Extra fugitive criminal conditional upon his non-trial for any offence other than that set out in the requisition for surrender be modified, so as to provide only against the punishment of the culprit in respect of an offence of a non-extraditional character. The majority of civilised states do now recognise the duty of extradition. The formalities to be adopted therein are fixed in most instances by treaty, but many recognised states will surrender fugitive criminals irrespective of any dition is now a international duty. A state ever, im such convention, thereby expressing their adhesion to what is undoubtedly the worthier doctrine, that the obligation to surrender such fugitives does not rest upon the strict terms of extradition treaties, but upon the broad principle of comity and the call of the state to suppress wrongdoing'. No doubt one state cannot complain, if another decline to give up refugees who are accused of such offences against the local law of the offended state as may be styled mala quia prohibita. But it does seem inconsistent with the principles of modern civilisation that any state, however generous her protection of the oppressed, should act as the defender of individuals who have been guilty of acts which the united consensus of civilised mankind denounces as altogether criminal. A state may well impose conditions upon her surrender may, how of fugitives. It is well worthy of a great state that she pose con- should, before delivering up a refugee to his pursuers, ditions on convince herself that there is a sound prima facie case And it well becomes such against the abuse of her the extra criminals. dition of for putting him upon his trial. a state that she should guard assistance on the part of the state demanding extradition by the trial of the refugee for some offence against local law other than that for which the surrender was required, and not being a crime for which extradition would have 1 A splendid example of such a recognition of international obligation was afforded by the action of the U. S. Government in the case of the scoundrel Arguelles in 1864, U. S. Diplomatic Correspondence, 1864, Part II. pp. 60-74. to be re the case criminals? been granted. But it little becomes a great state that she should by any means make herself the fautor of the thief and the assassin: it little becomes a mighty empire to act as the defender of the murderer and the robber, either on the broad principle of national independence, or on the narrower technical ground of the failure of the statemachinery for surrender'. It is curious that the England Ought exwhich in her criminal law eschews so rigidly the considera- tradition tion of motives, and affects to confine herself so exactly fused in to the facts of intention, should attach such importance of all to the non-surrender of the political criminal, whose political offence is differentiated from similar acts, which are deemed extradition crimes, by motive and by motive alone, or by motive coupled with circumstances which are as likely to deceive as to enlighten. On what foundation does the current opinion requiring the protection. of political offenders in fact rest? Is it the mere offspring of popular prejudice or does it cover some real danger actually felt? It is not easy to understand by what right we in England assume that a foreign government which requires of us the surrender of a criminal would take advantage of a matter of definition to punish that criminal for his purely political opinions or purely political acts. Where in view of these unworthy suspicions is the mutual confidence wherein we place our hope of the World's peace? A political crime, we may take it, since the decision in the recent Castioni case, is a crime committed in the course and in furtherance of a political movement, and Great Britain will decline to deliver up to justice the excited politician who, in the course of a revolutionary émeute, shoots down a defenceless statesman of the ruling party. About the intention of the assassin in that case there could be little doubt. There might be doubt about 1 Report from the Select Committee on Extradition, pp. 16 seqq. and 72, 73. 2 Ex parte Castioni, Q. B. Div. Nov. 12, 1890. Judgments of Denman, Hawkins and Stephen, J.J. his impelling motive: he may have been actuated in firing the fatal shot by the enthusiasm of the purest patriotism: he may have seized the opportunity to secure a personal revenge. To refer the criminality of an act such as this to the test of the actuating motive, or to judge it by the existing surroundings of circumstance and event, would seem equally to open a wide door to most perilous abuse. It is not easy to comprehend the logical reasoning which makes the life of the statesman who has the fate of empires in his hand of less account than that of some clod of the field or some unfortunate of the slum. Is the slaying of a Sergeant Brett indeed no murder but "a bit of irregular warfare"? Shall we protect the murderer of a Lincoln or a Garfield? Or is the death of a Burke or an Alexander II. one whit-say not the less illegal but-the less immoral, because the coward hand that does the fatal deed is that of an Irish Invincible or a Russian Nihilist? It is not for England to complain if the United States form a safe asylum for the Fenian dynamitard and the skulking assassin of the roadside hedge-row. She has sown the wind, and must reap the whirlwind. It is pity to see the noble enthusiasm for the shelter of the persecuted Huguenot degraded to an irrational prejudice which preserves from a well-merited murderer's doom some of the vilest wretches who have ever poisoned with their presence the free air of God's created Earth. CHAPTER VI. THE SCIENCE OF INTERNATIONAL LAW. [B.] ABNORMAL INTERNATIONAL LAW. (a) War. stitutes an THE normal relations of civilised states in the present What conday are thus, in general, deducible from the simple con- outbreak ception of Territorial Sovereignty. The normal condition of War? of the modern International Circle is a condition of Peace. But from time to time the ordinary relations of hitherto friendly communities become by stress of circumstances strained to the point of breaking, and the condition of Peace is lost in the outbreak of War. At what point, then, do the ordinary relations of international intercourse cease, and states enter upon a new legal condition? What facts, in brief, mark the outbreak of War? War ne War was among the Ancients ushered in by the issue Is a Declaof regular declarations, setting out the hostile intent of the ration of declarant. Both Greek and Roman were wont to declare cessary? war in solemn form after demand and refusal of satis- The his. tory of faction, the declaration being publicly conveyed by herald Practice. from the offended to the offending state1. Momentary Declarairritation, however, sometimes got the better of strict tions were 1 Thuc. I. 29. Plut. Themistocles, c. 6. Vattel, I. 4, § 51. Formal Ancient, usual in legal formality. The Athenians seized the auxiliary fleet of the Mitylenaeans before declaring war'. The Fabii, sent to order the Gauls to refrain from destroying Clusium, took part in the fight between the opposing Gallic and Etruscan armies, and thereby offended against the Roman Fetial law in three several ways: for no Roman ambassador might lawfully engage in warlike measures, and no Roman might bears arms without taking the military oath or against a people with whom the Republic had not declared war. The Roman war-practice lingered on after the break up of the Roman Empire. From the wreck of that Empire there were preserved two systems or organisations: the Roman Law, like the Roman Church, took the captor captive. Religion and Honour, the Church and Chivalry, combined to demand notice to an enemy about to be attacked, and in some form or other, such notice long continued to be given. Sometimes a herald was commissioned to bear his monarch's defiance to the foeman with solemn pomp and pageantry; sometimes the message was conveyed in much less formal fashion. And when Chivalry had passed away, the old models were still copied, and so late as 1657 a Swedish herald brought a declaration of war to the Court of Copenhagen. and Mediaeval War-practice. Formal tions fall- During the seventeenth and eighteenth centuries writers uniformly decided in favour of the legal necessity for some form of declaration; but the practice of combatants differed widely from the theory of lawyers, and, whenever to omit a declaration seemed to promise profit, declaration was omitted. Grotius declared that, although notice to the enemy was not dictated by the Law of Nature, it was called for by the Law of Nations'. His devoted admirer, Gustavus Adolphus, however, issued no declaration before landing in Pomerania to play his 429. 1 Thuc. III. 3. 2 Niebuhr, History of Rome. Trans. by Hare and Thirlwall, 11. 532. 3 Commines, pp. 115, 119. Geoff. de Vinsauf, c. 18. Guicc. Iv. p. Froissart, chap. CCLI.-CCLII. 4 De Jure Belli ac Pacis, Lib. I. cap. 3, 6. |