Bayard to Mr. Straus.
Washington, April 20, 1887.
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 [Page 1095] 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 [Page 1096] 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.[Page 1098]
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 [Page 1100] 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 [Page 1101] 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.,
- 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.↩
- Dispatches from the British embassy, 4th, 18th, and 26th Feb., 5th Mar., 25th Apr., 30th May, 1856.↩
- Dispatches from British embassy, 23d Sept., 1856, 26th Nov., 1857, 14th Aug., 1860.↩