to sustain the conclusiveness of foreign judgments, although there is considerable diversity of opinion among the judges."

The principles of Public Law sustain the opinion of those who hold that a foreign judgment ought not, as a general rule, to be examined, even when it is sought to be enforced by proceedings in Courts of a different country. It is highly convenient that each country should give credit and effect to the judicial acts of other countries, for the purpose of facilitating the administration of justice, on which the common peace, good order, and welfare of human society in general, very much depend. And this rule is calculated to obviate differences. and misunderstandings between nations. In truth the administration of justice is a matter not merely municipal, but of universal concern, and even necessity, since without it even mere natural society could scarcely exist; and an enlarged view of civil society shows, as we have seen, that the division of mankind into nations and states is a subordinate institution, arising from political, administrative, and physical causes, and therefore it does not supersede any of the principles of universal civil society. Consequently, the jurisdiction of all countries ought, as far as possible, to operate harmoniously for one end-the administration of justice in that universal society, which requires that the Courts of different countries should not defeat and discountenance, but rather assist each other.

These important doctrines must, however, be understood with the qualification already adverted to, that each country is the judge of what its internal interests require, and therefore entitled to reject the decisions of foreign Courts when contrary to its own policy, and the welfare of its own citizens.

CHAPTER XVII.

OF THE CONFLICT OF LAWS REGARDING CRIMES AND OFFENCES.-EXTRADITION.-REFUGEES.· -GENERAL REFLECTIONS ON THE CONFLICT

OF LAWS.

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By primary natural law alone, without regard to the institution of civil society, there is, as Grotius says, a right of punishing violations of the law, though that law does not determine in what person the right is vested. This, indeed, is a consequence of the right of selfdefence so broadly laid down by Florentinus in the Pandects. For the same natural law which gives the precepts honeste vivere, alterum non lædere, suum cuique tribuere, authorizes every man to defend his own rights against those who violate them; and on the same principle he is justified in taking the necessary measures to prevent or discourage future injuries to himself or others by punishing the wrong-doer. And from this right of persons having no common superior to protect themselves, not only by defence against attacks, but by punishing wrong-doers, the right of war is in part derived. In the civil state, and under municipal laws, the right of punishment assumes a different form. A penalty or punishment under Municipal Law is neatly defined by Voet to be-Delicti coercitio, adeoque malum passionis propter malum actionis. It is more fully defined by Boehmerus to be an evil suffered, which is inflicted by the authority of a superior, on account of an offence, and for the common benefit of the citizens. And Grotius holds the same doctrine. Punishment is inflicted by the authority of a superior, because, under Municipal Law, the right of punishing offences passes from individuals to the State. Thus Paulus says-Non est singulis concedendum quod per magistratum publice fieri potest.h

a Grot. Droit de la G. liv. 2, c. 20, § 31; Pufend. Droit des Gens, liv. 8, ch. 3, § 4, note 3, Barbeyrac.

b L. 3, ff. De Just. et Jur. And see l. 45, § 4, ff. Ad Leg. Aquil.; 1. 8, § 2, ff. Quod Metus Causa.

L. 10, § 1, De Just. et Jur.

d Grotius, Droit de la G. 1. 2, ch. 20, § 1, 2, 3, 37.

e Voet ad Pand. tit. De Pænis, § 1; Boehmer. Elem. Jur. Crim. § 2, c. 1.

see Mathæus de Crimin. tit. 8, § 1, p. 754.

f Grot. ubi sup. § 1, 4, 9.

And

Pufend. Droit des Gens, liv. 8, ch. 3, § 4, note 3 (Barbeyrac); liv. 8, ch. 6, § 8.

h L. 156, ff. de Reg. Jur.; 1. 13, ff. Quod Metus Causa; Gravina, Histor. de Ort. et Progress. Jur. Civ. ch. 91.

We may conclude from these principles and authorities, that punishments are of natural law and juris gentium, though the form in which the right of punishing offences exists in civil society, is given by municipal law. This position will afford us a key to the jurisprudence of the conflict of laws regarding crimes and offences. That conflict arises in two ways, that is to say, 1st. When an offence is committed in one country against the laws of another; and 2ndly. When a person has committed an offence and been convicted and sentenced in one country, and has withdrawn himself to or is situated in another. I do not mention the case of a foreigner violating the laws of the country where he is, because, as we have seen, a foreigner becomes subject to the laws of the country as the citizens of that country are, and therefore no conflict arises.i

We have seen that the prohibitory laws of a country may follow its subjects wherever they go, so that acts done by them in foreign parts are affected by those laws. And this principle extends as well to criminal as to civil laws. Thus, by the law of England, treasons committed by subjects of the British crown, out of the realm, may be tried in the Queen's Bench, in any county where the court sits, or under a special commission of oyer and terminer, in any county within the realm, as the crown shall direct. This is not contrary to international law, because though a foreigner becomes subject to the laws and jurisdiction of the country where he is, so long as he remains there, yet this position must be understood as not affecting the maxim nemo potest exuere patriam. Therefore, by the law of England, if the crown send a writ to any subject when abroad, commanding his return, and the subject disobey, it is a high contempt of the royal prerogative, for which the offender's lands shall be seized till he return, and then he is liable to fine and imprisonment." There are, indeed, laws of his own country which a man is not bound by while he remains abroad; and this is one reason why foreigners are generally subject to the laws of the country where they are sojourning. But though the jurisdiction of every sovereign state is exclusive, within its own territories, of every other temporal jurisdiction, yet that principle does not require any state to allow its subjects to violate its laws by

And see Merlin, Repertoire, art. Souvraineté, § 4, vol. 16, p. 397.
Sussex Peerage case, 11 Clarke & Fin.

Suarez, De Legib. lib. 3, cap. 32.

Stat. 26 Hen. VIII. c. 13; 35 Hen. VIII. c. 2; 5 & 6 Edw. VI. c. 11.

n Bla. Com. b. 1, c. 7, p. 265, 266; Hawkins, Pleas of the Crown, 22.

» Vattel, Droit des Gens, liv. 2, ch. 8, § 107-109.

P St. Alphons. Lig. Theolog. Moral. lib. 1, tract. 2, cap. 2, dub. 2, § 156, and the authorities cited there.

going abroad, and there committing the offence, though it be no offence by the laws of the country where the act was done. Every state may, therefore, absolutely forbid its subjects to do any given thing wherever they may be, provided it do not enforce that prohibition by any act of jurisdiction exercised out of its own territories, and within those of another state. And the subject so offending may be compelled to return home, or punished on his contumaciously remaining abroad, by process against his property situated in his own country."

These principles will assist us to understand the application of penal laws to persons who are subjects of more than one country at the same time. It is for the municipal law of each country to determine whether and how far its subjects shall be permitted to throw off their allegiance, and become citizens or subjects of other states. Thus, by the English Law, a natural-born subject owes an allegiance intrinsic and perpetual, which cannot be divested by any act of his own.' And Chancellor Kent, after a full discussion of the subject, holds that the same rule prevails in the United States of America. Thus a natural-born subject of England or America, being incapable of throwing off his allegiance, is always amenable for criminal acts against the law of his own country. It follows, that if any foreign state naturalize him, he receives such naturalization subject to his prior and therefore superior obligation to his own country. Hence arises a conflict of duties, which may, as Lord Hale observes, entangle him in difficulties. "If," says Chancellor Kent, "there should be a war between his parent state and the one to which he has attached himself, he must not arm himself against his parent state; and if he be recalled by his native government, he must return or incur the pains and penalties of a contempt. Under these disabilities, all the civilized nations of Europe adopt (each according to its own laws) the natural-born subjects of other countries."" It follows that neither country can complain, if the other duly enforces its rights over such a person. To prevent these difficulties, it is most convenient not to naturalize strangers, except so far as they can throw off their obligations to their parent state. And as there is nothing in Public Law against the power of a subject to emigrate and throw off his native

¶ Voet ad Pand. lib. 1, tit. 4, par. 2, De Statutis, § 9.

r

Story's case, Dyer, 298 b, 300 b; Bla. Com. b. 1, pp. 370, 371; 1 Hale, Pleas of the Crown, 68; Foster, Crown Law, 59.

country altogether, this is a matter regulated by the municipal laws of each state. Thus, by the French law, a French subject loses his quality of a Frenchman by being naturalized in another country," for the French law holds that no one can have two countries."

The possession of property may make a person liable to the criminal law of a foreign country, even though he be not within its territories. Every state is at liberty to grant or refuse to foreigners the privilege of holding land or other immovable property in its dominions. If it do grant that privilege, the property of such strangers is subject to the laws and jurisdiction and taxes of the country. For the jurisdiction of the sovereign power extends to the whole territory, and it would be impossible to except any portions because they are held by foreigners. And as the sovereign may refuse to foreigners the faculty of possessing lands within the state, so that faculty may be granted subject to express or implied conditions. It follows that the immovable property of foreigners may be liable to forfeiture, or other process of law, for offences against the law of the country where it is situated, in the same manner as it would be if possessed by subjects of that country. There is in this no violation of the sovereign rights of the state to which such foreigner belongs; for that state may forbid its subjects to hold land elsewhere, and if it permit them to do so, that permission must be subject to the lex loci rei sitæ.

We have now to consider whether a crime committed in one state, against the law of that state, may be punished on demand in another state where the offender is afterwards found.

The English authorities decide this question in the negative, holding the general rule that the penal laws of one country cannot be taken notice of in another, for penal laws of foreign countries are strictly local. And the common law considers crimes as altogether local, and cognizable and punishable exclusively in the country where they are committed, though we have seen an important exception to this position, introduced by statute regarding treasons committed in foreign countries by subjects of the British Crown. The same rule prevails in the United States of America. And so far as crimes and offences are * Grotius, Dr. de la G. 1. 2, ch. 5, § 24; Pufend. Droit des Gens, 1. 8, ch. 2, § 2, 3; Vattel, Droit des Gens, liv. 1, ch. 19, § 220, 223, 225.

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Ogden v. Folliott, 3 T. R. 733, 734; Wolff v. Oxholm, 6 M. & S. 99.

d Story, Conflict of Laws, § 620.

• Ibi, § 621.