711.419/16: Telegram
The Secretary of State to the Chargé in Great Britain (Wheeler)
193. The following note was communicated to the British Embassy on July 19, 1923:
“The Secretary of State presents his compliments to the Chargé d’Affaires ad interim of Great Britain and acknowledges the receipt of the memorandum, under date of the 14th instant, expressing the views of His Majesty’s Principal Secretary of State for Foreign Affairs, with respect to the proposed treaty relating to visit and search of vessels within 12 miles of the coasts of the parties, respectively, for the purpose of preventing the illegal introduction of articles into their territories, and also relating to the carriage, within territorial waters, of certain sealed stores and cargo destined for foreign ports.
Preliminarily, it should be observed that a draft treaty was submitted informally, simply for the purpose of avoiding misunderstanding and of making a concrete suggestion which could form the basis of discussion. It should also be said that it was not the purpose of the Secretary of State to propose an extension of the limits of territorial waters, and the draft proposal specifically negatived such an intention.
It is noted that Lord Curzon points out that the theory of the international validity of the 3-mile limit would be strengthened by the conclusion of a treaty making an exception for a special purpose, but that he is of the opinion that such a treaty would weaken the principle because it would form a precedent, the following of which would ultimately deprive the principle of force. It is not perceived that this would be the result as no Power would be under obligation to make any other agreements unless it saw fit to do so, or to treat the special agreement as a precedent except in a case precisely analogous, and there could be inserted in the special agreement any statement or qualification that might be deemed to be advisable to show that it was definitely limited to the particular situation in view.
In relation to Lord Curzon’s further suggestion, it may be stated that while the proposed treaty could not be ratified until the Senate convenes, and while the Secretary of State is not in a position to give an assurance either with respect to the action of the Senate, or with regard to the prospect of securing from Congress an amendment to the Volstead Act in relation to ship liquor and cargo liquor destined for foreign ports, it is believed that the solution of the present difficulty through the making of a fair and reasonable agreement, such as is proposed, would be the most promising method of securing early action. Therefore, Mr. Hughes trusts that the suggestion will not be put aside upon the supposition that another course is equally feasible.
With respect to Lord Curzon’s suggestion that even if the 12-mile limit were accepted, cases would inevitably occur liable to cause serious friction between the two countries owing to the difficulty of [Page 169] deciding with any certainty the position of a vessel usually out of sight of land, at any rate on the Atlantic coast, it is believed by this Government that the proposed special agreement would do much to reduce, if indeed it would not wholly eliminate, the causes of friction due to the present efforts to evade the laws of the United States. In this connection, it must be emphasized that the proposed agreement would not interfere with British vessels engaged in legitimate commerce and bound for American ports. Such vessels will necessarily come not only within 12 miles but within 3 miles of the American coast and will hence in any event be subject to examination by American authorities, and will, of course, comply with the applicable laws of the United States. The proposed special agreement would bear only upon those vessels which come within 12 miles but hover off the 3-mile limit for the purpose of aiding in the smuggling of intoxicating liquor, or other prohibited articles, into the territory of the United States.
It is impossible for this Government not to take all proper and lawful measures to prevent this illicit traffic from being carried on. An illustration is afforded by the case of the schooner Henry L. Marshall, the conduct of which recently came under the scrutiny of the United States Circuit Court of Appeals for the Second Circuit, as stated in the memorandum of the Secretary of State delivered to the British Embassy on the 16th instant.23 While it is understood that this vessel is not regarded as a British vessel, for the reason which His Majesty’s Government has stated,24 reference may be made to the practice of the vessel as showing the conditions with which the American Government is required to deal. The vessel did not come within the 3-mile limit, but she made her arrangements for the carriage of her illicit cargo to the shore of the United States in violation of its laws, and, as the court found, while the unloading was begun outside the 3-mile limit, it was continued within the territorial waters of the United States, and the vessel was engaged contrary to the laws of the United States in introducing her cargo of intoxicating liquors within the commerce of the United States.
This Government has already expressed the hope that the British Government will interpose no obstacles in such cases to the enforcement of the laws of the United States, but it is believed that an appropriate agreement which would not injure bona fide trade but would facilitate the enforcement of the laws of the United States in preventing the smuggling of liquor, would remove occasions for misunderstanding and eliminate the serious friction to which the Memorandum under consideration refers.
It may confidently be asserted that there would be no disposition on the part of the American authorities, and the special agreement would not justify any attempt, to seize a British vessel, save within the limits proposed, and when it was clear that the vessel concerned was directly involved in an attempt to introduce its illicit cargo into the territory of the United States. British vessels bound for the ports of the United States would encounter no additional obstacles to their trade, and vessels destined for foreign ports, which happened [Page 170] to pass on legitimate errands within 12 miles of the American coast, would suffer no inconvenience, while such vessels as were engaged in the unlawful conduct above described would not be able to create difficulties between the two countries, much less serious friction, by attempts to secure immunity for their operations by invoking the protection of the British flag.
Although the Government of the United States regards the proposed agreement as an appropriate setting forth of the proposal, it would cordially welcome the cooperation of the British Government in moulding the form of an arrangement which would reasonably serve a purpose which, it is firmly believed, may be found to be common to both countries.”
As the British Embassy may not telegraph the text of this note to the Foreign Office you may deliver a copy with a statement that it is the note sent to the Embassy on July 19.