File No. 711.622/6a
The Secretary of State to President Wilson
My Dear Mr. President: I enclose a copy of article 23 of the treaty of 1799 with Prussia,1 which provides that “merchants of either country then residing in the other, shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects (biens), without molestation or hindrance.” This treaty, in my opinion, is in force until terminated in accordance with the terminating article of the treaty requiring a 12 months’ notice, or abrogated by the President with the consent of the Senate.
As it would be unfortunate to open the war by tearing up a treaty, I assume that it is your opinion that the treaty should not be abrogated. If it should be terminated by 12 months’ notice, the provision just quoted would not prevent the emigration from the United States of Germans or German agents bent on missions in Mexico or other countries inimicable to the United States if not endangering its safety. Under your proclamation of April 6, an enemy alien is [Page 170] not allowed to leave the United States except he has received such a permit as the President shall prescribe. Under the treaty provision, however, he would seem to be entitled to leave the United States “freely,” subject possibly only to reasonable restrictions. While regulations governing the issuance of permits are being prepared, I am advised that 25 or 30 persons holding themselves out as alien enemies have applied to cross the border into Mexico, and have been prevented from doing so except in three or four cases, the prevention being accomplished by detaining them in detention camps on the border as the only safe method of keeping them from crossing the line on foot. If the treaty provision is in force, detention of such alien enemies is likely to give rise to claims for indemnity by Germany after the war, as well as to the charge that we are violating the treaty. Yet it would seem important for national safety that certain Germans should not be allowed to leave the United States under any circumstances.
It is obvious that to hold that legally the treaty is in force and yet to protect the United States against its enemies are irreconcilable. This Department as well as the Department of Justice and perhaps other Departments is being flooded with inquiries as to whether this treaty provision is in force, and if so, whether Germans may freely leave the United States-. It is important that these inquiries be answered without evasion. One suggestion has been made to me that we state that, while the treaty is technically in force because it has not been terminated by 12 months’ notice in accordance with its terms, yet the violation by Germany of other articles of the treaty render it doubtful as to whether she has not in effect abrogated the treaty by her flagrant violations of its provisions, and that therefore the United States feels free to prevent the departure of its enemies except under reasonable regulations made for the protection of the national safety.
Faithfully yours,
- Enclosure not printed; for text of treaty see Hunter Miller, Treaties and Other International Acts of the United States of America, vol. ii, p. 433.↩