$157. Treaties for Transfer of Territory.-It was a principle of the civil law in the transfer of corporeal property, adopted as a rule of international law in the transfer of territory, that the right to the property and possession must be united in order to give plenum dominium.10 "All concur," said Sir William Scott, in the case of the Fama, "in holding it to be a necessary principle of jurisprudence, that to complete the right of property, the right to the thing, and the possession of the thing itself, should be united; or, according to the technical expression, borrowed either from the civil law, or as Barbeyrac explains it, from the commentators on the canon law, that there should be both the jus in rem, and the jus in re.-This is the general law of property, and applies, I conceive, no less to the right of territory than to other rights." The Fama, the property of an inhabitant of Louisiana, had sailed from New Orleans, April 5, 1803, and had been captured by a British cruiser in May, 1803, and held as enemy (French) property on the ground that Louisiana had been ceded by Spain to France by the secret treaty of San Ildefonso. Actual possession of the territory had not been taken. Restitution of the prize was ordered on the ground that full sovereignty could not be held to have passed by the mere words of the treaty without actual delivery, and that until possession was actually taken the inhabitants were not impressed with the enemy character of the state to which by the treaty they were to be transferred. In Davis v. Police Jury of Concordia, it was held by the Supreme Court that, the ratification of a treaty of cession having a retroactive effect, an attempted grant in the ceded territory of a perpetual ferry franchise by the Spanish governor of Louisiana on February 19, 1801, was invalid, the treaty of San Ildefonso by which Spain retroceded Louisiana to France having been signed October 1, 1800, prior to the date of the grant. Mr. Justice Wayne, speaking for the court, said: "All treaties, as well those for cessions of territory as for other purposes, are binding upon the contracting parties, unless when otherwise provided in them, from the day they are signed. The ratification of them relates back to the time of

United States v. Norton, 97 U. S. 164; Lapeyre v. United States, 17 Wall. 191. See also Ashbaugh v. United States, 35 C. Cls. 554, 555.

10 Blackstone, Commentaries (Sharswood ed.), II, 310; The Fama (1804), 5 C. Rob. 106; Davis v. Police Jury of Concordia, 9 How. 280, 289; De Lima v. Bidwell, 182 U. S. 1, 194.

11 5 C. Rob. 106, 115.

signing. Vattel, B. 4, c. 2, sec. 22; Mart. Summary, B. 8, c. 7, sec. 5. It is true, that, in a treaty for the cession of territory, its national character continues, for all commercial purposes; but full sovereignty, for the exercise of it, does not pass to the nation to which it is transferred until actual delivery. But it is also true, that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands. And for the same reason in both cases;-because, after the treaty is made, there is not in either the union of possession and the right to the territory which must concur to give plenum dominium et utile. To give that, there must be the jus in rem and the jus in re, or what is called in the common law of England the juris et seisinae conjunctio.*** In this case, after the treaty was made, and until Louisiana was delivered to France, its possession continued in Spain. The right to the territory, though in France, was imperfect until ratified, but absolute by ratification from the date of the treaty." In United States v. Reynes, Mr. Justice Daniel, for the court, said: "The dates of the treaties of St. Ildefonso and of Paris have already been mentioned-that of the former being the 1st of October, 1800, that of the latter the 30th of April, 1803. In the construction of treaties, the same rules which govern other compacts properly apply. They must be considered as binding from the period of their execution; their operation must be understood to take effect from that period, unless it shall, by some condition or stipulation in the compact itself, be postponed. * * The treaty between the United States and the republic of France contains no article or condition by which its operation could be suspended. * This treaty therefore operated from its date; its subsequent ratification by the American government, and the formal transfer of the country to the American commissioners on the 20th of December, 1803, have relation to the date of the instrument. The rights and powers of sovereignty, on the part of Spain, over the territory, ceased with her transfer of that sovereignty to another government; it could not exist in different governments or nations at the same time. The power to preserve the peace and order of the community may be admitted to have been in the officers previously appointed by Spain, until the actual presence of the agents of the succeeding government; but this would not imply sovereign power still remaining in Spain,-for

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if she continued to be sovereign after expressly conceding her sovereignty to another government, she might still rightfully resist and control that government; for sovereignty from its nature is never subordinate.' In the later case of Montault v. United States, Chief Justice Taney said: "The definitive treaty of peace between Great Britain, France, and Spain, by which the territory in which this land is situated was ceded to Great Britain, was signed on the 10th of February, 1763, and consequently the French authorities could not, after that day, grant a title to lands lying in the ceded territory. This point was decided in the cases of the United States v. Reynes, 9 How. 127; The Police Jury of Concordia v. Davis, 9 How. 280; and the United States v. D'Auterive, 10 How. 609. And as the grant in question was not made until the 11th of March next following the date of the treaty, it was at that time the exercise of a power by the French authorities which they no longer possessed, and could convey no title." Again in Doe v. Braden, in referring to the treaty with Spain of 1819, Chief Justice Taney said: "It was ratified, accordingly, by the President, and the ratifications exchanged on the 22d of February, 1821. And Florida, on that day, became a part of the territory of the United States, under and according to the stipulations of the treaty-the rights of the United States relating back to the day on which it was signed." In an instruction to the military governor of Cuba, June 21, 1901, in respect of concessions made by the Spanish government in Cuba after the signing of the protocol of August 12, 1898, Mr. Root, Secretary of War, said: "The United States, on August 12, 1898, by reason of successful military operations, had induced Spain to sue for peace and was in a position to require Spain to comply with its demands. But the United States had not effected a complete conquest of all Cuba, because all parts of the island were not in the possession of our military forces. Under the laws of war, as long as Spain continued in possession of territory in Cuba, so long Spanish sovereignty continued over that particular territory, and the proprietary title in and to public property therein situate belonging to the Crown under Spanish law would remain with the Crown of Spain. While this condition continued, the govern

13 9 How. 127, 148, 149.

14 12 How. 47, 51.

15 16 How. 635, 656.

ment of Spain would be justified in exercising sovereign powers in said territory, and the Crown of Spain would be justified in exercising the ordinary privileges appurtenant to the proprietary title of public property under the laws of Spain, provided such action as was taken was in good faith, i. e., with due regard to the rights of its adversary. This condition was terminated by the treaty of Paris. By that instrument sovereignty and title in Cuba (article 1) and proprietary title to the public property in the island (article 8) were relinquished by Spain, and provision made that 'upon its evacuation by Spain' the island was to be 'occupied by the United States,' and that the United States should 'so long as such occupation shall last assume and discharge the obligations that may under international law result from the fact of its occupation.' * * * (Article 1). The right of the United States to administer sovereign powers in Cuba, and its right to the proprietary title of public property theretofore possessed by the Crown of Spain, were completed by and date from the treaty of Paris, December 10, 1898."16 Attorney General Knox, in an opinion dated October 17, 1901, likewise advised: "Nevertheless, the principle of binding obligation is so far in force as to justify the statement that a treaty is a valid agreement from the conclusion of negotiations, although subject to rejection, and is inchoate only because of this latter fact. The Supreme Court has decided that, as respects performance of the conditions of a grant by a private grantee, the date of a treaty is the date of its final ratification, but that so far as affects the relations of the sovereigns concerned, it operates when ratified from the date of its signature, and that, unless otherwise provided, treaties in their public relations take effect from signature, to which period the ratification relates back. * While certain provisions [in the treaty of peace with Spain] became operative from the date of exchange of ratifications, and others upon signature (e. g. Articles IV, VI) the relinquishment of sovereignty and cession of domain, which were the main purposes of the treaty, and were formulated in several articles, are unqualified and must be regarded as immediate and absolute from the date of signature, subject only to the possibility of a failure of ratification."

It has been held that, although Porto Rico was ceded to the

16 Magoon's Reports, 602.

17 23 Op. 551, 558. See Griggs, Atty. Gen., 23 Op. 181, 182.

United States by a treaty signed December 10, 1898, and the authority of Spain had been superseded prior thereto by the military occupation of the United States, Porto Rico and the United States were, as regards the tariff laws, foreign countries until the exchange of ratifications on April 11, 1899.19

§158. Extradition Conventions. Since a fugitive from justice has no vested right of asylum, the "principle that a treaty is not to be held to operate retroactively in respect to vested rights does not apply to conventions of extradition."20 Extradition is a matter of procedure rather than of substantive law." It has accordingly been held that an extradition convention may apply to effenses committed prior to its conclusion.22 "The general principle of opposition to an ex post facto act is not regarded as applicable in this instance, since the criminal character of the act for which extradition is sought does not flow from the treaty of extradition, but from the antecedent criminal law."23 Article XVII of the resolutions adopted by the Institute of International Law at its meeting at Oxford in 1880 provides that a law or convention of extradition may be applied to acts committed before it came into force.24 In the convention with Belgium, signed March 19, 1874, it was expressly stipulated that its provisions should not, except in cases of murder and arson, apply to any crime committed prior to the date of the convention; and that the convention should take effect twenty days after the exchange of ratifications. The exchange took place on April 30, 1874. It was held that the convention covered a crime committed May 1, 1874, since it was

19 Dooley v. United States, 182 U. S. 222; Armstrong v. United States, 182 U. S. 243. See also Armstrong v. Bidwell, 124 Fed. 690, 692; American Sugar Refining Co. v. Bidwell, 124 Fed. 677, 683; Howell v. Bidwell, 124 Fed. 688; Santiago v. Nogueras, 214 U. S. 260, 265; Lincoln v. United States, 197 U. S. 419; 202 U. S. 484; MacLeod v. United States, 229 U. S. 416; Lascelles v. United States, 49 C. Cls. 382. See Twiss, Law of Nations (Rights and Duties in Time of Peace, 2 ed.), 439; Wayne, J., Davis v. Police Jury of Concordia, 9 How. 280, 289.

20 Moore, Extradition, I, 99; Twiss, Law of Nations (Peace), §240. 21 Westlake, Int. Law (2 ed.), I, 259.

22 In re Angelo de Giacomo (1874), 12 Blatch f. 391; In re Cannon, 14 Can. Cr. Cas. 186; case of Charles Kratz, For. Rel., 1903, pp. 674-685; Moore, Int. Law Digest, V, 248, and cases cited.

23 Mr. Evarts, Secretary of State, to Mr. Dichman, minister to Colombia, November 12, 1878, For. Rel., 1878, pp. 151, 153.

24 5 Annuaire 127.