[Footnote 5: Correspondence with Spain relative to the claim of the
owners of the schooner _Amistad_ for compensation on account of the
liberation of negroes on board said vessel.]
WASHINGTON, _February 13, 1851_.
_To the Senate of the United States_:
I herewith communicate to the Senate, for its consideration, a general
convention between the United States and the Swiss Confederation,
concluded and signed at Berne on the 25th day of November last by Mr. A.
Dudley Mann on the part of the United States and by Messrs. Druey and
Frey-Hérosée on the part of the Swiss Confederation. I communicate at
the same time a copy of the instructions under which Mr. Mann acted and
his dispatch of the 30th November last, explanatory of the articles of
the convention.
In submitting this convention to the consideration of the Senate I
feel it my duty to invite its special attention to the first and
fifth articles. These articles appear to contain provisions quite
objectionable, if, indeed, they can be considered as properly embraced
in the treaty-making power.
The second clause of the first article is in these words:
In the United States of America citizens of Switzerland shall be
received and treated in each State upon the same footing and upon the
same conditions as citizens of the United States born in or belonging to
other States of the Union.
It is well known that according to the Constitution of the United States
a citizen of one State may hold lands in any other State; and States
have, sometimes by general, sometimes by special, laws, removed the
disabilities attaching to foreigners not naturalized in regard to the
holding of land. But this is not supposed to be a power properly to be
exercised by the President and Senate in concluding and ratifying a
treaty with a foreign state. The authority naturally belongs to the
State within whose limits the land may lie. The naturalization of
foreigners is provided for by the laws of the United States, in
pursuance of the provision of the Constitution; but when, under the
operation of these laws, foreigners become citizens of the United
States, all would seem to be done which it is in the power of this
Government to do to enable foreigners to hold land. The clause referred
to, therefore, appears to me inadmissible.
The fourth clause of the same article provides, among other things, that
citizens of Switzerland may, within the United States, acquire, possess,
and alienate personal and real estate, and the fifth article grants them
the power of disposing of their real estate, which, perhaps, would be no
otherwise objectionable, if it stood by itself, than as it would seem to
imply a power to hold that of which they are permitted to dispose.
These objections, perhaps, may be removed by striking out the second
clause of the first article and the words "and real" in the fourth
clause. An amendment similar to the last here suggested was made by the
Senate in the convention between the United States and the King of
Bavaria, the ratification of which, as amended, the Senate advised and
consented to on the 15th day of March, 1845.
But there is another and a decisive objection, arising from the last
clause in the first article. That clause is in these words:
On account of the tenor of the federal constitution of Switzerland,
Christians alone are entitled to the enjoyment of the privileges
guaranteed by the present article in the Swiss Cantons. But said
Cantons are not prohibited from extending the same privileges to
citizens of the United States of other religious persuasions.
It appears from this that Christians alone are, in some of the Swiss
Cantons, entitled to the enjoyment of privileges guaranteed by the first
article, although the Cantons themselves are not prohibited from
extending the same privileges to citizens of the United States of other
religious persuasions.
It is quite certain that neither by law, nor by treaty, nor by any other
official proceeding is it competent for the Government of the United
States to establish any distinction between its citizens founded on
differences in religious beliefs. Any benefit or privilege conferred by
law or treaty on one must be common to all, and we are not at liberty,
on a question of such vital interest and plain constitutional duty,
to consider whether the particular case is one in which substantial
inconvenience or injustice might ensue. It is enough that an inequality
would be sanctioned hostile to the institutions of the United States and
inconsistent with the Constitution and the laws.
Nor can the Government of the United States rely on the individual
Cantons of Switzerland for extending the same privileges to other
citizens of the United States as this article extends to Christians. It
is indispensable not only that every privilege granted to any of the
citizens of the United States should be granted to all, but also that
the grant of such privilege should stand upon the same stipulation and
assurance by the whole Swiss Confederation as those of other articles of
the convention.
There have been instances, especially some of recent occurrence,
in which the Executive has transmitted treaties to the Senate with
suggestions of amendment, and I have therefore thought it not improper
to send the present convention to the Senate, inviting its attention
to such amendments as appeared to me to be important, although I have
entertained considerable doubt whether it would not be better to send
back the convention for correction in the objectionable particulars
before laying it before the Senate for ratification.