No. 487.
Mr. Vidal to Mr. Hunter.
At Tripoli of Barbary , February 25, 1873.
Sir: I concluded my last dispatch with a promise to examine the value to the United States of the treaties made with this regency. For that purpose I must first show what is the main distinction between the treaties made with Tripoli and the capitulations between Christian governments and the Porte.
The general rule in Constantinople and the other provinces of the Ottoman Empire is that whenever a Frank stands as defendant or accused in a civil lawsuit or a criminal prosecution with an Ottoman subject as plaintiff or prosecutor, the lex loci is to be applied and his case to be tried by the Turkish courts of justice. When I thus make a general statement I am well aware that the United States give quite a different interpretation to Article IV of the treaty of 1831 with the Porte, but as their pretention is considered, though erroneously, by the Turkish government as an exceptional and unfounded one, I will set it aside for the present and allude to the general rule only.
In Tripoli, on the contrary, Franks, when sued for debts by Turks or Moors, or prosecuted for wounding or killing an Ottoman subject, enjoy the privilege of having their case tried by their respective consuls, and that privilege is secured to them, as it is candidly believed and unanimously alleged, by treaties. In the existence of that franchise we find one of the main causes of the anxiety of the Turkish government to see those treaties nullified, while for that same motive, as well as others of a political character, European governments have so generally objected to consider them as obsolete in spite of the change effected in 1835.
Well, extraordinary as it may seem, there is not in any of the treaties made by Christian governments with the old Bashaws of this regency [Page 1158] one single article securing to Franks in this country such a peculiar privilege.
Though my residence in Tripoli began more than thirty months ago I could not yet succeed in getting a copy of all the treaties made by European governments with the regency. All my colleagues here and their employés were born and brought up among Arabs, or Turks, and they share of course many of the characteristics which distinguish a Mohammedan from a European functionary, and the most peculiar of which is a marked aversion to impart to others any kind of positive information. The unconscious foundation for that general dislike is probably that knowledge being power there is no wisdom in giving to a man information which he may eventually use against the informer himself. Be that as it may, it is only through perseverance that I succeeded at last in getting copies of the treaties made by France and Great Britain with this regency. But those two documents were sufficient for my purpose. The extraordinary privilege enjoyed by Franks in Tripoli being supposed, in a vagne manner, to be derived by a treaty made by one or the other of those two European powers, it may be seen by referring to inclosure No. 1 that those pretensions are quite unfounded, that the Ottoman government, in laboring so long to have those obnoxious treaties removed from the way of their courts of justice, have been all the time fighting against windmills, and that the British, French, and Italian governments, when consenting at last to sign the recent convention I alluded to in my last dispatch, have in reality signed away no legitimate right. They have reluctantly and with ill grace abandoned what was in fact a usurped privilege.
How did such an abuse come to be so firmly rooted in the relations between consuls and Osmanli officials? I cannot explain unless it were that, in 1835, when the Ottomans took possession of the Regency, all the papers in the seraglio were destroyed and the consuls had then a fair field for their most unfounded and abnormal pretensions in their official dealings with the new comers. However, after a practice of 38 years, those privileges enjoyed by Franks in this country are candidly held by all, consuls and European residents, Osmanli, pashas, judges, and Moorish people, as a de jure right as well as a de facto prerogative. There was, therefore, a general wail among the European inhabitants of the country when the news came recently that France, Great Britain, and Italy, had agreed to consider as obsolete their old treaties with this Regency. But now that this usurpation has been given up by the three powers most in position to prop it up, I am inclined to think that the other European governments will not long continue to fight for its maintenance.
I will respectfully express the opinion that it would be better policy for the United States not to imitate the example just set by France, Great Britain, and Italy. Not that I would advise the Department to maintain the old treaties with Tripoli for the sole sake of the abuse which has sprouted under their shade. That would not be an honorable course, and besides Article IV of our treaty of 1831 with the Porte, with the construction we give it, is as advantageous to the United States as can be the abusive practice which has by degrees come to take root in the official relations between Franks and Moors at Tripoli. But my desire to see those treaties kept alive springs from a political consideration.
There are no American citizens in this Regency, and it matters little to [Page 1159] us by whom are to be tried those foreigners who strike or kill a Moor, but such eventualities may take place in the course of years, when it would be a positive advantage to the American nation to insist that this Regency is no integral part of the Ottoman Empire. The signers of the treaty of Paris guaranteed the integrity of that empire, but in 1856 they all considered this Regency no part of Turkey proper, and were still maintaining the old treaties with Tripoli. The United States could go to war to-morrow with this Regency without fairly opening the door to the armed intervention of those European powers. To that and many other considerations I will say that the United States Government can gain nothing by abandoning those treaties, loses nothing by maintaining them, and might one day be sorry for having canceled them. And now comes the question: Can we honorably and consistently maintain them? The British, French, and Italian diplomatists who have so long exerted themselves in their behalf will answer no, of course, but the Department is aware that it is no part of those gentlemen’s professions to consider consistency. * * * * *
It is argued, for instance, that, Turkey having conquered Tripoli in 1835, all the treaties between the latter and foreign powers come naturally to an end, as was the case when the French conquered Algiers, the Prussians Hanover, the Germans Alsace-Lorraine, the Italians the Two Sicilies, &c. In reply to that statement, I will prove that the regencies, being under the suzerainty of the Ottoman Padishah at the very time they were, with his consent, treating with Christian powers, he could not conquer them, as they were at all times his own.
Secondly, I will show that, even had the Padishah’s forces conquered Tripoli in 1835, the similitude between the case of that Regency and the other conquered countries, such as Algiers, Hanover, &c., is quite an erroneous one.
I. To the proofs in support of my first assertion, which are contained in my dispatch No. 35, I will to-day add the following ones:
1. In their treaties with Christian nations the Constantinople Sultans invariably referred to the Barbary States as belonging to them, and the Christian contracting parties to those treaties willingly accepted as right the assumption of that Ottoman suzerainty. To prove it I will cite (inclosure No. 2) Articles 11 and 81 of the treaty of 1740 between France and the Porte.
In the course of the first quarter of the sixteenth century a number of Frenchmen from Marseilles obtained from Sultan Selim Khan I a grant of the land bordering on the Gulf of Stora, on either side of the boundary-line between Algiers and Tunis, and on that grant they founded a colony which, after a long succession of good luck and bad fortune, became very well known under the name of concessions d’Afrique, with the Bastion de France as the chief seat of the colonial government. The ruling authorities at Algiers and Tunis never uttered a word against the assumption of the power exercised in that case by the Constantinople Sultan. Far from it, both Algiers and Tunis ratified those grants by several treaties with France, among which I will mention those of 1604 and 1820 with Algiers, and that of 1742 with Tunis, (inclosure No. 3.)
2. Nor can we wonder that it should be so, when we bear in mind that all the treaties known as capitulations between the Porte and the Franks were admitted by the rulers of the regencies to be binding on them too, (inclosure No. 4.)
3. I stated in my last dispatch that, in 1832, the Bashaw of Tripoli, though called to the throne by his own father, was not recognized by [Page 1160] the representatives of foreign powers until he received the firman of investiture from the Grand Seignior. In 1835, while that same Bashaw was besieged in this city by the partisans of his nephew, I’Mohammed, an Ottoman vizier was once more dispatched from Constantinople, with instructions to put under arrest the leaders of both factions, send them to Constantinople, and take in hand the administration of the regency in behalf of the Sultan. The scheme succeeded most easily, and though the whole population was in arms, having just fought for three long years, these for Ali Bashaw and those for the pretender, I’Mohammed, there was not one single shot fired against the new ruler sent from across the seas to dispossess a family that had reigned over the country for nearly two centuries; for all admitted that there could be contention between the respective followers of the two would-be lieutenants of the Sultan, but implicit submission was due to the will of the master himself.
4. In the month of December, 1832, when Mohammed Ali Pasha, Vice-King of Egypt, received the first news of the splendid victory obtained by his son, Ibrahim Pasha, who had just routed and destroyed, at Konia, the Ottoman army commanded by Seraskier Reschid Pasha, the exulting old man declared to the French agent, who was urging him to come to terms of peace with his sovereign, that he would not be satisfied with the cession of the four pashaliks of Syria and the district of Adana, but would like besides to be put, in his relations with the Porte, on the same footing as the Algerine Deys of old, which could not mean, of course, absolute independence.
5. Speaking of those Algerine princes, when the French took possession of their capital, in the month of July, 1830, Sultan Mahmoud sent over his kapoudan, Pasha Tahis, to Hussein Pasha, the reigning Dey, to urge him to make amends to France; but the French, bent on conquering the regency, did not allow the Ottoman dignitary to land at Algiers. Subsequently Reschid Bey Effendi was sent as embassador to Paris to protest, in the name of the Ottoman sovereign, against the conquest of Algiers.
6. In 1836 the French government, fearing lest the purpose of a naval expedition just from Constantinople might be to bring to the Bey of Tunis the Sultan’s firman of investiture for the Beylik of Constantine, of which they meditated to take possession, dispatched a squadron commanded by Rear-Admiral Hagon to watch the movements of the kapoudan, and prevent him from communicating with Tunis. The same maneuver was repeated on both sides in the month of July, 1837, and this time Rear-Admirals Gallois and Calande, commanders of the French squadrons, went to cast anchor under the very guns of La Goulette, (a fort commanding the entrance to the port of Tunis,) to make assurance doubly sure that the Ottoman fleet could have no communication with the Bey, a conclusive proof that the French acknowledged the right of the Sultan to give Constantine to whom he pleased.
7. During the Crimean war, while the English and French were pelting the Osmanli Sultan à quis mieux mieux, the latter thought the opportunity too good to be lost to assert his right of suzerainty over Tunis, and in consequence he declared that he would require from the Bey of that Regency, as from a dutiful vassal, an army of 10,000 men. In vain did the ministers of the allied powers remonstrate with him that the time was very inopportune to agitate that question of suzerainty over a distant African country, when his very empire was at stake. The Grand Seignior, not unlike a woman who, while she is sinking in a deep river, would rely on her husband to save her, and have on her part no other anxiety but to rescue her trinkets, would give no heed to the [Page 1161] wise and earnest advices of the friendly governments. The utmost the latter could obtain from him was to reduce the number of the Tunisian soldiers required by him from 10,000 to 2,000. Those 2,000 men had accordingly to be contributed by the Bey of Tunis. They never went farther than Constantinople, where they were garrisoned during the whole war, doing police duty, for neither Lord Raglan nor Marshal Canrobert would have tolerated in their camps the presence of those improvised troopers. But the mere fact that they were sent by the unwilling Bey proved that Tunis was yet, as Algiers was in former times, and as Tripoli in all times has been, one of the Sultan’s possessions.
8. I might lengthen this dispatch much beyond reasonable bounds were I to give all the proofs I have gathered that the regencies were under the suzerainty of the Constantinople sovereign. I will produce one more fact only. In the treaty of 1740, between France and the Porte, I find (article 11) very bitter complaints against the Algerines. By that article the French are authorized to refuse them admittance to their ports; orders were given the Algerines to set at liberty all the French slaves they had in their power, and the treaty promised that, should those orders be not obeyed, the Ottoman Majesty would dismiss from office the Beg-ler-bey ruling in Algiers—a promise the Sultan could not have made had not the Dey been one of the functionaries of his government. I must here make the remark that the title of Beg-ler-bey corresponds to that of a second-class pasha.
Such are, among many others, a few proofs that for the last two centuries the Barbaresque regencies belonged to the Ottoman Padishahs, and that in 1835 Sultan Mahmoud could not conquer Tripoli for the simple reason that it was already his own, had never rebelled against him, and no foreign nation ever disputed his title of sovereignty—quite the reverse. There was, I repeat, no conquest made here in 1835; simply the suzerain, being unsatisfied with his lieutenant ruling in Tripoli in his behalf, sent over another one from Constantinople, had the former one arrested, and introduced considerable changes in the home government of the Regency.
But it may seem strange, and quite against the rules, that the Sultan’s lieutenants, governing the regencies in his behalf, could enter into treaties with other governments, and have wars with foreign nations, without necessarily involving the other empire over which that Sultan reigned in their wars. To that I will answer, that there are many such cases in past and present history. For instance, Charles V, Emperor of Germany and King of Spain; Augustus, Elector of Saxony and King of Poland; James I, King of Scotland and of England; William III, Stadhoeder of the Netherlands and King of Great Britain; George I, King of Hanover and of Great Britian; the Hapsburgs of the last century, Kings of Hungary and Bohemia and Emperors of Germany; the actual King of the Netherlands, Grand-Duke of Luxembourg, the King of Prussia in 1848, at the same time suzerain of the Swiss canton of Neuf-chãtel—all those sovereigns could, through their lieutenants, have sustained a war in one of their possessions without necessarily involving the other country over which they reigned in that war.
That such was the fact in regard to Tripoli, I will shortly prove in the most conclusive manner by what took place in this city seventeen years after the alleged conquest of Tripoli. But supposing the political relations between the regencies and the Emperor of Constantinople were on a footing irregular and quite anomalous, we have to deal with facts and not with theories. History, and in particular Ottoman history, even at this present time, teems with anomalies of the kind, and it is [Page 1162] not the duty of a diplomatist to attempt to reconcile stubborn facts with his notions of political architecture.
The best proof of that, as far as the regencies are concerned—such was the view taken by foreign powers and Turkey itself—we find in the fact that the moment the Vizier, sent in 1835 from Constantinople, assumed the ruling authority in Tripoli in the name of his master, he was recognized as such by the representatives of all foreign powers; while three years before, when Youssouf Pasha abdicated the Crown in favor of his son Ali, those same gentlemen declined to call on the new ruler, giving as a reason that they wanted to receive instructions from their governments ere they would pay Ali Bashaw a visit, which might be considered as an acknowledgment of his right to rule over the country.
On the other hand, neither in 1835 nor since have the Osmanli Viziers ever given foreign powers any official notice in regard to their alleged conquest of Tripoli, as they should not have failed to do if they had conquered that country, with which so many nations had entered into treaties.
It was from the first understood on all sides that the Ottoman Sultan had a perfect right to change at his will the home administration of the Regency, but could not at his pleasure modify the political relations established, with his knowledge and tacit consent, by virtue of treaties between foreign powers and the lieutenants he had appointed to rule over that Regency.
II. But I pass to the hypothesis that the Ottoman sovereign really effected a conquest in 1835 when he took possession of Tripoli; now comes another theory: I pretend that that sovereign would not for all that have a right to ignore the treaties between this country and other nations.
The political status of Mahommedan governments in all the countries bordering on the Mediterranean Sea is very different from that of Christian states, at least as far as regards the former’s diplomatic relations with civilized nations. While the latter constitute one family, a concert, as the French have it, governed by certain laws and enjoying certain privileges, the Moslems who took possession of the fairest provinces of the Roman empire were not till quite lately admitted into that family; they were considered as without the pale of the European concert, as though they were yet in a state of war with Christian nations. For that reason they never made treaties with the latter, but capitulations and armistices.
“There have commonly been,” said Vattel, “instead of peace, armistices only, of long years, between Christians and Turks; sometimes on account of a wrong spirit of religion; some other times, because neither the former nor the latter would recognize each other reciprocally, as the legitimate masters of their respective possessions.” (Droit des gens, Livre iii, ch. xvi, § 236.)
I would respectfully refer the Department on the same subject to Marten’s précis du droit des gens moderne de l’Europe, tome ii, § 293; Klüber’s, ditto, § 277, 278; Wheaton’s Elements of International Right, tome ii, § 19.
“Of course,” continues Vattell, “the belligerents are allowed to go and come, the ones to and from the places of the others, during the armistice, the more so if the latter is to last a considerable time, just as the same is allowed in time of peace, for hostilities are suspended. (Livre iii, ch. xvi, § 257.)
The political relations between Christians and Mohammedans were precisely of that nature. The followers of Christ and the Sons of Islam [Page 1163] were reciprocally considered as at all times at war, the ones with the others, and their time of practical peace was only a truce of long duration. It matters but little in this respect, when we apply that principle to Tripoli, whether the Bashaws of that Regency, who made with Christians those armistices mistakingly named treaties, were independent or lieutenants only of the Sultan, for “a general truce cannot be concluded and effected but by the sovereign himself, or by one to whom he has expressly given that power. * * * * * Such an extensive power behooves only the governor or vice-king of a distant country for the states which he governs.” (Vattell, livre iii; ch. xvi, § 237.)
By virtue of those armistices Mohammedans were suffered to remain in certain provinces of Europe, Asia, and Northern Africa, but on very stringent conditions. They had, for instance, to recognize to every Frank in those countries the right of exterritoriality, though the same right was never granted to any of their respective subjects—their embassadors only excepted—in Christian states. European consuls have exclusive jurisdiction over their subjects in Moslem possessions; they can import all they want for their own use or their families’ without paying duty, and, more than all that, they can take away a number of the subjects of the sovereign near whom they are accredited, from his authority, without his leave, and though those subjects should remain in the country. (Inclosure No. 5.)
All these prerogatives which were not reciprocated in favor of Moslems in Christian countries were not privileges granted by Mussulman sovereigns, but rights wrenched from the latter, most of the time at the conclusion of a successful war, and which, to a certain extent, gave Franks in the Levant a kind of co-sovereignty over the land. Those Eastern and Barbaresque provinces were, as it were, neutral ground, the battlefield on which both contending populations could live, each in the enjoyment of certain rights, and both parties by virtue of an armistice, and that arrangement took place, as Vattell has it, because neither party would recognize the other as the legitimate master of those countries.
And now, if both Christian and Moslem populations are in these states in the condition of two belligerent armies during an armistice, can it not be said with truth that any revolution or change of generalship which may take place in the one camp does not affect at all the rights secured by the other party by the truce? If, in 1733, the young Persian general, Nadiz-Kouli-Beck-Efchar, who was then so gloriously warring against the Ottomans, had succeeded in taking possession of Constantinople, as it was his intention, would the governments of Europe have considered all their capitulations with the Porte as without force from the moment of the conquest, and their rights secured by those capitulations as at an end? Of course not.
But instead of indulging in comparisons and suppositions which may persuade, but will prove nothing, it is better to resort to facts.
- 1.
- Here we are, 38 years after the alleged conquest of Tripoli by the Porte, and the treaties made by all Christian powers with that Regency are yet in force.
- 2.
- It is generally understood that the capitulations made between the Porte and other governments are to be applied to all the powers of the Ottoman Empire; but so far Tripoli has been excluded from the application of those treaties.
- 3.
- We could say the same in regard to the provisions of the protocol relative to the possession of real estate in the empire by foreigners. The latter, when their respective governments have signed the protocol, “in whatever part of the empire they may be, are authorized to submit spontaneously their suits to the parish councils or to the tribunals of [Page 1164] the caazā, without the assistance of their consuls.” But, though the British, the French, and other governments have already acceded to that protocol, no Frank in this Regency has yet enjoyed the aforesaid prerogative.
- 4.
- If this regency were really after 1835 in the same political condition as Hanover, Algiers, and other conquered countries as regards the treaties made with other nations, how is it that to put an end to those treaties it is necessary to obtain the consent of the Christian parties to them? (See the convention of 1871 between the Porte and Great Britain, and the recent one on the same subject between the Ottoman government and France, Great Britain, and Italy.)
- 5.
- In 1852, therefore, 17 years after the alleged conquest of Tripoli, it was the pretension of the French that they could go to war with Tripoli without breaking their peace with the Porte. I refer, as a proof of that important statement, to inclosure No. 6, which is a copy of a letter-circular addressed to his colleagues by the French consul-general here, to convey to them the information that the French squadron was prepared to fire into the Tripolitan vessels, but intended to respect the Ottoman ships in the port, thus making the great distinction between Tripoli and the Porte.
III. I find it not a little significative that the Porte, which, before 1835, was in every treaty mentioning the Regency of Tripoli as one of the Sultan’s possessions when no one doubted that fact, should now studiously abstain from alluding to that country as being one of the imperial provinces. See, for instance, the last treaty made by the United States with the Porte. “The present treaty,” it is said in Article XX, “shall receive its execution in all and every one of the provinces of the Ottoman Empire; that is to say, in all the possessions of His Imperial Majesty the Sultan situated in Europe or in Asia, in Egypt, and in the other parts of Africa belonging to the Sublime Porte, in Servia, and in the united principalities of Moldavia and Wallachia.”
Why, instead of the twelve words which come in that article next after the mention of Egypt, did they not simply insert the two words, Tunisia and Tripolitania? It was because the Ottoman statesmen knew that the American plenipotentiaries would not accept a clause so explicit; but yet the former hoped, by means of an obscure circumlocution of twelve words, to be able to open the door to favorable eventualities; and it was with a real Osmanli cunning that they caused the following article (XXI) to be inserted, intending to use it as a trap. In that article, while the disguise of purpose was all on their side, they succeeded in throwing on the American side a certain amount of suspicion of habitual chicanery by stating that “the Government of the United States of America does not pretend, by any article in the present treaty, to stipulate for more than the plain and fair construction of the terms employed.”
Such a reserve seems to me as tantamount to a special promise exacted from the United States Government that it would act honestly in the matter. All those American citizens who have at heart the good name of their Government, will, I think, maintain that without incurring the reproach of unfairness the United States can very well, if they please, postpone till the end of the present century, or even to a remoter period, the renunciation to treaties which France, Great Britain, and Italy have renounced to, 38 years only after the alleged conquest of Tripoli, and so long as those treaties are in force we may consistently continue to consider this Regency as being truly under the suzerainty of the Ottoman Emperor, but not belonging to the Sublime Porte.
[Page 1165]Please to accept, sir, the assurance of the distinguished consideration with which I am, &c.,