The British Chargé (Chilton) to the Secretary of State

No. 797

Sir: With reference to the note verbale which the Secretary of State addressed to me on July 19th last,46 I have the honour to inform you, by instruction of His Majesty’s Principal Secretary of State for Foreign Affairs, that Lord Curzon has had under careful consideration, in consultation with the other departments of His Majesty’s Government concerned, Mr. Hughes’ proposals for an extension of territorial jurisdiction in connection with the liquor traffic from the ordinary three mile limit of territorial waters to a distance of twelve miles from the coast, as embodied in the draft treaty handed to me by the Secretary of State on June 11th last.

The object of the United States Government in making these proposals is to secure the right to search and arrest ships from which spirituous liquors are sold just outside the present limit of territorial jurisdiction. The extent of this traffic seems, however, to His Majesty’s Government to have been exaggerated, judging from the following statement published by Mr. Haynes, the United States Prohibition Commissioner in the New York Times of July 18th last.

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“The moonshine-still is the bootlegger’s chief source of supply. From what other place can he get his liquor in quantity? Surely not from the rigidly controlled bonded warehouses—they are eliminated at once. As to smuggled liquor, some it is true is brought into the country, but not one-tenth as much as the illegal traffic would have us believe.

“When reports of huge smuggling operations are circulated it should be remembered that the illicit liquor interests are conducting a great and elaborate propaganda campaign to discredit law enforcement and that the spreading of such reports is part and parcel of that campaign. No bootlegger, of course, is willing to admit that he can obtain only adulterated moonshine. Hence, fanciful tales of the wet wave sweeping in on our coasts and other related falsehoods pass from mouth to mouth to hide the real and dangerous origin of what the bootlegger has to sell”.

In face of this authoritative pronouncement Lord Curzon feels additional hesitation in accepting proposals which, with all due respect to Mr. Hughes, cannot, in Lord Curzon’s opinion, fail to weaken the authority of the general rule of international law, whereby three miles is regarded as the limit of territorial jurisdiction. Moreover, the Atlantic coast line of the United States, except the small part between Portland (Maine) and the Bay of Fundy, is so low that it is not as a rule visible twelve miles out at sea; the difficulty of deciding the exact position of the proposed new limit would in consequence be much increased, and there would be a constant risk of disputes arising between the two countries whenever a British ship was boarded or arrested by the United States preventive service, on or near the new line. In this connection Lord Curzon would observe that the ancient British Hovering Acts were modified in 1876 to bring them into harmony with the principles of international law, and His Majesty’s Government cannot admit that the municipal legislation of any country can override those principles.

No spirituous liquors are cleared direct from the United Kingdom to United States ports and so far as British subjects are concerned, there is no violation of any law, British or international, in the sale of such liquors on the high seas to purchasers of any nationality; therefore there is no obligation upon His Majesty’s Government to interfere with the prosecution of a perfectly legitimate trade. Nevertheless the whole question has been carefully examined with an earnest desire to afford the United States Government any proper assistance in the difficulties which they are encountering in the enforcement of the Volstead Act. In this spirit legislation was considered with a view to prohibiting the export of spirituous liquors to destinations adjacent to the United States except under license or [Page 190] to rendering illegal the discharge of such liquors at ports other than those to which they were originally consigned. It became apparent, however, that such legislation would necessitate and could indeed only be made effective by rationing supplies not merely to countries adjacent to the United States, but to all countries, for which purpose powers would be required similar to those exercised for the control of trade during the war. The United States Government will probably agree that His Majesty’s Government could hardly be expected to revive such powers, seeing that the United States Government themselves (in March 1920) explained their inability to ratify the convention for the control of the arms traffic on the very ground that they were not prepared to revive the war regulations by which alone a private trade could be regulated.47

Assuming, however, that measures could be devised for stopping the export from the United Kingdom of spirituous liquors which might ultimately reach the United States and that all other countries were prepared to take similar action so that the traffic would not merely be diverted into other channels, His Majesty’s Government would still feel great hesitation in proposing such measures to Parliament so long as British ships are prevented from carrying liquor under seal in transit through United States waters. As far as His Majesty’s Government are aware, it has never been alleged that any liquor at all has made its way into the United States from the stores of British ships calling at United States ports, so that this restriction, besides constituting in effect an interference with the liberty of British ships on the high seas, appears to be entirely superfluous.

His Majesty’s Government do not deny the strictly legal right of the United States or any other country to impose its jurisdiction on all ships whether national or foreign within its territorial waters. His Majesty’s Government themselves claim that right and it is even the case that some of the provisions of the British Merchant Shipping Acts are such that ships visiting ports in the United Kingdom must comply with them before entering and after leaving the jurisdiction. These provisions, however, relate solely to the safety and welfare of the ship, crew and passengers. Similar provisions exist in the legislation of the United States and other countries and they are generally recognised as reasonable.

It is, however, equally well recognised that the circumstances of ships, travelling as they do from port to port in many different countries, are peculiar and that to subject them to all the different and [Page 191] often conflicting requirements of the various jurisdictions which they may enter, would create an impossible situation. Consequently, as a matter of international comity and practice, the maritime Powers refrain from imposing their jurisdiction on foreign ships except for the purposes stated above, namely the safety and welfare of the ships, crews and passengers. The principle was well stated in the despatch of 28th October, 1852 from Mr. Conrad, when Acting Secretary of State, to the United States minister at Madrid,48 wherein he writes:

“You will state that this government does not question the right of every nation to prescribe the conditions on which the vessels of other nations may be admitted into her ports. That nevertheless those conditions ought not to conflict with the received usages which regulate the commercial intercourse between civilized nations. That those usages are well known and long established and no nation can disregard them without giving just cause of complaint to all other nations whose interests would be affected by their violation”.

The United States Government have indeed given recent proof of their fidelity to the same principle, in exempting ships trading between the United States and Italy from the strict application of the Volstead Act, on the ground that Italian law requires the provision of a certain amount of liquor on such ships.

In informing you of the above I am directed to express the earnest hope that means may be found to modify the present application of the Volstead Act to British ships, and thus to remedy what is, in effect, an unwarrantable interference with the domestic concerns of British ships on the high seas.

I am to add that in view of the difficulties of the case His Majesty’s Government could not agree to an extension of the three mile limit, even for a limited purpose, until the matter has been submitted to the Imperial Conference, which will meet within a few weeks in London.

I have [etc.]

H. G. Chilton
  1. See telegram no. 193, July 20, to the Chargé in Great Britain, p. 168.
  2. Foreign Relations, 1920, vol. i, p. 205.
  3. H. Ex. Doc. 86 (33d Cong., 1st sess., serial no. 724), p. 22.