laws of the United States, and that it had been the practice in both countries to try surrendered criminals for other offences; that the terms of a Treaty could not be modified by a purely domestic enactment of the British Parliament; and that in any case the Act of 1870, by its twenty-seventh section, was prevented from applying to the Treaty of 1842. In consequence of this disagreement the operation of the Treaty was for a time suspended, and the three men in custody were set free. In the month of August, however, the Foreign Office received information from the United States Government, that so far as they were concerned, no steps had been taken, or had been intended to be taken, with the view of putting Lawrence on his trial for any other offence. As to their claim of right so to do, they adhered to it. This communication, in the opinion of Lord Derby, altered the question from a practical to a theoretical one, and the operation of the Treaty was revived. Winslow and Gray in the meantime had left the country; but Brent was re-arrested, and surrendered unconditionally to the authorities of the United States (n).

The position taken up by the Americans in the controversy received much support in this country, especially in the House of Lords.

Their contention as to the express meaning of Article X. of the Treaty of 1842, and as to the inability of the Act of 1870 to affect it, seems to be unanswerable. The question as to the tacit understanding and practice that prevailed with regard to Extradition is an issue rather of fact than of law.

CCCLXXXIXD. A Royal Commission on Extradition was appointed in 1877, and their Report was published in May 1878.

The opinion of the Commissioners was in favour of con

(n) The question has been considered with much care and ability in a letter from the Hon. W. B. Lawrence.-Albany Law Journal, August 5,

siderably extending the practice of delivering up fugitive criminals. The Report commenced by laying down the proposition that the Extradition of fugitive criminals is founded on a twofold motive :-(1.) That it is the common interest of mankind that offences against person and property, offences which militate against the general well-being of society, should be repressed by punishment; and (2) that it is to the interest of the State into whose territory the criminal has come that he shall not remain at large therein.

On those grounds it was argued that we might reasonably claim from all civilized nations to unite with us in a system for the common benefit of all; but that nevertheless reciprocity is not a necessary element in the matter of Extradition. Extradition Treaties, it was advised, should no longer be held indispensable, but whilst retaining the power of the Crown to make such Treaties, statutory powers should be given to the proper authorities to deliver up fugitive criminals whose surrender is asked for, apart from the existence of any Treaty between this country and the State against whose laws the offence had been committed. Such statutory power was to be extended only to those foreign countries to which it should, from time to time, be declared by Order in Council to apply.

The Commissioners then proceed to make certain recommendations, of which the following are the most important:-

The stipulation, now usual in Extradition Treaties, that a criminal shall not be surrendered by the State of which he is a subject, should no longer be inserted.

The list of Extradition offences should include all those offences which it is the common interest of mankind to suppress; that is to say, offences against person and property, including in the latter category cases of fraud, the purpose of which is to obtain property or money, offences against the Bankruptcy Laws, forgery, and offences relating to coinage.

Offences of a local or political nature should be excluded, but a political motive should not be allowed to

give immunity to a criminal for a crime which in itself and apart from such motive would be classed as an Extradition offence.

Offences punishable by the law only of particular nations, and not universally, should be excluded. This country should not surrender a person for any offence not indictable under our own criminal laws, which are sufficiently comprehensive.

No objection should be made if a criminal surrendered for one offence be tried for another, provided that it be an Extradition offence. This latter proviso should be stipulated for, either generally in a Treaty or in each particular case of surrender.

As a precaution against the risk of a person being tried for a political offence after having been delivered up for an Extradition offence, the accused, on alleging such risk, should be allowed an inquiry, and the Executive should have a discretion, dependent on the result of the inquiry, to refuse a surrender without specific pledges against such a contingency.

Means should be provided for the arrest and re-delivery into custody of any person who, whilst in process of being extradited by one foreign State to another, passes through British territory and there escapes.

The Commissioners conclude by suggesting that the legislation that would be necessary if their recommendations were adopted should be embodied in a statute complete in itself, without reference to previous enactments (o).

(0) The recommendation that a person surrendered for one extradition offence should thereupon become justiciable for another, was disapproved of by Mr. Torrens, one of the Commissioners; but in other respects the report was unanimous.

PART THE FOURTH.

CHAPTER I.

INTERVENTION.

CCCXC. IN all systems of Private Jurisprudence, provision is made for placing upon the abstract Right of Individual Property such restrictions as the general safety may require. The maxim" expedit enim reipublicæ, ne "quis sua re male utatur," belongs to the law of all countries (a).

The Prætorian Interdict (b) of the Roman, the Injunction of the English Law, give effect to this principle by preventing the mischief from being done, instead of endeavouring to remedy it when done.

CCCXCI. Some analogous right or power must exist in the system of International Jurisprudence. "Neither," says Lord Bacon, "is the opinion of some of the schoolmen "to be received, that a war cannot justly be made but upon

(a) Inst. lib. i. viii. 22: "Chaque droit a ses limites: il est limité par les droits analogues de tous les membres d'une société.”—Ahrens, Cours de Droit naturel ou de Philosophie du Droit, p. 296. (Brux. 1844.)

(b) Among the principal instances in which individual property is subjected to restriction on account of the general good are the following:

Cautio damni infecti, Dig. xxxix. t. ii.

Actio de tigno juncto, Dig. xlvii. t. iii.

Interdictum de glande legenda, Dig. xliii. t. xxviii.

Actio aquæ pluvia arcendæ, Dig. xxxix. t. iii.

Interdictum de arboribus cædendis, Dig. xliii. t. xxvii.

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a precedent injury or provocation; for there is no question "but a just fear of an imminent danger, though there be no "blow given, is a lawful cause of a war" (c). The Right of Self-Defence incident to every State may in certain circumstances carry with it the necessity of intervening in the relations, and, to a certain extent, of controlling the conduct of another State; and this where the interest of the intervener is not immediately and directly, but mediately and indirectly, affected. This remark brings us to the consideration of the doctrine of INTERVENTION (d).

CCCXCII. And first of all it should be clearly understood that the Intervention of bodies of men, armed or to be armed, uncommissioned and unauthorised by the State to which they belong, in a war, domestic or foreign, of another State, has no warrant from International Law.

It has been already observed (e) that it is the duty of a State to restrain its subjects from invading the territory of another State; and the question when such an act on the part of subjects, though unauthorised by the State, may bring penal consequences upon it, has received some consideration.

It is a question to which the events of modern times have given great importance, and as to which, during the last half-century, the opinions of Statesmen, especially of this country, have undergone a material change.

That this duty of restraining her subjects is incumbent. upon a State, and that her inability to execute it cannot be alleged as a valid excuse or as a sufficient defence to the invaded State, are propositions which, strenuously contested as they were in 1818, will scarcely be controverted in 1879. The means which each State has provided for the purpose

(c) Essay on Empire.

(d) Günther, i. 287, ss. 8-12.

Heffter, 90.

Wheaton, Droit intern. t. i. pp. 77, 92.

Manning, Law of Nations, p. 97.

(e) Vide ante, s. ccxix. on the question Civitasne deliquerit an cives?