Minister Leishman to the Secretary of State.

No. 1160.]

Sir: In compliance with the instructions contained in your cablegram of September 7 I called upon the minister for foreign affairs and demanded that all proceedings against Hovhanes Afarian and Charles Vartanian be stayed pending an understanding and agreement between the two governments regarding these cases.

As your cable reached me on Friday morning, the Turkish Sunday, when all business at the Porte is suspended, I made my call at the minister’s residence, as the circumstances did not admit delay, and I found his excellency quite disposed to listen to my demands, but unfortunately in this, as in all other cases, the general officers of the government are quite powerless, so that while the minister appeared to thoroughly appreciate my warning that serious complications would surely arise if the protest was not heeded he was unable to give me any more positive assurance than a promise to do all he could and that the matter would be at once reported to the palace.

The demand, however, evidently had its effect, as the minister for foreign affairs sent two different representatives to see me on Sunday, expressing regret at the action of the police authorities and assuring me that if I would send the consul to where the prisoners were being detained at the palace that he would be permitted to examine them.

From points dropped by the messengers of the foreign office, one of whom was the legal adviser attached to the ministry for foreign affairs, I judged that the Sublime Porte had come to the conclusion that the police authorities had acted hastily and gone too far, and that the Porte was considerably annoyed and embarrassed over the raising of the question of Article IV, as well as the question of naturalized citizens, and wished to avoid a conflict over these questions of principle.

* * * * * * *

Under these circumstances I decided to stand pat for a few days on the demand I had made, * * * and consequently begged Hakki Bey, the legal adviser to the foreign office, to report to the minister for foreign affairs that, while the legation was disposed to meet any reasonable request of the Sublime Porte compatible with the interests of the American Government, I could not see my way clear for the moment to accede to the request of his excellency, owing to the complication that had been forced upon me by the action of the police authorities in refusing the consul permission to see a man that claimed American nationality, and particularly by the action of the Porte in raising the important question of principle involved. * * *

These men who, according to the Turkish law, are still regarded by the Porte as Ottoman subjects and as men who have returned to their native land with the intention of stirring up trouble against the Ottoman Government (which included the attack upon the life of the [Page 889] Sultan, resulting in the killing of 35 or 40 innocent people), one of them being the self-confessed murderer of a rich Armenian who has been tried in the Ottoman courts as a Turkish subject and condemned to death, and from information received it appears that the other was his accomplice. * * *

Vartanian has admitted that the murder was premeditated, but unless some way can be found to abandon Vartanian without sacrificing an iota of the principles involved it would be impossible to abandon our demand for his surrender without great loss of prestige and an increase in the difficulties with which the legation has to contend at all times.

There is no doubt that many injustices arise and that many criminals escape all punishment through the dispute over Article IV and the standing of naturalized citizens of Ottoman origin, as neither party can assist at the trials in the other court without admitting the incorrectness of their position on the matter of principle. In this way the wheels of justice are frequently blocked. While I am thoroughly convinced of the legality of our position and of our ability to maintain same, even by adhering to the most liberal interpretation of the Turkish text, the fact that the other Franks have changed their usage since the time our treaty was made has caused the Turks to assume a position toward us that results in a moral injustice which should be corrected. * * *

Awaiting your advice and instructions in the matter,

I have, etc.,

John G. A. Leishman.
[Inclosure 1—Translation.]

The Minister for Foreign Affairs to Minister Leishman.

Mr. Minister: I have received the note that your excellency was good enough to address roe on the 3d of this month, concerning the arrest by the police authorities of two individuals called Hovhanes Afarian and Charles Vartanian.

A minute investigation was made of this matter by the competent departments. It appears from this that the above-mentioned individuals, born in the Empire, are Ottoman subjects, and did not produce any American passports.

Even admitting that they had previously gone to the United States and had become naturalized Americans, one knows that a change of nationality of this character should not take place without the permission of the Imperial Government, and after the promulgation of the law on Ottoman nationality is null and void in Turkey in accordance with the rules, which have a general application.

As regards the interpretation of Article IV of the Turco-American treaty, as your excellency knows the point of view held by the Imperial Government on this question, I consider it superfluous to come back to it once more on this occasion.

I trust that your excellency, when you have become aware of the above, will be good enough, owing to your just and enlightened appreciation, to recognize yourself that the method of procedure of the imperial authorities in this case was perfectly regular and thus does not constitute a violation of the treaties existing between the two countries.

I take, etc.,

[Page 890]
[Inclosure 2.]

Minister Leishman to the Minister for Foreign Affairs.

Your Excellency: I have to acknowledge the receipt of the note which your excellency had the kindness to address to me under date of September 7 relative to the arrest of Hovhanes Afarian and Charles Vartanian.

If the department which reported to your excellency the result of its inquiry regarding the above-mentioned individuals is as incorrect in its views concerning the general principles involved as it is on the facts of the particular cases in question, your excellency would do well to cause another inquiry to be made before advancing the matter further, as it is a well-known fact that not only did the said Hovhanes Afarian and Charles Vartanian proclaim their American nationality, but that they also substantiated their claims by producing their American passports, and as a matter of fact, the numbers and dates of their passports enumerated in the note which I had the honor to address to your excellency under date of September 3 were in reality furnished to the legation by the police authorities.

As the Ottoman police authorities assumed the responsibility in the above-mentioned cases of not only deviating from well-established usage of immediately surrendering prisoners claiming American nationality to the custody of their consul, but even went so far as to prevent the American consul from interviewing the said Afarian and Charles Vartanian, it is impossible for the legation to venture a positive statement as to whether they are the bona fide holders of American passports or not; but as the prima facie evidence shows them to be such the legation must continue to view them as American citizens and as such to extend to them the protection of the American Government, unless it should be found upon a careful examination by the American consul that the said Hovhanes Afarian and Charles Vartanian are not entitled to claim American protection.

The legation can not for a moment acquiesce in the views advanced by your excellency regarding naturalized citizens of Ottoman origin, nor is it aware of the Sublime Porte’s ever having advanced an argument regarding interpretation of Article IV of the treaty existing between our two governments that would serve as a warrant for the illegal actions of the Turkish police, first, in their failure to surrender the prisoners to the custody of the consul the moment they produced their American passports, and, secondly, in their refusal to permit the consul to examine the prisoners, for even admitting for the sake of argument that the police authorities were not convinced that the accused men were bona fide American citizens the fact that they even claimed American nationality was sufficient to obligate them to permit the accused to communicate with the American consul, as the American courts alone are competent to judge whether a man is an American citizen or not.

It is true that the Imperial Ottoman Government has for the past thirty or forty years raised certain objections to the English translation of the Turkish text of the treaty of 1830, but even the Turkish text states quite clearly that American citizens can not be arrested or imprisoned by the Turkish authorities, and as the treaty simply mentions American citizens—no exception having been made for naturalized American citizens of Ottoman origin—this term must be construed to cover all American citizens, irrespective of origin, as American law makes no distinction between its citizens, no matter what race, creed, or former condition.

The Turkish law regarding naturalization which was promulgated by the Imperial Ottoman Government in 1869 may possibly be viewed as a very proper municipal regulation, but could scarcely be considered as affecting or curtailing in any way the rights and privileges guaranteed to American citizens by a solemn agreement entered into by our respective governments many years previous to the promulgation of said law, but in order to respect the municipal regulations of the Ottoman Empire as far as it was possible to do so. The American Government, moved by a spirit of fairness and friendship, has not only discouraged naturalized citizens of Ottoman origin from returning to Turkey, but has even refrained from raising any serious objection against the refusal of the Imperial Ottoman Government to permit such persons to reenter. Turkey, and as a matter of fact the class represented by the said Afarian and Vartanian never enter Turkey upon an American passport, which the Turkish consular officers invariably decline to visé, but reenter Turkey by irregular means and not infrequently through the incompetency or venality of the Turkish police. So that the question of keeping such objectionable individuals as Afarian and Vartanian out of the country in reality rests with the Imperial Ottoman Government, as they are not assisted to enter by their adopted government.

Under these circumstances I not only can not admit the arguments advanced in your excellency’s note of September 7, but must renew the demands contained in the note which I had the honor to address to your excellency under date of September 3.

I take, etc.,

John G. A. Leishman.
[Page 891]
[Inclosure 3.]

Minister Leishman to the Minister for Foreign Affairs.

Your Excellency: In reply to your excellency’s verbal communication I beg to say that while the legation is not only willing but anxious at all times to comply with any reasonable request of the Sublime Porte compatible with the interests of the American Government, the position in which the cases of Hovhanes Afarian and Charles Vartanian have been placed by the actions of the police authorities makes it extremely difficult for me to comply with your excellency’s request.

My disposition, however, is to endeavor to find a way to accommodate your excellency, providing it can be done without prejudice to the interests of my government or interfering in any way with the important questions of principle which have been raised.

It is now impossible to return to the status quo ante, but if your excellency will undertake to stay all legal proceeding against the said Hovhanes Afarian and Charles Vartanian and cause them to be specially surrendered into the hands of the minister of police with instructions to permit the American consul or his delegate to interview and examine them as often as the consul may deem it necessary, I will, while reserving all rights, assume the responsibility of agreeing to refrain from pressing the demands contained in my note of September 3 until such time as the consul is able to arrive at a definite decision regarding their standing as American citizens, as it is always possible that a careful examination may develop the fact that they may have obtained their American papers by fraudulent representations, as was found in the case of Aprahamian and others at Smyrna some two years ago, or that they have committed some act that may be viewed by my government as a practical renunciation of their acquired citizenship, in which event the legation would at once withdraw the demand for their surrender.

I take, etc.,

John G. A. Leishman.