of the three principal judges.

mitted 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 estaambassadors is blished 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 (2), or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void (3); and that all per

(g) 1 Hal. P. C. 267.

(2) "Or other public minister of a foreign prince or state."

(3) Where a British born subject employed as first chorister at the Portuguese ambassador's chapel, with a salary, rented and occupied a house, and let part of it in lodgings, and a distress was levied on his goods for a poor rate; it was held, that his goods were not protected by 7 Anne, c. 12, assuming him to be a domestic servant of the ambassador; Novellov. Toogood, 2 D. & R. 833; 1 B. & C. 554. So, where the wife of a foreign ambassador's secretary was arrested upon a writ issued against husband and wife, the court of King's Bench refused to quash the writ, though the husband swore, that before, and at the time of the arrest, he was in the actual employment of the ambassador, and in daily attendance upon him, in writing despatches and other official documents; English v. Caballero, 3 D. & R. 25.

See also, 1 Hawk. P. C. p. 8, § 5. A consul is not considered as a public minister, nor consequently privileged from arrest; Tidd, 197, and the cases

(h) See vol. I. page 253.

there collected. A person claiming privilege as a servant to an ambassador must be really, and bona fide, his menial and domestic servant at the time of the arrest; Flint v. De Loyant, 1 Tidd, 193; Heathfield v. Chilton, 4 Burr. 2015; Poitier v. Croza, 1 W. Bl. 48. He must also shew the nature of his service, and swear to the actual performance of it; Fontainer v. Heyl, 3 Burr. 1731. A land waiter at the Custom House cannot claim protection as such domestic servant; Masters v. Manby, 1 Burr. 401. Privilege from arrest was denied to the domestic physician of a public foreign minister, where it appeared to be a mere scheme to screen him from his debts; Lockwood v. Coysgarne, 3 Burr. 1676, The chaplain of an ambassador is not protected from arrest, if he performs no duty in the house; Seacomb v. Bowlney, 1 Wils. 20. Neither is the interpreter of an ambassador if he does not live in the house, Carolino's case, 1 Wils. 78. The English secretary of an ambassador was denied protection, because it appeared that he was purser of a ship

sons prosecuting, soliciting, or executing such process, being convicted by confession or the oath of one witness, before the *lord chancellor and the chief justices, or any two of 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 (i). 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.

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pirate is the

A

mankind, and

every govern

III. Lastly, the crime of piracy, or robbery and depreda- 3. Piracy. tion upon the high seas, is an offence against the universal enemy of all law of society; a pirate being, according to Sir Edward punishable by Coke (k), hostis humani generis. As therefore he has re- ment. nounced 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.

ciently deemed

ject, and felony

the common

law.

By the ancient common law, piracy, if committed by a sub- Piracy was an. ject, was held to be a species of treason, being contrary to treason in a sub his natural allegiance; and by an alien to be felony only: in an alien, by but now, since the statute of treasons, 25 Edw. III. c. 2, it is held to be only felony in a subject (). Formerly it was only cognizable by 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

various statutes.

taken away, unless by the judgment of his peers, or 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 (4).

[*72 ] *The offence of piracy, by common law, consists in commitIs now felony by ting those acts of robbery and depredation upon the high seas, which, if committed 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 W. III. c. 7, if any natural born subject commits any act of hostility upon (n) 1 Hawk. P. C. 100.

(4) By statute 39 Geo. III. c. 37, all offences committed upon the high seas shall be inquired of, &c. in like manner as treasons, &c. are directed to be by the statute 28 Hen. VIII. c. 15; and similar provisions are contained in the statutes 7 & 8 Geo. IV. c. 29; 7 & 8 Geo. IV. c. 30; 9 Geo. IV. c. 31; and 11 Geo. IV. & 1 W. IV. c. 66, with respect to the trial of offences within those acts respectively, committed within the jurisdiction of the Admiralty.

All offences, therefore, which come under the general denomination of piracy, are inquired of, tried, and determined before the judge of the Admiralty court, and two of the judges of the common law courts, under a commission of oyer and terminer; and in the indictment, no county is inserted in the margin as venue, but, instead of it, merely the words "Admiralty of England;" Archb. Cr. Pl. 22-3.

The offence must be proved to have been committed within the jurisdiction of the court of Admiralty; that is, upon some part of the sea not within the body of a county. All rivers in this country, until they flow past the farthest point of land next the sea, are within the jurisdiction of the common law courts, and not of the court of Admiralty; I Rol. R. 175; 3 Inst. 113; 3 T. R. 315. Nor does the Admiralty

jurisdiction extend to any haven, creek, arm of the sea, or other place within the body of a county; 3 Inst. 113; 1 Hawk. c. 37, § 11. Thus, where the sea flows in between two points of land in this country, a straight imaginary line being drawn from one point to the other, the courts of common law have jurisdiction over all offences committed within that limit; the court of Admiralty over all committed without it. See, however, Bruce's case, 2 Leach, 1093; 1 East's P. C. 368; R. & R. C. C. 243. But if a robbery is committed in creeks, harbours, ports, &c. in foreign countries, the court of Admiralty has jurisdiction over it, and such offence is, consequently, piracy. Rex v. Jemot, Comb. Cr. Pl. 233. Of offences committed on the coasts, beyond the low water mark, the Admiralty have exclusive jurisdiction; and between that and the high water mark, the court of Admiralty has jurisdiction of offences done on the water when the tide is in, and the courts of common law of offences committed upon the strand when the tide is out. All the other parts of the high sea are indisputably within the jurisdiction of the court of Admiralty. Matth. Dig. 13, 14; Archb. Cr. Pl. 232, 233.

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 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, and shall suffer death, whether he be principal, or merely accessary 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 anywise 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 and such accessaries to piracy as are described by the statute of king William, are declared to be principal pirates, and all pirates convicted by virtue of this Act are made felons without benefit of clergy. 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, 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 such only 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. Lastly, by statute 18 Geo. II. 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

[*73 ]