No. 677.

Mr. Bayard to Mr. Cox.

No. 49.]

Sir: I have received your No. 35, of the 24th ultimo, having especial reference to the cases of the naturalized American citizens, Kevork Guligyan and Bedros Iskiyan, whose registration in the Turkish bureau of nationality is refused on the sole evidence of their passports, and embracing general considerations on the subject of the right of expatriation.

[Page 886]

Separating the special and general topics, we may consider, first, the present case of the two persons mentioned, and, further, the broader principle affecting our naturalized citizens of Ottoman nativity who may return to Turkey.

It would appear from your remarks that these two persons seek registration as foreigners, in order to be qualified to hold real estate as such. “Nor do I know,” you say, “what is the status of these men now claiming citizenship of the United States, but when native Turks come here to live and seek to acquire real estate under the ‘capitulation’ and protocols which enable all foreigners to hold such property here, then the question of citizenship is at once mooted, and not generally until then is the law of 1869 evoked as a touchstone of citizenship abroad.”

If their purpose in seeking registration as American citizens was to avail themselves of the right which Turkey concedes to foreigners, under certain conditions, to acquire and hold lands in the Ottoman Empire, and were it made a condition precedent to such acquisition and holding of real property that the party shall not have infringed the Turkish law concerning Turks who emigrate and assume a foreign allegiance without the previous consent of their Government, then this Government could not well object to the parties being called upon to qualify themselves for the enjoyment of the privilege they seek. Every sovereign State prescribes for itself the terms and conditions upon which title to lands within its jurisdiction may be acquired and held. If Turkish law imposes a disability, as to the tenure of real property, upon a Turk who has became naturalized elsewhere without the previous consent of his Government, then the question would be one of the subjection to municipal regulations of those who have voluntarily placed themselves thereunder, in a matter over which those regulations have sovereign and exclusive control. And the Turkish Government having the right to investigate the cases of persons applying, as foreigners, for the privilege of holding lands, or for any other personal privilege over which municipal laws have control, it would seem to have the right to demand of them such evidence as would enable it to ascertain whether the applicants labor under any disqualification, and, in event of their refusal to produce such evidence, to withhold the privilege sought.

The important distinctions are, however, to be borne in mind between a municipal privilege and a personal right, and between withholding such privilege and imposing a penalty. This may be illustrated as follows: To hold real estate, or to enjoy any other municipal right controlled by statute, the applicant may be called upon to qualify himself. The burden of proof is with him. If he do not furnish the required proof, he simply fails to obtain the privilege sought. But, on the other hand, if the statute visits the individual with a penalty, the burden of proof lies upon the power which seeks to inflict the penalty; the party cannot be called upon to criminate himself, and he must be presumed to be innocent until his crime is proved. At the present time a striking instance is found in the penalties which are attached in certain countries to the profession of a particular creed. The power to expel a Jew from Turkey is claimed, notwithstanding that, as a foreigner, he may have treaty rights of residence. Expulsion being of the nature of a penalty, the ground of its application is to be proved, like any other charge against the individual.

In short, withholding a privilege may comport with the executive function; the imposition of a penalty is essentially a judicial function. [Page 887] Hence, in its dealings with Turkey, as with Russia, this Government cannot acquiesce in the executive imposition of a penalty, especially on account of race or creed To the executive of another country all our citizens must be equal. If they, being voluntarily in a foreign land, contravene its municipal statute, it is for the law to ascertain and punish their offense.

If, therefore, registration in the bureau of nationality were sought by the two men in question merely as a formality whereby to qualify themselves for municipal rights, this Government could not object to the application in their case-of any reasonable test or mode of trial to ascertain whether any legal disability existed to prevent the concession of the privilege sought.

I am not sure, however, that the matter is capable of consideration within these narrow limits. It seems to trench upon the broad question of the right of expatriation, and to involve application to any and all Turks who, being naturalized in the United States, may return to Turkey.

I have not been able on cursory search to find in the files of the Department the text of any law or regulation establishing the bureau of nationality and defining its function. I have, however, read the law of nationality of January 19, 1869, and find in it the following suggestive article:

Art. 9. Every individual inhabiting Ottoman territory is reputed an Ottoman subject, and will be treated as such until his character as a foreigner is verified in a regular manner.

From this I infer that the bureau of nationality is established to “verify in a regular manner” the alienship of all foreign inhabitants of Turkey, and record the fact.

As in the case of Guligyan and Iskiyan, the bureau has declined to admit them to registry, except on certain proof being submitted, it may be inferred that the evidence called for is deemed essential to the regular verification of the foreign status of the parties, and this especially with reference to article 5 of the law of 1869, which reads thus:

Art. 5. An Ottoman subject, acquiring a foreign nationality with the sanction of the Imperial Government, will be considered and treated as a foreign subject. If, on the contrary, he has obtained foreign naturalization without the previous authorization of the Imperial Government, such naturalization will be considered as null and void, and he will be regarded and treated in every respect as an Ottoman subject. No Ottoman subject can in any case naturalize himself as a foreigner without obtaining a deed of authority in virtue of an imperial iradé.

It would be desirable, toward a full understanding of the subject, to know the powers and functions of the bureau of nationality, with reference to the fifth and ninth articles of the law of 1869, which I have quoted. Is the bureau merely designed to afford to aliens an opportunity to record their status? Or is registration therein made obligatory upon all aliens, and does the absenceof an alien’s name from its books create, ipso facto, for the purposes of Turkish jurisdiction, the presumption that he is an Ottoman subject, and entail upon him the treatment as such contemplated in the ninth article of the law?

And, further, is the bureau made competent to exercise the quasijudicial functions of deciding, under article 5 of the law, the status of a Turk who may have acquired a foreign nationality?

You are expected to enlighten the Department on these points, sending hither if possible, the text of any law, decree, or regulation under which the bureau of nationality may have been organized, or of any rules or regulations defining its functions and powers.

[Page 888]

Pending your report as to these points, I may probably give some attention to the general principle involved where there is international conflict of laws concerning the right of expatriation. The United States hold steadfastly to that right. The doctrine was well enunciated in 1868 in the words of Mr. Seward, quoted by you in your note of October 22 to Said Pasha, and in even more precise terms was incorporated in an act of Congress approved 27th July, 1868, now section 1999 of the Revised Statutes. Under the law of 1869 the Porte is understood to claim that it can discriminate between naturalized and other citizens of the United States, and treat as Turkish subjects those Turks who have been naturalized in the United States since 1869 without the prior consent of the Ottoman Government.

This Government has never admitted, and cannot now admit, the doctrine for which the Porte contends. Within our domestic jurisdiction we are bound to uphold and enforce the right of expatriation, and our assertion of that right follows to every foreign country the alien who has become a citizen of the United States by due process of law, an£ regards him as the equal of a native-born American citizen. We may not abandon the assertion of that right in favor of the counter assertion of the Government of such a person’s original allegiance.

The laws of the United States thus inhibiting absolutely any discrimination between their native-born and naturalized citizens, the same form of passport is prescribed for all alike, and, under international law, is to be accepted every where as prima facie evidence of nationality. Our duty is limited to the positive one of lawfully certifying the fact of American citizenship, and this Government cannot be expected to go beyond the bounds of its power and duty by assenting to such a contention on the part of a foreign Government as would, if logically carried out, involve the negative obligation to show that the citizen had not at some previous time been subject to another power.

I am aware of no Government whose contention in this regard appears to go as far as that of Turkey. Other sovereign states, it is true, deny the right of expatriation without prior consent, but none, to my knowledge, imposes upon every alien resorting to its territory the burden of disproof.

The contention of Turkey may in fact be found to go even further, and assert a power on the part of the Porte to forbid the Government of the state whose citizenship a Turk may have lawfully acquired from diplomatic intervention in his behalf, if the Turkish law declares him to be still a subject of the Porte. I do not know that this is so; I trust it is not. There may be an analogy, however, between the Turkish rule of registration and the Mexican law of matriculation. In Mexico, all foreigners are required to deposit their passports in the ministry of state at the capital and take out a certificate of matriculation, which is alone admitted as evidence of their rights as foreigners in that country. Failing such registry, they can assert no civil or judicial rights of alienage; and the law even proclaims that no diplomatic intervention of their Government will be admitted in their behalf under whatever circumstances. The United States have for years contested this position, asserting that no municipal statute of another country can overthrow the reciprocal relations of a foreigner with his own government, or impair the obligation of the latter to intervene for his protection in ease of wrong or denial of justice.

But, extreme as is the Mexican position, it merely rests on the execution of a formality. It accepts the passport asthe evidence of alienage, and simply substitutes, for municipal effects, one form of discriminating certification for another.

[Page 889]

The Turkish rule, on the contrary, rests on a vital discrimination between classes of foreigners; it imposes a burden of proof unknown elsewhere, and it assumes not merely to treat certain persons as Turks until the contrary is shown, but to make them Turks.

The question is, in its broadest aspect, one of conflict between the laws of sovereign equals. The authority of each is paramount within its own jurisdiction. We recognize expatriation as an individual right. Turkey, almost solely among nations, holds to the generally abandoned doctrine of perpetual allegiance. Turkey can no more expect us to renounce our fundamental doctrine in respect of our citizens within her territory than she could expect to enforce her doctrines within the United States by preventing the naturalization here of a Turk who emigrates without the authorization of an imperial iradé.

In such cases, where the disagreement is fundamental, a conventional arrangement is practically the only solution to the difficulty. Founding on the volition of the individual as an ultimate test, the United States, without impairing their doctrine of the inherent right of expatriation, but rather confirming it, may agree upon certain conditions, according to which a person who has been naturalized in the United States and returns voluntarily to the country of his original allegiance, there to remain for a stated period, may be held to have created a presumptive intent to resume his former status, and thereby abandon his acquired nationality. We recognize the individual right to do so; repatriation is as equally a right as expatriation.

The United States have negotiated treaties of naturalization with several Governments, including Turkey. The latter, signed August 11, 1874, was ratified by the Senate with amendments, and subsequently exchanged on the 22d April, 1875, at Constantinople. It subsequently appeared, however, that it had been ratified and exchanged by Turkey under a misapprehension of its true meaning. As you will see by perusal of Mr. Maynard’s No. 11 of July 6, 1875, the Turkish Government supposed us to stipulate that two years’ residence in the country of original allegiance should operate to forfeit the nationality subsequently acquired by naturalization. Mr. Fish held that the true meaning was that such residence created a presumption of intent to remain, which might be rebutted, like any other presumption, by competent proof.

Our position in this regard has always been consistent, although in other quarters, the misapprehension into which the Ottoman Government fell in 1875 has been found to exist. The reason of our position is clear. The treaties we have made simply recognize and define an existing status under the laws of the two parties; they do not assume the legislative or judicial power of making and unmaking citizens. They leave the laws of the land of return free to operate, after two years, to restore the former allegiance. The treaty does not restore the original status any more than it can forfeit the acquired one, and perhaps leave the party without any national status whatever. Moreover, forfeiture of status is essentially a penalty, and the Porte’s understanding of the treaty signed in 1874 would have involved the assumption by the United States Executive of the power and obligation to apply such a penalty to an American citizen who, under certain circumstances, might reside in Turkey for more than two years. There is no statutory warrant for the exercise of such a power, and for the Executive to assume it would be repugnant to the principles of our Government, according to which no man can be punished without due process of law. Hence, no form of international accord was possible with Turkey which would have imposed on the United States the obligation to declare the forfeiture [Page 890] of rights which an alien might have duly acquired under the naturalization statutes through the decree of a competent court.

I refer to the past treaty negotiation to correct what seems to be a misapprehension on your part, for you say that “the treaty failed of confirmation in the Senate because of one inconsequential word.” The difference between imposing forfeiture of citizenship and recognizing its renunciation is not inconsequential—it is vital. And, as a fact, the failure of that treaty was due to the Porte’s withdrawal of the ratification it professed to have made and exchanged under a misapprehension of the purport of the Senate’s amendment.

Of all our naturalization treaties with foreign Governments, the most clearly phrased are with Great Britain, Austria-Hungary, and Denmark, copies of which are herewith sent you. Article III of the British treaty covers the point under consideration by providing for and recognizing the lawful recovery of original allegiance and renunciation of that acquired elsewhere by naturalization. So, also, with Article IV of the Austro-Hungarian treaty. The latter is, furthermore, noticeable as providing for and defining the jurisdictional rights of the country of original allegiance, when the native thereof, returning thither after naturalization abroad, is amenable under its laws for an offense committed before his emigration.

Mr. Boker’s treaty was negotiated five years after the Ottoman Government adopted the law of nationality. If that law was no obstacle then to a naturalization treaty with the United States, it should not be now. It should be your earnest effort to induce the Porte to negotiate again on the subject, with a view to a just and mutually honorable accommodation. You should make clear to the minister for foreign affairs that the Executive is strictly inhibited from acquiescing in the jurisdictional claims of Turkey, for it can neither recognize nor impose forfeiture of rights acquired by lawful naturalization; but that we stand ready, by treaty, to respect any process whereby, under Turkish law, duly applied, the voluntary act of a naturalized Turk who returns to reside in Turkey may operate as a renunciation of his acquired status and resumption of original allegiance. The limits within which such a negotiation may be conducted are found in the Amerieo-Turkish treaty of 1874, as amended by the Senate, and in our treaties with Great Britain and Austria-Hungary.

I await, as before stated, your report on the function and powers of the bureau of nationality. Meanwhile, this instruction will make clearer to yon the attitude of this Government on the general question of the treaty rights of our citizens in Turkey, whether native or naturalized.

I am, &c.,