Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 5, 1916

File No. 711.673/73

Chargé Philip to the Secretary of State

[Extract]

American Embassy,
Constantinople, June 15, 1916.

Sir: I have the honor to transmit herewith a copy of the English translation of a set of instructions issued by the Ottoman Ministry of Foreign Affairs in 1914 for the guidance of provincial officials, and dealing with the results of the abrogation of the capitulations.

The instructions herewith enclosed make up the first part of a pamphlet which also contained the new regulations concerning foreign schools and institutions, already transmitted to the Department in December 1914. This first portion of the pamphlet, dealing with judical modifications as the consequence of the abrogation of the capitulations has never been communicated to the Foreign Missions in this city.

I have [etc.]

Hoffman Philip

[Inclosure 1—Translation]

[Untitled]

Sublime Porte, Ministry of Foreign Affairs,
[No Date.]

Instructions to be communicated to officials as the consequence of the abrogation of the capitulations

1. The capitulations, and the conventions subsequently entered into and established usages, together with their interpretation and all the privileges which have been granted to foreigners in the Ottoman Empire and which are contrary to international European public law, have been completely suppressed and abolished. It has been decided that beginning with 18 September 1330/ October 1, 1914, the provisions of international European public law shall be applied to the subjects of foreign Powers, and that with the exception of the rights which belong exclusively to Ottoman subjects and those which are set forth in the following chapters and sections, in all other matters they shall be treated in exactly the same manner as Ottoman subjects.

Judicial Affairs

chapter i—criminal matters

Part 1—Foreign Subjects

2. The summoning and arrest of foreign delinquents, the searching of their dwellings and stores, shops, hotels, or other premises belonging to them, their interrogation by the examining magistrates, the procedure of the courts and the conduct of trials, and the rendering of the judgment after deliberation shall be done directly, i. e., without having recourse to the intermediary of consular officers. In like manner, if the private plaintiff (partie civile) is a foreigner, consular officers shall not be present either at the inquest or at the hearings.

3. The communication of judicial documents shall take place directly. Preliminary arrest and imprisonment after sentence shall be accomplished, as hitherto, in the Ottoman jails and prisons, and all pecuniary fines shall be collected directly.

4. All crimes which shall be perpetrated by foreigners against Ottomans or against foreigners of the same or differing nationalities, or by Ottomans against foreigners, shall be examined and judged by the Ottoman tribunals, but without the presence of consular officers.

5. If Ottoman or foreign witnesses are to be heard during penal proceedings, either by the examining magistrate and the accusation committee (chambre de mises en accusation), at the time of the inquest or during the hearing of the case, the presence of consular officers shall as in the past in no wise be accepted. Foreign witnesses shall be cited to appear at the inquest or at the hearings directly, i. e., without having recourse to the intermediary of the consulates, and in case they fail to appear, the regulations in force with respect to similar Ottoman witness who fail to appear shall be applied to them.

6. The formalities of appeal and of cassation shall also be carried out in exactly the same manner as those in force for Ottoman subjects, and for whatever judgment recourse shall be had to cassation, the decisions of the penal section of the Court of Cassation shall be executed directly in the same manner as other judgments which have acquired a final character.

7. If the distance between the consulates and the offices of the examining magistrates and the courts is less or greater than nine hours, no distinction shall be made between Ottoman subjects and foreigners.

Part 2—Consuls and the Officials in their Staffs

8. Consuls General, Consuls, Vice Consuls, Consular Agents who are de carrière and are salaried, as well as all those who have any other title and are at the head of a consular office shall be arrested, judged and imprisoned directly by the Ottoman officers, offices and tribunals for all crimes which they may commit. If the said foreign consular officials should commit misdemeanors and offences they shall not be judged in the Ottoman courts, upon the condition that the Governments to which they belong shall follow the rule of reciprocity. However, as a special set of regulations is being drawn up with respect to the hearing and trial of their criminal acts, whether crimes, misdemeanors or offences, until that time it is necessary to abstain from legal action, and such matters shall be immediately communicated to the Ministry of Justice with all their details with a request for instructions.

9. During the prosecution for crimes, or for the misdemeanors and offences of consular officials of those Governments which shall not have accepted the principle of reciprocity, the inviolability of the archives and records of the consulates shall be respected.

10. In case it should become necessary to levy upon the personal property of the Consul for the execution of penal judgments, the provisions of law can be applied only to his private property, and the effects belonging to his Government shall not be touched.

11. In case it should become necessary to request information or to have recourse to the testimony of one of the aforementioned Consuls, either on the part of the officials charged with the inquest or of the courts, the officials in question shall apply in person to the Consul or shall send to him a special delegate who shall hear the verbal information and testimony, or who shall request this information and testimony in writing. In any event, the said Consuls cannot adjourn the requests and applications of the Ottoman officials and courts without basing their action upon a reason that is legally acceptable, and they shall accept and give effect to the same within the period, day, and hour that have been set.

12. Apart from these [consular officers], all honorary Consuls, secretaries, cavasses, and the mutevellis and dragomans of religious dignitaries or convents, whether Ottomans or foreigners, may not avail themselves of any privilege or exemption, and they shall be completely subjected to the treatment in force for the nationality to which they belong.

Part 3—Foreign Merchant Vessels

13. With respect to criminal acts which may be committed on board foreign merchant vessels within Ottoman territorial waters and in Ottoman ports, Ottoman officials will intervene in the three following cases:

(1) If the criminal act which is committed disturbs public order in the port or on land, whether or not the local population or other persons are involved therein.

(2) Even in case the criminal act does not disturb public order in the port or on land, if any one of the local population be interested in any way whatsoever, whether the act takes place only between members of the crew, or between members of the crew and third persons.

(3) In like manner, even if the act does not disturb public order in the port or on land, if any person other than the local population or the crew is interested.

In brief, with the exception of criminal acts committed solely among the members of the crew, upon the condition that these acts do not disturb public order on land, in the territorial waters and in the ports, and that there shall be no local inhabitants among the members of the crew interested therein, in all other actions of a criminal nature the local officials and the local courts shall have the right to intervene.

14. Moreover it is manifest that in such circumstances, and also for the pursuit of persons who may be on board and who may have committed criminal acts in any place whatsoever which lie within the jurisdiction of the Ottoman courts, Ottoman officials may go directly on board foreign merchant vessels in order to search, to interrogate, to make arrests, and to perform all the other duties for which the provisions of law render them competent.

chapter ii—civil and commercial matters

Part 1—Purely Civil and Commercial Matters

15. With respect to civil and commercial actions, foreign subjects shall also receive the same treatment as Ottomans. Although the competent tribunals to hear cases concerning leases of property and other actions of foreign subjects involving 1000 piasters or a smaller sum have until now been the civil courts with the presence of the dragoman, and although for other cases the Mixed Commercial Courts have had jurisdiction, and although the right to hear cases of a civil and commercial nature arising between foreign subjects of the same or differing nationalities belonged to the Consular Courts, henceforth civil and commercial actions which shall arise either between Ottoman subjects and foreigners, or between foreigners of the same and different nationalities, shall be examined, heard and judged directly, i. e., without the intervention of consular officers and foreign associate judges, by the Ottoman courts to which Ottomans address their cases, and in conformity with the procedure and laws in force for Ottomans.

16. The service of all kinds of legal documents and judgments, the summoning and hearing of witnesses, and the execution of judgments shall take place directly; and judicial officials may, in the cases provided by law, enter without consular assistance into the residences, hotels, shops and stores and other places of foreign subjects, and into foreign merchant vessels, just as they would do in the case of Ottomans.

17. Although up to the present time the judgments rendered by the provincial mixed commercial courts were subject to appeal to the First Chamber of the Commercial Court of Constantinople, and although the decisions of this latter court were not susceptible of appeal or cassation, henceforth all civil and commercial actions between Ottomans and foreign subjects shall be subject to appeal and cassation in the same manner as when both parties are Ottomans.

18. Cases of bankruptcy among foreign subjects shall be settled by the competent Ottoman courts without consular intervention (the competent Ottoman courts shall also proceed, in the same manner as in the case of Ottomans, against foreign subjects who are guilty of negligent or fraudulent bankruptcy). In case the bankrupt is an Ottoman, and one, a part, or all of the creditors, are foreign subjects, the operations of bankruptcy shall be heard and settled without consular assistance, according to the previous procedure which shall continue to be also applied in the future.

19. There shall be no distinction if the places where civil and commercial actions arise in the course of the aforementioned proceedings shall be located at a distance of more or less than nine hours from the nearest consulate.

20. As is hereinafter stated, in all matters relating to real property those foreigners who possess the right to acquire property being completely assimilated to Ottomans, the Ottoman courts shall continue to be directly competent, as in the past, to judge actions which arise concerning real property, even when there is question of rakabeh, right of property ownership, and usufruct.

Part 2—Family Law and Estates

21. It is one of the principles of European public law that the legal actions of foreign subjects concerning exclusively the law of family and capacity, such as those having to do with marriages, separations, paternity, guardianship, wills, minority and majority, and those which concern the testamentary legacies and estates of personal property, shall be heard by the local courts which, without prejudice to public interest, shall apply the law of the Government to which the foreigner belongs. However, the aforesaid actions shall not be heard by the Ottoman courts, unless Ottoman subjects are therein interested, until the reorganziation of the civil tribunals and the promulgation and publication of the laws required for the hearing of such cases.

22. All actions and operations concerning the succession of, and wills relating to real property shall continue, as in the past, to be heard by the Ottoman courts and governmental Departments, in conformity with Ottoman law.

23. If, during the course of an action concerning foreign subjects, there shall arise in the Ottoman courts any questions relative to the capacity of foreigners, these questions shall be settled in conformity with the laws of the country to which they belong.

Part 3—Consuls

24. Professional or honorary Consuls General, Consuls, Vice Consuls, Consular Agents and all those with any title whatsoever who are heads of consular offices, as well as the employees, dragomans and cavasses who are in their personnel, shall be subject to the direct jurisdiction of the competent Ottoman courts, in like manner as other foreigners, in all legal actions of a civil or commercial nature which do not arise from their official duties.

25. Of the officials who have just been mentioned, the persons who are at the head of consular offices may not be imprisoned for debt. However, if honorary Consuls General, Consuls, Vice Consuls and Consular Agents are engaged in trade, they may be imprisoned for debts arising out of their commercial affairs. But if it should prove necessary to enter a consular building in connection with the execution of a civil judgment or any similar operation, the inviolability of the consular records and archives shall be respected.

26. Should it be necessary to have recourse to the personal property in the execution of judgments, the provisions of law may be applied only to the personal property of the Consul, and the effects of the Government in question shall not be touched.

chapter iii—fees which shall be collected by the courts and judicial administrations

27. The fees, charges and other expenses which shall be collected in the criminal, civil and commercial courts and by the justices of the peace and by all judicial administrations shall be the same for foreigners as for Ottomans.

chapter iv—concerns penal, civil and commercial actions now pending.

28. Although the proceedings which have taken place up to September 18, 1330/October 1, 1914, in suits and actions now pending are valid, inasmuch as procedure subsequent to that date will have to follow the new state of affairs, the presence of consular officials in penal proceedings will not be admitted. Penal proceedings now in the consular courts shall be turned over to the Ottoman tribunals from the point at which they have arrived, the delivery of those under arrest to the Ottoman officials shall be demanded, and they shall be held in Ottoman jails; and the necessary steps shall also be taken to have foreigners, who have been arrested and condemned and were transferred to consular prisons, returned to the Ottoman jails and prisons, no matter what point in the proceedings against them has been reached.

29. The main punishments provided for in penal sentences, the collection of fines, the payment of damages, the restitution of goods, and the application of the other dispositions of the law shall also be continued from the point which they have reached.

30. With respect to civil and commercial actions now pending which involve an amount of more than 1000 piasters, they shall, in conformity with the provisional law that is now being prepared, be heard and terminated from the point which they have reached by the tribunals which already have jurisdiction, in applying the code of commercial procedure but without the presence of foreign associate judges and without the presence of a consular delegate.

31. Judgments rendered by the Ottoman courts in the aforementioned actions shall also be executed without consular intervention. The official charged with the execution of civil judgments rendered against Ottomans shall continue the execution of judgments rendered up to the present time by the mixed commercial courts in civil actions, beginning at the point which they have reached, and he shall also be charged with the complete execution of those judgments whose execution has not yet commenced.

[Inclosure 2—Translation]³

Private Religious, Educational and Benevolent Institutions, Schools and Medical Institutions

chapter i—general subjects

1. Churches, Monasteries, Priests’ Residences, Schools, (such as boys, girls, boarding and day schools, industrial, agricultural, medical, law, commercial, civil engineering, theological and other schools) orphanages, sewing schools, hospitals, clinics, pharmacies, childrens asylums, cemeteries) which are at present approved by Imperial firman and are actually in existence as foreign institutions and medical places, will be recognized subject to the conditions contained in the following paragraphs.

2. Institutions which to-day have no firman and are actually not in existence shall not be recognized even if they have been approved by special agreement.

3. Also, those institutions which have a firman, but on the 18th of September 3330 were not actually in existence, shall not be recognized. But those belonging to this class whose buildings have been completed up to the roof will, as an exception, be recognized.

4. With the exception of monasteries and priests’ residences those institutions which were actually in existence before the 18th of September 1330, although they have not a firman, will be recognized. But beginning with the 18th of September, within two months, they shall apply to the proper authorities for a firman; in the opposite case, they will not be recognized and will be closed.

5. Henceforth for the purpose of founding a foreign institution, those who are connected with it must deal directly with the Ottoman Government, and not through an Embassy. For this purpose, first of all, the necessary formalities, information and conditions must be fulfilled and a firman must be obtained. Any institution which is opened without a firman will immediately be closed.

6. When a request is made for the founding of a foreign institution, the Imperial Government will not be compelled, according to the former arrangement, i. e., to give a written answer within six months containing the necessary reasons for a rejection, but, without giving any reasons, the Imperial Government will be able to reject the request at any time.

7. The giving of a permission for the founding of a foreign institution will in every case depend upon there being in the place where the institution is to be founded, subjects of the Government represented, and the number of these foreign subjects must be proportionate to the size of the institution.

8. For the Vakuf properties belonging to foreign institutions, the Mukata’a tax will be 10 in a 1000: for Arazie-y Mevkufeh and Arazie-y-Amirieh and Emlak-surfa, a special tax of 7½ in a 1000 will be collected.

9. Whether this Mukata’a and special tax will be on the land or on both land and building is subject to the regulations in force.

10. In case of expropriation for the public good, properties owned by foreign institutions are not treated differently from other properties.

11. The correction of register of the spaces occupied by a building devoted to the discharge of the duties of a benevolent or religious institution, together with the first adjoining it, (being at the most twice its size) may take place to the name of the institution in a specified place belonging to a society after the legal tax (Khardj) has been collected.

12. The extent of cemeteries will be decided according to the need and necessity, and therefore in the matter of the correction of their registration, the rule regarding “twice the size” of the place they occupy, will not be enforced.

13. Those institutions whose registration has been corrected will be continued as at present.

14. As religious and benevolent institutions, according to the object they profess, cannot be owners of profitable land or property, it is not permitted that they should be owners of land or property bringing in an income.

15. Property held in trust belonging to the institutions will be established as before in the name of individuals, and their registers will not be corrected, and the Imperial Government has the authority, within a definite period to cause to be sold those properties which seem to be more than is necessary, and to sell by auction the property of those who do not sell, and to pay over the sums thus obtained.

chapter 2—churches, places of worship, monasteries, priests’ residences and cemeteries

16. Churches and places of worship shall be free as before for the performance of religious ceremonies, but when a crime is committed in them, or a criminal takes refuge there, or for the purpose of preserving general order the police have the right to enter these places. In any case, the competent Ottoman officials shall make the necessary investigations in these places in the enforcement of sanitary regulations.

17. Churches and places of worship which stand separate, are free in all respects from all Imperial and Muncipal taxes as regards immovable property. But residences of priests which are separate from places of worship or churches are subject to the said taxes. Even if places of worship are found in monasteries or residences of priests, they will be subject to the laws and regulations and to all the Imperial and Municipal and other taxes.

18. Ottoman officials have the right of entering foreign cemeteries in case of necessity for performing their duty according to law, from the point of view of health and public order.

19. Cemeteries are free from all the Imperial and Municipal and other taxes relating to immovable property.

chapter 3–schools

20. Foreign individuals may found private schools in Turkey by Imperial firman in accordance with the Ottoman law. For this purpose it is necessary for those concerned to apply directly to the Department of Education. It is evident that the said Department has the authority to reject such applications when made, without the necessity of giving any explanations.

21. Schools which belong to foreign communities, benevolent, religious and educational societies and whose existence is, in accordance with Chapter 1, valid and which have a firman, must within two months apply to the Educational Department and have these firmans registered. The firmans which are registered will have the force of permits. Schools which have no firmans are obliged within two months to apply to the Educational Department for permits. These permits will be given after securing an Imperial iradeh.

22. Schools which charge no tuition are exempted from the Emlak tax. For the rest, an Emlak tax will be collected, which will be half of what would be the probable tax as based upon the estimated value or rent of the property. Only, in regard to those schools whose taxes are remitted or those whose taxes are reduced, the said remission or reduction is confined to that part of the property whose registry has been corrected as mentioned above. Therefore any land or property over and above the said part will be governed by the ordinary law of taxation.

23. Schools devoted to the education of ecclesiastics shall be subject to the general duties and taxes relating to immovable property.

24. All schools, without exception, are subject to municipal taxation.

25. All the said schools are obliged within two months to indicate to the educational authorities a responsible director.

26. Henceforth foreign educational, religious and benevolent societies, whether with or without firmans, whether pertaining to individuals or institutions, are subject to the following regulations:

(a) A program must be presented to the Public Instruction authorities containing the obligatory study in Turkish of the Turkish language, the history and geography of Turkey. (It is obligatory that Turkish shall be taught to the same degree as the language of the school.) After these programs have been approved by the said authorities, the standing of the school must be determined, and according to this standing the certificates to be given by the school, shall be valued.

(b) If the books to be used in a school are printed, a copy of each of them shall be given to the Public Instruction authorities, with the names of authors, the place and date of publication.

(c) The pupils who are not of the religion and denomination to which the schools belong, shall not be taught the lessons pertaining to the religion and sacred history of the school and shall not be present at prayers.

(d) Special officials shall be invited from the Ministry of Public Instruction to be present at the class examination of the schools.

(e) A list giving the names and nationality of the teachers shall be presented, and their diplomas and certificates shall be shown, and the Turkish teachers must have a certificate from the educational authorities.

(f) At all times the schools must receive educational and sanitary inspectors, and must help them in the discharge of their duties, and must give at once all kinds of information and explanations.

(g) Schools which at the appointed times do not obey the above regulations will be closed and abolished.

chapter 4

28. Henceforth the establishment of private medical institutions such as hospitals, pharmacies, childrens’ asylums, medical schools, etc., will depend upon the permission of the Imperial Government by a firman.

29. Medical institutions now in existence, whether private or connected with an institution, shall be subject to the regulations given above in Chapter 3, in regard to school firmans.

30. Henceforth the founding of new medical institutions by foreign educational, religious and benevolent societies and communities is prohibited.

31. The regulations in Chapter 3 in regard to the correction of registration and of taxes for schools, will be applied here also.

32. The foreign medical schools now existing shall within two months appoint a responsible director, possessing the necessary qualifications.

33. Foreign medical institutions shall be subject to the following conditions:

(a) Foreign medical schools are obliged to have their programs approved by the Department of Public Instruction.

(b) Other medical institutions shall be subject to the decisions and rules laid down for such institutions by the General Sanitary Administration.

(c) In all the hygienic and medical institutions referred to in this chapter, the doctrines and ideas of the religion and denomination to which the institution belongs, shall not be taught to persons who do not belong to the religion of the said institution, and the said persons shall not be caused to be present at religious ceremonies.

(d) The examination for the degree of doctor in medical schools, shall be conducted by a commission to be appointed by the Ottoman Medical Faculty, and Ottoman officials shall be invited to be present at the class examinations.

(e) Lists giving the names and nationalities of teachers in medical schools shall be presented to the Educational Department, and their diplomas and certificates shall be shown, and it is necessary that of these, those who belong to the class of doctors of medicine or any of its branches, shall fulfill the special conditions required of foreign doctors. Those who carry on special branches in hospitals or in other medical institutions, (such as medicine, midwifery, dentistry and pharmacy, etc.) shall be subject to the conditions laid down for their professions.

(f) Foreign medical schools and hygienic institutions are subject to inspections just like Ottoman schools and institutions of the same kind. Medical schools and institutions are obliged to execute the orders and commands given by the inspectors, and of these orders those whose application must be immediate shall be carried out without delay.

3. Transmitted to the Department by Ambassador Morgenthau with his despatch No. 142, dated December 5, 1914, File No. 367.116/273.