Under the act of Congress constituting a board of commissioners to pass on claims provided for by the treaty with France of 1831 the decision of the board between conflicting claimants is not conclusive, and the question of their respective titles is fully open to be adjudicated by the courts.

Frevall v. Bache, 14 Pet., 95.

"By the treaty of July 4, 1831, France was to pay 25,000,000 francs in full satisfaction of the American claims; the United States were to pay 1,500,000 francs in satisfaction of certain French claims; the United States were to reduce the duties on French wines; and France, in consideration of the latter agreement, was to relinquish its claims and reclamations respecting the 8th article of the treaty of cession of Louisi

ana.

"The ratifications of this convention were exchanged on the 2d of February, 1832, and on the 13th of the following July Congress passed an act to carry it into effect. It provided for a commission to take proof of the claims, and also for the agreed reduction of duties upon the wines of France. Under this commission the claims which had been referred against the Netherlands as well as some which had been preferred against Naples and Spain were proved and allowed against France.

"The first installment under this treaty was to be paid at the expiration of one year next following the exchange of the ratifications; that is, it became payable on the 2d day of February, 1833. But no provision was made for its payment; and on the 18th of April, 1834, the French Chamber of Deputies, by a vote of 176 to 168, refused to make the appropriations necessary to carry out the provisions of the treaty. (See supra, §§ 133 ff.) At the opening of the 2d session of the 23d Congress (December, 1834), President Jackson, after stating in detail successive neglects of France to make or provide for the payments under this treaty, said: "The executive branch of this Government has, as matters stand, exhausted all the authority upon the subject with which it is invested, and which it had any reason to believe could be beneficially employed. The idea of acquiescing in the refusal to execute the treaty will not, I am confident, be for a moment entertained by any branch of this Government; and further negotiation upon the subject is equally out of the question. After a discussion in the Senate, in which Clay, Webster, Buchanan, Calhoun, Clayton, and others took part, it was voted unanimously, 'it is inexpedient at present to adopt any legislative measures in regard to the state of affairs between the United States and France.' The President, on the 7th of the following Febru ary, transmitted to the House of Representatives further correspondence from Edward Livingston, then minister at Paris; and again on the 25th of the same month still further correspondence, by which he said, 'It will be seen that I have deemed it my duty to instruct Mr. Livingston to quit France with his legation, and return to the United States, if an appropriation for the fulfillment of the convention shall be refused by the Chambers.' The next day the Committee of Foreign Affairs reported to the House respecting the 'relations with France.' There was a majority report and a minority report. Cambreleng presented the former; the latter was signed by Edward Everett, Robert P. Letcher, and R. Coulter. Cambreleng opened the discussion on Saturday, the 28th of February, with a short speech. John Quincy Adams followed at length. Archer, Pickens, Cambreleng, Everett, Wise, the best talent of the House, participated in the debate. It closed at night by

the adoption of a resolution that in the opinion of the House the treaty of July 4, 1831, should be maintained and its execution insisted on, and that preparations ought to be made for any emergency growing out of our relations with France.

"Livingston left Paris under instructions from the President, and was followed by Barton, whom he had left as chargé d'affaires. This caused the withdrawal from Washington of Pageot, the French minister, and the complete rupture of diplomatic relations. (See infra, § 318.)

"On the 8th of February, 1836, the President informed Congress that the mediation of Great Britain had been offered to adjust these differences. Some of the proceedings which had taken place in the Chamber of Peers in Paris may be found in a message of the 15th of that month. On the 22d the President was able to announce to Congress that the French Government had determined to execute the treaty, and that the mediation had therefore become unnecessary. (Supra, § 49; infra, § 318.) The payments of the installments were duly made. Thenceforward diplomatic relations were resumed, and the last difficulty with France, arising from the wars of Napoleon, disappeared."

Mr. J. C. B. Davis, Notes, &c. See the proceedings on this treaty noticed infra, 318; see also § 228.

As to privileges of consuls under consular convention, treaty of 1853, see supra, $ 98.

By the 7th article of the consular convention with France of February 23, 1853, the President engaged to recommend to the particular States "that if, pursuant to their then existing laws, French subjects were not then allowed to hold real estate in any State, that right might be conferred on them."

Mr. Fish, Sec. of State to the governor of Maine, May 9, 1870. MSS. Dom. Let. The 7th article of the treaty with France of 1853 has relation only to rights of inheritance subsequently acquired.

Prevost v. Greenaux, 19 How., 1.

(11) GERMANY.

§ 149.

The treaty of July 11, 1799, between the United States and Prussia, which was preceded by a correspondence as to neutral rights, elsewhere given (infra, §§ 342 ff.), reaffirmed the rule of free ships making free goods. This treaty, in connection with that of 1785, is discussed in 1 Lyman's Diplomacy of the United States, chap. v.

The treaty of 1828 with Prussia makes provision for the disposition and succession of both personal and real estate in each country by the citizens or subjects of the other. Of this provision Mr. Cushing, when Attorney-General, held that it is "a stipulation constitutional in substance and form, which, as such, is the supreme law of the land, and which abrogates any incompatible law of either of the States."

8 Op., 417, Cushing, 1857; but see supra, § 138.

Where a detention of a Prussian vessel, in the port of New Orleans, during the late civil war, was caused by her resistance to the orders of the properly constituted authorities, whom she was bound to obey, she preferring such detention to a clearance upon the conditions imposed, it was ruled that her owner, a subject of Prussia, is not entitled to any damages against the United States under the law of nations or the treaty with that power of 1799.

U. S. v. Diekelman, 92 U. S., 520.

Article 10 of the treaty with Prussia of 1828 provides that the consuls, vice-consuls, and commercial agents of each party "shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities," subject to the right of the contending parties "to resort, on their return, to the judicial authority of their country," and to the right of the consuls, vice-consuls, and commercial agents to require the assistance of the local authorities "to cause their decisions to be carried into effect or supported." The crew of a Prussian vessel sued in rem, in admiralty, in the district court, to recover wages alleged to be due to them. The master of the vessel answered, denying the debt, invoking the protection of said treaty, denying the jurisdiction of the court, and averring that the claim for wages had already been adjudicated by the Prussian consul at New York. The consul also protested formally to the court against the exercise of its jurisdiction. The case was tried in the district court, and it appeared that the consul had adjudicated on the claim for wages. The district court decreed in favor of the libellants. It was held that the district court had no jurisdiction of the case.

The Elwine Kreplin, 9 Blatch., 438. As to consular jurisdiction, see supra, § 124.

"Overtures for a treaty of commerce and navigation were made to John Adams by M. de Thulemeier, Prussian envoy to The Hague, on the 18th of February, 1784. Adams replied that he could do nothing but in concurrence with Mr. Franklin and Mr. Jay, who were at Paris, but that he thought he could answer for the good disposition of those gentlemen, as well as of his own.' Franklin and Jay concurred in desiring to negotiate such an instrument, and Adams proposed to Thulemeier that the then recently negotiated treaty with Sweden should be taken as the model of the proposed instrument. Thulemeier adopted the suggestion, and in the following April sent Adams a projét based upon it, which Adams transmitted to the President of Congress.

"On the 7th of the following June Adams transmitted to the President of Congress an account of the negotiations, with his observations upon the Prussian projét. On the 3d of that month, however, Adams, Franklin, and Jefferson had been invested by Congress with a general power to conclude treaties of amity and commerce with various powers in Europe, among others with Prussia; and they notified Thulemeier

that they were ready to consider and complete the plan of a treaty' which he had already transmitted.

"Thulemeier communicated this to his Government, and received a 'full power to conclude a treaty of commerce and friendship between Prussia and the United States.' The negotiations were conducted with great rapidity under the circumstances. Franklin left Passy on the 12th of July, 1785, for America. The French text of the treaty at the time of his signature had not reached Paris, and he signed only the English text. The French draft reached Paris several days later, and was copied, by Jefferson's directions, into the instruments which Franklin had signed. Then Jefferson signed the documents, and Short took them to Adams, in London, for his signature. Short then went to The Hague to secure Thulemeier's signature to the treaty, and its exchange.

"On the 11th of July, 1799, when this was about to expire by its own limitation, a new treaty was concluded by John Quincy Adams, at Berlin, which his father, the President, communicated to Congress on the 22d of November, 1800. This also expired in ten years from the exchange of ratifications, in the midst of the wars of Napoleon.

เ

"In 1828 a new treaty of amity and commerce with Prussia was concluded, which is still in force. The fourteenth article makes provision for the disposition and the succession of both personal and real estate in each country by citizens of the other. Attorney-General Cushing said of this, there is a stipulation of treaty, constitutional in substance and form, which, as such, is the supreme law of the land, and which abrogates any incompatible law of either of the States. In the circumstances suggested by the Baron von Gerolt, it is an act of mere duty and of simple good faith on our part to assure him that such is the law.'

"This treaty conferred upon consuls jurisdiction over disputes between masters and seamen. President Polk, in his annual message, December 2, 1845, said, 'The Prussian consul at New Bedford in June, 1844, applied to Mr. Justice Story to carry into effect a decision made by him between the captain and crew of the Prussian ship Borussia, but the request was refused on the ground that without previous legislation by Congress the judiciary did not possess the power to give effect to this article of the treaty. I have deemed it proper, therefore, to lay the subject before Congress, and to recommend such legislation as may be necessary to give effect to these treaty obligations.' No such act was passed until June 11, 1868. (See supra, § 124.)

"On the outbreak of the Franco-German war, the German minister at Washington informed Mr. Fish that private property on the high seas was to be exempted from seizure by German vessels without regard to reciprocity. Mr. Fish replied, 'The Government of the United States receives with great pleasure the renewed adherence of a great and enlightened German Government to the principle temporarily established by the treaty of 1785, and since then advocated by this Government whenever opportunity has offered.' (See infra, § 342.)

"Before the formation of the North German Union questions were arising with Prussia respecting the compulsory enlistment in the Prussian army of persons who had become naturalized as citizens of the United States. These questions were intended to be set at rest by the treaty of naturalization with the North German Union. Some doubts still remaining as to the proper construction of that treaty, Prince Bismarck said, in the Diet, The gentleman who has last spoken fears

that a person who has lived five years in America, and been naturalized there, may yet, on his return here, be held to military duty. This apprehension I can designate as perfectly and absolutely unfounded. The literal observation of the treaty includes in itself that those whom we are bound to acknowledge as American citizens cannot be held to military duty in North Germany. That is the main purpose of the treaty. Whosoever emigrates bona fide with the purpose of residing permanently in America shall meet with no obstacle on our part to his becoming an American citizen, and his bona fides will be assumed when he shall have passed five years in that country, and, renouncing his North German nationality, shall have become an American citizen."

Mr. J. C. B. Davis, Notes, &c.

The naturalization treaties with Germany are considered in another chapter.

Infra, §§ 173, 178, 179.

Under the treaty with Prussia, of 1852, the forging of checks on the communal chest of Breslau is a crime for which the mutual extradition of fugitives from justice is stipulated.

6 Op., 761, Cushing, 1854. Infra, § 270.

The provisions of the treaty of 1828 between the United States and Prussia, for the arrest and imprisonment of deserters from public ships and merchant vessels of the respective countries, applies to public vessels sailing under the flag of the North German Union, and deserters from such vessels.

12 Op., 463, Evarts, 1868.

A citizen of the North German Confederation who becomes a naturalized citizen of the United States must have had an uninterrupted residence of five years in the United States before he is entitled to the immunities guaranteed by the treaty with the Confederation of 1868. The recital contained in the record of the naturalization proceedings that he had resided continuously in this country for more than five years will not be regarded by the United States as conclusive as to the fact so recited.

13 Op., 376, Ackerman, 1871. See infra, §§ 173 ff.

A crime committed by a Prussian subject in Belgium, although justiciable in Prussia, does not come within the provisions of the extradition treaty between the United States and Prussia of 1852.

14 Op., 281, Williams, 1873. See infra, §§ 271 ff.

A Prussian subject by birth emigrated to the United States in 1848, became naturalized in 1854, and in the following year had a son born in Saint Louis, Mo. Four years after the birth of his son he returned to Germany with his family, including this infant child, and became domiciled at Wiesbaden, in Nassau, where he has continuously resided. In 1866 Nassau became incorporated into the North German Confederation. When the son reached the age of twenty years he was called