The Secretary of State to Minister Leishman.

No. 915.]

Sir: I have to acknowledge the receipt of your dispatches Nos. 1163 and 1166, dated, respectively, the 22d ultimo and the 2d instant, on the subject of the Vartanian and Afarian cases.

[Page 893]

In reply to both dispatches, and particularly No. 1163, I have to say that the Department is not in a position yet to cable you definitive instructions in the matter. You appear to be awaiting a fuller report from the consul-general, his preliminary report being described by you as not being “as conclusive as one might wish.”

The Department is without information that would lead it to a sound inference that Vartanian and Afarian are not entitled to protection because of any violation of their right thereto by reason of fraud in naturalization, deception in the procurement of passports, or return to Turkey as pretended Ottoman subjects. Their applications appear to have been regular and supported by certificates of naturalization, which are prima facie valid and unclouded by doubt except as to Afarian’s discrepant statements about the date of his birth. Whether facts detrimental to their claim may be elicited by the further examination to be made by the consul-general remains to be seen.

The Department fully realizes the embarrassment which might ensue from the acquiescence of the Turkish Government in the claim of original and exclusive jurisdiction in these cases under the disputed text of Article IV of the treaty of 1830, if, as would be likely, the Turkish Government should withhold, as on a former occasion, the evidence necessary to a conviction, to the consequent miscarriage of justice. It is not thought probable, in the light of past discussion of the question, that such acquiescence would be graciously given, and the occasion seems inopportune for an active assertion of our right, in view of the heinousness of the crimes imputed to those two men. This government can have no less desire than that of Turkey to see the majesty of law upheld and exact justice done. Our own statutes conferring extraterritorial jurisdiction upon our agents abroad expressly provide for cognizance of the offenses now charged, and mete out appropriate penalties.

If the Turkish Government were to show a disposition to cooperate with the United States toward the trial of these men according to the plain language of Article IV and without prejudice to the equities of the question, a way might be opened to prevent miscarriage of justice and to enter upon a cordial discussion of the merits of the matter with a view to concluding a conventional settlement of the vexed questions of jurisdiction and naturalization. But such cooperation would seem to be a remote possibility.

On the other hand, the disposition of the case which the Turkish Government appears to have made by ordering a new trial of the accused men, would seem to contemplate the adoption on its part of “the usage observed toward other Franks,” which is understood to consist mainly in permitting the attendance of the dragoman. This would be merely an insistence upon the Turkish claim in its full extent, and, if acquiesced in, would yield the whole question. This the United States could not do without, in effect, tearing up Article IV, which admittedly provides that American citizens accused of crime shall be punished through the instrumentality of their minister or consul, according to their offense. Such a course, if followed by Turkey, would leave the difference between the two governments in this regard as strongly accentuated as it ever has been, perhaps still more so.

The first instruction in Vartanian’s case, cabled to you on September 7, contemplated the stay of proceedings in that instance (and by [Page 894] analogy in Afarian’s case also) until the two governments should discuss and agree upon a disposal of the matter. That course still appears to be alike rational and expedient. International usage does not advocate the decision of a treaty dispute ex parte by one of the contestants, and instances are so numerous as to constitute an almost unassailable precedent where such action by one of the treaty signatories has turned out to be not a settlement of the difference, but, instead, the initiation of a more acute stage of the dispute, terminating in arbitration or a rupture.

The present moment seems most opportune for the two governments to come together and convene in a spirit of equity and friendliness upon an accommodation of their differences which shall remove the causes of friction that now ceaselessly arise between them in regard to jurisdiction and naturalization. As to the latter point, it may be observed that upon several occasions agreement upon nearly every essential feature has been reached, and there is no reason why a renewed endeavor should not meet with success. As to the former, this government, for its part, is willing to approach its discussion in the fairest spirit and with every regard for the conditions of the present age and the tenets of international law, in the hope of reaching a practical adjustment of the conflicting claims of the two governments by an intelligent interpretation or modification of the treaty of 1830.

I am, etc.,

Elihu Root.