lying territory is no less essential to the full exercise of the treatymaking power of the United States, which "extends to all the proper subjects of negotiation between our government and the governments of other nations," than is the power to acquire. Various treaties have been concluded by which the United States has relinquished extraterritorial rights theretofore enjoyed in other countries.112 By the convention between the United States, Great Britain and Germany, signed December 2, 1899, the United States renounced in favor of Germany all its rights and claims in respect of certain islands of the Samoan group, in consideration of like renunciations by Great Britain and Germany in favor of the United States of all rights and claims to the Island of Tutuila and all other islands of the Samoan group east of longitude 171° west. As the result of decisions of tribunals of arbitration, to which the determinations of disputed boundary lines have been referred, territory over which the United States had theretofore exercised jurisdiction has fallen within the jurisdiction of foreign powers. Thus, to take a recent case, by the decision of the Alaskan boundary tribunal, constituted under the treaty with Great Britain of January 24, 1903, to determine the boundaries of Alaska as described in the treaty between Russia and Great Britain of 1825, Wales Island fell to Great Britain, although Russia, and her successor, the United States, had continuously exercised jurisdiction over the island since 1825, in which Great Britain had acquiesced. It also appears that the government of the United States had erected a public building on the island.113 In treaties for the adjustment and direct settlement of disputed boundaries, notably in case of the Oregon treaty of 1846, and of the Florida treaty of 1819, the United States has accepted, in compromise, boundary limits much more restricted than those to which claim had been made. In the Oregon treaty, the United States accepted the 49th parallel, although the parallel of 54° 40′

112 See for recent instance, the treaty with Great Britain, signed February 25, 1905, in which the United States relinquished extraterritorial rights in the British protectorate of Zanzibar. The award of the arbitrators under the treaty with Great Britain of February 29, 1892, that the United States had no exclusive jurisdiction in the waters of the Bering Sea outside the ordinary three mile limit, was by virtue of the treaty the supreme law of the land and as binding on the courts as an act of Congress. La Ninfa (1896), 75 Fed. 513.

113 S. Rept. No. 2132, 58th Cong., 2d Sess.

had been claimed. In the reciprocal renunciations of the Florida treaty, the United States, in the language of the treaty, agreed to "cede to His Catholic Majesty, and renounce forever, all their rights, claims, and pretensions, to the territories lying west and south" of a line beginning at the mouth of the Sabine.114 The United States had claimed the Rio Grande as the boundary. In referring to the Florida treaty, President Monroe, in his annual message of December 7, 1819, said: "On the part of the United States this treaty was evidently acceded to in a spirit of conciliation and concession. **For territory ceded by Spain other territory of great value, to which our claim was believed to be well founded, was ceded by the United States, and in a quarter more interesting to her [Spain]."15 Resolutions were introduced in the House of Representatives by Mr. Clay, in which it was asserted that no treaty purporting to alienate any portion of the territory belonging to the United States was valid without the concurrence of Congress; and that the equivalent proposed to be given by Spain to the United States in the treaty for that part of Louisiana lying west of the Sabine, was inadequate. The resolutions were debated at length in the Committee of the Whole, April 3 and 4, 1820; but no vote appears to have been taken on them.116 Mr. Clay in his argument admitted that a treaty could, without the co-operation of Congress, fix the limits of the territories of the United States in dispute "when the fixation of the limits simply was the object, as in the case of the river St. Croix, or the more recent stipulation in the treaty of Ghent, or in that of the treaty with Spain in 1795. In all these cases, the treaty-making power merely reduces to certainty that which was before unascertained. It announces the fact; it proclaims in a tangible form the existence of the boundary; it does not make a new boundary; it asserts only where the new boundary was. But it cannot under color of fixing a boundary previously existing, though not in fact marked, undertake to cede away, without the concurrence of Congress, whole provinces." He contended that if the subject were one of a mixed character, being partly of cession and partly for the "fixation" of prior limits, the consent of Congress was necessary; but that in the Florida treaty it was not pretended

114 Art. III.

115 Richardson, Messages and Papers of the Presidents, II, 55. 116 Annals, 16th Cong., 1st Sess., 1719-1738, 1743-1781.

that the object was simply a declaration of where the western limit was; that it was, on the contrary, the case of an avowed cession of territory from the United States to Spain.117 Mr. Lowndes, of South Carolina, in replying to Mr. Clay, said: "In relation to questions of boundary, it was admitted on all hands that the treaty-making authority was competent to their adjustment; its competency must be equally admitted in relation to all unadjusted claims. He submitted then to the Committee, whether there could be any case of an adjustment of a claim to boundary, which did not include a cession of supposed right to territory by one or the other party. You may establish points; you may say there a colony was planted-here a man was shipwrecked; you may assert that these points include the territory to which you have a right; but the lines of your boundary must, after all, be adjusted by negotiation-by reciprocal agreement."118 Mr. Anderson, of Kentucky, likewise observed: "There is nothing which can, under the distribution of powers in our Constitution, be more certainly assigned to the President and Senate, than the settlement of disputed boundaries. Probably, there is no single subject on which so many treaties have been made. None which is more peculiarly the attribute of the department to which belongs the peace-making power. From the very great extent of our territory, and the undefined state of its limits, on several sides, this power must be frequently called into exercise. Its frequent operation on the settlement of differences of this kind, must have been contemplated by the Convention; and it could never have been intended, that, in a general grant of the power, it should be construed not to apply to cases, which had been invariably, in all countries, the subjects of its operation."119

117 Id., 1726.

118 Id., 1734.

119 Id., 1774. See, for resolution in reference to the Oregon treaty, Globe, 29th Cong., 1st Sess., 979.

CHAPTER XV.

LEGISLATION TO GIVE EFFECT TO VARIOUS OTHER TREATIES.

§100. Extradition of Fugitives from Justice.-The only treaty stipulation for the extradition of fugitives from justice, antedating the treaty with Great Britain of August 9, 1842, is found in Article XXVII of the treaty with Great Britain of November 19, 1794. A requisition for the delivery of a fugitive, pursuant to this article, made by the British government in 1799, was complied with, although there was no statute of Congress which authorized the surrender or prescribed the manner in which the treaty stipulation should be given effect.1 John Marshall, in his speech before the House of Representatives, March 7, 1800, in vindication of the action of the President in causing the fugitive to be delivered up, said: "The treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declaration." Mr. Justice Catron, in In re Kaine (1852), expressed doubt as to the propriety of the surrender.3

I Bee's Admir. Repts. 266. See also Fed. Cases, No. 16175; United States v. Cooper (1800), Fed. Cases No. 14865; In re Washburn (1819), 3 Wheeler's Crim. Cases 473.

2 Annals, 6th Cong., 614. Resolutions censuring the President were introduced in the House of Representatives by Edward Livingston, and supported by Albert Gallatin, but failed to pass by a vote of 61 to 35. Id., 533, 619.

3 14 How. 103, 111. Mr. Justice Catron describes the proceedings as follows: "The people of this country could hardly be brought to allow an interference of the President with the judges in any degree. The experiment was made during Mr. Adams's administration in 1799, and signally failed. Jonathan (or Nathan) Robbins had been arrested as a fugitive, under the 27th article of Jay's treaty, for murder in the British fleet. He was imprisoned at Charleston under a warrant of the district judge of South Carolina, and had been confined six months, when the Secretary of State addressed a letter to the judge, mentioning that application had been made by the British minister to the President, for the delivery of Robbins, according to the treaty. The letter said: "The President advises and requests you to deliver him up.' On this authority the prisoner was brought before the district court on habeas corpus, and his case fairly enough heard, to all appearance, from the accounts we now have of it; and the judge ordered the surrender in the following terms: "I do therefore order

On the other hand, Mr. Justice Gray, in Fong Yue Ting v. United States (1893), said: "The surrender, pursuant to treaty stipulations, of persons residing or found in this country, and charged with crime in another, may be made by the executive authority of the President alone, when no provision has been made by treaty or by statute for an examination of the case by a judge or magistrate. Such was the case of Jonathan Robbins, under article 27 of the treaty with Great Britain of 1794, in which the President's power in this regard was demonstrated in the masterly and conclusive argument of John Marshall in the House of Representatives."4

Stipulations for the extradition of fugitive criminals were made in Article X of the treaty of August 9, 1842 with Great Britain, and in the special convention of November 9, 1843 with France. It was held in the first circuit that, under the treaty with Great Britain, fugitives could be apprehended and surrendered without any legislation to carry it into effect. The court expressly found

and command the marshal, in whose custody the prisoner now is, to deliver the body of said Nathan Robbins, alias Thomas Nash, to the British consul, or such person or persons as he shall appoint to receive him.' The prisoner was accordingly delivered to a detachment of Federal troops stationed there, to aid in the surrender; and they delivered him to an officer of the British navy, who was ready to receive him on board of a vessel of war, in which he was carried away. That the judge acted by order of the President, and in aid of the executive department, was never disputed; and the then administration was defended on the ground that the treaty was a compact between nations, and might be executed by the President throughout; and must be thus executed by him, until Congress vested the courts or judges with power to act in the matter; which had not been done in that instance. 5 Pet. Ap. 19; 7 Am. Law Jour. 13. The subject was brought to the notice of the House of Representatives in Congress, by resolutions impeaching the President's conduct in Robbins's case, and where Mr. Marshall (afterwards Chief Justice of this court) made a speech in defense of the President's course, having much celebrity then and since, for its ability and astuteness. But a great majority of the people of this country were opposed to the doctrine that the President could arrest, imprison, and surrender, a fugitive, and thereby execute the treaty himself; and they were still more opposed to an assumption that he could order the courts of justice to execute his mandate, as this would destroy the independence of the judiciary, in cases of extradition, and which example might be made a precedent for similar invasions in other cases; and from that day to this, the judicial power has acted in cases of extradition, and all others, independent of executive control.” Id., 111-112.

4 149 U. S. 698, 714.