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possible to draw an inference from their proceedings to ours. The only other case with which I am acquainted, which even appears to countenance the proposition which I disputed, is that of R. v. Azzopardi, 1 Car. and Kir. 204, in which it was held that it was murder in a British-born subject to kill a foreigner in Syria ; and it is said that this case shows that a person who is not within the queen’s peace or protection may be murdered. The case, however, cannot be supposed to destroy all the existing definitions of murder, in which the qualification in question is undoubtedly an essential element. I can only understand it as establishing the principle, that the queen will protect any person, in any part of the world, from murderous assaults committed by her subjects, by hanging such subjects when she can get them for that purpose. It must however be observed, that the grounds of the judgment in R. v. Azzopardi are not set out, and that the report does not even allude to the older case of R. v. Sawyer (Russ. and Ry. C.C. 295, and 2 Car and Kir. 113), which proceeds throughout upon the principle that protection and allegiance are co-extensive.
I am well aware that to any one but a lawyer, and perhaps to most of the members of our own profession, the argument which I have brought forward on this subject will appear to be technical and narrow-minded in the extreme, and to contradict wide and universal principles to which men in general give credit, and which it is a reproach to English law to neglect, if it really does neglect them. Can there be a doubt, it may be said, that really and substantially an assassination is murder all the world over; that it is an offence against the laws of God, of nations, and of nature, upon which the law of England professes to be founded, and which in many cases it expressly recognises ? Several plausible arguments might be urged in support of this view. Thus, in Triquet v. Bath (3 Burr 1480), and in Heathfield v. Chilton (4 Burr 2016), Lord Mansfield expressly ruled that the law of nations was part of the law of England, and that the infraction of it was criminal. He further observed that the well-known statute of Anne did not intend to alter it, and indeed could not do so; and he said that the provisions of this law were to be inferred from Grotius, and other similar writers of reputation. Somewhat to the same effect is the well-known rule, that the law of England recognises the civil judgments of the courts of other nations, unless their procedure is opposed to the law of nature; and this was applied in a case where it was held, that an action upon a foreign judgment could not be enforced because it was delivered by one of the parties to the suit, in opposition to the rule that no one ought to be judge in his own cause. There are also many cases in which the law of nature is appealed to, or at any rate referred to, in suits for the determination of civil rights. Such expressions are very common in cases of easements, and in relation to the liabilities of riparian proprietors.
Wide and in some respects plausible as such arguments may be, I am quite unable to agree with them; and I think that to admit their application to such a case as the one under consideration, would be perhaps as dangerous a precedent as any that could be established. Indeed, the principle involved in such an admission—and it is this principle, and not the mere technical aspect of the subject, which invests Bernard's case with its real interest—is nothing less than this, that the judges are to be recognised as legislators in respect of the very highest form of legislation; that, namely, which affects the lives and liberties of the subjects of this kingdom. That the custom and practice of the country does to a certain small extent invest the judges with what are virtually legislative powers, I am fully prepared to admit; nor would it become me to deny the propriety of the language used by Lord Mansfield in the cases which I have quoted. But it is of the greatest importance that we should have a clear understanding of the lengths to which we are prepared to go in this direction; and I therefore propose to point out, shortly of necessity, and with considerable compression, what I consider to be the meaning of the authorities to which I have referred. First, then, what is the law of nations, and in what sense is it part of the law of England ? A law, as Mr. Austin says, is a command, enjoining a course of conduct enforced by a sanction, and imposing a duty. Now, as nations have no common superior, they can be subject
to no laws in the strict sense of the word; but various usages have in fact grown up amongst them, which the more powerful nations usually observe with some degree of consistency in their dealings with each other. Such is the usage with respect to the immunity of ambassadors from arrest, and the usage that on the high seas any nation may take a pirate and punish him, to whatever other nation he may belong. Now these usages are, generally speaking, embodied in the express laws of particular countries, and form a part of the law of this country, so that any one who transgresses them exposes himself to penal consequences. In this sense, and in no other, should I admit that the law of nations forms part of the law of England; but it derives its force in our courts exclusively from our recognition of it, and not in the least degree from any inherent authority. There is no doubt another sense in which the phrase "law of nations” is sometimes used, but in that sense it cannot be contended that it forms part of our law. The jus gentium et nature of the Roman lawyers did not refer to the customs which prevail between different independent nations (and for which Bentham invented the admirable phrase International Law); for in the days when the Civil Law flourished, the Roman empire was the only independent nation in the world. It referred to those principles of law which they supposed to be universal and common to all nations, forming a system of natural principles like those which may be traced in inanimate nature, and not springing out of any command, or depending for their validity upon any sanction whatever. Starting from this basis they constructed a system known as the jus gentium, and this system was the base, and, so to speak, the parent of another system of the same sort, elaborated in our own times by Grotius and other writers, which is sometimes spoken of as the law of nature and nations. Now that this theory, or any form of it either is, or ever was, part of the law of England, I deny. It would be no difficult task to show that the theory itself does not form a consistent whole, and that the writers who treat of it merely advanced such opinions as in their view of the matter were reasonable, which opinions occasionally clashed. Grotius, for. example, maintains that criminals may be delivered up by one nation to the authorities of another, if their crimes are of such a nature as to disturb the public tranquillity. Now, this is
, precisely the case which all civilized nations in the present day regard as being excluded from the principle of extradition. There is hardly a country in Europe which does not contain political refugees, and I do not know that there is one which habitually delivers them up to the nation from which they have escaped ; though most countries, except our own, occasionally exercise the right of expelling them from their own country. A still better illustration of the truth of the position, that the only true law of nations is that which each nation imposes on its own subjects, or upon those who are locally within the limits of its jurisdiction, with respect to their conduct towards other nations, is to be found in the famous disputes which arose between this country and the continental nations, as to the validity of the rule that free bottoms make free goods. We took and acted upon one view of the subject, Napoleon took and acted upon another. In this case, the conduct of each country within its own bounds was perfectly legal. As between the two countries there neither was nor could be either law or illegality. A law without a sanction and without a lawgiver is a mere word; and to say that war is the sanction of international law, is substituting a metaphor for a fact. The accurate way of describing such transactions as I have referred to would be to say, that different laws about the rights of foreign ships prevailed in England and in France, and that disputes arose upon that difference.
If there were, in any strict sense of the words, a law to which both France and England were equally subject, how could they vary it by
With regard to the alleged existence of a law of nature which forms part of the law of England, and which is inferred from the occasional use of such expressions as I have referred to, I maintain that the only intelligible meaning which can be put upon that expression is, that certain principles of obvious expediency have from time immemorial been recognised by English law, and that the practice of the constitution
has entrusted the fifteen judges with the task of applying them in an authoritative manner to particular cases. In other words, there are a variety of subjects in which the judges are invested with a power of legislating within certain narrow limits, and subject to certain recognised principles. Perhaps the best instance of this is the law of evidence, which grew up almost exclusively by force of the accumulation of judicial decisions, and which has increased so fast that, whereas in Buller's Nisi Prius the whole subject is discussed in twenty or thirty pages, Mr. Pitt Taylor's work contains no less than 1438, though the fruitful branches which related to incompetency from interest, and the like, have been cut away by act of parliament. In the administration of those legislative powers, the judges have no doubt often allowed the works of foreign writers, and especially the reports of American decisions, to be cited; and, in adjudicating upon the questions before them, they have frequently adopted the language of such writers upon natural rights and the laws of nature; but this is an entirely different thing from the recognition of any large general system which can be prayed in aid to supply the deficiencies of the law of England. If such a system were admitted to exist, I do not see where it is to stop; why may it not correct faults as well as supply deficiencies ? why may not laws of which the judges may disapprove be declared to be overruled by the law of nature ? in a word, why should we not adopt Hobbes's doctrine, that the common-law is nothing else than that which it may please the sovereign power, speaking through the judges, to declare to be reasonable, and that a judicial despotism is the only proper system of government ?
I can only afford time to glance at a few of the extravagant consequences which would be involved in the doctrine, that the judges are at liberty to declare an assassination by Frenchmen in France to be murder by the law of nature and nations, and to infer that any one who promotes it is an accessory before the fact. Whatever might be the case with Frenchmen, there can, I suppose, be no doubt that the acts of an Englishman in France would be by English judges esti.mated according to English law, and then the acts of a single