No. 682.

Tevfik Pasha to Mr. Frelinghuysen .

[Translation.]

Mr. Secretary of State: I have had the honor to receive the note which you were pleased to address to me on the 31st of May last relative to the interpretation of Article IV of the treaty of 1830.

This question, which has been kept so long in abeyance, has been the subject of so many controversies, both here and at Constantinople, that another detailed examination of it would, as you are pleased to remark, have no practical result, especially since you have decided, as you are pleased to inform me, again to transfer the discussion of this matter to Constantinople. Nevertheless, the regard and the consideration which I entertain for all communications from the distinguished head of the Department of State, compel me to endeavor to reply to some, at least, of the arguments contained in the aforesaid note.

The whole question on which we are unable to agree is, you say, “the exact meaning of the treaty of 1830. In other words, what did that treaty stipulate for American citizens in Turkey in 1830?” You add:

Although this Government has repeatedly requested that of Turkey to furnish an intelligible paraphrase of the disputed article, no attempt to enlighten this Government on this all-important point has been made.

You will permit me, Mr. Secretary of State, to appeal to your recollection on this subject. As long ago as 1868 Ali Pasha informed Mr. Edward Joy Morris, the representative of the United States at Constantinople, how the Sublime Porte interpreted this article. We have always maintained the same interpretation, as is shown by the voluminous correspondence which has taken place on this subject. Aristarchi Bey, moreover, at the request of one of your predecessors, transmitted to the Department of State a French translation of the article in question, which was made here, and for which he was directly responsible. You will therefore be pleased to admit, Mr. Secretary of State, that the Imperial Government does not deserve the charge that “it has done nothing to enlighten that of the United States on this all-important point.”

As to the definition of privileges that were enjoyed in Turkey by the subjects of foreign powers in 1830, which definition you say you have asked us in vain to furnish, I will take the liberty of stating that [Page 899] this is an entirely new requirement, which seems to me to have been formulated for the first time. An examination of the correspondence shows that, in 1880, Mr. Blaine, then Secretary of State, in his negotiations with my predecessor, was disposed to consider as sufficient a declaration on our part to the effect that American citizens should enjoy the usage and privileges granted to other nations. This declaration we did not hesitate to make. You now ask us to specify the nature of the privileges that were granted by us to foreigners in 1830. This request appears to me singularly to complicate the question. By the treaty of 1830 the Sublime Porte simply promised to allow citizens of this Republic to enjoy the privileges granted to other Franks, and to treat them in all respects on the same footing with the latter. Now, the privileges granted to foreigners by the capitulations cannot represent an absolute and immutable state of things, and oné never susceptible of any variation. The usage may be modified according to the progress of the times, or according to the mutual consent of the parties; from which it is evident that if any change were to take place in the status of foreigners in general, Americans would have to submit to the common law, and could claim no special privilege beyond what was enjoyed by other foreigners. It would therefore be practically useless to inquire, Mr. Secretary of State, as you suggest, what privileges were granted to foreigners in 1830.

In the instructions given by the United States Government to its plenipotentiaries charged with the negotiation of the treaty of 1830, it is expressly enjoined upon them (see Notes upon the Foreign Treaties of the United States, page 1060, revised edition, 1873,) to conclude a treaty upon the most-favored-nation basis. In other words, the United States instructed their negotiators to secure for American citizens the same usage that was granted by the Sublime Porte to other Franks at that time. The following, Mr. Secretary of State, was the status of Franks in Turkey in respect to criminal matters, according to the text of the capitulations then in force:

If a Frank commit a murder or other crime, the authorities shall take cognizance thereof, but the judges and officers shall not proceed to do so save in the presence of the ambassador, the consuls, or their substitutes.

This is the rule by which the Sublime Porte has always been guided in cases of crimes or misdemeanors committed by foreign subjects or citizens residing in Turkey. Americans, I repeat, cannot claim exceptional usage; the expression found in Article IV of the treaty of 1830, viz, “following the usage observed towards other Franks,” cannot leave the slightest doubt on this head; it conclusively proves that nothing more was granted to citizens of this Republic than to the subjects of other powers.

As to the opinion, which is also enunciated for the first time, that the treaty was negotiated in French, and that the Turkish text was but a translation for which the Ottoman ministers were responsible, it is refuted by the American documents themselves. I will take the liberty, Mr. Secretary of State, to quote in support of this assertion, the following passage from the “Notes upon the Foreign Treaties of the United States,” page 1061:

He [Mr. Rhind] submitted a draft of a treaty to the Reis Effendi. Some days later he was shown the Turkish text of a treaty, and was told by the Reis Effendi that it was drawn ap in strict conformity with the one which he had submitted, and on the 7th of May the treaty was signed, the Turkish text being signed by the Reis Effendi, as it had been prepared by him, and the French text being signed by Rhind after examination and comparing it with the Turkish.

[Page 900]

Lower down on the same page are found the following words.

It appears from the archives of the Department of State that four translations were sent to America: (1) an English translation from the original Turkish, not verified; (2) a French translation from the original Turkish, verified by Navoni, the American dragoman; (3) another French translation in black ink, with annotations in red ink; (4) another English translation, made from the French. No French version appears to have been transmitted to the Senate with the Turkish text.

Do not these quotations, the number of which might easily be increased, most clearly prove that the Turkish text is the original, and that the English and French versions are merely translations, which were verified by the American delegates? The imputation, therefore, of a certain degree of bad faith on the part of the Ottoman negotiators, would be, to say the least, underserved. I am glad to see, moreover, that you are pleased to declare that the United States Government desires to make no such imputation.

The Department of State has, you say, more than twenty translations of the original Turkish text, made by competent and impartial persons. All these versions, you add, without exception, agree in stipulating, notwithstanding certain differences of expression resulting from translation, that “no American citizen shall be imprisoned in a Turkish prison, but shall be punished through the instrumentality of his minister or consul.”

The Sublime Porte has always maintained that the words “arrested and tried” are not found in the Turkish text of the fourth article of the treaty of 1830. It is now glad to find that they are not in the translations of that article which the Department of State has caused to be made. Their omission, moreover, does not render the rest of the article “utterly meaningless.” Your own quotation is the best proof of this.

As to the assertion that previously to 1830 there were no Ottoman courts to which foreigners were amenable, it seems to me to be a mistake as to fact which you will, I doubt not, Mr. Secretary of State, hasten to admit, when the true state of the case shall be better known to you. Foreigners charged with the com mission of any crime were then tried by a cadi, in presence of their consul or his representative, as appears from the very text of the capitulations. That magistrate has now been superseded by a court composed of several judges; but, although the form of the tribunal has changed, its jurisdiction remains the same; that has not deprived foreigners of the privilege of the presence of their consul or dragoman, which is secured to them by the capitulations.

To sum up, Mr. Secretary of State, the Imperial Government, for the foregoing reasons, can do nothing more than fulfill the promise which it has so often made, viz, to accord to American citizens, in penal cases, the usage, privileges, and guarantees that are enjoyed by other foreigners. The treaty of 1830, if the official and original text in the Turkish language be taken as the standard, stipulated for nothing more in their favor. On this basis alone will the Sublime Porte negotiate the case arising with the United States legation.

You are pleased to inform me, in conclusion, that you addressed a dispatch to the United States minister at Constantinople on the 3d of March, 1882, giving him the necessary instructions to bring this controversy to a close. On the 29th of October, 1882, General Wallace sent a copy of that dispatch to his excellency Assim Pasha, minister of foreign affairs; to this communication you say that no reply has been received. In this connection you will permit me to inform you that the Sublime Porte, anticipating, as it were, the step about to be taken by the Department of State, addressed a note to the United States legation, July 6, 1882, more than a month before it received General Wallace’s [Page 901] communication, stating that it would be glad to discuss the final settlement of this matter with the representative of the United States. As I have reason to suppose, from the note which you did me the honor to address to me on the 31st of May, that you are not aware of the existence of the communication which thus emanated from our ministry of foreign affairs, I herewith transmit to you a copy of it.

In conclusion, I earnestly beg you, Mr. Secretary of State, by order of my Government, to be pleased to instruct the United States legation at Constantinople to enter without delay into negotiations with the Sublime Porte with a view to the final settlement of this question, which has been a subject of discussion for so many years, and which threatens to last for an indefinite period, to the great detriment of the well-recognized interests of both countries.

Be pleased to accept, &c.,

HUSSEIN TEVFIK.
[Inclosure.]

Said Pasha to Mr. Wallace .

I am compelled to recur to the disagreement that exists between the Sublime Porte and the United States Government in reference to the interpretation of Article IV of the treaty of 1830, concluded between the two countries.

According to the Washington Cabinet, American consuls in the Empire have the right of jurisdiction over American citizens who are guflty of crimes or misdemeanors, to the exclusion of any intervention on the part of the Ottoman authorities, not only in cases in which the victim is a foreign subject, but also in those in which the injured party is an Ottoman subject.

This interpretation, which tends to sanction a mode of procedure at variance with the practice observed towards all other foreigners, without exception, can in no wise be accepted.

It can have arisen from nothing but an error in translation or a misapprehension. The Imperial Government can by no means grant to citizens of the United States a usage different from that which is accorded to other foreigners residing in the Empire.

This question has been much discussed, both here and at Washington. Aristarchi Bey informed me, shortly before he left Washington, that the Secretary of State had told him that he had sent you instructions to enter into communication with the Sublime Porte with view to the settlement of this disagreement.

I think it proper for me to notify you that I shall be happy to enter into negotiations for the final settlement of this matter.

Accept, &c.