The contention would seem to be without the slightest foundation, but in
want of special instructions from the Department, I do not deem myself
authorized to make a reply.
[Inclosure.—Translation.]
Sublime Porte Ministere des Affaires
Etrangeres,
December 26,
1899.
Note verbale.]
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 most-favored-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
[Page 910]
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 subjects. 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.
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.
