Papers relating to the foreign relations of the United States, 1931, Volume II

781.003/8

The Diplomatic Agent and Consul General at Tangier (Blake) to the Secretary of State

Tangier, October 8, 1930.
[Received October 27.]

No. 551

Sir: I have the honor to inform the Department that two employees of the American Diplomatic Agency in Tangier, Mr. Joseph G. Abrines, Dragoman, and Mr. Gregory T. Abrines, Interpreter, both British subjects, were cited to appear before the Tangier Mixed Tribunal, on charges of hunting in the Tangier Zone unprovided with a licence issued by the Tangier Authorities.

In view of the position taken by the Department in the Scott case,³⁴ (see “International Law Digest,” John Bassett Moore, Volume II, page 751, Mr. Fish Secretary of State to Sir Edward Thornton, British Minister, April 5th, 1872,³⁵ M. S. Notes to Great Britain XV 466 in reply to a Note of Sir Edward Thornton of April 3, 1972 [1872]³⁶), I informed the Representative of the Sultan in Tangier that the persons in question, as a result of their employment in the Service of the American Government in Morocco, were under the jurisdiction of the United States Consular Court. Any complaints against them would therefore be dealt with by that Court, if the local authorities desired to adopt the appropriate procedure for their prosecution.

I might inform the Department that the employees of the Diplomatic Agency were provided with permits to carry sporting arms, issued by me and countersigned by the Sultan’s Representative, as provided by the regulations under the Act of Algeciras.³⁷ They were not, however, provided with a shooting licence required by new regulations voted by the Tangier Legislative Assembly. The latter regulations, which involve a fiscal charge, have never been communicated to the American Diplomatic Agency for the approval of the Department, and they therefore cannot be legally enforced upon American citizens or upon persons under American jurisdiction. I have also informed the Authorities that if these regulations were to be properly submitted together with a formal request for the assent thereto of the American Government, I had reason to anticipate that they would be made applicable to American ressortissants.

The foregoing explanation, however, is of an incidental character, the object of the present Despatch being to bring to the Department’s attention the fact that there appears to be a disposition on the part of the Tangier Administration to question the position taken by the American Government, as set forth in the Note of Mr. Fish to Sir Edward Thornton above referred to.

Subsequently to my statement to Sid Tazzi, the Sultan’s Representative in Tangier, Mr. Hugh Gurney, the British Consul-General, came to see me in the same connection. He stated that the matter had been brought to his attention and that he had been pressed to state definitely to the local authorities whether he repudiated the position taken by the American Diplomatic Agency, and if so to declare that the British nationals employed by the American Government were subject to the local jurisdiction of the Mixed Courts, or in the alternative, to remove their names from the Registers of British subjects in Tangier. He therefore came to hear my views on the question.

I laid before him the position which had been taken by the Department in the Scott case, and I confirmed my statements to him by letter, copy of which is annexed hereto as Enclosure No. 1.

Mr. Gurney in private conversation has signalized to me the existence of a Memorandum, drawn up by the British Crown lawyers in reply to Secretary Fish’s Note, which appears to dissent from the principle therein stated. I understand, however, that the British Government at that time, expressed a willingness to pursue the consideration of the matter if it were deemed necessary to do so. I was unaware of these circumstances, but reference may here be usefully made to a more recent instance, that of the Stalker case in connection with which, the acquiescence of the British Government in the position taken by Secretary Fish appears clearly to be implied. (Copy of Lord Salisbury’s Note to Sir J. Pauncefote, annexed hereto, Enclosure No. 2).³⁸

This case, it will be recalled arose over a question of easements, between two British subjects, the plaintiff a Mrs. Leared and the defendant a Mr. Stalker, the latter being in the employment of the United States Government as Vice-Consul at Tangier. The British Government took the position that under Article XI of the Madrid Convention,³⁹ all questions connected with real estate in Morocco including easements were of the exclusive competency of the Shraa. There was not unanimous agreement on this point between the European Powers signatories of the Madrid Convention, and the United States, among other Powers, contended that the Shraa was competent to deal only with disputes as to right of title to hold land, but that all other questions relative to real property were of the competency of the Consular Courts of the capitulatory Powers.

On the assumption that the position taken by Secretary Fish were to be discarded, the British Consular Court should have taken cognizance of the matter under the first hypothesis, and under the second the British Consul would have been empowered to compel the British defendant to appear before the Shraa. However, neither of these alternatives appears to have been contemplated by the British Authorities. Indeed, the Note on the subject addressed by the British Foreign Secretary under date of August 14th, 1891 to the British Minister at Washington, appears to take for granted that, if the Moorish jurisdiction is to be ruled out, it is the American Consular Court which is competent to deal with the matter, notwithstanding the fact that the defendant is a British subject. The Marquis of Salisbury after reciting the fact that the case is between two British subjects, states textually that: “The point at issue is whether the case in question should be referred for decision to the Moorish tribunals or to the United States Consular Court.” (See Enclosure to the Department’s Instruction No. 33 of December 12th, 1891 to Consul-General F. A. Mathews).⁴⁰

My British Colleague desires to refer to his Government for its decision as to the position which he is to take in the circumstances, and I have therefore deemed it necessary to transmit the foregoing account of the exchange of views which has passed between us, particularly since it is not improbable that the Department may be approached on the subject by the British Embassy in Washington.

In this connection, I transmit, Enclosure No. 3, copy of a letter dated October 6th, 1930, from my British Colleague⁴⁰ in reply to mine of October 3rd, 1930. (Enclosure No. 1).

It is gratifying to note, according to Mr. Gurney’s statement, that the local authorities entertain no desire to call into question the exercise of American extraterritorial jurisdiction in Tangier, and that they have undertaken to refrain from precipitating incidents, pending the ruling of the American and British Governments in the present matter.

However, my British Colleague has revealed that the representations in the premises were made to him by the French Consulate-General, and this fact is perhaps not without political significance. There are indications which appear to warrant the inference that the present manoeuvre is connected with the action of the French Authorities in Morocco, signalized in the concluding paragraph of my Despatch No. 544 of September 25th, 1930,⁴⁰ now afoot against the extraterritorial privileges which remain in existence in the Shereefian Empire. I may also say that I am not without serious apprehension that conditions in Morocco are still such that any invalidation of the position taken in the premises by Secretary Fish, is susceptible of involving the service of the Diplomatic Agency and particularly of the American Consulate in the French Zone and also eventually in the Spanish Zone in embarrassments. It would seem superfluous to signalize to the Department the confusions and complications which might arise for the Foreign Service, if employees of the American Government in extraterritorial states, such as Morocco, were exposed to molestation by the local authorities even when they might be engaged in the accomplishment of their official duties. They might not only be prevented from carrying out their duties by such interference, but they might also, while not engaged in the actual performance of official duties, be liable to arrest when properly in possession of documents or property belonging to the American Government. Furthermore, it is conceivable that they might be subject to prosecution, as individuals, for the carrying out of their multiple duties, judicial or otherwise, which had been imposed upon them by the direction of the American Government itself or by its authorized Agents.

It might be asked how it is that such conflicts in jurisdiction appear not to have presented themselves, as between the other Governments represented in Morocco. The explanation is to be found in the fact that the other capitulatory Powers have provided convenient legislation or procedure permitting the bestowal of citizenship upon foreign subjects in the service of their Governments in Morocco.

Thus Italy extended Italian nationality to a native Moroccan, Mr. Abraham Laredo, Dragoman to the Italian Legation. Similar action was taken by Portugal with regard to Mr. Solomon Marrache. The same facilities are available to the British Government, and instances are to be found where British nationality has been conferred upon non British employees of the British Post Office in Morocco. Other instances could be quoted if required with respect to the action of other Governments in the same direction.

If it is pointed out to the British Government that such facilities are not available to the Department of State tinder the citizenship laws as enacted by Congress, there should be little doubt that the logical and reasonable contention of the. American Government in the premises will receive recognition, particularly in view of the assurance of reciprocity given to the British Government in 1872 by Secretary Fish.

This position obviously involves no desire on the part of the American Government to abstract a British citizen from British extraterritorial jurisdiction for the individual benefit of the party concerned, but is put forward as a necessary element in the protection of the interest of the American Government itself and essential to the prestige of its service in the conduct of its foreign relations in an extraterritorial state.

The Department’s instructions in the above connection will be awaited with the greatest interest.

Respectfully yours,

Maxwell Blake

[Enclosure]

The American Diplomatic Agent and Consul General at Tangier (Blake) to the British Consul General at Tangier (Gurney)

Tangier, October 3, 1930.

My Dear Gurney: In the course of our conversation this morning regarding the jurisdiction covering British subjects who are in the employ of the American Diplomatic Agency and Consulate-General, I referred to a precedent which appeared to have defined the position. In this connection I make the following quotation from John Bassett Moore’s “International Law Digest,” Volume II, page 751, under the Section “Consular Jurisdiction”:—

“The British Minister at Washington having expressed the opinion that British Consular Officers were entitled, under the treaty between Great Britain and Morocco of December 9th, 1856,⁴³ to exercise jurisdiction, both civil and criminal, over Mr. Scott, the Interpreter of the American Consulate at Tangier, who was admitted to be a British subject, the Department of State replied that it failed to find in that treaty any foundation for the claim of such jurisdiction. The treaty, it was true, said the Department of State, gave to British Consular Officers ‘ample jurisdiction over British subjects in Morocco generally, but certainly no treaty to which the United States are not a party can rightfully extend such jurisdiction over any foreigner whom they may think proper to employ in their Consulate. Furthermore Mr. Scott cannot properly be said to be within British jurisdiction, because he is in the service of an Officer of the United States accredited to the Emperor of Morocco, and who as such, according to the usage of that country, is entitled to the privilege of extraterritoriality, one of which is the exemption of his servants, including his Interpreter, from any other jurisdiction than his own.’ With the statement that it was likely that the United States, if the case were reversed, would never claim jurisdiction over an American citizen in British Service, the Department of State expressed the hope that Her Majesty’s Government would, upon further consideration, ‘acknowledge the reasonableness of our objections to their claim to jurisdiction over Mr. Scott’.”

(Mr. Fish, Sec. of State, to Sir Edward Thornton, British Min., April 5, 1872 MS. Notes to Great Britain XV, 496 [466], in reply to a Note of Sir Edward Thornton of April 3, 1872).

It is clear that in the above connection the only question involved was as to the incidence of jurisdiction. There was not the remotest suggestion, which I understood to be implied in the representations made to you by the local authorities, of the forfeiture by British subjects of their British citizenship, as a result of their employment at the American Diplomatic Agency or Consulate-General, nor can I conceive that such contingency could arise.

Reverting to Mr. Fish’s Note to Sir Edward Thornton, the position taken by the American Government was based upon usage in Morocco, and I might add that the provisions of the treaties with Morocco appear to give implicit confirmation to the usage.

They provide (British Treaty of 1856, Article 3, Spanish Treaty of 1861,⁴⁴ Article 3) that the Chargé d’Affaires or Consul-General may choose his Interpreters and servants freely from amongst the Mussulman subjects or amongst those of any other country, and the latter are assimilated to their principals in privileges of immunity. Article XV of the Spanish Treaty provides that Spanish subjects, or persons under Spanish Protection whether Christians, Mohammedans or Hebrews, shall likewise enjoy all rights and privileges conceded by this treaty, that is to say, including the right of appeal to the Spanish jurisdiction, which is the subject of the immediately preceding Articles of the treaty.

I do not know whether any reply was made by the British Government to Mr. Fish’s Note, but so far as I am aware the claim of the British Government to exercise jurisdiction over Scott, was not further pursued subsequently to the submission of that Note, and I am therefore inclined to infer that the British Government acquiesced in the position taken on that occasion by the Department of State.

There is not, however, entire analogy in the circumstances attending the question referred to by Mr. Fish in 1872 and that which is being raised by the Tangier Judicial Authorities to-day.

In the present instance it is no longer a question under given circumstances of the validity of the jurisdictional rights of one or other of two extraterritorial Powers in Morocco, but what is sought is the surrender by the United States of its jurisdiction over its employees to the “Mixed Courts,” that is to a form of Shereefian jurisdiction in the Tangier Zone, instituted under a Convention to which the United States is neither a party, nor to which it has given its adhesion. Such surrender would, incidentally expose the employees of this Diplomatic Agency or of this Consulate-General to interference by the local authorities, even while they might be actually engaged in the performance of services for the United States Government.

The mere signalization of these contingencies appears to me to afford sufficient indication of the impossibility to contemplate acquiescence in such a situation.

I take this opportunity to recall, as I mentioned to you, that there is no desire on the part of the American Diplomatic Agency to render nugatory any reasonable municipal regulations, and if these are submitted to me through the proper channels, there is every likelihood that my Government will approve their application to persons under American jurisdiction.

In conclusion, I cannot forbear reiterating my apprehension that the nature of the action taken, in the premises, by the local authorities, on the occasion of what may be described as petty incidents, points to the fact that the Administration is actuated by a disposition to call into question the principles of American extraterritorial rights, rather than by a desire to bring about the co-operation of the American Diplomatic Agency in the maintenance of public order in the Tangier Zone.

Very sincerely yours,

Maxwell Blake

34. Peter W. Scott, British subject and American Vice Consul at Tangier.
35. Post, p. 768.
36. Latter not printed.
37. General Act of the International Conference at Algeciras, signed April 7, 1906, Foreign Relations, 1906, pt. 2, p. 1495.
38. Not printed.
39. International Convention with Morocco, signed July 3, 1880, Malloy, Treaties, Conventions, etc., 1776–1909, vol. i, p. 1220.
40. Not printed.
40. Not printed.
40. Not printed.
43. British and Foreign State Papers, vol. xlvi, p. 188.
44. Treaty between Spain and Morocco, signed at Madrid, November 20, 1861, ibid., vol. liii, p. 1089.