The Chargé in France (Whitehouse) to the Secretary of State

No. 3585

Sir: I have the honor to acknowledge the receipt of your unnumbered Instruction of September 10, 1923, concerning the proposal for a treaty to be concluded between the United States and France with respect to the enforcement of prohibition on French vessels within American territorial waters and measures for stopping liquor smuggling. I am instructed to forward complete information concerning the practice followed by the French and Spanish authorities under Article 8 of the Treaty of December 27, 1774, concluded between France and Spain, whereby French and Spanish customs authorities are permitted to seize, up to a distance of two leagues from the coast, French and Spanish ships carrying forbidden goods.

In reply, I beg leave to refer the Department to the Law of 4 Germinal, Year II (March 24, 1794), and the law of March 27, 1817, copies and translations of which are transmitted herewith enclosed (Enclosures Nos. 1, 2, 3 and 4).51 It will be seen that Article 3 of the first law quoted above states that the captain of a ship arriving within four leagues of the shore will deliver when required a copy of the manifest to the officer in charge who boards his ship. Article 7 of the same law permits customs vessels to visit vessels of less than one hundred tons within four leagues of the shores of France. If contraband merchandise is found on board, the cargo and vessel are confiscated, with a fine of £500 against the captain of the vessel.

Article 13 of the law of March 27, 1817, provides that vessels may be searched within two myriameters, that is to say, four leagues, [Page 194] from the coast. In discussing the question of the practice followed by the French and Spanish authorities under the Treaty above referred to, I have learned from the French authorities that the whole spirit and tendency of French maritime law is to insist upon the right of French customs vessels to visit and search vessels for contraband up to a distance of four leagues or two myriameters.

In connection with the French authorities referred to in the Department’s Instruction under reply, I have the honor to state that the reference: 13 Béquet, Répertoire du Droit Administratif (1896) 409–410,” cited in the footnote referring to the extract from the Columbia Law Review quoted by the Department, contains an excerpt from the law of March 27, 1817 (transmitted with this despatch as Enclosures Nos. 3 and 4). Article 13, as already stated above, provides that vessels may be searched within two myriameters, that is to say, four leagues, from the coast.

There is also transmitted copy and translation of the text contained on page 38 of “Racouillat, Des Diverses Utilisations des Eaux Territorials Neutres (1907)” (Enclosures Nos. 5 and 6).52 It will be seen that this reference states that “other states” accept in principle the three-mile limit, but extend it for customs and fisheries control. Reference is again made to the law of 4 Germinal, Year II, in which two myriameters (about twelve miles) are fixed as the limit of French territorial waters. A resolution of the Institute of International Law, made in its session at Paris in 1894, is then quoted, in which it is stated that a bordering neutral state has the right to extend its territorial waters to six marine miles from shore.

There is also transmitted herewith enclosed copy of an excerpt from the Journal Officiel de la République Française of June 14, 1913, page 5097 (Enclosure No. 7).52 This contains a letter addressed by the Minister of Marine to the President of the Republic and a decree dated July 19, 1909, ruling the conditions in time of war of entry and sojourn of vessels other than French warships in French roadsteads and ports. This decree provides for a three-mile limit but extends it to six miles in the vicinity of bases of operation of the fleet, and names specifically the extent of the territorial waters outside of the naval bases of Cherbourg, Brest, Toulon and Bizerta.

With reference to the views held by French officials concerning the possibility of the French Government’s entering into an agreement for the enforcement of prohibition on French vessels within American territorial waters, I beg to inform you that the view of the French authorities appears to be that while anxious to meet the desires of the United States Government as much as possible in [Page 195] regard to the searching of vessels suspected of transporting contraband goods, they would feel more in sympathy with the attitude of the United States Government if greater latitude were permitted French vessels in American ports carrying wines and liquors. It is pointed out as an example that at the present time a French vessel with a mixed cargo, part of which consists of wines and liquors destined for Central or South America, cannot enter an American port for the purpose of discharging such of its cargo as is destined for the United States. This, in the eyes of the French authorities, places needless difficulties in the way of French commerce and shipping.

It is also suggested by the French authorities that in the drawing up of a treaty along the lines above described, an endeavor should be made not to interfere with vessels of large tonnage. It is argued that the transportation of contraband is almost entirely carried on by vessels of smaller tonnage and therefore these alone should be subject to search outside the three-mile limit. To interfere in any way with larger vessels would inconvenience French shipping and would therefore arouse considerable opposition in France. It is also pointed out, as an example of the way in which such a treaty might operate, that all American vessels passing through the Channel to ports to the east of France might pass sufficiently close to the French coast to make them liable to be boarded and searched by the French authorities under the articles of the treaty. Such search at sea, if consistently carried out, might prove seriously inconvenient to American shipping bound for Central European ports.

I have [etc.]

Sheldon Whitehouse
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