appears not to have been heretofore printed except in the Senate document; for an earlier expression of the views of Buchanan, see his instruction to Richard Rush, Minister at Paris, of September 25, 1847, in D.S., 15 Instructions, France, 55-58; printed in Moore, Works of James Buchanan, VII, 419–21):

I have received from the Senate the "convention for the mutual delivery of criminals, fugitives from justice, in certain cases, concluded on the 29th of January, 1845, between the United States, on the one part, and Prussia and other states of the German Confederation, on the other part," with a copy of their resolution of the 21st of June last, advising and consenting to its ratification, with an amendment extending the period for the exchange of ratifications until the 28th of September, 1848.

I have taken this subject into serious and deliberate consideration, and regret that I cannot ratify this convention, in conformity with the advice of the Senate, without violating my convictions of duty. Having arrived at this conclusion, I deem it proper and respectful, considering the peculiar circumstances of the present case, and the intimate relations which the Constitution has established between the President and Senate, to make known to you the reasons which influence me to come to this determination.

On the 16th of December, 1845, I communicated this convention to the Senate for its consideration, at the same time stating my objections to the third article. I deemed this to be a more proper and respectful course towards the Senate, as well as towards Prussia and the other parties to it, than if I had withheld it and disapproved it altogether. Had the Senate concurred with me in opinion and rejected the third article, then the convention thus amended would have conformed to our treaties of extradition with Great Britain and France.

But the Senate did not act upon it within the period limited for the exchange of ratifications. From this I concluded that they had concurred with me in opinion in regard to the third article, and had, for this and other reasons, deemed it proper to take no proceedings upon the convention. After this date, therefore, I considered the affair as terminated.

2

Upon the presumption that this was the fact, new negotiations upon the subject were commenced, and several conferences were held between the Secretary of State and the Prussian minister. These resulted in a protocol signed at the Department of State on the 27th of April, 1847, in which the Secretary proposed either that the two Governments might agree to extend the time for the exchange of ratifications and thus revive the convention, provided the Prussian Government would previously intimate its consent to the omission of the third article, or he "expressed his willingness immediately to conclude with Mr. Gerolt a new convention, if he possessed the requisite powers from his Government, embracing all the provisions contained in that of the 29th January, 1845, with the exception of the third article. To this Mr. Gerolt observed that he had no powers to conclude such a convention, but would submit the propositions of Mr. Buchanan to the Prussian Government for further instructions.'

Mr. Gerolt has never yet communicated in writing to the Department of State the answer of his Government to these propositions; but the Secretary of State, a few months after the date of the protocol, learned from him, in conversation, that they insisted upon the third article of the convention as a sine qua non. Thus the second negotiation had finally terminated by a disagreement between the parties, when more than a year afterwards, on the 21st June, 1848, the Senate took the original convention into consideration and ratified it, retaining the third article.

1 Fifteen months, ending April 29, 1846.

Of February 23, 1847, quoted in part above.

This statement was a "mistake" which "originated in the Department of State" and which, "as soon as it was discovered, was made known to the Chairman of the Committee of Foreign Relations of the Senate", then Edward A. Hannegan, of Indiana (see Moore, Works of James Buchanan, VIII, 150-51); the note of Von Gerolt of May 20, 1847, which is printed above, had been overlooked.

After the second negotiation with the Prussian Government, in which the objections to the third article were stated, as they had been previously in my message of the 16th December, 1845, a strong additional difficulty was interposed to the ratification of the convention; but I might overcome this difficulty if my objections to the third article had not grown stronger by further reflection. For a statement of them in detail I refer you to the accompanying memorandum 1 prepared by the Secretary of State by my direction.

I cannot believe that the sovereign States of this Union, whose administration of justice would be almost exclusively affected by such a convention, will ever be satisfied with a treaty of extradition under which if a German subject should commit murder or any other high crime in New York or New Orleans, and could succeed in escaping to his own country, he would thereby be protected from trial and punishment under the jurisdiction of our State laws which he had violated. It is true, as has been stated, that the German states, acting upon a principle springing from the doctrine of perpetual allegiance, still assert the jurisdiction of trying and punishing their subjects for crimes committed in the United States or any other portion of the world. It must, however, be manifest that individuals throughout our extended country would rarely, if ever, follow criminals to Germany, with the necessary testimony, for the purpose of prosecuting them to conviction before German courts for crimes committed in the United States.

On the other hand, the Constitution and laws of the United States, as well as of the several States, would render it impossible that crimes committed by our citizens in Germany could be tried and punished in any portion of this Union.

But if no other reason existed for withholding my ratification from this treaty, the great change which has recently occurred in the organization of the Government of the German states would be sufficient. By the last advices we learn that the German Parliament, at Frankfort, have already established a federal provisional executive for all the states of Germany; and have elected the Archduke John of Austria to be "Administrator of the Empire." One of the attributes of this executive is "to represent the Confederation in its relations with foreign nations, and to appoint diplomatic agents, ministers, and consuls." Indeed, our minister at Berlin has already suggested the propriety of his transfer to Frankfort. In case this convention with nineteen of the thirty-nine German states should be ratified, this could amount to nothing more than a proposition on the part of the Senate and President to these nineteen states who were originally parties to the convention to negotiate anew on the subject of extradition. In the mean time a central German Government has been provisionally established, which extinguishes the right of these separate parties to enter into negotiations with foreign Governments on subjects of several interest to the whole.

Admitting such a treaty as that which has been ratified by the Senate to be desirable, the obvious course would now be to negotiate with the General Government of Germany. A treaty concluded with it would embrace all the thirtynine states of Germany, and its authority being co-extensive with the Empire, fugitives from justice found in any of these states would be surrendered up on the requisition of our minister at Frankfort. This would be more convenient and effectual than to address such separate requisitions to each of the nineteen German states with which the convention was concluded.

I communicate herewith, for the information of the Senate, copies of a dispatch from our minister at Berlin, and a communication from our consul at Darmstadt.3

1 Printed below immediately following the message.

2 Andrew J. Donelson was at the time Minister to Prussia; on August 9, 1848, he was commissioned Envoy Extraordinary and Minister Plenipotentiary of the United States of America to the Federal Government of Germany (D.S., 3 Credences, 253); in an instruction of September 18, 1849, the decision that the mission "ought for the present, at least, to be suppressed" was communicated with a letter of recall (D.S., 14 Instructions, Prussia, 171–73).

Those two despatches, of June 30 and July 3, 1848, respectively, dealt with events at Frankfort. Each of them was communicated only in part (see Senate Confidential Executive Document No. 12, 30th Congress, 1st session, 23 Regular Confidential Documents, 507-17).

MEMORANDUM

For the President, relating to the Convention of Extradition with Prussia and certain other German States.

The Secretary of State respectfully submits his views to the President on the subject of the Convention of Extradition between the United States and Prussia, with other States of the Germanic confederation. His sincere and habitual deference for the Senate renders it painful for him to express any opinion in opposition to their advice to the President to ratify this convention; and he would shrink from the task, if this could be done without violating his own strong and clear sense of duty.

The first and only treaty stipulation for extradition which this government had ever concluded before 1842, is contained in the 27th article of our treaty with Great Britain of the 19th November, 1794, commonly called Jay's treaty.' This article rests upon the correct presumption that crimes are in their nature local, and ought to be tried and punished within the jurisdiction of the State or nation where they are committed. For this reason, under the 27th article of the treaty of 1794, all fugitives from justice, no matter what may have been their national character, were to be delivered up by the governments of the respective parties. The treaty extends "to all persons who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other." It was the fugitive from justice, without regard to the country of his birth, or that to which he owed allegiance, who was to be delivered up that he might be tried, and, if found guilty, punished under the laws which he had violated. If a citizen of the United States had crossed the Canada line, and committed murder or forgery in a British province, he was to be surrendered to the jurisdiction under which alone he could be tried; and so, vice versa, in regard to a British subject who had committed either of these crimes within any of the States of the American Union. No exception was made by this treaty in favor of fugitives from justice who were citizens or subjects of the respective parties. Indeed, if this had been done, it would, in a great degree, have defeated the object of the treaty, and rendered it nugatory.

Jay's treaty was abrogated by the war of 1812 with Great Britain, and no other provision for extradition existed between the parties until the conclusion of the treaty of Washington, on the 9th August, 1842. A convention for extradition was also concluded with France on the 9th of November, 1843. These are the only treaties now in existence on the subject of extradition; and both of them, pursuing the precedent which had been established in Jay's treaty, extend the extradition "to all persons who, being charged" with the crimes therein respectively enumerated, within the jurisdiction of either, "shall seek an asylum or shall be found within the territories of the other." Under these treaties, if a British subject, or a French citizen, should commit murder, or any other of the enumerated crimes, within the jurisdiction of one of our sovereign States, and escape to Great Britain or France, he would be surrendered up for trial and punishment to the authorities of that State where the crime had been committed. Have not the States of this Union a right to expect such a provision, in aid of their criminal justice, in all future treaties of extradition which we may conclude?

The convention of Prussia and the other German States with the United States. adopts an entirely different principle. Its third article declares, that "none of the contracting parties shall be bound to deliver up its own citizens or subjects, under the stipulations of this convention." Thus, if a subject of any one of the nineteen contracting German States should commit murder, or any other enumerated crime, in New York, Pennsylvania, or Ohio, and should succeed in making his escape to his own country, he would be shielded by this treaty against a demand made for his surrender by the United States, in behalf of these States.

1 Document 16.

Various articles of the Jay Treaty, including Article 27, which was the extradition article, were, by Article 28 of that treaty, limited in their duration to October 28, 1807, at the latest; those articles were deemed to have ended on October 1, 1803 (see American State Papers, Foreign Relations, III, 90).

3 Document 103; see also Document 112.

After a full and careful consideration of the subject, you expressed, in the message1 communicating the convention to the Senate, on the 18th December, 1845, a very strong and decided opinion against the third article. As you had, at the time, no objection to the other articles of the convention, this was clearly the proper course to pursue. Had the Senate thought proper to strike out the third article, there would then have been a concurrence of opinion between that body and the President; and the convention, thus amended, would have been ratified on the part of this government, and submitted to the Prussian and other German governments for their approval and ratification.

But the Senate did not make any decision upon the convention within the period limited for the exchange of ratifications, (the 29th April, 1846;) consequently, the negotiation was believed, after this day, to be at an end.

It was again resumed in February, 1847, as appears by a protocol2 dated on the 27th of that month, and signed at the Department of State by the Prussian minister and the Secretary of State. Your objections to the third article were therein reiterated by the Secretary; and, under your instructions, it was suggested "that the two governments might agree to extend the time for the exchange of ratifications; and that, if the Prussian governinent would previously intimate its consent to the omission of the third article from the convention, then it would doubtless be amended in this manner and confirmed by the Senate of the United States; and the ratifications of the convention, thus amended by the Senate, could afterwards be exchanged between the parties. The Secretary of State further expressed his willingness immediately to conclude with Mr. Gerolt a new convention, if he possessed the requisite powers from his government, embracing all the provisions contained in that of the 29th January, 1845, with the exception of the third article. To this, Mr. Gerolt observed that he had no powers to conclude such a convention, but would submit the propositions of Mr. Buchanan to the Prussian government for further instructions."

These propositions were accordingly submitted to the Prussian government by Mr. Gerolt, and they still adhered to the third article as a sine qua non. After this, it was confidently believed that the whole affair had finally terminated, unless that government should reconsider its determination and agree to accept the convention without this article.

The Senate of the United States, however, on the 21st June, 1848, took the subject into consideration, and advised and consented to the ratification of the convention, retaining the third article. They also adopted an amendment extending the time for the exchange of ratifications until the 28th [29th] September, 1848. It is now respectfully suggested that this convention ought not to be ratified by the President: 1st, because of the retention of the third article; and, 2d, because there has recently been such a change in the political condition of the German States which are parties to it, as would render its ratification inexpedient-at least for the present.

1. The claim asserted by Prussia and the other German States to exempt their own subjects from extradition, is a branch of the doctrine of perpetual allegiance. Upon this principle, they assume the jurisdiction of punishing their own subjects for crimes committed in any quarter of the globe. For this very reason, they allege that we will have no just cause of complaint, should the third article be retained; because their subjects, who may have sought an asylum within their own country, will be tried and punished by the respective German States for crimes committed within the several States of this Union. It is possible that this power may be efficiently exerted, under their treaties of extradition with each other, among the neighboring States of which the Germanic confederacy is composed; but when it is applied to crimes committed within a country so remote and so extensive as the United States, it would be a mere mockery. Who would ever think of collecting the testimony in Wisconsin or Iowa necessary to convict a German subject of murder, or other crime, committed within those States, and carrying it to the principality of Reuss Greitz or Reuss Schleitz, there to prosecute the fugitive to conviction and punishment?

But, it may be argued that the third article is mutual in its provisions, and if German subjects are not to be surrendered up by their governments, neither are 1 Of December 16, 1845, read in the Senate two days later.

2 Of February 23, 1847, the relevant portion of which is printed above.

American citizens by the government of the United States. But is this an advantage to the several States of our Union? Would they desire that their citizens, who had committed flagrant crimes in Germany, should be exempt from all punishment, merely because they had successfully eluded the pursuit of justice and escaped to their own country? Are these the members of society which they would desire to take to their bosom and screen from punishment? It is very certain that, no matter how atrocious their crimes may have been, if they were committed in Germany, they could never be tried and punished in any of the States of this Union. Our citizens go over the whole world, wherever business or pleasure may lead them, and are, whilst abroad, subject to the criminal jurisdiction of the country against whose laws they offend, and to no other; although we always protect them against injustice from any foreign power.

But the third article, although it may be reciprocal in terms, is not so in fact. Considering the immense emigration from all parts of Germany to the United States, the chances are, that a far greater number of German fugitives from the justice of the several States of this Union will seek an asylum in their native land, than the number of American citizens who will be fugitives from Germany to the United States. Under such circumstances, would the States of this Union, if the question could be submitted to them, consent to enter into treaties of extradition, under which all the crimes committed by foreigners, within their limits, should go unpunished, provided the criminals could escape to their native land? It may be questioned whether the provisions of the third article are fair towards the two other nations with which we have already treaties of extradition. Why should we agree to deliver up to the justice of the German States an Englishman or a Frenchman, and refuse to surrender one of our own citizens, even although he may have been a party to the very same crime with which the former is charged? Such will be the effect of the present convention, should it be ratified. We have received overtures from other nations on the continent of Europe, to conclude treaties of extradition; but they all refuse to surrender their own subjects. If this convention should be ratified, it will be a precedent, and will impose an obligation on the President to conclude similar treaties with other powers. We may then have treaties of extradition with all the nations of the continent, France excepted, under which no fugitives from the justice of the several States of this Union, if they should make their escape across the Atlantic, will be delivered up by their respective governments. The facilities for doing this are now so great, that such cases must often occur.

2. The condition of the States of the Germanic confederation, as they existed under the treaty of Vienna, has undergone great changes since the period of the French revolution. Had this convention gone into effect under the old confederation, it would have been exceedingly difficult to execute its provisions. This consisted of thirty five independent sovereignties and four free cities, each possessing the power to treat with foreign nations. The present convention would have been in fact a treaty with each one of eighteen sovereign States and one free city; and, according to Mr. Wheaton, it will be necessary to transmit nineteen ratified copies of this convention to Berlin, and receive as many in exchange. And when all this was accomplished, we should then have had treaties of extradition with less than one-half of the German States, leaving the remainder interspersed over the whole surface of Germany. Of course, if we had pursued a fugitive from justice into one of the small States embraced by the convention, he could have effectually eluded our pursuit by making his escape into another German State not included in its provisions. The facility with which this could be accomplished, must appear evident from the fact that many of these States are much smaller than our common counties. Several of them contain but from sixteen to two German square miles, and embrace a population of only 72,050 down to 31,500. In addition, it may be stated, that out of the whole nineteen States which have entered into this convention, we have a foreign minister in Prussia alone; and in most of them there is not even an American consul to make the requisitions under the convention, in the name of the United States, for the extradition of fugitives from justice.

But there is now a German convention or parliament in session at Frankfort, composed of deputies elected by the people of all the German States, for the 133042-42-5