711.519/a: Circular telegram
The Secretary of State to the Ambassador in France ( Herrick )14
The Department has had under consideration the advisability of negotiating treaties with maritime powers to provide for sealed stores of liquor on foreign vessels destined to our ports and for cargoes of liquor not destined for ports of the United States but merely carried through American waters, this arrangement to be in connection with the granting by the maritime powers of the right of visit and search within the limit of 12 geographical miles of coasts so as to make more effective the enforcement of the prohibitory laws and to put an end to the rum running by vessels which now hover off our coasts under the protection of foreign flags. The Embassy will understand that the Supreme Court’s decision on the applicability of the National Prohibition Act to foreign merchant vessels [Page 153] coming within our territorial waters leaves no option to the enforcing authorities until the act has been modified by Congress or by a duly ratified treaty. Several nations, while they do not dispute the jurisdictional authority of the United States within its territorial limits, have, however, made representations based on former practice and on comity between nations regarding regulations which relate to internal economy of vessels which does not affect local peace and safety. These considerations are necessarily addressed, however, to the discretion of Congress, not to that of the Executive, who can not change the existing law except upon its modification by an act of Congress or by a superseding treaty. It is likely that the question will come before Congress at the next session and the Department hopes that the present inconvenience will be relieved, but what action Congress will take is necessarily in doubt. Much would be done in accomplishing the desired results, that is the promotion of the convenience of commerce, while safeguarding at the same time against the introduction of liquor into the United States in violation of the real purpose of the Eighteenth Amendment, if the powers concerned, as a quid pro quo for the privilege of bringing in sealed stores of liquor and cargo liquors not consigned to any persons within the United States but merely passing through our waters, were to engage themselves to grant the United States a reasonable opportunity to enforce its existing laws against smugglers who are abusing their flags. The Government of the United States assumes, in making this suggestion, that foreign Governments have no desire to encourage either such illegal traffic as exists, or the use of their flags to cover the smugglers that hover off our coasts, and that these Governments would be glad to give aid in proper manner to put an end to this abuse in consideration of the convenience of their own shipping in the manner suggested. The point may also be indicated that certain maritime states have endeavored to uphold, as against other Governments, the privilege of search and visit for the enforcement of their own laws outside the three-mile limit.
In making the above proposal the Government of the United States is not intending to extend or to ask that any other nation extend the territorial waters of each, but to supply a rule governing on the part of one and the other their own intercourse by an appropriate treaty. You are doubtless aware that there are historic precedents for such action as is proposed.
No legitimate trade of foreign vessels would be interfered with by the proposed agreement. Vessels bound for ports of the United States would of course be subject to search upon arrival in any event. Vessels that are not bound for ports of the United [Page 154] States would not normally come within the twelve-mile limit but if they did, in exceptional instances, but were not engaged in smuggling they would suffer no inconvenience through the agreement. On the other hand, it is possible that the agreement would enable us to suppress the rum-running which has frankly been admitted to be an abuse of foreign flags. It may be noted further that if the maritime powers insist upon the right of vessels flying their flags to hover off American coasts where they engage in facilitating the smuggling of liquors into this country, Congress would be unlikely to make any relaxation in their favor of the stringency of the present regulations with respect to the introduction of liquors within the territorial waters of the United States. Furthermore, the agreement proposed does not purport to enlarge territorial jurisdiction but confers only a limited right of search, and to grant this right by reciprocal consent would not in any way be derogation of sovereignty. The right would not be inconsistent with the rule asserted regarding the three-mile limit as it would be granted by treaty.
Text of proposed draft treaty will be communicated to you at once separately.
Repeat to London and Rome.
- See last paragraph for instructions to repeat to London and Rome. On June 15 the Ambassador was instructed to repeat the telegram, with the exception of the last two paragraphs, to Belgium, Denmark, and the Netherlands, and on June 16 to Norway, Sweden, and Portugal (file nos. 711.519/a supp., b supp.).↩