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bastard children

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 con

trary extreme of licentiousness, it was not thought proper to [*65 ]

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 in

jury (2) The having But, before we quit this subject, we must take notice of a branch of the the temporal punishment for having bastard children, consi

dered 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).

last mentioned offence.

(w) Scobell, 121.
(r) See vol. III. p. 139.

(y) See vol. I. p. 458.
(3) Dalt. Just. ch. 11.

of the other, after a separation thus ille- marriage continues, marrying again,
gally effected, would, it seems, be guilty while either party is living, is bigamy;
of bigamy; for it has been held that, Porter's case, Cro. Car. 461.
after a divorce à mensá et toro, as the (32) By the Poor Law Amendment

Act, 4 & 5 W. IV. c. 76, $ 69, all may be required to enter into a recog statutes relating to the affiliation of nizance for his appearance at the sesbastards born after the passing of that sions; and on refusing may be comAct, and to the punishment of the mo- mitted. ther or putative father, are repealed. By sect. 76, if payments ordered to

By sect. 70, all securities and re- be made by the putative father get into cognizances to indemnify parishes arrear, he may be proceeded against against children likely to be born bas- by distress of goods or attachment of tards are declared null and void ; and wages : all persons in custody for not giving And by sect. 57, every man who indemnity shall be discharged.

from and after the passing of this Act By sect. 71, bastards shall follow the shall marry a woman having a child or settlement of their mothers until the children at the time of such marriage, age of sixteen; and the mother of a whether such child or children be legitibastard child, while unmarried or a mute or illegitimate; shall be liable to widow, shall maintain it until the age maintain such child or children as a of sixteen.

part of his family, and shall be chargeBy sect. 72, if the mother of a bas- able with all relief, or the cost price tard child is not able to maintain it, thereof, granted to or on account of and it thereby becomes chargeable, the such child or children, until such child sessions, after notice to the putative fa- or children shall respectively attain the ther, may make an order upon him to age of sixteen, or until the death of reimburse the parish for its mainte- the mother of such child or children; nance until it is seven years old; but and such child or children shall, for no such order shall be made unless the the purposes of this Act, be deemed evidence of the mother is corroborated a part of such husband's family accordin some material particular by other ingly. testimony; and no part of the money “ The effect of this clause,” says paid by the putative father shall be ap- Mr. Archbold, in his edition of the plied to the maintenance of the mother. Statute, p. 93, n. (41), “is to ren

By sect. 73, no application for such der the husband punishable under the order shall be heard unless fourteen Vagrant Act, as an idle and disorderly days' previous notice has been or shall

person, if he refuse to support the have been given to the putative father ; wife's children. Before this statute a where the application is granted, the husband was not bound to maintain the costs of maintenance shall be calcu- illegitimate children of his wife by anolated from the birth of the child, if

ther man.

As to her legitimate chilwithin six months ; where the applica- dren, it was at one time holden that he tion is refused, the costs of the putative was bound provide for them; Rer v. father shall be paid by the parish. St. Botolph's, Aldgate, Foley, 42; Rer

By sect. 74, if the putative father v. Clentham, Foley, 39. But all the does not appear, pursuant to notice, more modern cases are otherwise; Rer the sessions may hear the case in his v. Benoire, 1 Bott. 379; case of Woodabsence.

ford and Lilburn, Ibid; Tubb v. Heni. By sect. 75, the putative father may son, 4 T. R., 118; Cooper v. Martin, be summoned before a magistrate, and, 4 East, 76." if suspected of intending to abscond,



the law of na.


tions must be

law of nature and reason.

offences against According to the method marked out in the preceding tions.cognizable chapter, we are next to consider the offences more immedi

ately 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 na- 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 (6). 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 na- In arbitrary states this law, wherever it contradicts or is the law of the not provided for by the municipal law of the country, is enstatutes enforc. forced by the royal power : but since, in England, no royal

tions is part of

ing it, are mere

(c) Sp. L. b. 1, c. 7.

(a) Ff. 1, 1, 9.
(b) See vol. I. page 43.


power can introduce a new law, or suspend the execution of declaratory 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 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 (d), 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).

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.



(1) By the 33 Geo. III. c. 66, it and securities for that purpose were ab. was enacted, that it was unlawful for solutely void ; and that every person any of his Majesty's subjects to ransom,

who entered into such a contract, or enter into any contract for ransom- should be subject to a penalty of 5001. ing, any ship or merchandize captured -CH. by an enemy; and that all contracts

as 1. violation of safe-conducts;


1. Violation of safe conducts, prohibited by magna charta,

subsequent statutes.

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.

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.

I. As to the first, violation of safe-conducts or passports,

expressly granted by the king or his ambassadors (e) to the and posesliable subjects of a foreign power in time of mutual war : or com

mitting 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 (1), 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

(e) See vol. I. page 260.
(f) 9 Hen. III. c. 70. See vol. I.

page 259, &e.

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