Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1900
Mr. Hay to Mr. Griscom.
March 16, 1901 .
Sir: I have to acknowledge the receipt of your dispatches Nos. 162, 215, and 322, dated, respectively, February 6, 1900, May 29, 1900, and February 13, 1901, on the subject of the controversy between the Government of the United States and the Ottoman Government respecting the true interpretation of Article IV of the treaty of 1830.
Inasmuch as the question of the interpretation of that article has been the subject of voluminous correspondence between the two Governments, I inclose herewith a copy of an instruction, No. 142, dated December 22, 1890, from Mr. Blaine to Mr. Hirsch, in which the question is elaborately summed up. There is nothing that has since been adduced by the Porte which is not already fully answered by the facts and arguments developed in the said instruction. It is there shown that the basis on which the argument of the Porte is built is largely characterized by error of fallacious assumption, and that the superstructure of said argument is wanting in solid foundation.
In addition to the foregoing observations, it has not escaped the attention of the Porte that the extraterritorial right in question also belongs to the United States in virtue of the most-favored-nation clause of the treaty. This right was given, in all the breadth of its assertion by this Government, by the Ottoman Porte to Belgium by Article VIII of the treaty signed August 3, 1838, and reaffirmed by Article I of the treaty between those States signed February 1, 1862. The same right was granted to Portugal in Article VIII of its treaty with the Porte, signed in the French and Portuguese languages at London, March 20, 1843, and fully confirmed by Article I of the treaty signed in the Portuguese language at Paris, February 23, 1868.
In the last two treaties there appears to be no question of the reading or interpretation of any Turkish text, and the lucidity of the French text leaves no possible doubt as to the nature and extent of the right conceded, and that that right is adhered to in all its extent by the Governments of Belgium and Portugal the Government of the United States has not the slightest doubt.
These considerations seem to fortify and render impregnable the position of this Government as stated in Mr. Blaine’s instruction to Mr. Hirsch.
I am, etc.,
Mr. Blaine to Mr. Hirsch.
Washington , December 22, 1890 .
Sir: I have to acknowledge the receipt of your Nos. 168, 174, 178, and 186, of the 19th and 28th of October and the 5th and 18th of November, respectively, in relation to the arrest, by the Ottoman authorities, of Siropé Gurdjian, a naturalized citizen of the United States of Turkish origin, his subsequent delivery over to the consul-general of the United States, and the demands since made by the Porte for his production before the Turkish tribunals.
The facts in regard to Mr. Gurdjian, as ascertained by you and reported in your dispatches, are that he was born at Cæsarea, in Asia Minor, on the 13th of September, 1848, and in 1865 came to the United States. From that time until 1872 he resided in the State of New Hampshire as a student. He then entered Bowdoin College, where, in 1877, he was graduated. On the 3d of March, 1874, he was admitted to citizenship of the United States before the United States district court for the district of Massachusetts.
In 1878 a project was formed in this country for founding a university near Constantinople, and Mr. Gurdjian was invested with power by a board, comprising a number of prominent citizens of the United States, to proceed to Turkey and enter into negotiations for the purchase of land and the obtainment of an imperial irade for the establishment of the school. It is stated that, with a view to facilitate the accomplishment of the plan, Aristarchi Bey, then Turkish minister at this capital, furnished Mr. Gurdjian with letters to high Ottoman authorities.
On reaching Constantinople Mr. Gurdjian was registered at the United States consulate-general as an American citizen. His passport is No. 10427, issued on November 8, 1878, by Mr. Evarts, then Secretary of State. After remaining in that city for more than a year, he returned, in 1880, to this country. In 1881, however, he went again to Turkey, where he has since resided. The university project was not successful, and Mr. Gurdjian, who had acquired some knowledge of geology, chemistry, and other sciences, embarked in coal-mining enterprises and also worked as chemist and photographer in Turkey.
At 8 o’clock on the evening of Wednesday, the 15th of October last, an agent of the secret police of Pera, accompanied by two gendarmes, presented himself at the house of Mr. Gurdjian and ordered him to accompany them to the neighboring police station. Mr. Gurdjian alleged his American nationality, and said that when they wanted him they should address the American authorities. The police officer replied that in case he resisted he would be compelled to remove him by force, and Mr. Gurdjian was obliged to submit. It is stated that he was not allowed time to get his boots or change his clothes, but was forced away, half clad, to the police station, where questions were addressed to him respecting his name, surname, and his past nationality. He again showed his passport, and was then taken to the mutaserifate of Galata Serai.
The same formalities were gone through with before the mutaserifate, Mr. Gurdjian again exhibiting his passport. He was then sent with two gendarmes, followed by the police agent, to the central police station in Stamboul, where, after submitting to summary interrogation before the superior official, he once more produced his passport. He was then thrown into a dungeon, where he passed the night. At 9 in the morning he was again brought before the superior officer, who, after having made new inquiries as to his nationality, said that those who had arrested him had made a mistake, and directed that he be forthwith escorted to the United States consulate. He was accordingly sent to the consulate. At the same time a citation was, on the 16th of October, addressed to the consul-general for the appearance of Gurdjian, accompanied by the consular dragoman, before the council of police at Stamboul.
On being informed of these facts, you at once addressed a note, on the 17th of October, to the Turkish minister of foreign affairs, from which may be quoted the following passages:
“The legation can not see its way to permitting the appearance of an American citizen before the Ottoman police authorities without having first been furnished with a statement of the reasons for which he may be summoned, and in this case, in addition to such statement, ample satisfaction for the conduct of the police is an indispensable preliminary to the appearance of Siropé Gurdjian.
“Your excellency, I am persuaded, will agree with me that the occurrence of such an event in the capital itself, without being followed by swift and exemplary punishment of those responsible for the arrest and false imprisonment of an American [Page 916] citizen, and in spite of the most sacred clause of the capitulations and treaties, is of itself a fact of exceeding gravity. With all possible good disposition with which this abuse by the police may be considered, a mistake can not be admitted as sufficient excuse, inasmuch as since the conquest of Constantinople it is a fact known to all that the domicile of a foreigner is inviolable and may not be entered save in the presence of his consul or the consul’s deputy. Therefore, if those charged with the public security during the night at the stations of Hendek, at the mutaserifate of Galata, and at the central station in Stamboul are not sufficiently instructed in their duties and their rights your excellency will concede that such a state of affairs is indeed to be lamented.
“The legation is constrained, therefore, to protest in the most vigorous language and in the most formal manner against such intolerable infringement of the primitive civil rights of the individual, and to demand that His Majesty’s Government take steps for the immediate punishment of the offenders and for securing reparation to the victim commensurate with the enormity of the injury inflicted upon him.”
To this note a reply was made on the 22d of the same month. In his reply the minister of foreign affairs expresses regret that the subordinate agent of the police should have effected the arrest without demanding the presence of the consular representatives of the United States, but alleges that this omission arose from the authorities being ignorant that they had to do with an American citizen, and that the name of the person arrested was not of a nature to enlighten them. The minister further said:
“Your excellency will nevertheless do us this justice to recognize that as soon as informed of his character (as American citizen) the superior authorities delivered him to his consulate. Measures having been taken to prevent a repetition of similar mistakes, I allow myself to hope that your excellency will, on your part, be pleased to give orders that Seropé Gurdjian may be brought before the police authorities, whenever he may be required.”
On the 28th of October you replied to this note, dissenting from the view that what was done was satisfactorily explained as a mistake, Mr. Gurdjian having exhibited his passport. You further observed that no statement of the reasons why the consulate had been asked to produce Mr. Gurdjian had been furnished. And you informed his excellency that the punishment of those who may have been responsible for the outrage was a matter for consideration before the question of Mr. Gurdjian’s further appearance. Replying on the 5th of November, the minister of foreign affairs states that the crime of which Mr. Gurdjian is accused consists in his participating in a revolutionary committee, the seal of which he is charged to have made. With this statement, the minister of foreign affairs renews his request that orders be issued for bringing Gurdjian before the police authorities whenever his presence shall be required. The minister further said: “As to the agent guilty of having committed the irregular acts referred to by the legation, he will not fail from being punished.”
In consequence of the demands of the Ottoman authorities for the production of Mr. Gurdjian you telegraphed to the Department to ascertain whether he ought to be produced. The Department replied that it could not authorize you to produce Mr. Gurdjian to the Turkish authorities and instructed you to report the facts fully by mail. It was after the sending of this telegram that your reports of the case were received.
In your last dispatch, No. 186, of the 18th of November, you inform the Department that on the forenoon of that day the vice-consul-general called on you with a summons from the police authorities requiring him to produce Mr. Gurdjian for examination on the following day. The vice-consul was accompanied by Mr. Dongian, a naturalized citizen of the United States, recently from this country, who stated that he had, at Mr. Gurdjian’s request, called on him and prescribed for him; that he found him in a very deplorable state, suffering from heart and spinal trouble and nervous prostration. The doctor expressed the opinion that it would be impossible for Mr. Gurdjian to leave his bed for several weeks, and that, even were he out of Turkey and free from mental anxiety, he would require two months to rally from the shock he had received. You instructed the vice-consul-general not to produce Mr. Gurdjian without further orders from the legation.
In concluding your last dispatch you observe that you have treated Gurdjian as being innocent of any connection with the proceedings of the Armenian committee, as well as innocent of the charge of cutting the seal. Mr. Gurdjian still maintains his innocence; nevertheless, he now makes an admission that the engraving of the seal was done in his room by another man.
In a letter written on the 3d of November to the vice-consul-general Mr. Gurdjian, [Page 917] still maintaining ignorance of the real cause of his arrest, suggested that a Masonic design which hung upon his wall may have excited suspicion. In a letter, however, addressed to you on the 13th of November, just ten days later, he makes a full statement as to the engraving of the seal, though professing ignorance as to the character of the seal and the purpose for which it was engraved. But it appears that the seal was actually engraved in his room.
It is not within the province of the Department, nor would it be proper for the Department under the present circumstances, to comment upon the latest letter of Mr. Gurdjian and express an opinion as to the truth of the various statements on the ground either, of consistency or of probability. But while made nearly a month after his arrest, they relate to matters that occurred prior to that time and disclose knowledge which was in his possession from the beginning of his difficulties and of which the legation might at once have been informed.
In proceeding to the consideration of the legal aspects of the case, the Department desires to express its high appreciation of your conduct throughout the whole translation. Your representations to the Turkish Government have been characterized by a clear appreciation of the questions at issue and by a just determination to insist upon proper reparation at the hands of the Ottoman authorities. And they have had the effect of obtaining an expression of regret for the wrong done and a promise of punishment of the offenders.
Apart from the consideration of jurisdiction, your refusal to order the production of Mr. Gurdjian before the Ottoman tribunals is amply justified by his physical condition. Especially is this so when that condition is the result of the illegal and violent action of the Turkish authorities. In view, however, of the probable recovery of Mr. Gurdjian from the effects of the shock he has received, it is necessary to consider what the duty of this Government would be in that event.
You are aware of the controversy that the Ottoman Porte has raised in regard to the fourth article of the treaty of 1830. According to the English version of that article, as published among the treaties of the United States, the disputed provision reads as follows:
“Citizens of the United States of America quietly pursuing their commerce, and not being charged or convicted of any crime or offense, shall not be molested, and even when they may have committed some offense they shall not be arrested and put in prison by the local authorities, but they shall be tried by their minister or consul and punished according to their offense, following in this respect the usage observed toward other Franks.”
This text was proclaimed in 1832, and it stood without objection on the part of the Turkish Government until 1868, a period of more than thirty-five years. In that year the Turkish Government declared, in respect to a case then pending before the minister of the United States in Constantinople, that the English text was not an accurate reproduction of the Turkish, which was admitted to be the standard, and that according to the latter the minister and consuls did not possess the right to try. Thereupon this Government obtained a large number of translations of the Turkish text, by which it appeared that while the English text published by this Government was not an exact literal translation of the Turkish original, it preserved its tenor and substance. The accuracy of these translations not being admitted by the, Ottoman Government, the Government of the United States invited it to submit a correct translation, in order that there might, if possible, be an undisputed basis of discussion. Such a translation was never furnished until the 24th of August, 1888, when Mavroyeni Bey, by authority of his Government, presented the following translation in French:
“Les citoyens Américains vaquant paisiblement aux affaires de leur commerce ne seront point molestés sans motif tant qu’ils n’auront pas commis quelque délit ou quelque faute; même en cas de culpabilité, ils ne seront pas emprisonnés par les juges et les agents de la sûreté, mais ils seront punis par les soins de leur ministre et consul à l’instar de ce qui se pratique à l’égard des autres Francs.”
“American citizens peaceably attending to matters of commerce shall not be molested without cause so long as they shall not have committed any offense or fault. Even in case of culpability they shall not be imprisoned by the judges and police agents, but they shall be punished through the agency of their ministers and consuls, according to the practice observed in regard to other Franks.”
After submitting his French translation, Mavroyeni Bey addressed several notes to this Department, in which he advanced the contention that since the treaty did not say “they shall be tried and punished” instead of “they shall be punished,” the right to try belonged to the Porte. This Government replied on the 25th of February that the right to try was involved in and incident to the right to punish, and that the English version of the article, which had stood unchallenged for so many years, [Page 918] merely expressed the obvious meaning of the Turkish text of the treaty as officially translated by that Government. As a measure, however, of concession to a friendly power, I offered to yield the right of trial and to accept the treatment accorded to certain European powers, under which the case is tried by local authorities, the dragoman of the legation being present. It was, however, discovered that this contention would settle nothing, since the Turkish minister at once proceeded to contest our right to punish. His position on this subject, as I stated in a note to him of the 25th of February last, was based upon two grounds—one inside the treaty and the other outside of it, which did not appear to be consistent. One was that if the treaty gave the right to punish it granted inadvertently more than was intended to be given. To state this argument seemed to me to answer it, for if the, treaty gives the right it is futile to argue that the right does not exist. The minister also argued that the treaty did not give the right, contending that the express concession of it in the words, “they shall not be imprisoned by the judges and police agents, but they shall be punished through the agency of the minister and consul,” was restricted by the clause, “according to the practice observed in regard to other Franks.” This contention was based by the minister upon the statement that in 1830 the ministers and consuls of the Franks did not exercise the right to punish unless “abusively.” The information in the possession of the Department led to the conclusion that at that time they habitually exercised the right to try and punish as a matter of common usage. It was also observed that the provisions both as to trial and punishment in the English version of the treaty with the United States were repeated in later treaties concluded by the Porte with Belgium and Portugal. The French text, however, of these treaties is contested by the Ottoman Government.
But, apart from the historical questions and conventional provisions which the Turkish Government contested, I pointed out the impossibility of limiting, by an executive interpretation given to a general and subsidiary clause, a clearly expressed and unequivocal stipulation. “Even in case of culpability,” the stipulation reads, “they (American citizens) shall not be imprisoned by the judges or police agents, but they shall be punished through the agency of their ministers and consuls;” the right to punish, as thus stated, being at once forbidden to the porte and secured to the ministers and consuls of the United States. But I proposed, as a means of ending controversy while expressly conceding the right to try, to permit the rest of the article to stand without interpretation and to be enforced by this Government should occasion arise. This proposition was declined. To my note of the 25th of February the Turkish minister replied on the 28th of the same month. But after careful consideration of his reply, I was unable to pereeive that it contributed anything to the solution of the controversy, or that it met the arguments advanced by this Government. The minister inquired whether it was not evident that I must admit, above all and after all, that what the United States secured by the treaty of 1830, even as regarded the right to punish, was not more than was claimed by other Franks at that time. I did not find myself either required or able to make such an admission. The intent of the treaty seemed to me to be so clear and explicit as not to admit of reasonable controversy, and I was consequently compelled to decline to put upon it an interpretation which the language did not admit of, and thus to substitute by executive agreement a new treaty for that which actually exists. The posture into which the negotiation was brought by the extraordinary contentions of the Turkish minister was described in my note to him of the 25th of February as follows:
“Sincerely, therefore, as I desire to settle the long-pending controversy now under consideration, I find myself wholly unable to meet your views. I could not, even were I so disposed, first yield everything that can be made the subject of comprehensible controversy, and then enter upon a discussion as to whether I shall maintain what can not by any conceivable method of reasoning be desired.”
To my last note of the 15th of March of the same year no reply was made, probably for the reason that I had clearly indicated that it would be useless to attempt to continue the discussion upon the lines on which the minister had sought to conduct it.
For the reasons above stated, this Government is unable to comply with the request of the Turkish minister of foreign affairs for the production of Mr. Gurdjian before the Ottoman tribunals.
It remains therefore to consider what course the Government of the United States, exercising its rights and performing its obligations under the treaty, ought to pursue in disposing of the complaint made against Mr. Gurdjian. In adopting legislation to give effect to the extraterrritorial rights of the United States in certain countries Congress did not fail to provide for the punishment of offenses against the governments of those countries. Such a provision was obviously essential; for, as our citizens were not to be subject to the local jurisdiction, it was necessary for this Government [Page 919] to take cognizance of possible offenses against the local governments. Hence it was provided by the act of June 22, 1860, section 24, which is now embodied in section 4090 of the Revised Statutes, that “Capital cases for murder and insurrection against the Government of either of the countries hereinbefore mentioned, by citizens of the United States, or for offenses against the public peace amounting to felony under the laws of the United States may be tried before the minister of the United States in the country where the offense is committed, if allowed jurisdiction.”
By section 15 of the same act, now embodied in section 4102 of the Revised Statutes, it was provided that “insurrection or rebellion against the Government of either of these countries, with intent to subvert the same, and murder, shall be capital offenses, punishable with death.”
These provisions sufficiently illustrate the purpose of the legislation of Congress in respect to offenses against the local government. The duty of enforcing this legislation rests upon the Government of the United States, both as a matter of conventional obligation and as a matter of obedience to our own laws. To have left the punishment of offenses against the local government unprovided for would have left that government exposed and defenseless against the machinations of foreign residents. On the other hand, to have conceded the trial and punishment of such offenses to the local tribunals would have been, in effect, to deprive our citizens, upon the mere allegation of offense and without trial, of their right of extraterritoriality and to abandon them to the local tribunals on charges the most likely to excite passion and predjudice, and therefore most liable to abuse. For these reasons the Government of the United States in the fulfillment of its obligations, assumed the duty of punishing its citizens for offenses against the governments of the countries in which the right of extraterritoriality was exercised.
Such being the law it will be your duty to receive the complaints of the Turkish Government against Mr. Gurdjian and any evidence that may be submitted in support of these complaints with a view to his trial by you as the minister of the United States, clothed by act of Congress with judicial functions in such cases. While it is the duty of the Department to give you these general instructions in regard to the discharge of your functions, it would be improper for it to undertake to interfere with or influence your judicial judgment. For that reason it has abstained, as you have already perceived, from expressing any opinion as to the effect of the admissions made to you by Mr. Gurdjian in his letter of the 13th of November. For the same reason, as well as for the reason that the information now before it is defective, the Department is unable to give you specific instructions in regard to the formulation of charges, if, upon examination of the evidence submitted to you, you should be of opinion that Mr. Gurdjian ought to be put upon his trial.
If upon further investigation you should be of opinion that the facts presented do not constitute a violation of any specific statutory provision, but that Mr. Gurdjian has been guilty of culpable acts affecting the Ottoman Government, for the punishment of which our legislation is defective, it will be necessary to inform him that the protection of the United States can not be extended so as to enable him to continue his residence in the Ottoman dominions.
The policy of the Government of the United States is to deal with other governments fairly and honorably, and to abstain from interference in their domestic politics. It can not countenance a different course of conduct on the part of its citizens. It can not admit that a person who has come to the United States and secured admission to citizenship and then returned to the country of his origin may be permitted to abuse his privileges as an American citizen by taking part in the political affairs or plotting against the government of the country with which he has declared the severance of his political connection.
These observations are not made upon the supposition that they will be found to be applicable to the case of Mr. Gurdjian. It is hoped that the suspicions that have been raised against him will be found to be destitute of foundation; but it is proper and indeed necessary, in view of the questions which have been created, that this Department should furnish you, as minister of the United States, with clear and precise instructions as to the principles which must guide this Government and its ministers, and control the conduct of its citizens, in countries in which they enjoy the rights of extraterritorialty.
I am, etc.,