Mr. Frelinghuysen to Mr. Wallace.
Washington, January 22, 1885.
Sir: I herewith transmit a copy of a note from the minister of Turkey at this capital, of November 26, 1884, in regard to the disputed interpretation of the fourth article of the treaty of 1830, between the United [Page 828] States and Turkey. I have merely said in reply that a copy of this note would be sent to you for your information in the examination of the matter under the instructions which have already been given to you. What the Department desires now is a full report from you upon the subject.
You will observe from a perusal of Tevfik Pasha’s note, that the ground is now changed, and that the words “arrested and tried” are the only ones which are regarded as wanting in the Turkish text. These are not in juxtaposition in the English text.
Tevfik’s collocation of these words in one phrase is somewhat misleading. The words are in two different clauses:
- They shall not be arrested and put in prison by the local authorities, and
- They shall be tried by their minister or consul and punished.
It is not denied that the prohibition against imprisonment by the local authorities exists, and it is not logical to insist on the omission of “arrest” without which no imprisonment would be possible. And all the versions agree that our citizens are to be punished according to their offense only through the instrumentality of their ministers and consuls. How such instrumentality can award and inflict punishment in accordance with the offense, if the necessary stage of judicial ascertainment is omitted, does not appear.
The citation by Tevfik Pasha establishes the very fact he attempts to refute, that Rhind’s negotiations were in French and that the Turkish text submitted to him by the reis effendi was said to be the exact equivalent of the text agreed upon in French. I may here properly advert, then, to our view that the words “following in this respect the usage observed towards other Franks” is merely explanatory of the specific treatment there accorded and defined in the article, and is not to be deemed as the essential clause subjecting the treatment of American citizens to all the changes it might thereafter undergo.
As for the state of jurisdiction in 1830 Tevfik Pasha’s statement is restricted, and not borne out by a historical examination of the facts. The distinguished publicist, Pradier-Fodéré, than whom there is no higher authority, in a paper contributed to the Revue de Droit International et de Législation Comparée in 1869 (torn. I) sums up the procedure under the capitulations as follows (p. 126):
L’inviolabifité du domicile et dans le cas de flagrant délit, la défense aux autorités locales d’arrêter dans une maison européenne, même un indigène coupable, sans l’assistance d’un offlcier du consulat on de l’ambassade; le droit pour les nationaux des pays de l’occident d’être jugés par leurs ambassadeurs on leurs consuls dans touteslours contestations civiles ou criminelles, et l’autorisation pour les autorités ottomanes de prêter main-forte aux agents diplomatiques et aux consuls pour assurer l’exécution des sentences rendues.
Or in English, as follows:
The inviolability of domicil, and in the case of flagrante delicto, the local authorities to be forbidden to make an arrest in a European house even of a guilty native, without the help of an officer of the consulate or embassy; the right of citizens of nations of the West to be judged by their ambassadors or consuls in their civil or criminal litigations and the authority to be given to Ottoman officials to assist diplomatic agents and consuls in securing the execution of pronounced sentences.
So far as the Turkish position may be inferred from what has been said heretofore, it implies contention for four alternate stages of procedure, viz:
- The Turks to arrest (which is expressly forbidden by the capitulations).
- The minister to imprison.
- The Turks to try the accused in the presence of their minister or consul (but without the latter exercising any of the “instrumentality” which the treaty of 1830 admittedly reserves to them); and
- The minister or consul to “punish” in accordance with the offense (although all instrumentality in fixing a punishment in accordance with the offense is denied to the minister or consul).
Nothing could better show the incongruity of the Turkish claim than this formulation of their position after some twenty years of discussion.
Under the circumstances, therefore, I can only reiterate the oft-repeated assertion of this Government, that it is still without any intelligible and congruous English or French version which the Sublime Porte admits as correctly interpreting the Turkish text, certainly none can be deduced from Tevfik Pasha’s present note.
Your report is awaited before further instructing you in the premises.
I am, &c.,