The Solicitor for the Department of State (Hyde) to the Secretary of State
Dear Mr. Secretary: On Friday afternoon, November 30, 1923, the German Ambassador and his Counsellor, Dr. von Lewinski, called at this office in reference to the proposed treaty of friendship, commerce and consular rights. The Department was represented by Mr. Castle, Doctor McClure, Messrs. Metzger, Barnes and the undersigned.
The Ambassador made numerous inquiries and proposed numerous changes. After two conferences concluded at 11 A.M. December 1st, the representatives of the Department undertook a careful study of the proposals made. At 6 P.M. they were virtually satisfied as to what could and what could not be accepted.
The final conference took place at 9 P.M. December 1st, and at 11:15 P.M., the German Ambassador agreed to accept the treaty, subject to the modifications to which the Department found it possible to yield or desired to offer. The changes in the text are attached hereto.4 For the most part they are of slight consequence.
Without adverting to the German proposals which it seemed unwise or impossible to accept, attention is called simply to what was perhaps the major German proposal. It was amendatory of that provision of Article I which contemplates that “property shall not be taken without due process of law and without the payment of just compensation”. The Ambassador stated that the German Constitution permitted the taking of property without payment of just compensation, and that the sentence quoted might be a violation of their fundamental law. While he intimated that it would be unlikely that the German legislature would avail itself of its constitutional right to take property of aliens without payment of just compensation, he stated there was a strong feeling in his country that the Constitution should not be interfered with. The reply in behalf of the Department was that the sentence in the American text did not contemplate a yielding of anything which the German Constitution forbade, and it was, therefore, in no sense [Page 29] a violation of that document; that it merely marked an agreement by Germany not to exercise a constitutional right, and one which if exercised would cause immediate protest by this Government in so far as it applied to American citizens. A copy is appended hereto of a letter5 which, in view of the Department’s position, will probably be submitted by the Ambassador upon the signing of the treaty. It is doubted whether any reply thereto should be made.
On the accompanying papers5 are shown the precise changes in the treaty which are submitted for your approval for incorporation in the text. The work of aligning the English and German text is not quite completed. It is hoped, however, that both versions may be in exact and final form and ready for signature tomorrow. It may be added that the Ambassador has also filed a statement setting forth his understanding of explanations of the treaty made by representatives of the Department.6
It is a satisfaction to refer to the valued cooperation of Mr. Castle and Doctor McClure throughout these negotiations, as well as of Messrs. Metzger and Barnes.