capital cases, the application must be made to two judges of the supreme court; in other cases to one judge. The error must be a substantial one, appearing on the record itself, or made part of it by a bill of exceptions. The course of proceeding is nearly the same as in civil cases, before explained. In capital and penitentiary offences, the writ is either made returnable forthwith to the supreme court wherever it may be sitting, or to the next court in bank; and in the mean time an order is made for the suspension of the sentence. In other cases, the writ is made returnable to the next term of the court in the proper county; and a recognizance to prosecute it to effect is required before suspending the sentence. On hearing the writ of error, if the judgment be reversed, the court may either order a new trial, or an absolute discharge, according to the nature of the case. If the prisoner be already in the penitentiary, it is made the duty of the keeper to transport and deliver him to the sheriff of the county. If the judgment below be affirmed, the only hope of the convict is to obtain a pardon.

2. Pardon. (a) By our constitution the governor has power to grant reprieves, commutations, and pardons after conviction in all cases except treason and impeachment. The president has a similar power by the federal constitution; but it is not specified whether before or after conviction. The propriety of this disposition of the pardoning power has been already considered. The effect of a pardon in this State is to restore a convict to all his civil capacities. The acts of Congress say nothing on this subject. The governor is required to communicate to the general assembly each case in which he exercises this power, with his reasons. Since 1852, notice is required to be given to the prosecuting attorney, and also to be published, of every application for a pardon, at least three weeks previous to the application. In capital cases a reprieve may be granted upon conditions, to be accepted in writing by the convict, upon breach of which the original sentence may be

enforced.

$245. Execution. (b) If the effect of the judgment be not prevented in one of these ways, it must be carried into execution. If the judgment be death, the sheriff, or in his absence, the coroner, must be the executioner; for the language of the statute is such that a deputy sheriff cannot act in this case. Under the laws of the United States the marshal is the executioner. If the judgment be imprisonment in the penitentiary, the sheriff, with such assistance as may be necessary, must transport the convict, within thirty days, to the penitentiary, and deliver him, together

ney may take exceptions to the ruling of the court, and take them to the supreme court; but the decision is not to affect the judgment in the case below, but merely to settle the law in future cases. SS 157-160.

(a) See State v. Gardiner, Wright's Rep. 404-6; 4 Black. Com. ch. 32; 1 Chit. C. L. ch. 20.

(b) 2 Black. Com. ch. 32; 1 Chitty's Crim. Law, ch. 20.

with a copy of the sentence and bill of costs, to the warden; who thereupon pays the costs; and then deals with the convict according to the directions of the law governing the penitentiary. If the judgment be imprisonment in jail, the prisoner is forthwith. remanded; and the jailer, under a penalty for disobedience, must see the sentence strictly performed. Finally, if the judgment be a fine, the convict must either pay it at once, or be committed until payment; or, if not committed, execution may issue as in civil cases.

From the view now presented of criminal proceedings, it will be obvious that the most jealous precautions have been taken to prevent the power of punishment from being abused. No important matter has been left even to legislative discretion; but from the arrest to the execution, the rights of the accused are carefully guarded by constitutional declarations. First, an oath must be made against him, before he can be arrested; then, he must be examined before a magistrate before he can be committed; then, he may give bail, and the bail cannot be excessive; then, between commitment and trial he may have his case reheard on habeas corpus, or before a single judge, or before the examining court; then, twelve impartial men must concur in finding an indictment against him; then, he may have counsel and witnesses, and every other means of making his defence; then, he may apply for a new trial, or an arrest of judgment, or for a writ of error, or pardon, after judgment; and, finally his punishment, if it cannot be avoided, can be neither cruel nor unusual. So far, therefore, as the offender is concerned, the security against being improperly punished is all that can be asked for. And, on the other hand, the public are sufficiently provided for, in the certainty that the punishment prescribed will be inflicted. The simplicity of all the proceedings is such, that the prosecuting attorney is inexcusable if he fail to procure a conviction from not complying with the requisite forms. In this respect criminal proceedings compare very advantageously with civil; and this very fact serves to prove, that there is nothing in the nature of the case to prevent civil proceedings from being simplified in the manner heretofore proposed.

48

PART VII.

INTERNATIONAL LAW.

LECTURE XLI.

PUBLIC INTERNATIONAL LAW.

§ 246. Preliminary Considerations. We have now completed such a survey as our plan would permit, of our internal or domestic law, comprehending whatever is ordained by our own government for the regulation of persons and property within our own jurisdiction. But the operation of law is not confined to these limits. We constitute one of the great family of nations, our relations with each of which as much require to be regulated by law as do the relations between individuals composing one nation; and this law no one nation can prescribe or administer for itself alone. Accordingly, there yet remains another division of law, which we denominate international. This has usually been made the first part of a course of legal study. Instead of adopting the synthetic method, as I have, and commencing with the simplest elements of municipal organization, writers have generally preferred to begin where this process would end, and to pursue the inverse order of analysis. Accordingly, they have commenced with the aggregate of human beings inhabiting the whole earth, and made a primary division of them into those great communities which we call nations. They have then proceeded to treat of these nations as a kind of complex persons, possessing a collective unity, though composed of associated millions; and have expounded their rights and obligations in advance as constituting the first and highest branch of law. In this way, they have introduced us to international law, before they have informed us how nations are constituted. In other words, they have exhibited the external relations of nations before explaining their internal organization. But for reasons which appear to me sufficient, I have preferred the opposite course. Certainly, the most simple and natural method is to begin at home, and gradually widen the circle of inquiry. Besides, there is an

important part of international law which cannot well be understood, until domestic law has been first explored.

I shall consider this subject under two distinct subdivisions, devoting a lecture to each. Of course, I can only exhibit the most general outlines. In the present lecture, I shall present a concise epitome of the public law of nations, strictly so called, comprehending that system of rules by which nations are governed in their intercourse with each other, as well in peace as in war. In the next lecture, I shall consider the private law of nations, having for its object to ascertain in what cases of conflict between the domestic and foreign law, respecting private rights, one nation is bound to recognize and enforce the laws of another.

You will readily perceive, that if these inquiries are not as practical as those which have hitherto occupied us, they more than make up in dignity what they lack in every-day utility. They contemplate mankind from a loftier eminence, and embrace in their scope a far wider horizon, than any of the subjects before discussed. The law we have been considering rests upon direct and positive sanctions. The same power which ordains it enforces obedience. But international law relies upon moral sanctions alone. The sublime spirit which animates the whole system is submission to the right. Nations stand, not upon legal compulsion, but upon their own honor and integrity. Their grand maxim is, fides est servanda good faith is to be preserved. By this title they hold their domains, and on this basis they frame their contracts. Acknowledging no allegiance to any human power, they fear not the sentence of any human tribunal. Their profession is to demand nothing that is not right, and submit to nothing that is wrong; and when their rights are violated, there being no power to grant them redress, they redress themselves. These and similar considerations give to international law a grandeur and dignity which belong to hardly' any other subject of investigation.

But here the question arises, how and by whom is this law ordained? There being no great international legislature, no general congress or common government of nations, whence originates the law which controls them? Dispensing with much unprofitable discussion, I briefly answer that nations, like individuals, are bound to observe the immutable and eternal principles of natural justice; and these, accordingly, form the professed basis of the international code. Hence the law of nature and the law of nations are sometimes spoken of as synonymous. But in point of fact, as nations might not in all cases concur in the application of these abstract principles to their own concerns; and as, in case of difference of opinion, there is no common umpire to adjust such controversy, recourse is necessarily had to the binding authority of usage; and the fundamental doctrine is that nations are bound by what custom has settled. The law of nations, therefore, belongs to the department of unwritten law; and may be described as a collection of usages and precedents, dating as far back as the earliest histories,

and gradually accumulating with the progress of ages, until the aggregate, by general, though tacit adoption among civilized nations, has become a comprehensive body of established law, whose sanctions are, the public opinion of mankind on the one hand, and the countless evils of war on the other. The original source of information, therefore, is history, in which the doings of nations are recorded. But the student is relieved from traversing the wide field of history, by the splendid labors of distinguished writers, such as Grotius, Puffendorf, Bynkershoeck, Burlamaquy, Vattel, Wheaton, and many others, who have collected and arranged the original elements, and thrown around them the light of their own luminous reasonings. (a)

Of the history of international law I have not room to speak. Suffice it to say, that whatever is most valuable is of comparatively modern date. There could be little sense of obligation among nations, so long as it was held a maxim that nations are natural enemies, and that war is their congenial element. But in recent times, a mighty change has taken place in public sentiment upon this subject. Nations are now regarded as natural friends, and peace their proper condition. The dictates of humanity have been listened to by governments; and they hold that war is only to be resorted to when all other means of adjusting controversies fail, and then is to be conducted with all possible clemency. In fact, philanthropy can derive from history no subject of more gratifying contemplation, than the improved state of international intercourse.

§ 247. First Principles. Our subsequent inquiries will be greatly facilitated by attending, at the outset, to those leading ideas or first principles which lie at the foundation of the law of nations. And first, what constitutes a nation? By a nation in the sense in which I am now using the term, I understand a society of people so organized as to govern themselves independently of foreign powers. The elements of such organization have been before considered. The particular form of government is not here material. It may be a democracy, aristocracy, monarchy, or despotism, or a combination of these; it may be either consolidated or federative; and it may or may not have colonies, or other dependencies. These are consideratious which do not enter into the definition. The simple criterion is independent self-government in some form or other. What that form shall be, is a question for the people of each nation to determine for themselves. Other nations look only to the fact of independent self-government. Hence it follows that if a community be in any way dependent upon or subordinate to another community, it is not of itself a nation, but only a part of a nation on which it depends. Thus the American colonies, before the

(a) The student is advised to read the first nine lectures of Kent, and Wheaton's Elements of International Law, the sixth edition of which is enlarged by W. B. LawSee also 4 Black. Com. 66. There are late editions of Wheaton by Lawrence and R. H. Dana, Jr.

rence.