No. 1072.
Mr. Bayard to Mr. Straus.

No. 84.]

Sir: I transmit herewith, for your examination, a copy of a dispatch (No. 38) of 2d February last, lately received from the United States consul at Jerusalem, touching the eviction of the consular guard at Jerusalem.

The particular question presented by Mr. Gillman raises the point of the extent of the extraterritorial privileges accruing to the native guards employed in the foreign consulates in Turkey.

It appears that Assad Kassas, a Turkish subject, is employed as a guard in the consulate at Jerusalem, but for how long a time is not stated. Proceedings have been had in the local courts involving the possession of the house which Kassas claims to have inherited from his mother and in which he has resided with his family for many years. Whether Kassas has appeared in the case heretofore is not stated, neither is it known here if his employment as consular guard originated after the institution of the suit to gain possession of the premises he occupied; but it is inferred that in virtue of his supposed immunity as a foreign guard he has paid no attention to the summons of the court, as it appears that he ignored the final decree dispossessing him. As long ago as October 21, 1886, and during the pendency of the suit, Mr. [Page 1569] Gillman was requested to cause Kassas to vacate the house and refused to do so. On January 15 last Kassas was forcibly evicted. Of this act the consul complained, and the governor of Jerusalem in reply takes the ground that, as this is a real-estate case, “it is not one for consular interference,” and that Kassas either should have appealed the case or vacated the premises.

It does not appear that the proceedings against Kassas in any way invaded the rights of the consulate or prevented the performance of his duties as guard. The case seems to have been entirely outside of Kassas’ relations to the consulate, and to concern only his status as the owner or claimant of real property under the laws of the Empire.

Citizens of the United States owning real property in Turkey are, under the real-estate protocol of 11th of August, 1874, as proclaimed by the President October 29, 1874, and in accordance with the terms of Article II of the imperial rescript of September 7, 1284 (June 10, 1867), placed upon terms of equality with Ottoman subjects “in all things that concern their landed property,” and are expressly excluded from availing “themselves of their personal nationality except under the reserve of the immunities attached to their persons and their movable goods according to the treaties.” (U. S. Stats., vol. 18, part 3, p. 853.)

The eleventh article of the règlement of 23 Sefer, 1280 (August 9, 1863), relative to foreign consulates, is, as stated in the explanatory circular to governors-general, intended to prevent the employés of consulates from receiving other or greater protection outside of their actual official duties in connection with the consulate than any other protégés or than foreigners. (Van Dyck’s Capitulations, pt. 1, p. 98.)

The Government of the United States has never been disposed to claim excessive or unusual immunities for natives employed in any capacity in its legations and consulates abroad. When the effect of such employment is to withdraw subjects of the country from their natural jurisdiction, we are disposed to regard the rights of persons so protected as a matter of customary law. On December 23, 1867, Mr. Seward instructed Mr. Morris, “your predecessor at Constantinople, that—

The system of employing Turkish subjects in subordinate capacities, although sometimes necessary, is an encroachment upon international law as maintained between civilized states, and is unknown in our statutory legislation;

and added that the Government of the United States would not, except in strong cases, interfere for the protection of the persons so employed. (Int. Law Digest, vol. 1, p. 641.)

Mr. Fish, November 29, 1874, instructed Mr. Jay, at Vienna, that—

The tendency of opinion in regard to immunities of diplomatic agents is believed to be strongly toward restricting them to whatever may be indispensable to enable the agents to discharge their duties with convenience and safety (Int. Law Digest, vol. 1, p. 642)—

and no broader criterion than this could well be claimed as applicable to a servant of a consulate more than to the servant of a diplomatic agent. In several recent instances where the foreign servant of a legation has been claimed to be liable to military duty—as at Madrid in 1874, and at Berlin in 1879 (see Foreign Relations 1879, pp. 374 et seq.)— the ground of complaint has been that the service of the mission was interfered with by the abrupt action of the authorities in enforcing the alleged liability of the employé, rather than that any right of a legation to withdraw a native of the country from his national subjection had been infringed.

[Page 1570]

And in this aspect of the question it might be desirable to ascertain whether the action to dispossess Kassas was instituted and pending at the time of his entrance into the service of the consulate.

The customary usage of Turkey in regard to the withdrawal of Ottoman subjects by foreign service from their national jurisdiction, as set forth in the consular réglement of 1863, appears to be in harmony with the foregoing principles. Article I prescribes the number of privileged native Turkish subjects to be so employed, the number of yassakdjis (cavasses, janissaries, or guards) allowed at a consulate being three, with privilege of increase of the number by mutual understanding.

Art. I. Consuls are to give notice of the appointment of yassakdjis to the Vali, or governor-general of the province, and obtain his recognition. (Art. 4.)

The protection of privileged employés is defined as “individual and attached to their functions.” The service of yassakdjis counts for five years as army service, and they can not be withdrawn from the consular service for active or reserve military duty. Privileged employés shall enjoy all the immunities accorded by the capitulations, but their estates shall pay the land tax. (Art. 5.)

The privilege lasts only during “effective actual service,” and the protégés are shielded from all prosecution, having origin in the services which the consulate may have received from them. They are not to pay, during their protection, any but real-estate tax, or those burdens to which foreigners are subjected. (Art. 11.) Native servants of consuls, not of the enumerated privileged classes, have no right to protection, but even these are not to be proceeded against or arrested save with timely notice to the consul. (Art. 12. See Van Dyck’s Capitulations, pt. 1, p. 96.)

Under all the circumstances, so far as known here, I would not feel justified in instructing Mr. Gillman that real estate held by Ottoman subjects is taken out of Turkish jurisdiction when they become yassakdjis or guards in consulates. But as the case is novel, and as the precise question presented does not appear to have been raised in any other instance, it is deemed advisable to refer the subject to you with instructions to ascertain and report the position of the Ottoman Government in this regard; it is also desirable to learn what privileges of this class are conceded to other Frankish powers. Article 50 of the French capitulations of 1740 appears to be in point. It provides that—

For the security of the dwellings of the consuls, permission is granted to appoint the janissaries solicited by them, and these janissaries shall be protected by the odtobachies and other commandants.

So, too, with article 28 of the English capitulations of 1675, which provides that the embassadors and consuls may take into their service any janissary or interpreter they please.

I am, etc.,

T. F. Bayard.
[Inclosure in No. 84.]

Mr. Gillman to Mr. Rives.

No. 38.]

Sir: I have the honor to report that on Sunday, the 15th ultimo, in the enforcement of a decree of the Turkish court, involving the possession of the house in which Assad Kassas, a Turkish subject, and one of the guards of this consulate, has for many years resided with his wife and children, and which property was inherited by his mother, [Page 1571] now deceased, the local authorities have proceeded to eject him, breaking in the doors and removing his wife, children, and furniture, the said Kassas not being present.

No official notice was given this consulate as to the execution of the decree, nor of the decision of the court, though previous to the rendering of the decision I was requested (October21, 1886) to cause the said Kassas to vacate the house, which I refused to do.

The consular guard, presuming on his position and the usage which has hitherto prevailed touching consular employés, did not suppose extreme measures would be used, and did not vacate the house, with the result before mentioned.

On my representing the facts to the governor of Jerusalem he has taken the position that as this is a real-estate case it is not one for consular interference. On farther representations he very politely expressed his regret, but adhered to his former opinion, stating that the guard either should have appealed the case or vacated the premises.

I have not been over-officious in pushing the matter, for the following reasons:

The local authorities have hitherto evinced a most friendly and conciliatory spirit in dealing with this consulate.
It being a case having for its object a question of real estate, it is excepted from the restrictions governing other cases.

The question is, Did the local authorities exceed their powers in carrying out the decree without the intervention of the consulate, or its official notification of the decision of the Turkish court, and the execution of the decree?

So far as I can learn the case is without precedent as regards this consulate, or any other of the foreign consulates in Jerusalem.

In this connection it may be important that I should state the opinion is gradually beginning to prevail, among natives as well as foreigners, that, lately, the Ottoman Government is evincing a more exacting spirit. In proof various cases are cited.

One of the guards of the Greek consulate at Jerusalem was recently (the latter part of January, 1888) arrested by the Turkish authorities for enlistment in the army, and is still held by them, regardless of his consul’s protest, though the guard had served the consulate for eight years. The local authorities at Damascus have recently arrested an Algerian who is under French protection, a descendant of the suite of Abd-el Kader, who settled at Damascus after the conquest of Algeria by France. This has aroused the French Government, and it is understood a severe examination into the incident has been ordered by the Sultan. The Ottoman authorities, for some time past, have been attempting to claim as Ottoman subjects not only the descendants of the suite of Abd-el Kader, but also the descendants of British Mahomedan subjects who have settled at Damascus claiming them as liable to military service.

A short time ago a British Moslem is reported to have been taken by the Ottoman authorities and enlisted in the army, notwithstanding the protest of the British consul. Though the man was eventually allowed to escape, the Turkish authorities never waived their pretension that he was liable to military duty.

A missionary of the Church of England, residing near Jerusalem, an English subject, was last summer in danger of imprisonment, through false witnesses, and was about to be surrendered by the British consul, when, at the remonstrance of the English-speaking residents, addressed to Lord Salisbury, the Premier of England interfered, by telegraph, ordering the missionary not to be given up.

As I have already informed the Departments my dispatch No. 26, the restrictions against the Jews, expelling them, are again being enforced, the order of the Government being imperative. The governor recently informed me that of the ten consuls in Jerusalem I alone did not give my consent and aid to this expulsion. I stood firmly to the point that it is the fundamental principle of our Government to recognize in American citizens no distinction as to race or religion, and that I could not consent, much less render the aid requested. Since (quite lately), I understand Lord Salisbury has telegraphed the British consul here that he must not continue to render aid to the Turkish Government in expelling English Jews, and further, that he must resist their expulsion.

The governor of Jaffa a few weeks ago personally entered, accompanied by soldiers, the lecture room of the Rev. J. L. Hall, Church of England missionary, and after arresting some Moslems who were present, broke up the meeting and closed the room.

A native Christian employed by the Church Missionary Society to sell Bibles among the peasants in the neighborhood of Jerusalem, had the books taken from him by the police, and by authority of the governor was, two months ago, thrown into prison (on the accusation of teaching Moslems), where he still lies.

The passport regulations are being enforced with extreme severity. Travelers are obliged to procure local passports, and those whose passports are not visaed by a Turkish consul in the country they came from are fined.

Physicians, druggists, and dispensers of medicine are prohibited, by order issued last summer, from practicing their callings without a diploma obtained by passing [Page 1572] an examination at Constantinople. This order caused such an expostulation as to compel the Government to modify it.

Examples might be multiplied; but the foregoing will probably be considered sufficient.

I am, &c.

Henry Gillman,