RIGHT OF TREATY. French merchant vessels, in regard to any difference which may arise between the Captain, Officers, and Crews of such vessels, either on the High Seas or in the Ports of such Powers, and the aid of the Local Authorities is guarantied to support the Jurisdiction of the Consul, if he shall invoke it 38. dition. 219. Treaties of Extra-Tradition are another form Treaties of of Treaty, whereby effect is given to the Juris- Extra-Tradiction of a State over its Subjects, who may have The escaped into the territory of another State. Common Law of Nations regards all Jurisdiction as founded on the possession of territory by an Independent Community. The Legislative Power of the Nation extends over all persons and property within the limits of its territory; but its laws do not operate vigore suo beyond its territory. Crimes against its Laws are altogether local, and cognisable only in the country in which they are committed. No other Nation, therefore, has any right to punish them, nor is under any obligation to take notice of them, neither is other Nation bound to enforce any judgment any rendered in such cases by the tribunals having authority to hold jurisdiction within the territory, wherein they have been committed 39. Such has been the tenour of a long course of decisions in British Courts of Law. "Penal Laws of Foreign Countries Lord Loughborough", "and are altogether local,” says affect nothing more than they can reach, and can be seized by virtue of their authority." Mr. Justice Buller in the same case upon a Writ of Error", says, 39 Story, Conflict of Laws, $620. The Convention of 23 Feb. 4 Folliott v. Ogden, I. Blackstone, p. 135. H. 41 Ogden v. Folliott, 3 Term Reports, p. 733. Civil Law "it is a general principle that the Penal Laws of one Country cannot be taken notice of by another Country." A similar doctrine has been frequently recognised in the Courts of the United States of America. Thus Chief Justice Marshall", in delivering the judgment of the Supreme Court, in the case of a foreign vessel engaged in the Slave trade, which had been captured by an American Citizen, said, "the Courts of no Country execute the Penal Laws of another Country." So likewise Chief Justice Spencer, when called upon in the District Court of New York to give effect to a Law of Connecticut, said, "the Defendant cannot take advantage of, nor expect the Court to enforce the criminal Laws of another State. The Penal Acts of one State can have no operation in another State. They are strictly local, and affect nothing more than they can reach 13." 43 § 220. Certain Jurists have maintained that a State mans as to is under an obligation to punish Fugitives from JusFugitives tice, on the demand of the State from whose jurisdictice. tion they have withdrawn themselves"; in other from Jus words, that a State is bound to allow its own Courts to exercise its own Jurisdiction over foreigners in respect of offences committed in Foreign Countries. But these writers rest this question too exclusively on the traditions of the Roman Civil Law, which regarded the various States of Christendom as succeeding to the relations which formerly existed amongst the Provinces of the Roman Empire. But the Roman Law, if carefully examined, suggests another principle, when it orders Fugitives from Justice to be 42 The Antelope, 10 Wheaton, p. 123. 43 Scoville v. Canfield, 14 Johnson's Reports, p. 338. ++ Hertius de Collisione Legum, P. Voet de Statut. § 4. n. 18. c. 4. n. 6. remitted to the forum delicti. The grounds upon which such remission indeed was founded rest equally upon the Imperial Supremacy," Jure tamen civili notandum, remissionibus locum fuisse de necessitate, ut reus ad locum ubi deliquerit, suo petente judice, fuerit mittendus, quod omnes judices uni subessent imperatori." It would thus seem that in either case, whether the Criminal was tried in the place where he was found, or sent back for trial to the place where the crime had been committed, the Authority under which the trial or the remission of the Criminal took place was one and the same, namely, the Paramount Authority of the Emperor. 47 Law of § 221. In the case of Nations there is no corre- Common sponding Paramount Authority to which all defer, and Nations. Jurists are divided in opinion whether there is any obligation upon a Nation to deliver up Fugitives from Justice upon the demand of another Nation. States have without a doubt a right to refuse an asylum to the subjects of Foreign States. Martens designates this right as Le Droit de Renvoi. From a passage in a letter written by Sir Leoline Jenkins at Nimeguen to Mr. Secretary Williamson, (April 3, 1675,) it would seem, as if the early Usage amongst Nations had been for States to decline jurisdiction over foreigners altogether, and to send them to their own country to be tried by their Natural Judges, but that such Usage had become obsolete in his time, as he speaks of "the matter of renvoy being disused altogether amongst Princes." Certain Jurists however maintain, that according to the usage of Nations, States are obliged to refuse an asylum to the subjects 45 P. Voet de Statutis, s. XI. c. 1. n. 6. + Précis du Droit des Gens, § 91. b. 47 Life of Sir Leoline Jenkins, vol. II. p. 714. Extra-Tra Fugitive of Foreign States, who are accused of crimes which affect the Public Peace and the security of Human Society, and whose surrender to its Officers of Justice is requested by the State, within whose territory the crime has been committed. Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth, Böhmer, Schmelzing, Kent, and Homan maintain the affirmative side of the question, whilst we find arrayed on the negative side Puffendorf, Voët, Leyser, Martens, Klüber, Kluit, Saalfeld, Schmalz, Mittermaier, Mangin, Story, Wheaton, Heffter, Ortolan, and Phillimore. In the conflict of opinion amongst such high authorities we may safely have recourse to the practice of Nations. Great Britain, France, Russia, and the United States of America, have repeatedly declined to surrender up Fugitives from Justice on the demand of Foreign Powers, with which they had no Treaties to that effect, or in cases where the crimes alleged did not come within the scope of any existing Treaty of ExtraTradition. M. Fœlix seems to have stated the practice amongst Nations very correctly, when he says that all 48 Extra-Tradition is subordinate to considerations of convenience and reciprocal interest 19. The authorities of a State are not obliged to surrender up a Criminal for the purpose of Extra-Tradition, except where there exists between two States Treaties formally applicable to the subject matter. §222. Treaties of Extra-Tradition in their earliest dition of form appear to have contained stipulations for the Slaves and surrender of fugitive slaves, and Compacts with that serters, a object in view were not unusual amongst the Nations frequent of Greece. It would appear to have been the of De prac subject of Treaty- tice amongst those Nations to afford sanctuary to Engage ment. 48 Traité du Droit International Privé, L. II. § 608. fugitive slaves, unless there was an International Compact to the contrary, or a provision to that effect embodied in some Treaty of Commerce. It is obvious that wherever Personal Servitude is recognised as a Legal Status, every attempt to change that Status without the legal formalities of Emancipation will be a crime against the Law of the State, and every fugitive slave will be ipso facto a Criminal according to that law. We find accordingly an article inserted in the Constitution of the United States of America (anno 1787), whereby the respective States have bound themselves to deliver up Fugitive Slaves on the claim of the Slave-Master, notwithstanding the Status of Slavery is not a Legal Status in some of the States. "No person held to service or labour in one State under the laws thereof, escaping into another, shall in consequence any law or regulation therein be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due." of The Treaties in modern times which bear most analogy to the ancient Treaties for the surrender of Fugitive Slaves are Treaties for the Extra-Tradition of Deserters from the military or naval service of a State. It is almost the universal practice of civilised Nations to conclude with one another Treaties, which have the latter object in view. The necessity for such Treaties 49 The Constitution of the United States, as distinguished from the Articles of Confederation, bears some analogy to the Final Act of the Germanic Confederation, as distinguished from the Federal Act. The provisions of the Constitution have all the force of an International Compact between the respective States, which under the Articles of Confederation were declared to retain their Sovereignty, Freedom, and Independence, and every Power, Jurisdiction, and Right, which was not by such Confederation expressly delegated to the United States in Congress assembled. |