DCCCCLXVII. An English Court of Equity would enforce, under the old law, for the benefit of the crown, a trust of real estate created in favour of an alien. The devise being valid, and there being a cestui que trust, who could take, but not hold, the crown became entitled beneficially, but not the trustee or heir-at-law (p).

(p) Barrow v. Wadkin, 24 Beavan, 1; 3 Jurist N. S. 679.

This rule of law is now repealed by 33 Vict. c. 14, § 2. Vide supra, vol. i. App. iv.

CHAPTER XLVIII.

PRIVATE INJURIES-WHERE TO BE REDRESSED.

DCCCCLXVIII. WITH respect to the class of quasi obligationes arising from the infliction of an injury (maleficium) upon a private individual, it is to be remembered that the prosecution of the injurer may have two objects—

1. Pecuniary reparation to the injured party, to obtain which a civil action may suffice. In this case, as Donellus says, "Civiliter agitur, id est de privato damno, et pecuniâ, "quam inde debitam actor prosequatur " (a).

2. Or, secondly, the object may be the vindication of the authority of the law; the punishment of the offender; the deterring others from the commission of the like offence. To obtain one or all of these ends the criminal action is necessary: "Quatenus" (to use again the words of Donellus) "de his agitur criminaliter ad pœnam et vindictam

criminis."

The Penal or Criminal Law of a State appertains, therefore, partly to its Private, partly to its Public Law.

DCCCCLXIX. That portion of it which relates to Public Law, so far as its administration affects the welfare of other States, so far as it partakes of an International character, has been already treated of in the first volume of this work. For instance, whether a State, apart from

(a) Donellus, Com. de Jure Civili, lib. xvii. c. xvi.: "Ubi de maleficiis et criminibus agi oportet.”

Bar, § 66.

Wharton, ch. xi.

See Phillips v.

Eyre, L. R. 4 Q. B. 225; 6 Q. B. 1.

treaty, is bound by the obligation of extradition-how far, and between what States, treaties upon this subject have affected the general law-exterritorial jurisdiction in the case of crimes committed on board national ships on the high seas-mixed jurisdiction in the case of crimes committed on board foreign ships on the high seas—the crime of piracy on the high seas the high seas the peculiar jurisdiction allowed by sufferance or treaty in Mahometan and heathen countries are matters which concern directly the State in its collective capacity, and not individuals; or which, indirectly concerning individuals, and appertaining to Comity, have been treated of in the former volumes of this work (b).

DCCCCLXX. But Comity or Private International Law may be properly said to be (c) concerned with injuries committed against the property or person of some one resident or commorant within the limits of its jurisdiction, for which injuries a civil reparation is demanded; and it is proposed to offer a very few observations on the jurisdiction which is or ought to be exercised by the ordinary domestic tribunals of States upon this subject.

DCCCCLXXI. There are some questions which are improperly classed under this head, but which clearly belong to the category of Public Law (d).

For instance, whether a State will take cognisance of an offence committed by one of its subjects within the jurisdiction of a foreign State, and if so, what law and what forms of procedure it will apply to his trial (e), are clearly questions of Public, and not of International Law. "The "lex loci" (Lord Brougham observes)" must needs govern

(b) See Vol. I. Part III. ch. ii. xviii. xix. xx. xxi.

See also Folix, ii. titre ix.

Story, chapter xvi. On Penal Laws and Offences.

Essay on Foreign Jurisdiction and the Extradition of Criminals, by the Right Hon. Sir G. C. Lewis, 1859.

(c) Savigny, viii. is, however, of a contrary opinion.

(d) Vide antè, vol. i. p. 387, § cccxxiv.

(e) Fœlix, t. ix. ch. ii. and ch. iv., treats of both these questions.

"all criminal jurisdiction from the nature of the thing and the "purpose of the jurisdiction" (ƒ).

DCCCCLXXII. A State, however, lies under no obligation, and it is not within its moral competence, to punish a person happening to be resident within its limits, but who is not its subject, and who is charged with having committed a crime, out of its jurisdiction, against the subject of a third State. Jurists, however, are not agreed upon this point; and many contend that a delictum, an offence against Natural Law, is, wherever it has been committed, punishable everywhere. Some are of opinion that the State in which the criminal is ought to punish him, if the State in which he committed the crime made a request to this effect, but not if it be made by the injured person. Others think that the criminal ought to be surrendered; others, that he ought to be expelled from the State.

DCCCCLXXIII. It is, however, within the moral competence, and, indeed, obligatory upon a State, to punish all crimes committed within its limits, not only upon one of its own subjects, but upon any person commorant within its dominions. Nor can it make any difference in principle whether the injured person happen to be or not to be within the dominions at the time when the injury is inflicted. For instance, if a forgery be committed within the realm to the injury of an absent stranger, he is not the less on account of his absence entitled to insist upon criminal proceedings being taken against the forger. These principles are generally maintained by International jurists and writers on Public and Criminal Law, and are incorporated into the texts of many modern codes. It is a subject of legitimate. surprise to find writers of this class maintaining the proposi tion (g) that a State is not obliged to cause or allow a criminal to be prosecuted, if both the offender and the

(f) Warrender v. Warrender, 9 Bligh, 125; 2 Clark & Fin. 520,

(g) Falix, s. 573.

offended are merely commorant within its limits, and are not subjects. Such commorant persons, however, certainly owe a temporary allegiance to the State, and are, therefore, independently of any question of maintaining public order, entitled to a temporary protection, both in civil and criminal matters, or in those which partake of the character of both, such as cases of civil damages demanded for criminal offences.

DCCCCLXXIV. The general rule, Felix remarks, adopted by the positive legislation of States on this subject, which is one of Public Law, is to permit the criminal prosecution of a foreigner on account of crimes committed in another State only in those cases in which, either the State in which the prosecution is to be carried on has been in its collective capacity injured by the crime, or in which the crime has been of the gravest kind (de la plus haute gravité) (h). The effect of this rule is to make the Criminal Law of a State a personal (i) statute to its subjects, travelling with them, and inseparably attached to them, wherever they happen to be; and such is the doctrine of Paul Voet (k) and others. It was the opinion of Bartolus (1) that if, and when, a State did take cognisance of crimes committed by foreigners in a foreign State, it must proceed according to the Criminal Law of that State "Ut possit contra eum procedi et puniri secundum statuta suæ civitatis a proposition sufficiently impracticable, it should seem, to prove the wisdom and justice of abstaining altogether from such experiments.

DCCCCLXXV. According to the French Law (m) contained in the 5th, 6th, and 7th articles of their Criminal Code, every Frenchman guilty of a crime against the safety

(h) Sec. 574.

(i) Vide antè, p. 244.

(k) De Stat. s. iv. ch. ii. n. 6.
Story, s. 625.

(1) Vide antè, p. 249, n. 47.

(m) Fælix, s. 550.