Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888

Bayard to Mr. Straus .

Department of State,
Washington , April 20, 1887.

No. 7.]

Sir: Permit me to attract your attention to the relations of citizens of the United States as a nationality to the Ottoman Porte, in connection with which two important questions present themselves for consideration, the first being the position of citizens of the United States residing continuously in Turkey for business or other purposes; the second, the position in respect to the Forte, of educational, eleemosynary, and religious institutions Established and carried on by citizens of the United States on Turkish soil.

So far as concerns missionary status, the question now immediately presented is one which does not exclusively concern the schools of the American Board of Commissioners of Foreign Missions. Excellent as is their work, and entitled to the highest respect, I have simply to say that the efforts the Department is now making, and has heretofore steadily made, in support of those schools is wholly divested of sectarian preferences, and would be exerted with equal earnestness in support of the schools in Turkey of any other and all other American charitable or religious associations.

And, further, in view of the general question of the rights of citizens of the United States in Turkey, it is important to maintain that the rights of extraterritoriality, claimed to a greater or less extent for these schools, are part of the same system by which rights of extraterritoriality are claimed by this Government in Turkey (1) for our citizens in certain juridical relations, and (2) for our diplomatic and consular establishments so as to enable them to extend protection to the extent to which such protection is enjoyed by other Christian embassies, legations, and consulates in Turkey. The basis of this jurisdiction may be thus stated:

Constantinople and the domain of which it is the capital have, from a very early period down to the present day, been populated by distinct and diverse nationalities, to which rights of government by their own especial laws have always been conceded. We have this thus conceded (during the Greek Empire) by Cassiodorus, the secretary of Theodoric the Great: “Romanis, Bomanus judex erit; Gothis, Gothus; et sub diversitate judieum unajustitia complectabatur.”

When the Ottoman Porte was established by conquest in Turkey the same system of recognition and assignment of self-government to each distinct nationality was not only adopted but extended. Not only were Armenians and other nationalities whom the. Turks, after the conquest, found in their domains, recognized as entitled to a large measure of local self-government, but similar privileges were from time to time accorded to foreign Christian nations. For this course on the part of the Porte—a course which has led to the non-application to Turkey of the principles of territorial sovereignty generally recognized elsewhere—the following reasons may be given:

When the Porte took possession of Turkey its population was largely made up of Christian nationalities to which local self-government had been previously more or less assigned. These nationalities could not be expelled from Turkey without expelling the population by which its fields were tilled and its business exchanges conducted. On the other hand, the Porte could not undertake the municipal control of such, nationalities, nor the settlement of their business differences, nor the supervision of their Religious functions. Those who rejected Mohammed were, to the Turk, not merely enemies, but Giaours—unclean persons—persons with whom the Turk could have no business or even social relations. Hence they were to be excluded from Turkish armies. While they might be taxed for imperial purposes, they were, so far as concerns their own particular interests, to determine themselves the taxes which they were to bear. In Turkish schools their children could not be received; and, therefore, they were entitled to have schools of their own, in which the teaching was to be distinctively Christian, and which were regarded as part of the system of diverse nationality recognized by ancient usage and essential to the existence of the Empire. And so it was with regard to the settlement of business disputes. As the Porte, or its courts, whatever they might have been, could not, without abandoning its fundamental doctrine of creed isolation, take cognizance of business disputes between unbelievers, these disputes must be settled by courts of the nationalities to which these unbelievers respectively belonged. And if questions of religion were involved, such disputes must be referred for determination to the head of the church to which the disputants belonged.

This demarkation of jurisdictions will not appear strange when it is recollected that a similar policy and practice are adopted in this country by the dominant race toward the North American Indians. We can scarcely rate the incapacity of these Indians to adopt and apply our institutions as greater than the Ottoman conquerors regarded the incapacity of the Christian nationalities in Turkey at the conquest to adopt and apply Ottoman institutions, nor regard the political capacity of these Indians as of a less grade than the Ottoman conquerors regarded that of their new Christian subjects. And we continue to do for the Indians what the Ottoman conquerors of Turkey did for the Christian races who at the conquest were found there. Just as the Ottomans professed themselves unable to understand the laws of those Christian races, or to establish over them Moslem law, therefore leaving them to their own courts, so we, declining to absorb Indian law into our own, or even to apply to Indians our own municipal jurisprudence, leave the adjudication of questions arising in Indian tribes to the determination of their tribal law.

This renunciation by the Porte of legislative and judicial control over Christian nationalities, which was worked into the traditions of the Empire, acquired not only greater municipal force but more fully recognized international validity, when the great European powers sent to Turkey riot only diplomatic and consular agents, but merchants, to conduct business with the Christian subjects of the Porte, and missionaries to minister not only to persons of their own nationality but to whomsoever might apply. These visitors could not be repelled. Turkey could not afford to quarrel with the leading sovereigns of civilization, nor could she preclude that civilization from pouring, through its agents, into the domains Those agents came arid remained in great numbers; not merely merchants and capitalists, but religionists, devoted to the work of maintaining worship, according to their views, with hospitals and schools. To these energetic and influential settler Turkish law, for the following reasons, was even less applicable than to the native Christians. The new-comers were protected by foreign powers whom Turkey was unwilling to offend; and they belonged to Western races who, from their idiosyncrasies, cannot be fused with the Orientals. They are, to adopt Lord Stowell’s language, frequently cited with approval in the United States (The Indian Chief, 3 C. Rob. Adm. Rep., 29), “immiscible” so that by no comity of international law can the institutions of the one be applied to the other. No foreigner with ordinary business capacity or ordinary self-respect would live in a country where he could not be heard in the local courts of justice, or, if he were heard, it would be as degraded by the disabilities of an inferior and abject race. Yet, on the other hand, the presence in Turkey of foreigners of business capacity and of self-respect is essential to the maintenance of the Empire. By them its monetary affairs are conducted, its soldiers drilled, its schools taught in all that concerns liberal civilization, and its relations with the outside world regulated. Turkey could not, and cannot now, be expected to surrender the policy which, nominally at least, treats the Ottomans as the dominant race on her soil; and the only alternative open to her has been, therefore, to permit foreigners of the classes so necessary to her political prosperity to enjoy, as far as practicable when living within her borders, their own distinctive institutions. The Porte could not exist if it were to surrender the political exclusivism of Islamism. It could not exist, also, if it were deserted by those foreigners to whom its progress in civilization is due. Hence the local self-government conceded to foreign communities in Turkey, evidenced in the old capitulations and gradually extending to meet the exigencies of the times, is a necessary emanation of the political and social conditions of that Empire as they now exist. It is for the legation of the United States at Constantinople to see that American citizens in Turkey enjoy in their various relations the rights of extraterritoriality which, under the system I have outlined, are among the essential conditions of the continuous political existence of Turkey under its present dynasty.

The most important of the prerogatives growing out of these conditions is that of the distinctive jurisdiction assigned to our ministers in Turkey under treaty, and as applied by Revised Statutes, section 4125, which gives these officers such jurisdiction as is permitted by the laws of Turkey or [in the alternative] “its usages in its intercourse with the Franks or other Christian nations.” By the same standard of usage, as evolved by the processes above stated, are to be determined the territorial rights exercised by our legations and consulates in the East, and the prerogatives of American missionaries, under the limitations above mentioned.

The effect of the treaty of 1830 on this extraterritoriality is thus stated by Mr. Cushing (7 Op., 567, 568):

Commerce, in the treaty, means any subject or object of residence or intercourse whatsoever; * * * as to all civil affairs to which no subject of Turkey is a party, Americans are wholly exempt from the local jurisdiction; and,* * * in civil matters as well as in criminal, Americans in Turkey are entitled to the benefit of “the usage observed towards other Franks.”

I think the “causes “spoken of in the second sentence of the fourth article are of the same nature as to parties as the “litigations and disputes” mentioned in the first sentence—that is, between citizens of the United’ States and subjects of the Porte; the meaning of which is, that causes between such parties under five hundred piasters in amount are to be decided by the ordinary local magistrates, assisted by the dragoman, and causes above that amount by the Porte itself—that is, the Sultan or his appropriate minister, with intervention of the minister or consul of the United States.

My conclusions in this respect are founded, first, on the phrase in the second article which engages that citizens of the United States in Turkey shall not be “treated in any way contrary to established usages.” What are the “established usages?”

Undoubtedly the absolute exemption of all Franks, in controversies among themselves, from the local jurisdiction of the Porte.

I will not repeat here what has been said in previous communications as to the ground or principle of the right of extraterritoriality asserted by, and fully conceded to, Franks generally, that is—Western Christians, in Turkey.

One of the distinctive incidents of this extraterritoriality is thus noticed by Mr. Marcy in his note of September 26, 1853 (Dig. Int. Law, section 198):

By the laws of Turkey and other Eastern nations the consulates therein may receive under their protection strangers and sojourners whose religion and social manners do not assimilate with the religion and manners of those countries. The persons thus received become thereby invested with the nationality of the protecting consulate. These consulates and other European establishments in the East are in the constant habit of opening their doors for the reception of such inmates, who are received irrespective of the country of their birth or allegiance. It is not uncommon for them to have a very large number of such protegés. International law recognizes and sanctions the rights acquiesced [sic, acquired?] by this connection.

In the law of nations, as to Europe, the rule is that men take their national character from the general character of the country in which they reside; and this rule applies equally to America. But in Asia and Africa an immiscible character is kept up, and Europeans trading under the protection of a factory take their national character from the establishment under which they live and trade. This rule applies to those parts of the world from obvious reasons of policy, because foreigners are not admitted there as in Europe and the western parts of the world, into the general body and mass of the society of the nation, but they continue strangers and sojourners, not acquiring any national character under the general sovereignty of the country. (1 Kent Com., 78, 79.)

In a report to the Institute of International Law on this subject, by M. F. de Martens (Annuaire, 1882–’83, p, 225), is found the following statement:

D’autre part, les gouvernements musulmans eux-mêmes n’ont jamais insisté sur leur pouvoir territorial pour juger les procès mixtes entre sujets des Éitats chrétiens. Les contestations entre giaours Ctaien étrop impures aux yeux des musulmans pour qu’une intervention de leur part fût permise.

And in the same volume, page 231, M. J. Hornung says:

Cette exterritorialité des; colonies européenneset américaines trouve sa justification dans les défauts de la justice et de la police locale et dans le déplorable état des prisons. Souvent, en outre, les pays de l’Orient son I encore, au point de vue rehgieux, dans leur droit et leur justice, ce qui—soit dit pour leur défense—était encore le cas, dans les pays Chrêtiens, il y a cent’ans ou même moins. Ainsi, devant les tribunaux ottomans de l’empire tare, le témoignage des chrétiens n’est pas, en fait, admis sur le même pied que celui des musulmans, le cheikulislam n’ayant pas encore donné son autorisation aux cadis. (Voir le rapport de Sir Travers Twiss dans le tome V de l’Annuaire.)

Concessions by the sovereigns ot Constantinople and the region which it dominates of extraterritorial privileges were issued by the Christian Emperors to Venice early in the eleventh century; to the Amalfians in 1056 to the Genoese in 1098; to Pisa in 1110. The charters granting these privileges were called “capitulations,” from the fact that they were divided into chapters; and this title they continued to hold after the Moslem conquest. When the Turks took possession of Constantinople, after the conquest of 1453, they found the Genoese in possession, under a specific capitulation, of the town of Galata, which was surrounded by an intrenched camp. This capitulation was confirmed by Mahomet when master of Constantinople. Capitulations to Venice, dated October 2, 1540, granted to Venetians the right of having all differences between Venetians in Turkey decided by judges to be appointed by Venice, while to the trial before Turkish courts of differences between Venetians and Turks, the presence of a Venetian interpreter was an essential condition. In the same capitulations was given to Venice the right of having permanently at Constantinople a magistrate, as a sort of Venetian viceroy, by whom general supervision over Venetians was to be exercised. Venetians, by the same instrument, were exempted not merely from military service, but from the tax to which other Christians were subjected.

The law In this respect is thus summed up by M. F. Laurent, in his Droit Civil International, vol. 1, page 230, as translated in this Department:

The conquerors left to the conquered their law and a sort of autonomy; the Greeks, Armenians, Slavs retained their religious and civil establishment fits it existed at the epoch of the conquest; the Turks confine themselves to ruling, and this rule consists merely in levying the tribute imposed on conquered populations; they do not interfere with the administration of justice. As is the case with the Turks, the civil law is closely interwoven with the religions law; the conquerors left to the vanquished, together with their religion, a quite extensive civil autonomy, clothing the heads of the various religious communities with an authority analogous to the Saltan’s. This system was extended to the Europeans who settled in the ports of the Levant for commercial purposes. In them the settlers are governed by their own laws; this autonomy is guarantied them by the capitulations, a kind of convention made between the Sultan and the foreigners represented by their Government. The capitulations can not be altered without the consent of the Contracting parties. Hence this peculiar consequence, that the laws respecting foreigners and the rights assured to them only bind them when their respective sovereign states have accepted them. It can scarcely be said that the state is sovereign, for it does not proceed by the course of ordering arid commanding; the relations between the Government and the foreigners are governed by international and not by municipal law. It will certainly not be asserted that this peculiar establishment is due to a liberal disposition of mind or even to the tolerance of the conqueror, for the latter may easily leave to the conquered and to foreigners entire religious liberty without granting them an autonomy which destroys the very conception of the state. It is simply incapacity, oriental barbarism. It has been said of the Turks that they have camped in Europe; they rule over peoples who dwell side by side, among whom there is no bond of connection, and between the conquerors and the Conquered there is no connecting link save that of force.

To the same effect writes Mr. W. B. Lawrence, Commentaire gur Wheaton, vol. 4. pp. 106 ff.

To French subjects specific extraterritorial rights were given in the Capitulations issued in February, 1535, or, according to Yon Hammer, in February, 1536. (See l)e Testa’s Traités de la Porte Ottomane, vol. 1, pp. 15 ff.) These capitulations were from time to time renewed and amplified, until they took the shape of the capitulations, or “Lettres Patentes’ of May 30, 1740. De Testa, vol. 1, pp. 18G, 187.) Of the articles in this document, so far as they bear on the question of extraterritorial rights to foreign religious communions, I inclose a translation made in this Department and marked Exhibit A.

I have referred in detail to these capitulations, because they have sometimes been put forward as the basis on which rests the right of our missionaries in Turkey to the protection they claim. But, accepting the view of Mr. Pendleton King, by whom the mission at Constantinople has been recently ably conducted, I doubt the expediency of relying solely on the capitulations for this purpose, since I think it may be questioned whether under the text the “religieux,” to whom privileges are given, are not to be limited to persons of French nationality. It is not necessary, however, to thus limit ourselves. In the eighteenth article of the “capitulations and articles of peace between Great Britain and the Ottoman Empire, as agreed upon, augmented, and altered at different periods (beginning in 1675), and finally confirmed by the treaty of peace concluded at the Dardanelles in 1809,” as published by the Levant Company, 1816 (1 Br. and For. St. Pap., 750), we have the following:

XVIII. That all the capitulations, privileges, arid articles granted to the French, Venetian, and other princes, who are in amity with the Sublime Porte, having been in like manner, through favor, granted to the English, by virtue of our special command, the same shall be always observed according to the form and tenor thereof, so that no one in the future do presume to violate the same or act in contravention thereof.

As illustrating the nature of the rights subsequently recognized as residing not merely in Protestant missionaries in Turkey but in their converts I inclose several important documents, marked Exhibit B.

I also inclose a protocol of the conference which preceded the treaty of Paris of March 30, 1856, bearing on the same questions. This protocol is marked Exhibit C.

In the treaty of Paris referred to is the following article:

Art. IX. His Imperial Majesty the Sultan having, in his constant solicitude for the welfare of his subjects, issued a firman, which, while ameliorating their condition without distinction of religion or race, records his generous intentions towards the Christian populations of his Empire, and wishing to give a further proof of his sentiments in that respect has resolved to communicate to the contracting parties the said firman emanating spontaneously from his sovereign will.

The contracting powers recognize the high value of this communication. It is clearly understood that it can not, in any case, give to the said powers the right to interfere, either collectively or separately, in the relations of His Majesty the Sultan with his subjects, nor in the internal administration of his Empire. (Holland’s Eastern Question, 246.)

The firman to which the ninth article, as given above, refers, is the Hatti-Humayoun of February 18, 1856 (ibid., 329, ff), which virtually makes general the concessions of extraterritoriality given in the capitulations above-cited.

From the report of the conferences which resulted in the treaty of Berlin of July 13, 1878, I make several extracts, marked in the Exhibit D.

Among the articles of the treaty of Berlin of July 18, 1878, are the following:

Art. LXI. The Sublime Porte undertakes to carry out, without further delay, the improvements and reforms demanded by local requirements in the provinces inhabited by the Armenians, and to guarantee their security against the Circassians and Kurds.

It will periodically make known the steps taken to this effect to the powers, who will superintend their application.

Art. LXXII. The Sublime Porte, having expressed the intention to maintain the principle of religious liberty, and give it the widest scope, the contracting, parties take notice of this spontaneous declaration.

In no part of the Ottoman Empire shall difference of religion be alleged against any person as a ground for exclusion or incapacity as regards the discharge of civil and political rights, admission to the public employments, functions, and honors, or the exercise of the various professions and industries.

All persons shall be admitted, without distinction of religion, to give evidence before the tribunals.

The freedom and outward exercise of all forms of worship are assured to all, and no hinderance shall be offered either to the hierarchical organizations of the various communions or to their relations with their spiritual chiefs.

Ecclesiastics, pilgrims, and monks of all national ties traveling in Turkey in Europe, or in Turkey in Asia, shall enjoy the same rights, advantages, and privileges.

The right of official protection by the diplomatic and consular agents of the powers in Turkey is recognized both as regards the above-mentioned persons and their religious, charitable, and other establishments in the holy places and elsewhere. (Holland’s Eastern Question, 306;)

As an exposition of the effect of the articles above cited, I inclose, marked Exhibit E, a translation made in this Department of a passage from an article by Mr. Ed. Engelhardt, in the Eevue de droit international et legislation comparée, vol. xii, p. 373.

This passage shows the construction assigned by the British Government, and accepted by Turkey, to the treaty of Berlin, so far as concerns the religious liberty of Protestants.

I have inclosed the above documents in this instruction because (1) they indicate the basis on which rests the extraterritoriality in Turkey of our citizens both as to religious liberty and as to distinctive judicial organizations, and (2) these documents may not be readily accessible in Constantinople. From them you will See that there is no necessity of basing the claim of American missionaries in Turkey on the French capitulations. They are maintained far more effectively under the treaties of Paris and of Berlin, under the Turkish decrees which preceded these treaties, and under the settled customs of the Porte.

The construction given by Turkey to these treaties, and especially to the capitulations to Great Britain quoted above, is evidenced by her continued protection of the American missions in Turkey, with their hospitals and schools, in which Turkish patients are received and Turkish children instructed. These missions have been in existence for many years. They have now connected with them six colleges, forty-three seminaries and high schools, attended by two thousand pupils, and five hundred primary and secondary schools with over ten thousand pupils. Of these schools Mr. Hyde Clarke, in the Journal of the British Statistical Society for December, 1867, page 526, thus speaks:

By the assistance of American funds and [the devoted exertions of the American missionaries, men and women, a great influence has been exerted in the Armenian body generally; their services have not been so much devoted to theological propagandism as to rendering service as physicians, teachers, and social reformers. In these institutions a million of dollars, sent from the United States, has been invested, and from the United States their pecuniary support as well as most of their teachers are obtained. For more than half a century Turkey has seen these funds flow in, these schools built, these hospitals in beneficent operation, these children in process of instruction. “During the sixty years that American schools have existed in Turkey,” so it is stated in an official communication from the American Board of Commissioners of Foreign Missions, which has these missions in charge, “it (Turkey) has not only not interfered with or objected to them, but it has repeatedly protected them against unlawful aggression on the part of ill-disposed persons.”

The protection by Turkey of the schools established by other religious communions on Turkish soil, a protection which has existed from a time coincident with the establishment of such schools, shows that Turkey regarded them as among the incidents of the territorial rights assigned by the capitulations to those religious communions. We have, therefore, in this protection not merely a contemporaneous construction of the Turkish capitulations, treaties, and edicts, but a construction so continuous that it has the force of settled law. And this construction is strengthened by the fact that the Porte has ordered that no duties should be charged on goods coming to the American missions or schools. There could be no stronger proof that these missions and schools are regarded by Turkey as having not merely a protected but a favored existence on her soil.

It has been argued by high authority that the right on the part of American missionaries in Turkey to the continued maintenance of their churches, hospitals, and schools may be rested on the “favored-nation” clause of our treaty of 1862 with Turkey, applying to us privileges granted to other sovereignties. Turkey has claimed that this treaty has terminated by notice; and though there is little strength in this contention, it is not necessary that the question should now be raised. The rights of the missionaries above noticed find abundant support in ancient usage and in the Turkish legislation prior and consequent to the treaties of Paris and Berlin, applied, as this legislation has been, in such a way as to grant what are virtually charters to the missions in question for their hospitals and schools.

From what has been said it will be seen, therefore, that the right of Protestant citizens of the United States to conduct their missions, chapels, hospitals, and schools in Turkey in the way they have been heretofore conducted, test on the privileges of extraterritoriality granted to Christian foreigners in Turkey, as expanded in the present case by usage established by Turkey, so as to enable persons of Turkish nationality to be received in such hospitals and schools.

So far as concerns the right of Americans, whatever may be their religious faith, to protection in the exercise of that faith, the right rests on the concessions of extraterritoriality above stated. So far as it concerns their right to receive in their hospitals and schools (otherwise than as servants) persons of Turkish nationality, it rests on usage, amounting, from duration and the incidents assigned to it by law, to a charter. It is not, however, claimed that as to such persons of Turkish nationality extraterritorial rights in American missions can be acquired. They must remain subject to the sovereignty of the Porte, which, is entitled to prescribe the terms on which they can be permitted to attend such missions. It is, therefore, with peculiar satisfaction that the Department learns that, in part through the instrumentality of Mr. Pendleton King, as chargé d’affaires, an arrangement has been effected with the Turkish authorities by which the missions are enabled to pursue, as heretofore, their meritorious, unselfish, and beneficent work among Turks in Turkey.

I inclose herewith, as a matter of information, an opinion by Mr. Edwin Pears, lately forwarded to this Department by American citizens residing in Constantinople, as to their legal rights. Mr. Pears is well known as president of the European bar at Constantinople, and as an accomplished lawyer and historian.

I am, etc.,

T. F. Bayard.

Exhibit A.

Article 1. There will be no interference with Frenchmen who come and go to visit Jerusalem or with members of religious orders who are in the Church of the Holy Sepulcher, called Camamat. (In the appendix to this document, No. 1, clause l, by De Testa, he quotes Blanchi as saying: “While the official translation of Deval appears to extend indifferently to all members of religious orders who are in the Church of the Holy Sepulcher the protection accorded by this article 1, the Turkish text limits it to those who are French. * * * (Turkish) * * * We must not, however, conclude from that that the Porte holds rigorously to that limitation. The members of Catholic orders, who are at Jerusalem, are nevertheless protected by France even if they are Spaniards or Italians (see articles 33, and 82, which are still more explicit in this respect”).

Art, 33. As the hostile (i e., non-Mahometan) nations who have no special ambassadors at my Sublime Porte went and came up to the present time in our territories under the banner of France, whether for commercial purposes or on pilgrimages, in accordance with the Imperial permission which they had received under our predecessors of glorious memory, as is likewise also conveyed by the ancient capitulations accorded to the French; and as, further, for certain reasons, the entrance into our states had been absolutely forbidden to these same nations, and they had been restricted by these same capitulations, nevertheless, the French Emperor having shown by a letter which he addressed to our Sublime Porte that he desired that the hostile (non-Mahometan) nations which were forbidden to trade in our territories should have the liberty of coming and going to Jerusalem as they had been accustomed to do, without being in any way molested, and that if, consequently, it were permitted to them to come and go on business in our territories, it should be under the French nag as before, the request of the French Emperor should be acceded to in consideration of the ancient friendship which from the time of my noble predecessors has subsisted from father to son between His Majesty and the Sublime Porte, and that an Imperial decree should be issued of the following tenor, to wit:

“That the Christian and hostile (non-Mahometan) nations which are at peace with the French Emperor, and who may wish to visit Jerusalem can go and come there, within the bounds of their status (or in the exercise of their business or profession) in the usual manner with complete liberty and safety without any one’s causing them trouble or hinderance, and if subsequently it is desirable to accord the said nations the liberty of trade in our territories they shall go and come in that case Tinder the flag of the French Emperor as before, without permission to come and go under any other flag.

“The ancient Imperial capitulations which are in the hands of the French from the time of my illustrious predecessors until now, and which have just been above referred to in detail, having now been renewed with the addition of some new articles, conformably with the Imperial order issued by my hattu-cherif; the first of these articles provides that the bishops belonging to France, and other members of religious orders who profess the Frankish religion, of whatever nation or race they may be, when they confine themselves to their calling, shall not be at all troubled in the exercise of their functions in those localities of our Empire where they have been for a long time.”

It is to be observed, however, that De Testa, in a note to this clause, states that the Turkish text reads not “of whatever nation,” but “of whatever order.”

Art. 82. When the places of which the members of religious orders subjects of France have possession and enjoyment at Jerusalem, as is stated in the articles previously accorded and now renewed, shall need repairs to prevent the ruin to which they would be exposed by the lapse of time, permission shall be given on the demand of the French authorities residing at my Sublime Porte for orders to have those repairs made in a manner conformable with the decrees of justice, and the cadi, commanders, and other officers shall not put any hinderance to the things accorded by command. And, as it has happened that our officers, under pretext that secret reparations had been made in the above mentioned places, have made several visits there in the course of a year and imposed a fine on the members of religious orders (religieux), we decree that, on the part of the pashas, oadis, commanders, and other officers stationed there, that only one visit a year should be made to the church at the place which they call the Sepulchre of Christ, as also the other churches and places visited. The bishops and members of religious orders under the French Emperor who are in my Empire shall be protected as long as they keep within the limits of their calling, and no one shall prevent them from exercising their rites, according to their custom, in the churches which are in their hands, as also those in the other places where they dwell; and when our tributary subjects and the French go and come between their respective residences for sales, purchases, or other business, they must not be molested contrary to sacred law on account of these visits; and, as it is provided by the above-mentioned articles that they may read the Scriptures in the line of their duty in their hospital of Galata—that, however, not yet having been carried out—we decree that, at whatever place that hospital may in future be legally situated, they may, conformably with ancient capitulations, there read the Scriptures in pursuance of their duties without being interfered with in sp doing.”

Exhibit B.

Pera , November 25, 1850.

[Extract from British and foreign State Papers, 1850–’51, vol. 40, p. 226.]

M. S. Pisani to Sir Stratford Canning.

I have the honor to transmit, inclosed herewith, a legalized copy of the firman in favor of the Raya Protestants, as sanctioned by the Sultan, which Aali Pasha requested me to forward officially to your excellency.

S. Pisani.

Firman in favor of Protestant Mayas.

[Translation.]

[Communicatee October 24, 1850.]

To my vizier Mehemed Pasha, minister of police at my capital.

Whereas the Christian subjects of my Empire who are Protestants suffer under some difficulties and inconvenience owing to their not having been yet placed under a separate and special jurisdiction, and to the natural inability of the patriarch and chiefs of the sect which they have abandoned to administer their affairs; and, whereas, conformably to the royal solicitude and benevolence which I entertain toward all classes of my subjects, it is against my royal pleasure that any of them should he exposed to trouble—the Protestants now forming a separate community—it is my royal will that measures, should be taken for insuring the proper administration of their affairs, and for enabling them to live in peace and security: It is, therefore, my imperial will and command that a respectable and trustworthy member of that sect should be chosen by themselves and appointed, with the title of “Agent of the Protestants,” and be attached to the department of the minister of police; that the register of the community kept in his charge should be deposited in that department; that the births and deaths should be there entered by their agent; and that their passports, marriage licenses, and other matters appertaining to the community to be transacted at the Porte or elsewhere should be procured and transacted by means of memorials sealed with the seal appertaining to the office of the aforesaid agent. And the present royal edict has been issued from my imperial divan to the above effect.

You, therefore, the aforesaid inushir, on learning that such are my royal commands, will attend to the strict exepution of the regulations in question as aforestated. As the issue of passports and the assessments of the taxes come under a special regulation, you will not suffer any thing to be clone in contravention thereto; you will not permit any fees of “haratch” to be taken from them for the issue of their marriage licenses or for their registration.

You will afford them every assistance and facility in the transaction of all their affairs, and in all matters concerning their burial places and their places of worship like unto the other communities which are subjects of my Empire. You will not permit any interference whatsoever on the part of other communities in their religious rites or in their temporal concerns—in none of their temporal or spiritual affairs in short—but will enable them to perform the religious observances of their sect in security. You will be careful that they do not suffer any molestation whatever either in this or in other respects, and that proper means arc taken to enable them to live in peace and security, with free access, when necessary, by their agents to my Sublime Porte.

You will be mindful that the present imperial edict be registered at the proper office and confirmed in favor of the aforesaid subjects, and you will continue to pay strict attention to the injunctions contained therein.

Be, it thus known unto you, and give full credence to my imperial cipher.

Viscount Palmerston to Sir Stratford Canning.

Foreign Office , December 24, 1850.

Sir: I have received your dispatch of the 26th November, inclosing a translation of the firman in favor of Protestants in the Turkish Empire which has received the sanction of the Sultan, and I have to state to your excellency that the version of that document inclosed in your dispatch appears to Her Majesty’s Government to be as complete and as satisfactory as possible; and Her Majesty’s Government look forward with extreme interest to the permanently beneficial effects which this firman must necessarily produce.

I am, etc.,

Palmerstoh.

[Extract from British and Foreign State Papers, 1854–’55, vol. 45, p. 799.]

Imperial firman of June, 1853, addressed to the Agent of the Protestants.

[Translation.]

To the Agent of the Protestants, Stephen; may his honors increase. Decreed:

God, the dispenser of mercies, in placing my august person, in pursuance of his, eternal will, upon the glorious and exalted throne of the Imperial Caliphate, having confided to my royal hands and sovereign rule as a sacred and a special deposit—to him be the thanks and glory—numerous countries and cities and many people of all classes and nations: Ever since the glorious day on which J ascended the throne, according to the imperial duties imposed upon the Caliphate, my Government has never ceased, (by the divine grace), conformably with my royal will and sincere and benevolent intentions, to give practically their constant and careful attention, that all classes of my imperial subjects should enjoy-full protection, and that they should be more especially, one and all, at perfect ease with regard to their religious and spiritual affairs.

The beneficial effects and advantages accruing thereby have been at all times manifest, and it is my ardent imperial desire that no abuses whatever should arise out of negligence or carelessness. I therefore wish and require that the special concessions granted by me in favor of my faithful Protestant subjects, concerning their worship and religious affairs and all other concerns relating thereto, should be at all times preserved inviolate; and my peremptory imperial orders have been issued, to-wit, that no contravention whatever of those concessions should take place, and that any persons acting in contravention thereto should know that they will thereby incur my royal displeasure.

In order to remove all grounds of excuse on the part of those who should be guilty of negligence in these matters, communication hereof has been made to the necessary authorities, and this high decree has been issued from my imperial divan, in public confirmation of my royal intentions, for the complete and truthful execution thereof.

You, the aforesaid agent, shall, on receipt of these presents, act always in conformity with this imperial order, and be careful in abstaining from any contravention thereof. On the occurrence of anything inconsistent with this peremptory decision, you will hasten to make immediate representation thereof to our Sublime Porte.

Be it therefore thus made known unto you, giving full credence to my Imperial cypher.

Given in the third decade of the illustrious moon of Shaban, in the year 1269 (beginning of June, 1853).

The Earl of Clarendon to Lord Stratford de Redcliffe.

Foreign Office , July 4, 1853.

I have to acquaint your excellency that Her Majesty’s Government have received with satisfaction the firman issued by the Sultan in behalf of his Protestant subjects, inclosed in your dispatch of the 8th instant.

Clarendon.

Lord Stratford de Redcliffe to the Earl of Clarendon.

Constantinople , December, 6, 1853. (Received January 12, 1854.)

My Lord: Although the firman which was granted some time ago, at my request, to the Sultan’s Protestant subjects, placing them on the same footing with other religious communities, not Mussulman, in the Empire, contained every privilege which it was reasonable for them to enjoy, I had long endeavored in vain to obtain its official transmission to the pashas commanding in the province. I have now to state that the Porte has at length acceded to my earnest and repeated solicitations. The firman in question has been promulgated by its official transmission to all governors of places wherever a Protestant society is said to exist. For your lordship’s more complete information, a copy of M. Pisani’s report to me upon the subject is inclosed herewith, and I trust that the fresh mark of Imperial favor now conferred upon the Protestants of this Empire will be agreeable to Her Majesty’s Government.

I have, etc.,

Stratford de Redcliffe.

M. E. Pisani to Lord Stratford de Redcliffe.

Pera , December 5, 1853.

My Lord: I have the honor to report that the Porte, out of consideration for your excellency’s repeated representations, has just promulgated the firman acknowledging the Rayah Protestants as a separate community in such of the provinces pointed out in a list given by their vakeel, namely, Broussa, Adrianople, Sivas, Trebizond, Salonica, Adana, Hodgaelli, Amassia, Bodosto, Sarouhan, Bojouk, Marash, Saida, Moussool, Aintab, Toultcha, Arabkir, Kaisserieh, and Biarbekir. At Smyrna, Aleppo, and Erzeroum, it was communicated some time ago. This firman, which is respectively addressed to the governors of the above mentioned places, has been delivered to the vakeel for transmission to the authorities to whom it is directed.

I have, etc.,

E. Pisani.

Exhibit C.

[Extract from the proceedings of the Conference of Paris.]

[Translation.]

Protocol No. 14—Session of March 25, 1856.

The plenipotentaries of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey.

The protocol of the preceding session was read and approved.

The plenipotentiaries of Russia were requested to communicate to the Congress the observations whose presentation they had reserved relative to the wording inserted in protocol No. 13, and to the fourth point.

Baron Brunnow stated that by the securing of the full enjoyment of their privileges to the Christians of the Ottoman Empire, an additional guaranty to peace, and by no means the least valuable, had been furnished; that consequently the importance of the hattischerif which had recently emanated from the sovereign will of the. Sultan could not be too highly appreciated; that the plenipotentiaries of Russia did not hesitate to admit, and that they were moreover, happy to declare that that instrument, each paragraph of which furnished abundant evidence of the benevolent intentions of the Sovereign who had issued it, fulfilled and even exceeded all their hopes; that it would be rendering homage to the profound wisdom of the Sultan, and furnishing evidence of the solicitude by which all the Governments of Europe were equally actuated, to make mention thereof in the treaty of peace; that they were agreed on that point, and that all that was thenceforth necessary was to reach an understanding with regard to the terms. Baron Brunnow added that the particular interest felt by Russia in the Christians of Turkey had induced him fully to assent to the first wording, which, however, appeared to have given rise to certain objections, although that wording; according to the unanimous opinion of the Congress made the execution of the instrument which it is proposed to mention in the treaty entirely dependent upon the sovereign will of the Sultan, and stipulated that no power could derive any right of interference therefrom.

“Out of regard,” he added, “for susceptibilities which we respect, we therefore renounce this, and propose to the congress a wording which seems to meet all requirements, while it remains within the limits which we have drawn.” Baron Brunnow then read the proposed wording, which was as follows:

“His Majesty the Sultan, in his constant solicitude for the welfare of all his subjects, without distinction of religion or rape, having issued a firman which gives evidence of his generous intentions towards the Christian population of his Empire, has resolved to bring the said firman to the knowledge of the contracting powers.

“Their Majesties the Emperor of the French, etc, recognize the high value of this spontaneous act of the Sultan’s sovereign will. Their aforesaid Majesties accept this communication as a new pledge of the amelioration of the lot of Christians in the East, which is the common object of their desires, in the general interest of humanity, civilization, and piety.

“In thus stating the unanimity of their intentions, the high contracting parties declare, with one accord, that the communication of the above instrument can be the occasion of no collective or isolated interference in the internal affairs of the Ottoman Empire to the detriment of the independence and dignity of the authority of the sovereign in his relations with his subjects.” (British and Foreign State Papers, 1855–1856, vol. 46, page, 97).

Exhibit D.

[Extract from the proceedings of the Conference of Berlin.]

[Translation.]

In the second proposition, having special reference to Catholic bishops and monks, Count Schouvaloff moved to substitute for these words “foreign ecclesiastics and monks.”

Lord Salisbury desired to have the same laws enacted on this subject for Roumelia and the other Turkish provinces.

Caratheodori Pasha declared that a proposition concerning the free exercise of religion in the province of Eastern Roumelia seemed altogether superfluous, since that province was to be subject to the authority of the Sultan, and consequently to the principles which, were common to all parts of the Empire, and which established toleration for all religions without distinction. (British and Foreign State Papers, vol. 60, 1877–1878, page 935.)

The president stated that the Congress unanimously shared the desire of France to place on record the declarations made by Turkey in favor of religious liberty. Such was the object of the French plenipotentiaries, and it has been attained. Lord Salisbury would be glad to go farther, and to extend the original proposition not only to Bulgaria and Roumelia, but to the entire Ottoman Empire. As to Germany, Prince Bismarck, who had given in his adhesion to the French proposition, would also have willingly accepted that of Lord Salisbury, but the discussion of so complex a question would divert the congress from the object of its present session. His Most Serene Highness nevertheless asked Lord Salisbury whether he intended to present a special motion on this subject.

The second plenipotentiary of Great Britain reserved the privilege of returning to this point in connection with Article XXII of the treaty of San Stefano.

Count Scbouvaloff added that Lord Salisbury’s wish to see religious liberty extended as far as possible in Europe and Asia seemed to him to be very proper. His Highness would like to have mention made in the proctol of his adhesion to the wish of the plenipotentiary of England, and remarked that, as the congress had sought to obliterate all ethnographical frontiers, and to substitute commercial and strategical frontiers therefor, the plenipotentiaries of Russia were all the more desirous that those frontiers should not become religious barriers.

The president summed up the discussion by stating that it would be mentioned in the protocol that the congress had unanimously accepted the French proposition, and that the majority of the plenipotentaries had expressed the wish that religious liberty might be extended. This point would be included, moreover, in the discussion of Article XXII of the treaty of San Stefano. (British and Foreign State Papers, vol. 69, 1877–1878, page 943.)

The Marquis of Salisbury reminded his colleagues that he had distributed among them, before the session, a proposition to substitute the following provisions for Article XXII:

“All the inhabitants of the Ottoman Empire in Europe, whatever may be their religion, shall enjoy full equality of rights. They shall be eligible to all public offices and honors, and shall be equally allowed to testify before the courts.

“The exercise and outward practice of all religions shall be entirely free, and no obstacle shall be placed in the way of the hierarchical organization of the different communions, or of their relations with their spiritual heads.

“Ecclesiastics, pilgrims, and monks of all nationalities traveling or sojourning in Turkey in Europe or Turkey in Asia shall enjoy entire Equality of rights, advantages, and privileges.

“The right of official protection is recognized as belonging to the diplomatic and consular officers of the powers in Turkey, both as regards the persons above mentioned and their possessions, religious, charitable, and other establishments in the holy places and elsewhere.

“The monks of Mount Athos shall be allowed to retain their possessions and the privileges which they have hitherto enjoyed, and shall, without exception, enjoy entire equality of rights and prerogatives,”

Lord Salisbury explained that the first two paragraphs of this proposition represented the enforcement in the Ottoman Empire of the principles adopted by the congress, at the request of France, with regard to Servia and Roumania. The object of the last three paragraphs, he said, was to extend the benefit of the stipulations of Article XXII (which had special reference to Russian ecclesiastics) to ecclesiastics of all nationalities.

The president also remarked that the object of the English proposition was to substitute all Christendom for a single nationality, and began the reading of the document by paragraphs.

With regard to the first paragraph, Caratheodori Pasha remarked that the principles of the proposition were, beyond a doubt, acceptable to Turkey, but that he would not wish them to be regarded in the light of an innovation. He then read the following communication on this subject, which he had just received from his Government:

“In view of the declarations made before the congress on various occasions in favor of religious toleration, you are authorized to declare that the sentiment of the Sublime Porte is in all respects favorable to the object had in view by Europe. Its most constant traditions, its ancient policy, the instinct of its people, everything induces it to feel as it does in this matter. Throughout the Empire the most different religions are professed by millions of the Sultan’s subjects, and not one has been molested in his belief or in the exercise of his mode of worship. The Imperial Government is determined to maintain this principle in its full force, and to give it all the extension that it calls for.”

The first plenipotentiary of Turkey would therefore be glad (if the congress should adopt the English proposition) to have it at least stated in the text that the principles in question were in harmony with those by which his Government was guided. His excellency added that, contrarily to what was the case in Servia and Roumania, there existed, according to Ottoman law, no inequality or incapacity in the Empire that was based upon religious grounds. He then asked for the addition of a few words indicating that this rule had always been enforced in the Ottoman Empire, not only in Europe, but in Asia also. The congress, he thought, might add, for instance, “according to the declarations of the Porte and the previous regulations, which it declares that it desires to maintain.”

Lord Salisbury said that he had no objections to the request of Caratheodori Pasha, but he desired to remark that those regulations or provisions were, indeed, to be found among the declarations of the Porte, but that they had not always been observed in practice. His excellency, however, was not opposed to a request being made to the committee on wording to insert the addition desired by the Ottoman plenipotentiaries.

After a discussion on the words “in Europe,” for which Caratheodori Pasha proposed to substitute “in Europe and Asia,” the congress decided that the special designation of Europe should be stricken out, and that the paragraph should be referred to the committee on wording, with a recommendation that the declarations of the Sublime Porte be considered.

The second and third paragraphs were adopted without change.

With regard to the fourth paragraph, Caratheodori Pasha asked the attention of the congress to the fact that the right to official protection was recognized by this passage in the case of the possessions of ecclesiastics, etc His excellency asked that the word “possessions” might be stricken out, basing his request on the protocol of 1868, relative to the right of foreigners to hold property, which excluded all special protection in the case of real property. If the real estate held by ecclesiastics, which, according to the protocol of 1868, was subject to local jurisdiction, should, by the terms of the fourth paragraph, be placed also under the official protection of diplomatic and consular officers, serious administrative and judicial difficulties would arise.

Mr. d’Oubril said that the word “possessions” was in the text of the treaty of San Stefano.

Caratheodori Pasha having insisted upon the practical difficulties to which the paragraph thus worded would give rise. Prince Bismarck called attention to the circumstance that the privilege in question was, in fact, granted to Russian ecclesiastics by the treaty of San Stefano, and asked whether Turkey preferred to extend that privilege to all the powers.

Mehemed Ali Pasha said that Ottoman jurisdiction, in the case of real property, had been the condition on which the right of foreigners to hold property in Turkey had been recognized. If consular protection on some real property should be re-established, the right to the property might be contested.

Count Corti, without opposing the suppression of the word “possessions,” thought that they might add to the article simply the words “according to the laws and conventions now in force.”

After further observations by the Ottoman plenipotentiaries, the congress consented to the suppression of the word “possessions.”

Mr. Waddington, alluding to the last line of the fourth paragraph, deemed it his duty to remind the congress of the rights which France had acquired, and remarked, moreover, that express reservations had been presented by his Government, before the meeting of the congress, with regard to the holy places.

The president said that those reservations had been made by France as a condition of her participation, the congress, and that the observation of Mr. Waddington was fully justified.

Count Andrassy added that they had, indeed, at the very outset, been communicated to the Austro-Hungarian Government, which had assented thereto.

The first plenipotentiary of France desired that account should be taken of the rights of France in the paragraph itself, which would thus furnish evidence of the maintenance of the status quo.

The president proposed to add “without detriment, however, to the rights acquired by France.”

Prince Gortchacow expressed a desire that the status quo should be mentioned as maintained by all the powers.

Mr. Waddington submitted the following wording to the congress as an ending of the fourth paragraph:

“The rights acquired by France are expressly reserved, and it is understood that there shall be no infringement of the status quo in the holy places.”

This proposition was unanimously adopted. It was to be inserted in the fourth paragraph, which was likewise adopted.

Mr. d’Oubril asked tnat in paragraph 5 the words “the monks of Mount Athos” might he followed by these: “whatever may be the country of their origin.” Paragraph 5 was adopted with this addition.

(British and Foreign State Papers, vol. 69, 1877–1878, pages 1009, 1010, 1011, and 1012.)

Exhibit E.

[Translation made In the Department of State of an extract from an article by Mr. Ed. Engelhardt in the Revue de droit international et législation comparée, Vol. XII, p. 373.]

It remained for the congress of Berlin to strike the most effective blow at the Porte’s autonomy respecting religious government. By article 62 of the treaty of July 13, 1878, the Turkish Government not only recognized the existence in the foreign diplomatic and consular officers of a right of official protection over the ecclesiastics, pilgrims, and monks of their nationality, and over their establishments; it bound Itself generally to maintain the principle of religious liberty, thus rendering itself liable to a control from which its own Mahometan establishment could not escape.

The sequence of the steps is clear; foreign intervention was first limited to the holy places, to the priests officiating in them, and to foreign visitors. It afterwards extends to the other foreign persons in holy orders, both of the Frankish or Catholic religion, and of the Greek faith; next comes the Ottoman Christians, the patronage of whom, unjustly contended for by Russia,^* has devolved upon the great powers; lastly, the mussulman religion itself is threatened in its ancient and jealous independence.

The autonomy of Islam, regarded solely from the religious point of view, had already been impaired at the time of the discussion of the fourth paragraph of the preliminaries of peace in 1856. The four deliberating powers, England particularly, had indicated the interest they felt in the suppression of the Mahometan law which punished apostasy and public blasphemy by death, representing that inasmuch as Turkey was about to form part of the European concert, it was impossible to acquiesce in the maintenance of a rule which was of the character of an insult to every civilized nation.^†

Moreover, during the years 1856 and 1857 the British embassy had more than once officially interceded in behalf of Mussulmen who had been converted or were about to be converted, and whom the local authorities were prosecuting as criminals, and long diplomatic correspondence had been exchanged on this delicate point of foreign intervention.^‡

After the treaty of Berlin, so delicate a treatment was not deemed necessary, and Europe was the spectator of an incident which in certain respects recalled the adventure of which Prince Mentchikoff was the hero, in 1853. Towards the close of the year 1879 the Turkish police arrested a mollah who had assisted an Anglican missionary in translating Christian works hostile to the Mahometan faith. In the eyes of the followers of Islam a more culpable act could not be conceived or one more odious than that of a priest of the national religion lending his personal assistance to a work of propagandism directed against that religion.

Ahmet Tewfik Effendi was therefore condemned as proven guilty of a crime defined by the law of the land.

The English embassador, whose intervention in this case had been asked by the agent of the London Church Missionary Society, did not content himself with intervening in behalf of his fellow-subject, who had himself been put under examination and arrest; he demanded of the Porte the immediate release of the ulema as well as his immunity from all punishment, alleging the liberty of conscience which the Sultans had promised their subjects, and the religious liberty embodied in article 62 of the treaty of Berlin. (Note of Sir H. Layard to the Porte, dated December 24, 1879.).

The ultimatum of Sir H. Layard was successfully supported by the representatives of Germany, Austria, Hungary, and Italy.

It would scarcely be possible to show more clearly that to the abdication of judicial functions, a result of the first capitulations, had succeeded in Turkey a second and not less grave abdication, that of absolute autonomy in religious matters.

Exhibit F.

Constantinople , January 21, 1887.

Legal opinion of Edwin Pears, barrister at law, on the naturalization treaty.

My opinion is asked as to the effect upon the rights of American citizens of Turkish origin of the clauses of a treaty between the United States and Turkey containing the following provisions (inter alia):

“His Majesty the Sultan agrees to recognize as citizens of the United States of America those subjects of his dominions who may have been or may be duly naturalized pursuant to the laws of the former country.

“If a citizen of the United States, naturalized in the Turkish dominions, shall resume his abode in the United States, without an intent to return to Turkey, he shall be held to have forfeited his naturalization. Reciprocally, if a subject of the Sultan, naturalized in the United States of America, shall resume his abode in the dominions of the former, without an intent to return to the United States, he shall be held to have forfeited his naturalization. The intent not to return shall be held to have been determined upon when the person naturalized in the one country shall have resided more than two years in the other.

“The intention not to return shall be assumed although before the expiration of the two years adverted to the person should temporarily leave the country the nationality of which he has abandoned. And the effect produced by a residence of two years shall not be interrupted by said temporary absence.

“American citizens naturalized in Turkey who four months after the exchange of ratifications of this convention shall have resided in the United States for more than two years, shall at the expiration of four months from the exchange of the ratifications of this convention be considered as having forfeited their Ottoman naturalization. And, reciprocally, Ottoman subjects naturalized in the United States of America, who shall have resided in Turkey for more than two years, shall, at the expiration of four months from the exchange of the ratifications of this convention, be considered as having forfeited their American citizenship.”

The first question which arises is, whether such clauses would be retrospective. In other words, Is there to be an irrebuttable presumption that an Ottoman subject who, having already duly obtained American citizenship, returns to Turkey for two years, shall lose his American naturalization, or are such clauses only to apply to those who obtain American naturalization in future?

There is nothing in the clauses to prevent them being retrospective. I think, in fact, that a fair interpretation makes them apply to all Ottoman subjects of origin who have obtained at any time American naturalization. Their effect, therefore, upon such American citizens will be to deprive them of American protection after two years from the time of their return to Turkey.

Once the treaty containing them is adopted by the two countries this is the effect, I believe, which any American court would give to the clauses in question.

My opinion, however, is asked what effect such clauses would have upon the rights of American citizens of Turkish origin now resident in Turkey. It becomes necessary to ask whether such American citizens have rights in the country of their origin, and if so how far do they exist. When a subject of a European state abandons his country of origin and obtains his naturalization in America, his status on his return to his country of origin must either be regulated by treaty or, in the absence of such treaty, by the municipal law of the country to which he has returned, unless the naturalizing state chooses to risk a constant conflict of laws. England provides for this difficulty in her “naturalization act of 1870,” and in the regulations drawn up by Her Majesty’s secretary of state in accordance therewith, by expressly stipulating that the protection accorded to the naturalized subject shall be afforded to him in every country except the country of which he was a subject previous to his naturalization.

The case of Turkey is, however, somewhat different, as I shall’ subsequently show. Still the proposition holds good that the status of an Ottoman subject by origin who has acquired American citizenship, and who returns to Turkey, is to be determined by treaties between the two powers, if such exist.

I ask, therefore, What is, in accordance with treaty, the status of an American citizen of Ottoman origin who has returned to Turkey? I answer without hesitation that if he acquired his naturalization before 1889 he is, under treaty, as completely under American protection and subjection in Turkey as a natural-born citizen of America in Turkey and within certain treaty limitations, applicable alike to naturalized and natural-born citizens, as he would be in New York.

In examining the position of an Ottoman subject who, before” 1869, had acquired foreign or American naturalization, the following points are worth noting:

(1) There existed no Turkish law by which an Ottoman subject was prevented from acquiring foreign naturalization.

(2) It was a well established and entirely recognized custom that when an Ottoman subject acquired foreign naturalization, such naturalization and the protection it afforded were continued to the person on his return to Turkey.

The Porte did indeed occasionally object to the granting of protection to its subjects who had never left Turkey, though in hundreds of cases such protection was afforded and continues still to be afforded. Thus, to cite one among many classes of cases, the English Government, between 1839 and 1842, gave “protection,” that is, the right to be under English jurisdiction in Turkey and not under Ottoman jurisdiction, to many families of Jews who were suffering persecution at the hands of the Turks, and Such protection is continued to the families of these Jews to the present hour. These classes of persons, called usually “protected persons” or “proteges,” who enjoy English rights and were subject to English liabilities and jurisdiction in Turkey, were Ottoman subjects who had never left Turkey. The case is far stronger of persons who had been abroad and had acquired foreign naturalization. Their right to the privileges of such naturalization, on their return, was indisputable and undisputed.

In 1869 a “loisur la nationalite” was promulgated in Turkey, by imperial decree, by which it was declared that no Ottoman subject who acquired foreign naturalization should have the benefit of such naturalization on his return to Turkey, unless he had obtained the consent of the Porte to subtract himself from subjection to the Sultan. This decree was accompanied by a vizirial letter, which in Turkey has the force of an official interpretation, and this expressly declares that this law on nationality shall have no retrospective effect.

Hence all subjects of Turkish origin who had acquired foreign naturalization before 1869 were entitled to the benefit of such naturalization in Turkey. This principle is well established, and there is not a consulate in Constantinople which does not contain among its members subjects of Ottoman origin who had acquired foreign naturalization. They had acquired the naturalization of the State in which they had resided and no opposition had been made to their continued protection on their return to Turkey.

This right they continue to exercise, as I have already stated, by treaty. But they had not violated Ottoman law in thus becoming naturalized. Nay more, such naturalized subjects who acquired this right before 1869 are, by Turkish law itself, as completely under American protection and subjection in Turkey as natural-born citizens, cause the “loi sur la nationalite” and the “Vizirial letter,” already referred to, disitinctly except those who have acquired foreign nationality from its operation, and expressly provide that they shall be allowed to continue to enjoy such nationality. Their status, therefore, both by treaty and by Turkish law, is fixed, and can only be disturbed by a new contract between the sovereign states, abrogating their privileges and abrogating them by what the Turkish vizirial letter itself recognizes as an act of injustice when it states that the “law as indeed all law is not intended to be retrospective.”

In reference, therefore, to the class of American citizens of Ottoman origin who acquired naturalization before 1869, and who have returned to Turkey, they are as completely entitled to the privileges of American citizens in Turkey as are the natural-born citizens of America. Their status, as American citizens, is recognized by Ottoman law, and it is only by an act of the American legislature or by treaty that they can be deprived of their rights.

In reference to those who have acquired American naturalization since 1869 the case is somewhat different. Before that year no permission was necessary to Ottoman subjects to enable them to abandon their nationality. If they have obtained the permission of the Ottoman Government to change their nationality, it is expressly provided that the Porte will have nothing more to say in regard to them. There is no stipulation regarding their status should they return to the dominions of the Sultan. Many Ottoman subjects have obtained the permission provided for; have obtained, also, naturalization in some other European country, and have then returned to Turkey to be recognized and registered as subjects of and under the jurisdiction of the state in which they have been naturalized. Such subjects and citizens of Ottoman origin are recognized by Turkey to be as completely outside her jurisdiction as the natural born and subjects or citizens of other states.

In the case of those Ottoman subjects who have not obtained the permission required since 1869, the practice which exists among the consulates and legations in Constantinople is somewhat different. Some treat the naturalized subject as entitled to protection in Turkey, and assume jurisdiction over him, and probably all are willing to grant him temporary protection during the time of a mere visit to the country. England, as I have already mentioned, has by her “Naturalization act, 1870,” established a general principle that protection shall not be afforded in the country to which the naturalized person belonged, but it has been judicially decided that this act is not retrospective. I need not remark that the status of the person would depend upon the municipal law of the country in which he was naturalized, or there would be a conflict of the laws of the two countries to which the person had been successively subject. I may add, however, that in reference to the class of persons now under discussion, namely, those who have acquired naturalization since 1869, and without the consent ofthe Porte, no European nation has gone to the extent suggested in the clause under examination, of providing that two years’ residence here shall be held to determine the intent not to return; that is, to raise a presumption juris et de jure of an intention to abandon the acquired naturalization, and shall be followed with forfeiture of such privilege. The principle which England has adopted is perhaps that which goes furthest in such a direction, but it differs widely in favor of the naturalized subject. England in such case merely allows her naturalization to be in abeyance during residence in Turkey. The person does not lose it. It springs into existence the instant he leaves Turkey. The fact that the person is known to be an English subject out of Turkey is itself a protection to him and helps to prevent those acts of oppression to which he might be subject if he were simply, as the clauses in question in the American treaty propose, cast out of protection. The effect, therefore, of them upon the rights of American citizens of Ottoman origin, would be to place them in a worse position than the corresponding class of persons subject to England, and indeed to every other European power.

It is hardly necessary to point out that great inconvenience and injustice would be caused all around if the persons in question were cut off from American protection by the adoption of the treaties in question. Business arrangements, partnerships, contracts, settlements, testaments, have been made on the belief that the persons in question were permanent American citizens. These matters affect “third and innocent parties who would be grossly injured if, for the redress of their wrongs or the enforcement of contractual obligations, they were sent before the notoriously corrupt courts of the Ottoman Empire instead of before the American consular courts. Women and children, many of the former American natural born, would find themselves subjects of an Eastern despotism instead of citizens of a free State. It would be easy to multiply instances of inconvenience and injustice which must necessarily occur if the clauses were adopted, but the indication of the above is sufficient.

I would suggest that in draughting the clauses in question the peculiar circumstances of Turkey have been overlooked.

The chief point of difference between Turkey and the European states apses from the existence of the treaties called capitulations, which places Turkey in an altogether exceptional position. It is difficult for one who has not lived in Turkey to conceive that there is here a series of imperia in imperio, and that by the fiction of international law every American citizen resident in Turkey is supposed to be in the United States. In technical words, the doctrine of exterritoriality applies to and covers the ordinary citizens of the United States, and of other Christian countries resident in Turkey, in the same way that it does here and elsewhere to the ambassadors and ministers of countries residing in the courts to which they are accredited. As it is of prime necessity to the understanding of the position of foreigners in this country that a clear notion of the capitulations should be given, I may be excused for referring to a sketch of their history which appears in a volume written by me and published by Longman, Greene & Co., of London, and Messrs. Harpers & Bros., of New York, and in extracting the following passage from that work—that is:

“These privileges” (namely, the privileges granted to foreigners) “were embodied in the capitulations with France in 1536, and though this treaty has been often withdrawn and embodied in many treaties with each European power, its provisions still remain the essential articles of the capitulations under which foreigners now live in the Ottoman Empire. The system which was then formulated in the French capitulations has not materially changed from that day to this. Each nation has now its treaty with the Porte. But as each treaty contains a most-favored-nation clause, the whole of the treaties or capitulations form a body of law which constitutes the capitulations under which foreigners live and under which their Governments exercise jurisdiction in the Ottoman Empire.

“In the best days of the Byzantine Empire something approaching a fusion or welding together of the various races into one people had taken place. But the influx of the new comers into the Empire during the century immediately preceding the Latin Conquest formed a population of so many different races, languages, and manners that the process of fusion stopped. As soon as the city came under Moslem rule fusion became impossible, and has been so ever since. The Mahometan is forbidden by his religion to grant equality to unbelievers. Christian subjects are rayahs or sheep. Hence, as might have been expected, there has never been a serious attempt to weld the various races under the rule of the Sultan into one people. But if it be impossible for the Moslem to grant equal rights to Christian and Moslem subjects, it is none the less impossible to extend similar rights to Christian foreigners. On the other hand, foreigners could not consent to live in a country where, by law, the Christian can hardly be said to have legal rights against a Mahometan. Hence the preservation of the system of capitulations became a necessity if Christian foreigners were to be induced to remain or to settle in the Empire. The Turks were compelled to recognize this, and as they found capitulations in full vigor—Galata being, as we have seen, a fortified city in the hands of foreigners at the time of the capture of the city in 1453—they continued the system. The history of the last four and a half centuries in Constantinople has been the history of the development of the system of capitulations.

“Such a judicial anomaly is only now possible or tolerable in a country where foreigners have and are entitled to have no confidence in the administration of the Government as the protector of life and property. Other nations have outgrown this system. The Turks have not done so. But though other European nations have progressed beyond the legal conception of a former time, there are many traces of the old system in their laws. The exterritoriality of ambassadors and the privileged of their retainers is a survival of this system. In Turkey, also, all the fights of jurisdiction enjoyed by foreigners are grouped round and closely connected with the rights conferred on ambassadors. But it is to be noted that in Constantinople the existing system is the direct lineal representative in unbroken succession of a wider exterritoriality which existed during the middle ages and had been continued from Roman times. Englishmen residing in France or other European states are properly left to seek redress in the courts of the country where they are dwelling. It is worth remembering, however, that Englishmen have had to fall back upon the early type of a colony in a strange country in several instances. The factories of India, of Lisbon, and of St. Petersburg, during the last century, and the consular courts of China and Japan owed their judicial system to a conception of law resembling that which led to the establishment of the capitulations in Constantinople, and all ultimately develop the legal fiction that the territory in the foreign country is a portion of the Empire from whose shores they have been planted.” (The Fall of Constantinople, “page 150, American edition.”)

Under the most favored nation clause, as I have already stated, America possesses the same privileges which have been granted to other states. Under these privileges many thousands of Ottoman subjects by origin have acquired the right of receiving the protection of other powers without having been out of the country of their origin and, still less, without their having acquired the rights of naturalization in accordance with the laws of the country whose protection they received.

The capitulations giving such rights to any country give it to the United States. As a fact, many of the capitulations expressly recognize the right to protect not only the subjects of the state with whom the treaty is made but others who are not only such subjects and who have always been recognized to be Ottoman subjects enjoying foreign protection. Thus, in the treaty of Denmark, article 13 provides that “si quelqu’un parmi les Danois ou dépendant d’eux vient à mourir,” his property is to be administered by Danish law.

Article 4 of the Spanish treaty says: “Les biens de tout sujet ou individu” under the protection of His Catholic Majesty. In article 19 of the same treaty it says “les sujets et protégés de sa Majesté Catholique.”

In the French treaty, article 64 reads: “Les négoeiants et les protégés de France.” Article 65 says “Si un francais ou un protégé de France.”

In the treaty of the royal court of Naples, which holds good for Italy, article 4 says: “En cas ou un negociant ou autre sujet du susdit Roi ou toute autre personne placé sous la protection de son pavilion,” and others might be added.

It results, therefore, that until quite lately Turkey made no objection to her own subjects passing under the protection of Christian powers and acquiring a semi-naturalization equivalent in Turkey, though perhaps in Turkey alone, to complete naturalization.

A fortiori, when they had duly acquired naturalization abroad, they were regarded by the Porte as being as completely subjects of a foreign State as if they were natural born. The fiction of exterritoriality covered such subjects or citizens of Ottoman origin, and they were regarded by the protecting power and by Turkey itself as domiciled in the country which had naturalized them.

With these explanations, it will be seen at once that the proposed treaty is, in spirit, altogether at variance with the treaties which have been entered into between Turkey and the other powers. It is, indeed, a great step in the direction of abandoning, on the part of America, the benefit of the capitulations which they in common with other Christian countries have acquired. But, it may be asked, why should not those capitulatory rights be abandoned? In the words of the late President Grant, uttered while in Constantinople, one may ask the question, as he had to ask himself while President of the United States: “How should we Americans like to see the Turks and other nations having their courts, their own systems of laws, and their own judges, administering the laws of the country to which they belong in New York?” The General had felt that there was an apparent injustice to Turkey. But he was careful to add that while these doubts had once troubled him, now that he had traversed the Ottoman Empire from Egypt to Constantinople, he had come fully to understand why capitulations were necessary, and he entirely recognized that neither Americans nor the citizens of any other civilized power would consent to live in Turkey if they were not under the shelter and protection of such treaties.

I may perhaps, as an Englishman, he permitted, in conclusion, to add the expression of my surprise that America, which has always shown herself regardful of the rights of her citizens, should be the first nation to think of accepting clauses which would place American citizens of Ottoman origin in a position of inferiority to the corresponding subjects of any other Christian nation. The act of injustice which would be committed if the clauses in question were adopted is so flagrant, will do so much injury to the American citizens in question, to women, who are natural born subjects of the United States, and will inflict so severe a blow upon American commerce with Turkey, that I feel sure the facts have only to be known to insure the rejection of these clauses. A large number of the citizens in question are men who have been brought under the educational and other moral influence of the noble band of American missionaries, which, I venture to think, is doing more to leaven the East with the principles of Western civilization and of a lofty morality than any other instrumentality in use. It is natural that some of the men who have been brought under their influence should have gone to America for professional education and commercial purposes. It is equally natural that some few of them should return to this country, some to practice their profession, some as missionaries, some in partnership with their fellow-citizens in America for the purposes of commerce. To throw such men out of American protection and to drive them back under the barbaric power which they have renounced, is an act of injustice to them which no nation has yet perpetrated on similar subjects, and which I am certain will never be tolerated by America if the facts of the Case are understood and the effects of the clauses of the treaty be once realized.

Edwin Pears,
Barrister at Law.

Constantinople , January 21, 1887.

Exhibit “G.”

Notes on the treaty rights of missionaries in Turkey as shown by the usage of past years.

The missionaries hold that their rights in the Turkish Empire rest upon the two fundamentals: Treaty prescription and established usage.

Usage alone establishes a right, but it also serves to show the interpretation put upon the treaties in the past, in cases where a new interpretation is proposed. It is this view of usage, as reinforcing our interpretation of treaties, which it is desired to place before the State Department.

(1) The usage of past years indicates that the Turkish Government has always interpreted the old French treaties liberally as conferring rights upon members of religious organizations not referred to in the treaty.

For instance: (1) Convents and their inmates, latin clergy, monks, and nuns (religieux) are allowed, under ancient treaties, the custom-house franchise as to their needful supplies imported from abroad. This franchise is unhesitatingly granted to: American missionaries on the ground that although they are not monks or nuns, and their established stations are not monasteries, they are in their religious system what monks and nuns and other “religieux” are in the Roman Catholic system.

(2) The usage of the past shows that the Turkish Government has hitherto interpreted the treaties as conferring the right of worship in private houses upon Americans. (See French treaty of 1740, art, 82.)

During sixty years American missionaries have enjoyed this right in all parts of Turkey unquestioned. The American Board has aided in opening some 300 or more evangelical places of worship m Turkey, and I believe that I am within the truth in saying that not 10 of these have been opened with permission of the authorities, it having been understood until within two or three years that any American clergyman is entitled to the rights conferred on the French clergy by this treaty, and hence that no official may question the opening of places of worship.

(3) The usage of the past also gives Americans the right of receiving natives in their houses for any purpose whatever (as conferred on the French by article 82, treaty of 1740).

The Turkish words indicating the objects for which French ecclesiastics may pay and receive visits may be interpreted “business” as in the State Department translation, but they have never been so interpreted. During sixty years American missionaries in Turkey have enjoyed as one of their treaty rights the privilege of receiving natives (Ottoman subjects) in their houses for any purpose, including religious meetings and religious instructions. I call this a treaty right because when enemies of evangelical work have asked the refusal of this freedom, the universal reply of the Turkish authorities has been, “We have no right to interfere.”

It is evident from these remarks that (1) the Turkish Government, if left to itself, has given the treaties the interpretation that includes protestant missionary bodies under the head of “religieux.” (2) That while American missionary institutions now existing in Turkey can be defended from attack on the basis of usage, the usage proves that Turkey has ever regarded them as protected by the treaties, and therefore the State Department should take the broad ground that they have their rights under the treaties, fortified by usage.

1. According to an interpretation, based upon contemporary facts, the clause of the treaty of Kutchuk-Kainaidji, by which the Porte promised to protect the Christian religion, only applied to the Christian provinces of the Danube and of the Archipelago which Russia had occupied and which she restored to the Sultan.
2. Dispatches from the British embassy, 4th, 18th, and 26th Feb., 5th Mar., 25th Apr., 30th May, 1856.
3. Dispatches from British embassy, 23d Sept., 1856, 26th Nov., 1857, 14th Aug., 1860.