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.
[Enclosure—Translation34]
The Spanish Secretary General of Foreign
Affairs (Palacios) to the American
Ambassador (Laughlin)
Madrid, January 22, 1930.
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.]
