purpose, and would furnish ample occasion to disturb the peace of nations (x). Every sovereign has the right to permit or forbid the entrance of strangers into his territories and their residence therein, and to prescribe the terms on which such entrance or residence shall be permitted (y). Consequently, no sovereign is entitled to demand the expulsion or surrender of any person resident in the territories of another on any pretext whatever. Every state has a right to protect fugitives, and to grant an asylum to exiles. If this were otherwise, the condition of mankind would be lamentable, for the reach of imperial or popular despotism would be boundless. Charles 1 replied to the remonstrance of Lewis 13 respecting the Prince of Soubise, the chief of the Huguenots, who had fled to England; that Henry 4 had received Bothwell, who had attempted the life of James 1 (z). But it is needless to multiply precedents, for the right is proved by the authority of text writers (a); by the uniform practice of England, Holland, Switzerland, and the United States of America, acquiesced in by those most interested in opposing it; and by the conclusion of treaties for the mutual surrender of criminals, which, but for this right, would be wholly unnecessary and inopera (x) Bynk. Q. J. P. ii. 3. Cæterum qui summam potestatem desiderant in iis, qui legatos mittunt non solent distinguere, nec etiam distinguendum est, an eorum imperia ex justo titulo, an ex solâ injuriâ originem traxerit sufficit enim quod ad eos ad quos legati mittuntur supremâ potestate utantur. Recte Paschalius dixit in Legato, c. 12; Paucissima regna dominatusque memorari possunt, quorum initiis libera gentium suffragia causam dederint. Plura imperia vis enixa est quam electio. Prima fere fundamenta imperiorum sunt turbæ et factiones. In causis publicis utique expedit, uti possidetis ita possideatis: alioquin omnium imperiorum origines essent excutiendæ, justæ nempe sint necne: et sic demum pronunciandum, qui legatos mittunt, jure an injuriâ mittant. Quod valde esset inutile et gentium tranquillitati turbandæ insignem causam præberet. (y) Vatt. i. § 230-ii. §§ 94, 100, 114, 135. (z) Flass. ii. 407. (a) Grot. ii. 2, xvi.-ii. 5, xxv.-iii. 20, xli.; Puff. iii. 3, x. tive. The reception of fugitives is subject to the condition, that they shall not be allowed to use their asylum as a vantageground of hostilities against their country. To allow it would be an act of hostility on the part of the state that has received. them. Hence, when fugitives are armed bands, it is necessary to disarm and remove them to a distance from the frontier. Grotius has laid down a different rule with respect to criminal fugitives. But he is to be understood as speaking of the law of nature or the comity of nations, and not of the obligations of international law. He says (b), that "since sovereigns have the right of punishing offences which affect their honour or security, no foreign state ought to protect a fugitive who has been guilty of such an offence. But since it is not usual or convenient to allow any foreign power to enter the territory of a state with an armed force to seize an offender; the state in which he has taken refuge should either punish or surrender him, or at least compel him to leave the country. But, he adds, this right of demanding the surrender of criminals has been confined by the practice which has prevailed in most parts of Europe for some centuries, to offences of a political character, or of great enormity; it is usual to leave unnoticed offences of minor degree, unless it has been otherwise provided by treaty. Robbers and pirates when they have gathered such force as to be formidable, may with propriety be received and protected; for the interests of humanity require, that if it cannot be done otherwise, they may be turned from their evil ways by assurance of impunity." Now if the practice of surrendering criminals be referred to mutual consent or the comity of nations, it is easy to understand, why a sovereign should not solicit the surrender of any, but those whose offences are enormous, or such as affect his person or government. On any other supposition it is not easy to see, why a treaty which then would be only decla (b) Grot. ii. 21, iii. 4, 5-cf. Vatt. i. §§ 232, 233. It is Any ratory, and in recognition of a pre-existing right, should occasion any difference in the practice. If the doctrine of Grotius be understood to be an exposition of legal right and legal obligation, it would be difficult to support it. The independence of states is inconsistent with the claim of any foreign potentate to exercise any jurisdiction or authority within their territories without their consent. The authority of a state within its own territories is absolute and exclusive. susceptible of no limitation not imposed by itself. restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source (c). It is not easy to conceive a power to execute a municipal law, or to enforce obedience without the circle in which that law operates. A power to seize for the infraction of the law is derived from the sovereign, and must be exercised within the limits which circumscribe the sovereign power (d). Bynkershoek accordingly confines the jurisdiction of a state to persons and things within its territory, or to its subjects in a foreign country, so far as the sovereign allows it to operate (e). Besides, if the surrender of a criminal were a legal duty, the option of sending him out of the country would not be allowable, for that would be an evasion of the duty. Nor is the option of punishing a fugitive easy to be understood; for that requires a state to take cognizance of offences, other than piracy, not committed within its juris (c) Wicq. i. 67; Bynk. F. L. ii.; Valin. Comm. i. 235; Vatt. ii. §§ 79, 83; Church v. Hubbard, 2 Cranch, 234; Schooner Exchange, 7 Cranch, 176. (d) Rose v. Hinely, 4 Cranch, 278. (e) Bynk. F. L. ii. ; id. F. L. viii. diction nor by its subject. It is true that pirates may be so punished, for they are the enemies of all countries and at all times, and therefore are universally subject to the extreme rights of war (ƒ). Their case can hardly be deemed an exception to the general rule of jurisdiction, for they are rather to be considered as liable to be put to death jure belli; but they are selected by Grotius for protection when they are most deserving of punishment. Grotius's disquisition on the nature of punishment from which this doctrine is derived is a strange substitution of theological metaphors for legal principles (g). He argues, that although punishment can only be inflicted by a superior, yet every one who has not been guilty of a like offence has a moral superiority whereby he is competent to punish an offender, because such an one is degraded by his offences from the rank of men to that of brutes (h). He defines punishment to be evil suffered for evil done; but such evil may not be penal, but vindictive or injurious: if inflicted by the party injured it is vindictive; if by a stranger, it is a fresh injury. Punishment it cannot be, unless awarded by judicial authority derived from the sovereign. Legislative authority defines offences and assigns their punishment; judicial authority within the limits of its jurisdiction ascertains to whom offences are imputable, and awards the punishment assigned (i). The right of punishment is a right of sovereignty; it applies only to subjects, and has no place amongst equals (j). It is a vain imagination to suppose, that one independent state can under any circumstances have the right to punish another, or to punish any one that is not sub (f) Le Louis, 2 Dod. 244, per Sir W. Scott. (i) Heinecc. El. ii. 158, 159; Puff. viii. 3, iii. (†) Puff. viii. 3, i.—viii. 3, §§ iii. iv.; Heinecc. El. ii. 156, 158, 159, 195, 198, (n); Bynk. F. L. ii. ject to its jurisdiction (k). No law of any state can affect any right or interest of foreigners unless it be founded upon principles and impose regulations that are consistent with the law of nations. That is the only law that any state can apply to them, and the generality of any terms employed in any act must be narrowed in construction by a religious adherence thereto (7). It is this failure of jurisdiction and defect of judicial remedy, that, where wrong is done by states, gives the right of war (m). The consequences of this doctrine of Grotius, if it could be supported, would subvert the independence of nations. He holds that there is a degree of despotism on the part of a sovereign which will justify foreign invasion on behalf of his subjects (n). He attempts to sup (k) Puff. & Heinecc. ubi supra, the authorities collected by Grotius, ii. 20, xl. 4; Wicq. i. 67; Bynk. F. L. ii.; Vatt. ii. § 7. (1) Le Louis, 2 Dod. 239. (m) Grot. ii. 1, ii. 1; Heinecc. El. ii. 195. (n) Est et illud controversum an justa sit belli causa pro subditis alicuis, et ab eis arceatur imperantis injuria. Sane ex quo civitates civiles institutæ sunt, certum est rectoribus cujusque speciale quoddam in suos jus quasitum. Thucydidis inter summi imperii signa posuit judiciorum summam potestatem, non minus quam legum et magistratum creandorum jus. Sed hæc omnia locum habent ubi vere delinquunt subditi: adde etiam ubi dubia est causa. In hoc enim institum est ea imperiorum distributio. At non etiam, si manifesta est injuria : si quis Busiris, Phalaris, Thrax Diomedes ea in subditos exerceat, quæ æquo nulli probentur, ideo præclusum erit jus humanæ societatis. Gr. ii. 25, viii. Sciendum quoque est reges, et qui par regibus jus obtinent, jus habere pœnas poscendi non tantum ob injurias in se et subditos suos commissas; sed et ob eas, quod ipsos peculiariter non tangunt, sed in quibusvis personis jus naturæ aut gentium immaniter violant. Nam libertas humanæ societati per pœnas consulendi, quæ initio ut diximus penes singulos fuerat, civitatibus et judiciis institutis, penes summas potestates resedit; non proprie, quâ aliis imperant, sed quâ nemini parent. Nam subjectio aliis id jus abstulit. Eâtenus sententiam sequimur. Innocentii et aliorum-contra quam sentiunt Victoria, Vasquius, Argorius, Molina alii; qui ad justitiam belli requirere videntur, ut qui suscipit aut losus sit in se aut in republicâ suâ: aut in eum, qui bello impetitur jurisdictionem habeat. Ponunt enim illi puniendi potestatem esse effectum |