Correspondence of 1900-1901. "The imperial ministry of foreign affairs has the honor once more to draw the attention of the legation of the United States of America to the long-pending question of the prosecution of American citizens guilty of offenses in the Empire against the persons or the property of Ottomans; in other words, to the controversy arising from the interpretation of article 4 of the treaty of 1830. "The imperial ministry does not wish to repeat the arguments it has already adduced to justify its own point of view. It has stated and developed them so many times in the official correspondence already exchanged that it considers it really useless to repeat them here. "The imperial ministry limits itself to recalling the fact that the Turkish text of the above-mentioned treaty differs very much in its substance from the French draft; that it does full justice to the indisputable sovereign rights of the territorial jurisdictions; that it limits the privileges to be granted to American citizens solely to the mostfavored-nation clause, which, moreover, is likewise provided to some extent in the said French text; that finally, after many discussions, it has been acknowledged that the Turkish text alone must be binding, for the reason that it was formally recognized as the only authentic one by the chargé d'affaires of the United States at the time of the exchange of ratifications of the said act of 1830. "The imperial ministry thinks it its duty to remark as a supplementary considering' (preamble) that the Washington Cabinet assented to the Ottoman point of view-that is to say, to the right of the courts of the Empire to try mixed cases between natives and Americans-by signing the protocol annexed to the law of the 7th Sefer 1284, granting to foreigners the right to hold real estate in Turkey. "This protocol provides, in fact, that in localities more distant than nine hours' travel from the residence of the consular agent foreigners shall be tried without the assistance of the consular delegate by the council of elders . . . and by the tribunal of the Caza, both in actions not involving more than 1,000 piasters and for offenses entailing a fine of not more than 500 piasters. Foreigners shall have in every case the right of appeal to the tribunal of the Sandjak against judgments rendered as above stated, and the appeal shall be carried up and tried with the assistance of the consul in conformity with the treaties.' "This text, by establishing for the localities more than nine hours distant from a consular residence, an exception to the rule of the dragoman's assistance and by expressly prescribing the system of appeal in these suits, admits the competency of the Ottoman jurisdiction over Americans guilty of reprehensible acts toward Ottoman sub jects. In fact, if appeals in the case of suits arising at a place more than nine hours distant are to be tried before the Ottoman tribunal with consular assistance, a fortiori, it must be the same for suits to be tried in first instance in places where there is a consulate, with this difference: That the court trying them would be one of the first degree. "Now, the United States Government signed this protocol without making any reservation, maintaining its claims based upon the interpretation it gives to article 4 of the treaty of 1830. It therefore consented to allowing its citizens to be tried by the territorial authorities in their relations with the natives, and, furthermore, it tacitly admitted that the treaty does not involve a special extension or interpretation, but simply the most-favored-nation clause. "The imperial ministry remarks with regret that the present controversy has had the effect of causing a serious disturbance of public order in the Empire. Every time that an American citizen commits a crime or offense he is assured of impunity. The consulate claims the right of trying him. The local judicial authorities plead their rights; and the guilty party, taking advantage of this disagreement, remains perfectly at ease, free from uneasiness with regard to the proceedings instituted against him, and this to the great detriment of the public tranquillity and peace. It is but right, then, to inquire if this state of things, so little in harmony with the requirements of justice, is to continue indefinitely for the sole reason that the United States Government does not consent to abandon a view which is not only debatable, but which is seriously and fundamentally controverted. "If in former times this question was of hardly any importance, by reason of the small number of Americans residing in the Empire, to-day it is quite different, their number having increased to such an extent that the failure to punish their criminal acts can no longer be regarded as an inconvenience that can be overlooked. Complaints are frequently brought to the imperial ministry from the competent authorities of the capital and the provinces tending to show that American culprits escape public prosecution through the refusal of the United States consulates to assist the territorial jurisdictions in the same manner as those of the other powers. "The Sublime Porte does not need to state at length the inevitable effects of a situation which permits the greatest impunity and free circulation in the Empire to a number of persons charged in the courts with crimes or offenses and which situation of itself is a sufficient reason for denouncing such a defective agreement. The Porte calls attention to the fact that, if it has not made use of its right to expel from the Empire offenders of this kind, it is because it desired and still desires to see this question settled by frank and final agreements between the two Governments. 66 Already, in the course of the negotiations going on at Washington, the secretary of state for foreign affairs proposed a compromise by which the right of the Ottoman courts to try cases would be placed beyond dispute, provided the rights of the consulates to inflict the penalty were recognized. This proposition, which is partially in accordance with the Ottoman view as to the prosecution and conviction of American offenders, considerably reduced the scope of the controversy, and the Sublime Porte cherishes the hope that the most-favored-nation treatment, which it wants to apply in the premises to American citizens will be appreciated to its full value by the United States Government, and on this ground the imperial ministry begs the legation to kindly examine this question anew, with due consideration for the territorial rights which are at stake with regard to its citizens enjoying the hospitality of the territory of the Empire, and to help to end a dispute which the Sublime Porte is desirous of settling on an equitable basis, as one of the last messages of the President of the United States likewise appeared to direct." Note verbale, Turkish ministry of foreign affairs to the legation of the The ministry of foreign affairs again drew the attention of the legation The communications of the Porte were answered by the Department of "I have to acknowledge the receipt of your dispatches Nos. 162, 215, and 322, dated, respectively, February 6, 1900, May 29, 1900, and February 13, 1901, on the subject of the controversy between the Government of the United States and the Ottoman Government respecting the true interpretation of Article IV. of the treaty of 1830. "Inasmuch as the question of the interpretation of that article has been the subject of voluminous correspondence between the two Governments, I inclose herewith a copy of an instruction, No. 142, dated December 22, 1890, from Mr. Blaine to Mr. Hirsch, in which the question is elaborately summed up. There is nothing that has since been adduced by the Porte which is not already fully answered by the facts and arguments developed in the said instruction. It is there shown that the basis on which the argument of the Porte is built is largely characterized by error of fallacious assumption, and that the superstructure of said argument is wanting in solid foundation. “In addition to the foregoing observations, it has not escaped the attention of the Porte that the extraterritorial right in question also belongs to the United States in virtue of the most-favored-nation clause of the treaty. This right was given, in all the breadth of its assertion by this Government, by the Ottoman Porte to Belgium by Article VIII. of the treaty signed August 3, 1838, and reaffirmed by Article I. of the treaty between those States signed February 1, 1862. The same right was granted to Portugal in Article VIII. of its treaty with the Porte, signed in the French and Portuguese languages at London, March 20, 1843, and fully confirmed by Article I. of the treaty signed in the Portuguese language at Paris, February 23, 1868. "In the last two treaties there appears to be no question of the reading or interpretation of any Turkish text, and the lucidity of the French text leaves no possible doubt as to the nature and extent of the right conceded, and that that right is adhered to in all its extent by the Governments of Belgium and Portugal the Government of the United States has not the slightest doubt. "These considerations seem to fortify and render impregnable the position of this Government as stated in Mr. Blaine's instruction to Mr. Hirsch." Mr. Hay, Sec. of State, to Mr. Griscom, chargé at Constantinople, March 16, 1901, For. Rel. 1900, 914. (3) PRACTICE OF EUROPEAN POWERS. $285. By a circular instruction dated January 14, 1891, Mr. Blaine directed the ministers of the United States at various courts in Europe to ascertain the rules maintained by the governments to which they were respectively accredited in relation to the trial and punishment of their citizens or subjects in Turkey. Mr. Grant, minister to Austria-Hungary, March 3, 1891, enclosed a memorandum of the Imperial-Royal foreign office of Austria-Hungary. February 10, 1891, which read as follows: The treaty of commerce and navigation concluded on July 27, 1718, at Passarowitz, with the Ottoman Empire, and the Russo-Turkish treaty of commerce of June 10th, 1783, provide that Austro-Hungary has jurisdiction for criminal acts committed by its subjects in Turkey. This rule has an exception when a crime has been committed against a Turkish subject, or when Turkish interests have been injured, or when the perpetrators was apprehended in flagranti by the Turkish authorities. In these cases the trial and punishment is left to the Turkish authorities. Otherwise the Austro-Hungarian consular officers decide cases as courts of first instance, and in second and last instance the I. and R. embassy at Constantinople. a 37 MS. Desp. from Austria. Crimes committed by Austro-Hungarian subjects in Turkey will be investigated at first by the consular officers, and the trial and passing of sentence is part of the competent courts at home. As far as the material right is concerned, according to which the consular officers will proceed, the criminal law of 1852 will be applied for subjects of Austria, and the criminal law of 1878 for subjects of Hungary. Special legal provisions concerning jurisdiction over Austro-Hungarian subjects in Turkey do not exist. Mr. Phelps, minister to Berlin, with his No. 238, of February 18, 1891, enclosed copy of a note of Baron von Rotenhan, of the German foreign office, of February 13, 1891, Germany. reading as follows: Pursuant to the capitulations, as to which, for Prussia and the German Empire, are to be chiefly considered the provisions of the treaty of amity between Prussia and Turkey of March 22 (old style), 1761, as also, by virtue of the mostfavored-nation clause, the other treaties concluded by Turkey, as well as in accordance with the customary rights based on the capitulations, the German consular officials, in common with those of other nations, are entitled to exercise penal jurisdiction over persons enjoying their protection with respect to all punishable acts by which neither the public interest nor a Turkish subject is injuriously affected. The penal character of the act is determined by the general penal provisions which obtain in Germany and the procedure by paragraphs 21 to 42 of the law, of which a copy is enclosed, of July 10, 1879, concerning consular jurisdiction, and of the instruction of September 10, 1879, issued thereunder, as well as by the code of penal procedure of the German Empire of February 1, 1877 (Imperial Laws, page 253 and following, which is also enclosed.) Conflicting opinions exist as to the question of jurisdiction when the punishable act is of a generally dangerous character or a Turkish subject is thereby injured. The Prusso-Turkish capitulations contain no expressed provision on this point. Pursuant, however, to the usage which obtains, the Turkish authorities generally conduct the examination and consular jurisdiction intervenes only when the offender is not called to account by the Turkish authorities. This Turkish penal jurisdiction may not, however, be practiced until after previous notification to, and except with the cooperation of, the German consular representative. Nor does the right, accorded by custom to the Turkish authorities, of arresting. foreigners caught in the act of committing a crime, release the former from the duty of notifying the consular representative. While the undersigned permits himself to refer, as respects the principle underlying the subject, to the book of F. Martens, concerning consular matters and consular jurisdiction in the Orient, he avails himself, etc. Mr. Lincoln, minister to England, inclosed with his No. 401, of February 6, 1891, a note from Lord Salisbury of January 31, 1891, reading as follows: Great Britain. Her Majesty the Queen (as you are doubtless already aware) possesses extraterritorial jurisdiction over British subjects in the Ottoman dominions. This @51 MS. Desp. from Germany. 167 MS. Desp. from Great Britain. |