as it styles that of its governors, is composed of a medjilis or provincial council, for the trial of both civil and criminal cases, and for the former trials foreign merchants are admitted. There also the presence of the American dragoman' is required, who, if the place has an American consul, is generally a native linguist, temporarily employed by the latter. "3d. Jurisdiction is allowed by the Sublime Porte to the American minister and consuls in all cases, civil and criminal, occurring between citizens of the United States and these and other foreigners. It is wholly averse to the exercise of any interference in these cases, and it refused positively to interfere between the Americans and Austrians, in the serious affair which occurred in Smyrna, respecting Martze Koszta. This usage towards Franks is rigidly observed in all parts of Turkey. "The exact language of the 4th article of the treaty, to which the honorable Attorney-General alludes, I thus interpret: "When suits occur between subjects and rajahs of the Sublime Porte, and subjects of the American Government, these shall not be heard and judged except in the presence of the dragoman (of the latter). Whenever those (occurring in the provinces of the Ottoman empire) amount to as much as 500 piastres they shall be referred to the capital, where they shall be tried according to justice and equity. When American subjects are occupied with their own affairs of trade, and no crime has been proven against them, they shall not causelessly be molested; and even when their guilt has been proven, the judges and executive officers shall not imprison them, but, in the same manner which is observed towards other foreigners, they shall be punished (i. e. the judgment be executed upon them) by their own minister or consul.' "In the Turkish original the word 'tried' by their minister or consul certainly does not exist, and the language used refers to the carrying into execution of the punishment deemed necessary for the American criminal. "The treaty states that even when they (Americans) may have committed some offence, they shall not be arrested or put in prison by the local authorities. The correct language of the original as aforeshown, is imprisoned or detained in prison, which is consistent with the practice or usage observed towards all foreigners generally, whom the police arrest and put in prison on a criminal accusation from Ottoman subjects, but give notice of the fact to the proper legation, with the request that one of its dragomen may be present at the trial. I should here add that the police will also always arrest a foreigner who is accused of crime, on the demand of another foreigner, but sends the accused immediately to his own consul for trial. "I believe I have shown that, forasmuch as the Sublime Porte is concerned, it refuses to exercise any jurisdiction of a civil or criminal nature in suits arising exclusively among foreigners in Turkey It leaves it to foreign governments represented in Turkey, to adopt whatever systems they may deem most expedient for the settlement of suits arising amongst their own subjects. On this point all have the same rights and liberty of choice. Consequently some have adopted codes for the trial of their own subjects, and established consular tribunals, composed only of their own subjects and protégés and presided over by their consuls. Whenever the plaintiff is the subject of another foreign government, the suit, if a civil one, is referred to a mixed commission' of arbitration, composed of two members for the defendant and one for the plaintiff. An appeal may be had under some of the consulates or chancellaries to the minister, who generally decrees a retrial before a similar commission of appeal, whilst in others, as in the French, provision is made for an appeal to the Court of Aix;' and in the Austrian to a court at Trieste. "This system of mixed commissions among the foreign legations and consulates in Turkey has become a kind of lex loci. I have heretofore conformed to it in the trial of suits between American citizens and protégés, or these and other foreign subjects, and it would be a source of much satisfaction to me to be apprised by an 'opinion of the Hon. Attorney-General whether or not my conformance to it renders the judgment of the commission approved of by me valid or legal, and whether I could carry it into execution here? "In connection with the preceding I would respectfully beg your indulgence while I add the following remarks on the results of the exterritoriality thus enjoyed by citizens of the United States in Turkey. "Not only are American consuls there called upon to carry the sentences of Turkish tribunals into execution on American citizens, but also to execute those of their own finding. The Ottoman Government is averse to allowing foreign criminals to be confined in its prisons where, by the usage observed, they are fed at its expense. I am compelled, on account of there being no American consular prison here, to confine Americans whom I have had to sentence in the wretched prison of the police department, the filthiness of which exposes the criminal to dangerous diseases. There are no public hospitals here in which American citizens can be placed, and I have been compelled to depend upon the goodness of the Prussian hospital for admittance for suffering Americans. "Most of the foreign legations here possess a prison and a hospital, and some have a house connected with the latter, for boarding dis tressed seamen or indigent subjects, especially the British, French, and American. "As the relations between the United States and Turkey are annually being extended, particularly with Constantinople, the former will before many years be compelled to provide a prison, and perhaps a hospital for their citizens. One prison would suffice for the greater part of the empire, to which Americans sentenced by their consuls to an imprisonment of some months' duration might be sent. So much has already been written to the Department on the subject of civil consular jurisdiction in Turkey, that I beg to believe it is only a sense of duty which has induced me to trouble it again.” Mr. Brown, consul-general at Constantinople, to Mr. Cass, Sec. of State, Mr. Brown accompanied Commodore Porter to Constantinople as acting See, also, Mr. Williams, min. to Turkey, to Mr. Cass, Sec. of State, Nov. 1859. "The Department has duly considered your several despatches, calling attention to the discrepancies alleged to exist Views of Mr. Cass, between the Turkish text of the treaty with the Sublime Porte of May, 1830, and the English translation thereof, and suggesting the negotiation of a new instrument as the proper means of avoiding the difficulties to which such a variation in the two versions may give rise. "Without going into a history of the circumstances that attended the negotiation of the treaty in question, which are no doubt familiar. to you, and admitting that the English version is a somewhat imperfect rendering of the Turkish text, I feel constrained upon reflection to express my belief that the true meaning and intent of the instrument may be deduced either from the English text or from its Turkish counterpart, and that any fair attempt to harmonize the two would not necessarily be unsuccessful. "It would be well therefore to endeavor to obtain from the Turkish Government a formal recognition of the correctnesss of our interpretation of the provisions of the existing treaty. In the event of this not being practicable, the propriety of negotiating a new convention, by which all misunderstanding might be avoided, would appear to be unquestionable. 6 "It is evident that Mr. Porter, the chargé d'affaires at Constantinople, in agreeing that, to remove doubts in regard to the true meaning of the treaty, the Turkish text should alone be consulted in any discussion which might arise between the contracting parties, did so under the conviction that there was no essential disagreement between the Turkish and French versions-that the difference was in words only, not in substance. The codicil' itself, as it is termed, speaks of the want of accord between them as being purely the effect of translation,' and asserts that the Government of the United States is fully satisfied with the treaty, and has accepted it, without the reserve of any word.' Mr. Porter was well aware of the construction which had been put upon the treaty by the United States, at the period of its ratification, and it is not likely that the ratifications would have been exchanged by him if he had not had sufficient reasons for believing that the stipulations were fairly conveyed in the English text. Those parts of the treaty respecting the true interpretation of which it was apprehended doubts might arise, were fully dwelt upon in Mr. Porter's instructions, and were no doubt discussed by him with the plenipotentiary of the Porte before the exchange was made. "Under the circumstances, it is deemed proper that you should call the attention of the Ottoman Government to the discrepancies adverted to in your No. 21, and urge the necessity of a distinct and clear understanding between the two Governments in regard to the terms of the treaty. Should you fail to elicit a satisfactory reply, the Department will, upon the receipt of your despatch communicating the result of your efforts, lose no time in instructing you further upon the subject." Mr. Cass, Sec. of State, to Mr. Williams, mia. to Turkey, July 18, 1859, Position of Mr. "The correct meaning of the fourth article of the treaty of 1830, between the United States and Turkey, has for some time past been under consideration here. The various translations of the Turkish original of that article made at Constantinople and in this country have been carefully compared, and the conclusion arrived at is that the English version, upon the faith of which the treaty was ratified by the Senate and the President of the United States, is erroneous. Accord ing to that version a citizen of the United States who may have committed a misdemeanor or a crime in Turkey against a Turk, or against the Turkish Government, can not be arrested even on mesne process, or imprisoned by the local authorities, and if tried therefor, this must be by the United States minister or consul. 66 Considering the virtual impunity which such a stipulation as this bestows upon evil-disposed citizens of the United States, in that country, it is unaccountable that no more serious distrust of the accuracy of the translation should have been entertained than the archives of the Department disclose. 66 The history of that translation appears to be as follows: "Mr. Charles Rhind, who as a special agent of the United States, proceeded to Turkey in 1829, for the purpose of negotiating the treaty, employed, on arriving at Constantinople, one Navoni as his dragoman. A French version of the Turkish by this Navoni, and another in the same language by another hand, accompanied the original treaty sent hither by Mr. Rhind. It is presumed that neither of these versions was entirely satisfactory to Mr. Van Buren, then Secretary of State, for, pursuant to his direction, Mr. William B. Hodgson, then employed in the Department, and afterwards its official translator, made another translation, which purports to have been from the original Turkish. It is, however, obvious on inspection that Mr. Hodgson's translation is not from the Turkish original, but seems to be compounded from the two French versions above referred to, both of which err, as alleged by the Turkish Government, and as the other translations recently made plainly show. "If reasonable weight be allowed to the objection of the Turkish Government that it could not have been, and was not their intention to have placed United States citizens, offenders in Turkey, on a more favorable footing than citizens or subjects of other countries, it is obvious that this objection is decidedly at variance with the English version of the 4th article of our treaty as approved by the Senate, and proclaimed by the President of the United States. The English translation of the 7th article has also been pronounced defective by that Government, as its correspondence with your predecessor, Commodore Porter, will show. |