surance, and upon every subject immediately and properly within the jurisdiction of such foreign courts. The question in later cases has not been with reference to the conclusive nature of the sentence, but whether it was given upon the point in controversy."

4th, Of the executive capacity of the State.

Rational will necessarily translates itself into power.1 In recognising the legislative and judicial capacity of a State, we consequently recognise its executive capacity. The recognised State has thus a perfect right to demand, and, apart from other considerations, to enforce, the execution of its judicial sentences by the recognising State. But international rights being conditioned by the fact of separate political existence, foreign judgments can receive execution only by the political organisation which governs the State within which they are executed. Within the sphere of the normal relations one State cannot execute its own judgment within the territories of another State. Whilst foreign judgments are interpreted according to the law of the State in which they are pronounced, it may consequently be stated as a rule without exception, that their execution follows the law of the State which executes them. "It seems a clear proposition, of reason and law, that the foreign judgment when recognised must be interpreted and considered, as to its effects, according to the law of the State in which it was pronounced. Savigny and Fœlix are in complete accordance upon this not unimportant point." 2 On the other hand, that "the form and manner of its execution are exclusively governed by the law of the State

1 Institutes of Law, p. 427.

2 Phill., vol. iv. p. 729 (2d ed.)

which recognises and executes the judgment, is a clear proposition of public as well as international law, and does not appear to have been even controverted." 1

5th, Of the forum of foreigners.

The question of the forum to which legal relations belong, falls properly under the subject of private international law. All that it seems necessary here to say on the subject is, that the civil tribunals of each State are open to the citizens of every other 2 who, for the time being, may be resident within their jurisdiction; and this not only for the enforcement of rights which have been already judicially ascertained elsewhere, but for their ascertainment. In this country, and in the United States, no exception is in this respect made, though the suit be between two undomiciled foreigners, for the breach of an obligation contracted abroad. But the extreme liberality of this rule is still exceptional.3 The defender's residence is his forum, to which the pursuer must follow him. The maxim, actor sequitur forum rei, holds good in international as in municipal jurisdiction. The forum of the defender, as regards execution, is that of fulfilment, whatever may be the law-that is to say, the municipal system, by which the relation may fall to be construed. Foreigners, whether litigating with foreigners or with natives, are consequently at liberty to employ advocates and agents, of whatever description, recognised by the local law; and in the enforcement of such rights

1 Phill., vol. iv. p. 731 (2d ed.)

2 In Scotland provision was made by statute for "acctiones of strangers of uther realmes" so early as 1487, c. 105.-Mackay's Practice of the Court of Session, Introduction, p. 9.

3 Phill., vol. iv. p. 706 (2d ed.) et seq. Wharton, Conflict of Laws, p. 4 (new ed.)

as fall within the local jurisdiction, they are entitled to call into play the whole resources of the executive at the command of the citizens of the State. The municipal law of every recognised State being thus, as it were, adopted by the municipal law of every recognising State, stands, in point of efficiency, in a very favourable position when contrasted with the public law of nations, which has, as yet, no local habitation, and consequently no executive anywhere.

6th, Of the exceptional position of criminal judgments.

At first sight it would appear as if these principles must apply almost à fortiori to the sentences of criminal courts. Criminal law, seen from a municipal point of view, is, as I have said, public law (jus publicum); and this, for the very obvious reason that a crime against a citizen is a crime against the State. All well-ordered States, with the partial and very unfortunate exception of England, have long been accustomed to prosecute and to punish crimes in their own behalf, as well as in behalf of the citizen more immediately injured. From the State character which thus belongs to it, criminal law partakes of the local character which adheres to other departments of State law. But in the case of ordinary offences against property and person, their public and local is subordinated to their personal and universal character; and as the prevention of such crimes is the very first effort of incipient civilisation, it does not seem an extravagant stretch of international confidence for recognising States to assume, as a rule, their reciprocal capacity to deal with them. I consequently regard them as bound by the principle of recognition, and consequently by the common law of nations, apart from

all special treaties, to act on that assumption. To a certain extent they no doubt do so. Wherever there is plenary recognition, the recognising State credits the recognised State with this capacity, and the former intrusts its citizens resident within the borders of the latter to its criminal jurisdiction. Each State administers its own criminal laws within its territories to foreigners and natives alike; and from its sentences there is-and, in the absence of an international tribunal, there can be-no judicial appeal. Even diplomatic interference with the criminal sentence of a foreign State, or with its execution in cases in which the crime has been committed within its territories, would be a violation of the principle of recognition.

The normal duties of the recognising State, even to its own citizens resident within the recognised State, have been fulfilled when, through the intervention of its ambassadors and consuls, it has seen that the local law of the recognised State is fairly administered to them.

As regards the citizens of the recognised State, any interference with the action of the local law would be a positive breach of the law of nations. Even in the case of a partially recognised and partially protected State, such interference is forbidden. Lord Dufferin's interposition in behalf of Midhat Pasha (July 1881) was wholly unofficial in form, however peremptory it may have been in substance. When Lord Granville's attention was called to the persecution of the Jews in Russia, and the alleged apathy of the Russian Government, in the House of Lords (Feb. 9, 1882), he declined, with the approval of Lord Salisbury, to interfere officially; and

Lord Shaftesbury, the great humanitarian, went the length of saying that, "so far from calling upon her Majesty's Government to interfere diplomatically, he doubted whether it would be wise even to exercise their moral influence."

So far, then, each State accepts the criminal law of every other State. But it is not enough that States shall permit each other's criminal laws to take their course, reciprocally, in the case of citizens resident within them—and this even when these laws are at variance with those of the domicile of the individual who is subjected to them. In loyal obedience to the principle of recognition, they must, as I have said, go farther than this. Each State must make the other's case its own, and aid it in the administration of its criminal laws and the execution of its criminal judgments. This view received the sanction of the Institute of International Law, in its meeting at Oxford in 1880.1 "It is not treaties only that make extradition an act in conformity with law, and it may take place in the absence of any contractual obligation." assume the legislative and judicial capacity of a State, is to assume its right to legislate and adjudicate, because powers and capacities generate rights; and to assume its rights, and to decline the duty of aiding in their enforcement, is to set at naught the universal principles, that rights imply the conditions of their exercise, and that duties are coextensive with rights. It is neither more nor less than to break with ethics altogether as the basis of jurisprudence, and to leave it without any basis at all. Much confusion has been introduced

To

1 Resolution III. Annuaire de l'Institut de Droit International, 1881-82, p. 127; or infra, p. 345 note.