The Secretary of State to Mr. A. J. Balfour

My Dear Mr. Balfour: Referring to our informal conversation of yesterday afternoon with regard to the Mandate for Palestine, I venture to confirm what I then said that it would not be possible to deal with the question by a mere exchange of notes on account of the reasons set forth in the American memorandum of August last.5 You will recall my pointing out that we enjoyed capitulatory rights by virtue of a provision in the Treaty with the Ottoman Empire and that consequently these rights could be modified or abrogated only by a Treaty, hence for this reason alone a Treaty would be necessary apart from the general considerations mentioned in the August memorandum, which, in themselves, would make a Treaty desirable.

The assurances given in the British note of December 296 regarding the establishment of adequate courts and the insertion of a provision in the proposed Constitution of Palestine, in virtue of [Page 270] which nationals of the United States shall have the right to be tried by a court with a majority of British Judges, except in trivial cases where this provision would lead to administrative inconvenience when United States nationals will have the special right to appeal to a court composed of a majority of British Judges, may be considered satisfactory, in view of Anglo-Saxon traditions of law. On the other hand, the suggestion with regard to the question of the revival of the capitulations, as set forth in the British note above mentioned, is not satisfactory and it will be necessary to provide for the revival of our original rights in that respect upon the termination of the Mandate régime. Even in case a Jewish State should survive, it would still be necessary for the United States to reach a decision for itself on the question at that time.

With regard to provisions against discriminations, it would be sufficient to recite the terms of the Mandate in the Treaty, to which I have referred above, and provide for the extension to the United States and its nationals of the same privileges enjoyed by members and by nationals of members of the League of Nations.

In view of the paucity of the resources of Palestine, and particularly in view of the special conditions there prevailing, to which reference is made in the British note of December 29, it is not my intention to insist on the proposals put forth in the American memorandum of August last for the inclusion of appropriate provisions against the granting of monopolistic concessions. We will be satisfied with the assurances that your Government proposes to give us with regard to the equal treatment of United States citizens and companies. I should, however, make it clear and repeat my statement of yesterday that in withdrawing from the position heretofore taken in this regard, it is fully understood that this action is without prejudice to the contentions in this regard which have been made and which are still being made in connection with other mandate territories.

The amplification of the provisions of the Mandate with a view to safeguarding more effectively the present and future activities, both religious and educational, of American missionaries, as has been proposed by your Government, can, it is believed, be readily arranged.

An undertaking on the part of the British Government that it will not propose nor accept any modifications in the terms of the Mandate without previous consultation with the Government of the United States would not, I fear, adequately meet the wish expressed in the memorandum of August last that the consent of the United States shall be obtained before any alteration is made in the text of the Mandates.

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As I informed you yesterday, Japan has agreed to furnish a duplicate, not a copy, of their annual report to the League of Nations. A provision to this effect is incorporated in the Treaty with Japan relating to the mandated Islands [in the Pacific] north of the Pacific [equator]7 and the same provisions should be included in the Treaty relating to Palestine, inasmuch as Japan has been promised that the same undertaking would be secured in the case of other Mandate forms.

To sum up briefly:

For the reasons already stated it is necessary to have a Treaty, in which the Mandate will be recited in full and which will make the provisions as to privileges accorded to members and nationals of members of the League of Nations run to the United States and nationals of the United States and also include the other provisions, to which reference is made above.

Lastly, permit me to recall once again our understanding that our conversation of yesterday and this letter will be considered as entirely informal and personal between us, in view of the fact, as I explained yesterday, that I have not had an opportunity for consultation on the subject with the Chairman of the Foreign Relations Committee of the Senate which I should desire to have before expressing any views formally in the matter.

Yours sincerely,

Charles E. Hughes
  1. See telegram no. 448, Aug. 4, 1921, to the Ambassador in Great Britain, ibid., vol. ii, p. 106.
  2. Ibid., p. 115.
  3. Post, p. 600.