CCCLXXXV. It appears that, with respect to proceedings had in virtue of these Treaties and Acts, that the Applications of the British Government to France and the United States have been generally successful, but that the reverse may be predicated of the applications by France and America to Great Britain.(7) It has been decided in England that no retrospective effect can be given to these Acts or Treaties. The only important decision given in England on these Statutes wast that in "The Queen v. Clinton," in which Mr. Baron Platt observed: "The object of the Act was to give effect to a Treaty for reciprocally rendering up persons *being charged' with forgery, &c., 'committed' within the jurisdiction of either party, &c. Now, 'being [*431] charged,' in his opinion, clearly meant, being then charged;' but the word 'committed' might stand for which have theretofore been committed,' or 'which were then committed,' or 'which should be committed after the passing of the Act.' Looking into the Treaty, for the purpose of giving effect to which this Act was passed, he found the terms were, such person as 'having committed,' &c., and being fugitive from justice,' &c. On this he would remark that it appeared to him very doubtful whether, under this Treaty, a merchant committing forgery of a bill of exchange in the United States with the intention of providing for it at maturity, and coming over here animo revertendi, and therefore not a fugitive from justice, could be taken and given up to the American government. Being fugitive' meant being so at the time when the law was to be put in force. If so, then it would appear that the word 'committed' meant committed after the Treaty. According to the common course of reasoning and of justice, it must be considered that the Treaty was meant to attach only on those whose crimes as well as flight had taken place since the making of the Treaty. That must be the construction of the Treaty, and the construction of the Act of Parliament must correspond; for he considered that they were bound to advert to the Treaty to discover the meaning and intention of the Act of Parliament; and therefore he thought that the word 'committed' could not be referred to transactions before the date of the Treaty. The word could have no other application. That was his opinion; and he thought he was bound to act upon it, because it seemed to him that, in this country, laws to tax or restrain liberty must be clear; and if this was defective in expressing he intention of the Legislature, it was for them to alter it. His opinion. vas founded on the Treaty; and, taking that ground, he thought that the Act of Parliament could only apply to those who had committed the rime after the *passing of it.(m) It seemed to him, therefore, hat he could only order that this man be discharged. The prioner was then accordingly discharged." [*432] he union is expressly provided for by the constitution. Story on the Constitution, 3. 1807-8-9. (1) Egan on the Law of Extradition, p. 57. (m) The Law Times, Nov. 1, 1845. Egan on the Law of Extradition, pp. 54, 55. The Act 1 W. IV. c. 66, which applies to the forging or uttering in England ocuments purporting to be made out of England. AUGUST, 1854.-21 PART THE FOURTH. [*433] *CHAPTER I. INTERVENTION. CCCLXXXVI. In all systems of Private Jurisprudence, provision is made for placing upon the abstracting Right of Individual Property such restrictions as the general safety may require. The maxim "expedit enim reipublicæ, ne quis suâ re malè 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. CCCLXXXVII. 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 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 [*434] carry with it the necessity of intervening in the relations, and, to a certain extent, of controling the conduct of other States; 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) (a) Inst. I. viii. 2.-"Chaque droit a ses limites: il est limité par les droits analogues de tous les membres d'une société."—Ahrens, Cours de Droit nature. 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: The reason of the thing and the practice of nations appear to have sanctioned this Intervention in the following cases, I. Sometimes, but rarely, in the domestic concerns and internal rights of Self-Government, incident, as we have seen, to every State. II. More frequently, and upon far surer grounds, with respect to the territorial acquisitions or foreign relations of other States, when such acquisitions or relations threaten the peace and safety of other States. In the former case the just grounds of Intervention are 1. Self-Defence, when the Domestic Institutions of a State are inconsistent with the peace and safety of other States. 2. The Rights and Duties of a guarantee. 3. The Invitation of the Belligerent Parties in a civil war. 4. The Protection of Reversionary Right or Interest. In the latter case the just grounds of Intervention are— 5. To preserve the Balance of Power; that is, to prevent the dangerous aggrandizement of any one State by external acquisitions. 6. To protect Persons, subjects of another State, from persecution on account of professing a Religion not recognised by that State, but indentical with the Religion of the Intervening State. These grounds, either separately or in conjunction, will be found in the following pages to have been deliberately and solemnly proclaimed as justifying causes of Foreign Intervention. [*435] CCCLXXXVIII. The First Limitation of the general right, incident to every State, of adopting whatever form of government, whatever political and civil institutions, and whatever rules she may please, is this: No State has a right to establish a form of government which is built upon professed principles of hostility to the government of other nations.(e) CCCLXXXIX. It may be admitted that Venice in 1298, Great Britian in 1649, France both in 1789 and after the accession of the Cavaignac Administration in 1848, and after the last revolution in 1851, were entitled, upon the principles of National Independence, and without the Intervention of Foreign States, to make the great changes in their respective constitutions which were effected at those periods, because such changes concerned themselves alone. CCCXC. Why, then, cannot the same remark be applied to the French Revolution in the year 1792? The answer is to be found in the Decree promulgated by the Convention on the 19th of November, 1792. The Moniteur of that day records it in these words: Lepeaux propose et la Convention adopte la rédaction suivante : “La convention nationale déclare qu'elle accordera secours à tous les peuples qui voudront recouvrer leur liberté, et elle charge le pouvoir exécutif de donner des ordres aux généraux des armées Françaises pour (e) Kent's Comment. i. 21. &c. secourir les citoyens qui auraient été, ou qui seraient vexés, pour la cause de la liberté. "La convention nationale ordonne aux généraux des armées Françaises de faire imprimer et afficher le présent décret dans tous les lieux où ils porteront les armes de la république. Sergint. Je demande que ce décret soit traduit et *imprimé [*436] dans toutes les langues.-Cette proposition est adoptée.” This decree was treated by Great Britain, (f) which, up to the period of its promulgation, had remained strictly neutral, as a declaration of war, of the worst and most hateful kind, against all nations; nor indeed is it possible to conceive a grosser violation of the particular principle of International Law (g) which we are discussing, than is to be found in this barbarous and unprecedented proclamation-the herald of that long, bloody, terrible, and universal war, which shook not only, Europe, but the world to its centre, and of which the wounds are not yet healed. *CCCXCI. It is impossible to deny that the proclamation put [*437] forward, after the expulsion of Louis Philippe, by the De Lamartine Administration, partook of the same character, though in a mitigated degree. According to that proclamation, "Les Traités de 1815 n'existent plus en droit aux yeux de la République Française: toutefois les circonscriptions territoriales de ces traités sont un fait qu'elle admet comme base et comme point de départ dans les rapports avec les autres nations.” ."(h) CCCXCII. In cases like the foregoing, the Right of Self-Defence justifies other nations in intervening and demanding, and if necessary by force of arms compelling, the abolition of a government, avowing a principle of hostility to the existing governments of all other nations. (f) "The decisive proof upon the subject was to be found, not in loose recollection or in vague reports, but in the Journals of the House.-The speeches with which the King had opened and concluded each session of parliament afforded an authentic record of the language of Government respecting the origin, grounds, and progress of the war. There were, besides, upon the Journals, many declarations which this House had made at different periods, and sometimes at the express suggestion of Ministers themselves, and with the avowed intention of obviating misrepresentations. * * * * "This then was his defence of Parliament against the imputation of having varied its language or disguised its objects-of having engaged in the war for the restoration of monarchy in France, or of having pursued it, at any period, with any other view than that of obtaining a secure and honourable peace for this country."-Speech of Lord Grenville in the House of Peers, on the motion of the Duke of Bedford for the dismissal of Ministers, 22nd March, 1798. Pub. by J. Wright, 169. Piccadilly. (g) Vattel justifies by anticipation the conduct of Great Britain in declaring war after the promulgation of this decree. "Donc toutes les nations sont en droit de réprimer par la force celle qui viole ouvertement les lois de la société que la nature a établies entre elles, ou qui attaque directement la bien et le salut de cette société."-Prélim. s. 22. "Les nations ont le plus grand intérêt à faire universellement respecter le droit des gens, qui est la base de leur tranquillité. Si quelqu'un le foule ouvertement aux pieds, toutes peuvent et doivent s'élever contre lui; et réunissant leurs forces pour châtier cet ennemi commun, elles s'acquitteront de leurs devoirs envers elles-mêmes et envers la société humaine, dont elles sont membres."-L. i. c. 23, s. 283. (h) "Manifeste aux Puissances, 4 mars:" Trois Mois au Pouvoir de M. De Lamartine, p. 75. But this, like the other grounds of Intervention, is very liable to be abused. The most flagrant instances of such abuse are to be found in the Partitions of Poland. (i) The detailed history of these public crimes is without the province of this Work. But no treatise on International Law may pass over, wholly without comment, these grievous acts of national wickedness. The first spoliation was effected in September, 1772, by *Catherine II., Empress of Russia, Marie Therese, Empress of Austria, and Frederick II., King of Prussia. [*438] In the manifesto of the two latter may be read the miserable pretexts under which this crime was sought to be veiled, or rather which it was thought decent to allege. Austria claimed territory, alienated from her to Poland several centuries ago, her first date being 1324 A.D., because, among other reasons, by the Canon Law alienations of territory by a crowned head were as invalid as the acts of a minor. Prussia took up her history not earlier than 1107 A.D., and recited various subsequent losses of property by the Margraves of Brandenburgh, which Poland had acquired at a time when the Margraves were too feeble to resist, but to which property it was alleged that the Margraves had never formally renounced their claim. It is manifest that the original sin of the spoliation was greatly enhanced by these pretended reasons for it; every one of them aimed a deadly blow at some sound principle of that faith which ought to bind together the nations of the globe. Russia, by far the boldest, and, if the expression were allowable, the honestest criminal, seized upon her prey at once, scorning all subterfuges, and making openly her might her right. These three spoliators, however, were not the only offenders against International Law. France and England beheld with silence and indifference this violation of all the safeguards of national liberty and independence: they cannot be acquitted of all blame; they contracted, in some degree, the guilt of the by-stander who tamely and silently suffers a deed of wrong to be perpetrated in his presence. In 1790, Poland, availing herself of the occupation afforded by a Turkish war to Catherine II. (who had never ceased to treat her as a province of Russia), contracted an alliance with Prussia, whereby that (i) Mackintosh's Works, vol. ii. p. 330; and Edinburgh Review, vol. xxxvi. p. 463. Ferrand, Histoire des trois Démembrements de la Pologne. Flassan, Histoire de la Diplomatie Française, t. vi. Dohm, Denkwurdigkeiten meiner Zeit. Von Raumer, Polens Untergang: Histor. Taschenbuch, iii. Koch, Histoire abrégée de Traités de Paix, continuée par Schoell (ed. Bruxelles), t. iv. pp. 266–284, c. 60, ib. pp. 296, 304, 307–13, c. 62. Koch, Tableau des Révolutions de l'Europe, t. ii. pp. 168. 224. 284. Gentz, Fragmente aus der neuesten Geschichte des politischen Gleichgewichts in Europa, Schriften, Band iv. ss. 51-59. Wheaton's Hist. pp. 267-281. Allge. Gesch. B. 23. c. 11. |