Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part I

No. 452.
Mr. Brown to Mr. Fish.

Legation of the United States,
Constantinople, August 12, 1871. (Received September 4.)

No. 15.]

Sir: As the legation is frequently called upon by citizens of the United States to, aid them in matters relating to lands purchased by them and houses constructed on the same in this empire, and as the Department has, I believe, the subject of a new treaty with the Porte under consideration, I beg leave to inclose for its information a copy of the law of the Sultan, allowing foreigners to possess real estate in his dominions under certain conditions, and the protocol respecting it, signed by the most of the foreign representatives here. I have comprised in one document all that refers to the subject, in the belief that there is now no necessity for “separating them, as was done in the originals, and add an English version to a French one. Some portions of the protocol in question probably need an explanation; and I therefore have the honor to state that, although there are several different tenures of land in this empire, the two principal ones are denominated mulk and vakuf; the former free tenure, and the latter conditional tenure, to wit, subject to the conditions imposed on them by the donators of the property for the support of religious or other institutions, such as mosques, schools, fountains, &c. Those lands which are held as mulk may be bought and sold, mortgaged, given away, or left to all heirs, (natives,) without any legal obstacle whatever; while those which are vakuf are subject to various conditions and difficulties. These are often very restrictive and curious, and the purchaser should be careful to make himself well acquainted with them before becoming their owner. The donator, for example, gives his property to a mosque, subject to the conditions of being allowed to hold it on the payment of a small annual tax to its administration, and of leaving it at his decease to his children, but not to brothers and sisters. Whenever the former do not exist, the land, with whatever improvements he may have built upon it, reverts to the mosque.

For this reason vakuf property can never be alienated from the mosque. The holder may sell it subject to all the conditions of the original donator; bat it cannot be mortgaged, nor can it be seized upon for the payment of debt. More than one-half of the city property, as well as a large portion of the lands in the provinces, are held by this tenure.

The government has made various efforts to place vakuf property on the footing of mulk, but as yet the opposition of the clergy has been sufficiently powerful to prevent it; an exception is therefore alluded to in the third and fourth articles of the law, in favor of vakuf property. The exception made to the province of Hedjos is on account of its containing the two holy cities of Mek-keh and Mediuch.

The law places all foreigners upon the footing of Ottoman subjects, and refuses them all rights to appeal to their legations and consulates for support in any suits connected with their innumerable properties.

The protocol declares their domiciles inviolate, and provides for the arrest of criminals in their houses in provincial places. The insecurity of remote parts of the empire prevents foreigners from settling there; so that, whatever the advantages be from this law, they are enjoyed only by residents in the larger cities and towns of the empire.

At the present time citizens of the United States are compelled to purchase and hold real estate in the names of Ottoman subjects, or other foreigners whose governments have accepted the conditions of the law, and signed the protocol; but the Islam tribunals only recognize as owners those whose names figure in the hodjets, or deeds. If an Ottoman subject gives to the citizen a formal declaration, stating that he holds the property in his name, as a mere formality, the executive officers of the government are disposed in most cases to recognize it as binding between the parties; but the Islam tribunals will not do so without an order from the Grand Vizier. The result is, that this and some other acts are abusive tenures, surrounded with many dangers and difficulties, to obviate which the government consented to create a special law in favor of foreigners.

There are, at the present time, many citizens of the United States in various parts of Turkey holding property in the manner of Ottoman subjects, and others have had their heirs registered as such in the native Protestant community, so as to place their property on them. This is certainly a very dangerous form of tenure, contrary to the laws of the United States and those of Turkey, and calculated to produce serious trouble hereafter to the legation.

The Porte is always disposed to be kind and just in such cases, but it cannot break the laws of the empire with regard to real estate, especially those giving inheritances, all intimately connected with the religious prescriptions of the Koran.

I do not believe that this government would yet be willing to comprise this law in a general treaty with the United States; and therefore I would respectfully suggest that the protocol or convention be accepted in its present form. I see no disadvantages from such a convention, inasmuch as citizens of the United States may or may not avail themselves of it, as they deem best, though I fully believe that they all will be happy to be able to pass it by; and it will place themin a position of independence of their present necessity of holding property in the names of natives often of doubtful honesty.

I am not aware that the Porte expects any reciprocity of this law in favor of its subjects in the United States, for its entire object is to benefit its own dominions.

I beg the indulgence of the Department tor venturing to address it upon such a subject, and offer as an excuse its growing importance to the interests of citizens of the United States in this country.

I have, &c.,

JOHN P. BROWN.

Law ceding to foreigners the right of possessing property (real estate) in the Ottoman Empire.

[A.—No. 15, of August 12, 1871.]

In the view of developing the prosperity of the country, to put an end to the difficulties, abuses, and unsettledness produced on the subject of the exercise of the right of holding property by foreigners in the Ottoman Empire, and to complete, by the means of a precise regulation, the guarantees due to the financial interests and the administrative action of the government, the following legislative arrangements have been adopted by the orders of His Imperial Majesty, the Sultan:

Article 1. Foreigners are allowed, on the same footing of Ottoman subjects and without any other conditions, to enjoy the right of possessing immovable property in the cities and rural parts of the whole of the empire, excepting the province of Hedjas, by submitting to the laws and regulations which govern Ottoman subjects, as hereafter stated. This arrangement does not extend to native Ottoman subjects who may have changed their nationality, and who will be governed in this matter by a special law.

Article 2. Foreigners owning city and rural property are, consequently, assimilated to Ottoman subjects in all that relates to their immovable property. This assimilation has for legal objects—

1. To oblige them to conform to all of the laws and police regulations, as well as those of a municipal character actually in force, or which may hereafter govern the enjoyment, the transmission, the alienation, and the hypothecation of real estate.

2. To pay all of the taxes and contributions, under whatever form and denomination whatever, now or hereafter affecting city and rural real estate.

3. To render them amenable to the civil Ottoman tribunals for all questions relating to real estate, and for all real actions thereon, either as plaintiffs or defendants, even when both parties are foreigners; all on the same footing, under the same conditions and in the same favors as Ottoman proprietors, and without their having any right to put forward their personal nationality; but yet, under the reservations of the immunities attached to their persons and to their movable property, according to the treaty stipulations.

Article 3. In case of the bankruptcy of a foreigner owning real estate, the syndics of the bankruptcy will proceed to take action thereon, before the Ottoman authorities and the civil Ottoman tribunals, for the purpose of demanding the sale of the immovable property owned by the bankrupt, and which, by their nature and conformably with the law, may answer for the debts of the owner.

This same rule will be carried out whenever a foreigner has obtained a judgment before any foreign tribunal condemning another owner of real estate.

For the execution of this judgment on the real estate of his debtor, the foreigner will address himself to the competent Ottoman authority, so as to obtain the sale of the immovable property, answering for the debts of the owner, and their judgment will not be executed by the authorities and Ottoman tribunals until after they shall have established the fact that the immovable property required to be sold really belongs to the category of property which may be sold in payment of debts.

Article 4. The foreign subject has the faculty of disposing of, by donation or by will, those of his immovable properties which, under this form, are allowed by law to be so donated or willed.

As to the immovable properties which he has not disposed of, or which the law does not allow him to dispose of, by donation or will, their inheritance will be regulated conformably with the Ottoman laws of succession.

Article 5. Every foreign subject will enjoy the advantages of the present law from the moment that the power (government) to which he belongs shall have adhered to the arrangements proposed by the Sublime Porte for the exercise of the right of holding immovable property.

protocol.

The law which grants to foreigners the right of possessing immovable property in the Ottoman Empire does not affect the immunities sanctioned by the treaty stipulations; and these, therefore, shall continue to cover the persons and the movable effects of the citizens of the United States of America who may hereby become owners of any immovable property; The concession of this right of holding real estate being designed to induce a larger number of foreigners to establish themselves in the Ottoman Empire, the imperial government considers it a duty to provide for and prevent the difficulties to which the application of this law may give rise in certain portions of the empire. Such, therefore, is the object of the following arrangements.

The dwelling of every person residing on Ottoman soil being inviolate, and no one being allowed to enter it without the consent of the owner, except in virtue of orders emanating from competent authority, and with the assistance of the magistrate or functionary invested with the requisite power, the dwelling of a citizen of the United States of America is, in the same manner, inviolate, conformably with the treaty stipulations; and the agents of the public force cannot enter without the co-operation of his consul or his delegate.

By the term “dwelling” is understood the house in which the citizen resides, and the appurtenances of the same, such as the out-houses, yards, gardens, and inclosures adjacent thereto, exclusive of all other parts of the property.

In all localities, distant at least nine hours from a consulate of the United States, the agents of the public force shall not enter the dwelling of a citizen of the United States without the co-operation of his consul, as before stated. The consul, however, is held to give his immediate assistance to the local authorities, so that not more than six hours shall elapse between the moment when he has been apprised of this desire and that of the departure of his delegate; and in this manner the action of said authori-ites may not be arrested more than thirty-four hours.

In those localities which are more than nine hours distant, or more than nine hours journey from the residence of the consular agent of the United States, the agents of the Ottoman government may, on the demand of the local authorities, and with the assistance of three of the members of the council of the parish, (commune,) enter the dwelling of the citizen, without the assistance of the consular agent; but this only in cases of great emergency, and for the purpose only of effecting a search after a criminal, and to establish the crime of manslaughter, or an attempt to commit this crime, or that of incendiarism, or of theft with arms, or of burglary, or, during the night, in a house occupied by armed rebels, or by counterfeiters; and this also, whenever the crime may have been committed by a foreigner or by an Ottoman subject, or whenever it shall have been committed in the dwelling of a citizen of the United States, or outside of the same, or in any other place whatsoever.

These provisions are only applicable to the parts of the property which form the actual dwelling of the citizen of the United States, as afore defined. Beyond the dwelling, the action of the police shall be exercised freely and without any reserve; but, in case the individual accused of the crime or misdemeanor shall be arrested, and prove to be a citizen of the United States, all of the immunities attached to his person by the treaty stipulations shall be fully respected.

The functionary or other official charged with the execution of the visit to the domicile of the citizen of the United States under the exceptional circumstances aforementioned, and the members of the council of the parish who assist him, shall be held to draw up a report of the same, and to communicate it immediately to the superior authority to whom they are amenable, and the latter shall, himself, forthwith, without any delay, transmit said report to the nearest consular agent of the United States.

A special regulation will be promulgated by the Sublime Porte, to direct and govern the mode of action on the part of the local police, in the various cases aforestated.

In the localities, distant more than nine hours from the residence of any consular agent of the United States and in which the law or the judiciary organization of the vilayet (province) is in force, citizens of the United States may be judged without the assistance of the consular delegate, by the council of the parish, performing the functions of judges of the peace, and by the tribunal of the caaza, (district,) both for suits not exceeding 1,000 piasters, ($50,) and for misdemeanors which do not call for a heavier fine, in the maximum, of 500 piasters, ($25.)

Citizens of the United States will, in all cases, have a right to appeal to the tribunal of the sanjak (county) against sentences given as aforestated; and the appeal will be followed up and judged with the co-operation of the consul of the United States, conformably with the treaty stipulations. The appeal will, in all cases, suspend the execution of the previous sentence.

In every case the forcible execution of the sentences given, under the conditions aforestated, shall not take place without the co-operation of the consul of the United States or of his delegate.

The imperial government will draw up a law for the government of the rules of procedure to be observed by the parties in the application of the preceding arrangements. Citizens of the United States, in whatever part of the empire they may be, are authorized to submit, spontaneously, their suits to the parish councils, or to the tribunals of the caaza, without the assistance of their consul; suits which shall not, however, surpass the competency of these councils or tribunals; reserving, nevertheless, the right of appeal to the superior tribunal of the sanjak where the case may be carried, and judged with the co-operation of the consul or his delegate.

In all cases the consent of the citizen of the United States to be tried, as afore-stated, without the assistance of his consul, must be given in writing, previous also to any proceedings being taken.

It is well-understood that all of these restrictions do not relate to any questions concerning matters of real estate, which shall be prosecuted and judged under the conditions established by the laws special to them.

The right of defense and the publicity of the audiences is secured to the citizens of the United States who appear before Ottoman tribunals, as well also to Ottoman subjects.

The preceding arrangements will remain in force to the period of the revision of the ancient treaties, for which the Sublime Porte will endeavor to bring about an understanding with the friendly powers.

In the view, also, of preventing any confusion in the execution of the previous provisions, the following rule is moreover adopted:

Any citizen of the United States desirous of purchasing real estate in the empire, will, if he reside at Constantinople, address himself, in the first instance, to his legation, and it will draw up a takrir, (official note) in the Turkish language, for presentation to the department of foreign affiairs, to be transmitted by it to that of the evkaff, or “Pious Bequests,” and authorize the transfer of the property. This takrir, will indicate the nationality and the origin of the purchaser, his own name and that of his family, as well as the character of the immovable property purchased by him.

For whatever relates to citizens of the United States residing in the interior of the empire, the takrir containing the preceeding details will be adopted by the consul of the United States within whose jurisdiction he is domiciled, to the head of the local administration, who will proceed accordingly to effect the transfer of the property in question through the competent authorities. This rule will be observed both at Constantinople and in all other parts of the empire, for any operation concerning immovable property held by citizens of the United States.

Moreover, the takrir afore alluded to, containing the information therein specified, and drawn up In the Turkish language, must be in duplicate. The department of foreign affairs will be required to transmit one of these copies to that of the evkoff, after having duly verified the citizenship of the proposed purchaser, and his exemption from all of the impediments foreseen by the law, preventing his full enjoyment of the rights to possess property in the empire, and after having legalized the seal attached to said takrirs of the legation of the United States of which it will require to be furnished with an impression. Whenever the citizen of the United States shall present himself before the proper Ottoman authority as the seller of immovable property, purchased by him in the empire, there must be, annexed to the takrir of his legation or consulate, furnished also in duplicate, a certificate, delivered to him by the meuhtar (head) of the quarter in which he resides, or by the head of the corporation to which he belongs; and this certificate shall establish his desire to dispose of his property, conformably with the practice observed with regard to natives.

It is likewise understood that all of the preceding formalities must be equally observed in the provinces, where the consuls of the United States will address their takrirs to the chief of the administration of the same, after having previously made known to him the seal which he designs using for such purposes.