Mr. Bayard to Mr. Straus.
Washington , March 17, 1888.
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.,