362.1163 Watch Tower/60
The Ambassador in Germany (Dodd) to the Secretary of State
[Received February 17.]
Sir: I have the honor to refer the Department to my despatch No. 309 of December 4, 1933, forwarding a copy and translation of a note verbale on this subject from the German Foreign Office, in paragraph two of which is set forth the legal remedy available to the Society under Article XII of the German-American Treaty of 1923, should it desire to seek a judgment of the courts on the action of the Prussian Government forbidding the Society to continue its religious activities in Prussia. The Department was informed that Mr. Harbeck, the Society’s superintendent for Central Europe, intended to follow the advice of the Reich authorities.
On January 9, however, the Embassy learned from the Consulate General that the Society in July 1933 had attempted to obtain relief in the manner described by the Foreign Office four months later. The court, however, curtly refused to consider the appeal of the Society, stating that orders issued by the executive on the basis of paragraph 1 of the Presidential Decree of February 28, 1933, cannot be legally contested.
There are transmitted herewith a copy of Mr. Geist’s letter and copies and translations of a letter addressed to him by Mr. Balzereit, the German superintendent of the Watch Tower and Bible Society, and of its enclosures.63 The first of these is a copy of the court’s decision, and the second, a statement prepared by the Society setting forth the alleged monetary damages occasioned to it by the acts of the Prussian officials. A copy of the former, certified by the Consulate General, is in the possession of the Embassy.
The Presidential Decree mentioned by the court in the foregoing decision suspends various Articles of the German Constitution containing personal guarantees. The pertinent portion of this decree reads, in translation, as follows: [Page 417]
“Articles 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich will be suspended until further notice. Therefore restrictions are permissible of personal liberty, of the right of free expression of opinion, including freedom of the press, and the right of association and assembly; together with the invasion of postal and telegraphic and telephone secrecy and orders for house searchings, and confiscations as well as restrictions, of property beyond the legal limitations otherwise applicable in such cases.”
It seems evident that, regardless of the contention of the judicial authorities that in virtue of the President’s Decree of February 28, 1933, they were unable to consider the Society’s plea, the situation indicated by the Department in its telegram of September 10, 1933, still exists, and that Article XII of the Treaty of 1923 has apparently proved of no avail. The Society has been unable to defend its rights in the courts.
The question arises therefore, whether since local remedies have apparently been exhausted, grounds exist for interposition by the Government of the United States. According to Hyde’s text book on International Law, Volume I, page 491,
“A denial of justice, in a broad sense, occurs whenever a State, through any department or agency, fails to observe, with respect to an alien, any duty imposed by international law or by treaty with his country. Such delinquency may, for example, be manifest in arbitrary or capricious action on the part of the courts, or in legislative enactments destroying the exercise of a privilege conferred by treaty, or in the action of the executive department in ordering the seizure of property without due process of law.”
In the case under consideration the foregoing quotation appears pertinent. It is true that the property at Magdeburg has been restored to the Society, but it seems equally true that the latter may be suffering monetary loss through inability to use its property, and that no legal relief is available. Not only has Article XII been nullified, but also, it would seem, paragraph 3 of Article I.
I desire also to call the Department’s attention to the following excerpts from Hyde which relate to the same subject: Volume I, Section 282, page 494, Section 283, pages 496 and 497.
In making these suggestions I am not, of course, attempting to pass upon the merits of the views expounded by the Prussian authorities concerning the alleged objectionable teachings and doctrines of the Society. This aspect of the question, however, would seem in no wise to limit its right to defend its case. That right has been denied. Accordingly I venture to lay the matter before the Department for such additional instructions as may be appropriate.64