Papers Relating to the Foreign Relations of the United States, 1916, Supplement, The World War

File No. 763.72111Ap4/135

The German Ambassador (Bernstorff) to the Secretary of State

[Translation]

J. Nr. A 4387

Rye, N. Y., June 30, 1916 .
[Received July 1.]

Mr. Secretary of State: In reply to your kind note No. 2217 of April 17 [7] of this year, I have the honor, by direction of my Government, to lay the following statement before your excellency.

The history of paragraph 1 of Article 19 of the treaty of commerce of 1799 between Prussia and the United States of America, which is still in force, has been made the subject of a thorough examination of the records of the Prussian secret archives. It has been found that the above-mentioned provision was taken without change from the Prussian-American commercial treaty of September 10, 1785. The Swedish-American commercial treaty of April 3, 1783, first served as a foundation for the preliminary negotiations in that treaty. A provision corresponding to that found in paragraph 1, Article 19, of both Prussian-American treaties is contained therein. Prussia twice in the course of the negotiations proposed to drop that provision and to agree to a mere asylum for prizes in distress. The United States rejected the proposition both times and stated through its plenipotentiaries, John Adams, Benjamin Franklin, and Thomas Jefferson, in a note of March 14, 1785, a certified copy of an extract from which, taken from the secret archives, is enclosed, that it desired it to have it agreed that prizes captured by one of the signatories should have the right to stay in the ports of the other signatory so that it might bring its prizes into Prussian harbors and sell them there. In order not to break off negotiations on that question, the Prussian Government finally declared its willingness to accept Article 19 in the treaty.

The statement of the American plenipotentiaries that the practice of carrying prizes into neutral ports and there selling them is admitted by the usage of nations finds confirmation in the fact that provisions to that effect were embodied in a number of international treaties at the end of the eighteenth century. They are found, besides the two Prussian-American treaties and the above-mentioned Swedish-American commercial treaty, in Article 14 of the Franco-English treaty of September 26, 1786, in Article 17 of the Franco-American treaty of February 6, 1778, and in Article 25 of the Anglo-American treaty of November 19, 1794.

Hence the provision in Article 19, paragraph 1, in harmony with an international usage and the will of the contracting parties couched in unmistakable language, must be taken to mean that a prize taken by one of the parties to the treaty may make a prolonged stay in the ports of the other party and even be sold there. As already pointed out by your excellency in your note of March 2 last,¹ the English part of the article under consideration, as given in the published treaties of the United States, does not exactly render the French original. The first part of the translation is passably accurate except that the word “conduire” is rendered as “to carry.” There is a difference in the meaning of the two words. The correct translation of “conduire” is “to conduct” (to cause to give the right direction).² In the second part of the paragraph several words have also been left out of the translation. In its entirety the paragraph should read: “But they shall have power to go out therefrom freely and to be conducted at any time by the captor vessel to the places designated by the commissions which the officer commanding, the said vessel shall be obliged to show.”

In this is based the opinion of the Imperial Government that the understanding of the Government of the United States that Article 19 of the treaty of 1799 is not applicable to the prize Appam does not accord with the treaty. It was the intention of the negotiation of the treaty that every prize lawfully brought into a port of the other contracting party should enjoy the right of asylum. As worded in the original part of the treaty, it is also immaterial whether the prize is brought into the port by a ship or a prize crew.

The Government of the United States is further of the opinion that under Article 19 a prize is only entitled to a limited stay in a neutral port, as this long-known principle of American policy is conclusive in interpreting the treaty. The above-cited article, however, contains no such restriction. At the time of the conclusion of the treaty the Government of the United States, as shown by the above-stated particulars, entertained the opposite opinion. Even in the last war in which Prussia was engaged before the present one, in the Franco-German war, General Grant, in his neutrality proclamation of August 22, 1870, cites Article 19 of the treaty of 1799 in express words as being still in force.

To be sure, Articles 21 and 22 of Hague Convention XIII lay down the opposite rule of law, but the preamble to the convention expressly provides that the convention will not modify existing treaties. In your note to the British, Ambassador of March 13 of last year,¹ your excellency declared the position of the Government of the United States to be that it did not regard Article 21 of Hague Convention XIII as binding between Great Britain and the United States; neither has the Government of the United States at any time, either after ratification of Hague Convention XIII or at the outbreak of the present war, made known to the Imperial Government that it no longer regarded Article 19 of the treaty of 1799 as binding. On the strength of the foregoing it seems to the Imperial Government that there can be no doubt that the prize Appam comes under the provisions of Article 19 of the treaty of 1799. Even though the executive and judiciary branches of power of the United States be independent of each other, this may not serve as a justification of the proceedings instituted by the court against the Appam and her cargo, for, in my Government’s opinion every government is responsible for the execution of the international obligations it has assumed.

I am instructed and hereby have the honor to ask of your excellency that the Government of the United States reconsider the position declared in the note of April 2 of this year in the light of the foregoing statements, that lasting asylum be granted the Appam, and that the judicial proceedings now pending against her and her cargo be dismissed.

Should your excellency’s Government nevertheless feel that it can not concur in the Imperial Government’s interpretation, I am instructed to renew the proposal of an arbitral settlement of the question as offered in my note of March 16 of this year. The arbitral tribunal should first have to pass upon the import of the treaty for further cases, and next to lay down a principle for eventual indemnity claims in the event of the Government of the United States violating the treaty at its own risk by denying the prize ship Appam the right of asylum guaranteed by the treaty and allowing judicial proceedings which, instituted in contravention of the treaty provisions, might result in a decision adverse to Germany.¹

Accept [etc.]

J. Bernstorff

[Enclosure]

Passy, March 14th, 1785 .

To His Excellency the Baron de Thulemeier,
Envoy Extraordinary from His Prussian Majesty, at The Hague

Sir: We had the honour of receiving your letter of January 24, covering a Translation into French of the draught of a Treaty proposed between His Majesty the King of Prussia, and the United States of America, together with answers to the several articles. We have considered them with attention, and with all those dispositions to accommodate them to the wishes of His Majesty, which a respect for his character, and a desire of connecting the two nations in amity and commerce would naturally produce. We will now take the liberty of troubling you with the result of our deliberations, article by article.

Art. 2. . . .

Art 19. . . . The practice of carrying prizes into neutral ports and there selling them, is admitted by the usage of nations, and can give offence to none where they have not guarded against it by particular contract. Were the clause now under consideration to be so changed as to exclude the prizes made on the enemies of either from being sold in the ports of the other, and that kind of stipulation to take place generally, it would operate very injuriously against the United States in cases wherein it is not presumed, His Majesty would wish it. For suppose them to be hereafter in war with any power in Europe, their enemy, tho’ excluded from the ports of every other State, will yet have their own ports at hand, into which they may carry and sell the prizes they shall make on the United States, but the United States under a like general exclusion, having no ports of their own in Europe, their prizes in these seas must be hazarded across the Ocean, to seek a market at home: an incumbrance which would cripple all their efforts on that element, and give to their enemies great advantage over them.

Art. 21. . . .

Upon the whole it will be seen that we accommodate ourselves to the amendments proposed to the 2d, 3d, 5th, 8th, 9th, 10th, 12th, 13th, 21th, and 25th articles; that we agree to the amendments proposed to the 4th article with certain qualifications, and we can not but hope that the 4th and the 19th articles so amended and qualified may be permitted to stand.

We have the honor to be [etc.]

John Adams

B. Franklin

Th. Jefferson

[On July 29, 1916, the United States District Court for the Eastern District of Virginia handed down a decision “that the manner of bringing the Appam into the waters of the United States, as well as her presence in those waters, constitutes a violation of the neutrality of the United States; . . . that she, as between her captors and owners, to all practical intents and purposes, must be treated as abandoned and stranded upon our shores; and that her owners are entitled to restitution of their property . . . ; and it will be so ordered.” 234 Fed. Rep. 389. An appeal was taken to the Supreme Court.]

1. Ante, p. 729.
2. In English in the original.
1. Foreign Relations, 1915, Supplement, p. 823.
1. The last sentence is substituted for the concluding passage of the note as first received, in accordance with a further note of July 14 stating that the Ambassador’s instructions had been garbled in transmission by telegraph, but a correct copy had arrived on the submarine Deutschland.