ened Europeans with a revolver. The Resident General said further that in view of the gravity and the nature of the occurrences, which disturbed public order, he had ordered the arrest of Allal Ben El-Mamoon.

Upon the receipt of this telegram, Mr. Blake, considering the gravity of the charges, gave instructions to Mr. El-Khazen to offer to cooperate with the Residency-General in a joint investigation of the facts. Mr. El-Khazen was at the same time instructed to request the surrender of the American Semsar to the American consular authorities, the only judicial authorities recognized by the treaties and by the Maghzen as competent to judge American ressortissants, and further to convey assurances to the Resident General that, if Allal Ben El-Mamoon were found guilty of the charges brought against him, Mr. Blake would request the Government of the United States to cancel his protection and authorize his delivery to the Maghzen authorities to be dealt with as they should think fit.

Mr. Blake's offer of cooperation with the Residency General and his request for the surrender of the American Semsar to American consular jurisdiction were apparently ignored. The Resident General, in his letter of February 17, 1920, communicated the result of his separate inquiry and stated that he had ordered the confinement of Allal Ben El-Mamoon in the military prison at Rabat. At the same time he informed the American Agent and Consul General that, as General Commander in Chief of the Corps of Occupation, and in conformity with an order of August 2, 1914, instituting martial law in Morocco, he had authorized the trial of the American protégé by a French court martial. In a later communication, answering a letter from Mr. Blake, dated April 13, 1920, the Resident General expressly declined to adopt the renewed suggestion of a joint inquiry into the facts of Allal Ben El-Mamoon's case. The trial by court martial proceeded, and on May 20, 1920, the Council of War of the Rabat Subdivision pronounced judgment, declaring the American protégé guilty of banded pillage with open force (extenuating circumstances admitted) and condemning him to a penalty of three years' imprisonment.

Upon being informed of the sentence pronounced upon the American protégé, the American Agent and Consul General at Tangier immediately addressed to the Resident General at Rabat a formal protest against the violation, in this case, of American treaty rights which had never before been questioned. Referring to the order of August 2, 1914, which had been invoked against Allal Ben El-Mamoon by the Resident General, he reiterated the statement which he had made in his letter of April 13, 1920, that, although the French authorities in Morocco had requested the consent of at least one foreign government, namely the British Government, to the application of this order

to its subjects and protégés in Morocco, no similar request had ever been addressed to the American government. He concluded with a request for the immediate release of Allal Ben El-Mamoon and his surrender to the American judicial authorities in Morocco.

The representations of the American Agent and Consul General at Tangier having so far failed to effect their purpose, my Government directs me to say to you that it fully endorses the position taken by the American Agent and Consul General at Tangier in this case, and that it has learned with surprise of the refusal of the French Resident General at Rabat to comply with Mr. Blake's request for the release of the American protégé, Allal Ben El-Mamoon, and his surrender to the American Consular authorities for appropriate proceedings in a Consular Court of the United States.

The proclamation of martial law by the French authorities of the Protectorate cannot, in the absence of an agreement to that effect with the Government of the United States, confer upon French military tribunals jurisdiction over American protégés, who, under the treaties in force and the existing usages, are liable to judicial proceedings only in the American Consular Courts, representing in Morocco not the dignity of His Shereefian Majesty but the sovereign authority of the United States. Relying upon the well-known respect of the French Government for the sanctity of treaties, my Government confidently expects that, upon consideration of the full account, herewith given, of the violation of American treaty rights, by the French authorities of the Protectorate, the French Government will hasten to correct the error of those authorities, and that, while directing the delivery of the American protégé, Allal Ben ElMamoon, to the American consular authorities for appropriate proceedings in an American Consular Court, it will offer suitable amends to the victim of the ill-judged action of its subordinates.

My Government has provided me with copies of the correspondence exchanged between the French Resident General at Rabat and the American Agent and Consul General at Tangier, and, if Your Excellency should care to examine these copies, I shall be pleased to transmit them to you.

I am [etc.]

NORMAN H. DAVIS

381.8121 El 6/2

The Ambassador in France (Wallace) to the Secretary of State No. 2127

PARIS, February 8, 1921.
[Received February 28.]

SIR: Referring to the Department's instruction No. 713 of January 3, 1921, concerning the case of the American Semsar, Allal Weld El

32604 vol. II-38-54

Hadj Boaza Ben El-Mamoon, I have the honor to enclose herewith copy and translation of a note dated February 5, 1921, from the Ministry for Foreign Affairs, in reply to the communication addressed by me under date of January 18, 1921 to Mr. Briand in accordance with the instruction referred to above.

I also have the honor to enclose, for the records, a copy of my note of January 18, 1921 17 to the Minister for Foreign Affairs. I have [etc.]

[Enclosure-Translation 13]

HUGH C. WALLACE

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).

"Not printed.

18 File translation revised.

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 Governinent 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.]

PARIS, February 5, 1921.

BERTHELOT

381.8121 El 6/2

The Secretary of State to the Ambassador in France (Herrick)

No. 129

WASHINGTON, December 29, 1921. SIR: With reference to your Embassy's despatch No. 2127 of February 8, 1921, enclosing a copy and translation of a note dated February 5, 1921, from the French Ministry of Foreign Affairs in reply to the Embassy's note to M. Briand under date of January 18, 1921, concerning the case of the American Semsar, Allal Weld El-Hadj Boaza Ben El-Mamoon, you are directed to address the Ministry substantially as follows:

I have the honor to advert to the note of the Ministry of Foreign Affairs dated February 5, 1921, in reply to the Embassy's note of January 18, 1921, communicating my Government's protest against the assumption by the French authorities in Morocco of jurisdiction over the American protégé, Allal Ben El-Mamoon, and its request that he be released from prison and surrendered to the American consular authorities in Morocco for appropriate proceedings in a consular court of the United States.

In declining to comply with my Government's request, the Ministry, in the note of February 5, referred to general principles of international law with respect to the consequences of military occupation and expressed the view that, even without the assent of the United States, the jurisdiction exercised by American Consuls in Morocco, by virtue of treaties and usages, yielded, so far as required in the interest of the security of the occupying forces, to the military jurisdiction established by the French authorities under the Treaty of March 30, 1912, between France and Morocco and under the proclamation of martial law by the Order issued on August 2, 1914, by the Commander in Chief of the troops of occupation. The Ministry also intimated that acquiescence in advance in all military measures necessary for the maintenance of order is regarded by the French Government as having been given by my Government through the recognition of the French Protectorate in Morocco, and in this connection, with reference to what was thought to be a misapprehension on the part of my Government, the Ministry stated that France and Great Britain, without any express agreement suspending the consular jurisdictions, had mutually acknowledged that, as an effect of the establishment of martial law in the Protectorates of Egypt and Morocco, the consular jurisdictions were displaced in favor of the military jurisdictions.

After the most careful consideration of the note of February 5, my Government has directed me to renew in the most emphatic manner the request that the American protégé now held in a French military prison in Morocco be surrendered to the American Consular authorities. I am instructed to make it clear to the Government of the Republic that the existing treaties and usages are regarded by my Government as conferring upon the United States a right to maintain in Morocco courts of justice separate from the local administration for the exclusive cognizance of alleged offenses by American citizens and protégés. My Government cannot admit that a right given to it before the establishment of the French protectorate can be modified in any way without its consent either by the treaty of the protectorate or by the action of French military forces pursuant to that treaty.

With respect to the Ministry's statement that the Commander in Chief of the forces occupying Morocco has under general rules of international law the right to exercise jurisdiction over all persons so far as may be necessary for the security of the occupying forces, I am instructed to point out that, apart from the question of any principles of international law applicable to a military occupation effected under the peculiar conditions prevailing in Morocco, there is the authority of the French Government itself to support the view that the military jurisdiction should be extended to foreigners only when the offenses with which they are charged threaten the safety of the army of occupation. This necessary limitation upon the military jurisdiction was recognized in a memorial presented by the agent of the French Government in the Casablanca Arbitration of 1909, which contained the following language:

"Occupation, far from entirely destroying the régime established by the capitulations in the occupied territory, affects territorial sovereignty, and as a consequence the fragments of such sovereignty gathered by the Christian States