711.419/133
The Secretary of State to the British Chargé (Chilton)69
Aide-Mémoire
The Secretary of State has carefully considered the draft proposed by His Majesty’s Government of the treaty relating to alcoholic liquors. While the Government of the United States would have preferred that the distance for the purposes of search and seizure be more definitely delimited, it has been concluded, in view of the evident desire of the British Government to attain the object in view and of the importance of an early disposition of the matter, not to raise objections to the provisions contained in Articles 2, 4 and 5 of this draft, save to add the words, “its territories or possessions” after the words “United States” in Article 2.
There are, however, certain modifications in the other articles which are deemed to be important.
Article 1
In order to avoid a detailed statement with respect to ports, bays, harbors, et cetera, it is desired that in Article 1 after the words “three marine miles” there should be inserted the words “extending from the coast line outward and”, so that Article 1 shall read as follows:
1. The High Contracting Parties declare that it is their firm intention to uphold the principle that three marine miles extending from the coast line outward and measured from low water mark constitute the proper limits of territorial waters.
Article 3
In the communication addressed by the Secretary of State to the British Chargé d’Affaires ad interim under date of November 26, 1923, the question of the constitutional validity of the proposed treaty was considered and it was pointed out that the law-making power of Congress and the treaty-making power were deemed to extend under the Eighteenth Amendment of the Federal Constitution to the determination of penalties or forfeitures and such exceptions thereto as might be deemed to be appropriate in view of all the pertinent circumstances and after consideration of the best means of enforcing the constitutional provision. It is important, however, that the provision of the treaty upon this point should clearly reflect this view and should relate to an exception from penalties and forfeitures. [Page 222] To leave no room for question as to the intent, it is deemed advisable to refer to the existing exception in the case of transit through the Panama Canal. For these reasons the Government of the United States proposes that Article 3 of the proposed treaty shall be amended to read as follows:
3. No penalty or forfeiture under the laws of the United States shall be applicable or attach to alcoholic liquors, or to vessels or persons by reason of the carriage of such liquors, when such liquors are listed as sea stores or cargo destined for a port foreign to the United States its territories or possessions on board British vessels voyaging to or from ports of the United States or its territories or possessions, or passing through the territorial waters thereof, and such transit through such waters shall be as now provided by law with respect to the transit of such liquors through the Panama Canal, provided that such liquors shall be kept under seal continuously while the vessel on which they are carried remains within said territorial waters and that no part of such liquors shall at any time or place be unladen within the United States, its territories or possessions.
Article 6
While the Government of the United States would have preferred that the treaty should be subject to denouncement in the event under consideration, it is understood that His Majesty’s Government strongly desire not to have a provision for denouncement but instead to have a provision for the automatic lapsing of the treaty in the event described. The Government of the United States will not oppose this view; but it is deemed that there should be a modification of the text of the proposed article in the following particulars. The expression “difficulties of a constitutional nature” is thought to be too indefinite. Such difficulties, if they arose, would be presented by a judicial decision upon the question and it is desired that the reference should be not to “constitutional difficulties” but to “judicial decision” which would prevent giving full effect to the provisions of the treaty. Moreover, there is also the question of legislation subsequently enacted by Congress and this contingency, while deemed to be remote, should be covered by the article. It is also desired to have a specific statement as to the full retention of rights on the termination of the treaty. For these reasons it is proposed that Article 6 shall read as follows:
6. In the event that either of the High Contracting Parties shall be prevented either by judicial decision or legislative action from giving full effect to the provisions of the present treaty, the said treaty shall automatically lapse, and, on such lapse or whenever this treaty shall cease to be in force, each High Contracting Party shall enjoy all the rights which it would have possessed had this treaty not been concluded.
It is hoped that with these modifications the treaty as proposed may be concluded at an early date.
Washington.
- Handed to the British Chargé on Dec. 7.↩