File No. 881.00/574a.
The Acting Secretary of State to the French Ambassador.
Washington, February 13, 1914.
Excellency: The Department has the honor to make reply to the Embassy’s notes of August 29,1 September 14,1 October 7, and January 7,1 last, relative to the establishment of the French protectorate in Morocco and the revision of the lists of American proteges in that country.
In the first note above mentioned the Department is informed, in relation to the establishment of the French protectorate, that, owing to the inadequacy of the means theretofore employed to prevent the smuggling of arms and munitions of war into Morocco, General Lyautey had decided “to declare martial law within the zone of French influence in Morocco in the matter of contraband of arms.” In the informal note of September 14, Mr. Peretti, who was then acting as Chargé d’Affaires ad interim, made known the wish of his Government that this Government would give instructions to its representative at Tangier looking to the designation of “a delegate to assist in the revision of the protection lists of people lying under the American jurisdiction.” Mr. Peretti added that it was not possible to “accept the reserve (of the United States) relative to the right of foreign representatives to act in the last resort upon the decision of the Maghzen” in regard to the natives who should enjoy the protection of a foreign government.
With his note of October 7, Mr. Peretti transmitted to the Department copies of the official bulletin of the Morocco protectorate “promulgating the new judiciary system in the French zone of the Shereefian Empire.” Mr. Peretti called attention to the fact that the new judiciary system was “intended to supersede the French consular courts on and after October 15, 1913,” and, under instructions, asked this Government “to place its citizens under the new jurisdiction.”
Finally, with your note of the 7th of January last, you transmitted to the Department a list of errata in the “Bulletin Officiel”2 and requested that “the new French courts in Morocco be recognized at the earliest possible date.”
Turning first to the subject of the revision of the protégé lists, mentioned in Mr. Peretti’s note of September 14, it is proper to state [Page 908] that the protection of native Moors in Morocco by this Government rests upon its treaty with Morocco of 1836 and the Madrid convention of 1880. The relevant part of the treaty of 1836 is found in article 15, which reads as follows:
Merchants of both countries shall employ only such interpreters and such other persons to assist them in their business as they shall think proper.
The convention of 1880 declares, in article 1, that the protection of native Moors is based on the British and Spanish treaties with Morocco and on the convention of 1863 between France, Morocco, and other Powers, “with the modifications introduced by the present convention,” and stipulates, in article 16, that “the authorities of Morocco will recognize no protection of any kind whatever save such as is expressly provided for in this convention.”
After a careful examination of the several articles of the Madrid convention relative to the protection of American protégés, the Department is unable to reach the conclusion that the Moorish Government enjoys the right ultimately to decide upon the persons who may become proteges of this Government. On the contrary, article 2 of the convention provides that “foreign representatives at the head of a legation may select their interpreters and employees from among the subjects of Morocco or others”; and article 3 provides that consular officers “shall be allowed to select “their employees. By article 5 of the same convention, “the Government of Morocco recognizes the right of ministers, charges d’affaires, and other representatives, which is granted to them by treaties, to select the persons whom they employ.” In regard to the lists of protected persons, the convention is equally precise, as appears by articles 7 and 8, which read as follows:
Article 7.
Foreign representatives shall inform the Sultan’s Minister of Foreign Affairs, in writing, of any selections of any employee made by them.
They shall furnish annually to the said minister a list of the names of the persons protected by them or by their agents throughout the States of the Sultan of Morocco.
This list shall be transmitted to the local authorities, who shall consider as persons enjoying protection only those whose names are contained therein.
Article 8.
Consular officers shall transmit each year to the authorities of the district in which they reside a list, bearing their seal, of the persons protected by them. These authorities shall transmit it to the Minister of Foreign Affairs, to the end that, if it be not conformable to the regulations, the representatives at Tangier may be informed of the fact.
A consular officer shall be required to give immediate information of any changes that may have taken place among the persons protected by his consulate.
Regarding the appointment of protégés for “signal services,” the convention provides (article 16) that the “Minister of Foreign Affairs at Tangier shall be previously informed of the nature of the services, and notified of the intention to award them, in order that he may, if need be, present his observations thereon; yet the final decision shall be reserved for the government to which the service shall have been rendered.”
Concerning the protection of the native employees of private persons, the treaty of 1836 appears to contain no stipulation; but in [Page 909] article 9 and 10 of the convention of 1880, there are found the following provisions:
Article 9.
Servants, farmers, and other native employees of native secretaries and interpreters shall not enjoy protection. The same shall be the case with Moorish employees or servants of foreign subjects.
Nevertheless, the local authorities shall not arrest an employee or servant of a native officer in the service of a legation or consulate, or of a foreign subject or protected person, without having notified the authority upon which he is dependent.
If a subject of Morocco in the service of a foreign subject shall kill or wound any person, or violate his domicile, he shall be arrested immediately, but the diplomatic or consular authority under which he is shall be notified without delay.
Article 10.
Nothing is changed with regard to the situation of brokers, as established by the treaties and by the convention of 1863, except what is stipulated, relative to taxes, in the following articles.
Inasmuch as the Madrid convention refers, in article 1, to the “convention of 1863 between France, Morocco, and other Powers “regarding the protection of native Moors, and to the British and Spanish treaties with Morocco on the same subject, it is appropriate to examine the provisions of these treaties on the subject.
The provisions of the convention of 1863 appear to be substantially the same as the “regulations relative to protection adopted by common consent by the Legation of France and the Government of Morocco, August 19, 1863,” reprinted, in “Treaties in Force, 1904,” at the end of the Madrid convention. The regulations are in part as follows:
Protected persons are divided into two classes.
The first class comprises natives employed by the legation and by the various French consular officers.
The second class consists of native factors, brokers, or agents employed by French merchants for their business affairs.* * *
French protection is not extended to natives employed by French citizens in agricultural occupations.* * *
It is, moreover, understood that agricultural laborers, herdsmen, or other native peasants in the service of French citizens shall not be legally prosecuted without immediate information thereof being communicated to the competent consular officer in order that the latter may protect the interests of his countrymen.
The list of all protected persons shall be delivered by the proper consulate to the competent magistrate of the place, who shall likewise be informed of any changes that may subsequently be made in the said list.
Each protected person shall be furnished with a card, in French and in Arabic, mentioning his name and stating the services which secure this privilege to him.
All these cards shall be issued by the Legation of France at Tangier.
The British and Spanish treaties mentioned in Article I of the Madrid convention are presumably the general treaty of December 9, 1856, between Great Britain and Morocco, and the treaty of commerce and navigation of November 20, 1861, between Spain and Morocco. In the British treaty it is specifically provided that the charge d’affaires and the consular officers of Great Britain “shall be at liberty to choose “their own employees and that British subjects “shall be free “to commit their affairs “to the management of any persons whom they may appoint as their broker, factor, or agent; nor,” says the treaty, “shall such British subjects be restrained in [Page 910] their choice of persons to act in such capacities.” The Spanish treaty provides that “the charge d’affaires or consul-general may choose his interpreters and servants from amongst the Mussulman subjects or amongst those of any other country”; that other consular officers “may name” employees “either Mussulmans or subjects of another country,” and that Spanish merchants may put their affairs “into the hands of brokers or agents appointed by themselves and they shall not be interfered with, nor shall obstacles be raised to the free choice of the persons to fulfill this charge.”
It would, therefore, seem that the choice of the proteges of the United States in Morocco rests, by right of treaty, ultimately with this Government. Such appears to be the view which this Department has always taken of the convention of 1880, and which has been the basis of its action in carrying out the provisions of that convention. The question of the choice of proteges is, however, in the view of this Government, but a phase of the larger question involved in the establishment of French and Spanish control over separate portions of Morocco.
On the subject of the French protectorate this Government has heretofore expressed itself as being in favor of the reforms which France contemplated introducing into Morocco in accordance with the stipulations of the Franco-Moroccan treaty of March 30, 1912, on the understanding that provision be made for the preservation of American interests and rights in Morocco, commercial or otherwise, which are at present safeguarded by existing treaties with that country. The more important of those interests and rights it is proper now to enumerate.
In the first place, attention may be drawn to the right of aliens to hold land in the Shereefian Empire. This right appears now to be based upon the provisions of the Madrid convention and the Algeciras Act. With a view to carry out article 60 of the Algeciras Act, the Sultan’s Foreign Minister on December 5, 1912, sent to the Diplomatic Corps at Tangier a set of regulations classifying the public domain of the empire and defining “inalienable property” and “alienable property.” These regulations also laid down certain rules to govern the sale of the latter class of property to foreigners.
It is understood that these regulations are not entirely consistent with the provisions on the subject of land ownership in the act of Algeciras and the convention of Madrid. Under article 11 of the Madrid convention the right of “all foreigners “to “hold property “anywhere within the Empire is recognized, but “the purchase of property must take place with the previous consent of the Government.” By article 60 of the Algeciras Act this right was confirmed, and it was further provided that within a radius of 10 kilometers around the open ports and within 2 kilometers around certain other towns, land might be acquired by foreigners without the previous consent of the Moorish Government.
The proposed regulations define “inalienable property” to include “Guish” lands, the seashores, “Habous” or mosque properties, tribal lands, forest land, desert, uncultivated or ownerless lands, ore-bearing land, and escheated property. The Department is advised that practically all of the land within the 10–kilometer zones, especially at Tangier, is either “Guish” land or seashore. Consequently, there [Page 911] would appear to be little or no land lying within the 10–kilometer zones which may be subject to private ownership without the consent of the Moorish Government.
Moreover, while in one paragraph the regulations recognize the fact that under article 60 of the act of Algeciras no authorization is necessary for the sale of lands within certain zones, in the next paragraph the regulations provide that “the Cadi will approve no sale made to a foreigner unless the authorization according to the regulations has been granted by the Maghzen.”
It would seem, therefore, that, if the regulations are correctly understood, an interpretation has been given to article 60 which its terms would not ordinarily bear.
By the same regulations the Moroccan Government reserves the right “to annul or to revise” any deeds of so-called “inalienable property” which may have been given prior to the date of the regulations. The Department is advised that much of the Guish and seashore property, as well as other lands, situated within the zones above mentioned, has long been held by private individuals under deeds legally obtained with the authorization of the responsible agents of the Maghzen.
In view of this circumstance, it is difficult to believe that it is the intention of the Moroccan Government to consider these regulations as retroactive in their operation and as thereby divesting or giving opportunity to divest rights in land legally acquired and officially confirmed by the Maghzen’s agents.
The proposed regulations, as understood by the Department, further provide in effect that no transfer of land will be authorized until the different Moorish intermediaries have stated that no Government rights are infringed. This provision probably has in view the carrying out of that part of article 60 of the Algeciras Act which stipulates that “before authorizing the execution of deeds transferring property the Cadi will have to satisfy himself of the validity of the title in conformity to the Mohammedan law.” The Department is, however, advised that the records of land titles in Morocco are very incomplete, and that this provision of the regulations may be used to delay indefinitely transfers of property in which the Moorish Government has in fact no legal or equitable rights.
As a further restriction upon the right of land ownership, it is reported that, notwithstanding the provisions of article 60 of the Algeciras Act respecting the acquisition of land within stated zones around the open ports and certain other towns, the Sultan about a year ago issued two decrees imposing military servitudes upon land situated within a radius of 250 meters around towns and fortified quarters within certain enumerated districts.
It appears that certain “habous” or mosque properties are alleged to have been irregularly disposed of in the past to persons subject to foreign jurisdiction, who hold these properties either without regular title thereto or by virtue of doubtful contracts. The Algeciras conference took formal note of this situation, and by article 63 of the Algeciras Act, charged the diplomatic body at Tangier to “solve these questions equitably, in accord with the special commissioner whom His Shereefian Majesty may be pleased to designate to that effect.” This stipulation does not appear to have been carried [Page 912] out. On the contrary, the Department is informed that the Sultan has communicated to the Diplomatic Corps a circular proposing measures for the recovery of such properties.
In these circumstances it would seem that titles to land already acquired and the right to make acquisitions in the future are being called into question and placed on an uncertain basis. This Government is therefore desirous of some assurance that the vested rights of its citizens and protégés in property in Morocco will be respected, and to that end will be promptly confirmed by the Moroccan Government, and that exsting treaty rights respecting the purchase and sale of land within the Empire will be protected and preserved.
In the second place the Department ventures to mention the subject of trade discriminations practiced by the authorities in Morocco. Complaints, apparently well founded, have reached this Government that customs duties have been imposed arbitrarily and without uniformity; that unreasonable export duties or surcharges have been collected, and that free and open competition in bidding for the construction of public works or the furnishing of supplies for the Government have been denied. It is reported that customs duties on the imports of the Vacuum Oil Co. vary for different ports of entry and for different countries of origin, thus in practical effect working a discrimination between importers at the same or different ports. For example, it is stated that in the recent past the customs duty has varied from 5.50 francs to 6.50 or 7 francs per case. The Department is also informed that in 1911 exporters of olive oil in barrels from Mogador, Morocco, to New York were arbitrarily made to pay 14 pesetas surcharge as tare on the barrels, regardless of the offer and desire of the exporter or his agent to empty a sample barrel for the purpose of determining the exact tare for the shipment.
It is understood that articles 105 to 110, inclusive, of the Algeciras Act require free and open competition “without preference of nationality” in bidding on proposals for public works and supplies for the Moroccan Government. The Department is advised, however, that specific proposals are not always prepared, so that real competition is possible. It is stated, for example, that the specifications do not always disclose the rate of duty on materials, machinery, and tools, so that distant bidders, unacquainted with local conditions, are placed at a great disadvantage in formulating bids. It is understood also that the opportunity of foreign contractors to take part in competitive bidding is minimized by the method of dividing large Government contracts into allotments too small to attract any but nearby contractors.
As the main purpose of the United States in participating in the Algeciras conference and in the adoption of the act resulting therefrom was to preserve and increase its commerce in Morocco, this Government desires equal opportunities for American commercial interests not only to maintain their present standing in Morocco but also to share in the country’s commercial development.
In the third place, the Department is advised that a commission composed entirely of French nationals has been appointed for the liquidation of outstanding claims against the Maghzen. Notice of this commission and of the date for presentation of claims has been communicated to this Government and to American citizens and [Page 913] protégés in Morocco. The Department is not at present advised as to the exact amount of the claims so far presented, but it is believed that the sum approximates $150,000.
It is also understood that certain awards made by the Claims Commission which sat in 1910 for the purpose of considering the claims of aliens against the Maghzen, have not as yet been fully paid.
This Government, therefore, is desirous that the awards of the commission of 1910 be duly paid to the American claimants and that some assurance be given that the awards of the present commission will be paid within a certain reasonable period.
Finally, it is perhaps proper to mention the case of Jacob Benatuil, an American citizen, who has for some years been engaged in litigation before the Moorish courts, in the manner provided in the treaty of Madrid, in an effort to secure the restoration of a strip of land said to have been arbitrarily taken and used for a highway. It appears that the property of Benatuil bordered on a roadway, and that certain persons of foreign nationality, including Frenchmen and Spaniards, who own land on the opposite side of the road, erected buildings beyond their property lines and thereby caused the roadway to encroach upon the land owned by Benatuil. In the course of the litigation Benatuil obtained a judgment in his favor by the Shraa, which on appeal, as provided by treaty, was confirmed by the Sultan’s Foreign Minister. Thereupon the Consul General of the United States, according to custom, requested the Moorish authorities to enforce the judgment, but they never acceded to the request. The only legal course then open to the American claimant was for him to sue upon the judgment in the Consular Courts of France, Spain, and the other countries whose nationals were concerned. It is doubtful whether such a course would have proved effective, inasmuch as it is understood that the defendants would, in the event of a decision adverse to themselves, have had the right to appeal to the superior home courts of their respective countries. As the expense involved in such proceedings was prohibitive to the American claimant, the Department has long desired that this case, which has been a source of misunderstanding and diplomatic correspondence for many years, should be disposed of by a settlement between the two Governments.
The foregoing statement covers the more important matters under discussion between this Government and that of Morocco. There are other matters which have given rise to diplomatic correspondence, but they may be reserved for future discussion, if need be. The present review embraces matters that touch the maintenance of American commercial interests in Morocco and the protection of the liberty and property of American citizens and protégés in that country, and it is for the purpose of removing any points of controversy in these particulars and bringing about an adjustment of them, that this Government, animated with a favorable disposition toward the reforms which the French protectorate is designed to assure, has addressed itself to an exposition of the questions as to which it desires to reach a definite understanding and settlement, as a preliminary to or incident of the recognition, in due and proper form, of the fundamental change involved in the establishment of a foreign governmental regime in the Shereefian Empire.
[Page 914]In conclusion, it may be proper to call attention to the situation of the American missionaries in Morocco. These missionaries have for years labored in this field, including the districts inhabited by the Berber tribes, and, as the Department is advised, have maintained and continue to maintain friendly and mutually satisfactory relations with the authorities of the country. They have expressed themselves as most appreciative of the courteous and kind treatment accorded to them by the French officials in Morocco. This Government therefore ventures to express the earnest hope that, in any reorganization of the Government of the Empire which may be contemplated or in progress, the rights and privileges of these missionaries may be carefully safeguarded and every facility be granted them for the prosecution of their worthy and benevolent task.
Accept [etc.]