The Secretary of State to the Chargé in Great Britain (Wheeler)
Sir: The Department encloses for your information copies of communications which have passed between the American Consulate at Jerusalem and the British Legal Secretary for Palestine, and copies of correspondence between the Department and the American Consulate at Jerusalem, relating to the jurisdiction in civil and criminal [Page 223]cases which the American Consular Courts in Palestine exercise by virtue of the capitulations.
You will note that an agreement was reached between the British Legal Secretary and the American Consulate to the effect that in cases in which American citizens as defendants are opposed by persons not of Palestinian or Ottoman nationality, these cases come within the exclusive competence of the American Consular Court; that 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 Consul; that 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; that 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; that the 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; 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 a local court in a criminal case does not deprive him of any right.
This agreement was confirmed to the Department by a despatch from the American Consulate at Jerusalem, dated March 3, 1923, in which it was stated that,
“The Chief Secretary of the Palestine Government has agreed to the modifications, … (as outlined above) and has issued instructions to the Palestinian Courts that they be put into effect.”
You will further note, however, that in a cable to the Department dated July 20, 1923, the American Consulate at Jerusalem informed the Department that the British Chief Justice of Palestine and the British Attorney General do not consider themselves bound by the instructions of the Chief British Secretary on the ground that the Palestine Order in Council, 1922, conflicts with the agreement.
The Order in Council above referred to provides in Sections 58 and 59 that:
“… The Civil Courts shall exercise jurisdiction over foreigners, subject to the following provisions:[Page 224]
“59. For the purpose of this part of the Order the expression ‘foreigner’ means any person who is a national or subject of a European or American State or of Japan, but shall not include:
- “(i) Native inhabitants of a territory protected by or administered under a mandate granted to a European State.
- “(ii) Ottoman subjects.
- “(iii) Persons who have lost Ottoman nationality and have not acquired any other nationality.”
It is stated in the cable referred to that whereas Article 87 of the Order in Council authorizes the High Commissioner to amend the Order it appears, for political reasons, inexpedient to the local Government to do so.
As the capitulatory rights enjoyed by Americans in Palestine remain intact in the absence of an agreement concerning the formal recognition by the United States of the British Mandate over Palestine, you are instructed to address an appropriate communication to the Foreign Office embodying the information and considerations outlined in this instruction and stating that this Government trusts that appropriate instructions will be sent to the Palestine authorities in order that any case now pending in the Palestine Courts involving American citizens may be treated in conformity with the agreement arrived at between the British Legal Secretary for Palestine and the American Consulate at Jerusalem.
You may add that in view of the recent conclusion of a Treaty of Peace between the Allied Powers and Turkey, this Government is quite prepared to take up for early consideration, in case the British Government deems the moment opportune, the correspondence with regard to the recognition by Treaty of the British mandate in Palestine. In this connection you are referred to the Department’s instruction to you, No. 792 of January 31, 1923,5 and to previous correspondence on the same subject.
I am [etc.]