File No. 711.0021/44a.
The Secretary of State to Minister O’Rear. 2
Washington, May 29, 1915.
Sir: By direction of the President, I enclose [and so on, in the same words as in the foregoing instruction to Ambassador Page, to the end of the first paragraph after the quotation of Sections 16, 17 and 18 of the Act of March 4, 1915; from which point this instruction to the Minister to Bolivia (and, mutatis mutandis, to the other missions mentioned in the footnote) continues as follows.][Page 7]
The period of ninety days thus established will terminate on June 1 next, and it is therefore necessary that such notice be now given to the Government to which you are accredited in order that negotiations may be instituted looking to an agreement limiting the effect of the denunciation required by law to the portions of the treaty or treaties which are found to be in conflict with the provisions of the Act. Inasmuch as treaties are contracts between governments, they can only be varied in whole or in part by mutual agreement or special consent. It is the hope, however, of the President that such an agreement can easily be reached which will leave unaffected all parts of the treaties with foreign governments not inconsistent with the humanitarian and progressive provisions of the Act.
From an examination of the treaties between the United States and Bolivia it appears that Article 34 of the Treaty of May 13, 1858, is affected by the terms of Section 16 of the Act.
Article 34 reads as follows.
The said Consuls shall have power to require the assistance of the authorities of the country for the arrest, detention and custody of deserters from the public and private vessels of their country; and for that purpose they shall address themselves to the courts, judges and officers competent, and shall demand the said deserters in writing, proving by an exhibition of the registers of the vessels or ships’ roll, or other public documents, that those men were part of the said crews; and on this demand, so proved, (saving, however, when the contrary is proved,) the delivery shall not be refused. Such deserters, when arrested, shall be put at the disposal of said Consuls, and may be put in the public prisons, at the request and expense of those who reclaim them, to be sent to the ships to which they belong or to others of the same nation; but if they be not sent back within two months, to be counted from the day of their arrest, they shall be set at liberty, and shall be no more arrested for the same cause.
This article is affected by the provisions of Section 16 of the Act of Congress which directs the President, within ninety days of the passage of the Act, to notify all interested foreign Governments of the termination of articles of all treaties providing for the arrest and imprisonment of seamen deserting from United States vessels abroad, or foreign vessels in American waters.
The application of the fundamental principles of the Act of Congress to alien seamen within the territorial jurisdiction of the United States involves an abrogation of such treaty provisions as are inconsistent therewith. This, it is hoped, may be effected with but little inconvenience through a willingness on the part of the Government of Bolivia and other Governments with which the United States has treaty provisions on the subject to consent to such an abrogation as will leave intact all the other clauses in the treaties in question, inasmuch as these treaties have so long and so well cemented the cordial relations that have happily prevailed between the United States and her sister nations.
It is obvious that the Government of Bolivia is aware that sooner or later an amelioration of the legal status of seamen and the practice with regard to their treatment must have come, as a concomitant of the general advances in human liberty in other pursuits, to modify the strictness of the letter of municipal and conventional law existing for centuries in statutes and treaties. That national legislation has been the first to respond to this humane impulse is presumably due to the greater ease of amending local laws; but it is to be expected that international conventional arrangements will not long [Page 8]stand opposed to the complete release of seamen from the artificial restraints upon their personal liberty and pursuit of happiness peculiar to their calling. That so little has heretofore been done in their behalf may be ascribed to the fact that the nature of their calling removes the circumstances and conditions of their lives from the view of the great body of their fellow countrymen in whose regard generally reposes the welfare of individuals.
You are instructed, therefore, to bring this subject to the attention of the Minister for Foreign Affairs and to say to him that, pursuant to the provisions of the Act of March 4, 1915, the Government of the United States hereby gives notice of its intention to abrogate Article 34 of the Treaty of May 13, 1858, with Bolivia, in accordance with the stipulations in the treaty requiring one year’s notice following the termination of the specified period of ten years during which the treaty is operative from the date of ratification. In this connection you will explain to the Minister for Foreign Affairs that, while denunciation of a portion of a treaty as required by the Act may not, according to international practice, be made, the President, nevertheless, using the discretion which he deems is granted to him to interpret the Act in the sense contemplated by the Congress, instructs you to propose an arrangement between the two Governments which will effect the purpose of the Act by the abrogation or mere omission of the article referred to.
Further, in this connection, it is desired that you propose, as the time when such abrogation shall take effect, July 1, 1916—a period of twelve months’ notice—so as to render the Act effective in the case of Bolivia simultaneously with other Governments concerned, the original terms of whose treaties have expired and which are in all cases subject to termination upon not more than twelve months’ notice.
It is believed that the general observations made in a previous part of this instruction will convince the Government of Bolivia of the wise and humane purposes towards which the legislation is directed. That Congress did not contemplate the least infringement of the rights of foreign Governments respecting the control of their merchant marine while in ports of the United States in a manner inimical to those Governments is evident from the reports of the various committees to which the bill was referred before passage.
It is likewise clearly shown by Section 16 of the Act that the intent of Congress was not to disturb the great and valuable treaties now existing between the Government of the United States and other countries, negotiated from time to time with so much care and with so much patience, but by appropriate legislation to correct and regulate the long-existing and varying methods of procedure in matters affecting seamen. That such methods of procedure and standards of conduct towards seamen generally have not advanced, as should have been the case, coincident with the treatment of other classes of labor is believed to be so well established as to need no comment, and the President feels, therefore, that, when all the facts and circumstances attendant upon the passage of the act and of the purposes actuating the Congress in its passage are fully considered by the other Governments whose treaties may be affected in parts, no serious difficulties will be found to exist to delay or to prevent an agreement [Page 9]for the mere abrogation or omission of the respective articles found to be inconsistent with the provisions of the Act.
The President, although deeply anxious that an agreement be reached with foreign Governments upon this subject, is not concerned as to the particular method by which it may be consummated, whether by signed protocols of conferences, or by mutual exchange of note, as is a common practice in the conduct of many diplomatic affairs of this character. The latter course seems preferable because more easily effected in view of the constitutional requirements that formal agreements between the United States and other countries must be submitted to the Senate of the United States for its advice and consent. In this connection, therefore, you may point out to the Minister for Foreign Affairs that such reference to the Senate in the case of a simple exchange of notes will not be necessary, and that such an exchange of notes will be regular and effective because of the authority already granted to the President by Section 16 of the Act to abrogate the portions of the treaties inconsistent therewith. Hence, it will be perceived that the intent of Congress may be fully realized by informal agreements between the Government of the United States and other powers, and that in this way the various important treaties now subsisting may remain in full force and effect, with the exception of the articles relating to seamen.
In bringing this matter to the attention of the Minister for Foreign Affairs, you will hand him a copy of this instruction, and convey to him the earnest hope of this Government that, in the sympathetic consideration which the Government of Bolivia will undoubtedly bestow upon it, means may be found to disturb as little as possible the conventional relations now happily existing between the two countries while effecting the abrogation merely of those clauses of the treaty which are inconsistent with the Act of Congress of March 4, 1915.
I am [etc.]
Note: The following treaties are affected by the above-mentioned Act viz:
|Austria-Hungary||May 8, 1848|
|July 11, 1870|
|Belgium||March 9, 1880|
|Bolivia||May 13, 1858|
|Brazil||December 12, 1828|
|China||June 18, 1858|
|Colombia||December 12, 1846|
|May 4, 1850|
|Denmark||July 11, 1861|
|France||June 24, 1822|
|February 23, 1853|
|Great Britain||June 3, 1892|
|Greece||November 19, 1902|
|Italy||May 8, 1878|
|Independent State of the Kongo||January 24, 1891|
|Netherlands||January 19, 1839|
|May 23, 1878|
|Norway||July 4, 1827|
|Roumania||June 17, 1881|
|Spain||July 3, 1902|
|Sweden||June 1, 1910|
|July 4, 1827|
Editor’s note.—In addition to the treaties mentioned in the above note, appended to the circular instruction, the following treaties are affected:
|German Empire||December 11, 1871|
|Italy||February 24, 1881|
|Mecklenburg-Schwerin||December 9, 1847|
|Prussia||May 1, 1828|
|Tonga||October 2, 1886|
On account of the war, the circular was not sent to the Embassy at Berlin and no action was taken as to the treaties with the German Empire, Mecklenburg-Schwerin and Prussia. As to the treaty of February 24, 1881, with Italy, the same action was taken as in the case of the Treaty of May 8, 1878, mentioned in the note appended to the circular. For the treaty with Tonga, see the next instruction to Mr. Page.
The complete list, therefore, of the treaties mentioned in the instruction, with the articles thereof specifically indicated, is as follows:
|Austria-Hungary||May 8, 1848. Article 4.|
|Austria-Hungary||July 11, 1870. Articles 11 and 12.|
|Belgium||March 9, 1880. Articles 11 and 12.|
|Bolivia||May 13, 1858. Article 34.|
|Brazil||December 12, 1828. Article 31.|
|China||June 18, 1858. Article 18.|
|Colombia||December 12, 1846. Article 33.|
|Colombia||May 4, 1850. Article 3.|
|Denmark||July 11, 1861. Articles 1 and 2.|
|France||June 24, 1822. Article 6.|
|France||February 23, 1853. Articles 8 and 9.|
|Great Britain||June 3, 1892. The entire treaty.|
|Greece||November 19, 1902. Articles 12 and 13.|
|Italy||May 8, 1878. Article 13.|
|Italy||February 24, 1881. The entire treaty.|
|Kongo||January 24, 1891. Article 5.|
|Netherlands||January 19, 1839. Article 3.|
|Netherlands||May 23, 1878. Articles 11 and 12.|
|Norway||July 4, 1827. Part of Art. 13; Art. 14.|
|Roumania||June 17, 1881. Articles 11 and 12.|
|Spain||July 3, 1902. Articles 23 and 24.|
|Sweden||July 4, 1827. Part of Art. 13; Art. 14.|
|Sweden||June 1, 1910. Articles 11 and 12.|
|Tonga||October 2, 1886. Article 10.|
- The same, mutatis mutandis, to the American missions in Austria-Hungary, Belgium, Brazil, China, Colombia, Denmark, France, Greece, Italy, Netherlands, Norway, Roumania, Spain, and Sweden.↩