The Secretary of State to Chargé Garrett. 1

Sir: On October 18, 1909, the Secretary of State transmitted an identic circular note to the powers participating in the London Naval Conference proposing that the prize court convention be modified in such a way as to remove the constitutional objection to it on the part of the United States. Briefly stated, the objection to the convention in its actual form consisted in the fact that an appeal night be taken from a decision of the Supreme Court of the United States, and that the judgment of the Supreme Court might be modified or reversed on appeal. The department was willing to submit the question involved in the judicial determination to the examination of the international prize court and to give effect to its findings provided the findings were in the form of an award of damages leaving untouched or unaffected the validity of the judgment within the jurisdiction of the United States. The proposal of the United States was that the proceeding before the prize court should be de novo, and that the question involved in the controversy should be tried and determined both as to the law and the act without reference to the national judgment.

As a result of negotiations, particularly with the original proposers of the prize court convention, it was determined to draw up an additional protocol to be signed by the signatories of the original convention, to be ratified by them, and the ratifications of the additional protocol and the original convention to be deposited at one and the same time at The Hague. The additional protocol vas to form an integral part of the original convention and the invention was to be modified in accordance with the provisions of the additional protocol. As modified, the department believed that this Government could accept the prize court and participate in its beneficent operations.

On May 24, 1910, the Netherlands minister of foreign affairs transmitted the additional protocol to the signatories of the original convention with the request that their diplomatic representatives credited to The Hague should be instructed to sign the protocol during the month of September, and on September 19, 1910, the protocol was signed by the United States, Germany, Argentine, Austria-Hungary, Denmark, Spain, France, Great Britain, Japan, Norway, Netherlands, and Sweden, and the Netherlands minister of foreign affairs stated that Bulgaria, Ecuador, and Salvador ad expressed their intention to adhere thereto. The Dutch minister of foreign affairs also stated that he had received no intimation of any objection to the additional protocol and he believed that it would be approved by the various signatories of the original convention during the course of the year.

The department, however, is unwilling to transmit the additional protocol to the Senate or to request the approval of the original convention unless informed that all the signatories of the original convention have either approved the protocol or have expressed [Page 635] their intention to do so in the very near future, as the ratification of the protocol and the original convention, as well as the declaration of London which supplements the original prize court convention, would fail of their purpose unless the protocol were ratified by the signatories to the original convention. The department is, however, exceedingly anxious to cooperate in the establishment and operation of the international court of prize, but feels that it must be assured of the acceptance of its porposed modification as set forth in the additional protocol before it can take any steps toward securing the approval of the instruments by the Senate.

You are, therefore, instructed to lay these views before the Government to which you are accredited and to state the great and abiding interest which the United States takes in the establishment of the prize court and the peculiar importance which it attaches to the acceptance of the additional protocol which will render the cooperation of the United States possible. The department will inform the Governments of Germany, France, and Great Britain of the contents of this instruction, and before taking the matter up with the Government to which you are accredited you will confer with the diplomatic representatives of Germany, France, and Great Britain in order to ascertain their own views and to have them make a concurrent, although not joint, representation of the importance of early favorable action upon the additional protocol.

I transmit for your information a copy of the identic circular note of the Dutch minister of foreign affairs, dated May 24, 1910, and a copy of the draft of the additional protocol as thereby transmitted by the Netherlands Government to the signatory governments of the international prize court convention of The Hague.

I am, etc.,

P. C. Knox.
  1. Sent, mutatis mutandis, also to the following embassies and legations: Embassies: Mexico, Turkey, nations: Belgium, Bolivia, Chile, Colombia, Cuba, Ecuador, Guatemala, Haiti, Panama, Paraguay, Persia, Peru, Portugal, Salvador, Siam, Switzerland, Uruguay.