Heretofore foreigners have been excluded from the right of holding real
estate in their own names in Turkey. They could only acquire such
property through a Mussulman agent, who became the nominal proprietor,
and in whose name exclusively could suits be instituted or defended in
the Ottoman tribunals. This title was exceedingly precarious, the
instances being not rare of the assertion of the real ownership by the
merely representative proprietor. Although the Turkish tribunals, on
principles of equity, occasionally consented for the ends of justice to
respect the interest of the bona fide owner, they
were under no legal obligations so to do.
To avoid the litigation growing out of such a factitious title to real
property, and to give foreigners the right to acquire and. hold the same
in their own names, the present law has been devised. It involves
certain conditions of acceptance, which, however objectionable they are,
seem to be indispensable to such a concession. As real estate owners,
foreigners are to be assimilated in every respect to the condition of
Ottoman subjects. Judicial questions respecting their property are to be
decided by the Turkish courts, and the land to be subjected to the same
taxes and charges which are imposed on Ottoman subjects. The person and
domicile, however, of the foreigner, will continue to enjoy the
immunities guaranteed by the capitulations and treaties. With the latter
exception the foreign land-holder under this law will pro tanto denationalize himself.
It is to be regretted that the venality and incapacity of Turkish courts
of justice is such as to render them generally unreliable as guardians
of private rights. Until the judicial administration undergoes a radical
reform, but few foreigners will be induced to avail themselves of the
provisions of this law of property, and it will fail of its intended
effects in promoting European emigration into Turkey and in developing
the resources of the empire. Foreigners who consent to hold real estate
on the terms prescribed will know the risks they incur, and they cannot
blame their respective governments for the consequences resulting from
their own voluntary action.
The provision for executing foreign decrees against the property of a
non-native owner, without the formality of any action in an Ottoman
court, and that rendering liable such estates to the satisfaction of
their owner’s debts in the event of his bankruptcy, are liberal and
just. The whole law bears evidence of careful preparation, and it only
needs an honest and enlightened judiciary to commend it to general
acceptance.
I respectfully solicit instructions as to my course of action on this
law. Should the department leave the question of adhesion to me, I shall
be guided in a great degree by the views which my colleagues of the
diplomatic corps shall adopt, and I will co-operate with them to secure
such modifications as may seem necessary to render this measure
effective for the ends for which it was framed and for the protection of
Christian interests.
[Translation.]
Fuad Pacha to Mr. Morris
Sublime Porte, Bureau of Foreign
Affairs,
June 18, 1867.
Sir: I have the honor to communicate to
you, enclosed, a law clothed with the imperial sanction, granting to
foreigners the right of property in real estate in the Ottoman
empire.
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The imperial government, in abolishing all distinction between
Ottoman subjects and foreigners in the holding of real property in
Turkey, has sought to give a larger development to the public
prosperity, and to render more productive the relations of Turkey
with other-countries. The realization of this aim must contribute to
their reciprocal advantage.
For the reason, however, that the accession of strangers to the right
of property is destined to favor and facilitate their establishment
in the Ottoman territory, the Sublime Porte has-been obliged to
occupy its attention with the probable consequences of this new
situation, in view of the particular regime enjoyed by foreigners
under the provisions of the ancient treaties. It should, in fine,
consider and regulate the practical conditions for the exercise of
the right of property by foreigners, for the purpose of preventing
the difficulties and misapprehensions to which the application of
this new law may give rise.
It is in this spirit of precaution and solicitude that I have the
honor to submit to you the draft of the protocol enclosed, which
will form an international agreement between the imperial government
and the friendly powers, and the acceptance of which will secure to
their respective subjects the immediate enjoyment of the right of
real property, as provided for by the law in question.
This protocol will remain open for the reception of the successive
adhesions of the friendly powers who desire that their subjects
shall profit by the advantages of the new law.
In submitting to you this communication I do not hesitate in
expressing the conviction that the government of the United States
of America will appreciate the views of public policy and the
liberal sentiments which have inspired the imperial government in
this important; measure, and that it will willingly give its
adherence to the particular provisions which are-its indispensable
sequence.
I beg you, sir, to accept the assurance of my perfect
consideration.
Hon. E. J. Morris,
Minister Resident United States of
America.
Law granting to foreigners the right of holding
real proporty in the Ottoman empire.
With the view of developing the prosperity of the country, putting an
end to the difficulties, abuses, and uncertainties which arise out
of the exercise of the rights of property by foreigners in the
Ottoman empire, and completing, by a precise regulation, the
guarantees due to financial interests and administrative action, the
following legislative enactments have been decreed by order of his
Imperial Majesty the Sultan:
Art. 1. Foreigners are admitted, by the
same title as Ottoman subjects and without any other condition, to
the enjoyment of the right of possessing real property in town or
country in any part of the Ottoman empire, except the province of
Hedjaz, on submitting to the laws and regulations which bind Ottoman
subjects themselves, as hereinafter provided.
This enactment does not concern Ottoman subjects by birth who have
changed their nationality, to whom a special law will apply.
Art. 2. Foreigners who are owners of real
property, urban or rural, are consequently assimilated to Ottoman
subjects in everything which concerns such real property.
The legal effect of this assimilation is: 1st. To oblige them to
conform to all police or municipal laws or regulations which do now
or shall hereafter affect the enjoyment, transmission, alienation,
and mortgaging of lands. 2d. To pay all charges and contributions,
of whatever form or denomination, to which real property in town or
country is or shall hereafter be made liable. 3d. To render them
directly subject to the jurisdiction of the Ottoman civil tribunals
in every dispute relating to landed property and real actions of
every kind, whether as plaintiffs or as defendants, even when both
parties are foreign subjects, in every respect by the same title and
under the same conditions and the same forms as Ottoman owners, and
without their being entitled in such cases to any advantage on
account of their personal nationality, but with the reservation of
the immunities attaching to their persons and their moveable effects
under the terms of the treaties.
Art. 3. In case of the insolvency of an
owner of real property, the assignees under his insolvency shall
apply to the proper authority and the Ottoman civil courts for an
order for the sale of such of the insolvent’s real possessions as
are, according to their nature and the law, liable to the owner’s
debts.
The same course shall be taken when a foreigner obtains from any
foreign court a judgment against another foreigner, being an owner
of real property. For the execution of such judgment upon the real
estate of his debtor, he shall apply to the competent Ottoman
authority for an order for the sale of the property liable to the
owner’s debts, and the judgment shall not be executed by the
authorities and the Ottoman tribunals until they have satisfied
themselves that the property proposed to be sold really belongs to
the category of those possessions which can be sold to pay the
owner’s debts.
Art. 4. A foreign subject shall have the
power of disposing by gift or will of such real possessions as the
law allows to be disposed of under that form. With respect to such
real estate as he shall not have disposed of, or which the law does
not permit him to dispose of by gift or will, the succession thereto
will be regulated by the Ottoman law.
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Art. 5. Every foreign subject shall enjoy
the benefit of the present law as soon as the power whose subject he
is shall have assented to the arrangements proposed by the Sublime
Porte for the exercise of the right of property.
Constantinople, 7 Sepher, 1284, (June 18, 1857.)
Protocol.
The law which grants foreigners the right of holding real property
does not infringe on any of the immunities secured by treaties and
which will continue to cover the person and movable effects of
foreigners who become owners of realty.
As the exercise of this right of property ought to induce foreigners
to settle in greater numbers in the Ottoman territory, the imperial
government feels it its duty to anticipate and provide for the
difficulties to which the application of the law might give rise in
certain localities. Such is the object of the arrangements which
follow.
The dwelling of every person living on Ottoman soil being inviolable,
and no one being allowed to enter therein without the consent of the
master, unless in virtue of orders emanating from a competent
authority and in the presence of the magistrate or functionary
invested with the necessary powers, the dwelling of a foreign
subject is equally inviolable, conformably with the treaties; and no
peace officer can enter except in the presence of the consul or the
delegate of the consul of the power to which such foreigner is a
subject.
By “dwelling” is understood a house of residence and its
appurtenances; that is to say, the offices, courts, gardens, and
contiguous enclosures, to the exclusion of every other part of the
property.
In localities distant less than nine hours from the consular
residence, the peace officer cannot enter a foreigner’s dwelling
without the assistance of the consul, as stated above. The consul,
on his side, is expected to lend his immediate assistance to the
local authority, so that there shall not elapse more than six hours
between the time when notice is given to him and the departure of
himself or his delegate, in order that the action of the authorities
may never be suspended for more than 24 hours.
In localities distant nine hours’ journey or more from the residence
of the consular agent, the peace officers can, on the requisition of
the local authority and in the presence of three members of the
council of elders of the commune, enter the dwelling of a foreign
subject without the presence of the consular agent, but only in case
of urgency and to make investigations respecting crimes of murder,
attempted murder, arson, robbery with violence, burglary, armed
rebellion, base coining, and this whether the crime was committed by
a foreign subject or by an Ottoman subject, and whether it took
place in the foreigner’s dwelling, or outside it, or in any other
place.
These regulations are applicable only to the parts of the property
which constitute the dwelling as defined above. Outside the dwelling
the police shall have free and unrestricted action; but when a
person accused of a crime or misdemeanor is arrested, and such
person is a foreign subject, the immunity attaching to his person
shall be observed.
The functionary or officer employed to make the domiciliary visit
under the exceptional circumstances above described, and the members
of the council of elders who assist, are required to prepare a procès verbal of the domiciliary visit and to
communicate it immediately to the superior authority under which
they act, who shall transmit it without delay to the nearest
consular agent.
A special order will be promulgated by the Sublime Porte regulating
the manner in which the local police are to act in the different
cases above mentioned.
In localities distant more than nine hours from the residence of the
consular agent, and where the law of the judicial organization of
vilaets is in force, foreign subjects shall be judged, without the
assistance of the consular agent, by the council of elders
discharging the functions of justices of the peace, and by the
tribunal of the caza, in disputes involving
sums not exceeding a thousand piastres, or condemnation in a fine of
not more than 500 piastres.
Foreign subjects will have in every case the right of appealing to
the tribunal of the sandjak from sentences so
passed; and the appeal shall be heard and decided with the
assistance of the consul, in conformity with the treaties.
An appeal shall always suspend execution.
In no case shall the forcible execution of sentences pronounced under
the conditions above specified take place except in the presence of
the consul or his delegate.
The imperial government will issue a law determining the rules of
procedure to be observed by the parties in the application of the
preceding provisions.
Foreign subjects in any locality are authorized to put themselves
voluntarily under the jurisdiction of the council of elders or the
courts of the cazas, without the consul’s
assistance, in disputes within the jurisdiction of those councils or
courts, saving the right of appeal to the sandjak, which appeal shall be heard and judged with the
assistance of the consul or his delegate. The foreign subject’s
consent to have his cause tried without the assistance of the consul
ought in every case to be given in writing, and before any
proceedings are taken in the cause.
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It is to be well understood that none of these restrictions relate to
processes or to questions affecting real property, which will be
tried and decided according to the conditions established by the
law.
The right of defence and publicity of trial are assured in every case
to foreigners who appear before Ottoman tribunals as well as to
Ottoman subjects.
The preceding arrangements will remain in force until the revision of
the old treaties, a revision respecting which the Sublime Porte will
hereafter endeavor to bring about an understanding between itself
and the friendly powers.
