No. 420.
Mr. Wallace to Mr. Frelinghuysen.

No. 337.]

Sir: I have the honor to transmit, for your information, a copy and translation of a communication received last night from his highness, the minister of foreign affairs, in reply to the portion of my note to the grand vizier, No. 201, pertaining to the demand in the case of Dr. Maurice Pflaum.

With my previous dispatches upon this subject on the files of the Department, and of easy reference, it is hardly necessary to particularly notice the points the worthy minister is pleased to dwell upon in the communication now transmitted. To one sentence, however, I beg permission to call your attention. Referring to Dr. Pflaum’s alleged battery of a sergeant and corporal, his highness says:

This act falling within the purview of the law, the judicial authorities have necessarily to take hold of it, all the more that the Imperial Government cannot abandon the position it has always maintained in affirmance of the competency of the Ottoman courts in criminal causes. The meaning is very plain. It is a declaration of the intent of the Sublime Porte to give effect to its pretension with respect to Article IV of the treaty of 1830. Thus understood it is for the President to decide whether our view of that article is to be maintained or not.

[Page 545]

Another point put forward by his highness is equally worthy of consideration. It will be observed he defends the assumption of the court at Axos to hear and condemn Dr. Pflaum in a criminal prosecution, there being no consular delegate present. This is done at the expense of the plain meaning of paragraph 10 of the protocol of 1874, concerning the right of foreigners to own real estate in Turkey. The “nine hours” provision, as it there appears, gives jurisdiction to the native tribunals for the trial of foreigners without the assistance of a consular delegate within limitations: first, for for actions (civil) not exceeding 1,000 piasters; and, second, for offenses (criminal) entailing a maximum fine of 500 piasters. Unfortunately Dr. Pflaum’s sentence was imprisonment. To make the usurpation, of the authorities of Axos still more glaring, they exec a ted the judgment in violation of paragraph 13 of the same protocol, which says:

In all cases the forcible execution of the judgments, issued on the conditions determined heretofore (§10), shall not take place without the co-operation of the consul or of his delegate.

The authorities imprisoned Dr. Pflaum without such co-operation, in fact, against the protest of the American consul.

These two clauses as always heretofore interpreted have formed most important defenses for Christians remotely resident from their consuls, and I am sure you will agree with me that good policy requires their steady maintenance against the assumptions put forth by his highness, the minister of foreign affairs.

My reply to his highness is inclosed by copy.

Very respectfully, &c.,

[Inclosure 1 in No. 337.—Translation.]

Aarifi Pasha to Mr. Wallace.

Monsieur l’Envoyé: With my note of the 30th of September last, No. 722, 62, 32, I had the honor to inform your excellency that the question of Dr. Pflaum, an American citizen, had been submitted to the appreciation of the ministry of justice.

The answer of that department has arrived at the Sublime Porte, which has thought necessary to make it the object of a new examination.

The facts as disclosed by the inquiry to which it had been proceeded on the spot have been confined in the note of my department dated the 14th of August, No. 717, 14, 27. They establish to the evidence the wrongs of Dr. Pflaum, who, not being satisfied by having insulted the director of the tithes, ill-treated and beat a sergeant and a corporal, wounding also the latter, while they were in the discharge of their duties. This act falling under the thumb of the law, the judicial authority had to take it up, so much the more that the Imperial Government cannot abandon the point of view to which it has always placed itself to affirm the competency of the Ottoman tribunals in penal matters.

If, however, the court of Axos has tried Dr. Pflaum in the absence of a consular delegate, the reason of this is that no consulate was to be found in the vicinity, that is to say, within a distance of nine hours from the place where the acts laid to his charge took place—a circumstance that, in conformity with the dispositions of the protocol annexed to the law of the 7th September, 1284, gives within some limits to the local authorities the right to have a foreigner tried without the assistance of the consular delegate. It is true also that the protocol appealed to does not grant the right of trial without any consular assistance except in cases where the committed contraventions would not carry but the condemnation to a fine of 500 piasters maximum.

With that the minister of justice is of opinion that the administrative authority having no quality to intervene in the action of the tribunals, the independence of which is solemnly consecrated by the laws of the country, Dr. Pflaum may on the [Page 546] basis of the same protocol make an appeal before the court of the sandjak against the judgment given by the court of Axos and get himself attended by a delegate of the consulate to which he belongs.

On its side my department will renew its correspondence with the competent ministry in order to apply to the official who should be found in fault in this affair such measure of punishment as he shall have incurred by his conduct.

I hope the decision arrived at will satisfy your excellency.

As to according Dr. Pflaum a pecuniary indemnity, the Imperial Government cannot recognize such a claim, judicial redress being open to him, as I had the honor to state above. It is the duty of the judicial authorities to examine all the circumstances of the case and for them to give a final decision; besides, in penal causes, there is no legal provision giving a private individual, who feels himself injured, the right to claim pecuniary indemnity from the state.

I hope your excellency will kindly appreciate at their true value the preceding considerations.

Please accept, &c.,

[Inclosure 2 in No. 337.]

Mr. Wallace to Aarifi Pasha.

Highness: In acknowledging receipt of your note of this date, No. 73708, 6, in reply to so much of the communication which I had the honor of delivering to his highness, the grand vizier, as pertained to my demands in behalf of Dr. Pflaum, I beg permission to state some objections to certain positions which it has pleased you to assume therein.

The declaration you indulge respecting “the competency of the Ottoman courts in criminal cases,” while carefully noted, is sufficiently covered by former protests of my Government.

Your highness also defends the assumption of right to try and condemn Dr. Pflaum on a criminal charge in the absence of an American consul or delegate, resting the claim of right upon paragraph 10 of the protocol of 1874, regulative of the holding of real property by foreigners in Turkey. You will permit me to object to your interpretation of that paragraph. If it be true that Axos is nine hours distant from the nearest American consular agency, still Dr. Pflaum’s case was not a civil action, nor was it an offense (criminal) entailing a maximum fine of 500 piasters. The court sentenced him to imprisonment, and in doing so was guilty, in my opinion, of a flagrant usurpation. Nor did the misconduct stop at that; in violation of paragraph 13 of the same protocol, the authorities proceeded to a forcible execution of the judgment against Dr. Pflaum “without the co-operation of a consul or of his delegate.”

These, I beg to say, are the essential abuses complained of in the case by this legation.

I await, &c.,