452.11/242

The Ambassador in Spain ( Laughlin ) to the Secretary of State

No. 49

Sir: I have the honor to acknowledge the receipt of your instruction No. 5 of January 18th, ultimo, with regard to the American claims in the Spanish Zone of Morocco. A few days before the arrival of this instruction, I received from the Spanish Secretary General of Foreign Affairs, a long note dealing with the question, the copy of which I beg leave to transmit herewith for your information, as well as a translation thereof.

I have analyzed carefully the Secretary General’s note, and, while it must be considered as conciliatory in tone, and is indeed meant to be so, as the Secretary General himself emphasized to me in a very informal conversation I had with him on the subject a few days ago, I do not find that it makes us any real concessions except perhaps in the second class of claims.

On the occasion of my conversation with Señor Palacios I mentioned casually to him the practical difficulty of renouncing the Capitulations as a condition to a settlement of the claims, pointing out the part the Senate would have to play in such a surrender of rights. To this he replied that he of course understood my contention, but that it would still be possible for you to give your consent in principle and take the necessary steps for obtaining the requisite legislative action. According to Señor Palacios, the following governments have renounced their Capitulatory rights in Mórocco:—France, Norway, Sweden, Russia, Belgium, Denmark, Italy, Greece, Germany (Treaty of Versailles), Austria-Hungary (Treaty of the Trianon), Portugal, Switzerland, and The Netherlands.

The first class of claims, amounting to 134,046.30 Pesetas, which was accepted in the Spanish Government’s note of August 9th last, a copy of which was transmitted you with Mr. Hammond’s despatch No. 1338 of August 20, 1929,33 are again accepted in toto in the note just received. With regard to the third class of claims, totalling 62,993.55 Pesetas, these are likewise accepted, but on condition that the United States Government renounce the regime of Capitulations in the Spanish Zone of Morocco. This was exactly the status of the matter as presented by the Secretary General in his note of August 9th, last.

Only in the second class of claims, which total 451,745.85 Pesetas, does the Spanish Government make a concession. Of the five claims in this class, three are absolutely turned down, as they were in the note of August 9th, last. The remaining two, that of Kettani for [Page 608] 400,000 Pesetas, and Raisuni Muhal [Rahamin Muyal] for 10,000 Pesetas, while still not admitted, in the view of the Spanish Government, may be brought before the competent legal authorities for a definite decision.

Before taking this matter up further with the Spanish Government, or discussing it with Mr. Blake as you suggest in the instruction under acknowledgment, I feel that I should submit this last note for your consideration and further instructions. A copy of this despatch, together with its enclosure is being forwarded Mr. Blake for his information.

I have [etc.]

Irwin Laughlin
[Enclosure—Translation34]

The Spanish Secretary General of Foreign Affairs ( Palacios ) to the American Ambassador ( Laughlin )

No. 15–R. G. 48

Excellency: My dear Sir: When on November 22, last, Mr. Whitehouse, then Chargé d’Affaires, informed me, as a result of instructions received from his Government that the Department of State in Washington was surprised at the note of August 9th, last, addressed to him, relative to the American claims in the Spanish Zone in Morocco, I expressed the intention again to examine the question and inform him with respect to the results of such examination.

As a result of this offer, and having reached the conclusion that the surprise echoed by Mr. Whitehouse might be ascribed to the conciseness, perhaps excessive, with which the point of view of His Majesty’s Government was expressed in the said note relative to each of the claims mentioned therein, I have deemed the moment opportune to continue an analysis of the cases referred to in sufficient detail to permit appreciation of the proposals made in their true spirit and meaning.

For the sake of greater clarity, the same order adopted in the said note of this Secretariat General of August 9, 1929, will be followed:—

1. Claims:

a) For payment of taxes:
The sole claim of S. and J. Cohen 4,140.00 pesetas.
The third claim of Rahamin Muyal 17,035.50
The fourth “ “ “ “ 5,992.75
The sole claim of J. Bentolila 6,384.30
b) For harbor dues:
The second claim of Rahamin Muyal 4,738.00

[Page 609]

Since these claims in the amounts demanded are accepted as good and without discussion, the amounts demanded corresponding to the taxes and dues paid, verification of which surely will be apparent when in due course the interested parties present the necessary receipts, it does not seem necessary to trouble Your Excellency with any explanation.

c) The sole claim of David Bergel, for seizure of trucks 50,255.75 pesetas.

The payment of this claim is also accepted; nevertheless, it maybe remarked, as regards the amount, that while in principle the claimant has demanded 110,000 Spanish pesetas, he has hastened to recognize the exaggeration of the sum demanded, following an examination of the claim in question by the experts, Messrs. Cortes and Cahzen, in May, 1928, both experts having agreed in a reduction of the claim to the said 50,255.75 Spanish pesetas. This is the same figure which the Government of His Majesty has shown itself disposed to accept.

The first claim of Raisuni35 for seizure, $6,500, which represents at the exchange of 7 45,500.00 pesetas.

It is only necessary to state here that while Raisuni has claimed $10,000 in this matter, the experts above mentioned, after having examined the case, have agreed to reduce it to $6,500, which is the same figure accepted by the Government of His Majesty.

It is believed that the agreement between the two Governments is complete in the matter relative to these seven claims.

2. Claims:

a) The sole claim of the Singer Company for the events of 1921 6,412.50 pesetas.

As a result of the events in this case, the Singer Sewing Machine Company has demanded an indemnity for the destruction or robbery of 8 sewing machines in Nadir, 4 in Monte Arruit, and 2 in Zeluán, during the events of 1921, without presenting justifiable proofs of the then existence of the said machines. It is not necessary at the present moment to discuss the then existence of these machines. It is sufficient to state that, in view of the reservations made by the Consul General of Spain at Tangier, Señor Plá, no Government can be held responsible for damages caused by rebels. Mr. Blake, after he had established certain distinctions between the Government of His Majesty and the Maghzen, distinctions which will not be discussed at this moment, proposed that this claim should be submitted to the consideration of the two Governments, following recognition of the [Page 610] Spanish Zone. This moment has not arrived, but the Government of His Majesty must point out that the destructions or robberies, which the Singer Company alleges, took place during military operations against an organized rebellion of such importance that it was necessary, as it is known to everyone, to inaugurate a regular campaign in the whole of Morocco to suppress it. The principles of international law, applicable not only to regular warfare but to suppression in the case of states in rebellion, in Europe as well as in Spanish America, including the intervention of foreign military forces, establish that the damages which the Singer Company alleges it has suffered are not subject to indemnification.

b) The sole claim of Dris-El-Quettani36 on account of the Lala-Sfia farm 400,000.00 pesetas.

This claim refers to the Azib-Es-Shorfa farm, which the claimant holds to be his own, presenting to that end documents which he believes give him legitimate rights to the property. The Spanish Government took possession of the farm, which is situated to the left of that of Lucus and near the Alcázar, in the year 1912, as result of the purchase of various Maghzen properties in the western part of our Zone from the Sultán Muley Haffid. Among these properties is the one which is the subject of this claim, but it bears the name of Lala-Sfia. It is proper to recall that the experts, Messrs. Cortes and Cahzen, after examining the matter, expressed the opinion that in view of the documents presented by Sidi-Dris-El-Kettani, the sum of 320,000 pesetas should be paid him for the value of the same, in case the Spanish State preferred to retain it, or the sum of 80,000 pesetas for the rent of the farm during sixteen years, at the rate of 5,000 pesetas annually; this last sum, which will only be paid in case the Spanish State decides to return the farm to the claimant, was accepted by Mr. Blake in his conversations with the Spanish High Commissioner in Morocco.

The Government of His Majesty, in rejecting the claim in question, has no intention of establishing in a definite manner the lack of right thereto of the claimant. The Spanish State bought the property claimed in good faith from Sultán Muley Haffid, and it was registered in its name in regular manner in the Registry of Landed Properties. If Sidi-Dris-El-Kettani believes that the property of the said farm belongs to him, he should assert his rights before the Courts, which will pass judgment as to whether the disputed farm belonged to Muley Haffid or to Sidi-Dris-El-Kettani. In the first case,37 there is no right, consequently no indemnification can be recognized as accruing to Sidi-Dris-El-Kettani. On the other hand, and in the second case,38 [Page 611] the Government of His Majesty will be under the obligation to evacuate the farm, unless, following an agreement by both parties on a reasonable price, it decides to retain the farm. Nevertheless, the Spanish Government will continue to exercise its right of eviction until it is established that the Lala-Sfia farm was sold without right.

As has already been explained, it is a judicial matter, which must come before, and follow the proceedings of, the ordinary courts; it cannot be a question for diplomacy except in case of a denial of justice, and there has been no reason to expect that such will happen.

Furthermore, it must be shown that the status (calidad) of American protégé, which El-Kettani claims (ostenta) does not exempt him from the competency of the said courts. In fact, article 11 of the convention relative to the right of protection in Morocco, signed at Madrid, July 3, 1880,39 and signed by the Government of His Majesty as well as by that of the United States, establishes that property rights shall be subject to the provisions of the laws of the country, and that any question that may arise concerning the rights of property shall be decided according to these same laws, except in the case of appeal (salvo apelación) to the Ministry of Foreign Affairs, stipulated in the Treaties. At a later date, article 60 of the General Act of the Conference of Algeciras of April 7, 1906,40 also signed by Spain and the United States, confirmed the said provision of the convention of 1880, and at greater length in article 123 of the Act itself which reads, “All treaties, conventions, and arrangements of the signatory powers with Morocco remain in force.”

The only competent authority in the matter, until the establishment of the Spanish Protectorate, was the authority of Xeráa, but from the time of the publication of the dahir of the Registry of Landed Properties, the Spanish courts also took cognizance of questions affecting properties of this class inscribed in the said register, and since the signatory powers of the convention of Madrid, when they recognized the competency of the territorial jurisdiction of the Maghzen, voluntarily and expressly submitted themselves to the subsequent reforms in matters relating to the proceedings and administration of justice which the Moroccan authorities considered convenient to introduce, [Page 612] without anything being stipulated on this point or any reservation to the contrary being formulated by the Government of the United States on signing the said convention of 1880, it is evident that the United States accepted the reforms which might be established, and by virtue of one of these reforms (the said Shereefian dahir creating the Register of Landed Properties), the Spanish courts of the Zone were substituted in cognizance of these questions in the name of the Sultán of Morocco. Only in the event that this legislation of the Maghzen has broken international treaties or the rules of international law, or brought about differences of treatment on account of nationality which has not occurred, could it be a question for reparation.

To sum up, the declaration contained in the note of this Secretariat General of August 9, 1929, refuting the claim of Dris-El-Kettani, should be cleared up in the sense of referring the matter to the competency of the courts of justice, and before which the interested parties may take action according to established procedure; only in case of a denial of justice may the matter be referred to diplomacy.

c) The first claim of Rahamin Muyal against the railway company 10,000.00 pesetas.

This claim has been brought against the Railway Company of Larache-Alcázar, for having constructed a culvert which debouches into a road giving access to various orchards belonging to the claimant, with the result that his woodland has been destroyed. The damages which have thereby been produced are appraised by Rahamin Muyal at 12,000 pesetas; the experts have estimated them at 10,000.

Furthermore, this case is one of litigation, that is, it is in the competency of the courts of justice, and the claimant should bring up the matter before these courts; until this has been done, His Majesty’s Government is not able to accept diplomacy.

d) The 11th claim of Tahami Selaui41 for the closing of a fondak.

This case refers to the shutting down during nine months of a fondak at Alcázar; indemnification in the amount of 3,600 Hassani pesetas, or 2,000 Spanish pesetas, is demanded.

In view of the fact that the closure of the fondak resulted from a police regulation issued for sanitary reasons, which affected all fondaks of the same class, foreign subjects and protégés not being exempt from [Page 613] compliance with the police regulations, the claim is inadmissible, and Mr. Blake so recognized it, to a certain extent, when discussing the matter with the High Commissioner he abandoned in principle the said claim.

e) The second claim of Raisuni through fear of cultivating his lands on account of the possible vengeance of his cousin, the late Caid de Yebala 33,333.35 pesetas.

Sid-El-Hassan-Ben-Ahmed-Ben-Adik-Raisuni has presented this claim; he alleges the impossibility of being able to administer and attend to his lands and farms for a period of eleven years, that is, from 1918 to 1928 inclusive, through fear of being again seized and then assassinated by his cousin el jerife of the same name and the Caid de Yebala; for this reason he claims 515,165 Hassani pesetas. Aside from the notorious exaggeration of these figures, the unrightfulness of the claim is apparent, and only in a spirit of special compromise has the High Commissioner reached an agreement in principle with Mr. Blake, relative to the basis on which the claim would be withdrawn in exchange for increasing the amount to be paid the claimant for his third claim—damages caused to his lands, from 6,412 to 12,000 Spanish pesetas.

The impossibility of admitting the claim in question cannot be more eloquently stated than by translating below the words of the wellknown Swiss jurisconsult, Mr. Hubert, a member of the Permanent Court of International Justice at the Hague, and charged not so very long ago by the Governments of Spain and Great Britain with examining the demands brought by the latter in favor of British protégés who had been damaged in the Spanish Zone of Morocco. In stating that the two claims were unlawful, this high authority spoke as follows: “Now, if nothing more is involved than the subjective evaluation made by the interested party with regard to the possible risks relative to the tilling of the soil, this is not sufficient to establish the responsibility of the Protectorate, notwithstanding that in other aspects, and in a general way, the conditions proving this responsibility have been fulfilled.”

Therefore, the Government of His Majesty refuses this claim, but taking into account the spirit of cordial compromise shown on the part of the Conde de Jordana, referred to above, it admits, a título gracioso, the compensation mentioned by the High Commissioner in his conversations with Mr. Blake, and this will be shown when the third claim of Raisuni is examined.

[Page 614]

3. Claims:

a) For robberies:
3rd, 4th and 5th [claims of] Tahami Selaui for thefts of livestock*
7th [claim of] Tahami Selaui for theft of a mare 555.55 pesetas
8th [claim of] Tahami Selaui for theft of a 277.75
9th [claim of] Tahami Selaui for theft of a mule 555.55
The 2nd [claim of] Mohamed Oknin 4,188.23
b) For damages to farmlands:
2nd [claim of] Tahami Selaui (El Minza) 23,083.35 pesetas
10th [claim of] Tahami Selaui (Tarik Er Rad) 2,777.75
3rd [claim of] Raisuni 12,000.00
1st [claim of] Mohamed Oknin 8,333.35

The figures mentioned in relation to each of the claims included in this group agree exactly with the amounts arrived at by the experts, with the sole difference, not with regard to amounts but with regard to figures, that the sums which the experts have arrived at are as a rule in Hassani pesetas; these have been converted into Spanish pesetas. With regard to Raisuni’s 3rd claim, for damages to various farmlands, the figure arrived at by the experts was 112,500 Hassani pesetas, equivalent to 6,412 Spanish pesetas, but as a result of the offer of the High Commissioner mentioned above, with respect to the second Raisuni claim, it has been fixed at 12,000 Spanish pesetas.

Already in its note of August 9th, last, this Secretariat General has shown that in none of the cases included in this third group of claims has the responsibility of the Protectorate been clearly established; and in many of these cases, when this responsibility has been established, the figures mentioned are considered excessive; nevertheless, the Government of His Majesty showed itself in the said note disposed to approve the payment (aceptar el pago) of 62,993.55 Spanish pesetas the moment when the American Government should renounce the capitulatory régime; therefore, it seems unnecessary to analyze the said claims case by case.

As Your Excellency will readily understand, there does not exist much difference between the proposals contained in the abovementioned note of August 9, 1929, and the conversations which took place previously in Tangier and in Tetuán. The Government of His Majesty accepts payment of the seven claims included in the first group, and the eleven claims which form the third, or eighteen claims [Page 615] amounting to 134,046.30 pesetas in the first group and 62,993.55 in the third; or a total of 197,039.85 pesetas; the only claims that it is unable to accept are the five which form the second group, but it must be stated that only three of these claims, totaling 41,745.35 pesetas are absolutely rejected; it should be pointed out that the most important of these claims, the second Raisuni claim for fear of cultivating his lands, 33,333.35 pesetas, has been in principle withdrawn by Mr. Blake, on condition that the sum paid to the said Raisuni for his third claim be raised to 12,000 pesetas; this condition has been accepted by the Government of His Majesty, as has already been explained, in such a way that these three claims, of which only two are really rejected, amount to 8,412.50 pesetas.

The non-admission of the two remaining claims, i.e., the sole claim of Dris-El-Kettani for the farm Lala-Sfia, 400,000 pesetas, and the first claim of Rahamin Muyal against the railway company for 10,000 pesetas, amounting to 410,000 pesetas, does not imply on the part of the Government of His Majesty a refusal of all rights to the claimants, but only the statement that diplomacy as a means of solution is inadmissible, and that the question comes within the competency of the courts of justice, before which the interested parties must take their cases in order to secure recognition of the rights which they allege are in justice due them; the Government of His Majesty reserves for itself the right to defend before the said courts the legal titles which, in the case of the Raisuni claim, are opposed to the claim of the said British [American?] protégé.

Furthermore, with regard to the claim of Rahamin Muyal, and in view of the fact that it is a question of an unimportant sum, the Government of His Majesty is disposed, as was announced to Mr. Whitehouse in the note of August 9th, last, to satisfy this claim, leaving only the claim of Dris-El-Kettani to be taken up in the courts.

There is no doubt that with the information given above, the Government of the United States will be able to appreciate the reasons which justify the attitude of His Majesty’s Government in the matter, and, as a result of a spirit of cordial friendship which has inspired His Majesty’s Government to assent to the payment (aceptar el pago) of the claims, all of which it does not consider absolutely just, the Washington Government (Gabinete) on its part, in view of what Mr. Kellogg, Secretary of State, said in the note which he sent to His Majesty’s Ambassador at Washington, November 7, 1927,43 stating that the Government of the United States was disposed and even desirous of taking into benevolent consideration the recognition on its part of our Protectorate, as soon as a satisfactory solution of the American claims in our Zone could be found, should not withhold [Page 616] de jure recognition of the Spanish Protectorate in Morocco, nor should it delay in signing the said convention giving up the capitulatory regime in this Zone. This matter has already been the subject of conversations on the part of His Majesty’s Ambassador at Washington, it being understood that His Majesty’s Government is desirous of knowing the date when this convention of renunciation may be signed, with a view to settling in Tangier, or in Washington, as the American Government (Gabinete) desires, the payment of the claims, the acceptance of which is ratified by the present note, so that payment may take place the same day.

I avail myself [etc.]

Eduardo Palacios
  1. Foreign Relations, 1929, vol. iii, p. 500.
  2. File translation revised.
  3. Hassan Raisuli.
  4. Driss El-Kittany.
  5. i. e., if it were the property of Muley Haffid.
  6. i. e., if it were the property of Sidi-Dris-El-Kettani.
  7. Foreign Relations, 1880, pp. 917, 919. Article 11 reads:

    “The right to hold property is recognized in Morocco as belonging to all foreigners.

    The purchase of property must take place with the previous consent of the government, and the title of such property shall be subject to the forms prescribed by the laws of the country.

    Any question that may arise concerning this right shall be decided according to the same laws, with the privilege of appeal to the minister of foreign affairs stipulated in the treaties.”

  8. Ibid., 1906, pt. 2, pp. 1495, 1504, 1511.
  9. Thamy Slawee.
  10. The amount of these claims, which should read 11,222.00 Ptas., is omitted, obviously a typographical error. [Footnote in original translation.]
  11. Foreign Relations, 1927, vol. iii, p. 273.