is thus succinctly given, in a private letter of December, 1844:"I still continue impressed with the idea that the only safe and advantageous mode of arriving at a modification of the present tariff-which must inevitably take place during the ensuing administration, is by reciprocal concessions, to be stipulated with other nations—in which we should "gain both by what we give and by what we get," as it has been well expressed. The consequence of not ratifying the treaty at the last session is, that the European States are now looking for a gratuitous reduction of our tariff, by which their fabrics will be relieved from the present exorbitant duties, and our agricultural products will still continue to be subjected to the present heavy imposition in the European markets. This, I know, to be the impression in London, Paris, and Berlin. The two former cabinets would have been prepared to enter on similar negotiations with us had the Zollverein treaty been ratified.”

The union, which has been effected between the States of the Zollverein and Steuerverein, has increased the population subject to the Zollverein to thirty-five millions, which, with the treaty stipulations between the Prussian league and Austria and her associates, all of whom, at no distant period, are likely to be blended in one Commercial Union, would have secured to us, not dependent on the mutable policy of legislation, but by an international convention, a market, with seventy millions of people, for our cotton free of duty, for our rice at the most reduced rates, and for our tobacco on terms that would have greatly increased its consumption.

All this might have been obtained in return for merely nominal changes in our tariff, while the augmented transactions between the United States and these seventy millions would have tended further to favor the emigration of a frugal and industrious people for the settlement of the almost indefinite territory, which still awaits cultivation and civilization, as well as to strengthen friendly intercourse between us and the great Federal empire, not unlikely, despite the abortive efforts at

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Frankfort, in 1848-9, the rivalry between Austria and Prussia, and the intervention of other powers, to grow out of the Commercial Unions. Such a confederacy, however differing from us in its internal or municipal institutions, must resemble the United States, and have sympathy with them, from the analogous federal relations, connecting the several parts.

Besides the improvement of our commercial relations generally, Mr. Wheaton's original instructions contemplated the abolition of the droit d'aubaine and droit de détraction, as operating most injuriously on emigration to the United States. With Prussia the arrangement had been made, by the Treaty of 1828, and the same provision was introduced in the treaty of commerce with Hanover, in 1840; but the full power which had been given in 1836, to conclude separate conventions with the several States of Germany, was withdrawn, soon after it was granted, in consequence of the refusal of the Senate to ratify a similar one with Switzerland;1 and it was not till Mr. Upshur was charged with the State Department, that, by instructions of November 18, 1843, it was renewed. Treaties were made, in pursuance of these instructions, with Wurtemburg, Hesse Cassel, Saxony, Nassau, and Bavaria. Baden declined making any, in consequence of the vested interest which some of her subjects had in these duties. All these conventions abolish the droit de détraction. In transmitting one of them, Mr. Wheaton says: "The tax imposed on the funds removed by emigrants, who leave this country, amounts, in Saxony and most of the German States, to ten per centum on the capital thus transferred. This amount is so

1 A new convention with the Federal Executive of the Swiss Confederation, "for the mutual abolition of the droit d'aubaine and taxes on emigration," was concluded at Washington, on 18th of May, 1847. It is essentially the same as those negotiated by Mr. Wheaton, as hereinafter mentioned, with the German powers. U. S. Statutes at Large, vol. ix. p. 902. See, also, in addition to the treaties referred to in Part II. c. 2, § 4, p. 119, note, a treaty with the Sandwich Islands, December 20, 1849, (Ibid. p. 979); and one with New Grenada, December 12, 1846, (Ibid. p. 886.)

much clear gain to us, in the capital thus brought into the country by the rich peasants and others, who sell their real property here, and emigrate in great numbers to the United States."1 The droit d'aubaine is equally oppressive, subjecting to a like duty all property, which emigrants to the United States might derive, on the death of relatives in the country of their origin; and the duty imposed in such cases is also, in general, ten per cent. on the capital.

The local law of most of the States of the American Union, being based on the feudal principles of the English common law, is less favorable to foreigners becoming land-owners than that of France, and other countries of the continent of Europe, where aliens are permitted to hold real estate, and to take, ab intestato and by will, as native subjects.2 The treaties referred to only provide, like the previous one with Prussia, that when land, within the territory of one of the parties, would descend to a citizen or subject of the other, were he not disqualified by alienage, he shall have two years, at least, (which is substituted for the indefinite term, reasonable time, in the treaty with Prussia,) in which to dispose of it; and, in the treaty with Saxony, this provision is made to apply to those who take by devise, as well as by descent. The general power, however, of disposing of property by will, donation, or otherwise, by the citizens or subjects of the one country, in favor of those of the other, is confined to personal property; and when, in the treaty with Bavaria, it was attempted to apply it also to "real estate,' the Senate refused their ratification, unless these words were stricken out.3

In the despatch from which we have already quoted, the impolicy of preventing aliens from purchasing real estate is discussed, and its effect, in withholding investments of German

1 Mr. Wheaton to the Secretary of State, May 14, 1845.

2 See Part II. c. 2, § 4, p. 118.

3 This will explain the words in a parenthesis, on the face of the original treaty ; and they are printed in the same way in the United States Statutes at Large, vol. ix. p. 827.

capital, shown; but this subject has been generally regarded in the United States as a matter for State legislation. Indeed, it is not always easy to reconcile the exclusive authority of the federal government, through the treaty-making power, to enter into agreements with foreign States, in cases in which the concurrence of the latter is essential, with the control reserved by the States over all affairs of internal or municipal cognizance. And when, in the Treaty of the 30th of April, 1853, with France, it was proposed to remove the disability on French subjects holding land, the stipulation, on the part of the United States, (probably on account of a doubt of the authority of the general government to go further,) only extended to an engagement that the President would recommend to the several States to pass the laws necessary to secure a reciprocity.1

Another important subject for international regulation is the extradition to foreign States of fugitives from justice. Though the Chief Justice, with whom three of the other Judges concurred, declared, in 1840, that "the exercise of this power by

1 Treaties of the United States, 1853-4, p. 114. The Treaty of 1778, with France, repealed, in favor of the United States, the droit d'aubaine, and droit de détraction; and it gave a reciprocal right to the citizens and subjects of either of the respective countries to dispose, by testament, donation, or otherwise, of immovable as well as movable property, in the country of the other, and that their heirs might succeed ab intestato, without naturalization. The Treaty of 1794, with England, provided that alienage should not affect British subjects who held land in the United States, or American citizens who held land in Great Britain, and that they might hold, grant, sell, or devise the same, as if they were natives, and that neither they nor their heirs should be regarded, as to such land, as aliens. The Convention of 1800, between the United States and France, also provided for the liberty of disposing, by the citizens of either country, of their property, immovable as well as movable, in the other, in favor of such persons as they should think proper, by testament, donation, or otherwise, and that they should succeed without naturalization and be exempt from any duty; but this was not to derogate from any laws of either State against emigration; and in case the laws of either country should restrain strangers from the exercise of the rights of property, as to real estate, it is further provided that such real estate may be sold, or otherwise disposed of, to citizens of the country where it may be. All these treaties have expired. U. S. Statutes at Large, vol. viii. pp. 18, 122, 182. See, also, Wheat. Rep. vol. i. p. 359. Martin v. Hunter. Ibid. vol. ii. p. 259. Chirac v. Chirac.

the States is totally contrary to the power granted to the United States, and repugnant to the Federal Constitution," the question was left, by the decision of the Supreme Court, an open one.' There was, at that time, no subsisting conventional arrangement on the subject, the only previous provision of the kind having been contained in the Treaty of 1794, with England, which expired long before the last war. The present stipulation with Great Britain on that subject, arose from the Treaty of the 9th of August, 1842; and the Extradition Treaty with France was concluded on the 9th of November, 1843.

A convention for the same object was made with Prussia, on her own behalf and that of several other German States, on the 29th of April, 1845; but it differed from the preceding ones, in that each power excepted the extradition of its own subjects. The preliminary note from Baron Bulow, on which the negotiations were opened, had contained the two following conditions: 1°. Qu' aucune des parties contractantes ne sera tenue à livrer ses propres sujets. Une pareille extradition à des tribunaux étrangers serait apparemment aussi peu compatible avec la législation des États Unis qu' avec celle de la Prusse et des autres États Allemands; 2°. Que quand un criminel fugitif a commis un nouveau crime dans l'État, où il s'est rendu, son extradition ne pourra avoir lieu que lorsque l'information, pour ce nouveau crime, sera terminée et que le condamné aura subi sa peine.2

The instructions under which it was negotiated were given by Mr. Calhoun, but, before it was received in this country, the administration was changed, and Mr. Buchanan had become Secretary of State. President Polk, in submitting it to the Senate, called their attention to the difference in question; and it is presumed that it was on that ground that the treaty was not ratified. The fact was probably not adverted to, that

1 Peters's Rep. vol. xiv. p. 540.

Holmes v. Jennison.

2 Baron Bulow to Mr. Wheaton, February 17, 1844.

3 President Polk's Message to the Senate, December 15, 1845.

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