The Secretary of State to the Vice Consul at Jerusalem (Cobb)
Sir: Reference is made to the Consulate’s despatches No. 859 of February 6, 1922, and No. 864 of February 11, 1922,2 in regard to the conclusion of a provisional arrangement between the Consulate and the Legal Secretary for the Palestine Government as to the procedure to be followed in civil and criminal cases in Palestine in which American citizens are defendants.
The procedure agreed upon for civil cases is understood to be substantially as follows:
- The summons shall be served on the defendant according to the regular procedure of the Palestinian Civil Courts and not through the Consulate;
- The defendant shall appear before the appropriate Civil Court and plead that he is an American citizen, and he shall produce the necessary proof of his citizenship;
- Any person claiming American citizenship shall be permitted and assisted by the Palestine authorities to obtain proof from the American Consulate as to his claim;
- If the Court is satisfied of the American citizenship of the defendant, it shall refer the papers to the Legal Secretary for the Palestine Government, who shall in turn submit them to the American Consulate in order that the case may be tried by the Consular Court;
- If the defendant does not raise the plea of jurisdiction at the first hearing of the case and a judgment is given against him, he shall not be entitled to resist execution on the ground that he is an American citizen.
For criminal cases the procedure agreed upon is understood to be substantially as follows:
- The summons of the accused person or, if necessary, his arrest shall be carried out in the same way as in the case of a Palestinian subject;
- The accused, if an American citizen, shall raise a plea to the jurisdiction, either at the criminal investigation before the Magistrate or at the trial of the charge, and he shall produce the necessary evidence;
- The Court, if satisfied that the accused is an American citizen, shall refer the papers to the Legal Secretary for the Palestine Government, who will transmit them to the Consulate;
- Should the Consulate make application, an American citizen accused of a criminal offense and arrested shall, upon the establishment of his American citizenship, be transferred to the custody of the Consulate.
The procedure above outlined appears to have been put into effect, subject to a reopening of the discussion in the event that the Department should raise any question in regard to it. In submitting the agreement for the Department’s approval the Consulate requested instructions as to whether it might ask the local authorities to hold in prison an American citizen against whom a charge had been substantiated in the Consular Court and also as to the method by which payment to the local authorities for the detention of such a prisoner might be made and charged in the accounts of the Consulate.
The Department appreciates the desirability of a definite arrangement as to the procedure to be followed in cases such as were the subject of the provisional arrangement between the Consulate and the Legal Secretary for the Palestine Government. The procedure agreed upon appears to the Department to be, on the whole, well adapted to its object, but it is believed that it is necessary or desirable to modify or supplement it in the particulars indicated below:
- It should be made clear that the procedure is applicable only with respect to cases in which American citizens as defendants are opposed by Palestinian or Ottoman subjects. Cases in which American citizens as defendants are opposed by persons not of Palestinian or Ottoman nationality come within the exclusive competence of the American Consular Court.
- In civil cases in which the defendant is generally known to be
an American citizen or is in possession of documents
constituting prima facie evidence of American citizenship,
service of summons should be through the Consulate, as provided
for in Article 17 of the Ottomon Code of Commercial Procedure,
which reads, in translation, as follows (See Young’s Corps de Droit Ottoman, Volume VII, page
“If the party summoned is a foreign subject, the service of the duplicate of the summons shall be made upon him only through the intervention of the Consul or of the dragoman of the Legation upon which he depends. The said Consul or dragoman shall examine the duplicate which the bailiff shall take back.”
- When a defendant in a civil case in a local court alleges American citizenship and has not in advance of all procedure given a written submission to the jurisdiction of the court, a representative of the American Consulate should be present at all proceedings of the court, as contemplated in the Treaty of 1830 between the United States and Turkey and in the Protocol of 1874 (See Treaties, Conmentions, International Acts, Protocols, and Agreements between the United States and other Powers, 1776–1909, Volume 2, pages 1319, 1346 ).
- The execution of the judgment of a Palestinian court against
an American citizen should in no case be effected without the
assistance of the American Consulate, in accordance with the
usage referred to in the following passage translated from Du
Rausas’ Le Régime des Capitulations dans
l’Empire Ottoman, Volume I, page 440:
“There is a third limitation upon the rule of the competence of the Ottoman jurisdictions. This limitation, which relates to the execution of judgments and orders of court, results from a principle which we have studied above, the principle of the inviolability of the domicile of the foreigner. We have seen that this principle was analyzed in the following manner: the Ottoman authorities can enter a house inhabited by a foreigner only with the authorization and assistance of the Consular authority upon which that foreigner depends. The consequence of this principle, from our present point of view, is the impossibility of the execution by the Ottoman authorities of court orders issued or judgments pronounced against foreigners, without the authorization and assistance of the foreign authority.”
- Defendants who are generally known to be American citizens or are in possession of documents constituting prima facie evidence of American citizenship should not be summoned to appear before local courts in criminal cases, and, except in cases of urgent necessity, they should not be arrested except at the request or with the assistance of the Consulate, as contemplated in the Treaty of 1830 and the Protocol of 1874.
- It should be made clear that, since local courts are entirely without jurisdiction over American citizens in criminal cases, the omission of an American defendant to plead his citizenship as a ground for exemption from the jurisdiction of the local court in a criminal case does not deprive him of any right.
You are authorized to communicate to the Legal Secretary for the Palestine Government the sense of the foregoing.
With reference to your request for instructions as to the detention of American prisoners in Palestinian jails and the method of accounting for the expenses of such detention, you are informed that, in the opinion of the Department, the question of the advisability of asking the local authorities to imprison American citizens against whom a [Page 221] charge has been substantiated in the Consular Court is within the discretion of the consular officer in charge. A separate statement should be rendered for expenses of prisoners, fully itemized and supported by vouchers in the form of receipted bills. Form No. 194—Consular—copies of which are enclosed with this instruction,2a should be used for itemizing board and lodging. The amount shown by this form should be included in the statement mentioned above. The total amount of the account should be carried as a separate item in the account current, under the heading “Expenses of prisons for American convicts”.
I am [etc.]