711.419/61
The British Chargé (Chilton) to the Secretary of State
Sir: In my note to the Acting Secretary of State, No. 797, of September 17th, I had the honour to explain some of the serious difficulties felt by His Majesty’s Government in agreeing to the proposals embodied in the draft treaty for the regulation of the liquor traffic which you handed to me on June 11th.
I informed Mr. Phillips in that note that various Departments of His Majesty’s Government who would be concerned with the changes which such a treaty must necessarily bring about were engaged in exploring every avenue by which they might lend assistance to the Government of the United States in the obstacles they were encountering in the enforcement of the Volstead Act.64a
Further sympathetic consideration has been given to the whole matter in the meantime but I am instructed to state that the attention of His Majesty’s Government has been called to an important judgment of the Supreme Court of the United States handed down on April 23rd [30th] last, which seems to raise an additional difficulty that must be overcome before a treaty can be drafted in final form. In delivering that judgment Mr. Justice [Van] Devanter said:—
“While the construction and application of the National Prohibition Act is the ultimate matter in controversy, the Act is so closely related to the eighteenth Amendment, to enforce which it was enacted, that a right understanding of it involves an examination and interpretation of the Amendment. The first section of the latter declares,
“Section 1. After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof, for beverage purposes is hereby prohibited.”65
He then proceeded to show that the Volstead Act correctly carries out the intention of the eighteenth Amendment, and then that the proper interpretation of the Act is that no ship, domestic or foreign, can carry liquor in transit within United States territorial [Page 214] waters. That is to say, such carriage of liquor appears to be not merely illegal but unconstitutional.
Lord Curzon was glad to receive and has weighed with the greatest care the communications you have been good enough to make to him both through the late United States Ambassador in London and through me regarding the constitutionality of the proposed treaty, and he has not overlooked the announcement made to the Press on November 2nd by the President of the United States to the effect that, as Congress specifically exempted from the operation of the Act liquor in transit through the Panama Canal,65a it thereby recognised that the right of foreign ships to transport liquor in United States waters is not prohibited by the Constitution but merely by the Act, and that the Act can be modified by a treaty. In view, however, of the great importance of this point Lord Curzon would be glad to receive information as to whether the right to carry liquor through the Panama Canal has ever been challenged on constitutional grounds and confirmed in the United States Courts. It has been represented to him that in the absence of such confirmation the precedent set by the legislators in the Volstead Act can not be regarded as entirely conclusive.
Resolutions adopted at recent important gatherings in the United States of business men interested in the American Mercantile Marine give foundation for the belief that legal steps may be taken in the future to question the constitutional validity of the concession which the treaty proposes to grant to British ships trading with United States ports. Should that concession be so questioned and not confirmed by the Courts, His Majesty’s Government would lose the privilege in return for which they are asked to make a very important concession in relation to the right of arrest and search.
As at present advised it appears to Lord Curzon impossible to proceed with the treaty or any similar arrangement until His Majesty’s Government have been favoured with authoritative assurances on this point by the Government of the United States.
I have [etc.]