The Secretary of State to the Ambassador in Spain (Moore)
26. Your no. 43, June 6, 6 p.m., and your no. 45, June 8, 4 p.m.11
The Department has had under consideration the advisability of negotiating treaties with maritime powers to provide for sealed stores of liquor on foreign vessels destined to our ports and for cargoes of liquor not destined for ports of the United States but merely carried through American waters, this arrangement to be in connection with the granting by the maritime powers of the right of visit and search within the limit of 12 geographical miles of coasts so as to make more effective the enforcement of the prohibitory laws and to put an end to the rum running vessels which now hover off our coasts under the protection of foreign flags. The Embassy will understand that the Supreme Court’s decision on the applicability of the prohibitory statute to foreign merchant vessels coming within our territorial waters leaves no option to the enforcing authorities until the Act has been modified by Congress or by a duly ratified treaty. Several nations, while they do not dispute the jurisdictional authority of the United States within its territorial limits, have, however, made representations based on former practice and on comity between nations regarding regulations which relate to internal economy of vessels which does not affect local peace and safety. These considerations are necessarily addressed, however, to the discretion of Congress, not to that of the Executive, who can not change the existing law except upon its modification by act of Congress or by a superseding treaty. It is likely that the question will come before Congress at the next [Page 150] session and the Department hopes that the present inconvenience will be relieved, but what action Congress will take is necessarily in doubt. Much would be done in accomplishing the desired results, that is, the promotion of the convenience of commerce, while preventing at the same time the introduction of liquors into the United States in violation of the real purpose of the Eighteenth Amendment, if it could be shown that the powers concerned, as a quid pro quo for the privilege of bringing in sealed stores of liquor and cargo liquors not consigned to any persons within the United States but merely passing through our waters, were to engage themselves to grant the United States a reasonable opportunity to enforce its existing laws against smugglers who are abusing their flags. The Government of the United States assumes, in making this suggestion, that foreign governments have no desire to encourage either such illegal traffic as exists, or the use of their flags to cover the smugglers which hover off our coasts, and that these governments would be glad to give aid in proper manner to put an end to this abuse in consideration of the convenience of their own shipping in the manner suggested. The point may also be indicated that Spain has endeavored to uphold, as against other governments, the privilege of search and visit for the enforcement of her own laws outside of the three-mile limit.
In making the above proposal the Government of the United States is not intending to extend or to ask that any other nation extend the territorial waters of each, but to supply a rule governing on the part of one and the other their own intercourse by an appropriate treaty. You are doubtless aware that there are historic precedents for such action as is proposed.
You will be sent at once the text of the proposed treaty in a separate message. Although the foregoing is for your confidential information, Hackworth and you may emphasize the points that are presented in your discussions with the Foreign Office. The negotiations should be kept as confidential as practicable.