While Ambassador Gerard was held incommunicado in Berlin, his mail intercepted, his telephone cut off, and telegraphic facilities denied him, the German Government actually sought to parley with him by way of revising an old treaty to apply to existing conditions. Mr. Gerard, having ceased to hold ambassadorial powers after the breaking of relations, could not enter into any such negotiations; but then the German Government had never been concerned with legalities. It blandly asked him to sign a protocol, the main purpose of which was to protect Germans and their interests in the United States in the event of war.
The proposed protocol, besides containing a formal reratification of the American-Prussian treaties of 1799 and 1828 regarding mutual treatment of nationals caught in either belligerent country in case of war, provided for some remarkable additions as a "special arrangement" should war be declared.
Germans in the United States and Americans in Germany were to be entitled to conduct their businesses and continue their domicile unmolested, but could be excluded from fortified places and other military areas. Or if they chose, they were free to leave, with their personal property, except such as was contraband. If they remained they were to enjoy the exercise of their private rights in common with neutral residents. They were not to be transferred to concentration camps nor their property sequestered except under conditions applying to neutral property. Patent rights of the respective nationals in either country were not to be declared void nor be transferred to others. No contracts between Germans and Americans were to be canceled or suspended, nor were citizens of either country to be impeded in fulfilling their obligations arising thereunder. Finally Germany required that enemy merchant ships in either country should not be forced to leave port unless allowed a binding safe conduct by all the enemy sea powers.
In short, Germany asked that in the event of war her nationals and her ships and commercial interests in the United States be regarded as on a neutral footing and exempt from all military law. They were to be as free and unrestricted as in peace time.
Mr. Gerard refused to sign the protocol after he had ceased to exercise ambassadorial functions. Thereupon Count Montgelas, chief of the American department of the Foreign Office, hinted that his refusal to sign it might affect the status of Americans in Germany and their privilege of departure. The reference was to American press correspondents in Berlin, whose fate was apparently thought to weigh with American public opinion. This threat to detain newspaper representatives as supposedly important pieces on the diplomatic chessboard before war was declared brought a firm refusal from Mr. Gerard to yield to such pressure. He also expressed doubt whether the newspaper representatives could be utilized to urge acceptance of the protocol under pain of detention. Thenceforth nothing further was heard of the protocol. Germany was undoubtedly exercising duress in requiring Mr. Gerard to sign it, since his passports were withheld and a needless guard had been placed round the American Embassy.
It appeared that the protocol had also been submitted to the State Department by the Swiss Minister in Washington. Secretary Lansing finally disposed of it. In a communication to Dr. Ritter he said the United States Government refused to modernize and extend the treaties as Germany proposed, and indicated that the Government held the treaties null and void since Germany herself had grossly violated her obligations under them. The treaty of 1828, for example, contained this clause governing freedom of maritime commerce of either of the contracting parties when the other was at war:
"The free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent powers shall not be interrupted.
"On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other.
"And the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party, unless they be soldiers in actual service of such an enemy."
Secretary Lansing pointed out another clause of equal import in the treaty of 1799, providing: