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Spain, because with regard to the Spaniard this quality of treatment would not only not be assured, but would be completely wanting.
Let us examine this suggested principle of equality of con- @titutional treatment a little more closely; it will be found to
supply one of reasons which explain and justify the doctrine that treaties are non-existent during war in its special appli- cation to extradition treaties. It is well-known that during war enemy subjects are liable to special treatment (Now Encyclop XIV 564). They may be axiżuż ordered to leave the Country: they may be subjected to special exactions if they remain: so far as
the civil law is concerned their contracts are not enforceable
in the Courts: and so far as the criminal law is concerned, I
will not say that they would not have a fair trial, but it is
doubtful that treatment they would receive from an excited jury.
But this is certain, that in the event of law martial being
enforced (I use this term in order not to confuse it with
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'Martial Law" as is so often done), they would be likely to
receuve sterner treatment than the subjects of neutral States.
I contend then that even if there were no such admitted doctrine
as that treaties cease to exist between two belligerent States,
these considerations show that there is abundant justification
for the doctrine that extradition treaties would cease to exist
in such circumstances, and that this justification would extend
In the case of war between two other countries, to prevent the
surrender from England of a subject of an belligerent on the
requisition of the other belligerent.
I now go one step further, and will endeavour to justify
the proposition, that extradition treaties are based on equally
of constitutional treatment of the fugitive, and that this is
conceived as existing only in time of peace.
(5)