WASHINGTON, _July 28, 1848_.
_To the Senate of the United States_:
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 can not 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 toward the Senate, as well as toward 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.
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.
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, prepared by the Secretary of
State by my direction.
I can not 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 meantime 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 thirty-nine States of Germany, and its authority, being
coextensive 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.