176.1/13
The British Ambassador ( Geddes ) to the Secretary of State
Sir: With reference to the note which you were so good as to address to me on April 20th, 1921, I have the honour, on instructions from my Government, to draw your attention to certain aspects of the case of Alexander MacClennan, a British subject, who was sentenced by the United States Consul at Alexandria to fourteen days’ imprisonment. While His Majesty’s Government are not desirous that any further action should be taken in this particular case, they feel that it is desirable that some decision should be reached for future reference as to the rights of Consular Officers in such cases.
The real question at issue is whether an American Consular Tribunal in Egypt has properly any jurisdiction to sentence a British subject to imprisonment—a question which is clearly one of Public International Law which cannot be determined by reference to the laws of England or to the laws of the United States. In the case of MacClennan, it is clear that he would be subject to the jurisdiction of the Egyptian Courts for any offence committed in Egypt and that he is taken out of that jurisdiction only by the effect of the Capitulations; that is, by a treaty between Great Britain and Egypt under which a British Consular Court takes the place of the Egyptian Courts as the Tribunal having jurisdiction over British subjects in Egypt. It is not likely to be contended that no [a] capitulation or treaty between the United States and Egypt could give to an American Court jurisdiction over a British subject.
It is alleged, however, that MacClennan, though a British subject, had acquired a new status by signing articles for service on an American ship and that he must in consequence be regarded as an American seaman, though not an American citizen. From that the proposition is put forward that American seamen of whatever nationality are justiciable before the American Consular Court in Egypt.
In the opinion of His Majesty’s Government there appears to be no support, either in International Law or in the law in practice of the tribunals in Egypt, for the contention that MacClennan was justiciable [Page 82] before the American Consular Tribunal. It does not appear that the American Consul in Alexandria has powers in any way different from the American Consul in Liverpool or in Marseilles in that he cannot try a case himself although he can institute a prosecution before a competent local tribunal. In Alexandria the competent local tribunal for the trial of a British subject is the British Consular Court and the Egyptian Tribunals have never recognised the special status claimed for American seamen as apart from the status of American citizens. Further there does not appear to be any recorded case where a Consular Tribunal has claimed or exercised jurisdiction over the national of another State.
In the opinion of the legal advisers to His Majesty’s Government this matter could be tested by an action before the Mixed Tribunals as MacClennan would be entitled to bring an action against the Egyptian Government for unlawful detention on the ground that he was actually detained in an Egyptian Government prison on the warrant of an American Consul and that that warrant was no authority for such detention. His Majesty’s Government, however, do not desire that any attempt should be made to obtain a legal decision in this case which might ipso facto convict an American Consul of irregular action.
I venture, accordingly, to bring these aspects of the case to your attention in the hope that it may be possible to arrive at a clear decision agreeable both to the United States Government and to His Majesty’s Government which will settle the question of jurisdiction for the future.
I have [etc.]