No. 679.

Mr. Frelinghuysen to Tevfik Pasha.

Sir: I have the honor to acknowledge the receipt of your note of the 26th ultimo concerning the true interpretation of article 4 of the treaty of 1830, between the United States and the Ottoman Porte, in so far as it concerns the treatment of American citizens accused of crime in Turkey.

It appears to be your desire to avoid the extended discussion of details which has attended this question for several years past, and treat [Page 893] it in its most practical aspects. To that end you confine your representations to certain elementary considerations which, if I rightfully understand your note, you regard as conclusive in themselves and as rightly sufficient to have closed the controversy before now, under the instructions given to the United States minister at Constantinople to examine and settle the facts.

This Department is equally desirous to avoid traveling anew the path of previous argument. The matter seems to it to be one readily restricted to precise limits within which it might have been determined at any time in the past fifty years if your Government had met the real issue by a positive statement of the precise meaning of the Turkish text of the fourth article in dispute.

A part of your argument appears to rest, permit me to say, on a fallacious assumption. You go back to Mr. Porter’s declaration in 1831, that the Turkish text should be the standard in case of doubt as to the meaning of the treaty, and you next quote (with some verbal inaccuracies) the words of Mr. Evarts in his note of May 14, 1880, as follows: “I am directed by the President to admit, on the part of the Government of the United States, that the United States are bound by the Turkish text of the treaty of 1830, which was signed in that text alone. I make this admission the more cheerfully in view of your repeated assurances in the name of your Government that not only shall the true intent of that text be observed, but also that the citizens of the United States within Ottoman jurisdiction shall have the treatment accorded to the citizens or subjects of the most favored nation, either by treaty or by virtue of existing local laws or customs,” both of which you take as showing that “the United States Government, yielding to evidence, finally adhered, it is true, in principle to the view taken of this question by the Sublime Porte.” You surely do not wish to be understood as claiming that an admission of the Turkish text as the standard is equivalent to a blind acceptance of the interpretation which the Porte may see fit to give to that text, where the language itself is ambiguous. As Mr. Bancroft Davis, then Acting Secretary of State, had the honor to inform Aristarchi Bey on the 30th of December, 1881—

The President has not intimated a purpose of yielding to the Ottoman construction of the treaty of 1830, or of abandoning in any way what he regards as the just rights of the United States.

The simple question is now, and always has been, what was the meaning of the treaty of 1830? In other words, what did it stipulate for American citizens in Turkey in 1830?

You are doubtless familiar with the precedent correspondence, and will therefore recall without difficulty the many occasions on which this Government has asked that of Turkey to furnish an intelligible paraphrase of the disputed article, and to explain what was the usage toward other Franks in 1830. Not the slightest attempt to enlighten this Government on those two all-important points has been made.

The treaty was negotiated, as you are aware, in the French tongue. The commissioners agreed upon a text in French, embracing certain stipulations. The reports of the negotiations which accompanied the text showed the occasion for those stipulations and their nature. With regard to the clause in dispute, forbidding the arrest and imprisonment of American citizens by the local judges, and leaving to their ministers or consuls the power to punish them, as in the case of other Franks, the negotiators remarked that this clause was not always strictly observed in the case of other Franks; that the Turkish authorities in 1830 frequently arrested Franks, who [Page 894] obtained with difficulty by the foreign ministers. There seems to have been no doubt in their minds as to the extent of the stipulated privilege. The French text, so agreed upon, was accepted by the Turkish negotiators, and the American negotiators were thereupon furnished by the Turks with aversion in the Turkish language, which they were assured was a faithful equivalent of the French text agreed upon.

If, under these circumstances, the effect of translation was to occasion differences between the two texts, it would seem to be due to translation from French into Turkish. However this may be, they could have been verbal merely, for to suppose that, under the assurance of equivalence, a Turkish text was submitted radically different from the French text agreed upon, would be to impute something very like bad faith to the Turkish negotiators—an imputation which this Government has no desire to make.

The Turkish Government denies absolutely the existence in the Turkish text of certain phrases found in the English text. It says:

The words “they shall he tried by their minister or consul and punished according to their offense” no more exist in the text than the words “they shall not he arrested.

Omit these words and the remaining text becomes utterly meaningless. Nothing whatever is stipulated save the usage observed toward other Franks. This must be more than “merely the effect of translation.”

This Department possesses twenty or more translations from the original Turkish text, made by eminent scholars and impartial experts. All these versions, without exception, contain phrases closely following those which the Porte says do not exist at all, and all, despite wide verbal differences (merely the effect of translation), agree in stipulating that no American citizen shall be imprisoned in a Turkish prison, but shall be punished through the instrumentality of his minister or consul.

The inference is irresistible that something of the nature of an extraterritorial privilege was stipulated, and that the words on which your Government lays such stress—“following in this respect the usage observed towards other Franks”—are simply explanatory. They refer merely, by way of illustration, to a well known state of things existing in 1830, when, as Mr. Rhind shows, all the foreign ministers successfully resisted the occasional mistaken effort of a Turkish officer to arrest Frankish subjects. They do not contain by limitation the whole of the concession.

Moreover, this explanatory clause as to the treatment of other Franks was clearly not intended, in 1830, to subject American citizens for the future to whatever changes might thereafter supervene in the Turkish treatment of other Franks. The stipulation was meant to rest on a solid basis, not on a delusive quicksand, shifting with each varying provision of Turkish law. This is evident when we remember that in 1830 there were no tribunals to which foreigners were amenable, and that the system of jurisprudence to which the Porte claims that American citizens are to be subjected originated long after the treaty of 1830.

The Turkish ground as to the judicial treatment of Franks changes every year. One example will suffice. In the past correspondence the Porte and its representative here have repeated with the most solemn asseverations the assurance that the treaty in the Turkish text distinctly reserved to our ministers and consuls the sole right to imprison American citizens even in pursuance of a Turkish judgment whose validity we have denied, and yet, recently, an American citizen, Dr. Pflaum, has suffered imprisonment in a Turkish prison by virtue of a Turkish judicial sentence.

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I may recognize a desire on the part of the Porte to bring the treatment of all Pranks under the provisions of its recent judicial legislation; but this desire is limited in its effects by treaty rights. It would appear to be the intention of the Porte to eliminate from the last part of article 4 of the treaty of 1830 all that enunciates any specific privilege, and leave only a vague favored-nation clause, whereby American citizens shall receive the most favorable treatment which for the time being maybe accorded to any other Frank. This a very narrow result. We are willing to regard the phrase touching the treatment of other Franks as having some of the quality of a most favored-nation clause; that is, if any other Franks have a more favored treatment than that specifically stipulated in our treaty, an American citizen might rightly claim such extension of favor. But it is not in itself a most-favored-nation clause, nor does it stand alone, independent of the specific stipulations of the article in which it is found.

In every aspect of the case there are two vital considerations: first, the true meaning of the text of the treaty, and, secondly, the treatment of Franks in 1830, when the treaty was signed. As to both of these our efforts to obtain a distinct declaration from the Porte have failed. Our last attempt to obtain the needed light on the subject has been completely ignored. An instruction, No. 44, of March 3, 1882, was sent to Mr, Wallace, summarizing the whole situation in the frankest spirit and with the sole desire to put an end to this controversy. On the 29th of October, 1882, Mr. Wallace communicated a copy of that dispatch to his excellency Said Pasha, the Porte’s minister for foreign affairs. No answer has been made. As I infer from your note of April 26, 1884, that you are not even aware of the existence of my communication of March 3, 1882, I send you a copy thereof for your information, omitting the inclosures, which, as you will see, are of record in your legation.

I write you this from a courteous desire that you may fully comprehend the situation, not with any purpose of transferring the discussion back to Washington for speculative and impractical discussion. As I said in my note to Aristarchi Bey, of August 29, 1882, “General Wallace is in a position, under the instructions heretofore sent to him, to respond to any proposal or argument which his excellency the minister for foreign affairs may see fit to address to him.”

Accept, sir, &c.,