Minister Leishman
to the Secretary of State.
American Legation,
Constantinople, September 13,
1905.
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.,
[Inclosure
1—Translation.]
The Minister for Foreign
Affairs to Minister Leishman.
Sublime Porte,
Imperial Ministry for Foreign
Affairs,
Constantinople, September 7,
1905.
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.
American Legation,
Constantinople, September 9, 1905.
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.,
[Page 891]
[Inclosure 3.]
Minister Leishman to the Minister for
Foreign Affairs.
American Legation,
Constantinople, September 14, 1905.
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.,
