Mr. Seward to Mr. Bancroft.
Sir: Your dispatch of the 26th of January, No. 36, has been received. You mention two questions which somewhat engage the public attention in Germany, and ask instruction of the department how to speak about them to the government of North Germany.
The first of these questions is, whether it is not expedient to secure perfect reciprocity in regard to the privilege of carrying on trade by the citizens or subjects of the one country in the other country; such reciprocity to extend to the right of holding real estate, at least so far as required for the trade or pursuit of the American emigrant to Germany or the German emigrant to America. The second of these questions is, whether it is practicable and expedient to stipulate with North Germany for the inviolability of private persons and property on the high seas, subject only to the necessities of war. You remark that your judgment is in favor of both these suggestions, especially the second one. I further take notice that you do not propose to connect either of these questions, or any other, with that of naturalization, which subject we have now specially in view in our negotiations with the North German government.
The President has submitted to me a private letter which you have written to him on the subject of the second question.
In regard to the first question, namely, reciprocity for persons concerned in trade in acquiring, holding, and transferring real estate, my personal opinion is in favor of such a reciprocity as is suggested. The subject, however, is one which is beset with grave difficulties. The regulation of the right to acquire, to hold, and alienate real estate in the United States has always been held to fall exclusively within the province of [Page 47] State legislation, and not within the province of federal legislation. It is by no means settled how far the federal government can enter into conventions with foreign nations affecting individual rights over real estate in the several States. Different States cherish and maintain quite different policies, and there are many conflicts of laws between the States in regard to guarantees, alienations, and remedies. There results from this conflict an unwillingness on the part of many senators to negotiate concerning real estate tenures, and this unwillingness renders it difficult to obtain a concurrence of two-thirds in support of any treaty which involves stipulations concerning tenure, inheritance, or disposition of real estate. A considerable service in the Senate has made me familiarly acquainted with this difficulty. I will take an early occasion to inquire concerning the amount of favor such a proposition as the one under immediate consideration might be expected to obtain in the Senate.
I shall afterwards be able to give you the President’s instruction on the subject.
In relation to the second qnestion, very conflicting opinions have always been, and still are, entertained in the United States. Thoughtful and hopeful minds generally favor the proposition to exempt private persons and property on the high seas from the inflictions of war. So far as I have learned, this opinion has, however, been by no means universally accepted. There is a large class of persons who habitually regard foreign war as always a probable contingency, besides many who are continually expecting a conflict with some particular State or States. These persons regard privateering not only as the strongest arm of naval defense, but as one which the United States could use with greater advantage than any foreign enemy. These persons are so jealous on the subject of privateering that they are always unwilling to consent to waive the rights in any one treaty for fear that the treaty may become a precedent for the entire abandonment of that form of public war. Certainly this latter class very strongly prevailed throughout the entire period of our civil war. I have not recently made any careful inquiry to ascertain how far that popular sentiment has been modified by the return of peace.
I will, however, on this question, as on the other, make diligent observations, and I will then communicate such decision as the President shall see fit to adopt.
It is quite clear that it would be injudicious to connect either of these two questions with the negotiations now happily on foot concerning naturalization.
I am, sir, your obedient servant,
George Bancroft, Esq., &c., &c., &c.