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The treaties in question are the Naturalization Convention between the United States of America and the Grand Duchy of Baden, signed July 19, 1868, proclaimed January 10, 1870,34 and the Convention as to Naturalization and Extradition between the United States of America and Württemberg, signed July 27, 1868, proclaimed March 7, 1870.35

Article V of the second treaty referred to states that:

"The present convention shall go into effect immediately on the exchange of ratifications, and shall continue in force ten years. If neither party shall have given to the other six months previous notice of its intention then to terminate the same, it shall further remain in force until the end of twelve months after either of the high contracting parties shall have given notice to the other of such intention."

The treaty between the United States and the Grand Duchy of Baden contains a similar statement.

The Consulate would appreciate being informed if the Embassy has any record showing whether such notice has ever been given by either of the high contracting parties and if so, at what dates the treaties are known to have been terminated, and if such notice has not been given, whether these treaties are considered to be in force at present.

Respectfully yours,

711.624/10

LEON DOMINIAN

The Secretary of State to the Ambassador in Germany (Sackett) No. 487

36

WASHINGTON, December 4, 1931. SIR: The Department refers to the Embassy's despatch No. 567 of October 28, 1930, enclosing a copy of a despatch dated October 21, 1930, to the Embassy, from the American Consul General at Stuttgart, and a copy of the Embassy's reply of October 28, 1930, to the Consul General, regarding the status of the naturalization convention between the United States and the Grand Duchy of Baden, concluded July 19, 1868, (18 Stat - Part 237 [38]) and the convention as to naturalization and extradition between the United States and Württemberg, concluded July 27, 1868 (18 Stat — Part 2 - 811). No notice of termination of either of these conventions in accordance with the stipulations in them in regard to termination was ever given or received by the United States. The conventions were, there

34

"William M. Malloy (ed.), Treaties, Conventions, etc., Between the United States of America and Other Powers, 1776-1909 (Washington, Government Printing Office, 1910), vol. 1, p. 53.

36 Ibid., vol. I, p. 1895.

36 'Embassy's reply not printed.

fore, in force on April 6, 1917, the day of the passage by Congress of the Joint Resolution declaring a state of war to exist with the German Empire. By virtue of the provisions of Article 289 of the Treaty of Versailles," the allied and associated powers were accorded the right to revive bilateral treaties and conventions with Germany by giving to Germany, within a period of six months from the coming into force of the Treaty of Versailles, notice of any bilateral treaties which they respectively, desired to revive. That article also contained the stipulation that all bilateral treaties and conventions in regard to which such a notification was not given "are and shall remain abrogated." The period of notification was subsequently extended for the United States by paragraph 5 of Article II of the treaty between the United States and Germany restoring friendly relations, signed on August 25, 1921,38 so that the period of election for the United States began to run from the date on which the treaty of August 25, 1921, came into force. This treaty came into force on exchange of ratifications on November 11, 1921.

No notice was given by the United States within the period referred to in Article 289 of the Treaty of Versailles as extended by paragraph 5 of Article II of the treaty between the United States and Germany of August 25, 1921, of its intention to revive the naturalization convention with Baden or the convention as to naturalization and extradition with Württemberg. It is clear, therefore, that these conventions were no longer in force after May 11, 1922, the date of the expiration of six months from the coming into force of the Treaty restoring friendly relations.

No matter has ever come before the Department requiring official action which involved the question whether bilateral treaties or conventions between the United States and Germany not revived by such notice were terminated as of April 6, 1917, as a result of the declaration of the existence of the state of war or whether such treaties were merely in suspension during the war and until May 11, 1922, the date of the expiration of the period within which notice of revival might be given. The Department has hitherto refrained, as a matter of policy, from expressing an opinion on this question where it was not necessarily involved, and desires to continue that policy.

It may also be stated that the Department holds that the aforementioned treaties with Baden and Württemberg were applicable to American women who were naturalized in those countries through marriage to nationals thereof, as well as to those who were naturalized upon their own petitions.

17 Treaties, Conventions, etc., 1910-1923, vol. 1, pp. 3329, 3453.

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Foreign Relations, 1921, vol. ш, p. 29.

The Department is transmitting a copy of this instruction to the American Consul General at Stuttgart.

Very truly yours,

For the Secretary of State:

JAMES GRAFTON ROGERS

PETITIONS FOR REHEARINGS IN THE SO-CALLED SABOTAGE CASES: BLACK TOM AND KINGSLAND "

462.115232/186

The Solicitor for the Department of State (Hackworth) to the Assistant Secretary of State (Castle)

[WASHINGTON,] January 12, 1931. MR. CASTLE: I am informed by Mr. Martin, Assistant to the American Agent, Mixed Claims Commission, United States and Germany, that grounds for a new trial on the Black Tom explosion are based in general on

1. Newly discovered evidence.

2. Failure of the Commission to give proper weight to certain evidence submitted by the American Agent.

3. Action of the Umpire in taking part in the discussions and in joining in the opinion.

4. Failure to give proper consideration to the fact that the United States made out a prima facie case which Germany did not refute.

Mr. Martin states that the motion was filed this morning."

G[REEN] H. H[ACKWORTH]

462.11L5232/174

Memorandum by the Assistant Secretary of State (Castle)

[WASHINGTON,] January 15, 1931.

The German Ambassador 41 came to the Department in a high state of excitement to discuss Mr. Bonynge's 12 motion for a retrial of the

42

39 For correspondence concerning the establishment of the Mixed Claims Commission (August 10, 1922), United States and Germany, before which these petitions were heard, see Foreign Relations, 1922, vol. п, pp. 240 ff.

On October 16, 1930, the Mixed Claims Commission decided in favor of Germany in both of the so-called sabotage cases. For text of the decision, see Mixed Claims Commission, United States and Germany, Administrative Decisions and Opinions of a General Nature and Opinions and Decisions in Certain Individual Claims, from October 1, 1926, to December 31, 1932, with orders of March 25 and May 7, 1925, and Appendices (Washington, 1933), pp. 967-994.

40

"The petition for a rehearing in the so-called Kingsland case was filed on January 22, 1931.

"Friedrich W. von Prittwitz und Gaffron.

"Robert W. Bonynge, Agent for the United States.

44

Black Tom case. He had hoped to see Mr. Cotton, with whom he had talked previously. He said that he had repeatedly warned Mr. Cotton that Mr. Bonynge would introduce a motion very shortly and had urged him to ask at least to see the wording of this motion, since he felt that Mr. Bonynge was not acting as a private lawyer, but as the agent of the Government of the United States. He said that Mr. Cotton had refused to do this because the Department had nothing to do with the whole business, but added that Mr. Cotton had said he would send for Mr. Roland Boyden to come to Washington immediately so that the whole question could be settled. The part of the motion which troubled him was the claim that the case had not been conducted in a legal manner in that the Umpire had taken part in the discussion. The Ambassador said he did not see how it is possible for the United States agent, considering the fact that the American representative on the Commission had made no protest and that the Umpire, who was an American, had accepted the situation, could, in behalf of the American Government, make a claim that all the 6,000 claims, with the exception of two, had been illegally conducted. He said that he felt it essential that Mr. Boyden should come promptly to Washington, in order that at least this part of Mr. Bonynge's notice should be decided immediately. The reason for this is because that it opens the way to a retrial of all but two of the 6,000 cases and applications for retrial have already begun to pour in. If the Commission will promptly decide, these applications for retrial will stop or if they come in can be refused immediately, should the Commission decide that the procedure has been legal. I quite see his point in this, since many applications are already coming to the Department.

I told the Ambassador that, of course, this was a matter I had not handled personally although I had been interested in it and that I would take it up promptly with the Secretary.

(I cannot find from Mr. Cotton's office whether he communicated with Mr. Boyden or not. The suggestion would be that he had not. If not, it seems to me that the Department should make the suggestion that the sooner this matter is settled, the better.)

462.11L5232/174

W. R. CASTLE, JR.

The German Embassy to the Department of State 45

The Motion of the American Agent to reopen the Black Tom Case is, among others, based upon the contention that "the decision was

43

Joseph P. Cotton, Under Secretary of State.

"Roland W. Boyden, Umpire for the Mixed Claims Commission.

"Notation on original: "Left with me by the German Ambassador January 15, 1931. G[reen] H. H[ackworth]."

irregularly rendered". The American Agent argues that the Umpire should not have "participated in the joint deliberations of the two Commissioners, or join with them, as he did, in their judgment of first instance". "The United States", he says, "was entitled to an independent deliberation of the case by the National Commissioners". (Motion p. 69).16 The American Agent concludes (p. 70): "The United States never agreed to the procedure followed, nor knew that it was to be followed-and the United States submits that the irregularity of the procedure should be held to vitiate the decision, and render it null and void".

If this argument were sound it would follow that the vast majority of all the Commission's decisions rendered in the course of its proceedings are null and void, that thousands of American claimants have been deprived of their right to a regular procedure and that all these cases have as a matter of right-to be reopened, reconsidered and redecided. For-in more than 5000 cases the Umpire, Judge Parker,*" has joined in the deliberations of the two Commissioners and in their judgment in exactly the same way as the present Umpire joined with them in the sabotage-cases.

It is the German Government's opinion that this method of procedure was absolutely regular and in accordance with the Agreement of August 10, 1922 48 and with the Rules of the Commission. The Agreement provides in Article II as follows: "The two Governments shall by agreement select an umpire to decide upon any cases concerning which the commissioners may disagree, or upon any points of difference that may arise in the course of their proceedings". This provision does not limit the activities of the umpire to passing upon cases certified to him after the commissioners have reached a disagreement, but permits him also to cooperate with them "in the course of their proceedings", i. e. while a case is still pending before them, by deciding any points of difference arising at this stage of the proceedings.

The Rules of the Commission, apparently prompted by this proviso, provide, among others, that the decisions of the Commission may be signed "by the Umpire and the two National Commissioners" (Art. VIII sec. (d)).

The practice adopted in the sabotage-cases has been followed by the Commission in thousands of instances. All dismissals, with the exception of two, have been signed by the Umpire and the two Commis

46 Mixed Claims Commission, United States and Germany, The United States on behalf of Lehigh Valley Railroad and Underwriters of the Black Tom Disaster against Germany: Docket nos. 8103, et al., Petition for Rehearing, Washington, D. C.. January 12, 1931 (New York, 1931), p. 69.

47

Edwin B. Parker, Umpire, died October 30, 1929. He was succeeded by Roland W. Boyden, appointed January 9, 1930.

48 Foreign Relations, 1922, vol. П, p. 262.

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