Thomas Biddle to Hamilton Fish, March 18, 1873

No. 345. Mr. Biddle to Mr. Fish.

Sir: I have the honor to transmit herewith a copy extracted from the Boletin Official of the 8th instant of a treaty of friendship, commerce, and navigation concluded between the republic of Salvador and Germany on the 13th of June, 1870, the ratifications of which were exchanged in Berlin on the 19th of September, 1872.

Article 1st stipulates for perpetual peace and friendship between the two nations and their citizens.

Article 2d provides for reciprocal free commerce and navigation in all ports, rivers, and as to the most favored nations.

Article 3d establishes the right of mutual free ingress and egress, residence, trade, and ownership of real estate, &c., and exemption from contributions, general or local, or to imposts or obligations of whatsoever kind, except such to which natives of the countries are subjected, granting every facility for the transaction of all custom-house business, whether for themselves or as agents, factors, &c., upon the same terms as to natives or to citizens of the most favored nation, always conforming to the laws and regulations of the country.

By Article 4th complete protection to persons and property, with free access to the tribunals, &c., with the right to select attorneys at law, agents, &c., is guaranteed, with the right to be present when judgments or sentences are pronounced in cases where they are interested, as also in the examination of witnesses, whenever consonant to the laws of the land. In a word, they are to enjoy all the rights and privileges of natives of either country.

By Article 5th Salvadoreans in Germany or Germans in Salvador are exempted as well from every description of service in the army or navy, police or militia, as from obligation to accept political responsibilities and office, administrative or judicial, and also from all exceptional war contributions, forced loans, requisitions, or military services of whatever kind. In all other cases they can only be subjected in their personal and real property to the ordinary charges, exactions, and imposts imposed on natives or the citizens of the most favored state.

By Article 6th they may not respectively be subjected to any embargo, nor to have their vessels, cargoes, merchandise, or effects detained on account of whatever military expedition, or public use, without a previous arrangement, assessed by experts selected by those interested, for sufficient indemnification for all prejudices, losses, delays, and damages occasioned thereby, or which may result therefrom.

Article 7 stipulates for the enjoyment of liberty of conscience and public and private worship, with the reverence due to the Deity and respect to the laws, ways, and customs of the countries. Also the right to the burial of their dead in convenient and proper places selected by themselves, with assent of the local authorities; and funerals and graves shall not be disturbed through any pretext.

By Article 8th they may mutually acquire every class of personal and real estate, use and dispose of them at will, by sale, gift, exchange, testament, or in any other way; they may also inherit property by devise or through the intestate laws, provided, always, that they shall pay the same taxes on such transfers as do native citizens.

Marriages contracted in the one country conformably to its laws shall be held as valid in the other.

When acquired property is exported to either country no charges known as “jus detractus,” gavel tax, or emigration assessment, or any other to which natives are not subjected.

Article 9 declares that if unhappily the peace between the two high contracting parties shall be interrupted each shall concede a term of six months at least to the merchants on the coast, and a year to those established within the interior of the countries, to arrange their business and dispose of their property) also, they shall receive “safe conducts,” that they may freely embark at the ports which they may designate, so that they be not occupied or besieged by the enemy, or imperil their own security or that of the state; in which cases they must select whatever route is practicable.

All the other citizens having a fixed and permanent establishment in the respective countries, for the pursuit of whatever profession or employment, may continue their residence and the exercise of their professions and vocations without disturbance; and they shall retain the complete and entire possession of their liberty and property, provided they commit no offense against the laws of the land.

By Article 10th, in no case of war, or of collision between the two countries, shall there be subjected to embargo or sequestration, &c., property, of whatever kind, of the respective citizens. Sums owing by them to individuals, public funds, stocks in bank, or similar institutions, can be embargoed, sequestrated, or confiscated with prejudice to the said respective citizens.

By Article 11th the merchants of either country within the territories of the other shall enjoy in their business all the rights, privileges, and franchises conceded to those of the most favored nations.

Wherefore the importation dues of Salvador upon the productions of the soil or industry of Germany, and in Germany upon those of Salvador, cannot be other nor greater than those imposed on similar productions of the most favored nations. The same principle is applied to exportation. No special restriction or prohibition is to apply to their reciprocal commerce; and all rules and regulations affecting the same to apply equally to all countries.

By Article 12th the shipping of either state in the waters of the other shall not be subject to higher duties of tonnage, light-house, port, pilotage, quarantine, or others which affect the ship, than to those of the vessels of the nation.

Tonnage dues, &c., shall be computed consonantly to the register of the vessel.

Article 13 equalizes dues upon importation and exportation under either flag.

Article 14 regulates port charges on the same basis.

Article 15 provides that vessels of either country wrecked or distressed on the coasts of the other, or driven by stress of weather, &c., into their ports, shall not be subjected to navigation dues, under whatever name, save such as under like circumstances vessels of the country shall be subjected. Also, they shall be allowed to transfer the cargo to other vessels, or to land and warehouse it for its preservation without the exaction of other charges for freight of vessels, rent of warehouses, and the use of public dock-yards which may be necessary for the deposit of the merchandise or the repairs of the ship. Every facility and aid shall be lent to this end, as well as for the obtaining provisions and restitution of sea-worthiness.

By Article 16th all regularly documented vessels of either nationality shall be respected as such in the ports of either.

Article 17 prescribes that recaptures, &c., from pirates shall be returned to their former owners after payment of expenses thereof lawfully assessed upon proof of property, to be paid within the year.

Article 18 accords to the ships of war of either country in the ports of the other the same rights as to those of the most favored nation.

By Article 19th, in the event of war between one of the contracting parties and a third power, the other can, in no event, authorize its citizens to receive commission or letters of marque for hostile operations against the first, or to harrass the commerce or effects of its people.

By Article 20 the two high contracting parties adopt for their mutual relation the following principles:

• The abolition of privateering.
• The neutral flag protects enemy’s goods, with the exception of contraband of war.
• Neutral goods, with the exception of contraband of war, cannot be seized under the enemy’s flag.
• Blockades to be obligatory must be effective—that is to say, maintained, by a sufficient force to actually hinder access to the territory of the enemy.

It is also agreed that the free flag assures also that of the persons, and that individuals of a hostile power who may be found on board of a neutral vessel cannot be made prisoners, unless they may be military men, and are at the time in the service of the enemy.

The two high contracting parties do not apply these principles in their relations with other powers except to those who equally recognize them.

Article 21 prescribes that in the event of one of the contracting parties being at war, and its ships, exercising the right of visitation, should meet a vessel of the other remaining neutral, the first shall keep themselves out of the range of cannon, and may send in their boats only two inspectors to examine the documents as to nationality and cargo.

The commanders shall be responsible for every oppression or violence which they commit or allow on such occasion. It is also stipulated that in no case shall the neutral be obliged to go on board of the visiting vessel, neither to show his papers, nor for any other reason. The visitation shall not be allowed except on board of ships which sail without convoy. It will suffice when they proceed with convoy that the commander declare verbally and upon his word of honor that the vessels placed under his protection and sheltered by his power belong to the country whose flag they hoist, and that he also declares that when these vessels are destined for an enemy’s port, that they do not carry contraband of war.

By Article 22, in the event of either country being at war with a third power, the citizens of the other may continue their commerce and navigation with this same power, excepting to cities or ports actually besieged and blockaded, but this shall not extend to the carriage of contraband of war, such as fire-arms, side-arms, projectiles, powder, saltpeter, military equipments, and whatsoever articles intended for use and war.

In no event can a merchant ship of either country be captured and condemned, encountered bound for a blockaded port, without previous notification or knowledge of the existence of the blockade from vessels of the blockading squadron; and proof of such notice should therefore be inscribed upon the ship’s papers by the officer imparting the same, with due formality.

Article 23 provides for the establishment of consuls for the protection of commerce, the issuing of exequaturs, &c.

Article 24 applies the most favored clause to these consular officers.

Consuls sent, (Consules enviados,) citizens of the contracting party which names them, shall enjoy immunity to their dwellings, and from direct contributions, whether they be personal or otherwise, imposed by the state or the municipalities. But if the said agents become merchants, or pursue any employment or possess landed property, they shall be considered as citizens of the state to which they belong in that pertaining to charges and contributions.

Consuls sent, (consules missi,) citizens of the contracting party which names them, shall enjoy personal immunity, so that they cannot be arrested or imprisoned save for serious offenses.

In relation to consuls, citizens of the country of their residence, or merchants, the personal immunity is understood to apply only to debts or civil causes which do not originate with the business which they pursue nor through their dependents. Said agents may place upon the outer door of their residence the arms of their country, an inscription,—consulate of—; they can also display on public and national festal days the flag of their country at the consulate; but the right of asylum, notwithstanding these exterior symbols, is not conceded. In case of the death, illness, or absence of these officers their chancellors or secretaries may act for them, ad interim.

By Article 25 the archives, and, in general, all the papers of the chancery of the respective consulates, are inviolable and cannot be taken or inspected by the legal authority under any pretext and in no event.

Article 26 regulates the appointment of vice-consuls and consular agents.

Article 27 prescribes the powers and procedures of those consular officers with intestate estates, &c.

When there may have been no consul where the deceased was resident the proper authorities shall act as in the case of the estate of a native of the country, notifying thereof the nearest consular officer as soon as possible.

These consular officers shall be considered as the guardians of the orphans and minors of their respective countries, as to their persons and property, under the responsibilities created by their laws.

By Article 28 the consular officers are to be exclusively charged with the interior police of the merchant ships of their countries, and the local authorities cannot intervene unless the disorders are of such a nature as to disturb the public tranquillity, whether on land or on board the vessels. But in all which concerns the police of the ports, to the loading and unloading of vessels, to the safety of merchandise, goods and effects, the citizens of the two countries shall be respectively subject to the local laws.

Article 29 refers to the rendition of mariners deserting from their vessels. From this article, seamen native of the foreign state are excepted.

By Article 30, in the absence of stipulations to the contrary by those interested, consuls are to adjust marine averages, &c.

Article 31 regulates the procedure of consuls in case of wreck.

By Article 32, should one of the contracting parties deem that any of the stipulations of the treaty have been infringed to his detriment, he should address immediately to the other party a statement of the facts, jointly with a demand for reparation, accompanied with necessary documents and proofs to establish the lawfulness of the remonstrance. Reprisals or hostilities cannot be authorized until the reparation sought has been denied or arbitrarily postponed.

By Article 33 the treaty is to continue until December 31, 1877, commencing with the date of the exchange of ratifications, and a year’s notice to be given before expiration of the limitation, or the treaty to continue in force another twelve months, and so on.

By article 34, the treaty, composed of 34 articles, is to be ratified in Berlin within twelve months, or sooner, if possible. In the ratifications the 9th section was thus interpreted by mutual consent of both governments.

In the unfortunate event of a war between the two high contracting parties, as well the merchants as all the other citizens of the one residing within the territory of the other, without any exception, may continue their residence and the free exercise of their profession and industry without disturbance, while they do not commit any offense against the laws of the country.

The liberal provisions of this treaty, especially regarding the amelioration of war, and the recognition of neutral rights and obligations as between the contracting parties, with the privileges and exemptions granted to their respective citizens, and also the specifications of power and obligation to their consular officers, and the consideration that the “most favored clause” in the treaties between the United States and Salvador may apply many of these stipulations to our own affairs with this republic, has prompted me to present the foregoing analysis.

I have, &c.,