No. 694.
Mr. Bayard to Mr. Straus .

No. 37.]

Sir: I inclose for your information a copy of a dispatch from the consul of the United States at Smyrna, No. 27, of July 8, 1887, relative to the status of descendants of American citizens born in Turkey; also a copy of Department’s reply, No. 22, of the 9th instant, calling his attention to the Department’s instruction of April 20, 1887, No. 7, upon the general subject of the rights of American citizens in the Ottoman dominions.

I am, etc.,

T. F. Bayard.
[Page 1121]
[Inclosure 1 in No. 37.]

Mr. Emmet to Mr. Porter .

No. 27.]

Sir: I have the honor to inclose herewith a memorial signed by some residents, who have heretofore and still do enjoy the protection of this consulate.

For your better understanding of these cases I beg to make a few prefatory remarks, to show the origin of the question involved.

My dispatch No. 17, of February 12, brought to your notice “the status of the second generation of descendants of American citizens born abroad, whose fathers never resided in the United States.” In answer to the above I had the honor to receive yours of March 30, No. 14, on the 20th April, and thereupon made known its contents to Mr. F. Blackler, father of one of the children whose right to be enrolled on the consular register I had challenged.

In the third paragraph of your No. 14 the following appears: “When Blackler’s father became of full age and elected to remain in Smyrna and make his home there, his rights to the benefits of American citizenship ceased.”

On imparting this to Mr. Blackler he seemed utterly taken aback, and compared his status with others whose forefathers were native-born Americans, but who have left descendants who were born and are resident here.

Ten memorialists constitute this class of American citizens.

The statement made by the petitioners as to their performing the duties required of them by the several consuls at this port, I believe to be correct. In fact, Mr. Lang-don is one of the associate judges of this consular court at present) continued on the list since my predecessor’s term, reappointed by me and confirmed by the United States minister at Constantinople, Hon. S. S. Cox. He assisted me in one case, tried shortly after my arrival here.

The memorial was drawn by E. S. Offley, formerly United States consul at this post. He has availed himself of his experience in drawing his argument. One point strikes me as likely to lead to considerable trouble if he is sustained in his theory of “perpetual citizenship on the ground of exterritoriality.”

Provided this right is accorded to the descendants of native-born Americans, can it be likewise granted to those of naturalized Turks? As it is, the authorities here look upon the children of naturalized Turks, who have returned to their native land to reside, with much jealousy, and are loath to accord to their offspring, born here, the rights of American protection, which the parent has acquired and enjoys by right of naturalization.

If the limitation of citizenship, as fixed by section 1993 of Revised Statutes, is waived on the ground of its being a Mohammedan country and the right of exterritoriality, which the memorialists claim to be inalienable, prevails, the consular registers will in future be much augmented, as likewise the duties of consuls in the Orient.

A question which has been asked me several times since this matter came under discussion, and which I now respectfully submit to the Department, is, What specific act or form of election of citizenship must a descendant of a native-born or naturalized American perform or go through when he comes of age and is resident abroad in order to be entitled to the protection of the United States Government?

Can he appear before a United States minister or consul, declare his intentions, take the oath of allegiance, and receive a passport if he satisfies the officer of his American descent?

Can these acts be performed simultaneously?

I have, etc.,

W. C. Emmet.

Epitome of the annexed memorial.

The memorial submits:

(1)
That the decision of the Department of State affecting the rights of citizenship of one of the memorialists and of his child is founded on a misapprehension of facts, which are submitted for reconsideration. The memorialists are sons of native-born citizens and neither they nor their children owe allegiance to or are subjects of the Government and country of their birth. Hence section 173 of the Consular Regulations of 1881 on which the decision of the Department rests, does not apply to their case, and
(2)
That their and their children’s rights of citizenship proceed from treaty stipulations, which confer on them the rights of exterritoriality: and residing as they do [Page 1122] in a Mohammedan and not a Christian country they are entitled to the benefits issuing from these rights, which not only exempt both themselves and their children from the jurisdiction of the Turkish tribunals and Government, but also they are deemed by the law of nations to be still within the territory and jurisdiction of their own country, the United States.

The memorialists copiously quote, textually, from Wheaton’s El. Int. Law, Kent’s Com., the Consular Regulations of 1856, the Opinions of Attorneys-General, especially those of the Hon. Caleb Gushing, and from the Constitution in support of the aforesaid principle.

And they conclude, praying for the rescission of the decision aforementioned and for an official copy of the findings, of the Hon. Secretary of State in the premises.

[Memorial.]

Messrs. D. and J. H. Offley et al to Mr. Bayard .

Sir; We, the undersigned, Dayid and John Holmes Oftfey, James Davee Laugdon, and Francis Blackler, born and residing in this city of Smyrna, Turkey, legitimate grandsons and sons of native-born citizens, of the United States of America, who came to reside in this country for mercantile purposes, most respectfully submit:

That Francis Blackler aforesaid informed his co-subscribers to the present memorial that the United States consul in this city did refuse to register his on as a citizen of the United States, for the reason that be (Francis Blackler) had never resided in the United States, and hence the right of citizenship could not descend to his child;

That thereupon he, the said Francis Blackler, demurred, and the, consul kindly referred the subject-matter to the Department of State for further instructions!

That on receipt of the aforesaid instruction the United States consul informed Blackler contrary to his just expectation that not only did the Department of State approve his (the consul’s) refusal to register his (Blacklegs) son as a citizen, but further declared that; Blackler himself had forfeited his rights of citizenship and consequent protection of the Government of the United States on the following grounds:

A.
—That when he attained full age, he, the said Blackler, elected to remain in this country and make it Ins home; 5 and
B.
That the right of protection of the Government may he waived or lost by long-continued avoidance and silent withdrawal from the performance of the duties of citizenship, as well as by open renunciation.

That whereas the aforesaid decision of the Department of State equally affects the rights of citizenship of the undersigned David and John Holmes Offley and James Davee Langdon, they, conjointly with Francis Blackler, take the liberty to memorialise herewith the honorable Secretary of State on the subject-matter.

That the consul, in support of the decision aforesaid, showed us section 173 of the “Regulations prescribed for the guidance of the consular service of the United States” dated, 1881, and kindly allowed us to take a copy thereof.

To the foregoing we respectfully reply and say, respecting the grounds A and B aforesaid;

That we never elected this country as our home; and that we do claim, in conformity with the laws of the United States, to possess the same rights and privileges of citizenship and to nourish the same feelings of affection and love for our country as those citizens who have had the better fortune of being born therein.

That we neither impliedly nor openly did ever renounce our rights, nor have we forfeited them by the non-performance of our share of the duties of citizenship imposed by law upon citizens of the United States residing in Turkey.

We are conscious of never having failed to obey the summons of the United States consul whenever served upon us—

To assist as associates” in the trial of cases brought before the United States consular agent;

To act as American delegates before the Turkish tribunals on civil cases in which the claimant or defendant was a citizen of the United States, and the defendant or claimant an Ottoman subject, in obedience to the provisions of the treaty of May 7, 1830, between the United States and the Turkish Government;

To appear as witnessess and to perform every and all other duties required from us by the laws of the United States.

Respecting section 173 of the regulations aforementioned:

That the section above mentioned of the regulations may apply to citizens born in Christendom, but not to ourselves, who were born in this a Mohammedan country.

[Page 1123]

That we fail to see how section 173 of the regulations aforesaid can be so construed as to affect our rights of citizenship, even had we been born and did reside in a Christian and not a Mohammedan country.

We quote verbatim from the aforesaid section: “It is provided by law that persons born out of the limits and jurisdiction of the United States whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that the rights of citizenship shall not descend to persons whose fathers never resided in the United States” Within the sovereignty and jurisdiction of the United States such persons are entitled to all the privileges of citizens.

Now, E. S. Offley, the father of David and John Holmes Offley, was born under the flag of the United States, at the time when his father, David Offley, native-born citizen of Philadelphia, Pa., was proconsul of the United States and since consular commercial agent, and by instructions from the Department of State he carried on the long and protracted negotiations between the United States and Turkey which ultimately resulted in the conclusion of the treaty of May 7, 1830, and was duly commissioned on the 12th September, 1829, with Charles Rind and Commodore James 4 Biddle, by President Jackson, as joint and several commissioners of the United States to conclude, and did conclude, the treaty of May 7, 1830, aforesaid, when he was appointed their consul in this city. After the death of his father the said E. S. Offley held the office of United States consul at this place for nearly twenty years, during which period the said David and John Holmes Offley were born. Hence the latter were likewise born under the flag of the United States; besides which he, the said E. S. Qffley, did reside in the United States for some time.

Both the fathers of the other two memorialists, James Davee Langdon and Francis Blackler, were native-born citizens of Boston, Mass.

Hence our own individual rights of citizenship are clearly and uncontrovertible within the pale of the provisions of the section above last quoted, which entitles us to all the privileges of citizens.

Respecting the status of our children, for such of us as have or may hereafter have any, their rights of citizenship are equally clear, and their fathers are entitled to have them registered in the United States consulate of this city as citizens of the United States.

The aforesaid section 173 of the regulations provides that “if by the laws of the country of their birth children of American citizens born in such a country are subjects of its Government, the legislation of the United States will not be construed so as to interfere with the allegiance which they (our children) owe to the country of their birth while they continue within its territory?”

The legal rationale of the above maxim is that if our children were not subject or do not owe allegiance to the Turkish Government, then they are entitled to citizenship.

Now, the practice of the Turkish Government, a practice imposed on the game by treaty stipulations with all the powers of Christendom represented in this Empire, is that this Government does and can indeed consider as its subjects only such children born if its territory whose fathers are or were at the time of their birth. Turkish subjects, and not children therein born or the descendants of such children whose fathers and forefathers were or are subjects of or citizens of a foreign Christian state. This Government having thus invariably looked upon the latter class as subjects or citizens of foreign nations, and having never raised the least pretense of jurisdiction over them, the sequence is that according to the text of the aforesaid section of the regulations our children and their descendants are citizens of the. United States.

We hope the above statement will be regarded as haying conclusively demonstrated our rights and those of our children to citizenship, although the same are founded on a law which does not apply to Turkey but to foreign Christian countries,

Our rights of citizenship, however, rest, as we have already said, on treaty stipulations, as we will now proceed to show.

“* * * Hence the international law of the civilized Christian nations of Europe and America is one thing and that which governs the intercourse of the Mohammedan nations of the East with each other and with Christians is another and a very different thing.” * * * (Wbeaten’s E. Int. Law, p. 40, 3d ed., R. and C.)

“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 part of the world into the general body and mass ofthe society of the nation, but they continue strangers and sojourners, not [Page 1124] acquiring any national character under the general sovereignty of the country.” (See Kent, vol. 1, p. 87, ed. 8.)

* * * “The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mohammedan countries exercise both civil and criminal jurisdiction over their countrymen to the exclusion of the local magistrates and tribunals. This jurisdiction is subject * * * to an appeal to the superior tribunals of their own country. * * *” (Wheaton’s El. Int. Law, p. 168, 3d ed., R. C.)

“The subjects or citizens of Christian states who may happen to be sojourning or were permanently residing in Turkey and its dependencies, are privileged persons, politically as well as commercially. In all cases the ministers and consuls of their country have exercised not only a protecting political authority, but also, under sundry qualifications, varying according to treaty or usage, judicial functions and jurisdiction.” (Regulations prescribed by the President for consular officers of the United States, 1856, p. 181.)

The jurisdiction of the United States commissioners and consuls in China and ministers and consuls in Turkey is regulated by the act of Congress August 11, 1848, and subsequent acts of Congress, having for object the carrying into effect certain provisions in this relation contained in the respective treaties between the United States and China and the United States and the Ottoman Porte.

“It (the act of 1848) is avowedly based on the two treaties in question * * * and it is to be construed in subordination to that and to the Constitution. In substance it accepts and gives actual form to those stipulations of treaty which confer on all citizens of the United States the right of exterritoriality in China and Turkey.” (Opinion of the Attorney-General of the United States, Hon. C. Cushing, dated September 19, 1855.)

“In our relations with nations out of the pale of Christendom, we must and shall retain for our own citizens and consuls, though we can not concede to theirs, the rights of exterritoriality. Religion is the chief representative sign here, and it is an element of the question of public law. * * * But the critical fact is the difference of law. The legislation of Mohammed, for instance, is inseparable from his religion. We can not submit to one without also undergoing the other.” * * * (Consular marriages and exterritoriality of consuls in certain countries. Opinion of the Attorney-General, Cushing, dated July 14, 1855, p. 143.)

“In the cases of China and Turkey * * * such exterritorial * * * privileges as they really enjoy, they enjoy not because they are consuls * * * but because they are citizens of the United States.” (Ibid., p. 147.)

exterritoriality defined.

“To the regular jurisdiction, however, of each country over persons, things, and acts being or done within it, there exist by received public law certain absolute exceptions. These exceptions are the several casesof exterritoriality—that is, the various conditions in which a person, though abroad, is exempt from the foreign jurisdiction, arid is deemed to be still within the territory and jurisdiction of his own country.” (Opinion of the Attorney-General, Hon. C. Cushing, “on consular marriages,” dated November 4, 1854, p. 126.)

As already stated in the beginning of our present memorial, the grandfather of David and John Holmes Offley, and the fathers of both James Davee Dangdoh and Francis Blackler, were all native-born citizens of the United States. They came to Turkey with the full knowledge that the law of nations and the laws of their own country followed them here and deemed them, as above shown, “to be still within the territory and jurisdiction of their own country.” Were it not so, they would have certainly not ventured to leave their country. So long as this country continues to be Mohammedan, so long as our treaty with same continues in force and unrepealed, both ourselves, our children, and their descendants are deemed to be born within the territory and jurisdiction of the United States, and hence their rights to citizenship can not be challenged.

The said rights, proceeding as we have shown from the existing treaty between the United States and Turkey, which secures to American citizens all the rights and privileges enjoyed by the subjects and citizens of the most favored nations residing in the Ottoman Empire, the Constitution of the United States relieves us from any apprehension of losing the said rights so long as the said treaty continues in force.

“This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land.” (Art. VI, sec. 2 of the Con stitution.)

“If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the Government, or upon the people at large, so long as it continues in force and unrepealed.” (Kent’s Com., vol. 1, pp. 305, 306, 8th ed.)

[Page 1125]

“When the countries now Mohammedan shall be resubjected to the doctrines of the Roman law * * * not until then can they be admitted to the same reciprocal community of private rights with us which prevails in Christian Europe and America. Until that event happens, Turkey* * * may enter into the sphere of our public law in the relation of Government to Government, but not in the relation of Government; to men. That full interchange of international rights is admissible only among the nations which have unity of legal thought, in being governed by or constituted out of the once dissevered, but since then partially reunited, constituents be the Græco-Roman Empire.” (Attorney-General Hon. C. Cushing’s Opinion, dated July 14, 1855, pp. 151, 152.)

Having only in pamphlet form the Attorney-GeneraPs opinion aforesaid, we regret we can not refer to the volume since published.

We most respectfully call the earnest attention of the honorable Secretary of State of the United States to the evidence produced in our present memorial in support of our rights of citizenship, and humbly pray that, should his honor see fit, he will be pleased to order the recission of the finding we complain of, and to favor us with an official copy of his honor’s decision.

And as in duty bound we shall ever pray. His honor’s most obedient humble servants,

  • F. Blackler.
  • David Offley.
  • John Holmes Offley,
  • Per David Offley,
    Attorney in fact.
  • James D. Langdon.
[Inclosure 2 in No. 37.]

Mr. Porter to Mr. Emmet .

No. 22.]

Sir: The Department recently made a careful and thorough examination of the question of the status of citizens of the United States who are members of continuous communities of American nationality existing in Turkey for business or religious purposes. The result of this examination is embodied in instruction of April 20, 1887, to our minister at Constantinople, a copy of which may be found in section 68, page 854 of the Appendix to Wharton’s Digest of International Law, which is just published, and will be sent to you.

Applying these instructions to the questions raised by you in your dispatch No. 27, dated the 8th ultimo, the following positions may be laid down:

(1)
Persons who are members in Turkey of a community of citizens of the United States, of the character above described, do not lose their domicile of origin, no matter how long they remain in Turkey, provided that they remain as citizens of the United States, availing themselves of the extraterritorial rights given by Turkey to such communities, and not merging themselves in any way in Turkish domicile or nationality.
(2)
The American domicile they thus retain they impart to their descendants, so long as such descendants form part of such distinctive American communities, subject to the above proviso.
(3)
Section 1993 of the Revised Statutes, providing that “the rights of citizenship shall not descend to children whose fathers never resided in the United States,” does not apply to the descendants of citizens of the United States members of such communities. Such descendants are to be regarded, through their inherited extraterritorial rights recognized by Turkey herself, as born and continuing in the jurisdiction of the United States. That this is the construction to be given to section 4125 of the Revised Statutes, coupled with our treaty of 1830 with Turkey is fully shown by the above-mentioned instruction of April 20, 1887, to which I again refer as binding you in this relation.

I am, etc.,

J. D. Porter,
Acting Secretary.