Baron Roenne to the Secretary of State.

GERMAN LEGATION,

New York, May 1, 1849.

The undersigned, Envoy Extraordinary and Minister Plenipotentiary of his Imperial Highness the Vicar of the German empire, has had the honor (yesterday) to receive the note which the honorable Secretary of State of the United States addressed to him on the 29th ultimo, on the subject of the steamer "United States," in reply to his note of the 14th ultimo. The undersigned can have no desire to draw the honorable Secretary of State into a further discussion of the subject-a discussion not originated by the former-being informed by the honorable Mr. Clayton that he is precluded by the directions of the President from prolonging further the discussion of a subject that had already been fully decided after the most mature and deliberate consideration; but the undersigned owes it to the importance of the case to ask leave to offer a few remarks on the opinion of the Attorney General of the United States, a copy of which has been transmitted to him.

It seems, in the first place, obvious that nothing of what has occurred in this matter can be considered as coming under the act of 20th April, 1818, inasmuch as there has never been any secrecy about it, and inasmuch as acts committed openly and under the very eyes, as it were, Bay with the concurrence of the government of the United States, can certainly never be qualified as criminal. The purpose of the purchase of the vessel by the German government was just as obvious when the subject of the purchase was first broached as it is now; and the illegality of that purpose, if indeed it be illegal, was just as manifest then as it is now; and notwithstanding this, the United States government not only encouraged the consummation of the purchase, but also gave it its direct sanction, by authorizing the commandant of the navy-yard of New York bafford all the necessary facilities for the fitting out the vessel as a war steamer. Consequently, however expedient this government may deem is present proceedings, the act of 20th April, 1818, " An act for the punshment of crimes," cannot be invoked as the basis of such proceedings. Supposing, however, that said act may be thus invoked, the undersigned, without dwelling upon the argument of the Attorney General as to what the honor of the vessel may require her to do when upon the aigh seas, only begs leave to remark, that the intent to defend herself against hostilities committed against her is widely different from the intent to commit hostilities as made criminal by the act of 20th April, 1818, the said act, as stated in the note of the 11th ultimo, having only acts of an aggressive character in view. The undersigned, with all deference to the Attorney General, also respectfully begs leave to dissent from the pinion that the law makes no such distinction as referred to in the note of the undersigned of the 14th ultimo, between a proximate and an ulterior intent. The Attorney General says: "Any intent, direct or contingent, to cruise and commit hostilities, with the vessel fitted out, against a nation with which the nation fitting her out is then at war, is within the at;" and he adds that this opinion is supported by the opinion of the Supreme Court of the United States in analogous cases. The undersigned bas conferred, on the subject, with the same professional gentleman who was before consulted, as stated in his note of the 14th ultimo, and that gen

tleman, in support and explanation of the opinion given by him, has referred the undersigned to a decision of the Supreme Court of the United States in the case of "the United States vs. John D. Quincy," Peters's Reports, vol. 6, pp. 445, 466. This decision, it seems to the undersigned, fully confirms and establishes the distinction taken by him in his former note. "The offence," the court says, "consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States, and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States. And this must be a fixed intention; not conditional or contingent, depending on some future arrangements.

The undersigned, in his note of the 14th ultimo, has positively and solemnly assured the honorable Secretary of State of the United States, that the steamer United States" has not been purchased or fitted out with intent to cruise or commit hostilities against the subjects, citizens, or property of Denmark, or any other power at peace with the United States; and in giving this assurance, he has fully met and complied with the words of the law of 20th April, 1818, which are as follows:

"SEC. 3. And be it further enacted, That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or State, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or State, or of any colony, district, or people, with whom the United States are at peace, &c., every person so offending shall be deemed guilty of a high misdemeanor, &c., and every such ship or vessel, &c., shall be forfeited."

The undersigned, assured that the President can have no desire to go beyond what the law requires, flatters himself that, on further consideration, he will perceive that the undersigned, under the circumstances of this case, cannot, in duty to the country which he has the honor to represent, give an assurance going beyond the words and intent of the act of 20th April, 1818.

The undersigned avails himself of this opportunity to renew to the honorable Secretary of State of the United States the assurance of his high and distinguished consideration.

Hon. JOHN M. CLAYTON,

Secretary of State of the United States, Washington.

Mr. Clayton to Baron Roenne.

ROENNE.

DEPARTMENT OF STATE,

Washington, May 5, 1849.

The undersigned, Secretary of State, has the honor to acknowledge the receipt of Baron Von Reenne's note of the 1st instant.

The great anxiety that is felt to satisfy the German government of the

friendly disposition of the United States, and a sincere desire to obviate the possibility of any misunderstanding as to the motives and objects of the American government in the decision it has made in the case of the war steamer the "United States," could alone induce the President to direct the undersigned to reply to the suggestions now advanced in the note of the representative of the German empire.

Baron Von Roenne remarks that it seems, in the first place, obvious that nothing of what has occurred in this matter can be considered as coming under the act of 20th April, 1818, inasmuch as there has never been any secrecy about it, and inasmuch as acts committed openly, and under the very eyes, as it were, nay with the concurrence of the government of the United States, can certainly never be qualified as criminal. The purpose of the purchase of the vessel by the German government was just as obvious when the subject of the purchase was first broached, as it is now; and the illegality of that purpose, if indeed it be illegal, was just as manifest then as it is now; and, notwithstanding this, the United States government not only encouraged the consummation of the purchase, but also gave it its direct sanction, by authorizing the commandant of the navy-yard of New York to afford all the necessary facilities for the fitting out the vessel as a war steamer. Consequently, however expedient this government may deem its present proceedings, the act of 20th April, 1818, an "Act for the punishment of crimes," cannot be invoked as the basis of such proceedings."

Secrecy, indeed, is often the badge of crime, but has never been held to be indispensably necessary to its existence. Baron Von Roenne is too well acquainted with the relative powers and duties of the different branches of the American government, to confound that government with its Executive branch. He does not pretend that either Congress or he Judicial Department of that government has ever sanctioned the fiting out of the steamer "United States," for the purposes for which she s designed. When, therefore, Baron Von Roenne speaks of the concurFnce of the government of the United States in fitting her out, he evidently means the concurrence of the Executive branch; one department which, whilst under the administration of Mr. Mason, (who probably had good reasons at the time for thinking, as the German minister certainly id, that the then existing war between Germany and Denmark would be erminated with the armistice,) gave, as is stated, its direct sanction, by authorizing the commandant of the navy yard at New York to afford all he necessary facilities for fitting out this vessel as a war steamer. Then he position Baron Von Roenne has taken is this: that any act committed openly, and with the concurrence of the Executive branch of this governnent, or of one of its departments, "can certainly never be qualified as riminal," a doctrine which his Excellency the German minister will gree with the undersigned in believing could never prevail in any Country professing to be free. If the Baron's position be sound, then the man who murders, at noon-day, openly in the streets, with the concur ence of the Executive, can never be held to be a criminal. The President of the United States holds no dispensing power. In a former note, he undersigned stated the ground of the present interference of the Excutive-his oath to preserve the constitution, which enjoins upon him he duty of seeing that the laws are faithfully executed. The President is no power to sanction any act that violates an established law of the

land; and the intelligent and able minister of Germany is too familiar with the division of the powers conferred by the people upon their public servants in the United States, to claim a despotic authority for the American Executive, such as is implied in the assertion that he could either openly or secretly sanction a violation of any law of the land. Our treaty with Denmark is one of these laws. The act of Congress of the 20th April, 1818, is another. It is respectfully submitted that the position is untenable.

Baron Von Roenne has referred the undersigned to the decision of the Supreme Court in the case of the United States vs. Quincy, 6 Peters, 445, 466, to show that the Attorney General errs in his construction of the act of 20th April, 1818. In the case cited, the indictment charged the defendant with being knowingly concerned in the fitting out, in the port of Baltimore, a vessel called the "Bolivar," with intent to employ her in the service of Buenos Ayres against Brazil. The vessel went from Baltimore to St, Thomas, and was there fully armed. She afterwards cruised under the flag of Buenos Ayres. The court held that it was not necessary to find the defendant guilty of the offence charged in the indictment; that the vessel, when she left Baltimore for St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed, or in a condition to commit hostilities. They held that the intention of the defendant in fitting out the vessel, with respect to the employment of the vessel, should be formed before she left the United States, and that this must be a fixed intention. The question was, in this case, whether the adventure was of a commercial or a warlike character; and it was ruled that if the defendant, before leaving the United States, had not a fixed intent that its character should be warlike, he would not be guilty of the offence charged in the indictment.

Now, what is the inference his Excellency has been pleased to deduce from this authority? And what are the facts of the case actually before us? The following statement, gathered from the papers before the undersigned, will render the subject clear:

1st. In a letter of the 15th of February, 1849, to the Secretary of the Navy, his Excellency says: "The government of the German empire has sent an agent to New York to purchase a large war steamer for its service, and I am instructed to request that the government of the United States would designate an officer of the United States navy, of the rank of lieutenant or commander, to proceed without the least possible delay to New York, there to assist the agent in the selection of the vessel to be purchased; and, if any should be purchased, to take the command of her; to superintend the arming and equipment of her; to engage a crew, and the necessary number of competent officers; and, when ready, to take her to Bremerhaven, and there to receive the further orders of the (German) government."

2d. In another letter of the 19th of February, to the same, his Excellency informs the latter that we (meaning the German government) have bought the "United States." Commodore M. C. Perry, the agent selected to superintend the arming and equipment of the vessel, is at the same time apprized that "it was of the highest importance that the steamer "United States,' purchased by Baron Roenne for the German navy, to be armed and equipped in New York, should be put to sea with the greatest possible despatch; that the ship ought to have from two hundred to two hundred and fifty sailors, exclusive of officers, who might be recruited at

some of the principal ports, and from there sent in small vessels to join the ship at sea, after she shall have left the port for Germany, under regular clearance, with the American flag, as a merchant vessel, her armament in her hold as a cargo."

3d. Mr. Duckwitz, Minister of Commerce and Marine of the German empire, in his letter of the 25th of January, 1849, in reply to the questions of Commodore Parker, informs him that the German government has given orders for the purchase of a steam frigate in the United States, and has sent over Mr. William Wedding on commission for the purpose, who will request, under the auspices of the minister resident of the Central power of Germany at Washington, Baron Roenne, the Secretary of the Navy, the Hon. Mr. Mason, to lend him the assistance of an able officer, who will, with him, together have care of the armament and manning of the steam frigate, if purchased; and in the same letter, Mr. Duckwitz, after mentioning the number of American officers who are to be engaged in the German service, adds, that the service to be required of the officers to be engaged is active war service on board of sail and steam vessels, and in the command of squadrons of gun-boats.

H

4th. Baron Roenne, also, in his note of the 14th ultimo, repeats that the real object in purchasing the vessel is, that she shall be taken to Bremerhaven, which is destined for the German naval station in the North sea, there to receive the further orders of the German government.

5th. And by the recent and latest news from Europe, the armistice be ween Germany and Denmark is not only entirely at an end, but the war s unhappily renewed and flagrant, under circumstances of increased exsperation; and therefore the hopes and anticipations of peace to which his government was fain to lend its ear, at the suggestion of his Excelenry, are wholly extinguished.

With this statement in full view, taken from his Excellency's own adaissions and language, the strange inference from the decision referred to drawn, that there is no evidence of a fixed intent that this vessel is to e employed in the service of Germany to cruise or commit hostilities ainst Denmark. The vessel, it is admitted by his Excellency, is to be aken to Bremerhaven, there to receive the further orders of the German vernment. With this acknowledged intent, can any one undertake to er, believe, or presume, that the intent is conditional or contingent, and t fixed and certain? Mr. Duckwitz, too, the German Minister of Comerce and Marine, avows the object of employing the American officers Ed seamen to be "active war service on board of sail and steam vessels,” c. In the case cited by his Excellency, it was entirely doubtful whether he adventure of the "Bolivar" was of a commercial or warlike characT. Does any such doubt exist in the present case? If not, the cases o not parallel.

The undersigned asked his Excellency to assure him, on this subject, of intent. All he desired was, that his Excellency should enable the resident to maintain the neutrality of the United States agreeably to er laws. The reply is an assurance that "the steamer has not been chased or fitted out with intent to cruise or commit hostilities against subjects, citizens, or property of Denmark, or any other power at e with the United States; and that this assurance fully meets d complies with the words of the law of the 20th of April,1818." The undersigned is compelled to remark here that the German minis