Mr. Terrell to Mr. Gresham.

No. 106.]

Sir: My attention has been directed by the inclosed letter (copy) from Dr. Dwight and others, to a notice in the Oriental Advertiser of this city, a copy of which is inclosed, and which gives notice that the Porte will require that all conveyances of land to foreign subjects shall hereafter contain a clause prohibiting the use of the property for schools or religious worship.

In a conversation yesterday with His Excellency Saїd Pasha, he did not deny the truth of the published notice, but stated that the order referred to therein was, to some extent, the subject of consideration still in the council of ministers. * * *

The letter from the American teachers and missionaries urges (1) that the order referred to imposes on the enjoyment of the right to acquire real estate a condition not found in the protocol (of 1874); (2) that it is opposed to the principle of extraterritoriality secured by capitulations; (3) that it imposes a penalty on the right to pursue a lawful calling; (4) that it places a stigma of illegality on the act of divine worship.

The order is far-reaching in its possible consequences, and if one of the great powers would, through its ambassador, agree to act in protesting, I would assume the responsibility of insisting on the withdrawal of the order. I deem it proper now to content myself with sending a written notice to the Porte that I will reserve the right to [Page 703] protest hereafter, should I desire to do so, and await your instructions. * * * Before you instruct me, I desire (under favor) to submit, with proper deference, for your consideration the following:

The order appears to me as being in plain violation of the provisions of article 1 of the imperial rescript of June 10. 1867, viz:

Art. 1. Foreigners are admitted by the same privileges as Ottoman subjects, and without any other restriction, to enjoy the rights of holding real estate whether in the city or the country throughout the Empire, etc.

The order subjects the foreigner in the acquisition of land to conditions not required to be inserted in a deed to a native; and if the above were the only provision affecting the question the illegality of the order would be too plain for question. But the first subdivision of article 2 of the rescript of 1867 is as follows:

The legal effect of this equality is first to oblige them (foreigners) to conform to all the laws and regulations of the police, or of the municipality which govern at present, or which may hereafter govern the enjoyment, the transmission, the alienation and hypothecation of landed property.

On this clause the Porte, no doubt, relies; and yet it would seem plain that a requirement that a foreigner shall “conform” to all “regulations * * * of the * * * municipality which * * * may hereafter govern the * * * alienation * * * of landed property” can not be held to authorize a local governor to impose a condition in a deed to a foreigner, which is not required in a deed to a native, and thus render nugatory the very law which declared his equality of right. No law requires the clause complained of to be inserted in a deed to a Turk.

The firman and hatti-sherif, relative to privileges and reforms of 1856, and which is referred to in the treaty of peace signed at Paris soon afterward, is instructive in the provisions of its ninth article, for (1) it confirms all existing privileges enjoyed by Christian communities; (2) it requires the Sublime Porte to take energetic measures to insure to each religious sect, whatever be the number of its adherents, entire freedom in the exercise of its religion; (3) it declares that all forms of religion maybe freely professed, “and no subject * * * shall be hindered in the exercise of the religion that he professes, nor shall he be in any way annoyed on that account;” (4) it authorizes every community to establish public schools of science, art, and industry.

These extracts sufficiently show the intention to grant perfect freedom from Mahommedan restraint in the worship of Christians. You will remember also, that by the sixty-second article of the treaty of Berlin, it was expressly declared that the freedom and exercise of all forms of religion was assured to all, and that no hindrance should be offered, etc.

* * * * * * *

I have, etc.,

A. W. Terrell.
[Inclosure 1 in No. 106.]

Mr. Dwight et al. to Mr. Terrell.

Dear Sir: The local newspapers announce (see Oriental Advertiser, October 30) that the Sublime Porte has ordered the provincial authorities in case of the purchase of landed property by foreigners to place upon [Page 704] the deeds a prohibition of the teaching of schools and of the holding of divine worship upon the property.

Within three years past several attempts have been made by local authorities (at Bourdour, Marsovan, Smyrna, Van, etc.) to prevent American citizens from buying real estate, from building on property owned by them, and even from repairing the houses in which they live, save on condition that they will promise not to hold school or to have divine worship on the premises. This has been, notwithstanding the fact that the Americans so enjoined are by profession religious and benevolent people whose profession it is to teach schools and requires them to worship God wherever they dwell, and notwithstanding, moreover, that no law of the Empire forbids worship in private houses as practiced from time immemorial, and that the schools of these Americans are admittedly authorized institutions subjected to the Ottoman law regulating the method of instruction to private schools. Such attempts have failed through the intervention of the United States legation or the British embassy. The order now alleged to have been issued would make general and legal, restrictions hitherto considered as local and arbitrary acts of oppression.

We are confident that such an order, if it has been issued, will be found to contravene fundamental principles of the treaties.

Nearly twenty years after the signature of the protocol securing to American citizens the right to hold real estate in Turkey, it seeks to impose upon the enjoyment of the right a condition not found in the protocol.
Even were it proper by conditions generally applied to the tenure of real estate in Turkey to modify the essential right secured by the protocol, the promulgation of a condition which has in it the necessity that Turkish officials shall concern themselves with the occupations of the American within his own domicile is contravened by the principle of extraterritoriality secured by the capitulations:
Such an order would lay a penalty upon the exercise by the American in his own domicile of the profession of school teacher, recognized by immemorial usage, as well as by the laws regulating its exercise, to be lawful to Turkey. It also opens the way for the exclusion of Americans from other lawful occupations in the Ottoman Empire. If a decree of the Sublime Porte may impose penalties upon Americans who teach school or who worship God in their houses, it may also impose penalties upon those who make shoes or write up their commercial accounts in their houses.
Such an order would fix an apparent stigma of illegality upon the act of teaching and the act of divine worship, by declaring that these acts as practiced by Americans are sufficient to debar them from enjoying the privilege of tenure of property in Turkey.

Recalling to mind the principle by which Ottoman laws and regulations which conflict with the capitulations can be enforced upon American citizens, only the U. S. Government has agreed to the treaty modification involved, and remembering moreover instances in which inadvertence as to protesting against such decrees or laws has been held by the Sublime Porte as tacit consent to their application in entirely unexpected directions, we earnestly beg you to learn if the issue of these orders is as reported, and in case the report is found to be true, to protect the interests of all American citizens residing in Turkey in general and the specific interests of our body in particular, by protesting against any application or execution of an order so revolutionary [Page 705] and so destructive of the vested interests of the missionary societies established in the Ottoman Empire.

Very respectfully, etc.,

  • Henry O. Dwight,
  • Elias Biggs,
  • Robert Thomson,
  • Henry S. Barnum,
  • W. W. Peet,
  • Joseph K. Green,
    In behalf of the Mission of the American Board in Western Turkey.
[Inclosure 2 in No. 106.—From the Oriental Advertiser of November 1, 1893—Translation.]

The authorities of certain provinces have received orders to oppose (conformably to the existing regulations) the pretensions of foreign proprietors of real estate to transform their houses into schools or to use them for public worship. In order to prevent any difficulty which may arise on that score, the title deeds transferred to foreign subjects will carry hereafter the special notice that the property can not be arbitrarily transformed into a school or used for any religious services whatever.