What provisions of this Code may be modified by special treaty.

199. Any two or more nations may, by special compact, modify the application of any of the provisions of this Code, in respect to themselves, and persons and things within their exclusive jurisdiction, but not in respect to the other parties to the Code, or their members.

No treaty between two or more nations should absolve either from obligations to other nations created or defined by the Code.

Demand of performance, when necessary.

200. Except in respect to an act therein stipulated to be performed at a certain time, the performance of a treaty must be demanded before any nation, party thereto, can be placed in default.

Heffter, § 94.

Merger of preceding communications.

201. All communications, written or verbal, between the parties to a treaty, preceding its signature, and relating to the subject thereof, are merged in the treaty.

This provision is from Lawrence's Wheaton, p. 442; extended to writ ten communications, not referred to expressly, or by necessary impli cation.

Extinguishment of obligations created by treaty. 202. An obligation created by treaty is extinguished, either,

1. By its full performance; or,

2. By renunciation of the party entitled to perform

ance; or,

3. By the subsequent permanent impossibility of performance, without the fault of the party bound; or,

4. By fulfillment of the conditions, or the expiration of the time, expressed in the treaty for its extinguishment;' or,

5. By breach of its conditions by the nation entitled to performance; or,

6. By rescission' of the treaty, through common

consent.

'The effect of changes in form of government, and of division or an. nexation of nations, is more fully treated in Chapter III., respecting PERPETUITY. Klüber, § 145.

? The insertion of this clause recognizes the right of a party to a treaty to declare itself released from an obligation imposed thereby, when the other party fails to fulfill the conditions of such obligation. This principle is applicable to contracts, generally. Its application to treaties is, however, disputed; it being claimed that no Power can set aside, amend, or modify treaty stipulations, by its own will, and without the consent of all the other contracting parties.

In the matter of the Black Sea, Russia informed the parties to the Treaty of Paris, (March 18-30, 1856,) that a breach of the stipulations for the neutralization of the Black Sea, entitled her to be released from the obligations contained in the treaty, to limit her naval forces to inconsiderable dimensions; and assented to a conference either for a confirmation, or renewal, or modification of the stipulations of the treaty, or for its rescission through common consent.

3 Wheaton, (Dana's ed., § 283,) adds, that treaties may be avoided upon the ground of the mutual error of the parties respecting a matter of fact. It should seem better, however, to leave this and the other cases of rescission to the rules applicable to controversies between nations.

CHAPTER XVI.

INFORMAL COMPACTS.

ARTICLE 203. Informal compacts may be made.

204. Ratification of written compacts made by unauthorized agents.

Informal compacts may be made.

203. Compacts, other than treaties, may be made in writing' between nations, without the formality of a treaty.

1 Wheaton, (Lawrence's ed., p. 442,) says, modern usage requires that verbal agreements should be reduced to writing.

Ratification of written compacts by unauthorized agents.

204. The consent of a nation to an agreement in writing, made on its behalf by a person not authorized, may be given expressly, or by acting under it as if duly concluded and ratified.

Lawrence's Wheaton. p 442.

TITLE V.

REMOVAL OF PERSONS.

CHAPTER XVII. Asylum.

XVIII. Extradition.

CHAPTER XVII.

ASYLUM.

ARTICLE 205. Right of asylum.

206. Exclusion of criminals.

207. Abuse of asylum.

208. Return.

209. Obtrusion of convicts, paupers, &c.

Right of asylum.

1

205. No nation is bound to surrender a person within its exclusive jurisdiction' to any foreign power, except in cases provided for by this Code, or by special compact.

1 Until recently, the obligation of a nation to deliver up criminals upon the demand of a foreign nation, has been a disputed point; but now the weight of authority seems to be against it.

Twiss, (Law of Nations, Part I., § 221,) states the rule substantially as above. See also Lawrence's Wheaton, on International Law, p. 233; and Woolsey's International Law, § 79.

Bluntschli, (Droit International Codifié, § 395,) says, the obligation to surrender exists only in the case of special treaties, or when the general safety demands it; and in the latter case, it relates only to grave crimes, and demands by a nation whose penal system offers guarantees of impartiality and humanity. See also Section I., as to EXTRADITION OF CRIMINALS, of Chapter XVIII., entitled EXTRADITION.

The right of asylum extends not only to the territory of the nation, but to other places within its exclusive jurisdiction, which are hereafter defined. The application of the rules proposed by the Code would solve

the vexed questions of refugees from ship to shore, and shore to ship, when arising between nations parties to the Code, in the following

manner:

Against a public armed ship, a demand for surrender could not be enforced :

In the case of an unarmed ship, private or public, within the jurisdic tion of a nation, process of the nation could be executed on board, and therefore a deserter or criminal might be arrested, either for prosecution in the courts of the country, or for surrender to another nation, or its ships.

In the case of deserters from ship to shore, application would have to be made to the local authorities, under the provisions of this Title.

By the existing rule, which would, of course, still be applicable in the case of nations not parties to the Code, a demand for the surrender of a person escaping from a nation to a foreign ship within its waters, must first be made on the officer in command. If he refuse, and the ship is a public armed ship, redress must be sought from his government. If the ship be a private ship, application must be made, after such refusal, to the consul of his nation, or to the public armed ship of such nation stationed at the port and it is only when such application does not avail, that resort to force can be had. Guide Pratique des Consulats, vol. 2, p. 171; Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 301.

Exclusion of criminals.

206. No nation is bound to furnish an aslyum to criminals from foreign countries; and it is for each government, or its authorized officers,' to determine the cases, and manner in which such persons shall be excluded or removed.

1 The commanding officer of a ship of war may expel a refugee, without awaiting proceedings in extradition. Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 299.

Every nation has an undoubted right to surrender fugitives from other States. No man has a right to say, I will force myself into your territory, and you shall protect me. Commonwealth v. Deacon, 10 Sergeant & Rawle's (Pennsylvania) Rep., 125.

Dana says, that the general tone of the judicial decisions and of political debate in the United States has been adverse to the right of a government, in the absence of treaties and statutes, to surrender a fugitive criminal. Dana's Wheaton on International Law, § 115, note [73.]

Such surrender was, however, once made in the United States, in the case of Arguelles, governor of a district in Cuba, who, having sold into slavery a number of Africans who were in his charge as an officer, escaped to New York. There was no extradition treaty between the United States and Spain; but upon proof of the facts to the Secretary of State, and a request by the Spanish authorities for the arrest and surrender of

"

Arguelles as an act of favor and comity, not only because of his offense, but also because his presence in Cuba was necessary to the liberation of the Africans he had sold, the Secretary of State, with the sanction of the President, ordered his arrest and surrender, as a purely executive act. The Senate (May 28th, 1864,) inquired of the President under what au thority of law or treaty this was done. The response of the Secretary of State took the ground that although there is a conflict of authorities concerning the expediency of exercising comity towards a foreign gov ernment, by surrendering at its request one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals, who are offenders against the human race; and it is believed that if in any case the comity could with propriety be practiced, the one which is understood to have called forth the resolution furnished a just occasion for its exercise." United States Diplomatic Correspondence, 1864, Part II., 60-74; Congressional Globe, 1864.

A resolution introduced into the House of Representatives, condemning this act, as a violation of the Constitution and in derogation of the right of asylum, was rejected by a large majority, and the subject referred to a committee; but it was followed by no further action of Congress. An indictment was found in the State courts against the marshal who made the arrest, charging the act as an offense against the statutes respecting kidnapping; but the case has not been brought to trial. The question

involved affected not only the right of the United States, but the right of the President to act, in the absence of a statute; and neither question can be considered settled by the case.

Abuse of asylum.

207. One who uses his aslyum for promoting hostilities against a foreign country, may be proceeded against under the law of the nation of his asylum, or may be surrendered to the nation aggrieved.

Bluntschli, (§ 398,) states the rule to be, that, in case of abuse of asylum, the nation which has granted the asylum is bound, as toward a friendly nation, to withdraw its permission to the refugee to sojourn upon its territory, or to impose such restrictions as shall preclude all danger to the country of the refugee.

The right of a State to demand that rebellious subjects shall not be allowed to plot against it in the territory of another State, cannot, when stretched to its utmost limit, be extended beyond the point of requiring the foreign State to send the fugitive in safety elsewhere; and the de mand can only be legally made when the State has confessed or demonstrated its inability to restrain the fugitive from carrying on plots against the country from which he has fled. Phillimore's International Law, vol. I., p. 415.