File No. 763.72111/3158

The German Ambassador ( Bernstorff ) to the Secretary of State

J. Nr. A 7572]

My Dear Mr. Secretary: I have the honor of acknowledging your excellency’s esteemed favor of the 16th instant in relation to the question under discussion between our Governments respecting the right to send vessels from ports of the United States laden with coal and provisions destined for cruisers of the German Empire on the high seas, and in response to a suggestion contained in my confidential note of 13th instant that you might be moved to use your good offices with the Department of justice to limit the scope of the question to be asked upon the trial of the Hamburg-American Line indictments in the manner, which you had used them on the prior case therein referred to.

[Page 871]

In replying to that portion of the note which deals with the question under discussion between our Governments I may perhaps be permitted to observe that your excellency’s formulation of that question makes it evident that in the communications which I have had the honor of addressing to you on the subject I have failed to make clear the views which I was endeavoring to convey. Your excellency supposed that it was the contention of my Government that the ports of the United States might properly be availed of as a base of naval operation by a belligerent, whilst the question to which the discussion was addressed was the validity of the contention that the practice under discussion did not constitute the use of your ports as a base of naval operations and that the view to which I was endeavoring to secure the assent of your Government was that under no accepted principle of international law and under no logical definition of the term “base of naval operations” could it be held that the dispatch of supply ships from neutral ports to warships at distant points on the high seas, whether as an isolated occurrence or as a matter of frequent repetition, involved any breach of neutral obligation on the part of the country permitting it or any use of the ports of that country as a base of naval operations by the belligerent in whose interest the ships were sent out.

I regret that my expressions of this view in my prior notes have not sufficed to make this clear to you and that for the reason set forth in my last note the discussion of that question has not been pressed, but I am at a loss to understand how any clearer expression of the views or any greater urgency in the discussion of this question could have availed to affect the determination of your Department of Justice to institute no prosecutions against the Hamburg-American Line. I could of course understand that a lack of explicitness or of urgency in the expression of my views might have had some effect upon the action of that department of your Government, if that department had had in contemplation prosecution based upon the claim that the acts of the Hamburg-American Line constituted either a violation of the neutrality laws of the United States or an infraction of principles of international law cognizable by your courts, and your excellency will remember that when the prosecution was first contemplated and when I supposed that it would be based upon the theory that the acts of the Hamburg-American Line constituted a violation of neutrality, I did address you on the subject.

When the prosecutions were begun, however, I was informed that they were not founded upon the theory that the acts of the Hamburg-American Line involved any breach of neutrality and that your Department of Justice had apparently come to the conclusion that the acts did not constitute a violation of the neutrality laws since it had not founded the prosecutions upon a violation of the provisions of those laws but upon the charge that the officials of the Hamburg-American Line had been guilty of some lack of explicitness in the formal documents filed as a preliminary to the dispatch of some vessels.

Believing until that time that the indictments were of this character, and that they indicated that the views above expressed obtained in your Department of Justice, I saw in these prosecutions nothing which related to the question under discussion between our Governments [Page 872] but merely that in connection with the clearance of the vessels your Department of Justice had found a violation of some of the provisions of your shipping laws. It is only within the last fortnight that I learned from the counsel for the Hamburg-American Line, greatly to my surprise, that the representatives of your Department of Justice regarded the cases as involving a question of international law which I conceive to be under discussion between our Governments. As soon as I learned of that contention, which I am advised is untenable, I addressed to your excellency my confidential note of 13th instant.

I trust that this statement of the facts will make it clear to your excellency why, when the counsel for the Hamburg-American Line sought an adjournment of the prosecution last spring on grounds of expediency, I was not moved to fortify their request by any reference to the possible decision of questions which I did not suppose could be involved in the case.

I regret that your excellency should have construed anything contained in my last note as a request to be conveyed to the Department of Justice to induce it to refrain from asking any question or from making any investigation which it deemed necessary for the purpose of supporting the theory upon which the prosecutions were based. In what I said I intended to suggest only that its officers be requested to refrain from delving unnecessarily into intimate details of naval arrangements under circumstances in which the disclosure of those details could have no effect upon the prosecution and could serve only to further the ends of our enemies.

Believe me [etc.]

J. Bernstorff