Commentaries Upon International Law

to act against their own nation, was a demonstration that "the government was no longer in his, but other hands, who "could not reasonably be presumed would allow that he had "still any right, or they that acted by his commission should "be dealt with, as if he still had a right; but that they "should be used, as if they acted by no commission, or what "is all one, a null or invalid one. Their pretending to be"lieve he has still a right, is no more an excuse in the case "of pyracy, than of treason, which every traytor may pre"tend to.

"As to the story of Antonio, the Doctor is (to suppose "no worse) abominably mistaken in the very foundation; "for they that suffered by the Spaniards as pyrates, were "French, who had not their commissions from Antonio, "but from their own king, as Albericus Gentilis, who "mentions this story, Lib. i. cap. 4, says, At ipsa Historia "vincat eos non fuisse Piratas, per literas quas Regis sui "ostendebant, cui Regi serviebant, non Antonio, etsi maxime pro Antonio, quod illos non tangebat. And Conestaggius, "who is the historian he refers to, and who has given 66 an excellent account of that war, says it was the royal navy of France (which is very improbable did act by any authority but that of the French king's) set out, as he "words it, Regiis sub Auspiciis, with which the Spanish fleet engaged, and had the good fortune, after a long and bloody fight, to rout it, and took above five hundred prisoners, of "which almost the fifth part were persons of quality, whom "the Spanish admiral was resolved to sacrifice as pyrates, "because the French king, without declaring war, had sent "them to the assistance of Antonio: against which proceedings the officers of the Spanish fleet murmured, and represented to their admiral, that they were not pyrates, "because they had the French king's commission; but "what they chiefly insisted on, was the ill consequence it "would be to themselves, who, if they fell into the hands "of the French, must expect the same usage. As to the "French king's assisting Antonio without declaring war,

they supposed, that before the sea fight, the two Crowns might be said to be in a state of war, by reason of frequent engagements they had in the Low Countries. This is "the account Conestaggius gives of it, which, how little it "is to the purpose the Doctor quoted it for, is so visible, "that there is no need of any words to shew it. But granting (as the Doctor supposeth) that Antonio never had any "right, or, at least, the Spaniards would never allow he had any, yet it is evident from the historian, that they allowed "him, during possession, the same privileges as the late King "had during the war in Ireland: and if the Spaniard, by "the law of nations, after Antonio was driven from his king"dom, might treat those that acted by his commission as pyrates, why may not the English deal after the same manner with those that act by the late King's commission, "since they look on him to be in the same condition as the Spaniards did on Antonio, without a kingdom, or right "to one? What difference can this make, that one had "never a right, and the other, tho' he had once a right, has "lost it?

"These two civilians, I believe, are the only persons, pretending to be lawyers, who are of opinion, that a king "without a kingdom, or right to one, has, by the Law of Nations, a right to grant commissions to privateers, especially if they are subjects (as they have acknowledged it) "to that king, against whom they, by their commissions, are " to act" (y).

This account is certainly tinged by the reporter's hatred of Jacobites, and very probably the arguments of Pinfold and Oldys are not fully reported; but after every deduction has been made in their favour, the reason of the thing must be allowed to preponderate greatly towards the position of Tindal, that these Privateers were jure gentium Pirates (z).

(y) Tindal's Essay, pp. 43, 8.

(2) The law respecting Privateers is discussed in the third volume of these Commentaries.

CHAPTER XXI.

RENVOI-EXTRADITION.

CCCLXIII. THE subject of this chapter seems to require a threefold division; for we have to consider

1. The Right of a State to dismiss foreigners commorant in her territories-sometimes called the right of Renvoi.

2. The Obligation of a State, under the general law, to surrender foreign subjects-or the Law of Extradition.

3. The Obligation of a State to surrender foreign subjects, in compliance with the provisions of Treaties of Extradition.

CCCLXIV. Every State is held to lie under an obligation to take charge of its natural subjects; it cannot therefore refuse to receive back citizens who have migrated in quest of food or employment into foreign countries. Correspondent with this obligation on the part of the State of the citizen, is the right of the State into which he has migrated to send the foreign citizen back to his own home.

This right is usually known in Law by the term Droit du Renvoi (a). At the same time it must be observed, that it

(a) Kent's Comment. vol. i. p. 36, and note.

Sir L. Jenkins, speaking of the demand made by the French Crown on behalf of a French subject, charged in an English port with having committed piracy on the high seas, says: "The matter of Renvoy being a thing quite disused among princes, and as every man by the usage of our European nations is justiciable in the place where the crime is committed, so are pyrates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they are taken.”— Vol. ii. p. 714.

Martens, 1. iii. c. iii. s. 91.

This right is now seldom exercised but in time of war. During the present war (1870) the French Government have expelled resident Germans.

ceases, where the citizen has been naturalized by express law, in the foreign country. And the right can hardly be held to exist where the naturalization has been effected by tacit permission. Martens thinks it would be desirable to define, by the terms of a positive treaty negotiated with every country, the cases in which the tie between the citizen and his native Government shall be held to be so severed as to destroy the obligation of receiving him again; and he observes, that the Law does not consider the character of the native subject, in this sense and for this purpose, as indelible.

This suggestion of Martens is founded upon the practice of many of the German States, who appear also to have considered the question with respect to the transmission, through intermediate States, of persons from the country in which they have been sojourning to the country of their birth (b).

CCCLXV. The right of a State to dismiss foreigners from its territories having been discussed, the obligation of a State to deliver up or surrender the subject of a foreign State on the demand of that State, is next to be considered (c).

With respect to citizens, not being fugitives from justice, but who are needed for the exigencies of their original country,

(b) Martens, 1. iii. c. iii. s. 91.

"En effet, le gouvernement de chaque État a toujours le droit de contraindre les étrangers qui se trouvent sur son territoire à en sortir, en les faisant conduire jusqu'aux frontières. Ce droit est fondé sur ce que l'étranger ne faisant pas partie de la nation, sa réception individuelle sur le territoire est de pure faculté, de simple tolérance, et nullement d'obligation. L'exercice de ce droit peut être soumis, sans doute, à certaines formes par les lois intérieures de chaque pays; mais le droit n'en existe pas moins, universellement reconnu et pratiqué. En France, aucune forme spéciale n'est prescrite aujourd'hui en cette matière; l'exercice de ce droit d'expulsion est totalement abandonné au pouvoir exécutif.”Ortolan, Diplom. de la Mer, 1. ii. c. xiv. p. 323.

The Law of Extradition, by Charles Egan: London, 1846. 1 Kent's Comment. 36, note.

Ortolan, Dipl. de la Mer, 1. i. c. xiv.

it has been already stated that International Law affords no pretext for their delivery.

With respect to fugitives from justice, the doctrine of the Roman Law was explicit on this point, ordering that every criminal should be remitted to his forum criminis : but the reason is given by Paul Voet:—

"Jure tamen civili notandum, remissionibus locum fuisse "de necessitate, ut reus ad locum ubi deliquit, sic petente "judice, fuerit mittendus, quod omnes judices uni subessent imperatori. Et omnes provinciæ Romanæ unitæ essent accessoriè, non principaliter" (d). "Moribus "nihilominus (non tamen Saxonicis) totius fere Christi"anismi, nisi ex humanitate, non sunt admissæ remissi"ones, quo casu, remittenti magistratui cavendum per lit"teras reversoriales, ne actus jurisdictioni remittentis ullum pariat præjudicium. Id quod etiam in nostris Provinciis "Unitis est receptum. Neque enim Provinciæ Fœderatæ "uni supremo parent” (e).

CCCLXVI. Though the reason for this remission of criminals arose from the peculiar condition of universality incident to the Roman Empire, there is not wanting the authority of great jurists (f) to support as maxims of

(f) Grotius, 1. ii. c. xxi. s. 3, 4, 5: "Veniamus ad quæstionem alteram de receptu adversus pœnas. Poenas, ut ante diximus, naturaliter cuivis, cui nihil simile objici potest, exigere licet. Institutis civitatibus id quidem convenit, ut singulorum delicta, quæ ipsorum cœtum proprie spectant, ipsis ipsarumque rectoribus pro arbitrio punienda aut dissimulanda relinquerentur.

"At non etiam jus tam plenum illis concessum est in delictis, quæ ad societatem humanam aliquo modo pertinent, quæ persequi ita civitatibus aliis earumve rectoribus jus est, quomodo in civitatibus singulis de quibusdam delictis actio datur popularis: multoque minus illud plenum arbitrium habent in delictis, quibus alia civitas aut ejus rector peculiariter læsus est, et quo proinde nomine ille illave ob dignitatem aut securitatem suam jus habent pœnæ exigendæ, secundum ea quæ ante

« Previous Continue »

Books

Commentaries Upon International Law, Volume 1