File No. 701.6211/386
The German Ambassador (Bernstorff) to the Secretary of State
[Received June 20.]
My Dear Mr. Secretary: Replying to your note of June 16, in which you state that you have reached the conclusion that your Government is entitled to retain and make use, in legal proceedings and prosecutions, of the papers which were seized by your Government in New York on April 18, 1916, I beg to say that I am unable to agree either with the conclusion which you have reached or the grounds which you set forth in your note as leading you to such disposition of the matter.
I would respectfully refer you to my note of April 27, 1916,3 which in my opinion constitutes an answer to what you say in regard to the character of the premises in which the papers were seized. It seems clear that papers can not be physically taken from the possession of an accredited member of my staff, irrespective of wherever he might happen to be. It also seems clear that the contents of the papers can not in any view of the matter be material in determining whether the seizure was a violation of diplomatic immunity. An illegal seizure can not thereafter be justified. This principle is well settled in international law. If papers can be seized from the possession of an accredited member of the diplomatic staff, and the seizure thereafter justified by an inspection of the contents of the papers seized, all diplomatic immunity would speedily come to an end. I have no knowledge or information as to the incident to which [Page 815] you refer as having occurred on October 7, 1914, at the premises which were formerly of the British Consulate in Berlin. While I am therefore unable to discuss the incident, such discussion would in any way be superfluous, as you state that it did not influence you in reaching a conclusion in the present matter. If this incident at Berlin has any relevancy in the premises, I would suggest that my Government should be given an opportunity to submit to you such facts and explanations as may be in its hands.
As it has now become apparent that you do not accept the view of my Government as to the illegality of the seizure of the papers from Mr. von Igel, it seems clear that the matter, involving as it does a principle of the utmost gravity and importance, is one which should be settled by arbitration between your Government and my own, and that until a decision is reached through arbitration no use should be made of the documents in question by your Government either in legal proceedings or otherwise. The details of such arbitration can be speedily arranged.1
I remain [etc.]