« PreviousContinue »
Sir Travers Twiss, returning, as it were, to occupy once more, though but for a season, an Oxford Cathedm of Law, brought his usual wealth of learning and research to bear upon one of the most intricate Juridical and Diplomatic problems of the day—the application of the European Customary Law of Nations to Oriental States. Our only regret is that the particular branch of the subject to which this wealth of learning was devoted should have been the rather unprofitable one of the Ottoman Empire. For in the actual attitude of the Porte towards Reform, and towards the Western States which have the right and the duty to press that Reform, it seems a waste of power to go so elaborately into the Hatti Cheriff of Gulhani, 1839, and the Hatti Hamaioum of 1856. Paper Constitutions and Paper Reforms there have been, no doubt, in Turkey, as erstwhile in Naples. But the Gate of Felicity still shows not a sign of yielding, and the striking testimony, which is cited by
Sir Travers, of the British Consul-General in Belgrade, as to ‘
the practical nullity of the supposed concession of equal admissibility of Christian and Mussulman witnesses, is one with the testimony that comes from Armenia, and from many another part of the so-called Ottoman Empire. The words of Sultan Hamid at the opening of the second Ottoman Parliament were doubtless very charming. But if the Commander of the Faithful really desired to see all “ classes of his subjects enjoy complete equality,” he has signally failed in accomplishing this desire. And he has also failed in satisfying Europe of the sincerity of his professions.
Two features of interest in regard to the practical results attained by the discussions of the Institute must not be passed over in silence. On the Conflict of Civil Laws the meeting, after close and prolonged debate, passed eight articles (extending even to the case of foundlings and their nationality) almost exactly in the terms proposed by the reporters of the Committee, Prof. Arntz and Mr. Westlake, Q.C., who were present to defend and explain their own theses. On another no less important and diflicult question, that of the Regulation of the Laws and Customs of \Var. a draft Manual, due to the initiation of M. Moynier, of Red Cross fame, which had been for some time under consideration, was finally discussed and settled, with a view to its being communicated to the various Governments of Europe and America. The Committee charged with the weighty task of preparing the Manual included, besides
M. Moynier, representative names both from Great Britain and the Continent, viz., Prof. Holland, Mr. VV. E. Hall, Profs. Bluntschli and Schultze, of Heidelberg, Prof. De Martens, of St. Petersburg, and Prof. Rivier, of Brussels.
From the space which we have devoted to the Oxford meeting of the Institute of International Law, enough may have been gathered of our sense of its importance. VVe have criticised freely theories which were advocated by some of its most distinguished members, because it is our function to be a Review, not merely a Chronicle, and because we believe such a course to be most in harmony with the spirit of the Institute itself. But we rejoice to find the learning of Neumann and Arntz, the acuteness of Martens, the subtle judgment of De Laveleye, the unwearied zeal of Rivier, commemorated and appreciated by the Regius Professor ‘of Civil Law side by side with the high merits of those who were called to the citizenship of the University. We rejoice to have seen this Senate of Jurists convoked in Oxford. We rejoice also to know that Oxford delighted to honour her guests, and that the “egregius " Bluntschli, the “exoellentissimus ” Rolin-Jaequemyns, were able to receive in person the Doctorate of Civil Law, for which the Plaeet of the House was likewise conferred, in their unavoidable absence, upon the Senator Mancini,“decus Romanorum," and the President of the Paris meeting ofthe Institute, De Parieu. It was fitting that the Rt. Hon. Mountague Bernard should have occupied the Presidential chair at Oxford, and that Dr. Holland, his successor as Chichele Professor of International Law should have personally cared for the well-being of the members during their visit. Fitting was it, too, that the Lord Chancellor, and the Rt. Hon. Sir Robert Phillimore, should have come down specially to meet their University's honoured guests in the Sheldonian Theatre and at All Souls, in the ancient home of Gentili, and Zouch, and Sir Leoline Jenkins. \Ve do not doubt that the Oxford meeting will linger long and pleasantly in the memory of those who took part in it.
=p 2:: Our attention has recently been drawn to a valuable work
on Nationality in International Law (La Nalioualité an pm: de one des Rapports Inlernalionaux, par George Cogordan, Docteur en Droit. Paris, Larose, 1879), which appears to us to have been brought out at a very apposite time. For whether we look at the subject from the side of its relation to the constituent elements of the State, or the Family, or of the Individual, as a member alike of the body politic and of the family, the question is a question of the day in most countries. M. Cogordan, from his diplomatic experience in Eastern Europe, as a Secretary of Legation, has seen something of the dilficulties which constantly arise under this head. He is impressed with the conviction that, on the one hand, nobody should be without a nationality, but that, on the other hand, nobody should have more than one nationality. In practice, says M. Cogordan, there are too many persons who belong to no nation:— the pariahs, we might say, of International Law. For such sporadic citizens, Proudhon would have instituted a separate status, which he proposed to define as “l‘incolat," a proposal which has never taken shape in practical legislation. The embarrassment which may be caused by the want of nationality, is curiously illustrated by the recent case of the Russian emigrants to Buenos Ayres, cited by M. Cogordan, where a considerable body of persons arrived in Antwerp in a state of destitution, with no means of returning to what had been their country, but which now disowned them, saying, that by their expatriation they had lost their Russian nationality. Citizens of the world at large, they were to look to the world at large for support and protection. But such a thing as CEcumenical citizenship is unknown alike to Territorial and International Law, so these unfortunate returned emigrants were but “Ginx's Babies" in the eyes of the Law of Nations. Belgian humanity disregarded the absence of citizenship, and tended the wants of the natural man. But nations, like individuals, are not always willing to succour those who have no claims upon them, and the state of things to which M. Cogordan demurs is one which should not be capable of recurring.
Nationality is so intimately bound up alike with Family Law and Electoral rights that it is impossible to consider it without touching upon those questions. M. Cogordan accordingly devotes no small portion of his work to the conflicts of law arising under some of the various heads comprised under these titles. Marriage, Divorce, Naturalisation, Expatriation, Domicile, all receive a due share of his attention. A man should have but one nationality, says our author ; this doctrine, if generally accepted, would in itself solve many a difiiculty by preventing it from arising, and prevention, it is allowed, is better than cure. But how this happy consummation is to be reached we do not at present see. If the place of birth impresses a national character, M. Cogordan’s solution can only be attained through achange—and that no inconsiderable one-—of the existing territorial law of the principal States throughout the world. Political nationality, it has lately been suggested by some eminent English and Foreign publicists, might in many cases advantageously be substituted for domicile. This would itself be a change, and it might be well perhaps at the same time to see whether a change could not be effected in the territorial law of nationality by birth. Otherwise, it may be feared that the conflicts of law would only slightly alter their nominal cause, and in practice would subsist as before. To take up but one more point. Expatriation, says M. Cogordan, should be freely conceded. To the old “ Nemo potest exuerz Patriam,” he opposes Cicero’s still older “Ne quis irwitus in civitate maneat.” We quite agree with the Ciceronian view, and can see the force of M. Cogordan’s deduction from it that free will is the basis, as of every contract, so of the contract of nationality, supposing that we can agree to allow that position to what otherjurists might call by adifferent name. The indelible character which the birth theory and the old doctrine of allegiance imposed upon nationality is gone. But we do not think that its place has yet been taken by any one clear, harmonious system of doctrine, and therefore we recommend to jurists of all countries the careful study of M. Cogordan’s very thoughtful and interesting volume, as a help towards the solution of the intricate problem of Nationality in International Law. >1= =i=
Our able American contemporary, the Albany Law journnl, in its issue of October 9th, notices a case which involves a grave question of International Policy as well as International Law, in relation to the mixed tribunals in Egypt. A naturalised American citizen, commorant within the jurisdiction of the Courts, was indicted on a capital offence. In such cases, it would seem, the U. S. revised statutes allow a concurrent jurisdiction to their Minister and their Consul, but with this curious difference, that the Consul must associate with himself on the trial, at least four citizens, whom the Minister selects from a list furnished by the Consul, and no conviction can be had without the unanimous assent of the assessors. If the Minister tries the case, however, there appears to be no such provision. The consequence of this remarkable condition of the American
statute book has been that a diplomatic oflicer has been able to
exhibit the probably unique spectacle of a judge, not trained to the administration of the law, sitting alone, without a jury, and condemning a man to death on his sole responsibility. Obstuj>uit mundus! VVithout entering upon the question whether either associate-judges or jury would have made any difference in the sentence rendered, we may say at once that the mode of rendering it enforced by the rules which governed the U. S. Minister to the Porte is not likely to be favourably commented upon in any version of the “reglement " of the mixed Courts. That some such revision must soon take place is patent from the near approach of the date when the Capitulations will revive if the Courts are not re-established. We have welcomed this opportunity of bringing up the subject, because we feel its importance, and are only surprised at the apathy which seems to prevail. We do not hear of any diplomatic interchange of opinions as to the best course to pursue in 1881, and yet 1881 is very near at hand. The Egyptian Courts gave rise to some lively discussion at the Antwerp meeting of the Association for the Reform and Codification of the Law of Nations in 1877. Nobody, we believe, would deny that revision is wanted, but most persons, so far as we can gather, who are acquainted with the old and the new systems ofjurisdiction in Egypt, would vote for the re-appointment of the Courts for at least another term of years. After due revision of their constitution and powers, we may observe, with regard to any dissatisfaction felt as to the Mirzan case, that, to say as is said by the American journal, the Saratogian, cited, without adoption of its views, by the Albany Law 701mm], that an American citizen who is “ not satisfied" with the system which would condemn him to death in a foreign country on the decision of a single judge, ought to " remain within the jurisdiction of the Constitution," is a recommendation which, in these days of constant travel, and as offered to a travelling people like the Americans, seems to carry within itself the foregone conclusion of its rejection. To say, as the Saratogian says, that an American citizen, if he does go abroad, should “ refrain absolutely while abroad from the commission of crimes," is to utter something very like a platitude. VVe can only repeat, in conclusion, that whatever is done in regard to the Egyptian Courts must be done speedily. \\"e hope it will also be done well and carefully, so as to strengthen the hands of justice.