purpose of establishing a federal union among the whole. One great object of this assembly is to remove difficulties which have been experienced in consequence of the number of States, all possessing the power to treat with foreign nations. There is now a fair prospect that Germany will be speedily united in its foreign relations, and that the central government will possess the power of making and executing treaties which shall bind all the States. The constitution reported by Mr. Dalhman, who was deputed by the government of Prussia to attend the meeting at Frankfort, preliminary to the opening of the convention, contains a provision to accomplish this long desired purpose. That august body, representing all Germany, has already adopted two important resolutions: the one, that every article in the constitutions of the several German States, in conflict with the federal constitution when adopted, shall be annulled; and the other, the appointment of a committee of fifteen to report without delay the best plan for establishing a provisional executive power until the federal constitution shall go into operation. It is therefore highly probable that before the ratifications of the present convention could be exchanged, the German States which are parties to it will be deprived of all jurisdiction over the subject.

It is thus evident, that by waiting for a brief period we may probably be able to conclude a treaty of extradition (as well as a commercial treaty) with the Germanic federal government, which will possess the power of surrendering up fugitives found in any portion of Germany, just as our own government possesses the power to surrender up fugitives found in any portion of our Union. Our minister will, of course, be withdrawn from Prussia, and accredited to Frankfort; and then, instead of transacting with nineteen or thirty-nine different States, we shall obtain the surrender of fugitives from one general government.

It is, to say the least, very doubtful whether these States, in their separate character, at the present moment, possess the power to ratify this convention; because it would, in fact, be a new convention offered to them since the German parliament commenced its session. So far as the German parties are concerned, it became a nullity on the 29th April, 1846, the last day provided for the exchange of ratifications. If we shall now, more than two years after that day, propose to them to revive it, and extend the period for the exchange of ratifications, this would, in fact, be equivalent to a new negotiation. In the mean time they have elected delegates to Frankfort, and clothed them with supreme power to make a constitution which shall deprive themselves of the authority of concluding treaties with foreign nations, and vest it in the general government. Under such circumstances, could they accede to our proposal? and even admitting their right, would they not be restrained from exercising it by a proper respect for the German Parliament? The Secretary ventures to affirm, without knowing the fact, that Baron Girolt has received no instructions from his government on this subject since the German States have determined to establish an efficient central government.

The Secretary might remark, if this were the appropriate occasion, that great embarrassments have occurred in the execution of our treaties of extradition both with France and England, and greater are anticipated. Whilst he cheerfully admits that criminals ought not to escape punishment, he foresees that these treaties may involve the general government in serious difficulties, not only with foreign nations, but with the several States composing this Union.

In view of all these considerations, he would respectfully suggest that the President withhold his ratification from the present convention, and direct the Secretary to make known the reasons for this determination to the Prussian government. JAMES BUCHANAN.

DEPARTMENT OF STATE,

Washington, July 6, 1848.

THE FINAL NEGOTIATIONS

On the initiative of the Government of Prussia discussions were resumed during the Fillmore administration, while Daniel Webster 1 Friedrich Christoph Dahlmann.

was Secretary of State; after some conversation on the subject Von Gerolt wrote to Webster as follows on June 10, 1851 (D.S., 2 Notes from the Prussian Legation, revised translation from the French):

The undersigned Minister Resident of His Majesty the King of Prussia has informed his Government of the objection made by the Honorable Daniel Webster, Secretary of State of the United States, relative to Article 3 of the [1845] treaty for the extradition of fugitive criminals in certain cases between Prussia and the United States, and he has been instructed to submit to him the following observations on this subject:

The above-mentioned Article 3 stipulates "that none of the contracting parties shall be obliged, by virtue of this convention, to deliver up its own citizens or subjects".

This article was adopted in the course of the negotiations between the two Governments, as the Honorable Mr. Webster may see from the official correspondence submitted to the Senate of the United States in the first session of the Twenty-ninth Congress, in consideration of the impossibility in which Prussia found itself, as well as the other German states which are parties to the treaty in question, of delivering up their own subjects to a foreign jurisdiction, as being contrary to one of the fundamental principles of German legislation, and that principle has recently been adopted also in the Prussian Constitution i of January 31, 1850, by Article VII, which prescribes: "That no Prussian may be deprived of his legal judge. Niemand darf seinem gesetzlichen Richter entzogen werden."

Now, as the laws of the United States are not opposed to the surrender of its citizens to a foreign jurisdiction, and as under those same laws crimes committed in foreign countries cannot be punished in the United States, the Government of the United States will, in Article 3, have the means of having its citizens punished who have committed crimes in Prussia or in the other German states parties to the treaty, by delivering them to those Governments. On the other hand, if Prussian subjects or other German subjects who have committed a crime in the United States and have taken refuge in Prussia or in their respective countries cannot be delivered up to the jurisdiction of the United States, they will not thereby escape just punishment, since our laws punish crimes committed by our citizens in foreign countries the same as if they had been committed in Prussia, and there would be required for that only the requisition of the Government of the United States in accordance with Article 1 of the unratified treaty in question signed at Berlin January 29, 1845.

The principal purpose of this treaty is that the respective criminals mentioned be punished, and from this point of view Article 3 has established a true reciprocity without Prussia and the other contracting states being bound to deliver their own subjects who have committed in the United States one of the crimes designated in the treaty. Moreover, the case will seldom arise in which the latter would return to their country of birth without having lost their citizenship there, as the undersigned had the honor to explain to the Honorable Secretary of State of the United States in his note of May 20, 1847.

All these circumstances having been submitted to the Senate of the United States for its consideration by His Excellency President Polk, that august assembly unanimously declared its approval for the ratification of the treaty in question at its session of June 21, 1848.

Nevertheless, ratification was refused by the said President without His Majesty's Government having been able to learn as yet the reasons for a course of action so contrary to the customs of the Government of the United States observed in similar cases as well as to the customs of international law, in view of the fact that in the course of the negotiations between the two Governments on the treaty in question, Article 3 was adopted only after the American Plenipotentiary at Berlin had asked and received positive instructions on this subject from His Excellency the President of the United States. The undersigned has the honor to send herewith the copies of two notes relating to this question, 1 English translation in 39 British and Foreign State Papers, 1025-39. ' Printed above.

1

one from Mr. Wheaton to Baron Bülow, Minister of Foreign Affairs of His Majesty the King of Prussia, dated at Berlin February 19, 1844, and the other 2 from the Honorable J. C. Calhoun to Mr. H. Wheaton under date of August 23, 1844.

By virtue of the approval of the said Article 3 on the part of the President of the United States expressed in this last note from Mr. Calhoun, then Secretary of State of the United States, to the Plenipotentiary of the Government of the United States at Berlin, the above-mentioned treaty was concluded between the Plenipotentiaries of the respective Governments.

The undersigned requests the Honorable Daniel Webster to be good enough to submit this matter to His Excellency the President of the United States for his consideration and avails himself of this opportunity to renew to him the assurances of his most distinguished consideration.

Webster answered rather vaguely to the effect that he had again submitted the matter to the President, who remained "inclined

to entertain any renewed propositions" whenever Von Gerolt could say that he had received "full authority to enter upon the negotiation" (D.S., 6 Notes to German States, 292-93, June 19, 1851).

The only point open was whether the United States would assent to a clause excluding the obligation of a contracting party to deliver up its own citizens or subjects; such a clause (Article 3) was to the Prussian Government a sine qua non; to the Government of the United States the question was one of policy on which American officials of high place had expressed contrary views (for the history and law of exemption of citizens from surrender, see Moore, Extradition, I, 152-93); Von Gerolt very naturally responded to the indefinite answer of Webster with this specific inquiry as to the attitude of President Fillmore (D.S., 2 Notes from the Prussian Legation, June 23, 1851, translation):

The undersigned Minister Resident of His Majesty the King of Prussia has the honor to remark, in answer to the note which the Honorable Daniel Webster addressed him on the 19th of this month, that His Majesty's Government, after instructing him to call the attention of the present Secretary of State of the United States to the condition in which the matter relative to the treaty of extradition of fugitive criminals between the Governments of Prussia and the United States had been left by the former administration and to reply to the objections which the Honorable Secretary of State had expressed verbally to the undersigned in regard to the third article of said treaty, also apprised him that, if necessary, a special power would be sent to him to enable him to sign a new treaty of extradition with the Honorable Secretary of State of the United States as soon as the difficulties in reference to the third article in question had been removed, without which the aforesaid power would be useless.

It was in furtherance of this object that the undersigned addressed his note of the 10th instant to the Honorable D. Webster, after the Honorable Secretary of State, in the conference of June 7th, had verbally expressed a desire that the undersigned would put down in writing the remarks he intended to make in behalf of his Government in reference to the third article aforementioned, promising to return a written reply.

The undersigned, in submitting the explanations contained in his note aforesaid to the consideration of the Honorable Secretary of State, begs that he will be pleased to inform him what are the intentions of His Excellency the President in regard to the third article of the treaty in question, in order that he may communicate the same to the King's Government, which will not fail to forward to

1 Cited above.

2 Cited and quoted in part above.

the undersigned the special power mentioned in the note of the Honorable Secretary of State of the 19th instant in the event of said treaty being concluded between the two Governments.

The nature of the reply to be made to the foregoing note was referred to President Fillmore; there are four relevant papers to be considered which are now (very inappropriately) bound in D.S., 2 Notes from the Prussian Legation, following a note of December 9, 1851. The first of these to be mentioned, the second in present order of arrangement, is this undated and unsigned writing, which appears to be a communication to the President from the Secretary of State in thirdperson form:

The Secty of State refers to the Prest two notes from Baron Von Gerolt, wh. he has recently recd 2 To the former the Secretary replied by saying that as soon as the Minister recd full power to treat, the Prest wd. favorably receive any new propositions for the conclusion of a treaty of Extradition.

Baron Gerolt in reply asks for a specific answer as to whether the Prest will sanction any new Convention of Extradition wh. may contain a stipulation that none of the Cont. Parties shall be obliged by it to deliver up their citizens or subjects.

Second to be mentioned of the four papers, first in present order of binding, is a fair draft for signature by Webster of a note addressed to Von Gerolt, dated July 8, 1851; this, if sent, would have ended the negotiation, for it includes the statement that "the retention of that article [3] in the proposed new Convention would not, under any circumstances, receive the sanction of the President"; but no such note was sent; it may be conjectured that this draft was submitted to Fillmore as a possible reply to Von Gerolt and was disapproved. Third of the four papers is this signed original letter of Webster to Fillmore (the record copy whereof is in D.S., 6 Report Book, 360–61), enclosing the two notes of Von Gerolt of June 10 and 23, 1851:

To the PRESIDENT.

DEPARTMENT OF STATE,
Washington, 9th July, 1851.

MY DEAR SIR, On the 29th January, 1845, a Convention of Extradition between the United States and Prussia and other German States, was signed at Berlin, of which I send you a printed copy, containing President Polk's Message calling the Senate's attention to the 3rd Article. The Senate, notwithstanding, assented to the Convention as signed and submitted, as far as appears, without opposition. But the President afterwards refused to ratify it under the strong advice of Mr Buchanan, on account of the 3rd Article. Of course the Convention never returned to Germany for ratification.

You will see by the two notes enclosed, upon what ground Baron von Gerolt places the necessity of the 3rd Article, and he now wishes to know whether the President would agree to a Convention embracing such an Article

He has as yet no power to negotiate a Treaty, and what he wishes to know, he wishes to know in advance. I think it may be as well that I should say to him that when he obtains his full powers we will take up the subject and see if the parties can come to any agreement.

Yours truly,

1 Those of June 10 and 23, 1851, each printed above. Note of June 19, 1851, cited above.

DAN WEBSTER

Fourth and last of those papers is this undated, initialed, holograph memorandum of Fillmore with its postscriptal suggestion of amendment of Article 3:

Memo of Treaty with Prussia.

I do not understand Baron Gerolt's reasoning. I suppose the stipulations to surrender fugitives from justice to be mutual; and the exception in the 3d article is clearly so. Yet he reasons as though the treaty required us to surrender our own citizens but did not require them to surrender their subjects; and insists that the benefits are reciprocal because by the German law, a crime committed here by a German subject, may be punished in his own country, but not so where a crime is committed by a citizen of the U.S. in Germany.

But even if his assumption of the terms of the treaty and its effect were correct, I should not approve of it. It is a delicate matter to surrender our own citizens to be tried by a foreign jurisdiction, perhaps without jury and by torture, with no reciprocal right to claim a like privilege as to those who infringe our laws.

The delicate point is in the surrender, and this is manifest from the fact that they have a fundamental law prohibiting it.

It is also clear that a pretended trial in Germany for a crime committed here must be a mockery. Even if national prejudice did not render it so, the utter impossibility of obtaining the requisite proof would.

M. F.

P.S. I wrote the above before seeing the treaty or the printed correspondence accompanying the President's message to the senate. The objections taken in the message may be easily obviated by declaring that "none of the contracting parties shall be bound to deliver up its own citizen or subjects under the stipulation of this convention, and every person shall be deemed a citizen or subject of the country where he was born or in which he has been duly naturalized, if not born in the country required to surrender him. But no act of naturalization shall deprive him of his citizenship by birth, when born in any country forming a party to this treaty."

Accordingly, the reply to the note of Von Gerolt of June 23 was sent by Webster in these terms on July 12, 1851 (D.S., 6 Notes to German States, 294):

The Undersigned, Secretary of State, has the honor to inform the Minister Resident of Prussia, that he has submitted his last communication to the President, and is, now, instructed to say that, when Baron von Gerolt shall have obtained full power for the purpose, the Undersigned will enter with him into a negotiation of a Convention of Extradition, upon such principles, as it is hoped may be agreeable to both parties. The Undersigned, however, to prevent misapprehension, desires it to be clearly understood by Baron von Gerolt, that the provisions of the Treaty, whatever their character may be, must be entirely & exactly reciprocal.

Webster's requirement of a formal full power from the King of Prussia as a condition precedent to the negotiation was not pressed. After a lapse of some months, during which Von Gerolt doubtless consulted the Prussian Foreign Office, he wrote on December 5, 1851,

This misapprehends what Von Gerolt wrote in the fourth paragraph of his note of June 10, 1851 (printed above). He did not intimate that the treaty required the United States to surrender American citizens. What he did intimate and say was that the United States would, under Article 3, have power to do so. Curiously enough, the question of power under such a clause, which is to be found in various treaties of the United States, was not authoritatively decided until 1936, after having been the subject of conflicting views (Valentine v. United States ex rel. Neidecker, 299 U.S. 5-18, decided November 9, 1936; see Moore, Extradition, I, 163-69).