Special Message

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.

JAMES K. POLK.