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from the fact that additional territory had since been added to the Dominion. It was also observed that Articles XVIII. and XIX. of the treaty, with which Article XXI. was in sense and in operation connected, applied only to fisheries on the eastern or Atlantic side of the continent, and that the legislation adopted by the United States and Canada to carry the fishery articles into effect must be construed with reference to the "Dominion of Canada" as that Dominion existed on May 8, 1871. Under these circumstances the British government declined to instruct its minister at Washington to bring the matter to the notice of the United States.

Earl of Derby, British for. sec., to Sir Edward Thornton, British min. at Washington, Aug. 11, 1875, 66 Brit. and For. State Pap. (1874, 1875), 963, 968.

Cases under German treaties.

By the formation of the North German Union the entire navy of the union was placed under the command of Prussia. It was advised that the provision of the treaty between the United States and Prussia of May 1, 1828, for the arrest of deserters from the public ships of the respective countries applied to public vessels sailing under the flag of the North German Union.

Evarts, At. Gen., 1868, 12 Op. 463.

In a note to Baron von Thielmann, German ambassador, of February 25, 1896, Mr. Olney, referring, as Secretary of State, to the opinion he gave as Attorney-General on the question of the duty on German salt, remarked that he was, "as Secretary of State, still without the information which I lacked while Attorney-General, as to whether the treaty with Prussia is to be taken as effective as regards other portions of the Empire, or whether the German salt, for which free admission into this country is demanded, is a product or manufacture of Prussia proper or of some other part or parts of the German Empire." He stated that it would much facilitate his examination of the subject if he were "informed of the grounds, if any, for regarding the treaty stipulation concluded with Prussia in 1828 as now operative with respect to the whole German Empire." No response to this request is given.

For. Rel. 1896, 208-209.

See supra, § 765.

In 1873 the Department of State, referring to the desirableness of revising the extradition treaties between the United States and various German States, said: "The extradition treaties with France,

H. Doc. 551-vol 5-23

concluded in 1843 and 1845, which may be contended to be in force. as to the portions of Alsace and Lorraine which were ceded to Germany, contain a different enumeration of crimes."

Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Germany, April 14, 1873,
For. Rel. 1873, I. 279, 281.

Charles E. Heinzman, a native of Alsace, came to the United States with his mother, then the wife of a citizen of the United States, in 1881, when thirteen years old, and in 1889 became duly naturalized. In 1891, being then in Alsace, he was ordered to report for military duty. This order, it was found, was based on the contention that the Bancroft naturalization treaties of 1868 do not apply to AlsaceLorraine, and that he consequently must prove his loss of German nationality under the imperial law of June 1, 1870, touching the acquisition and loss of allegiance. The German foreign office intimated that a pardon would be granted to Heinzman for his failure to perform military duty, and that his name would be stricken from the military lists, if he would procure his discharge from German allegiance under that law. Heinzman accepted this suggestion, and his petition was sent by the Department of State to the American legation at Berlin for presentation to the German government.

For. Rel. 1892, 177, 179, 180.

Mr. Blaine in 1881 proposed the conclusion of a protocol extending the naturalization and extradition treaties between the United States and the North German Union to the whole German Empire. (Mr. Blaine, Sec. of State, to Mr. Von Schlözer, Nov. 29, 1881, MS. Notes to Germany, X. 112.)

In reply to an inquiry whether subjects of Waldeck could invoke the existing treaties between the United States and Prussia, the Department of State said that by a treaty of accession of July 18, 1867, the Prince of Waldeck surrendered his principal sovereign rights to the King of Prussia for ten years, retaining merely nominal power; that by a treaty of March 2, 1887, the arrangement was continued, subject to termination on notice; and that it was therefore presumed that subjects of Waldeck are entitled to the rights and privileges of existing treaties between the United States and Prussia."

66

66

Mr. Gresham, Sec. of State, to Mr. Scott, March 19, 1894, 196 MS. Dom.
Let. 118.

The establishment of the German Empire in 1871 and the complex relations of its component parts to each other and to the Empire necessarily give rise to questions as to the treaties entered into with the North German Confederation and with many of the States

composing the Empire. It can not be said that any fixed rules have been established.

"Where a State has lost its separate existence, as in the case of Hanover and Nassau, no questions can arise.

"Where no treaty has been negotiated with the Empire, the treaties with the various States which have preserved a separate existence have been resorted to.

"The question of the existence of the extradition treaty with Bavaria was presented to the United States district court on the application of a person accused of forgery committed in Bavaria, to be discharged on habeas corpus, who was in custody after the issue of a mandate, at the request of the minister of Germany. The court held that the treaty was admitted by both governments to be in existence.

"Such a question is, after all, purely a political one."

Davis's Notes, Treaty Vol. (1776-1887), 1234, cited in Terlinden v. Ames
(1902), 184 U. S. 270, 287. The case referred to, in which the United
States district court held the treaty with Bavaria still in force, was
In re Thomas, 12 Blatch. 370.

The passage from Davis's Notes, as to the treaties with Hanover, is cited
in Mr. Hill, Assist. Sec. of State, to Mr. Hitt, M. C., Dec. 20, 1900, 249
MS. Dom. Let. 584.

June 16, 1852, an extradition treaty was concluded by the United States with the King of Prussia, in his own name and in the names of eighteen other States of the Germanic Confederation, and it was afterwards acceded to by six other States. After the war between Prussia and Austria of 1866 the Germanic Confederation was succeeded by the North German Union, under the præsidium of Prussia. By Article III. of the treaty of naturalization concluded by the United States February 22, 1868, with the King of Prussia on behalf of the North German Confederation, the extradition treaty of 1852 was "extended to all the States " of that confederation. Subsequently there was formed the German Empire, the constitution of which contained no provision for the abrogation of the separate treaties of the constituent States; and extradition between the United States and Germany continued to be granted under the treaty of 1852. In 1889 the German foreign office, in a memorandum on the subject of extradition, stated that, as laws and treaties binding upon the whole union in the matter had not been made, the several States were "not hindered from independently regulating extradition by agreements with foreign states or by laws enacted for their own territory." In this relation the memorandum referred to conventions made by individual States of the Empire with various foreign countries, including France, Netherlands, Austria-Hungary, and Russia, and added: "With the United States of America also extradition is

regulated by various treaties, as, besides the treaty of June 16, 1852, which applies to all of the States of the former North German Union, and also to Hesse, south of the Main, and to Würtemberg, there exist separate treaties with Bavaria and Baden, of September 12, 1853, and January 30, 1857, respectively."

Held, that a German subject, charged under the treaty of 1852 with being a fugitive from justice, could not be permitted to call upon the courts of the United States to adjudicate as to the correctness of the conclusions of the Empire concerning its powers and the powers of its members, especially as the executive department of the government of the United States had accepted and acted upon those conclusions; and that the treaty must be considered as still continuing in force.

Terlinden v. Ames (1902), 184 U. S. 270, 282-286, citing Moore's Report on Extradition with Returns of All Cases, 93, 94, and Laband's. Das Staatsrecht des Deutschen Reiches (1894), 122, 123, 124, 142.

The stipulation in the treaty of cession of Louisiana for the protection of the inhabitants in their property, etc., Admission of Louisi- ceased, by its own limitation, to operate when the State was admitted into the Union.

ana.

New Orleans v. Armas, 9 Pet. 224.

5. LEGISLATIVE ABROGATION.

§ 774.

"Whereas the treaties concluded between the United States and France have been repeatedly violated on the part of the French government; and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity: and whereas, under authority of the French Government, there is yet pursued against the United States a system of predatory violence, infracting the said treaties and hostile to the rights of a free and independent nation:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention, heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States.

"Approved, July 7, 1798."

1 Stat. 578.

"The act of July 7, 1798, annulling the treaties with France, was followed by an act of July 9, 1798, which, without any formal declaration of war, not only authorized the President to instruct the com

manders of public armed vessels of the United States to capture any French armed vessel, such captured vessel with her apparel, guns, and appurtenances, with the goods and effects on board the same, being French property, to be brought into the United States, and proceeded against and condemned as forfeited; but the President was authorized to grant special commissions to private armed vessels which shall have the same license and authority. 1 Stat. L. 578.” (Lawrence's Wheaton (1863), 507.)

See Davis, Notes to the Treaties of the United States; Moore, Int. Arbitrations, V. 4425-4431.

After the act of Congress of July 7, 1798, the obligations of France to the United States must be determined by the law of nations. (The Atlantic (1901), 37 Ct. Cl. 17.)

It was afterwards held, however, that the decree of the French government abrogating so much of the treaty of 1778 as related to contraband goods did not impair any treaty right of the United States. (The James and William (1902), 37 Ct. Cl. 303.)

The French government did not admit that the act of 1798 effected a valid international abrogation of the treaties. During the negotiation of the convention of 1800, the American negotiators presented a draft, in which it was provided that the commissioners, who were to pass upon claims of the citizens of one națion upon the government of the other, should, in determining questions of capture or condemnation, "decide the claims in question according to the original merits of the several cases, and to justice, equity, and the law of nations; and in all cases of complaint existing prior to the 7th of July, 1798, according to the treaties and consular convention then existing between France and the United States." The French plenipotentiaries replied that they were "not aware of any reason" which could "authorize a distinction between the time prior to the 7th of July, 1798, and the time subsequent to that date." The American plenipotentiaries then referred to the act of Congress of that date, declaring the treaties to be at an end. The French plenipotentiaries declined to negotiate on this basis, and the American negotiators in the and found it necessary either to postpone the subject or to abandon the negotiations. They took the former course, and inserted in the convention, which they signed Sept. 30, 1800, an article by which it was agreed that the question of claims should form the subject of a future negotiation, and that the treaties meanwhile should not be operative. The Senate of the United States struck out this article, and Napoleon, on exchanging the ratification, made a declaration to the effect that by the Senate's amendment it was to be understood that "the two states renounce the respective pretensions, which are the object of the said article." This declaration was accepted by the United States; and hence the argument, on which the "French spoliation claims" are founded, that the government of the United States, in spite of the act of 1798, in the end purchased a release from

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