I also have the honor to enclose, for the records, a copy of my note of
January 18, 192117 to
the Minister for Foreign Affairs.
[Enclosure—Translation18]
The Secretary General of the French Ministry for
Foreign Affairs (Berthelot) to the
American Ambassador (Wallace)
Mr. Ambassador: By a note of January 18
last, Your Excellency was good enough to write to me in regard to
the arrest of the American protégé, Allal Ould el Hadj Bouazza Ben
El Mamoun, and his trial and condemnation by courtmartial at Rabat
(Morocco). Confirming the representations of the American Diplomatic
Agency at Tangier, the Department of State protests against an
action which it considers a violation of the treaties and requests
the immediate release of its protégé and his surrender to the
American consular authorities in Morocco, inasmuch as the
proclamation of martial law by the French authorities cannot, in the
absence of the assent of the Government of the United States, confer
upon French military tribunals jurisdiction over American protégés
who, under the treaties in force and the existing usage, are liable
to judicial proceedings only in the American consular courts.
I have the honor to submit to Your Excellency that it does not seem
possible for me to adhere to this view. Indeed, one of the
principles of the law of nations is that any army of occupation must
provide for its own security, both by extending its jurisdiction
over every person within the occupied territory and by the issuance
through the general-in-chief of special orders and regulations which
none may evade without risking prosecution by that jurisdiction.
When capitulatory jurisdiction thus gives way to military
jurisdiction in the event of occupation, the same must obtain in the
event of proclamation of a state of siege, especially when, as in
the case of Morocco, the military occupation under the treaty of
protectorate (treaty of March 30, 1912, art. 2) is combined with a
subsequent proclamation of martial law (order of the general of
division commander in chief of the troops of occupation, of August
2, 1914).
[Page 741]
The absence of agreement on the part of the American Government
cannot prevent the application of martial law. By recognizing the
French protectorate in Morocco, the Federal Government has, in
advance, acquiesced in all military measures necessary for the
maintenance of order for which the Government of the Republic is
responsible. Likewise, the French Government having recognized the
protectorate of England in Egypt and the British Government having
recognized the protectorate of France in Morocco, the two powers
have mutually admitted, one in Egypt and the other in Morocco, that,
as an effect of martial law, capitulatory justice is waived in favor
of military jurisdictions. The law was thus established without any
previous agreement in this respect between France and Great Britain,
as the Federal Government would seem to believe.
I venture to believe that the preceding explanations will give full
satisfaction to the Department of State and will convince it that
Allal bel Hadj Bouazza, guilty of an offence against public order
and peace in Morocco is, in accordance with the terms of the
treaties and the law in force, liable to the French courtmartial at
Rabat; the sovereign rights of the United States over their protégés
in a country where they still enjoy capitulatory privileges are,
however, in nowise affected thereby.
Kindly accept [etc.]
Berthelot
Paris, February 5,
1921.
