Committee Report on the Hussein-McMahon Correspondence
House of Lords, February 24th, 1939.
(see paragraph 8)
STATEMENT BY SIR MICHAEL MCDONNELL ON CERTAIN LEGAL POINT ARISING OUT OF THE LORD CHANCELLOR’S STATEMENT AT THE SECOND MEETING OF THE COMMITTEE ON THE 24TH FEBRUARY.
February 28th, 1939.
I have been invited, with the assent of the Secretary of State for the Colonies, by the Arab Delegations to be present at these meetings and to address Your Lordship today. My position differs from that of these gentlemen in that the text of the Correspondence, known to them for long in Arab publications, came first to my knowledge, as to Sir H. McMahon’s letter of 24th October, 1915, only when published on page 18 of the Report of the Royal Commission in 1937, and as to the whole Correspondence only upon the publication of Mr. Antonius’ book* three months ago. There can be no doubt that the Sharifs first letter of the 14th July, 1915, included a demand for the whole of what are now Syria, Iraq, the Arabian Peninsula, Transjordan and Palestine with the express exclusion of the enclave of Aden.
As to the contention of the British Government that there was no intention on its part of including Palestine in the area of independence, it seems to me incredible that a similar reservation of that enclave was not made in the first of Sir Henry’s letters to the Sharif or, if not there, in the second, in reply to the Sharifs letter of the 9th September in which, according to Mr. Antonius’ text, he said “Our people believe that these frontiers form the minimum necessary to the establishment of the new order for which they are striving”.
Much stress has been laid upon that which Sir H. McMahon in his letter to The Times of the 23rd July, 1937, and that which Sir Gilbert Clayton in his letter of the 12th April, 1923, to Sir Herbert Samuel, declared was intended.
That which Sir Henry or Sir Gilbert say they intended to mean seems to me to be a matter of no consequence whatever. It was not they who were making an offer to the Sharif; it was, as Sir Henry himself states in his letter of the 24th October, the British Government. The High Commissioner in Egypt was merely the conduit pipe through which the proposals of His Majesty’s Government were conveyed to the other party. Sir Gilbert merely made preliminary drafts of the letters. There is a dictum of Lord Halsbury as Lord Chancellor, in the case of Hilder v. Dexter  A.C. at p. 477, on the construction of statutes, which might equally well be applied to any written instrument, including the letter under consideration: —
* The Arab Awakening, by G. Antonius, 1938.
“I have more than once bad occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended, though, perhaps, it was not done.”
The case was concerned with the interpretation of a subsection of the Companies Act of 1900, and after the observation which I have cited Lord Halsbury proceeded: —
“For that reason I abstain from giving any judgment in the case myself, but at the same time I desire to say, having read the judgements proposed to he delivered by my noble and learned friends, that I entirely concur with every word of them. I believe that the construction at which they have arrived was the intention of the statute. I do not say my intention, but the intention of the Legislature. I was largely responsible for the language in which the enactment is conveyed and for that reason, and for that reason alone I have not written a judgment myself, but I heartily concur in the judgment which my noble and learned friends have arrived at.”
That with which a Court of Law alone would be governed in interpreting Sir Henry’s letter of the 24th October would be that which was called by a very distinguished Judge, Lord Wensleydale, the Gckten Rule of legal interpretation, to the effect that in construing all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest i of the instrument, in which case the grammatical and ordinary sense of the words might be modified so as to avoid the absurdity and inconsistency but no further. The problem, therefore, before one is to ascertain what, giving words their ordinary meaning, is the area referred to in Sir Henry’s letter as “the portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo which cannot be stated to be purely Arab.”
I suggest that a reference to Map No. 1 in the Report of the Royal Commission, which is a War Office Map, showing the Pre-War Turkish Administrative Districts comprised in Syria and Palestine, or to the Map opposite page 248 in Mr. Antonius’ book, make, it perfectly easy to give a grammatical and ordinary sense to the words of the British Government to which the High Commissioner of Egypt put his signature.
Having studied the administrative divisions on the map, can it he said that they bear out Mr. Churchill’s interpretation, when Colonial Secretary in 1922, that the portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo, cover the southern part of the Vilayet of Beirut and the independent Sanjaq of Jerusalem? It was clearly necessary to say so if Palestine, which comprises the Sanjaqs of Acre and Balqa in the Vilayet of Beirut and the independent Sanjaq of Jerusalem, was to be held to be excluded from the area promised to the Arabs.
So far from it being clear that Palestine was included in the reservation defined in the letter of the 24th October, one can, on the contrary, only say that everything possible was done in order to indicate that it was intended to include Palestine in the area promised to the Sharif. Why, for example, speak of the districts of Damascus, Homs, Hama and Aleppo, not one of which is east of Palestine, and all of which go northward in that order away from Palestine? Why say nothing of the Sanjaqs of Hauran and Maan to the west of which the whole of Palestine lies? Why not, if Palestine was to be described, speak of Lake Huleh, the River Jordan, the Lake of Tiberias and the Dead Sea as the eastern boundaries?
So far from the words in their grammatical and ordinary sense excluding Palestine, they do the exact opposite, and leave Palestine clearly within the area to which Arab independence was to be granted. To hold otherwise is exactly as though anyone who in a description of the South of England wished to exclude the area south of the River Thames, that is to say, the Counties of Berkshire, Surrey and Kent, in purporting to do so were to speak of the districts of Gloucester and Monmouth which are miles away from the line which it is intended to demarcate—a line moreover which is clearly defined by a natural geographical feature in the shape of a river. As Mr. Antonius states, Mr. Churchill in 1922 tried to argue that the word districts in the phrase, in Sir H. McMahon’s letter of the 24th October, 1915, “the portions of Syria lying to the west of the districts of Homs, Hama and Aleppo” was to be read as equivalent to “vilayets”, and that since the “Vilayet of Damascus” included that part of Syria—now known as TransJordan—which lay to the east of the River Jordan, it followed that that part of Syria—now known as Palestine—which lay to the west of the Jordan was one of the portions of territory reserved in Sir Henry McMahon’s phrase. As Mr. Antonius points out, on pages 177 and 178 of his book, this argument is untenable inasmuch as there was no “Vilayet of Damascus,”“Vilayet of Homs” or “Vilayet of Hama.”
The Arabic word wilayat may have been employed in the translation of Sir Henry’s letter to the Sharif, but the meaning of this is nothing more than “district” in general, and it does not necessarily import an Ottoman vilayet, which was a determined administrative unit, controlled by a Vali (hence its name), as definite as is an English county.
To say that when Sir Henry wrote of the “district of Damascus” he meant the Ottoman Vilayet of Syria is exactly as though one should be asked to believe that a reference to the district of Maidstone meant the County of Kent.
Lord Lindley, when Master of the Rolls, in the case of In re Birks, Kenyon v. Birks (1900) I Ch. p. 418 said:
“I do not know whether it is law or a canon of construction, but it is good sense to say whenever in a deed, or will, or other document, you find that a word in one part has some clear and definite meaning, then the presumption is that it is intended to mean the same thing where, when used in another part of the document, its meaning is not clear.”
The fourth paragraph of Sir Henry McMahon’s letter of the 24th October, 1915, speaks of no less than six “districts” in connection with six towns, namely Mersin, Alexandretta, Damascus, Homs, Hama and Aleppo.
Of these, there was only one, namely Aleppo, from which an Ottoman vilayet took its name, and since to the west of the Vilayet of Aleppo was the sea, that vilayet cannot have been meant. It is surely contrary to good sense, in view of these facts to pick out a second of the five remaining towns, namely Damascus, and allege that a reference to its “district” indicates the Ottoman vilayet in which it lay, a vilayet which bore the name not of Damascus, but of Syria, and which contained in it, moreover, two of the other towns, namely Homs and Hama, whose “districts” were named in Sir Henry’s letter immediately after the “district” of Damascus. Does not common sense indicate that in every case the term “district” implies the neighbourhood of the town which is named? By this interpretation alone do we arrive at a consistent explanation of the use of the words which have been employed and thus alone are we enabled to give a meaning to every word including the “Districts of Homs and Hama”.
It is to be observed, further, that the Sharif, in his letter in reply, of the 15th November, 1915, (Antonius page 421, Note I) uses the Arabic word vilayat, in speaking of Mersin and Adana, clearly in the general sense of “district” inasmuch as there was not, as he must have known, an Ottoman Vilayet of Mersin, but only a Vilayet of Adana in which the port and district of Mersin were situated.
In speaking of Mersin and Adana the Sharif, one may believe, was harking back to the mode of definition employed in his first letter of the 14th July, 1915, in which he had laid down the northern boundaries for which he asked, limited, not by administrative districts, whether Vilayets or Sanjaqs, but by a line of towns situated approximately on a particular parallel of latitude.
I therefore believe that the Sharif was using the Arab term vilayat in this letter in the sense of the environs of the towns named, not only in reference to Mersin and Adana, but also when speaking later of the two “vilayats of Aleppo and Beirut”. I base this contention on the fact, moreover, that in insisting in their inclusion in the independent Arab area he says that the two “vilayets of Aleppo and Beirut and their western Maritime coasts ... are purely Arab provinces”; while in his next letter, of 1st January, 1916, the Sharif refers to “the Northern parts and their coastal regions” and later to “Beirut and its coastal regions”.
Now, why did the Sharif explicitly refer to the “maritime coasts” and the “coastal regions”? If one is speaking, for example, of Durham, one does not speak of “the County of Durham and its maritime coasts” or of “the County of Durham and its coastal regions”. The mention of the coasts, if one is speaking of the County, is mere redundancy; but if one’s intention is to cover in one’s description only a part of that county, including some of the environs of the chief town of the same name and the adjoining sea coast, what is more natural than that one should speak of the “district of Durham and its maritime coasts” or the “district of Durham and its coastal regions” ?
A further point of great importance is this, that the only reason set out in Sir Henry McMahon’s letter for the exclusion of the portions of Syria to the west of the districts of Damascus, Homs, Hama and Aleppo, as well as of the districts of Mersin and Alexandretta, was that “they cannot be said to be purely Arab”. Now, Mersin contained a large Turkish population, as did the contiguous territories of the coastline of the Vilayet of Aleppo, in which is situated Alexandretta. The districts of Latakia, Tripoli and the Lebanon comprised large numbers of Alawis, of Druzes and of Maronites who differed in some cases in race, and in all in religion, from the majority of the Moslem Arabs of Syria, and it is of the highest significance that the portions of Syria which may be accurately described as lying to the west of the districts of Damascus, Homs, Hama and Aleppo comprised exactly these areas of Latakia and of the Lebanon and Tripoli where the minorities in question are to be found. Further, an area of which it emphatically could not be said that the population was not purely Arab was Palestine, where notwithstanding the presence of a number of Christian European institutions, at that time at least 95 per cent, of the population was Arab.
Not one single word of the worldwide importance of the Holy Land appears in the McMahon Correspondence. Freedom to act without detriment to the interests of France was the only condition precedent to recognition and support of Arab independence in any portion of the territory involved. The greater part of the small Sanjaq of Beirut is not west of the Sanjaq of Damascus and this area, containing the towns of Tyre and Sidon, was included in the area, allotted to France in the Sykes-Picot Agreement of 1916 and is to this day part of the French mandated territory. To suggest that an area of the size of Palestine and of the importance of the Holy Land, if not excluded by he fact that it did not lie west of the districts of Damascus, Homs, Hama and Aleppo, was intended to be excluded by a side wind by the reference to the interests of France which, at the very time, the British Government was refusing to admit, is an argument that will not hold water.
Sir Henry McMahon in the last paragraph of his letter to The Times of the 23rd July, 1937, which has been already quoted, concluded as follows: —
“I also had every reason to believe at the time that the fact that Palestine was not included in my pledge was well understood by King Hussein.”
Sir Henry does not state upon what grounds he bases that belief; but here, again, a court of justice, if it were concerned to interpret the meaning of the written instrument containing the offer to King Husain would not attend for one minute to what impression the person making the offer stated 22 years after that he had reason to believe the words conveyed to the person accepting the offer; it would arrive at the intention by the meaning of the words which had been made use of in the offer in the light of the words made use of in the acceptance.
The second paragraph of the Sharif Husain's third note to Sir Henry McMahon, dated the 5th November, 1915 (Antonius, p. 421), in reply to the latter’s letter of the 24th October, is of great importance in this connection. It runs as follows: —
“First, in order to facilitate and serve the cause of Islam by the removal of possible sources of hardship and tribulation, and in earnest of the great esteem in which we hold Great Britain, we no longer insist on the inclusion of the districts of Mersin and Adana in the Arab Kingdom. As for the Vilayets of Aleppo and Beirut and their western maritime coasts, these are purely Arab provinces in which the Moslem is indistinguishable from the Christian, for they are both the descendents of one forefather. And we Moslems intend in those provinces to follow the precepts laid down by the Commander of the Faithful, Umar Ibn al-Khattab (God have mercy upon him!) and the Caliphs who came after him, when he enjoined upon the Moslems to treat Christians on a footing with themselves, saying: ‘they are to enjoy the same rights and bear the same obligations as ourselves’. They will, moreover, have their denominational privileges as far as the public interest allows.”
It will be observed that once more there is no mention of the Sanjaq of Jerusalem; that the Sharif in speaking of the Vilayets of Aleppo and Beirut is clearly referring to the part of the latter Vilayet west of the districts of Damascus, Homs, Hama and Aleppo, referred to in the letter under reply, inasmuch as he protests that they are by heredity purely Arab provinces, whether the inhabitants be Christian or Moslem, and he is not contemplating the area west of the Hauran or still less that which is west of Maan which would include the Sanjaqs of Acre, Balqa and Jerusalem or, in other words, Palestine.
The fact that he explicitly undertakes to safeguard the rights of Christian Arabs is a confirmation of this, as it is natural to suppose that he has in mind the large Christian Maronite community in the Lebanon which had for years looked upon France as its protector and which was the only Christian community living in a compactly defined sphere in the whole area in question.
In reply to this, in his letter of the 14th December, 1915, Sir Henry McMahon wrote to the Sharif as follows (Antonius p. 423): —
“I was glad to find that you consent to the exclusion of the Vilayets of Mersin and Adana from the boundaries of the Arab countries ... As for the two Vilayets of Aleppo and Beirut the Government of Great Britain have fully understood your statements in that respect, and noted it with the greatest care; but as the interests of their ally, France, are involved in these two provinces, the question calls for careful consideration. We shall communicate again with you on this subject at the appropriate time.”
It will be observed that here, too, although there is an express reference to the Vilayets of Aleppo and Beirut, not one word was said by Sir Henry McMahon about the Sanjaq of Jerusalem and that the interests of France in the two provinces in question not as hitherto the fact that they are not purely Arab, are the only reason given for the exclusion of the two Vilayets. No mention is made of Palestine and no reference whatever is made to the world-wide interest in its Holy Places.
Next comes, in the Sharif Husain's fourth letter of the 1 January, 1916 (Antonius, p. 425), the following passage: —
“With regard to the northern parts and their coastal regions, we have already stated, in our previous note the utmost that it was possible for us to modify. We made these modifications solely order to achieve the ends which, Almighty God willing, we desire attain . . . On the other hand—and this Your Excellency must clearly understand—we shall deem it our duty at the earliest opportunity after the conclusion of the War to claim from you Beirut and its coastal regions, which we shall overlook for the moment on account of France . . . The proximity of the French to us would be source of difficulties and disputes such as would render the establishment of peaceful conditions impossible, to say nothing of the fact that the people of Beirut are resolutely opposed to such dismemberment ment . . .
“Thus any concession designed to give France or any other Power possession of a single square foot of territory in these parts is quite out of the question.”
Here again, there is not one word about the Holy Land, the Sarijaq pt Jerusalem or any reference with geographical intent, save to the “northern parts and their coastal regions” and to “Beirut and its coastal regions”, both of which come clearly within the area to the west of the districts of Damascus, Homs, Hama and Aleppo.
It is very significant, also, that the last paragraph which I have quoted is concerned to name France alone as a Power concession to which of any of the territory is out of the question. Precisely the same may be said of the only relevant remark in the final letter in the Correspondence. Sir Henry McMahon’s note of the 30th January, 1916 (Antonius, p. 426), runs as follows: —
“As for the northern regions we note with great satisfaction you desire ... to avoid anything that might impair the alliance between Great Britain and France.”
It seems to me that the Sharif must have been endowed with a remarkable gift of clairvoyance if he understood, from the letters in question, that the Government intended to exclude Palestine from the area whose independence it guaranteed, for every one of the four communications to the Sharif forwarded by the British Government over Sir Henry McMahon’s signature, so far from indicating that Palestine was to be excluded from the sphere of Arab independence, served to evade all suggestion that any question of Palestine was in issue, by using geographical descriptions which exactly fitted the adjoining territories, but were not apt to describe Palestine itself, and by giving as reasons for the exclusion of the territory in question none of the religious and historic grounds which were applicable to the Holy Land, but only political grounds which were applicable to the northern parts of Syria and in no case political grounds which would have been germane to the case of Palestine.
I have confined myself.to the intention which, as I contend, may without great difficulty and without stretching the meaning of words be gathered from the expressions used in the Correspondence as a whole.
The only interpretation by the Government other than that which we have heard from Your Lordship was that embodied in the White Paper of 1922 in which Mr. Churchill as Colonial Secretary stated that “the portions of Syria lying to the west of the district of Damascus”, for thus he partially quoted the definition, was regarded by His Majesty’s Government as covering the Vilayet of Beirut and the independent Sanjaq of Jerusalem, in other words all Palestine west of the Jordan.
At that time the whole Correspondence had never been published in English. Successive Governments declared that it would be contrary to the public interest so to do.
Now that it has been published by Mr. Antonius it appears to me that the Government has been compelled to shift its ground and to say that it was “inconceivable” that it was intended to include Palestine and that it must have been “regarded as automatically and obviously excluded”.
To support this contention surrounding circumstances, namely religious, historical and political considerations, are called in aid by His Majesty's Government.
I do not propose to deal with these, as members of the delegation itself are more competent to do so; but I would point out that it is only when, from the imperfection of language it is impossible to know what the intention is without enquiring further, that then it is legitimate to see what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances which the person using them had in view (per Lord Blackburn. River Wear Commissioners v. Adamson (1877) 2 A.C. at page 763). In my contention the grammatical and ordinary sense of the words used in the Correspondence lead to no absurdity and no inconsistency, and for that reason it is not necessary, indeed it is not legitimate, to consider any surrounding circumstances in order to modify their meaning. I submit that it is only when the language is ambiguous that it may be controlled by surrounding circumstances or explained by other documents, and that in the absence of such ambiguity no subsequent statement written or verbal can have any effect on the construction of the Correspondence. (Per Wightman J. in Lewis V. Nicholson (1852) 18 Q.B. at page 512.)
I would point out also that there is always some presumption in favour of the more simple and literal interpretation of the words of a written instrument. (Caledonian Railway and North British Railway (1881) 6 A.C. at page 121 per Selborne L.C.)
Finally, may I say that His Majesty’s Government has changed its ground of defence more than once in the history of this controversy. In 1922 it relied solely on the allegation that the whole of Palestine west of the Jordan was excluded from Sir Henry McMahon’s pledge by the reservation of the portions of Syria lying west of the district of Damascus. Judging from pages 19 and 20 of the Report of the Royal Commission* it appears in giving evidence before that body to have relied on the claims of France in respect of her alleged interests in the area in question. The present line of defence of His Majesty’s Government, that Palestine must have been regarded as automatically and obviously excluded sub silentio from the area involved, which is incompatible with the other two arguments, has never been brought forward publicly before and if it was put before the Royal Commission when sitting in camera it was deemed of so little value that they omitted all reference to it in their Report.
* Cmd. 5479, 1937.