"The provisions of the present Convention shall not apply in any manner to crimes of murder, forgery, or fraudulent bankruptcy committed antecedently to the date thereof."

"The present Convention shall be in force until the 1st of January, 1844, after which date either of the High Contracting Parties shall be at liberty to give notice to the other of its intention to put an end to it, and it shall altogether cease and determine at the expiration of six months from the date of such notice 54"

It will be seen that the stipulations of both these Treaties apply to all persons indiscriminately, who may be charged with any of the enumerated crimes, without any regard to their Nationality. A Convention of Extra-Tradition, comprising a much greater number of crimes, but specially excepting native subjects or citizens of the party upon whom the requisition may be made, was signed at London (May 28, 1852) between France and Great Britain. It was provided by the Fifteenth Article, that the Convention should come into operation when an Act of Parliament should have passed to enable her Britannic Majesty to carry into execution the arrangements of the Convention; but the British Parliament declined to give the Executive Government the necessary Powers to execute its provisions. The Convention accordingly has remained inoperative. With regard to Treaties for the mutual surrender of criminals, there is a material difference in the power of the Executive Government, as exercised under the British Constitution, and under the American Constitution. An Act of Congress was passed on the 12th August, 1848, under which the Executive Govern54 Hertslet, VI. p. 345. Martens, N. R. Gén. V. p. 20.

ment of the United States is empowered to give effect to Treaty-stipulations with Foreign Governments, which provide for the mutual surrender of criminals; whereas no analogous Powers have been granted by Parliament to the Executive Government of Great Britain, but a special Act of Parliament is required in each case to enable the British Government to give effect to a Treaty of Extra-Tradition. Such a Treaty, however, will have immediate effect in the Colonies of Great Britain.

Treaties of §225. Treaties of Boundary belong to a class of Boundary. Treaties, which are regarded by Jurists as perpetual in their nature; so that, being once carried into effect, they subsist independently of any changes which may supervene in the political circumstances of either contracting party, unless they are mutually revoked. Vattel 55 speaks of Compacts which have no relation to the performance of reiterated acts, but merely relate to transient and single acts, which are concluded at once, and suggests that they may be more properly called by another name than that of Treaties. Martens 56 has accordingly proposed to call them Transitory Conventions, which Wheaton approves. Les Traités de cession," says Martens, "des limites, d'échange, et ceux même qui constituent une servitude de Droit Public, ont la nature des Conventions transitoires; les Traités d'amitié, de commerce, de navigation, les alliances égales et inégales ont celle des Traités proprement dits (foedera). Les Conventions Transitoires sont perpetuelles par la nature de la chose."

To the same effect Mr. Wheaton 57 says, "General Compacts between Nations may be divided into what

55 Droit des Gens, L. II. § 292.
56 Martens, Précis, § 58.

57 Wheaton's Elements, Part III. c. 2. § 9.

are called Transitory Conventions, and Treaties properly so called. The first are perpetual in their nature, so that, being carried into effect, they subsist independently of any change in the sovereignty and form of Government of the Contracting Parties: and although their operation may in some cases be suspended during war, they revive on the return of peace without any express stipulation. Such are Treaties of Cession, Boundary, or Exchange of Territory, or those which create a permanent Servitude in favour of one Nation within the Territory of another.

The principle involved in the doctrine of Jurists, that such Treaties are perpetual in their nature, may be thus stated. The International Acts, which have in view the settlement of a territorial boundary, are in substance Declarations or Recognitions of a Nation's title to a given territory, although they assume for the most part the form of Compacts. The form has come into use, partly because articles for the cession of territory or for the settlement of a territorial boundary between belligerents, are frequently comprised amongst the articles of a Treaty of Peace, partly because that form has been considered to confer upon the transaction a more binding character, than that which might be supposed to attach to a simple Declaration. But a Treaty of Boundary, as an Agreement or Convention, does not exercise any more permanently binding force upon the parties vigore suo, than any other Treaty. The more correct view would seem to be, that the arrangements under the Treaty derive their character of permanence not from the Treaty, but from the Common Law of Nations, inasmuch as when a Nation has once recognised another Nation to be in lawful Possession of a territory, the

Judicial
Decisions

as to the

Permanent

Object of

Certain
Treaties.

Right of Possession of the latter is thereby established against the former Nation, whatever changes may subsequently arise in their mutual relations, as friends or foes. The Common Law of Nations maintains the latter Nation in its State of Possession, whenever such Possession has had a lawful origin, and the former Nation is by that Law for ever precluded from challenging the lawful origin of a State of Possession, which it has once solemnly recognised.

§ 226. The Practice of Nations accords perfectly with the doctrine of Jurists in this matter. Thus a question was raised before an English Tribunal touching the interpretation of the Ninth Article of the Treaty of 179458, between Great Britain and the United States of America, which is as follows: "It is agreed that British Subjects, who now hold lands in the territories of the United States, and American Citizens, who now hold lands in the dominion of his Majesty, shall continue to hold them according to the nature and tenure of their respective states and title thereto, and may grant, sell, or devise the same to whom they please, in like manner as if they were Natives and that neither they nor their heirs and assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as Aliens." The question raised in the Rolls Court 59 in this case in 1830 was, whether by the Article above recited American Citizens, who held lands in Great Britain on 28th day of October, 1795, are at all times to be considered, as far as regards those lands, not as Aliens, but as Native Subjects of the Crown of Great Britain."

The 28th Article of the Treaty had declared that

58 Martens, Recueil, V. p. 662.

59 Sutton v. Sutton, 1 Russell v. Mylne, p. 663.

the ten first Articles should be permanent, but the Counsel in support of the objection to the title contended that it was impossible to suggest that the Treaty was continuing in force in 1813, as it necessarily ceased with the commencement of the War; that the 37 G. III. c. 97. (which was passed to give effect to the Treaty) could not continue in operation a moment longer without violating the plainest words of the Act; that the word 'permanent' was used not as synonymous with perpetual or everlasting' but in opposition to a period of time expressly limited." On the other hand, the Counsel in support of the title maintained, that "the Treaty contained Articles of two different descriptions, some of them being temporary, others of perpetual obligation. Of those which were temporary, some were to last for a limited period, such as the various regulations concerning trade and navigation, and some were to continue so long as Peace subsisted, but, being inconsistent with a state of War, would necessarily expire with the commencement of hostilities. There were other stipulations which were to remain in force in all time to come, unaffected by the contingency of Peace or War. For instance, there were clauses for fixing the boundaries of the United States. Were the boundaries so fixed to cease to be the boundaries the moment that hostilities broke out?"

Sir John Leach, who at such time filled the office of Master of the Rolls, in pronouncing judgment said, "The privileges of Natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the Treaty, that the operation of the Treaty should be permanent and not depend upon the continuance of a state of Peace."