TiONS OF THE Ottoman empire. REPORT EMARB A. VAN DYGl, . CDNSuiiAii Clerk of the Uneted States at Oaieo ■ - ^ ■» '- ■ •- -ifi;\~ ■ - ' ' '- ~ : ' ' "'«^>/ . - . -■ , .' • up6n the ^K'l. ^*Ti" CJtJ^ITULATlONS OF THE Qf TOMAN EM-PiHE SINQl: THF ^E^ 1150. -^^ I^A-T^T 1 Gbf'EENMENT PEIHTIN& OFFIO JS^ii^-uS" -■■■■: 1881. ■ , - •!&,-' . / '^^'W:. The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007490422 CAPITULATIONS OF THE OTTOMAN EMPIRE. REPORT oil' EDWARD A. VAN DYCK, (JoNSTJLAE Clerk op the United States at Oaieo, UPON THE CAPITULATIONS OF THE OTTOMAN EMPIRE SINCE THE YEAR 1150. F^RT 1 WASHINGTON; government printing office. 1881. SPEOiAi ) SENATE. ) Ex. Doc. SESSION, i \ 'So. 3. MESSAGE FHOM THB PRESIDENT OE THE UNITED STATES, TRANSMITTING, In response to the resolution of the Senate of the 18th ultimo, a report of the Secretary of State, with accompanying papers, in relation to the capitu- lations of the Ottoman Umpire. April 7, 1881. — Eead and referred to the Committee on Foreign Relations and ordered to be printed. To the Senate of the United States : I transmit herewith, in response to the resolution of the Senate of the 18th ultimo, a report of the Secretary of State, with accompanying papers, in relation to the capitulations of the Ottoman Empire. JAMES A. GAEFIELD. Executive Mansion, Washington, April 6, 1881. Department or State, Washington, April 5, 1881. The Secretary of State, to who m was referred the resolution of the Senate of the i8th ultimo, requesting the transmission to that body of a copy of the report made to him by Edward A. Yan Dyck, consular clerk at Cairo, on the capitulations of the Ottoman Empire, has the honor to lay before the President, herewith, the report called for, with its ap- pendices. ' This report, of which the first part is now submitted, will, when com- plete, be doubtless found of interest and value, as throwing much light, not merely on the relations of the European Powers to the Porte, which have been so prominent of late, but also on the treaty rights of the United States as based on the " most favored nation" treatment accorded' in the existing treaty with Turkey. JAMES G. BLAINE. The President. REPORT FOR 1880, ED. A. VAN DYCK, U. S. CONSULAR CLERK AT CAIRO. C5AIIIO, i^:c;^"r»T, ^^uausT, isso. PART I.-THE CAPITULATIONS. With 17 Appendices and a Table of Contents. TABLE OF CONTENTS. Page. Intioduction 7 I. General remarks 8 II. Origin and history of the capitulations 10 (fl) Capitulations with the Arab rulers 10 (6) Capitulations with the Ottoman Porte 15 1. Capitulations with the Italian republics 15 2. Capitulations with France. 15 3. Capitulations with England 16 4. Capitulations with Holland 16 5. Capitulations with Austria 17 6. Capitulations with Eussia - 17 7. Capitulations with Sweden; Denmark 17 8. Capitulations with Prussia 18 9. Capitulations with Germany 18 10. Capitulations with Spain 18 11. Capitulations with Sardinia 18 12. Capitulations with the United States •. . . 19 Article IV of Treaty of 1832 19 Minister Maynard to Consul Edgar 21 13. Capitulations with Belgium 2i 14. Capitulations with the Hanse Cities 22 15. Capitulations with Portugal 22 16. Capitulations with Greece 22 17. Capitulations with Brazil 23 18. Capitulations with Bavaria 23 III. Spirit and contents of the capitulations 23 The high opinion the Sultans have of themselves 24 Prohibition to make lasting peace with unbelievers 25 The provisions of the capitulations reduced to nine heads 27 Each of these nine heads examined and explained 27 Permission to come upon Moslem ground 27 Concessions concerning habits, customs, and religion 28 The Kharadj and the Djisyah remitted as to foreigners . 28 Exterritorial rights 28 Exterritorial rights upheld 29 Eight of foreigners to dispose by will and testament 30 Prohibition to protect Ottoman subjects 30 IV. Treaties of commerce and navigation 45 Treaties of the years 1838 and 1839 45 Treaties of the years 1861 and 1862 47 V. Law and protocol concerning real estate 48 1. The law and protocol a part of the capitulations 48 2. Hatt-Sharif of 1839 in its bearing on the law and protocol 50 3. The Crimean war in its bearing on the law and protocol 51 4. The Hatt-Humayoun of 1856 in its bearing on the law and protocol- 52 5. Ahd-el-Aman of Bey of Tunis 54 6. Needs for making the law and protocol 56 7. Foundation of right of real property by Moslem j urisprudence 57 8. Kinds of ownership of real property 58 9. Ushwri lands andKharadji lands 60 10. Diplomatic action on the subject 64 11. Eeal property code of 1858 65 12. The Porte's financial embarrassments in their bearing on the law and prot-ocol 67 13. The Porte's political embarrassments in their bearing on the law and protocol 68 14. The French ambassador and the law and protocol 69 15. Substance of provisions of law and protocol 70 16. M. de Bo wr6e's circular on the law and protocol 80 5 6 CAPITULATIOKS OF THE OTTOMAN EMPIRE. Pago. VI. Appendices (IT in all) t5 Appendix I. Mahonimed's testament. II. Piaan capitulations of the year 1173. III. Florentine capitnlations of the year 1488. IV. Treaty articles like Article IV of treaty with United States. V. Treaty articles concerning dragomans and guards. VI. Biglemeni of Sublime Porte" concerning foreign consulates. VII. Eeglement concerning customs immunities of legations. VIII. Bfiglement concerning customs immunities of consuls. IX. President's proclamation of law and protocol. X. Circular of Sublime Porte to powers that adhered, to protoc^. XI. Specimen of deed of Wakf. XII. Hatt-Sharif of 1839, and Hamayouu of 1856. XIII. Abdn-1-Medjid's firman to Protestants. XIV. Customs immunities of benevolent and religious establishments. XV. Siglemeiit concerning mixed tribunal of commerce. XVI. Analytical table of the contents of the final capitulations of 1740. XVII. The right of intervention and Turkey. A historical sketch by M. Ed. Engelhardt. (Translation.) REPORT THE CAPITULATIONS OF THE OTTOMAN EMPIRE. INTRODUCTION. Of all consuls residing in the various Moslem countries along the shores of the Mediterranean those that are sent by the Government of the United States to different places in the Turkish dominions are, per- haps, more deficient than any others in an acquaintance with the growth and history of the peculiar and exceptional relations that have long existed between the Christian nations of Europe and the Mohammedan nations of North Africa and Western Asia. Nor can this be otherwise. So long as our consular system is not based upon the principle of making this branch of the public service a career in which only such are admit- ted as have had a special training for it, but rests upon that article of the Constitution whereby each incoming President can, by and with the advice and consent of the Senate, change every minister and consul of the United States throughout the whole world, so long will the majority of these public functionaries continue to be frequently superseded. It accordingly happens quite often that a newly-appointed consul arrives at his post in a Turkish city without a knowledge of the principles that govern the relations of his fellow- citizens residing in the consular dis- trict to which he has been sent with the authorities and natives of the land, between whom he is th« only proper medium of official communi- cation. He finds that he is not only judge, chief of police, registrar, lawyer, justice of the peace, president of the commercial, civil, and crim- inal tribunal, for the small community of his fellow-citizens that are within his district, but that he is also their chief and representative in all dealings with the different officials of the local government, and is regarded by the latter as the representative of the power that sent him. Casting, about to find some guide, some authority, from which he can obtain light upon the origin of the international principle that forms the basis of the multitudinous and multifarious duties and functions that have been conferred upon him by the statutes, he meets at the very outset with two difficulties. First, he knows not the native language, and has scarcely any, or in most cases, no acquaintance at all with the commercial and diplomatic languages of the Levant, which are the French and the Italian. Second, he can find no one book that contains the information he so much requires before he can see through the maze of the rights, privileges, and immunities of foreigners,. ecclesiastics, and proteges in Turkey, all which prerogatives the small colony of his fellow- citizens lays claim to under the elastic treaty stipulation commonly C'dlled th^ most favored nation clause. What he desires to find exists; but it is scattered throughout a large number of books, most of which are either in Italian or in French, and, moreover, are not on the shelves 7 8 CAPITULATIONS OF THE OTTOMAN EMPIRE. of the consulate library. Besides, he cannot always afford the time to wade throiTgh so many works; he is anxious to learn something at once about usage and precedent in a given matter that has just been brought before him. The consuls of other powers experience none of these embarrassments and perplexities, for they hare grown up in the consular service and have had long years of experience in the Levant, first as pupils, then as vice-consuls, and lastly as consuls having full judicial functions. It had for some time been in my mind to gather together and put in a small compass, and in the English language, such information as might be useful to newly-appointed consuls of the United States coming to Turkey. But the contagious indolence of the East, and, above aU, a sense of my inability to perform such an arduous task, had deterred me from this undertaking until lately, when the Department called upon each of the thirteen consular clerks of the United States to make a re- port, leaving to them full freedom of choice as to the subject. Encour- aged by two of my official superiors, and by others also, I have now be- gun the work, which, if it meets with the approval of the Department, I hope to continue next year. The following report on the capitulations makes no claim whatever to originality of thought or research. It is for the most part a render- ing into English of the introduction to Dr. D. Gatteschi's Manual on Ot- toman Public and Private Law. Use has also been made by me of De Testa's collection of Treaties with Turkey, of the collection called "Leg-, islation Ottomane," of B. Bruuswik's work on the Eeforms and Capitu- lations of Turkey, of the articles taken from the Arabic newspaper El- Djawaib, of Rosen's History of Turkey, &c. I. — General Remarks. The intercourse of the Christian world with the Mohammedan world is not founded upon the principles of the law of nations. International law, as professed by the civilized nations of Christendom, is the offspring of the communion of ideas subsisting between them, and is based upon a common origin, an^ an almost identical religious faith.* Between the peoples of Islam and those of Europe there exists no such com- munion of ideas and principles from which could grow a true interna- tional law between them ; their relations one with the other had to be regulated solely with a view to political expediency and in accordance with treaties entered into by them.t In all the many works on Mohammedan law no teaching is met with that even hints at those principles of political intercourse between na- tions, that have been so long known to the peoples of Europe, and which are so universally recognized by them. "Fiqh," as the science of Moslem jurisprudence is called, knows only ^'^ o^e category of relations between those who recognize the apostleship of Mohammed and all others who do not, mmelj, mekdd : that is to say, strife, or holy war. ■ ; Inasmuch as the propagation of Islam was to be the chief aim of all Moslems, perpetual warfare against unbelievers, in order to convert them, or Bu}jject them to the payment of tribute, came to be held by •See Kent's Law of Nations, Lecture I, pp. 3, 4, and 12. tTwiss: The Law of Nations, vol. i, p. 82. CAPITULATIOKS OF THE OTTOMAN EMPIEE. 9' Moslem doctors as the most sacred duty of the believer. This right to wage war is the only principle of international law which is taught by Mohammedan jurists ; it seems to have been inherited from the nations of antiqiiity, for whom the word ^o«efflo- ■oiatmns de U France dans le Leoant, tome i, Precis, p. 69. ' " CAPITULATIONS OP THE OTTOMAN EMPIRE. 11 Moslem rulers before the Turks, entered into treaties with the peoples ■of the West; for it was then that the relations between the latter and the Moslems reached a certain degree of stability, and then it was that trustworthy historical documents began to abound. After the Arabs had conquered Egypt, where they permanently fixed themselves, an immense change came over that wonderful land ; religion, manners, and customs, and even the language, underwent a radical ■change ; for in i)lace of Christianity came Mohammedanism ; Graeco-Ro- mau civilization was succeeded by Arab civilization ; and the Coptic and Greek languages were supplanted by that of the Koran. But these changes, which came about with great rapidity, could not divest Egypt of its important geographical position which had rendered it and will ■ever render it one of the most central portions of the inhabited globe and the link of connection between three of the five continents of the earth ; nor did its commercial importance diminish ; it continued to be the highway through which the riches of the East reached the countries of Eurojje. This has always been the r(-al and chief cause of the unin- terrupted relations of Egypt with the commercial nations of Europe, even during the deadly feuds between Orescent and Cross, and in spite of the hatred existing between the natibns of Christendom and the fol- lowers of Mohammed. Of course these relations could be neither cor- dial nor easy. Eeligious fanaticism rendered them difftcult, nay, almost impossible. But the l*resistible force of circumstances and the recip- rocal needs of these widely-separated nations overcame even such ob- stacles ; and Egypt did not cease, save at intervals of short dnration, to be the meeting place of the caravans of the East and the ships of the West, the market in which, during the middle ages, were exchanged the goods of Asia that arrived by way of the Eed Sea and through the canal which united that sea with the Nile at Cairo, then called Ballon by the people of Europe* * Upon entering into the subject of the international relations that ex- isted between Egypt and Europe during the middle ages, the first ques- tion that arises is whether real international treaties existed between the Arab Moslems and the Ohristinn nations of Europe. To judge from the. obstinate, and for several centuries uninterrupted, wars between the East and the West, the answer would be no. For, if the principle of Moslem public right had to be strictly applied, that no perpetual peace, but only a transient truce, could exist with unbelievers, it would follow that with strangers, who were for the Arabs eternal enemies, no inter- national ties or relations of the character of a reciprocal rule of conduct were possible. But absolute principles are of little worth when they run counter to truth and human nature. The Moslems called their Christian fellow men enemies and deemed them unworthy of peace unless they became converted or paid tribute ; yet at the same time they felt that perpetual war with them was not possible, and that conventions ought to be made for the advantage of both. Indeed, commerce, the source of wealth and the means of satisfying some of the most imperative needs of mankind, that most potent instrument for procuring the satisfaction of extensive and legitimate appetites, could not be carried on without derogating from the severity of the maxims that were professed. Either the com- plete destruction of one of the two peoples must have ensued or else * Old Cairo, now called Maar Ateekah, 1 he ancient Fost^t, was the seat of the Caliphs of Egypt, who were called by Europeans the Sultans of Babylon, i. e., Babylon of Egypt, because it was used by the last Pharaohs to receive prisoners and Babylonian emigrants serving as mercenaries. 12 CAPITULATIONS OF THE OTTOMAN EMPIKE. these maxims were to be departed from. As a matter of fact they were departed from, and have ever since been more and more de- parted from. But a subterfuge had to be resorted to, a way of escape had to be found, whereby a conflict with the doctrine of the law m its full rigor might be avoided and the doctrine itself left intact. Peace was in fact at -^'arious times concluded, and international relations ,were established ; in a word, treaties were concluded. These treaties received, however, a name different to that given to treaties that were concluded by the Christian powers among themselves. Instead of be- ing called treaties they were called capitulations, i. e., letters of privilege, or, according to the Oriental expression, imperial diplomas containing sworn promises.* Moreover, they were not supposed to constitute a source of reciprocal obligation, but purely gratuitous concessions and favors granted by the Moslems to Christians, by virtue of which the lat- ter were rather tolerated than authorized to come upon the soil of Islam. But fictions are always fictions; behind them lies the truth, which con- tradicts that which is expressed by the letter. And this is so in the case of the capitulations, which, although concluded under different names and in varying terms do, nevertheless, constitute real treaties and establish a real international rule of conduct between the West and the Levant. The history of the capitulations reaches far back. Hardly had the religious fer^-or of the Mohammedans diminished, and their warlike pride become somewhat humbled by defeats that put a check to their con- quests, than they accustomed themselves to respect the Occidentals and to see the imperative necessity of living with them in harmony. But that which most of all drew the Arabs of Africa into entering into international relations with Europe was maritime commerce, which had become almost exclusively the occupation of the Occidentals, and was entirely neglected by the former, who even to this day preserve their aversion for long sea voyages, and recognize, with perfect resignation, their maritime inferiority as compared with Europeans, and are wont to console themselves by saying that God, when he created land and sea, gave the empire of the continent to the Moslems and that of the seas to the unbelievers. Had not the ships of Europe come to their s-hores to exchange with them the products of the Levant, these products would have had no outlet and would not have been, by exchange for other ar- ticles, the source of wealth to the producing country. And had not the merchant of Europe been able to establish and fix his domicile in the land of the Moslems, his ships would never have approached their shores. This is the real reason why, of all the nations of Europe, the first to enter into pacific relations with the East were those addicted to maritime com- merce. And as it was the republics of Italy who were the first to take up maritime commerce, we find that they were also the first who had treaties and capitulations with the Moslems. History confirms this as- sertion. In a most interesting Italian workt by Amari entitled "The Arabic Diplomas of the Florentine Archives," is "to be fuund the text of s,everal treaties with the Moslems anterior to the thirteenth century, one as early as 1150, and several others anterior to 1200 A. D. It had been said over and over again that the Italian republics had had treaties with the Moslem Arabs. But the publications that had been made were not such as could demonstrate that capitulations, properly * Ahd-Kamah, or Sanad, or Tamassuk ; that is, covenant, bond, or deed and instrument. See de Testa's Becueil des TraiUa, Paris, 1864, tome I", France, appendice, note 3, pp. 6 and 7. t Amari's Dai Diplomi AraM neU'Archivio Fiorentino. CAPITULATIONS OF THE OTTOMAN EMPIRE. 13 SO called, had existed between them. Oat of this arose, perhaps, the mistaken opinion, whenever the capitulations with the Levant were spoken of, that those with Prance in the year 1535* were the oldest of all. This view was rendered no longer tenable by the documents published by Amari, which furnish the fullest proof of the existence of true and genuine capitulations with the Italian republics several centuries earlier than those of 1535. The Arab diplomas in Amari's collection make mention of various treaties that date as far back as 1150, and include, moreover, the full text of veritable capitulations in 1173. They are, furthermore, all of them treaties prior to the domination of the Turks and the existence of the Ottoman I'orte. In other words, they are capitulations stipulated with the Arab people while the caliphate^ still existed. Every one knows that the Arabs, abandoning the dry deserts of their native soil, had invaded, besides the western parts of Asia, all the north- ern portion of Africa, and a large i)ortion also of Southern Europe. There were Arab potentates in Syria, Egypt, Algiers, the Balearic Isles, and Spain. Although nominally recognizing the authority of the caliphs, all these potentates were in fact independent, and made treaties without the consent ot the far-off sovereign. And Amari, in his collection re- ferred to above, gives the text of capitulations with all the Moslem rulers of those countries. It must not be understood that he furnishes capit- ulations with all the Italian republics, for his collection is taken from the Florentine archives only, and in them there could only be found the diplomas of the Tuscan republics — that is, the republics of Pisa and of Plorence. Of the other republics, namely, Amalfi, Genoa, and Ven- ice, no traces are found in that collection. The Pisan and Florentine dii)lomassuffice,however, to establish tiie historical fact indicated above and to show what was the nature aiid substance of the primitive capit- ulations between the nations of Christendom and the Arab Moslems. The oldest capitulations that Pisa obtained from the Moslems are those with the King of Valenzia, and date from the year 1150. Shortly after that period a treaty was entered into between the Caliph of Egypt and Pisa ; this is the one that the dii)loina of 1154 speaks of, which a certain Eanieri Bottaccio, ambassador of Pisa, signed with the vizier of the Caliph. In 1157, new compacts were made with the Prince of Tunis. The Pisan republic concluded new and more full capitulations with Egypt in 1173. | The Sultan who granted them was Saladin the Great, the hero of Moslem warfare, who is so called because of the power to which he attained in Egypt, and becauf^e of his magnanimity and knightly spirit. He it was who so fatally succeeded against the crusa- ders in Syria; who, after having repeatedly defeated them, ended by destroying the kingdom of Jerusalem, after he had made himself master of that city in 1187. Only thirteen years before that event he signed a treaty of friendship with the republic of Pisa, which shows that he knew how to distinguish the Franks, who made war against him in Syria, from the commercial (j| nations of Italy, who frequented the seaports of the Levant. Whilst with the former he would have no peace, he accorded to the latter the most valuable privileges and exemptions. This distinction is indeed literally expressed in those capitulations, wherein it was stipulated that * The French version of this treaty la to be fonnd in de Testa's Beaueil de TrqMfy tome i, p. 15. t Caliph means successor, scil. of the apostle Mohammed. t For an Italian translation of these capitulations from the Latin text, see Gat- teschi's Manuale di Biritto, etc.— Sue Appendix No. II with this report. 14 CAPITULATIONS OF THE OTTOMAN EMPIRE. the Pisans were not to carry in their ships the Franks who were mak- ing* war in Palestine.t j.-^ ^ 4.u Finally, this confirms what has been said above, namely, that tnere not only were not, but that there could not have been, capitulations with France, before those with the Italians, since the state of continual war- fare in the Levant, that was kept up by the Crusades, rendered impos- sible all concord with the French Kings, who, more than any others,, were zealous in that undertaking. „ , ■ Gharriere, in his " Negotiations of France in the Levant," vol. i, p. IJl, note i, remarks that France did not have cafutulations with the Sultans of Egypt, neither during the Crusades nor for a long time after they had ceased. The oldest capitulation cited in this collection, in which men- tion is made of wrivileges granted to the French in Egypt, is of the year 1528 ; and even* in it the French obtained their privileges, says Char- riere, together with the Catalonians, and, as it were, second hand.1: He also adds that charters of privilege were granted to the French under the Mameluke Sultans, who were the last rulers of Egypt before the Turks. The Pisan capitulations and agreements with the Moslems continued without interruption until the downfall of that republic, and a goodly number of them are to be found in Amari^s work. Pisa having fallen and become subject to the domination of Florence, the latter supplanted it also in the Levant trade. The Seignory of Florence did not forget the traditions of the republic that preceded it, but continued, along with the Venetians and Genoese, its good relations with the Mohammedan princes,, and especially with those of Egypt. Thus Lorenzo the Magnificent sent Delia Stufa, his ambassador, to Kait-Bey, one of the last of the Circas- sian Sultans, and obtained in 1488 most advantageous and detailed capitulations. § The time had however drawn nigh when the Arab people was to be eclipsed and give place to new races that had come from Central Asia,, who were to be the last wave in the series of human deluges that have flooded the West from the heart of Asia. The Turks overthrew the Caliphate, made themselves masters of all Western Asia and Egypt^ and approached Constantinople, where they were to give the last blow to the Byzantine Empire, out of whose ruins was to arise the "Sublime Ottoman Porte." But the Turks had embraced the religion of Moham- med ; the barbarian conquerors were themselves conquered by the re- ligion of the vanquished, all whose dogmas and religious teachings they strictly adopted, ev^i to the principles of public right that sprung out of them. For this reason their relations with the Christian nations con- tinued upon the same footing, and the system of the capitulation was kept up. Ladeed, the capitulations of the Sublime Porte with the Euro- pean Powers are only a copy of those previously granted by the Arab sovereigns, and more especially of those between Egypt and the Italian republics. After the downfall of the Arab empire, those people who had had, in times past, treaties of friendship with the Oriental princes, were the very ones who first entered into similar relations with the Otto- man Porte. * See Appendix No. II. tSee the capitulation of 1173, and also those of 1154 ; it is said : "Nee aliquis Ves- trorum Mercatornni secuni adduxerit aliquem ex Francis Suriae in Patriam nostram eos sciente iu Similitudinem Mereatorum." i The Khatt-Sharif, of 6 Muhaxram 935, September 20, 1528, of Sulaiman I, confirm- ing the ancient privileges of the Frencli and Catalonians in Egypt, is given by de Testa in his Eecueil, tome i, p. 23. $Theee capitulations are given by Gatteschi in his ManuaJe di JJiritto, etc. See appen- dix No. Ill of this report. CAPITULATIONS OF THE OTTOMAN EMPIRE. 15 b. CAPITULATIONS WITH THE OTTOMAN PORTE. The history of these capitulations or treaties with the Porte, following the chronological order in naming the European states tiiat obtained them from the new empire, is briefly as follows : Italian republics. — After the taking of Constantinople by the Ottomans in 1453, Genoa and Venice were the first European states which stipu- lated regular capitulations with the Porte. On the 29th of May, 1453,. the G-enoese obtained of the conqueror (el-Gh^zi) a letter of priTilege in the form of a firman; * and in the following year, 1454,t Venice con- cluded a very advantageous treaty with Mohammed II, which is con- sidered as the basis of all the succeeding relations of the Venetians with Turkey. It should also be regarded as the first instance of capit- ulations accorded to the powers of Europe by the Sultans of Constanti- nople.!: This treaty is particularly important on account of the mention made in it of an earlier one— that, namely, of Adrianople — thus showing that the Venetians had commercial dealings with the Ottomans even belore the conquest of Constantinople. These first capitulations with the Venetians were afterwards confirmed and enlarged by the said Mohammed II on the 26th January, 1479, the 14th July, 1480, and in 1481, and by the succeeding Sultans, JBayazid II, Salim I, and Suleiman 1, in 1521, 1534, 1539, and 1540, and by all suc- ceeding sovereigns down to 1733 (see Militiz Mamtel des Consuls.) The capitulations with the Sultans of Constantinople do not differ substantially from those previously stipulated with the other Moslem princes, whether of Egypt, Spain, Tunis, Tripoli, or the African states^ in many of their provisions they are an exact copy of them. Hence they ought to be considered as a mere continuation, or rather as being one and the same thing. France. — After Italy, the first European nation that concluded capit- ulations with the Porle was France, which in 1528 had obtained the confirmation of the privileges that had been granted by the Mameluke Sultans of Egypt to the Catalonians and French. § This treaty of con- firmation which was granted by Sultan Suleyman, and is given by Char- rifere in his " Negotiations of France in the Levant" (Vol. I, p. 121), is both iin Italian and in French, for at that time the diplomatic language of the Levant was Italian, and continued to be such tor a long time after, so that even the capitulations with Prussia of 1761 are in that language. And in 1535, in the reign of Francis I, through Jean de la Forest, France obtained from Suleyman I direct capitulations also worded, like the feregoing, in both French and Italian. (Charriere, Vol. I, p. 283.) The French capitulations were afterwards amplified, renewed, and confirmed : In 1569, during the reign of Selim I and of Charles IX ; in 1581, during the reign of Murad III and of Henry III; in 1604, during the reign of Ahmed I and of Henry IV; in 1673, during the reign of Murad IV and of Louis XIV. *See Sauli, Delia Colonia dei Genovesi in Galata, tome 2, lib. 3., p. 127. tMiiratori, Serum lialicarum, tome 18, p. 700. Daru, Sistoire de la Bep. de Venice,. tome iii, lib. 16, p. 15. rFor the Italian version of the treaty of 1454, see Gettesfihi's Manuaie di Dir.itto, ele.. The first article contains a clause providing for the extradition of political and criminal offenders. Tome il, part ii, liv. 3, chap, i, sect. 12, { 20. J See, however, De Testa in his Becueil des Traith, vol. i, note 3, on pages 22 and 23,. where he speaks of the Katt-Sharif of Sultan Salim I, given in April or May, 1517, at Oaza, in confirmation of the privileges granted by virtue of the commandment of Kan- son Gavri, the last Sultan but one of the Circassian dynasty of Egyptian Sultans, in favor of the French and Catalonians at Alexandria. 16 CAPITILATIONS OF THE OTTOMAN EMPIRE. Lastly, they were renewed in 1740, between Louis XY and Mahmud I, and are tliose actually in force,* by virtue of their confirmation in -article 2 of the treaty of peace of 1802, between Napoleon the first and the Sultan Salim the third. They were afterwards again confirmed in article 1 of the two treaties of commerce and navigation of 1838 and 186 l.t The French capitulations deserve special consideration, for whilst they were origiaally modeled after the pattern of the Italian capitulations that precede them, so they in their turn served as a model for the suc- ceeding capitulations entered into by the Porte and the Christian powers. And perhaps this is the reason why they have been held by many as the oldest and first capitulations granted by Moslem princes to the na- tions of Europe. They are, moreover, most lengthy and replete with privileges and concessions to Prance, so that it can be said that to know the French capitulations thoroughly is to know those of every other power, saving a few variations and additions that have been made in ithe most recent ones.f England. — It was not until towards the close of the sixteenth century that England had a direct trade with the Levant worthy of notice; and it was only in 1579 that Queen Elizabeth obtained of Murad III perinis- ,siou for her subjects to trade freely in the Ottoman Empire like the Venetians, the French, the Poles, and the subjects of the Emperor of Germany. That permission was the presage of the capitulations obtained by England, and is contained in " The letters sent from the Imperial Musulmanlike higheness of Soldan Murad kan to the sacred regal maiestie of Elizabeth, Queen of England, the 15th March, 1579, containing the grant of the first privileges." — (Hackluyt, The principal navigations, tome, ii, part 1, p. 137.) It was renewed in 1600 and 1610. Fuller capitulations were granted on the 28th October, 1641, to King Charles I by Sultan Ibrahim. The last capitulations, which contain all preced- ing privileges, were accorded by Muhammad IV to Charles II, in Sep- tember, § 1675, and are the ones that to this day govern the political and commercial relations of the two states, the Dardanelles treaty of January 5, 1809, || having done little else than reestablish the good re- lations previously existing, and refer to the preceding stipulations.; (See Marteii's Eecneil, tome v, suppl., p. 160; see also Hertslet's Collection -of treaties, &c., between Great Britain and foreign powers, London, 1840, vol. ii, ]ip. 346-377, and Hertslet's Treaties and tarift's, Turkey, p. 3.) Holland. — After France and England Holland was one of the Euro- pean states that early obtained capitulations from the Porte. At first the Dutch trade with the Levant was carried on through the French and the English. It was not until after the revolution of 1579 that the United Provinces began to trade directly in the Mediterranean, but still under the protection of the French flag, and Sultan Muhammad III, in his Firman entitled "Deed of privilege of the Great Lord Maomet III, granted to the United Provinces of the Low Countries, to enable them to trade in his States, done at Constantinople, at the close of the montli of Bamazan, 1006^] (April, 1598)," i mposed upon the merchants of Flan- ' The French capitulations of 1740 are to be found in de Testa's Secueil, vol. i, p. 187, and pp. — . See Appendix No. Ifi, with this report. tSt-e de Testa's Jiecneil des Traiies, &c., toiue i, Pi-Ms historique, pp. 1 to 5. J An English translation of a portion of the Frenh capitulations of 1740 are to be -found in Hertslet's "Treaties and tariffs regulating the trade between Great Britain and foreign nations, and extracts of, etc.," by Edward Hertslet (part concerning Turkey), Loudon, 1875. ■ 5 Dn Mont, tome vii, p. 1. II See Elliot's Amer. Dipl. Code, W.ishingtou, 1834, vol. ii, p. 207. U See Martens' Becueil, vol. v, p. 11. CAPITULATIONS OF THE OTTOMAN EMPIEE. 17 ders the condition of trading under the French flag and under the pro- tection of the French consul. This privilege was followed by the capitu- lations of 1612 of Ahmed I, who conceded to the Dutcn the right of trad- ing under their own flag and of having their own ambassadors and con- suls.* In 1634: these capitulations were confirmed by Murad IV. Lastly, they were renewed and amplified in September, 1680, by Sultan Muham- mad IV, and are the ones now in force. (Du Mont, tome vii. Part II, and D'Hauterive & Oussy, Part II, tome iv.) Austria. — Although Austria was at an early date in relations with the Turks, with whom it was frequently at war in the defense of its eastern provinces that were exposed to invasion by the Ottomans, yet it did not contract treaties of peace with them till the 11th November, 1606, at which time a twenty-years' truce was concluded, which Schoell, in his His- toire ahregee, tome 14, Part 3, introduction, calls " Instrumentum Gaesa- reum pacijicationis ad situa lorocTc, inter Budulphum Bom. Imper. ao Sun- gariae Begem, et Achmetem I, Turcarum Sultanum initiae in die festo S. Martini 1606." But the oldest stipulations relating to commerce that can be considered as the first capitulations of the Porte with Austria are of July 1, 1615,t which were confirmed in 1616, and greatly enlarged in the month of June, 1617. A new treaty of commerce was signed at Passarowitz between the Emperor and the Porte on the 27th of July, 1718, which confirmed the ancient privileges. This .treaty, confirmed September 18, 1739, February 25, 1784, and August 4, 1791, constitutes the capitulations that still govern the commercial and political relations between the Porte and Austria ; and the latter, having incorporated Venice with itself, could also invoke in its own favor the privileges for- merly granted by the Porte to the Venetians. (See the Baccolta dei Frattati, ect., concernente il commereio e la Navigazione dei sudditi Austriaoi negli Stati della Porta Ottomana. Vienna, Hof- und Staasdruckerei, 1844. The introduction to this collection, covering T)ut seven pages in large print, gives a full view of all the capitulatioifls that can be invoked by Austria in favor of its commerce in Turkey. Bussia. — ^Eussia had had relations and commercial treaties with the Byzantine Empire before the Turks took Constantinople. After that event the Czar of Eussia had no relations with the Sultans till the seventeenth century, and several treaties of peace were executed between the two powers. But it was only in 1711 that a treaty relating to trade was ex- ecuted between them, and in 1720 the Porte permitted Eussia to have a resident ambassador at Constantinople. Finally, the most complete treaty relating to commercial relations is that of June 10-21, 1783, which can be regarded as containing the real capitulations of Turkey with Eus- sia, and is the one still in force. | The succeeding treaties have only confirmed its provisions. Poland also, incorporated for the most part into the Eussian Empire, had its capitulations with the Sublime Porte (Poland's Treaty of Peace, &c., with Turkey in the year 1621). (Sweden. — The ties of friendship that existed between Charles XII, King of Sweden, and the Porte gave rise to capitulations between both those states that were entered into by Frederic I, of Sweden, with Mah- mtiA I, on the 10th of January, 1737. They are drawn up in Turkish and Latin. (See Martens' Gours Diplomatique, tome ii, p. 968.) BenmarJc. — Until the middle of the eighteenth century Denmark was obliged to place its vessels that frequented the seaports of the Levant under the protection of foreign flags. But on the 14th of October, 1756, * Du Mont, tome v, part iii. t See Schoell. Histoire abr^gei tome 2, Part 3, introduction. t See Martens and de Cussy's Becueil, edit. Brookliaus, Leipsic, 1846, tome i., p. 27. S. Ex. 3 2 18 CAPITULATIONS OF THE OTTOMAN EMPIRE. it obtained of Sultan Othman III capitulations, in Arabic and in Latin, that put it on the same footing as the other Christian nations that then had treaties with the Porte. (See Martens' Cours Diplomatique, tome m, liv. 6, chap. 8, p. 899.) ^ , ^ -r. • ^i, Prussia.— Before the time of Frederick the Great of Prussia there ixn -r. . ^ « 22 March existed no treaty between that power and the Porte. On the ^nd April 1761, a treaty of commerce and friendship, in Turkish and Italian, was concluded, which constitutes the capitulations with Prussia. Germany.— The capitulations at present in vigor between the Subhme Porte and the German Empire are, first, the above-mentioned Prussian capitulations of ^2nd A^ril^ ^'^^^ ' ^^^°^^' *^® capitulations with the free Hanse cities of Liibeck, Bremen, and Hamburg of May 18, 1839, whose article 8 is almost word for word like article 4 of the United States treaty of 1830 ; and the supplementary convention of September 7, 1841, and the commercial treaty with those cities of September27, 1862 ; third, article 12 of the treaty of Paris of 1856, between Prussia, Prance, Great Britain, Austria, Eussia, and Sardinia with the Sublime Porte ; fourth, articles 1, 14, 15, and 16 of the commercial treaty between the ZoUverein and Turkey, of March 20, 1862, to which both the Mack- lenburgs adhered on the 5th of November, 1868 ; fifth, the consular treaty between Bavaria and the Sultan of Turkey of August 25, 1870 ; and, sixth, the 8th article of the Treaty of London of March 13, 1871, be- tween the German Empire, France, Great Britain, Italy, Austria, Eus- sia, and Turkey. (See the German Consular Treaties, published by the German Foreign Offtce, Berlin, 1878, pp. 157-170.) Spain. — The bloody wars between Spain and the Moslems precluded that power for a long time from having friendly relations with the Porte. Since the time in which tiie Cataloniams obtained franchises no treaty had been concluded beween Spain and the Porte ; and it was only on the 14th of September, 1782, that the Spanish capitulations were granted, in the form of a treaty of peace and commerce, concluded between Charles III and the Sultan Abd-ul Hamid I. (Martens' Becueil, tome iii, J). 406, and Martens' and de Cussy's Becueil, edit. F. A. Brockhaus, Leip- sic, 1846, t. i, p. 235.) Sardinia. — Before the annexation of Genoa, Sardinia was a kingdom of no maritime importance, and it is not to be wondered at that before the present century no treaty had been entered into by it with Moslem countries or with the Sublime Porte. After that annexation, however, the maritime commercial relations of the Sardinian kingdom with the Levant grew considerably, and the necessity for a treaty became urgent. True, it could have invoked in its favor the ancient privileges granted to the republic of Genoa by the Moslem states. But owing to the weak- ness of that republic, they had been well nigh forgotten, and the Geno- ese ships had been constrained to place themselves under the French flag, or under that of some other nation, to be able to sail with security in the waters of the Mediterranean and in the Archipelago.* Treaties of commerce and peace were concluded between Sardinia and Algiers on the 3d of April, 1816 ; with Tunis on the 17th of April, and with Tripoli on the 29th of April of the same year. It also entered into a treaty of peace and commerce with Morocco on the 30th of June, 1816 1. But capitulations with the Ottoman Porte were not concluded until * MarteBs' Coura Diplomatique, tome iii, sect, xi, chap. ii. tTrait^'s publiques cle la maison de Savoie, tome iv. t CAPITULATIONS OP Tini; OTTOMAN EMPIRE. 19 October 25, 1825*, between CliarlesTelix and Sultan Mahmud II, and those even not directly, but through Great Britain, they having been signed by Lord Strangford, in the name of Sardinia. (Trait6s publiques de la maison royal de Savoie, tome iv.) These capitulations are by no means the most complete and detailed of their kind ; and -what is still more striking is that not the least men- tion is made in them of the ancient capitulations, not even of those ob- tained by Genoa in 16C5. They are nevertheless of the greatest impor- tance for Italy, since after the creation of the Italian kingdom they serve to a great extent in regulating its relations with the Ottoman Porte. Lastly, the capitulations with Tuscany, of February 12, 1833 1, and -with the kingdom of ISTaples, of April 7, 1740, must be taken into account, because in the treaty of navigation and commerce of 1861, be- tween Italy and Turkey, they are expressly confirmed in the following ■words : " All the rights, privileges, and immunities that have been con- ferred upon Italian subjects and ships by the capitulations and treaties formerly concluded between Turkey and the states that actually form the Italian Kingdom," &c. United States. — For many years only one state of the Western Hemis- phere had tre£yfcies with the Ottoman Porte, that is the United States of liiTorth America. The first treaty between these widely separated powers was concluded at Constantinople, May 7, 1830, ratified by the United States Senate February 2, 1831, and formally proclaimed by the President February 4, 1832. The original of this' treaty was in the Turkish language, and as there arose at one time a question of consider- able importance upon the text of its fourth article. It will be well to quote here at some length from the notes contained in the volume of "Treaties and Conventions concluded between the United States of America and other Poivers since July 4, 1776, revised edition," &c., Washington, Gov- ernment Printing OfQce, 1873, on pp. 1060-1063 : Quotation as follpws : Various attempts were made prior to 1830 to negotiate a treaty of amity and com- merce -with tlie Ottoman Porte. These efforts began in 1817, before which time Amer- ican commerce in Turkish dominions had been " under the protection of the English Levant Company, for whose protection a consulate duty, averaging one and one- fourth per cent, on the values of cargoes inward and outward, was paid." On the 12th of September, 1829, full power was conferred upon Commodore Biddle, in command of the Mediterranean squadron, David Ofliey, consul at Smyrna, and Charles Ehind, of Philadelphia, jointly and severally, to conclude a treaty. They were instructed to make a commercial treaty upon the most favored nation basis, and they were referred to previous negotiations by OfSey, in which he had been instructed to "be careful to provide that the translation shall be correct, and such as will be received on both sides as of the same import. Ehind made a great mystery of leaving America. "He sailed at night in a packet for Gibraltar, where he joined Biddle, and they proceeded together to Smyrna ; but when Offley came on board in that port he informed them that it was perfectly well known in Smyrna that they were commissioners." Ehind expressed his disappointment. It was then agreed that he should go alone to Constantinople and commence the negotiations while his colleagues waited at Smyrna. He proceeded there and presented his letters of credence. After these cere- monies were over he submitted a draft of a treaty to the Eeis Effendi. Some days later he was shown the Turkish text of a treaty, and was told by the Eeis Effendi that it was " drawn up in strict conformity with the one which he had submitted, and on the 7th of May the treaty of 1830 was signed, the Turkish text being signed by the Eeis Effendi as it had been prepared by him, -and the French text being signed by Ehind after exaiuination and comparing it with the Turkish. A secret and separate article was also signed at the same time, respecting the building of ships and pur- chase of ship-timber in the United States. Ehind then dispatched a special messen- ger to summon his colleagues to Constantinople. * October 25, 1823 (not 1825). See Martens' and de Cussy's Becueil, edit. F. A. Brock- haus, Leipsic, 1846, tome iii, p. 573. t Martens' and de Cussy's Becueil, edit. F. A. Brookhaus, 1846, tome iv, p. 373. m 20 CAPITULATIONS OF THE OTTOMAN EMPIEE. Wlieu tliey arrived, and were made acquainted with the separate article, they dis- approved of the latter, but rather than lose the treaty they signed both the treaty and the separate article in French, and informed the Secretary of State of the reasons for their course. This caused a great breach between them and Ehind. The Senate approved of the treaty itself, but rejected the separate article. David Porter was then commissioned as ohargS d'affaires, and was empowered to exchange the ratifications of the treaty, and to explain the rejection of the separate article. When he arrived in Constantinople he was met with complaints at the rejection of the separate article by the Senate. Then he reports that a discussion was had " on the re- turn of the translation made at Washington, instead of the one signed at Constanti- nople." It appears from the archives of the Department of State that four transla- tions were sent to America : 1st, an English translation from the original Turkish, not verified ; 2d, a French translation from the original Turkish, verified by Navoui, the American dragoman ; 3d, another French translation, in black ink, with annotations in red ink ; 4th, another English translation, made from the French. The translation which went before the Senate and was acted on by that body was neither of these. No French version appears to have been transmitted to the Senate with the Turkish text, but a new English version, which, from internal evidence, as well as from the tradition of the department, may be assumed to have been made in the Department of State mainly from the French version No. 3. Whether this be so or not, it is cer- tain that the French translation signed by Biddle and his colleagues was not the version which was submitted to the Senate, and which, after ratification, was offered in exchange at Constantinople. Porter met the difficulty by signing a paper in Turkish, of which he returns to Wash- ington the following as a translation: " Some expressions in the French translation of the Turkish instrument exchanged between the plenipotentiaries of the two contract- ing parties, and which contains the articles of the treaty of commerce concluded between the Sublime Porte and the United States of America, not being perfectly in accordance with the Turkish original, a circumstance purely the effect of translation, and the Government of the United States being satisfied with the Turkish treaty, and having accepted it without the reserve of any word ; therefore, on every occasion the above instrument shall be strictly observed, and if, hereafter, any discussion should arise between the contracting parties, the said instrument shall be consulted by me a,nd by my successors to remove doubts." This was received at the Department of State on the 5th of December, 1831, and there is no evidence that the act was disapproved. An item was inserted in the ap- propriation bill to enable the President to carry out the provisions of the treaty. Porter's dispatches were placed at the service of the Committee of Foreign Affairs of the House ; the subject of the appropriation was discussed in the House, and the ap- propriation was passed. No question arose respecting the difference between the versions until 1868, when the Turks claimed jurisdiction over two American citizens arrested and imprisoned by the Turkish authorities in Syria for alleged offenses against the Ottoman Government. This claim of jurisdiction over two American citizens was resisted by E. Joy Morris the American minister, who referred to that part of the fourth article of the treaty oi' 1830, which provides that "even when they may have committed some offense they shall not be arrested and put in prison by the local authorities ; but they shall he tried by their minister or consul, and punished according to their offense." The min- ister of foreign affairs replied that the translation was incorrect ; that the words "they shall be tried by their minister or consul, and punished according to their offense," and the words "they are not to be arrested," were not to be found in the Turkish text ; and he cited Porter's declaration in support of his claim that the Turkish text should be accepted as the standard. Morris then, under instructions, secured, through the Russian ambassador, translations to be made from the Turkish text in Constantinople by the first dragoman of the Prussian legation, by the first and second dragoman of the Eussian embassy, and by two former dragomen of the Russian embassy, and sent them to the Department of State. In no one of these were found the words obieoted to by the mimster of foreign affairs, nor any equivalent. Mi-. Fish then instructed Moms that the President had " determined to submit the facts to the consideration of the Senate and await its resolution before inaugurating any diplomatic action." This was done. o .; i In 1862 a new treaty of amity and commerce was concluded. Mr. Seward wrote to the negotiator j,E. Joy Morris), "Seeing no cause to question the justice or the expe- diency of the treaty you have negotiated, I have the President's instructions to sub- mit the same to the Senate for its consideration." In 1855, before question was made of the translation from the original Turkish of the treaty of 1830, Attorney-General Gushing held that citizens of the United States enjoyed the privilege of exterritoriaUty in Turkey, Egypt, Tripoli, Tunis, and Morocco. And Attorney-General Black held that the consuls had judicial powers only in crimi- nal cases. CAPITULATIONS OF THE OTTOMAN EMPIEE. 21 The note on page 233 (Appendix Fo. 1) of the United States Consu- lar Regulations for 1874 was to the same effect. I was at that time so exercised by the barest possibility of the loss to United States residents in the Ottoman Empire of this greatest of all boons of the capitulations that I went into the question as closely as the few books then at my com- mand enabled me to do, and wrote to the Hon. George H. Boker, then United States minister resident at Constantinople, giving him the result of my examinations, which, so far as my memory serves me, were briefly these : That the capitulations with the United States contained no soli- tary or unprecedented condition in this respect. In support of this statement I referred to the following treaties : 1st, Article XXVI, para- agraph 4 of treaty of commerce and navigation between Ottoman' Porte and Greece of 1855 ; 2d, Article IV of the treaty of the United States with the Ottoman Porte, which is the one in question ; 3d, Article VIII, already referred to in this report, of the capitulations with the Free Hanse cities of Lubecb, Bremen, and Hamburg of May, 1839, which article is almost word for word the same as Article IV in question ; 4th, treaty, signed at Balta-Liman, August 3, 1839, between the Ottoman Porte andBelgium, Article VIII, paragraph 2 ; 5th, treaty between theOttoman Porte and Portugal, March 20, 1843, Article VIII (all those treaties are to be found in Martens' Becueil Manuel et Pratique, edit. P. A. Brockhaus, Leipzic, 1846 to 1857) ; and lastly, 6th, to the capitulations with Sweden, January 10, 1737, to be found in Martens' Cours Diplomatique, tome ii, p, 968, regarding cases of delictum to be judged by consuls and not by local tribunal.* The letter containing my speculations on this subject was forwarded by Mr. Boker to Hon. Hamilton Fish, then Secretary of State. Whether it had any weight I never heard, for Mr. Boker was soon after appointed minister to the court of St. Petersburg. But on the 12th of May, 1877, John T. Edgar, esq., the United States consul at Beirut, received from the Hon. Horace Maynard, United States minister at Constantinople, an instruction, worded as follows : Xo. 153, M. C] Legation of the United States, Constantinople, May 13, 1877. Sir : A dispatch from the Department of State, dated April 17, 1877, gives an inter- pretation of the fourth article of the treaty of May 7, 1830, between the United States and the Ottoman Empire, and holds that by the provisions' of this article the Govern- ment of the United States understands that its citizens who may be found to be of- fenders against Turkish law, within the Ottoman dominions, shall, nevertheless, be held to be invested with the ijrivilege of exterritoriality, and shall not be held amena- able to Turkish law or procedure, but may claim the right of being tried, and, if con- victed, punished according to the laws of their own country, which may be in exist- ence in relation to offenses similar to that with which they stand charged. This means, among other thiugs, as American citizens very well understand, and, as it may well be supposed, was fully within the contemplation of the government in concluding the treaty, that the accused shall be apprised of the specific offense with which he may be charged ; that he shall be confronted with the witnesses against him, and that he shall have the right to be heard in his own defense, either by himself or such counsel as he may choose to employ to represent him ; in short, that he shall have a fair and impartial trial, with the presumption of innocence surrounding him as a shield at all stages of the proceedings until his guilt is established by competent and sufficient evidence. The concluding words of the article, "folloiving in fliis respect tlie usage observed towards other Franks," are interpreted to mean nothing more than that the right of being tried by the ministers or consuls of their own country shall be secured to citi- zens of the United States in the same measure as similar rights are accorded by the Ottoman Government to the citizens or subjects of other Frank nations, reference being had in each case to the laws or mode of procedure of the nation to which the Frank culprit may belong ; but not to have any controlling effect upon the express stipulations of the article itself. * Wenck., vol. i, p. 471, and d'Hauterive, vol. 5, part 2, page 207, art. 8,conoeruiug cases of murder. 22 CAPITULATIONS OF THE OTTOMAN EMPIEE. The clesTiatcli proceeds to declare that with these views of the true meaning of the treatv as expressed in article 4,* the Government of the United States is not prepared to S of am interpretation of that article which wonld abridge the right intended to he secnred by it in favor of American citizens who may he held to answer for offenses committed within the Ottoman dominions and conclndes hy mstrncting me to insist that all American citizens coming within the pnrview of the fourth article of the treaty in question shall he held answerable before the minister or consul of the United States.^ This important instruction sensibly modifies t^^f^ S^^'^'i t%^y P™1«- cessor, Mr. Morris, on the same subject (Consu ar Eegulations, 1874 page 233, note) and will hereafter control the action of the diplomatic and consular officers of the United States in the Ottoman Empire. „„„^„„+ c,„fl tiio+ It is brought to your notice that it may form a rule for your own conduct, and that you may at your earliest convenience direct the consular ofSoers under your jurisdic- tion to observe it also as a rule for theirs. I am, sir, very respectfully, your obedient servant, ^^^^^^^^ MAYNAED. The final solution of the cliflferenoe in the manner set forth in this in- struction was to me most welcome and reassuring. jBeZ(/iMm.— Belgium, also, after it became independent of Holland, con- cluded a treaty of commerce and amity with the Porte, that, namely, of August 3, 1838 (?), 1839 (?)t between Leopold I and Mahmud II. It contains the same provisions as the treaty with the United States re- ferred to above. Besides the provisions concerning the jurisdiction accorded to consuls over the citizens or subjects of their respective states even in cases of offenses committed against the subjects of the Ottoman Porte, these two treaties, namely, that with the United States and that with Belgium, contain slight modifications of the provisions of the older capitulations respecting causes (in which the sum shall ex- ceed 500 piastres) that are to be submitted, not to the provincial tri- bunal, but to the Bivdn or Sublime Porte. (Martens' Recueil.)t Sanse Cities.— Although the Hanseatic Cities began at an early date to frequent the seaports of the Levant in their vessels, they had no direct treaties with the Porte till quite recently. They traded in the Levant under the protection of the Imperial flag, as appears from artiole 1 of the instrument executed between Charles YI and the Porte, on the 25th May, 1747. On the 18th May, 1839, a direct treaty was concluded at London by the free cities of Hamburg, Bremen, and Llibeck, which was supplemented by the declaration of September 7, 1841. (See above, Prussian capitulation and Martens' Becueil.) Portugal. — Prior to 1830 Portugal had taken steps towards the con- clusion of a treaty with the Porte through the court of Austria. It seems that the Porte did not receive these propositions with favor, as that power had no consuls in the ports of the Levant, but only one such in Egypt, who was not, however, furnished with an exequatur from the Porte, but only with a Bera^at from the Pasha. On the 26th March, 1843, a treaty was concluded, and Portugal now has capitula- tions with the Porte just like those of the other European Powers. (See Martens' and de Cussy's Recueil.) Greece. — In 1840 a treaty of commerce and navigation had been ne- " As to the clause of this fourth article regarding the causes, exceeding 500 piastres, to be submitted to the Sublime Porte, there was then no DivS,u Ahkto Adlieh, and the Grand Divdn (see French capit. of 1740, art. 41, and Eussian capit. of 1783, art. 64), or Council of State, would have had to hear such causes. For the corajiosition and attributes of the Divdn at or about that time, see Grassi's Charte Turquie, Paris, 1825, tome i., page 255, Sub. verl)o Divdn. The Beis Mffendi was then a member of this court or Diva,n. 1 1838 or 1839 — the texts differ as to the year. t See Elliot's American Diplomatic Code, Washington, 1834, vol. 2, pp. 693-695 ; see, also. Martens' and de Cussy's Becueil, edit. F. A. Brockhaus, Ijeipsio, 1846, and after- wards. CAPITULATIONS OF THE OTTOMAN EMPIRE. 23 gotiated at CoBstantinople between these two states, but as the Greek G-overnment refused to ratify it, the commercial and political relations between them were governed by the convention of 1832,* in which the European powers had recognized Greece as an independent state. On the 27th of May, 1855 (1854?), a treaty of commerce and navigation was at last concluded and signed at Calindja, by virtue of which Greece enjoys the same privileges as every other European nation. (See Mar- ten's and de Cussy's Eecueil.) Brazil. — After the United States, the only other power of the West- ern Hemisphere to enter into treaty relations with Turkey has been the Empire of Brazil. On the 5th of February, 1858, a treaty of commerce and navigation between that empire and the Sublime Porte was signed at London. (See Hertslet's " Treaties and Tariffs," London, 1875, part entitled " Turkey." Bavaria. — The most recent of all the capitulations that the Porte has concluded with Christian nations are those with Bavaria, contained in the consular treaty between those two powers of August 25, 1870, which has been already referred to above ander the heading " Germany." From the foregoing historical inquiry into the origin and progress of the capitulations, it appears that the Christian nations come in the fol- Ic^wing order as to the greater age of similar treaties : 1. Italy, 7. Sweden, 13. Belgium, 2. France, 8. Denmark, 14. Hanseatic Cities, 3. England, 9. Prussia (Germany), 15. Portugal, 4. Holland, 10. Spain, 16. Greece, 5. Austria, 11. Sardinia, 17. Brazil, 6. Eussia, 12. United States, 18. Bavaria. III. — The Spikit and Contents of the Capitulations. In spirit and import the earlier capitulations differ but little from the more recent ones. The former are more detailed and diffuse in their wording ; the latter are more concise and better arranged. But they all accord the same privileges and exemptions, another instance of the fixedness that characterizes everything oriental. The capitulations with the different powers constitute, as it were, one single whole, which each nation can turn to its own advantage, by reason of the condition stipu- lated for with the Porte by every power, that it shall grant it the same privileges and rights conceded or that shall be conceded to any other power. The Porte has thus bound itself to exercise no preference towards any one of the states with which it has treaties, but to make them all share alike in the benefits of the provisions contained in the treaties it has entered into with each of them. In all the treaties of commerce entered into by the Porte since 1861, it is expressly stated " that all the rights, privileges, or immunities that the Sublime Porte now grants or may hereafter grant to the subjects, vessels, commerce, or navigation of any other foreign power, the enjoyment of which it shall tolerate, shall be likewise accorded, and the exercise of the enjoyment of the same shall be allowed to the subjects, ships, commerce and navigation Qfn # # #_ It becomes necessary, therefore, to ascertain what are the privileges and rights that are accorded by these capitulations with foreign powers in general, to study the spirit and contents of these capitulations, and make, so to speak, a summary of these manifold conventions, and re- duce them to their simplest and most concise expression. ' See Eliott's Amer. Dip. Code, WashiDgton, 1834, toI. 2, pp. 175, 177, 217, and 221. 24 CAPITULATIONS OF THE OTTOMAN EMPIRE. As has been already observed, the word capitulations is especially- used to indicate the treaties that the Porte has entered into with the na- tions of Christendom. Perhaps the employment of this word was meant to express that the Porte did not intend to bind itself to perpetual peace with the Christian nations, but only to consent to truces or armistices, depending for their duration upon its good will.* It was further meant to indicate that these were not stipulations between two contracting par- ties, entered into for their reciprocal good, but only grants of privileges and immunities that the Porte made, out of its generosity, to the na; tions with whom it dealt.t This is especially true of the ancient capit- ulations. But, since over a century ago, Turkey has concluded treaties of perpetual peace with conditions of reciprocal obligation ; and the capitulations with Venice of 1454 have both the form and substance of a veritable treaty, with reciprocal obligations. ^Nevertheless, these compacts have always borne the name of capitulations, which even now is used to distinguish them from those existing between Chris- tian nations. And why 1 Because, although different in form to those that preceded them, they contain provisions that are identical in sub- stance. That the old capitulations were mere grants of privileges ap- pears clearly in those obtained by Pisa and Florence from the Mos- lem princes and especially from the Sultans of Egypt. Thus those of 1173, that were got from Saladin, speak only of the requests or prayers made to Mm by the Pisan ambassador for obtaining, in behalf of the Pisan merchants, toleration and exemption from burdens, and of a simple granting or adhesion on the part of the prince. | Still clearer are those of 1488, between Kaat-Bay and Lorenzo the Magnifi- cent. In them it is said in so many words that the envoy of the Florentine republic had presented himself at the court of that ruler, and had requested of our beneficence the renewal and confirmation of the said capitulations; and the various heads (capitulations) are then enu- merated, commencing with this formula : Louis, aforesaid, icith his com- panions, did aslc, &c., &c., and ending thus: We order the execution of this. § In the French capitulations-of 1740 we find the same thing, namely, that the French ambassador requested the confirmation of the ancient capitulations, which was granted by the Sultan in these terms : "We have by these presents ordained, in their fullest extent, the ancient and renewed capitulations, as well as the articles inserted after the aforesaid date; * * * we have granted them exemption from," &c., &c.l| The English capitulations, too, contain the following formula: "She (the Queen) having earnestly implored the privileges in question, her entreaties were acceded to, and these, our high commands, conceded to her" (Hertslet, vol. ii, p. 347) ; and Art. XXXIII of the British capitu- lations : "That differences and disputes having heretofore arisen between the ambassadors of the Queen of England and King of France touching the affairs of the Flemish merchants, and both of them having presented onemorials to our Imperial stirrup, praying that such of the said mer- chants," &c., &c. (Hertslet, above referred to.) The Sultans could not conduct themselves differently towards the Christian sovereigns, for they deemed them in no way their equals, but * See deCussy's Diotionnaire du diplomate, siih verbo Capitulation; and Morienil's Dictiouaire des olianoelleries, sub verbo Capiiulalion. tSee Flassan's Histoire do la diplouiatie fraiifaise, tome ii, pMode iv, liv. i, p. 227^ t See Amari's Diplomi Arabi, p. 257, and Gatteschi'a Maiiuale and Appendix II. § See Amari's Arab Diplomas, p. 382, and Appendix, No. III. II See Ferand Giraud, De la Jwisdiction dans les lichelles, p. 72. CAPITULATIONS OF THE OTTOMAN EMPIRE. 25 far beneath them in dignity and power, and considered themselves to be the true and only sovereigns of the earth. This is a principle of Moslem public law ; the only rightful lords of the world are the Sultans j all others deserve nothing but pity and toleration. This being so, how could they make treaty stipulations ? Treaties are entered into between equals. Toward inferiors, as toward subjects, only grants and favors are possible. In the capitulations with France the Sultan calls himself "The Sul- tan of glorious Sultans, Emperor of powerful Emperors, distributer of the crowns of the Chosroes* that are seated upon thrones, the Shadow of God upon earth, * * * possessorof a number of cities and fortresses, to name which and boast of the same is here needless. I, who am the Emperor, the asylum of justice and the king of kings, the center of vic- tory, &c. I, who, by the real Might [of G-od], the fount of happiness, am adorned with the title of Emperor of both Lands, and by the crowning grandeur of my califate am graced by the title of Sovereign of both Seas."t In the English capitulations the sultans assume titles equally high. They say: "We, who by divine grace, assistance, will, and .benevolence, now are the king of kings of the world, the prince of emperors of every age, the dispenser of crowns to monarchs," &c., &c. (Hertslet, vol. ii, p. 3i6.) It has been remarked above that by the capitulations the Moslem rulers did not mean to bind themselves to lasting peace. The word ca- pitulations corresponds to the Arabic word " sulh" which means a truce, a standstill of arms, a reconciliation, by means of which the stranger or enemy preserves a kind of autonomy, and does not become wholly sub- ject to the Moslem. I Saldm means peace, and in every-day life, the greeting '■^es-Salam alaihufn" (peace be upon you) is addressed by the Moslem to a fellow-believer, but never to a Christian or Jew ; and ac- cording to the Moslem doctors, war against unbelievers is the duty of the Moslem, and is hence called holy war. This war undertakes the propa- gation of the Mahommedan faith or at least the subjection of unbelievers to the payment of tribute {djizia, i. e., ransom). There is no deed more meritorious than that of flgjtiting for religion ;§ thus holy warfare is re- garded as an imperative duty ordained of God. Abu-l-Hussain el-Ku- (liiri, of the Hanaflte school of doctors, who died in the year 428 of the Moslem era, commences his treatise on war with unbelievers thus:|| " War with those that are not of Islam is a work enjoined by God." He then goes on: "When the Moslems go into the enemy's country and surround a city or stronghold to besiege it, they shall invite the dwellers therein to embrace Islam. If they comply, the Moslems shall give up fighting them ; but if they refuse, they shall call them to fulfill the trib- ute." He then continues : " It is laudable to again invite those who have been once invited to Islfim, but have refused. If, however, they shall then too refuse, the Moslems shall, after having implored Divine aid against them, assail them with instruments of war, burn down their * Cliosroe, or Kusra, the AraWc for Cyrus ; Chosrew, a title of Armenian kings. In illustration of the boastful title of distributer of the crowns of the Chosroes, ). e., of the crowns of infidel rulers, it may here be remarked that a Moslem once informed me that the Sultan had bestowed crowns on all the rulers of Christendom except the king of the Americans, and he wished me, as an American, to explain why it was that our "king" was yet uncrowned. tSee Ferand Giraud, De la Jurisdirtion , &c., p. 69. X See B61iu's Etude sor la propri^t^ foncifere en pays musnlemanes, 5 12. § See Tahtaroy'a Commentaries upon the Durr el Mulchtdr, concerning the merit of holy war. II See Eosenmuller's Analecta Arabica, Leipsic, 1825. 26 CAPITULATIONS OF THE OTTOMAN EMPIRE. houses, let out their water-pools, and destroy their crops." From this duty of making war upon unbelievers, the Moslem jurists draw tbe in- ference that their rulers are never lastingly bound to peaces ^d truces made with the enemy, but can break them at pleasure. II Mtdayah., a. work on Moslem law, savs : Peace may he granted to unbehevers, but it is only a truce, and may he, if advantageous, broken; notice, however, being previously given to the enemy of the rupture. These jurists also hold that Moslem rulers cannot, if they wish, enter into a lasting peace, but can only make temporary truces, to be broken at pleasure by the prince and in the interest of the believers. Kuduri, who has been already quoted above, says : If it is seen fit by the Imam (chief, ruler, of the Moslems), to makepeace with enemies or with a portion of them and it is, in the interest of Moslems, advantageous to do so, that is not wrong. But if he shall make peace with them, for a certain space of time, and should then deem it to he for the good of the Moslems to break the covenant, he shall denounce it to them and renew the war. Eeland,* in his dissertation on the military law of Mahommedans waging war against Christians, observes that a prince may at wiU make peace with unbelievers, but not a lasting peace, for this is absolutely forbidden him; he can make truces for a determinate time, if he judges that such is required for the public good, or if the Moslems are too weak either to vanquish and beat back the enemy or force them to embrace Islamism or pay tribute. But if there be ground for hoping to force them to one or the other, he cannot conclude truces but for four months, or, according to other doctors, for one year, and, according to others still, for ten years. And lastly, there are those who think that the truce is to be regulated according to the wUl of the prince; and D'Hosson iu his Tableau de VEmpire Ottoman, tome 5, p. 66, says that the Emperors of Byzantium could never obtain save armistices from the Califate and other princes of Asia. Such are the principles of Moslem law, the high opinion, namely, that the Sultans have of themselves! and the prohibition to make lasting peace with unbelieving nations, which account for the fact that mere grants of privilege, or in other words capitulations, and not treaties, were entered into by the Moslem rulers with the Christian nations. And it has required a long period of time and an uninterrupted train of dis- asters to induce the Ottomans to conclude treaties of perpetual peace and recognize the principle of European public right that all independent sovereigns and states are, as between each other, equal, of whatever religion they may be, and that lasting compacts of a synallagmatic character can be stipulated with them. The history of the relations between the United States and the Bar- bary States during the last part of the preceding and the first part of the present century furnishes a good example of the practical truth of what has just been said above. In the spring of 1786j Abd-er-Eahman, the TripoUne ambassador at London, desired to negotiate with the com- missioners of the United States for a perpetual peace between them and Tripoli; 30,000 guineas for his employers and £3,000 for himself were the lowest terms demanded. After the death of the Sultan of Morocco, who had concluded the treaty of 1787 with the United States, the new Sultan recognized that * Eeland's Miscellaneous Dissertations, Utrecht, 1708. t See Blanchard Jerrold's Egypt under Ismail Pasha, London, 1879, pp. 43, 51, and 52. See also Sirady el Muliik, %. e., a Guide for Kings, by Abou Bekr of Tortosa, who died in the year 520 of the Hedjrah. This book has been published iu the Boulak Press of Egypt, in 1289 A. Hedjrah. CAPITULATIONS OF THE OTTOMAN EMPIRE. 27 act of his predecessor and wrote to President Washington, saying: " We have received the present at his [the cousul'sj hands with satis- faction. Continue writing letters to us." The treaty of September 5, 1795, between the United States and Algiers cost, according to the esti- mate of the Secretary of the Treasury, $992,463, most of which sum was expended — 1st, in money or timber for the Algerine treasury ; 2d, in money for the great oflftcers and relations of the Dey ; 3d, in consular presents ; 4th, in redemption of enslaved seamen; and 5th, in a consular present every two years. In 1815 the United States ended this pay- ment of tribute to a Moslem ruler by sending a naval force to Algiers. The American negotiators declared that the United States would never stipulate for paying tribute under any form whatever, and would not give the Dey three hours nor even a minute for deliberation, and the second article of the treaty of 1815 distinctly did away once and for- ever with all tribute or biennial presents. In May, 1800, the Bashaw of Tripoli wrote to the President of the United States : " Our sincere friend, we could wish that these your ex- pressions were followed by deeds and not by empty words. * * * If only flattering words are meant, without performance, every one will act as he finds convenient." And only a few days before he had asked the consul why the United States did not send* him a present. The reply of the President was a ijaval squadron and a war against Tripoli on land and at sea, which was terminated by the treaty of June 4, 1805, signed on board an American man-of-war in the harbor of Tripoli, nothing being paid for the peace. The treaty of 1797-1799 between the United States and the Bey of Tunis was concluded " under the auspices of the great- est, the most powerful of all the princes of the Ottoman nation who reign upon the earth, our most glorious and most august emperor, who commands the two lands and the two seas, Selim Kan (Sultan of Turkey), the victorious sou of the Sultan Mustapha, whose realm may God prosper until the end of ages, the support of kings, the seal of justice, the empe- ror of emperors." It cost $107,000, which sum was paid for — 1st, rega- - lia ; 2d, peace ; 3d, peace presents ; 4th, consul's present ; and 6th, secret service. The total amount for real expenditures, before the war with Tripoli, was stated by the Secretary of the Treasury to have been on July 30, 1802, $2,046,137, for obtaining the treaties referred to above, under the policy that had been until then adopted by the United States Congress.* Having thus given an idea of the capitulations in general and briefly accounted for the reason of their existence, I now proceed to show their contents, reducing to their simplest terms the principles that are to be found therein. To judge by the lengthiness of these conventions, one would think that the principles they involve are very numerous. In reality, how- ever, they are reducible to a small number ; and, with the exception of a very few, the greater part of these even are of little entity and of no importance, now that the Porte has, in theory, at least, if not always in practice, adopted to a great extent the principles of European interna- tional right. The provisions of the capitulations may be reduced to the following : 1st. Permission to foreigners to come upon Moslem territory, to freely navigate the waters and enter the ports of the state, whether for devo- tion and pilgrimage to the holy places, or for trading in the exportation and importation of every kin d of unprohibited goods. ( See Italian capit- *See Rev. Edit, of Treaties, &c., Washington, Government Printing Office, 1873. 28 CAPITULATIONS OF THE OTTOMAN EMPIEK. j.^ 11 o>o..^*x capitulation , , , , ^ j ^ j? j 1761, article 1 ; English capitulations of 1675, articles 1, 7, and 1. 1, and article 53: United States Treaty of 1830, article 1, and f. f.; Greek capitulations 1855, article 1 and f. f. See also United States and Algiers of 1816, articles 1, 9, 12, and of 1795, articles 1, 2, 14 ; United States and Morocco of 1787, articles 7, 14, 15, 17, and 19 ; of 1836, articles 8, 14, 15, 17, 19 : United States and Tripoli of 1796, articles 6 and 9 ; of 1805, articles 1, 8, 9, and 11 ; United States witli Tunis of 1797, articles 8, 12, and 15.) 2d. Freedom to follow, on Moslem ground, one's own habits and cus- toms, and perform the rites and fulfill the duties of one's own religion. (See French capitulations of 1740, articles 1, 32, 33, 34, 35, 36, 40,51, and 82 ; Austrian capitulations of 1718, article 5 ; Eussian capitulations of 1783, articles 55 and 56 ; Prussian of 1761, article 6 ; EngUsh capitula- tions of 1675, article 29. See also United States and Algiers of 1795, article 17, and of 1815, article 15, and of 1816, article 15 ; United States and Tripoli of 1796, article 11, and of 1805, article 14 ; hut compare also United States and China of 1858, article 29, and of 1868, articles 4 and 7.) 3d. Exemption from every " amrie,'" tax, impost, or tribute, except duties as agreed upon on goods and merchandise. (Italian capitulation of 1823, articles 2 and 12 ; French capitulation of 1740, articles 8, 10, 13, 24, 25, 55, and 07 ; Austrian, articles 3 and 5 ; and Sinedo of 1784, arti- cle 2; Eussian, articles 3, 20, and 23; Prussian, article 2; English, articles 13, 32, 52, 54, 57, and 67; United States, article 1 ; Greece, arti- cle 12. See also United States with Algiers of 1795, articles 2 and 14 ; with Morocco of 1787, article 17 ; of 1836, article 17 ; United States with Muscat of 1833, articles 3, 4, and 6 ; with Tunis of 1797, articles 14 and 15.) 4th. Eight of foreigners to be judged by the ambassadors and consuls of their respective governments in suits between one another, both civil and criminal, and obligation of the local authorities to render aid to consul in enforcing his decisions and judgment concerning the same, &c. (Capitulations : Italian, article 8; French, articles 15, 26, and 52; En- glish, article 16 ; Austrian, article 5 ; Belgium of 1838, article 5 ; Danish of 1756, article 10 ; Spanish of 1782, article 6 ; United States, article 4; Netherlands of 1612, article 9 ; Prussian, article 9; Eussian, article 6; Swedish of 1737, article 6. See also United Slates and Algiers of 1795, article 15 ; of 1815, article 19 ; of 1816, article 19 ; with Morocco of 1787, article 20; of 1836, article 20; vwith Muscat of 1833, article 9; with Tripoli of 1805, article 18 ; with Tunis of 1797, article 12, as it icas, and as it no2V is, compared with article 20.) 5th. In civil causes between natives and foreigners jurisdiction is re- served in many of the capitulations to the local tribunals, but with various guarantees and qualifications, such as, that the suit must be tried in the presence of the consular dragoman,* that the Ottoman jadge shall not give heed to the native unless he have written proof of his claim, and, lastly, that if the claim exceed a given sum it shall be referred to the imperial (Jivan. Usage, however, and the provisions of some of the capitulations have widely departed from these stipulations. (Capitulations: Italian, article 8; French, articles 23, 26, and 41; Aus- trian, article 5; United States, article 4 ; English, articles 10, 15,24, * Compare Appendix No. XV. CAP1TULA.TI0NS OF THE OTTOMAN EMPIRE. 29 and 69 ; Belgian of 1838, article 8 ; Danish, article 10; Spanish, article 5; li^Tetherlands, article 28 ; Prussian, article 5 ; Russian, articles 63, 64, and 66; Swedish, article 6 ; Greek, article 24. See also United States with Algiers of 1816, article 19 ; compare also United States with China of 1858, articles 20 and 28 ; with Tunis of 1797, article 12, as it was and as it now is. In the older capitulations, the sum for which the suit was to be brought before the imperial divan was 3,000 aspers ; it was afterwards raised to 4,000 aspers ; in the more recent capitulations with Belgium and the United States it was fixed at 500 piasters ; but the adoption of a com- mercial code and the institution of mixed tribunals of commerce has done away with this stipulation.* As for the precautions indicated con- cerning the necessity of a written deed or instrument to enable the native to proceed against an European, and concerning the prohibition of resorting to proof by oral witness, they are to be found in T;hese capit- ulations : French, article 23 ; Eussian, articles 9 and 68 ; Prussian, arti- cle 5 ; and English, article 58. These precautions are necessitated by the imperfection of Ottoman tribunals, and the defects of Moslem pro- cedure, which is almost wholly founded upon proof by oral testimony. Usage further departed from the provisions of the capitulations and established the almost invariable rule in the provinces' and especially in Egypt,] that the Ottoman plaintiff should in civil suits have recourse to the consular court of the defendant ; which is supported by article 5 of the Austrian capitulations of 1718, which say : " If anything be due by a merchant of the Royal Csesarian Government to some one, the cred- itor must require his debt through the consuls and interpreters of his debtors, and through no one else." See United States with Japan of 1858, article 6. 6th. In crimes and offenses committed by foreigners against natives, jurisdiction is reserved in most of the capitulations to the local judge, but always with the presence or assistance of the consular dragoman or con- consul, f and according to the most recent caijitulations, jurisdiction even in such criminal cases is allowed to the consul of the accused. (Capitulations: Italian, article 9; French, article 65; Austrian, article 5; Eussian, articles 73 and 74; English, articles 10 and 42; and in the Swedish capitulation of 1737, article 8; United States, article 4; Belgian, article 8; Hanseatic cities of 1839, article 8; Portugal of 1843, article 8, it is expressly agreed that in every case of delictum, even when committed against an Ottoman subject, the competent judge is the consul § of the accused, and not the local tribunal. By usage, and by the principle of the most favored nation, all the powers can avail themselves of this pro- vision of the latest capitulation ; and this perhaps is one of the chief rea- sons why the Sublime Porte contested the Euglish text of Article IV of the treaty of the United States with the Ottoman Empire of 1830, as *See Appendix No. XV. t Before the establishment of the so-called international tribunals of reform in Egypt in 1875 and 1876. The mixed tribunals of commerce in Turkey and the new inter- national tribunals of reform in Egypt will be treated of next year in another part of this report. t The wordino- that the consul shall " assist," or shall " be present " at the trial, is unhappy, for it°may be held to mean that the consul is only to watch the proceedings without taking any essential part in the conduct of the trial, or in the decision ren- dered : the wording " the consul or his dragoman shall be associated with the local judge during the. trial, and the decision shall not be executory, unless the ofdcer so associated shall concur in and sign the decision rendered would obviate misunder- standings that must arise and have sometimes arisen under the other wording." See also Martens' Cours Diplomatictue, tome ii, p. 968, art. 8. $ See Appendix No. lY. 30 CAPITULATIONS OF THE OTTOMAN EMPIRE. has been fully explained above. See also United States with. Algiers of 1816, article 20; with China of 1844, article 21; with China of 1858, article 11; with Japan of 1858, article 6; with Morocco of 1836, article 21 • with Tripoli of 1805, article 1&; with Tunis of 1797, article 21. 7th. Inviolability of foreigners' domicile, and, in event of urgent neces- sity for arresting a delinquent, obligation of government officials not to enter the dwelling place of a foreigner, without having previously notified the ambassador or consul, and unless accompanied by his deputy.* (Capitulations of the French, article 70 ; Austrian, article 5 ; Eussian, articles 5, 7, and 67 ; Prussian, article 5 ; English, article 25. See also law and protocol relative to the concession by the Sublime Porte to fereigners of the right to hold real estate in the Ottoman Dominions, i^ArcUves Diplomatiques,'" 1869, neuvieme ann^e, No. 4, Avril, pp. 561 to 564, and f. f. See also circular instruction of Mr. Bourr6e,Prench ambassa- dor at Constantinople, to French consuls, in "Archives Diplomatiques" for 1868, tome iv, p. 1678. Mr. Bourree's circular is worthy of careful perusal by every consul in Turkey. 8th. Full freedom for foreigner to give and bequeath by will, and in case of intestate estate, obligation of local government to allow the consul or the heir, if there be one, to take unhindered charge thereof and administer the same ; and in case of absence of both heir and con- sul, to itself take care of the same, and deliver it to the heirs without any costs. (Capitulations : Italian, article 7 ; French, article 22 ; Aus- trian, article 6 ; Russian, article 8 ; Prussian, article 6 ; English, article 26 ; Greek, article 26. See also United States with Algiers of 1816, article 22 ; with Morocco of 1836, article 22 ; with Tripoli of 1805, arti- cle 20 ; and with Tunis of 1797, article 19.) 9th. Prohibition to consuls and ambassadors to give protection to Ot- toman subjects and rayas {i. e., Christians who are subject to Ottoman rule), or give the flag of their nation to Ottoman and raya vessels. (Capitulations: Italian, article 13; English of 1809, article 10; United States, article 5 ; Greek, articles 22 and 23. See also United States with Tripoli of 1805, article 6 ; and with China of 1858, article 14.) Every one of these concessions is in derogation of the principles of Moslem law, which had to be departed from if friendly relations were to be established with Christian powers. It will be well to here review those principles and at the same time compare them with the maxims of European international law, in order to show how widely it differs from Ottoman common law as found in the books of Moslem jurists. In the first place the capitulations permit the foreigner to come freely upon Moslem territory and trade, without any let or hinderance. This principle has long been observed by all the nations of Christendom, not only by virtue of treaties, but when they did not yet exist. Martens, in his Principles of the law of nations, section '84, says : " All the powers now generally accord to each other, in time of peace, freedom of entry, transit and sojourn,' both by land and by sea, and upon rivers bounded by several States ; this freedom is confirmed in a multitude of treaties of peace, boundaries and commerce; but even in default of treaties it rests upon generally recognized usages, and in some states upon their own fundamental laws. In many states strangers are to-day permitted even to buy real estate, either by virtue of laws or in conformity with * The derogations in certain cases to this stipulation that have been agreed to by the powers which have adhered to the law and protocol concerning the right conceded by the Porte to foreigners to hold real estate will he noticed in a later section entitled "Law and protooolj" &c. CAPITULATIONS OF THE OTTOMAN EMPIRE. 31 treaties." And even in countries where the right to hold real estate is not allowed by the laws, the practice of holding real property is so much tolerated that it has come to be recognized as a right. Thus, in Eng- land, where it was formerly forbidden to aliens to acquire such property,* no law officer of the Crown would have even proposed to the Queen to molest an alien on that account. [The laws and constitution of the State of New York are not within my reach, so that I cannot refer to them on this point.] How different are the principles of the old Moslem common law. Looking upon unbelievers as enemies, and holding a state of perpetual warfare to exist with them, Moslem jurisprudence absolutely forbids their coming into the countries of Islam. [See Eeland's Miscellaneous Dissertations, TJtrecht, 1708 : " If an unbeliever come upon Moslem ter- ritory in order to carry on trade, for example, he is not safe untithis life has been guaranteed him, and it is not permitted to extend such guar- anty beyond four months. If any one gives it for a longer period of time that shall be void."] It is also clearly stated in those works that even after the guaranty of life is granted, if the unbeliever remains within Moslem terrritory more than a year he becomes ray a (subject), and as such a tributary bound to pay the djizyah and can no more go out of the land and return to his home. (SeeB^lin, fitude sur la propriety foncifere en Turquie, section 113.) Abou-l-Mussein el Kuduri, in his work on Moslem warfare, already cited above, says : " If any pilgrim or stranger who is not a Moslem come to us imploring servitude and protection, it is permissible for him to dwell under our rule, provided the Im9.mt orders it; if he remain among us a full year he must be ordered to pay the poll-tax which, if he remains, is to be required of him, for he then becomes a tributary received into the class of clients, nor shall he be permitted to return to a hostile do- minion." I Furthermore, the guaranty of life given to an unbeliever may be can- celed by the Imam whenever he thinks that it is hurtful. Kuduri says : "That if a free man or free woman promises security to one who is not a Moslem, the security promised is to be kept, nor is it right for any Moslem to kill such, unless the security be baneful, and then the Im^m shall declare it void." Such being the principles of Moslem public law, it becomes at once quite clear why the capitulations state that foreigners can go and come upon Moslem territory without let or hinderance from any one. With- out this he would have been unable to approach that territory, for his life and his goods would not have been safe, but at the mercy of every fanatic who might choose to attack him. The concessions relating to the habits and customs of strangers and the exercise of their religion are accounted for, for the same reasons, since, according to Moslem law, not only may the Christian not dwell * This was so before the year 1870 ; since that time the prohibition has been abol- ished. By the naturalization act, 33 Vict., cap. 14, 12th May, 1870, aliens are allowed to hold real property in the United Kingdom. + The chief ruler, the Dux. tin the treaty of peace of February, 1535, between Francois, King of France, and the Sultan Suleiman, which is given by de Testa, in his Becueil, vol. i, p. 16 and f. f., there is the following paragraph : " Item, that not one of the subjects of the King, tvho shall not liave dwelt ten full and continuous years in the country of the said Grand Lord [the Sultan] shall be nor can be constrained to pay tribute, hharadj, awari, IchaseaVye, nor to perform watch over the neighboring lands and magazines of the Great Lord, nor work in the arsenal, nor in any other workshop whatsoever ; and that LU the country of the King, the same shall be reciprocally observed towards the subjects of the Great Lord." Such was the treaty stipulation in 1535. 32 CAPITULATIONS OF THE OTTOMAN EMPIRE. upon Moslem territory without permission from the ruler, but he must, even after having obtained such permission, observe the following pre- scriptions : * He shall not found churches, monasteries, or religious estahlishments, nor raise his house so high as, or higher than, the houses of the Moslems ; not ride horses, hut only mules and donkeys, and these even after the manner of women ; draw hack and give vray to Moslems in the thoroughfares ; wear clothes different from those of the Mos- lems, or some sign to distinguish him from them ; t have a distinctive mark when in the puhlic haths,t namely, iron, tin, or copper hands ; abstain from drinking wine and eating pork ; not celebrate religious feasts publicly ; not sing nor read aloud the text of the old and new Testaments, and not ring bells ; not speak scornfully of God or Mohammed ; not seek to introduce innovations into the state nor to convert Mos- lems ; not enter mosques without permission ; not set foot upon the territory of Mecca, nor dwell in the Hadj4z district. $ Not one such prescription is met with in the legislations of Europe, except that relating to the public exercise of worship ; and if they were to be applied to foreigners wishing to establish themselves upon Mos- lem territory, they would have been tantamount to exclusion, for life under them would have been unbearable. In the capitulations, therefore, such prescriptions were done away with, and strangers were permitted to make use of wine, and pork, and the baths, and read and chant their holy books within their churches. These concessions would be unintelligible, and indeed ridiculous, unless one bears in mind the prescriptions of Moslem law that have been given above. The principal taxes to be paid by unbelievers dwelling in Moslem countries, and to which believers were not subjected, were two, namely, the djizyah and the Icharddj. The first was a tribute to be paid fo^ security of life and liberty of conscience; the second, an extraordinary burden upon land and real property. By law the Moslem is not bound to pay save the tithe of the produce, which is called ushr, plural aashdr, from which the houses occupied by the owner himself are exonerated, || whilst the unbeliever and the tributary must pay, upon his real proper- ties, the Tcharddj, which may be fixed, according to the will of the ruler, as high as 50 per cent, of their revenue. In M-Multalca, a treatise on Moslem civil jurisprudence of the Hanaf ite school that has been several times published by order of the Sultans, and is followed in the MaKkamk (law courts) of the Ottoman Empire, it is laid down, concerning the djizyah, or poll-tax, that this being a sort of fine inflicted upon the * See Siradj-el-Muluk, edition of Bonlak, 1289, p. 2S9, chapter on the rules concern- ing tributaries. t There are in Mount Lebanon men still living who remember when no Christiaa dared to enter a city of Syria when wearing white or green clothes, for the " ZJnJe- lievet-s" were allowed to appear only in dark-colored stuffs. In Homs and Hamah the Christians, even down to the year 1874, when I was there, could not ring bells out- side of their churches; in Beirut the first to put up a large bell were the Capuoine monks, and soon after that the American missionaries, in 1830, hung a small church- bell upon the roof of their place of worship. In 1876 the prior of the Franciscan monks set up a bell, a thing until then unheard of, over the new church which that order had erected in the city of Aleppo, but owing to the Herzegovinian and Bosnian troubles then ragmg and the evident displeasure of the Aleppine Moslems, a large de- putation of influential Christians residing in Aleppo begged of the prior to take down the obnoxious metal, telling him that it might be the cause of an onslaught upon all Christians m the city. The prior wisely took it down. ^The capitulations granted in 1173, 'by Saladin the Great, to the Pisan Republic, allowed the Pisau merchants in his territory to use the public bath at stated times, at which times no one else was to be admitted. § See the Law and Protocol conceding to foreigners the right to hold real estate in Turkey, the province of Hadj^z excepted. II See Gattesohi'B Pamphlet, " De la Proprieta, Fondiaria, le Ipoteohe &e Alex- andria, 1869, and particularly paragraph 47. , ■ oj. CAPITULATIONS OF THE OTTOMAN EMPIRE. 3$ unbeliever for his obstinacy in continuing in darkness, it follows that it ca,nnot be paid through a third party, but ought to be colleated from the tributary himself, in a humiliating and mortifying manner, by the col- lector, who remains sitting, while the tributary pays it while standing- upright. According to another tradition the collector takes the tribu- tary by the back of the neck and says: "Pay thy debt, O tributary '" or, "O, enemy of God." ^ ^ , j, Furthermore, the stranger who comes into a Moslem country and lives there more than one year is subject to the poll-tax, and if lie have ac- quired land and cultivates the same, he is subject to the kharddj, and can no more return to his home. Hence the stranger that comes to a. Moslem country and obtains security of life is called Musta'min, i. e., seek- ing safety or given safety, and as such is subjected to the two above-cited burdens and imposts. But the capitulations abolished these imposts, exonerating from their payment the subjects of those states with which they had been stipu:- lated, and limiting the imposts to those put upon articles of commerce^ that is, customs duties, to the exclusion of every other burden or tax that the governors imposed upon unbelievers who frequented the coun- try. Beside the above-named taxes that were prescribed by the law, and may therefore be called legal, there were many others that had been arbitrarily introduced into the policy of the state and bore the name of Takdlif Urjlah (see Miltitz, tome ii, section 2, p. 962 ; and de Testa's- Becueil, &c., tome i, Appendix No. 1, note v, on page 211). Such ex- tra-legal imposts were designated by the generic name of Awani, from which is derived the French word avanie, from the arable Jiawdn, meaning humiliation, or from the Arabic Idnah and Aun, meaning contribution or help, i. e., vexatious exactions. Many of these Awanis or Idnahs are mentioned in the capitulations and abolished by them, as for instance in the French capitulations the Massab'y^, a tax upon slaughter-houses;, raft, exportduty ; badg, transit duty ; yassak-kouli, military exaction,^ and many others in the capitulations with other nations that had to b& abolished before it was possible for their merchants to trade with Mos- lem countries. {Mastar'y6, KassaVyS, Bideat, Bessmi, KhudamiS, &c. ; see» Austrian Sinedo of 1784, art. 2.) But by far the most precious privilege that the capitulations give to- Franks dwelling within the Ottoman Empire is undoubtedly the right to be judged, in suits between themselves, by their own consuls and ministers, and in suits with local subjects the right to be heard only in the presence of the consul or his dragoman. With the advance of time we find that this privilege, instead of becoming abridged, has been on the contrary very much extended in the capitulations. For whilst, by the old capitulations, in cases of offenses committed by a Frank against, an Ottoman subject, jurisdiction was vested in the local judge, by the- more recent ones — namely, with Belgium, with the United States, witk the Hanseatic cities, and with Portugal — it is expressly stated that eveni in such cases the offender shall not be arrested nor tried by the local tribunals, but only by the minister or consul of the nation to which he belongs. And even the jurisdiction or authority to administer justice conferred upon the tribunals of reform in Egypt by no means extends indiscriminately to all suits that arise in that country out of social rela- tions and the transactions of civil life, but is circumscribed within fixed and determined limits. Indeed, article 9 of the Beglement dJOrganiza- ' Compare the modem term " Idnah Askariah." S. Ex. 3 3 34 CAPITULATIONS OF THE OTTOMAN EMPIRE tion Judieiaire establishes the following principle : " The new tribunals shall take cognizance of all suits in matters civil and commercial, be- tween non-aliens and aliens of different nationality." Interpreted ia the light of the diplomatic notes exchanged between the Egyptian Gov- ernment and the European powers, and in the light also of the juris- prudence theretofore developed by the Egyptian tribunals, the above- cited provision allows of stating it as a general rule, not without excep- tions, that the tribunals of reform have to do with civil and commercial suits iu which the contending parties belong to different nationalities. And by articles 6, 7, 8, and 9, in § II of chapter I, of Title II, simple police transgressions, crimes, and offenses committed directly against the mag- istrates, jurors, and officers of justice in the exercise of or while ex- ercising their functions, and crimes or offenses imputed to the judges, jurors, and offlcers of justice when they shall be accused of mal- feasance in office, are exceptional cases cognizable by the tribunals of reform. But all other crimes and offenses still remain under the cog- nizance of , the courts or tribunals that have such jurisdiction by virtue of the local lays or of the capitulations * This privilege of jurisdiction, both civil and criminal, which is bestowed upon foreign authorities within Ottoman territory, is farther removed than any other from the principles of European international law. Compared with those principles it is a real privilege, whilst the other concessions that have been enumerated above should not be considered as true privileges, but rather as an ap- proach towards those principles. It is well worth while not only to see what is the origin of this privi- lege, but also to point out the reasons why it has been hitherto kept up and has acquired ever-increasing strength and importance.* The origin of this privilege reaches back to the middle ages ; that is to say, to the time when every nation that had commercial dealings with other people obtained for its own subjects, in the great marts of commerce, and especially in the seaports, the privilege of being gathered together in separate quarters, and of being placed under the authority of their consuls and under their own laws and usages, according to which alone they should be j udged. This system was generally practiced all through the middle ages, both in the ports of the Mediterranean and in those of the Baltic, where commerce had greatly developed. The reasons for such privileges and for the grant to consuls of such falljurisdiction are evident. Civilization was then so backward that foreign merchants found themselves ever exposed to vexations ; there was mutual distrust between thevariouspeoples of Europe, which arose either out of their rivalries and jealousies or out of the lack of good faith in the carrying out of treaties and alliances ; and lastly, the want of knowledge of a law of nations and the absence of public ministers at * See dispatcli of Mr. Farman to Mr. Evarts, No. 126, May 2, 1877, For. Eels. 1877, *I say ever-pcreasing strength aud importance, for not only do the more recent capitulations intensify this prerogative of Franks in Turkey, but even the mixed, tnbunals of reform m Egypt are m reality courts composed of members the majority of whoniare Christian foreigners nommateA by their respective governments, and ap- pointed by the Kh6dive, who administers justice according to a code of laws that is taken for the most part fi-om the codes of modem Europe. ° This is extraterritoriality mdeed and an extension of the provisions of the capitulations far wider and mori radical than anything ever claimed by the most pretentious of Levant consuls Of course it is a great advantage to the foreigner to have his suits decided bv a bodv of learned and independent European judges rather than by a single consul assisted bv three or four merchants, or by a local tribunal during the presence of tWcfmsiil or his delegate ; but this in no way limits, but rather extends the principle of exemtTtion from local jurisdiction. ^ "i oi.cmjjuiuu CAPITULATIONS OF THE OTTOMAN EMPIRE. 35 fixed residences to cause it to be respected, were many circumstances that called for protective measures in behalf of commerce, which could not be kept up in foreign lands unless under the shadow of consular au- thorities, who were at that time the only ones that enjoyed the privi- leges of international law. (Borel : of the origin of the functions of Consuls, Chapter I.) If these reasons held good for Christian Europe, much more then did they render the consular jurisdiction necessary, nay indispensable, in Moslem countries, where the intolerance of religion also came in to aug- ment the perils of those merchants who went thither, and who could not be sure of their goods nor even of their life and liberty unless there was some national authority to continually protect them. Nor was that authority always sufficient, for the consuls themselves were quite often exposed to great persecutions,* and were considered not so much as representatives of foreign nations, but were rather looked upon by the Moslem rulers as hostages and prisoners. Khalil Zahiri, an Arab writer quoted by de Sacy, in his Arabic Chrestomatly, tome li, p. 40, speaking of the consuls in Alexandria, expresses himself thus : " In that city there are consuls, that is to say, great personages ixom among the Franks of different nations ; they are there as hostages ; whenever the nation of any one of them does something hurtful to Islamism, the con- sul is called to account." This explains why it is that the old capitula- tions declare that in case of the failure of a foreigner, the ambassadors and consuls are not to be held responsible unless they have previously become bound in writing. ^See the treaty of the United States with Tunis of 1797, Article 18; and many other capitulations.) But, in Europe, things changed greatly from and after the sixteenth century. The science and practice of the law of nations made immense progress; respect for treaties and diplomatic conventions grew apace; the rivalries and jealousies till then existing between the nations of Europe diminished accordingly; and, at last, towards the middle of the seventeenth century, the system of permanent ministers and ambassa- dors at foreign courts came in vogue. (Kliiber, Droit des Gem., tome i, § 2, Tit. 2, a, 177, note 6.) All these circumstances necessarily modi- fled the consular institution as established during the middle ages; there Was no longer any need that it should continue to be clothed with all the privileges and prerogatives thitherto bestowed upon it for the security of commerce. Trade found protection enough either in the improved organization of judicial institutions, or under the care and tutelage of permanent ambassadors; and as soon as the monarchical power had been consolidated, and when once the rights and preroga- tives of sovereignty had become determined, the withholding of foreign- ers from territorial jurisdiction had to be considered as a usurpation or abridgment of the freedom and independence of the territorial sover- eignty itself. In short, it may be said that, owing to the progress of political institutions in Europe, there was no longer any need there but to provide for the local interests of foreign trade by the sending of agents intrusted with the defense of those interests before the inferior authorities of the land. Hence, the institution of consular judges, as * Peter Abbott, British consul at Beyrout, and my mother's father, had at one time to make his escape from that city by night and take refuge in a small sailing vessel going to Cyprus, because Abd-AUah-Pacha, of Acre, had taken offense at something and sought his life. My grandmother (his wife), and my aunt and mother, then young girls of about eight and six years, had, at about sunset of that night, gone secretly on board, taking with them nothing but a tiny bag containing a few linen under- clothes for the two tender-aged children. 36 CAPITULATIONS OF THE OTTOMAN EMPIRE. it existed daring the middle ages, could be very well done away with in Europe ; and in point of fact it was done away with by the complete transformation of the functions of the ancient consuls, who became simple agents invested with a few police powers over their fellow- citizens, and charged with only helping them in the furtherance of their commercial interests in those countries to which they were sent. Consuls in Europe have lost all civil and criminal jurisdiction, which is exclusively reserved to the local authorities ; nothing is left to them but a voluntary jurisdiction, and even this is refused them in some states. They have thus lost the most important of their attributes, and with it the high esteem in which they were held. From the eminent position of judges, chiefs, and protectors of their fellow-citizens, and representatives of their governments, they have passed over to the far lower rank of secondary agents and been deprived of the privileges that belong to public ministers. (See Kent's Law of Nations, tenth edition, lecture 2, pp 50 to 56, and note 6 on page 56, and Miltitz Manuel des Consuls, tome 2, Part 2, page 150.) B. W. Konig, on page 3 of the 2d edition of "Prussia's Consular Eegu- lation," Berlin, 1866, says : Although the title of consul was hardly given before the eleventh century to tho8» functionaries who now universally bear it, yet institutions similar to consulates ex- isted earlier than then. As soon as a nation began to push its trade beyond the con- fines of its own territory, the necessity arose for affording certain guaranties to this for- eign trade. An essential safeguard was early found in the placing of such citizens of a state as traded in foreign countries under the jurisdiction of special judges. Thus, as early as the sixth century before Christ, the Greeks had their own magistrates in one of the seaports of Egypt. Like the consulates of later times, and out of the same necessity, there arose in ancient Greece the institution of the irpo^evoL whose business was to protect strangers ; the office of the Roman prwtor peregrinua who decided extra ordinem the suits of strangers ; and the telonarii mentioned in the leges Visigothorum, who judged the iiegotiatores transmarini according to special laws. Still it is true that the modern consular system cannot be directly traced back to any of those old insti- tutions. Consular establishments, in the modern acceptance of the terui, were first developed in the Levant. During the crusades the Frankish princes allowed those sea- faring cities and nations that helped them in their conquests throughout Syria by furnishing transport- vessels, provisions, &c., to establish mercantile corporations in the conquered seaports. The largest privileges were granted to these colonies ; among others, the right of settling the disputes of their own members according to their home laws by judges, called consuls, of their own election. With the growtn of the trading colonies, these consuls came to be held in high esteem ; they not only became the heads of the colony but were looked upon by the local government as the representatives of their nation. When the power of Christianity in the Orient fell the status of consuls had to be fixed anew by treaties with the Moslem rulers. Under the protection of these treaties, called capitulations, the consular institution has since the thirteenth and fourteenth centuries acquired a fresh development. The consulates established in Christian Europe since the thirteenth century, or per- haps even earlier, have never acquired such a wide range as in the Orient. Neverthe- less, in the beginning, consuls had a limited jurisdiction over their fellow countrymen ; it was for them to see to the preservation of acquired privileges, and watch over the use of home weights, measures, and coins. In the later system of European States, such an exterritorial institution appeared inadmissible. The governments everywhere tried to withdraw from foreigners tbe right of exemption from the local jurisdiction, and subject them to the laws of the land. The result ot this tendency was that the consul lost the right of jurisdiction, and by the establishment of permanent embassies they also lost their representative character. They became, what they now are, functionaries abroad appointed by a state to watch over and further the mercantile and marine interests of its citizens and subjects. The institution of consulates has in part preserved its early extension only in the Orient, and in other non-Christian States, where the representative character of con- suls and their rights of jurisdiction have been kept up by special treaty stipulations. But the same transformation that consulates underwent throughout Christendom could not be effected in Moslem countries. In the latter the primitive conditions that rendered necessary such a consular system as CAPITULATIONS OF THE OTTOMAN EMPIRE. 37 that described above, continued even after the sixteenth century. In- deed, after that epoch it appears that the position of foreign merchants in the Ottoman Empire became much worse, for, as has been already seen, many of the capitulations with the Porte were madie not before but after that period, and they are replete with precautions, even more than theretofore. Such precautions, which might at first sight seem timid and useless, were far more the fruits of a sad experience that demonstrated how, in those days, foreign merchants could enjoy no security in Moslem countries. Even in the capitulations of the last century the European powers got the Sultans to promise that the merchants shall not be forced to buy or sell against their will; that they shall be protected agaiust the vexations of the "customers,'" and, the rapacity of the governors and other employes; and lastly, that it shall not be permitted to take away "by force from their war or merchant ships neither their launches nor their seamen. (See French Capitulations of 1740, articles 21 and 79 ; see also United States with Morocco of 1787, article 17 and article 19.) Furthermore, owing to the frequent revolutions of the Seraglio, the treaties stipulated with one Sultan were not respected by his successors, and had to be continually renewed or confirmed,* by which system, however, the Porte was the gainer, inasmuch as on the occasion of every reconfirmation of the capitulations the usual presents and regalia flowed in — a propitious occasion for many functionaries to feather their own nests. In the English Capitulations every time that their renewal or exten- sion is referred to it is clearly said that the English ambassador had brought presents which had been accepted by the Sultan. Thus, in those granted to Queen Elizabeth, it is said: "And the Queen of the above- mentioned kingdom having heretofore also sent a noble personage with presents to this victorious Porte, which is the refuge and retreat of the kings of the world, the most exalted place, and the asylum of the em- peror of the universe, which gifts were graciously accepted," &c. And in the capitulations with James I: "James, King of England, sent an ambassador with letters and presents, which were accepted," &c. In those of 1619: "After which another ambassador arrived from the said Queen with gifts and presents sent by her, which being graciously accepted," &c.t To all the foregoing considerations it must be added that judicial institutions had in no wise progressed throughout the Ottoman Empire; that no commercial legislation existed in Moslem countries, much less a mode of legal procedure adapted to the wants of commerce; and, lastly, that there were absolutely no Eastern law-doctors who had turned their attention to the study of foreign laws, or who recognized the existence of private international right. Commercial law is unknown to Moslem jur- ists, who in their law treatises deal promiscuously with every judicial sub- ject-matter ; for them everything is purely and simply civil law. More- over, they deal slightly or not at all with commercial matters, and do not * An interesting resumS of palace revolutions at Constantinople is to be found in Blanchard Jerrold's "Egypt under Ismail Pasha," London; Samuel Tinsley & Co., 1879, pp. 39 and f. f. In the " Charte Turque," a work on the religious, civil, and military organization of the Ottoman Empire, by M. Grassi, Paris, 1825, 2 vols., pages 248 to 284, some of the palace revolutions are related, namely, the condemnation of Othman II, in the year 1622 ; the condemnation of Sultan Ibrahim, in 1648 ; the depo- sition of Mohammed IV; and the revolution brought about in 1730 by the Albanian janissary, Patrona Cadil, which ended in the deposition of Ahmad III. t In article 33 of the English Capitulations, the ambassadors of the Queen of England and King of France are mentioned as " having, both of them, presented memorials to our Imperial Stirrup. 38 CAPITULATIONS OF THE OTTOMAN EMPIRE. recognize some of the most vital commercial institutions, such as bills of exchange (Miltitz Addenda); nor do they even mention maritime law. So that the Ottoman Porte had to make an extract of the French Lom- mercialCode when, in 1850, and again in 1860, it wished to furnish the Empire with a commercial code.* But a knowledge of foreign laws and the application of privateinternational law is an indispensable condition for the extension over foreigners of the territorial jurisdiction of local tribunals: without this condition, occasion would be given for grave wrongings and shocking injustice. (Fcelix, Droit International Prive, § 11-) To introduce any innovation in the juridical position of foreigners re- siding in the Levant was therefore impossible, if their commerce was to enjoy that protection which was necessary to insure its existence. Thus it was that in Moslem countries consuls retained in full all their ancient rights and prerogatives, one of which is that of having civil and commercial jurisdiction over their fellow-countrymen, and that the com- plete independence of the latter from all territorial jurisdiction was iept up. . But if what has been thus far set forth accounts for the privilege ot exemption of Franks from Ottoman territorial jurisdiction, and for the continuance of this privilege up to recent times, it nevertheless does not fully explain why the same is even nowadays still kept up, nor does it enable one to foresee how much longer this exemption is to last. Indeed, many of the reasons that gave rise to it subsist no longer, since the Porte has entered into the political concert of Europe, and for- mally acknowledged, if not always practically adopted, the fundamental principles of European international law. It no more offlcia,lly con- siders non-Moslem people as its perpetual enemies, but admits that lasting treaties of peace, which are observed by it, can be entered into with them. It does not forbid the entrance and residence of foreigners in the Ottoman Empire, nor does it subject them to exceptional tolls and imposts. It has solemnly proclaimed that every foreigner can freely trade and can even acquire landed estate t within its dominions. It has recognized the system of permanent embassies, not only admitting them near itself, but also establishing them near the chief courts of Christen- dom. It has proclaimed the equality, in the eye of the law, as estab- lished by imperial ordinances, of all its subjects to whatever religion they belong. Lastly, it has adopted European commercial and maritime law, which has been published in the Empire and is applied in tribunals of commerce that are organized after thepattern of European procedure^ The time would therefore seem to be at hand for subjecting the Capit- ulations to examination, and for abolishing the privileges of jurisdiction over their fellow-citizens which is accorded to ministers and consuls throughout the Ottoman Empire. As has been already observed, all the other provisions of the Capitulations, saving this one of jurisdiction, do not constitute real privileges, but are rather so many admissions of many *See note (6), p. 275, part first of "Legislation Ottomane," Constantinople, 1H73. tWitli the exception of the province of Hadj4z, in Arabia ; see law conceding to foreigners the right of holding real property in the Ottoman Empire, published 10th June, 1867—7 Safar, 12^4, art. 1. In Appendix No. X to this report -will be found an English translation of the circu- lar of June 29, 1870, addressed by the Sublime Porte to the chiefs of legation of those powers who had up to that date adhered to the protocol concerning the change of title deeds, &c. t See the " Code de Comaerce Ottoman " by Th. Piat, Beirftt,1876-1293. This work has the special merit of being a commentary upon the code in two languages, Arabia and French, and as such is very useful. CAPITULATIONS OF THE OTTOMAN EMPIRE. 39 principles of the public international law of Christendom, that has been at last recognized and ostensibly adopted by the Porte. So much is this so thatthese concessions are now for the mostpart a deadletter, and are to be looked upon rather as an historic monument of bygone days than as clauses of practical utility. For all this, Christendom has not as yet seen its way clear to consent to giving up this privilege of jurisdiction, ilefer- ence has already been made above to the initiative taken on this head by the Ottoman ambassador at the Paris Congress of 1856, and of the fate of his proposition. More recently still Christendom has with one voice in- sisted upon the maintenance of the ancient privileges, that is, at the time of the commercial treaties stipulated with the Porte, for in those of 1861 and 1862, it is said in article 1 that " all rights, privileges, and immunities which have been conferred on the subjects and ships of by the capitulations and by the previous treaties are confirmed,'^ &c. And still later yet in the protocol relating to the law conceding to for- eigners the right to hold real property in the Ottoman dominions, all former treaties are upheld. If it is wished to seek out the reasons therefor, we believe that they cannot be found but in this, namely, that the legislation in force through- out the Ottoman Empire is still in need of notable ameliorations ; * that * With regard to Ottoman legislation it is indispensable to bear in mind the funda- mental distinction that exists between the law, properly and truly so called, that is, the Moslem Shara, and the ordinances of the sovereign which constitute the eanoun or Tamim. In point of fact all true Moslems believe that there is for them but one law only, and that It is unchangeable, namely, the religious law, the Shara Sharif, that is found written in the Koran and in the Moslem traditions {Sunnah), and that also con- tains all private law. The sovereign, they consider, cannot make the slightest alter- ation in this law, and has, therefore, strictly speaking, no legislative power. It is true that Moslem jurists hold that the sovereign has full legislative power, but only as to that which is not already regulated by the religions law and is not contrary to it. He can at most interpret this law, and even herein he is not free, but must have recourse to the opinion of the law doctors, i. e., the Mvftia (whose chief is the Sheileh- ul-Isldm of Constantinople), and obtain their decision oifatwa. This is the reason why Moslem law has hitherto made no progress. And if of late years attempts have been made to improve it, they have met with very great obstacles, so that it may be said that the new principles established by recent imperial ordinances have not penetrated into the habits and convictions of the nation. The new constitutions of the Ottoman Empire contained in the Hatt Sharif of 1839, in the Hatt Hamayoun of 1856, and in the constitution of 1876 were not promulgated until they had been sanctioned, so to speak, by thefatwas (opinions) of the Sheik-ul-Islam, who declared that the principles therein contained were in conformity with the Shara Sharif, or holy law ; but in point of fact they are .not in conformity with it, and they can therefore be considered as an attempt made by the later sovereigns to modify and correct, under the pressure of Christian Europe, the Moslem law in its most impracticable and intolerant points. Hence these sovereign edicts have been but little respected ; they are regarded by the majority of Moslem law doctors and good Mohammedans as a violation of the Shara, and the religious tribunals, i. e., the Mehkemehs, presided over by the Gadia, do not in any way respect or observe them. In order, however, to avoid the question of this conflict between the ordinances of the sovereign and the principles of the Moslem law, the Arab Moslem law doctors have recourse to this explanation, namely, that the Sul- tan, in his character as commander of the faithful, and in view of the weakness of the Moslem power, has deemed it proper, in the interests of Islam, to conciliate for a time the inevitable pretensions of Europe by decreeing these various changes which, ema- nating as they do from the actual head of the Moslem nation, are not to be directly opposed by good Moslems, for, so soon as the circumstances that have forced them upon him shall have changed, he will, for the good of Islam, cancel them. Thus, for example, after the Porte entered into the political concert of Europe it had to adopt the commercial legislation of Europe, there being in the Moslem law no traces of such a legislation, and in so doing it copied, almost literally, the French code of commerce. But in adopting it the Sultan could not have recourse to the Ulamas for their sanction, because neither in the Koran nor in the traditional sayings of the prophet could be found any of the principles of European commercial law, and as far as is known the Sultan did not apply to these doctors, but simply published the commercial code motu propria, by exercising his autocratic power. Nor was it possible to intrust the Meh- 40 CAPITULATIONS OF THE OTTOMAN EMPIRE. iilie judiciary institutions of the empire have not yet reached such a de- :gree of perfection as to furnish sufficient guarantees to the foreigner of a good and complete administration of justice, and that a full system of territorial jurisdiction is at present incompatible -with the backward state of the civilization, both moral, religious, social, and intellectual, of the country, and would be hazardous in the present critical state of the Ottoman Government. In order to extend the jurisdiction of local tribunals over the for- eigners that are within a state, the concurrence of the following condi- tions seems to us to be requisite : let. That the legislation in force within the country be such as is not too far removed from the legislation which the foreigner is in his own country subjected to. 2d. That such legislation admit of being easily known, so that the foreigner may be enabled to adapt his own actions to it. 3d. That the tribunals intrusted witli the application of the law be such as to inspire the foreigner with full confidence in them, not only as to their knowledge, but also as to their moral fitness. 4th. That the social, religious, and intellectual education of at least the judicial and governmental hierarchy be such as to exclude the prev- alence of religious hatred over all considerations of right and justice. 5th. And that the political organization of the state possess such a •degree of stability as to warrant a reasonable prospect of its permanence. AH these conditions existed long ago in Christian Europe, and there- Jcemehs (law courts) with the application of this code, for the Cadi (jmlge) would not ^nd could not recognize it as law. If asked to recognize a commercial society as a jaridic entity capable of holding property, and requested, therefore, to inscribe a louse or parcel of land iu the name of such a society, he would reply that the Shara ^oes not recognize such a corptration, and that notwithstanding the commercial code ipublished by the Sultan he could not do it. Still less woi:(ld he render judgment for "jpayment of legal interest, which, though authorized not only by that code, but also fty other imperial ordinances, is strictly forbidden by the S.kara. In order, tlmrefore,- to be able to apply the commercial code, the Porte had to institute suitable ti ibunals Sn which the religious element does not enter, and intrust them with its application. ISo other tribunals than these were adapted to the requirements of the case. The same thing had to be done in civil matters in order to bring about the apjilica- tion of the imperial ordinances that bear upon civil affairs. Councils ormerijiliseii were •established in the chief places of each proyince, to which was intrusted the admiuis- i^ration of justice in conformity with the new ordinances. Without this the latter "would have ever remained a dead letter. All this shows the immense difference ex- isting between the real and true law, the Shara and the law of tl'e sovereign called the eanoun or Nizam-namah, It may be said that in Moslem countries there exist two legislators and two judiciary orders differing totally one from the other, that is to say, the true legislator Mohammed, who can be neither corrected nor opposed, and who imposes his authority by a moral force that has prodigious weight with the Moslem ;^eople, and the political legislator, namely, the Sultan, who imposes his authority !by material force; the religious judiciary order, the only one allowed by the real and true law, namely, the Mehkemek, composed of the law doctors or Ulama, which recog- mizes aufi applies nothing but the Shara, and the civil judiciary order, namely, the civil Medjilises and tribunals of commerce instituted by the Sultans, which apply the can- •oum and Kimm-nameha, i. e., the imperial ordinances. In view of these considerations regarding the judiciary and legislative condition of Moslem countries, it is held by anany that nothing but the heavy pressure of external political circumstances has conditions of land tenure by foreigners in Turkey, and which had been up to that time supposed to be restricted by the principles of Moslem jurisprudence, according to which the non-Moslem land-holder must pay the kharadj and become a tributary subject, it becomes necessary to notice briefly the action of the Bey of Tunis, who, so far as I am aware, was among the first of Moslem rulers to formally and officially allow aliens to hold property in a Moslem country. Such a digression from the main subject under discussion is all the more admissible when it is remembered that the Barbary regency or semi-independent Beylik of Tu- nis forms an " integral part" of the Sultan's dominions, a fact with which American diplomacy is acquainted, seeing that the treaty of August, 1797, between the United States and the " Kingdom " of Tunis was con- cluded '■'■under the auspices'''' of the Sultan of Turkey, Selim Kan. Yielding to that irresistible tide of events which has, during this cen- CAPITULATIONS OP THE OTTOMAN EMPIEB. 55 tury, carried the influence of the Christian nations of Europe across the Mediterranean and Black seas into every part of the Moslem countries bordering on these waters, from Trebizond to Tangiers, the Bey of Tu- nis had, in 1856, issued a very important order or Bouyourldi to his oflBi- cials, relating especially to the system of laud taxation. But it was not viutil the year 1861 that the pressure of Christendom succeeded in obtaining from him the promulgation of a charter formally guarantee- ing to all his subjects, and to all the residents of his states, of what- ever religion, nationality or race, complete security as to their persons, their goods, and their reputation. This Bouyourldi is for Tunis what the Hatti-Sharif and Haiti- Hamayoun are for Turkey. It is also called ^Ahd-el-Amdn, which name means "the covenant of security"; and this name carries along with it the idea of a solemn covenant, in which the Imam, or Moslem ruler, in the exercise of the authority recognized to him by sacred Moslem law. promises or guarantees, to all non-Moham- meduns dwelling within his dominions, full safety both for their persons, their possessions, and their most sacred sentiments, these hallowed feelings being the words used in the supple language of the Koran for desig- nating a man's bosom consort and his offspring, but more especially those of the female sex ; for, as has been previously shown, the non- Moslem must, according to the sacred law, obtain such a guarantee from the ruler before he can be admitted into the country as one " given security."* Beside liberty of worship, individual freedom, security of persons and property, guarantee of honor, and the establishment of mixed tribunals of commerce, this covenant of safety granted in par- ticular to foreigners the right to hold real estate. Article 12 says : Foreigners, belonging to diiferent governments, who sliall wish to establish them- selves i 11 our states, shall be able to buy all sorts of property, such as houses, gardens, and lands, just the same as the inhabitants of the land, on the condition that they be subject to the regulations [uow] existing, or which may be [hereafter] established, without their being able to withdraw themselves from [the reach of] such regula- tions. There shall not be herein the least difference, as to them, in the regulations of the country. This covenant was made five years after the Hatti- Hamayoun and six years before the Porte had conceded to foreigners the same right. Owing, however, to a rebellion among some of the tribes under his rule, the Bey found it necessary, at or about the year 1863, to suspend the working of the constitution, and so little did its spirit correspond with the backward political feelings and prejudices of the Tunisians that they preferred the return to the old system of direct government and judgment by the Bey, and it has since then been suffered to sleep in oblivion. The matter of the right of foreigners to hold real estate in Tunis had therefore to be regulated anew, which was first done by Great Britain in a special convention on this subject concluded between Eichard Wood, C. B., Her Majesty's agent and consul-general, and the Tunisian Government, drawn up both in Arabic and English, on or about the 10th of October, 1863 (see Hertslet's Commercial Treaties, Vol. XI, page 1118, and for the Arabic text see the fifth volume Mun- tahhabdt-ehJawdih, printed at' Constantinople). The provisions of this convention differ considerably in detail from those of the law and pro- tocol relating to the same kind of subject-matter, and are much more favorable to the European (Englishman) than are those of the latter. But to return to the weary negotiations that had to precede the carry- ing out of the provisions contained in the fourteenth article of the Stil^ tan's Hatt of 1856. * The meaning of the word "mustamen" has been already explained while treat- ing of the spirit and contents of the capitulations. 56 CAPITULATIONS OF THE OTTOMAN EMPIRE. 6. — NEEDS POR MAKING THE LAW AND PROTOCOL. There were two great reasons why the diplomatic representatives of some of the European governments (of France more especially) desired to obtain the formal recognition of this light for their fellow-citizens residing in Turkey. First, many foreigners had been in the habit of resorting to the unsafe, though perhaps not strictly illegal practice of getting the title-deeds of the real property they wished to acquire made out at the proper court in the name of an Ottoman subject, and of them- selves holding such title-deeds along with another document, executed generally before the consular authority of the foreigner, in which the person whose name appeared in the title-deed declared that he was not the rightful owner but had only lent Ms name for the purpose of fulfill- ing the formalities to be accomplished before a Moslem court of law, and that his heirs after him had also no right to the property. Others, whose daughters had been born on Ottoman soil, bought the property in the name of these daughters, for a girl born in Turkey would be re- garded, for the purposes of conveyance, by a Moslem law court, as being a subject of the Sultan, and, as such, fully capable of owning real estate. And why iu the names of daughters and not in the names of sons ? Because afterwards, whenever the daughter married the subject of a foreign power, her nationality would follow that of her husband^ whereas if the name of a male, born on Ottoman soil, had been used in the title-deed, the foreign nationality of the man might perhaps thereby become compromised for the future ; and no foreigner residing in Turkey would ever wish to thus tacitly jeopardize the right of any of his offspring to inherit the nationality of the father. These cases of tenures under a borrowed name were most numerous in the cities that had been for generations frequented by foreign merchants, such as Alexandria, Smyrna, Salonica, and Constantinople. The second reason was prospective in character. It was thought that so soon as foreigners could authoritatively, i. e., under the guarantee of an Imperial edict, become land-owners in Turkey, many would buy farms, forest-lands, and mining regions, and thus introduce European energy, enterprise, and capital for the development of the latent but long-neg- lected riches of this vast empire, and that if such an impetus could be given to agricultural pursuits it would surely have, as its indirect result, a great improvement of the shattered condition of the Ottoman treasury, and would thus constitute one of the strongest means for restoring the internal solidity of a power whose integrity and independence had been for so long a time maintained only by the mighty efforts of the Western powers in opposition to the contrary designs of the great Eastern power. But there were also two potent reasons why the Porte was most re- luctant to insure to foreigners this additional right : First, the fear of the ultimate consequences of such a liberal measure to the supremacy of the dominant religion and ruling race. The Turkish Government «ould easily govern the Moslem population ; they could also, with but little dififtculty, keep down the progressive tendencies of their feeble and divided Christian subjects. But if once the energetic, independent, and aggressive Frank got a sure foothold upon the soil, he would not rest untU he had, with the power of Europe at his baclr, brought about such judicial and administrative changes in the empire as would entirely overthrow the absolute and irresponsible supremacy of the Turanian race, and utterly subvert the ascendency of the Koranic system of juris- prudence in civil matters. If as a merchant, as a mere sojourner toler- ated in the land, the busy Frank had already wrought such great CAPITULATIONS OF THE OTTOMAN EMPIRE. 57 changes in its laws that commercial codes and tribunals had to be sub- stituted for the venerable Moslem law and its courts, and if the public ministers and consuls of the Christian powers were already such a check upon the will and passion of the commander of the faithful and his offi- cers of state that neither he nor they could any longer dispose arbi- trarily and with impunity of the lives and goods of any subject that might have incurred the displeasure of the sovereign or of his ministers, what would not this same innovating and restless Frank do when he became a permanent dweller, having a vital interest in the lasting wel- fare of the state? The experience of the past was to the Sublime Porte an eloquent warning for the future. As an instance of the fear entertained by the thinking class among the Turks at Constantinople in respect to the final consequences of open- ing wide doors of the law for foreigners to become land-holders, Mr. Benoit Brunswik, in his " Etudes Pratiques,* quotes a passage from a native who, under the form of an address to the Grand Vizier on the general subject of reforms, says, among other things, with regard to the law giving aliens the right of real property, as follows : We avow that nothing could transform the face of the Orient more completely thaii such a measure. After a short time there would not be in the capital of Turkey any Turkish houses ; all would be in the hands of the Christians or foreigners. Constan- tinople would be rebuilt ; the Bosphorus would become still more magnificent. ; but in this new city there would be no other Turks than those who would have had to stay there to gain a livelihood by sweeping the streets of their former capital. And on pages 65 and 66 of the same book Mr. Brunswik says, of this apprehension in the Turkish mind, lest the thrift of the Christian sub- jects in contrast with the growing poverty of the Moslems should grad- ually cause real estate to pass from the hands of the latter into the hands of the former, that the Turkish minister "ordered the stopping of the transfer to a Christian of all real property belonging to d Moslem." This order, says Mr. B. Brunswik, " was called law of police or law of dty quarters [wards] ; no one has ever seen the text of this law, and it was able to enter or remain in practice with impunity after the promul- gation of the Hatti Sharif of Gul-Haneh that had granted to every one the fullest liberty to dispose of his property of every kind and nature with- out any one being able to put any obstacle in the way." The second reason had a positive or actual ground in the intricate religious and civil system of land tenure which had been instituted at the very birth of Mohammedanism and had been continued with some alterations by the Ottoman Sultans who had succeeded to the Vicarage or Caliphate of the Prophet of Arabia. 7. — THE FOUNDATION OF THE RIGHT TO EEAL PROPERTY, AS RE- GARDED BY MOSLEM JURISPRUDENCE. As to the foundation of the right of property, Moslem jurists find it in the following verse of the Koran : '' It is God who has created for us all that is upon the earth." They deduce from this that all which is not possessed by others can be taken and occupied by the first comer. And in the Hadith, the traditional sayings of the prophet, it is re- ported thus : " Whosoever has enlivened a dead land becomes the owner thereof." By dead land is meant land abandoned and not cultivated, which mav be taken and revivified by the first occupant, who thereby becomes the proprietor of it. The ownership of real property is termed by Moslem jurists muOc, which means everything that is held m fee- simple and is alienable. 58 CAPITULATIONS OF THE OTTOMAN EMPIEte. The imperial code of 1858, concerning real property, described mulk thus: "JfttZMand is at the entire disposal of the owner; it is trans- mitted by way of inheritance like movable property, and can be sub- jected to all the provisions of the law {Shara), such as the putting of it in ivakf, mortgage, donation, pre-emption, or prior right of neighbor." 8. — KINDS OP OWNERSHIP OF REAL PROPERTY. To go, however, no further back than the year 1858, in which by the command of the Sultan a real property code was promulgated, ground or earth is classed, in Turkey, under five categories, to wit: 1st. Mulk ground, belonging in the most absolute manner to private indi\iduals ; this may be called land held in fee-simple. 2d. Umiriah ground, public domain, state lands. 3d. Mawhufeh ground,4and " stopped,'" held, or dedicated, and not sub- ject to mutation. 4th. MatrouTceh ground, left [i. e., for public use]. 5tli. Moudt ground, i. e., dead or abandoned, which may be designated as no man's land. Mulk lands, that is, private property held in fee simple, are of four kinds : (».) Those that are within the precincts of the village or of the township composed of a number of villages ; (6.) Those that have been taken away from the lands of the state and given as mulk to a certain person in fee-simple in accordance with the prescriptions of Moslem law; (c.) The tithe-paying lands, called 'ushuri [meaning to pay a tenth of the produce as tax], that is to say, those that were divided among the victors at the time of the conquest and were given them in dominium plenum; {d.) The kharadj lands, i. e., those that were at the time of the conquest left and confirmed in the possession of the original non -Moslem population. The kharadj, that is to say, the tribute; of this kind of mulk land is of two kinds : First, kharadj-moucdsan, which is a proportional tax, and can vary, according to the importance of the produce of the soil, from one- tenth to one-half of the yearly yield or crop ; and second, kharadj-muwanisaf, a fixed tax laid directly upon the land and not based upon the yearly produce. Mulk lands belong wholly to the owner, who can convey, divide, and bequeath them, or dedicate them to benevolent objects, or mortgage them. But in these respects, and as regards the rights of pre-emption by the possessor of neighboriug property, this class is subject to the principles of Moslem jurisprudence as administered by the mehkemet, or Moslem law-court. All tithe-paying or tribute-paying land {'ushuri and kharadji) reverts, at the death of the owner without heirs, to the state . domain, the Beit-ul-Mdl, and becomes emirieh land. Only a small pro- portion of the Turkish soil is held in fee-simple. The emirieh lands are subject entirely to the state and to the laws or regulations made by the sovereign, in contradistinction to the pre- cepts of Moslem jurisprudence. These lands are the open country, the camping places and summer and winter resorts [of the sowers and reapers and pasturers on such lands], the forests and other domains, the use and enjoyment of which was formerly farmed out by the government on long leases through the feudatory holders of the so-called timdrs or zia- mets, or, later, sublet by the Pasha lessees or farmers of large dis- tricts. This system was, however, abolished, and the possession of state lands is now acquired by a direct grant or permission from the proper government agent. Those who acquire such lands receive a title-deed of possession called tapou, which bears upon it the imperial crest or em- CAPITULATIONS OF THE OTTOMAN EMPIEE. 59 Mem, called the turra. [Note. — The turra is to be seen on all coins struck by the imperial mint ; it is said to have derived its origin from one of the early Sultans, who, having been requested by his minister to sign an important paper, and not knowing how to write, daubed the palm of his hand with ink and pressed it upon the parchment, thus leaving the impression of the paUn and the five fingers.] This tapou* which resembles somewhat the fiefs held by vassals in the middle ages, is acquired by a payment made in advance in exchange for the right of holding or possessing the property of the state. The holder or lessee receives the title-deed, not from the Moslem law-court, but from that branch of the administrative government which is called the daftar-hanch, i. e., the house of archives where are kept the registers of state lands. Under certain restrictions and conditions .as to the use to be made of the land and the proportion of produce to be given yearly to the state, the holder possesses the usufruct for himself and his heirs. If there be no heirs, the property reverts to the state, which is always considered as the real and perpetual owner. MawTcufeh ground, or wakf, or vakouf, is of two kinds : First, lands which were originally held in fee-simple and have been set apart or dedicated by the fulfillment of the formalities prescribed by the [relig- ions] Moslem law. These lands are subject to the administration of wa^f which exercises all the rights of ownership over them ; they are in no way governed by the regulations or statutes of the imperial govern- ment, but solely in accordance with the prescriptions laid down by the dedicator, or founder, provided they be not contrary to the Moslem law. These prescriptions to be in the form of a last will and testamant, or in the form of a decree of the judge of the Moslem court, given in compliance with the declarations and statements of the owner, i. e., the founder of the wakf, or in the form of an aiithenticated contract executed between the owner and the representative of the mosque or church. Wakf lands cannot be conveyed or bequeathed, cannot be mortgaged or confiscated, nor can the proportion of the revenue due to the state or mosque be increased. [Note — Some maintain that it cannot be taxed by the state ; but this is only true of a certain kind of wakf.] It is once and forever stopped, held, bound up, dedicated. The mosque holds the naked land (or in some cases it is the Christian church). It be- came the holder, partly after the conquest of the country by the Mos- lems, through the division then made according to the prescription of the Koran. It has since become the holder of the greater part by the shelter it affords to the rights of the real owner, or dedicator, against arbitrary confiscation by those in power. This kind of wakf is of three sorts: (a) Lands held by the mosque (or church) without special condi- tions. This is wakf in the narrowest sense of the word ; it pays no tax. In order to derive benefit from this property the mosque (or the Chris- tian church) makes over its rights thereto to private parties by a con- tract for life or during the existence of blood descendants of the lessee, in which it is stipulated that a fixed sum is to be paid once at the time of the cession and a fixed rent is to be paid yearly, which rent shall not be raised. The ceding party agrees, moreover, to the condition that it cannot rescind the contract, [b) Lands originally held in fee simple and made over to the mosque or church, without conditions or restric- tions, by the founder, through the fulfillment of the formalities required by Moslem law. These are leased by the mosque or church like those of sort (a), (c) Lands that -have been set apart or dedicated either by will and testament or by contract, but under t he express condition that * The -word tapou means homage fealty. 60 CAPITULATIONS OF THE OTTOMAN EMPIRE. the dedicator himself and his heirs after him shall always hold the prop- erty in trust for the mosque or church and give it a certain yearly sum or a certain proportion of each year's revenue. Upon the failure of all legal heirs this property reverts entirely to the mosque or chnrch. A large proportion of wakf real estate is of this class, for by thus dedicat- ing it the real owner in point of fact pays to the mosque a premium of insurance against arbitrary confiscation by the political power so long as he lives or his legal heirs after him. The second kind of mawlcufeh lauds are those which, having been sep- arated from the lands of the state, were converted into Wahf, i. e., dedi- cated either by the Sultans or by authorization of the sovereign. But the dedication is considered to consist not in giving away the right of ownership, but only in the application by the government or sovereign of a portion of the revenue to benevolent or religious objects, such as the produce tithe or the rents. The greater part of the Wakf lands in the Ottoman Empire are of this kind. They are governed by the " kan- ouns" or regulations made by the Sublime Porte, and are subject to the Beit-ul-mal, or department of state property. Dedicated lands of all kinds, and state lands of all kinds, whether on short or long leases, that is to say whether they escheat to the state or to the mosque, respectively, at the death of the lessee, at the death of his immediate male or female heir of the first degree, or on the failure of his blood descendants, cannot be altered in their character save by the express permission of the leasing party, state, or mosque, as the case may be ; that is to say, the lessee cannot plant trees, for example, upon bare fields, or build upon open ground, without the required permission. After the permission has been obtained the houses or trees he may have placed upon the land are his as mulk^ w:hile the bare land remains dedi- cated property or state property, as the case may be. iifor should it be forgotten that in the third article of the Hatti-Sama- youn of 1856 it had been declared that " no [legal] injury should be done to the properties, movable or immovable, of the various Christian cler- gies," thus confirming all the wills, deeds, and contracts by which land had been dedicated, according to the requirements of Moslem law, to re- ligious and benevolent Christian institutions and churches. Any min- isters of any sovereign would shrink from grappling with such a knotty question. 9. — OF THE TJSHtTEI LANDS (TITHE-PAYING) AND OF THE KHAEADJI LANDS (TEIBUTB-PAYING). But the above remarks concerning the classification of real property in Turkey afford a very incomplete outline of the subject. There is an- other and a more difflcult side of the question which must be con^dered whenever it is wanted to determine under what category a given parcel of land is to be placed. In Moslem countries there are immense quantities of lands that are held and cultivated undisturbedly by the peasants, who are nevertheless not the absolute owners thereof; and in the Orient, acts have been known to be done by the government that have been deemed simple acts of spoliation and confiscation, but which are not so. The truth is that in Moslem countries the lands belonging to government always were and still are most numerous, and that those held in fee-simple hav(B ever been quite limited in number and extent. In order to be able to determine to what class of property lands in the Levant belong, those Orientalists who have turned their attention to CAPITULATIOjrS OF THE OTTOMAN EMPIRE. 61 this difficult task have betaken themselves to the system of imposts or land taxes according to Moslem law. It was believed that from the nature of the tax laid upon the object one could with certainty find out who is its true owner. The line of argument was as follows : According to the Moslem law, the Shara, veritable taxes cannot be placed upon the property of Moslems ; what is to be paid thereon is th& Ushr, the tithe of the produce, which is considered to be in the nature of Zakat, pious alms, contributed by the owner to the commonwealth of believers as represented by the government, and intended to supply the Beit-ul-Mal or public treasury. This idea of the tenth of the produce,, which is as old as the times of Mohammed, seems to have been taken from the Mosaic books, as are indeed many ot the ideas and moral principles of the Koran. II Multaqa says: "Upon all that the earth produces there is due the TTshr, the tithe." But in dealing with lands not originally belougingto the Moslems, but at some time conquered by force of arms or by capitula- tion, there is to be laid upon such lands a tax different to the tithe and heavier than it, called Kharadj, which does not have the character of a contribution in the nature of pious alms and religious duty, but is a true and proper tribute laid upon the conquered land. ' Hence, the Moslem doctors distinguish two kinds of land, the tithe- paying or ushuriah and the tribute-paying or Tcharadjiah, according t'» the tax laid upon it. It is also held that the nature of such impost has an influence upon the ownership of the land, seeing that it would appear from the Shara that the Tcharadjiah or tributary lands are not in the ownership of the holders, but rather belong to the state, which leaves the enjoyment and usufruct thereof to the holders, in consideration of the payment of the tribute. On the contrary, the tithe lands would belong in absolute fee- simple to the holders. Such is the conclusion arrived at by Worms in his Becherclies sur la constitution de la propriety territorial dans lespays Musulmanes, whose aim in that work is to prove that in all countries conquered by the Moslems there are no private properties, but that aU lands belong to the government; from which he sought to draw the con- clusion that in Algiers the French Government could very well appropri- ate to itself as much land as it wished and despoil the holders thereof. He thus justifies and approves of what Mohammed Ali did in Egypt when he took all the lands from the peasants, whom he reduced to the condi- tion of simple cultivators for account of the state. But it is undoubted, and this even Worms himself admits, that dwelling-houses, gardens, and lands of small culture [kitchen-gardens], although situated in a country subject to the Kharadj (tribute), are under the free and absolute owner- ship of their holders. This is a most important restriction of the rule by him laid down, that every country conquered by force and subjected to the. Kharadji becomes Wal^, and hence cannot be under the true owner- ship of the holders. More than this, II Multaqa says : He [i. e., the Imdm, niler] can leave to their former non-Moslem owners the rural lands situated In the countries that submitted themselves voluntarily or gave them- selves up hy capitulations, or even to those that were reduced by force of arms, by laying upon the properties a tribute, either fixed or proportioned to their yearly pro- duction ; such are the tributary lands (Kharadjiak). ■ Still more clearly is it laid down in the Eidayah, that from the fact of a land being tributary it does not follow by necessary consequence that it does not belong in full ownership to the holder: " Of this coun- try the lands which constitute Arabia proper are ushriah (tithe-paying), 62 CAPITULATIONS OP THE OTTOMAN EMPIRE. and those of the Arabian Irak are Jcharadjiah (tributary). It must nev- ertheless be remarked that the lands of the Irdk are the property of the inhabitants, who can legally sell them and dispose thereof at will, because every time that he [the Imam] subjugates a country by force of arms he is free to reinstate the inhabitants in their possessions, and im- pose upon their territory and upon them the tribute and the capitation, and this having been done, the country continues to be the property of the inhabitants, as has been said above in treating of booty." Greater clearness than this could not be desired for impugning the opinion that, from the circumstance of a parcel of land being kharadji, the conclusion must be drawn that it does not belong to the holder, but rather to the state. Mawardi, Lib. XII, p. 105, expresses himself in the same sense : The capitulation of the second kind carries with it, as a consequence, that they are kept in the ownership of their land, on which they then owe the kkaradj, but this hharadj is subject to the rules and takes the character of the capitation ; they cease to pay it as soon as they embrace Isldm, and their land does not form a part of the Moslem do- main. It is considered as a country of alliance ; they can dispose thereof by sale or mortgage. When it passes over to a Moslem, he is not at all bound to pay the hharaij thereon. And elsewhere he says : The second of the above-mentioned cases is that in which they have stipulated the keeping of their possessions and reservation of their right of ownership to the realty by means of a kharadj that is set thereupon. This kharadj is then nothing else than a djizia {poll-tax, tribute, ransom). They must continue to pay it so long as they re- main in unbelief ; but their conversion to Islam frees them from it. Also the payment of the capitation, properly so called, is not to be asked of them, and they have the right of disposing of their land by sale either among one another or in favor of Moslems. In every case it is moreover admitted by the Moslem Shara that the Imam or ruler (sovereign) can bestow in full ownership the kharadji lands and also the ushr lands in favor of the acquirer or concessionary. Thus the Constantinople official journal, '^Bjaridai ITavadis," cited by B61in in his excellent work on real property, p. 42, says : The Sultan, as administrator of the public domain, can sell and give in m ulk-owuet- ship [fee-simple] such part of themiri-land [state laud] over which no one has a legal right, and this for a low price, after having taken the opinion of the mufti. Finally, a proof of this is afforded in the circumstance that even in countries that were conquered and made tributary there are many wsfeMri-lands and wakfs too, which could not be if the kharadjilanAs, were not in the full possession of the holders, for, in order to be able to found a wakf., it is indispensable that the dedicator have the full and absolute ownership of the thing to be set apart. Hence, instead of the opinion of Worms, that of B(51in is to be pre- ferred, according to which not every land subject to the fc^aratZ/i-tribute is the property of the state. The latter author says that in this respect it is necessary to proceed with discrimination, to see, namely, what hap- pened at the time of the conquest ; since if the lands were then left to their holders with the compact that the latter should pay the tribute whilst remaining mulk proprietors, in such a case the fact of their being kharadjiah does not make it out that they belong to the state. On thie contrary, if at the time of the conquest or capitulation they were de- clared to be inalienable, i. e., national wakf, then they belong ultimately not to the holders but rather to the state. The conclusion to be drawn from the foregoing examination regarding taxes as a means for determining the nature of the lands is as follows: That, besides the dwelling-houses and gardens that always belong to the holder who pays no tax thereon, every land which pays the ush CAPITULATIONS oIf THE OTTOMAN EMPIKE. 63 (tithe) is undoubtedly the absolute property (mullc) of the private indi- vidual possessor; and, further, that the lands subject to the tribute (kharadj) may also be under the absolute ownership of private parties, in which case they do not differ from the tithe-paying lands, save as to the amount of the tax, which is heavier and more variable on the Maradji lands than on the ushuri, which latter is invariable ; but that when it is not proved that the Maradji lands belong to private parties, then in such cases they belong to the state and are called emine/t ; and then the holder has them by way of rent or usufruct; he can neither sell nor mortgage them ; the state can retake them from him, and at the death of the holder they revert without fail to the state, which caH then dis- pose of them as it sees fit. In further confirmation of the above, reference may be here made to what is said by the Mufti Ali MsMdi in his Kitdb elzavaid elaliie, cited by Bain, p. 125, Kote 296 : The land that is occupied or conquered byjthe Lndm from an unbelieving people is to be divided among the ghdnimhi [victors] having a right to the booty. The Imdm gives to each of them the portion of land falling due to him ; it then becomes his nmlk- property and may receive all the forms of conveyance, such as sale, lending, &c. This category is called ushuriah. If the Imdm deals generously with the vanquished, he lays the djieyat upon their persona and the kharadj upon their lands ; then, placing the crowning act upon his benefits, he confirms them in theirmMtt-owuership of these lands, which, like the foregoing, can become the object of conveyance. This second category is called kharadjiak. But if the Imdm wishes these lands to be the mulh- property of no one, they are then considered as wakf set apart for the needs of the warriors and the Moslem commonwealth, but always after the fixing of the kharadj. Out of the amount of this tribute the beit-ul-mal [public treasury] pays to each war- rior the share falling to him. If the Imdm intrusts one of them with the management of a part of these lands under the form of idjdrah muaddjalah [rent paid in advance] called iapou, he receives the kharadj laid upon the land. This third category is called emiriah,. The surface and contents of these lands is in the imperial archives. The Sultan alone can bestow the mwZ/c-ownership of such land. Every act of conveyance relating to them, such as sale, purchase, and mortgage, cannot be valid without the co-operation of the delegate of the sovereign authority. It can therefore be laid down with certainty that the lands held in private mullc [fee simiile] are, according to Moslem shara, composed: I. Of aU lands and houses that are within the towns, communes, and cantons, and also of all lands in the neighborhood of the same to the distance of half a dunum,* and which are considered as the complement of the dwelling. II., Of all the tithe-paying, ushuriah, lands. in. Of those Icharadjiah, tributary lands, that were left under the full ownership of the holders at the time of the conquest, or which were afterwards ceded by the State in free mulk (fee-simple) to private par- ties either by gift or by sale. As for the public domain, the state lands, or emiriah, they consist of all lands possessed directly by the prince ; of those Icharadjiah lands which the government left in usufruct to the holders without giving to the latter the ownership thereof, and which the government has afterwards conceded under a precarious and temporary title in consideration of a yearly rental ; and finally of the national wdkf, that is of those lands constituted wakf to and for the Moslem commonwealth. The quantity of state or emiriah lands has always been very great in Moslem countries, for besides the laud reserved from the begining and at the time of the conquest and granted under precarious titles, there are also the free mulk lands which, in cases of the deathof the owner without heirs, have reverted to the state {beit-ul-mal). And in view of *The dunum is a space of ground that can be plowed by a yoke of oxen in one day; about 900 square meters. — B^Un, p. 140. 64 CAPITULATIONS OF THE OTTOMAN EMPIRE. the immense and continual revolutions that have occurred in Moslem countries it can be easily supposed that such cases have been only too frequent. 10. — DIPLOMATIC ACTION CONCERNING THE FOURTEENTH ARTICLE OF THE HATT-HAMAYO UN OF 1856. Siich a complicated and intricate system of land tenure, and above all the certainty of escheatage, sooner or later, of all dedicated lands or state lands held on short or long leases, was not only a complete bar- rier to the foreigner ; it was also the caruse of neglect, on the part of the native, to improve the property he held under such a precarious teiuire, who, naturally enough, sough to derive from it the greatest possible mo- men tary benefit without regard to the future. And as by far the greater portion of the soil of Turkey belongs not to the class of mulk held in fee simple, but to one or other of the two classes of domain (state) lands or dedicated (wakf) lands, the revenues of the government from the tax on real estate, to say nothing of the wealth of the people, had steadily de- ci'eased. In compliance with the suggestion of Sir Stratford Eedcliffe, already referred to above, there had been inserted in the Hatti-Hamayoun (arti- cles 37 and 38) the following provision : The necessary capital shall he applied to those ohjects which constitute the source of the material wealth of our empire; care shall be taken to afiford true facilities, by opening roads and canals necessary for the transport of the produce of the soil and by doing away with all that might hinder the development of commerce and agriculture. To this end scrupulous attention shall be given to the devising ot means for availing of the science, knowledge, and capital of Europe, and for putting thesame into oper- ation. From all that has been said above about the origin of the Hatti- Hamayoun it appears that notwithstanding the ninth article of the treaty of Paris, in which the powers had solemnly forbidden to them- selves the right of interfering jointly or severally between the Ottoman Government and its subjects, the way remained wide open for those powers to press upon the Porte the necessity of converting into a reality all the measures that had been recommended to it, and which it had accepted and embodied in that great charter, among which those for simplifying the system of land tenure and insuring its permanency, were most calculated to consolidate the financial independence and in- tegrity of the empire, by giving an impetus to agriculture and offering an inducement to the enterprise and capital of Europe. Prom 1856 to 1863 a number of diplomatic notes were exchanged be- tween the representatives of the great European powers near the Sub- lime Porte and the ministers of the Sultan on the subject of giving effect to the provision of article 14 of the Matti-Hamayoun, which promised to secure to foreigners the right of becoming landholders in Turkey. The susbtance of those notes may be summed up thus : * 1st. The ambassadors reminded the Sublime Porte of its promise to accord to foreigners the right to acquire real estate and asked it to ful- fill that promise, to which the latter replied by acknowledging the fact and by stating that it appreciated the advantages to itself that would result from the fulfillment of the promise, but that there were certain preliminary conditions that had been already laid down in the Hatti- Hamayoun, namely, the subjection of foreigners to the territorial juris- diction of the Porte, or in other words the abolition of the capitulations. 2d. The ambassadors replied that the abolition of the capitulations *B. Brunswik's "Studes Pratiques," chap. v. CAPITULATIONS OF THE OTTOMAN EMPIRE. 65 and the entire subjection of foreigners to tlie territorial jurisdiction of the Porte was an idea that could not be entertained so long as the im- perfect institutions of the Porte had not undergone the reformation nec- essary to inspire confidence in a right administration of justice, to which the Porte replied that the multiplicity of jurisdictions, created by the principle of exterritoriality upheld by the capitulations, was the chief obstacle in the way of the introduction of such reforms. 3d. The ambassadors maintained that capitulations did not at all stand in the way of the Porte's bettering its internal administration, to which the Porte replied by citing the protocol of the treaty of Paris of 1856, and the capitulations. 4th. The ambassadors acknowledged that a promise of such abolition had been made, but only in proportion to the reforms that the Porte should introduce into its tribunals, administration, &c. The Porte re- joined that it was the multiplicity of jurisdictions that hindered it from placing all dwellers on Ottoman soil upon the same level of equality. 5th. The ambassadors maintained that the reforms should come first; the Porte declared that to reform was impossible, so long as foreign residents paid less taxes than natives and were amenable to other than territorial tribunals. 6th. The ambassadors invited the Porte to formulate its conditions upon the basis of the letter and spirit of the Haiti- Eamayoun ; the Porte asked for the abolition of the rights of exterritoriality secured by the capitulations in exchange for the right of foreigners to hold real estate. 7th. The ambassadors repeated that there were no rightful grounds for the Porte to require the abolition of the right of exterritoriality, declared themselves ready to make some concessions, and again called upon the Porte to set forth the bases of a common understanding. The Porte replied by proposing first of all the recognition of the principle that foreigners should thenceforth pay the same imposts as Ottoman subjects paid, after which the subject of jurisdiction and of the rights to be granted to foreigners could be discussed, 8th. The ambassadors considered this to be asking too much at the very outset, and asked the Sublime Porte to indicate a more defltnite basis for an arrangement ; the SubUme Porte let the matter rest. Mr. Benoit Brunswik, in his book so often referred to above, reproached the ambassadors for dealing thus with the question. He asks : Why ask the right of property as a favor for foreigners instead of forcing it upon Turkey as a measur^for her own safety ? Are the guaranteeing powers good only for guaranteeing and defending the integrity of the Ottoman Empire, and has Turkey no duty of doing all she can to prevent her own ruin ? In his excitement over what he considers the blundering diplomacy of Pera at that time, he cries out : Since when, then, and by virtue of what theory would this right he so advantageous to Europe ? In giving this form to their demand the Pera diplomats oompromised all, hecause they nourished in the minds of the Turkish ministers the fear of the occupa- tion of Moslem territory by Christians. These ministers must certainly have said to themselves that behind such perseverance and persistence on the part of the diplo- mats in claiming this favor so void of interest, there lay some political afterthought, that, namely, of conquering the country by money; and they fought with all their might against this concession that was asked of them for Europeans. 11.— REAL PROPERTY CODE OF 1858. Before 1856 two reform measures had been proclaimed by the Porte that affected only indirectly the question of real estate. These are, flrst, S. Ex. 3 5 . 66 CAPITULATIONS OF THE OTTOMAN EMPIRE. the Satti-Sharif of April 5, 1855 (17 Eadjah, 1271), concerning the quali- fications to be required of those of the Ulemas, or law doctors, who are to be appointed by the Slieihh-ul-Isldm as naibs, that is, deputy judges of the first, second, third, fotirth, and fifth classes, to the various courts of Moslem law in the provincial capitals and in the other cities and towns of the empire; and, second, the reglement of December 21, 1855 (11 Eabi- ul-Akhir, 1272), for the formalities to be observed in the adjudication (i. e., farming out to private persons) of the collection of all tithes on onchouri lands and of the indirect taxes, such as the customs-duties, the olive-tree tithe, the tax on fisheries, the salt-works, the butcheries, the right of public weighing and measuring, public brokers, the tithe on hay lands, on honey produce, fruit-trees, forests for fuel- wood and char- coal, &c. After the year 1856, the first important step made in the direction of insuring to tenants holding state property on long leases the right of transmission of such property to their heirs is'to be found in the Code for Real Property of the 21st of April, 1858 (7 Eamazan, 1274). That code deal^, however, only with state lands farmed out, rented, or sold under certain stringent conditions and restrictions, or with state lands dedicated by the Sultans; it does not touch the lands held in fee-simple {mullc), nor the lands which, having been originally mulJc, have been dedicated by the original owner for benevolent objects ; for these two classes are subject to the provisions of the holy Moslem law as found in the. treaties on fiqh of Mahommedan law doctors. Furthermore, it abro- gated all the previously existing rules and ordinances referring to the premises preserved in the bureau of the imperial divan, in the state archives, or elsewhere. This code consists of 132 articles. The underlying principle in it con- sists in this, that state lands are once and forever state property, but may be handed over, by means of a peculiar title-deed, called fapou, to private persons for their use and that of their children and parents ; but that if the holder wishes, during his lifetime, to convey it to others or change its character by building upon it, or planting orchards upon it, and the like, a special permission therefor must be obtained from the state. It further requires that, after the male or female children of the holder, his father or mother shall beconsidered next of kin, and shall in- herit gratis the right of holding the property ; but that the other next of kin, wife, husband, brother, sister, half-brother, half-sister, shall pay again the fee for the tapou title-deed. Mines of metals, of saltpetre, emery, coal, or salt, &c,,or stone-quarries, and sulphur mines, discovered upon any such land, belong to the state, and the landholder cannot touch them ; ancient coins or treasures found therein shall be subject to the rules of the holy Moslem jurisprudence. Lastly, article 109 says : The land of the Moslem cannot pass, by inheritance, to his non-Moslem children or non-Moslem father or mother ; in like manner the land of the non-Moslem passes not, hy inheritance, to his Moslem children or Moslem father or mother. The non-Moslem can have no right of tapou over the land of the Moslem, and vice versa. And: Article 110. The land of the Ottoman subject does not pass, by inheritance, to hia children, father, or mother, who are foreign subjects ; the foreign subject can have no tapou right to the land of an Ottoman subject. Such was the law enacted in 1858, two years after the termination of the Crimean war and the proclamation of the Eatti Mamayoun. On the 13th of January, 1859, a reglement was issued concerning the formalities to be observed by the executive authorities in the provinces whenever state lands were to be handed over under the tapou system CAPITULATIONS OF THE OTTOMAN EMPIRE. 67 to individuals, or when the holder of such lands desired to mortgage them, and concerning the final registration of all sales under the tofpou system at the proper bureau in Constantinople. The mode of registra- tion and granting of this kind of deed was further defined and limited by Viztrial instruction under date of February 29, 1860, (7th Shaban, 1276). The printed list of taj)oii lands and deeds to be made out by the central bureau of archives at Constantinople, and the transmission of these deeds to the provincial authorities for delivery to the respective land-holders, were subjected to various provisions made on the 8th of March, 1860 (15 Shaban, 1276). On the 21st of February, 1865 (25 Ramadan, 1281), the minister for state lands that are dedicated to certain benevolent purposes issued an explanatory instruction concerning all the details to be mentioned in the printed tables of property of this class. The underlying principle governing this class is that all property belongs to the state, but that a certain portion of the revenues is set apart for a mosque, for instance, or for the poor in general, or for the two holy cities of Mecca and Medina. On the same day the minister for Wakf, mentioned above, issued another instruction concerning TVa^-lands, the chief provision being that whereas many holders of this class of property could show no instrument warranting their right thereto, they should apply for the proper document and pay the fees for the same. 12. — THE POETE'S financial EMBARRASSMENTS IN THEIR BEARING ON THE LAW AND PROTOCOL. All these laws and regulations had not done much to simplify the mode of land tenure and insure the possession of the soil to the pos- terity of the holder. But ever since 1854 the Porte's finances had been growing worse steadily. In that year and the one following two foreign loans had been contracted : the one under the guaranty of the newly- born sympathy with and popularity of Turkey ; the second under the direct guaranty of England and France to meet the needs of the Cri- mean war. In 1858, the year of the promulgation of the code for real property "(concerning state lands) mentioned above, a loan of £5,000,000 had been raised at London, through Messrs. Dent, Palmer & Co., which was intended for paying off all kinds of paper money, bills, and bonds (caimes, serghis, hawalehs) that had been from time to time emitted by the Porte, but which had no general circulation, and were not accepted abroad. In 1859 a forced contribution within the capital was ordered by the Porte for withdrawing the caim^ (paper money) which circulated at Constantinople only. In 1860 a home loan was decreed in the capital and throughout the provinces, also for the withdrawal of the caimf. How much money these two measures realized, or where it went to, is not known. In 1862 the eaim^ (paper money), circulating in the capital at a great discount, amounted to £10,000,000, and there was due to a number of impatient and clamorous creditors another sum of £8,500,000, to meet which another loan of £8,000,000 was raised in England. Another loan of £6,000,000 was raised in 1863, and still another of £2 000 000 in 1864. By this time the public debt (home and foreign) had grown to such proportion that the interest and funding thereof absorbed in 1865 nearly one-third of the estimated (budget) revenues. In 1865 another loan of £6,000,000 was negotiated through the Credit Mobilier of Paris. , „ ■,. ^ i,- i • „/i Beside these foreign loans, the interest and funding of which rectuired a yearly sum of about 2,873,200 Turkish pounds, there was also what 68 CAPITULATIONS OF THE OTTOMAN EMPIKE. was called the " general debt," upon wliich there was a yearly interest to be provided for of about 1,900,000 Turkish pounds, making in all a sum of about 4,773,200 for the "serutee" of the public debt in the year 3867. Such was the official statement.* But Mr. Brunswik considered that in 1867 the yearly "service" of the public debt absorbed about 150,000,000 francs (about 6,500,000 Turkish pounds) and represented an indebtedness of about 2,000,000,000 francs (90,000,000 Turkish pounds). In thirteen years, from 1854 to 1867, the debt of the State had grown from nothing to about 80,000,000 pounds sterling,! and this too during a period of comparative peace. Previous to that year (on the Ist of July, 1866), when certain coupons were due, the Turkish Government had found itself without the funds necessary to meet its obligations, and had been obliged to proclaim a suspension of payment for three months. As early as July 4, 1861, Lord John Eussell had written to iSir Henry B ul wer. Her Britannic Majesty's ambassador at Constantinople, that to lend money to Turkey would be to pour water into a barrel with a leaky bottom, and that the Sultan should seek to better the state finances by establishing economy, order, energy, and impartial j ustice in an empire whose provinces were of great fertility and were peopled by races distinguished for their industry and commercial genius. This advice was directed to the Sultan Abdul- Aziz, who had only a short time before succeeded his brother Abdul-Madjid. Early in the year 1862 (February 15) the ambassadors of the six signatory powers had addressed a joint note to the Porte on the sub- ject of carrying out the provision of article 14 (or 27 in some versions) of the Eatti-Eamayoun, to which the Porte had replied on the 9th of October, 1862; and late in the same year they had sent to the Porte- their joint rejoinder on the subject. But no result was obtained; the Porte was ready to give to foreigners the right of holding real estate only upon the condition that the capitulations be abolished. I 13. — THE PORTE'S POLITICAL EMBARRASSMENTS IN THEIR BEARING ON THE LAW AND PROTOCOL. Not only had the Porte's finances touched upon bankruptcy, as has been set forth above, but its political condition, both internal and ex- ternal, was equally alarming. In 1858 the massacre of the Europeans at Jedda, the port of el-Medina, on the Red Sea, had forced England to send her war ships and bombard the place. § In 1860, the massacres at Damascus and in Mount Lebanon had led to the occupation of Beyrout and the Lebanon by 5,000 French troops, which were afterward withdrawn only out of the Emperor Napoleon's deference to the urgent representation of Great Britain. In 1866 Jo- seph Bey Karam, a Maronite, had headed an insurrection against Daoud Pasha, the governor of Mount Lebanon. The same year, and that in which Prussia and Austria were engaged in a death struggle for the leadership of the Germanic States, a revolutionary movement arose in * See de Testa's Reoueil, Part 4, p. 212. + Now, in 1880, the Turkish debt amounts to nearly two hundred and twenty millions sterling, and since the year 1875 the Porte has paid nothing thereon, neither interest nor " amortissement." tSee Appendices IX and X in B. Brunswik's "fitudes Pratic[ues sur la Question d'Orient, R^formes et Capitulations," Paris, 1869. § Abdul-Muttalib, then grand shareef of Mecca, and who was at the tune deposed for his supposed encouragement of those massacres, has been quite lately, now in 1880, reappointed by the Sultan to the same ofiice. See the three articles on this subject in the London Mail of April 5, 1880. CAPITULATIONS OF THE OTTOMAN EMPIRE. 69 the Danubian provinces of Wallachia and Moldavia, which led to the deposition of Prince Gouza, who enjoyed the protection of the French Emperor ; and the Porte, apprehending war, had dispatched all its avail- able forces to the Danubian frontier. In that year, also, troubles of a serious nature had broken out in the island of Crete, and in consequence of the excited state of public feeling in Greece (out of sympathy for the Cretans) the Porte had concentrated a force on the northwestern fron- tiers. These troubles came at a time when the credit of the empire was greatly impaired, and its finances in a sad state of confusion. In the volume on foreign affairs of the United States for the year 1866, Part 2, page 250, is to be found a dispatch from our minister at Constantinople, E. Joy Morris, dated July 13, 1866, wherein the honorable minister says: The Turkieli Government, having failed to make provision for the payment of the semi-annual interest on the general debt falling due on this day, has issued the follow- ing notice to the public* The imperial finances are iu great disorder, and unless prospects of general peace shall permit large reductions in military and naval ex-; penditure, I fear the promise made for October will not be redeemed. This failure to sustain its credit in time of peace must have a disastrous effect on the credit of the government. » • » ^ resort to paper money seems to be the last expedient ; the current resources are not sufficient to pay the navy and army, and civil employes, and meet obligations to foreign creditors. 14. — M. DE BOURRifiE, FRENCH AMBASSADOR, AND THE LAW AND PRO- TOCOL. About this time the growing interest of French capitalists in Turkish bonds, and above all the connectiion of the Paris Credit Foncier with the Turkish foreign loan of 1865, had awakened the anxiety of the French Government. On the 22d of February, 1867, the Marquis de Moustier, the French minister of foreign affairs, advised the Porte to adopt in its own interest and in execution, of its engagements toward Europej certain measures which he embodied in a note under that date. Among these measures were the following : VII. The free exercise for foreigners of the right to hold real estate. Vin. Reform of the system of fVakf -lands and the extension of the system of Mulle- lands. IX. Reform in the mode of mortgaging real estate, and the establishment of a mode of transmission of real property that would alford full guarantees of freedom and se- curity, i • J.I, X. The suppression of interdictions that cause the depreciation of property m the hands of the Moslems by hindering them from selling their lands or disposing of them with full freedom like the Christians. The creation of establishments of credit on mortgage-bonds for receiving the price of sales of this kind, and for insuring the re- ismployment of the same, which would thus guarantee the Moslems from the ruin against which it bad been sought to preserve them by false restrictive means. (French Yellow Book for 1867, p. 154.) Hereupon M. de Bourrde, the French ambassador, set to work to effect the realization of what had been provided for in the fourteenth (or twenty-seventh) article of the Hatti-Hamayoun. The results of his efforts are to be found in the law and protocol in question (7 Safar, 1284— June 9 or 10, 1867, and not January 18, as is given in the President's procla- mation of December 16, 1874) ; in the instructions of the Sublime Porte issued some time in. 1867 concerning the tapou lands and tapou title- deeds: in the law of May 21, 1867 (17 Muharram, 1284), relative to the extension of the right of inheritance and restriction of the cases of escheat- age on state lands sold, leased, or dedicated ; and, lastly, in the law of June 10 (or 9), 1867, (Safar, 1284), con cerning the extension of the right * The notice referaed to is the proclamation of suspension of payment of coupons for three months, alluded to on a preceding page. 70 CAPITULATIONS OF THE OTTOMAN EMPIEE. of inheritance and restrict of the cases of escheatage on state lands made WaTcf-lands, but leased on long terms to individuals. It is impossible, within the limits of this section, to enter into the details of these laws. SufQce it to say that the right of inheritance was thereby extended to blood relations and kindred of the seventh and eighth degree, but upon the condition that the holder renew the title and pay a sum equal to 3 per cent., in some cases IJ per cent, of the value of the property, or in still other cases by a payment to the govern- ment of an amount equal to 15 per cent, of the yearly produce to be paid in installments extending over a period of five years. Moreover this extension, under these conditions, was not obligatory, it was only fac- ultative {i. e., optional). The modifications thus made of the code of 1858 only complicated matters. Yery few if any availed themselves of the opportunity to extend the right of inheritance to their kindred of the seventh and eighth degrees, since this could only be done by the additional pay- ments just mentioned. Instead of simplifying, they only complicated the system of land tenure. They were still further modified by regula- tions issued in 1869 and in 1872, but that does not come within the scope of the present section. 15. — SUBSTANCE OP PEOVISIONS ANT) CONDITIONS OF THE LAW AND PROTOCOL. As for the substance of the law and protocol in question, it will be found, first of all, that the object to be attained was the "developing of the prosperity of the country." This has almost entirely failed. With the exception of Egypt, and perhaps of Tunis, where an order of things obtains quite difit'erent to that in the provinces directly governed by the of&cials of the Porte, foreigners have not acquired farms or forests, they have only acquired gardens and dwelling-houses in the large centers of commerce, and only on or near the sea-coast. E'or is this to be wondered at. The tiilflllment of a promise made in the Satti-Hamayoun, 'w'idck' edict had been itself dictated to the Porte by the ambassador of the powers that had saved Turkey from Russia, was first of all made the occasion for demanding of those powers the abrogation of the right of exterritoriality as the condition of the fulfillment of that promise. This having failed, the Porte had withstood all applications until it found itself beset by disorders within and pressing creditors without, until it had been convinced that Europe would lend no more money, and until all the powers, but more particularly France, had pressed upon it the urgency of seeking to realize on the vast but neglected laud of the country. Thus forced to do something, try something new, the Porte, with the co-operation of Mr. de Bourr^e, decreed the laws of 1867, with the im- mediate object in. view of inspiring Europe with. confidence, so as to obtain thereby another loan. The next object in view was to put an end to the difficulties, abuses, and uncertainties that had arisen on the subject of the right of foreign- ers to hold property in the Ottoman Empire. It had been said, and re- peated by many, that, according to Ottoman legislation, strangers com- ing into Turkey were, prior to the final regulation of the matter by the law and protocol, forbidden from possessing real properties therein. It will not be amiss to examine here how tar this view is carried out by the provisions contained in the various sources of Ottoman legislation. And first of all let us see whether the religious law, the Shara, is op- CAPITULATIONS OF THE OTTOMAN EMPIEE. 7l posed to the holding of real property by strangers within Moslem coun- tries. Multaqa-el-Abhur says : If even the term of one montli's sojourn, or more, three months', for instance, had been fixed for him [the stranger] and he exceeds this limit, remains in the country, and there buys apiece of land, he shall he hound to pay the Eharadj for the land, and the djizijdh for his person from the day when he shall have become bound to pay the tribiite of the land. And the " Shar'ai Kabir,'" a work on Moslem jurisprudence, quoted by B61in, in a note to page 115, contains the following: If a mustamen [stranger given security] buy or cultivate a piece of land, either ushuri or leharddj, he is to pay the Kharadj (tribute) for tjjie land and the djizyah for Ms person ; nevertheless, he does not become a zimmi (subject) by the act of purchas- ing the laud, but only by that of cultivating it. The Kharadj of the land carries vrith it, for the owner, that of the person. Finally, al-Hiddyah, one of the most important works on law of the Hanaflte rite, says (book 9, chap. 6, p. 197) : If a stranger under a protection comes into Moslem territory, and there becomes seized of a piece of land subject to tribute, so that the tribute is laid upon him, he becomes zimmi, that is a subject ; for the tribute upon the land is the substitute of the impost upon the person. * ♦ « Still, he does not become zimmi immediately after the acquisition of the ground, nor from when he begins to pay the tribute, since a stranger can acquire land for speculation ; but by his becoming subject to the tribute he subjects himself also to the personal tax for the following year, since, by submitting himself to the tribute, he becomes a zimmi. From these texts of Moslem jurisprudence it clearly appears that the religious law, the Shara, did not absolutely forbid the stranger from ac- quiring immovable property in Moslem countries, but subjected the ac- quirer to the payment of the Tcharadji for the land, and then of the djizyah for his person. These two taxes {Kharadj and Djizyah) having been once abolished by virtue of the Haiti- Sharif oi Gulhaneh of 1839 and the Eatti-Hamayoun of 1856, and all the various religious denominations within the Ottoman Empire having been therein placed on a footing of equality, there would be no difference throughout it, by reason of Ottoman law, between sub- jects and foreigners as to the acquiring of real property. Both the former and the latter could acquire and possess it and would be subjected to the same imposts, as is the case in Europe. Kor can there be found even in the Imperial ordinances, that are anterior to the more recent ones concerning the reforms of the Tanzaniat, any provisions that forbid strangers from acquiring immovable property. And in the preamble to the law of the 7th Safar, 1284, the holding of real property is spoken of as a right exercised by foreigners also, concerning which there had arisen oiUy certain difficulties, abuses, and uncertainties that had to be put an end to. , , , . ' If it is wanted to find prohibitions to foreigners holding real estate in Turkey, they should rather be sought for in the European legislations which forbade Europeans from settling fixedly and permanently in Mos- lem countries, perhaps, out of fear that they would 'definitively abandon their native land, or perhaps, too, out of fear that they would, through intimidation or for some other motives, change their religion. Thus the French ordinance of 1781, title II, art. 26, reads as follows : His Maiesty forbids all his subjects established in the sea-ports of the Levant and Barbary from their there a cquiring any real property other than the houses, ■ vaults, * Herein is seen how the French law itself held that Frenchman could aoctuire houses, stores, &o., and that hence the right of holding real estate in general was not interdicted for them, but only that of lands b ayoud what were necessary for their com- mercial business. 72 CAPITULATIONS OF THE OTTOMAN EMPIRE. .magazines and other property necessary for their lodgings and for their eifects and mer- chandise, under pain of being sent hack to France. Article 28. — His Majesty forbids all his subjects from taking real estate or other objects on farm or lease either from 'the great lord or from the princes of Barbary or their subjects, or from forming part- nerships with the farmer, tenant, or others, under pain of being sent back to France. This prohibition of a European legislation -would seem to prove that the Ottoman legislation did not oppose the acquiring by foreigners of real estate in Turkey. The very existence of such a prohibition goes to show that, as far as regards the local laws, strangers could hold real property. As a matter of fact, throughout much of the Ottoman Empire, and more especially in Egypt, no inconsiderable quantity of real properties belonged, and from a remote period of time belonged, to Europeans. Under the rule of the Mohammed Ali dynasty in Egypt, besides a num- ber of lands given to Europeans, the government itself used to cede many parcels of land to them and stipulate with them the contracts relating thereto, in which contracts their rights of holding property were fully recognized. If, then, it be asked how the opinion came to be formed that in the Ottoman Empire strangers were forbidden from acquiring real estate when the law was not opposed thereto, it is believed that this view arose out of the circumstance that very often obstacles were thrown in the way of foreigners by the governing classes, and more particularly by the subaltern authorities, who, out of fanaticism and hatred to strangers, hindered the appearance of the right name uxjon the public registers. Thus, in the reign of Abbas Pasha, of Egypt, the order was given to the cadis not to issue hudjahs (title-deeds) to Europeans buying houses or lands from the natives, by which, although they continued in the pos- session and enjoyment of their property without any one venturing to molest them, they were yet unable, during the reign of that Pasha, to execute the public contracts with the sellers before the cadis. But these were simple obstacles of fact, arbitrary in their nature and not founded upon the law, and which were not of lasting duration. Eight after the death of Abbas Pasha the government of his successor. Said Pasha, revoked that order, and the title-deeds [hudjahs) were made out for Europeans without difficulty. Perhaps it was by reason of sim- ilar and merely arbitrary facts, and because of a complete ignorance of Moslem laws, that the mistaken opinion took root in Europe that the Ottoman laws denied to foreigners the right of holding real property in Turkey. But these obstacles of mere fact were no longer possible in the presence of the clear disposition. of a provision, Hatti-Hamayoun of 1856, which provides in its fourteenth (or twenty-eighth) article as follows: As the laws that govern the purchase, sale, and possession of real property are com- mon to all Ottoman subjects, it isiikewise permitted for strangers [foreigners] to pos- sess immovable estate by their conforming to the laws of the land, and to the local police regulations, and by their paying the same taxes as the natives ; after, however, ihe arrangements in the premises that shall be come to between my government and the foreign powers. By this article the Ottoman Porte had introduced no new right ; it had only confirmed what previous laws had provided for, and had at the same time hindered the governmental authorities from thereafter laying obstacles in the way of the application of these laws. Indeed, that article did not declare that thenceforth it would be permitted to foreigners to possess real estate, but went no further than enunciating, as an existing rule, the right of foreigners to own immovable property in Turkey : " JZ est Sgalementpermis aux Strangers depossSder des immeubles.^' And this recognized right was only further subordinated to the condi- CAPITULATIONS OF THE OTTOMAN EMPIRE. 73 tions required by the said laws, namely : first, that foreigners should, in the exercise of this right, conform themselves to the laws of the land and to the regulations of the local police ; and second, that they should pay the same taxes as the native, but after that an agreement should be eome to, in relation to such taxes, between the Porte and the powers. The first of these conditions is in harmony with the principles of right and justice, and follows, as a consequence, from the rule admitted by all European legislations that real estate ought to stand entirely under the laws of the country where it is situated. The second condition, relating to taxes, is also quite reasonable. But this condition, in itself so reasonable, infringed upon the literal provisions of the capitulations (see article 21 of the treaty of 1862 cited above), which declare that foreigners shall not pay throughout the Otto- man Empire any other imposts and taxes than those therein mentioned. Thus, in article 63 of the French capitulations of 1740, it is said : The Frencli merchants and others dependent upon France can travel with the pass- ports that they shall have taken * * ' * without that this kind of travelers, keep- ing themselves within the bounds of their duty, shall not be disturbed for the tribute called kharadj, nor for any other impost ; and when, in conformity with the imperial capitulations, they shall have effects subject to customs duties, after the payment of duty thereon, according to usage, the pashas, cadis, and other officials shall not oppose their passage. And still more clearly in the English capitulations, article 13 : All Englishmen or English subjects, married or not married, who shall dwell or re- side in our states, whether they be artisans or merchants, shall be exempt from every Mn4 of iriiuU. The Austrian capitulations of 1718 are in this respect the most explicit of all. Article 5 reads thus : * * * By virture of this benign capitulation the consuls, vice-consuls, interpre- ters, and merchants of his sacred royal csesarean majesty, and all the servants that are actually in their service shall be free and absolved from every tribute or other impost. By virtue, therefore, of the capitulations in force, all foreigners resid- ing in the Ottoman Empire, after having once paid the customs duties on the goods that they imported or exported, were no longer held to the payment of any taxes whatever on their persons or on their possessions, whereas the natives did pay them. This is quite contrary to what is practiced in Christian countries. But how many provisions of Ottoman international law differ from those of European public law ! This is, however, not to be wondered at, seeing that the two are essentially dif- ferent, and are based upon principles altogether unlike, as has been already set forth. Nor is it difficult to find the reason for this dissimilarity in the matter of taxes between European states and Turkey. From the remotest times imposts in Europe have been based upon certain and precise rules, are in no way arbitrary or vexatious, and are intended to supply the needs of the state ; the caprice of governors has almost no influence over them. Hence the European states among one another could have no difficulty in accepting the principle of reciprocity for their subjects going into foreign countries, and could very well adopt the maxim that they should be treated like natives. But matters have gone differently in the Levant, for the reason that it is under Moslem rule. The imposts, whether real or personal, were never fixed in a regular and rational manner. They were always left to the arbitrary will and caprice not exactly of the Sultans, but of the provincial governor. Thus, from the earliest times, the system was fol- lowed of the farming out of the taxes, and so long as there entered into 74 CAPITULATIONS OF THE OTTOMAN EMPIEE. the state treasury the sum required from a province the tax-farmers or tax-gatherers were free to impose any amount they pleased, and there was no check or limit to their greed. Nor could recourse be had to the pro- vincial governor ; he, too, received large sums from the tax-farmers, and joined with them in annoying and vexing the poor and helpless subjects. But things were even worse in the matter of taxes throughout the Ottoman Empire. The imposts were not the same for all subjects. Those of the Moslem religion were exempt from many taxes that weighed most heavily upon the subjects of other religions. The Bayahs, thatis to say the Christians and Israelites, were subjected to such and to so many imposts, both real and personal, as were unbear- able, and this all the more so because the way in which these exactions were effected was both humiliating and degrading. B61in, in his work so often referred to, note 89, page 45, says: "The djizyah was so called because it is a tax paid by the zimmi [non-Moslem] as compensation in exchange for the punishment of death incurred by him by reason of his belief. As soon as the Kafir [unbeliever] accepts to pay the djizyah, he escapes from capital punishment." And on page 111 of the Arabic original of Multaqa-el-Ahhur : "The zimmi, standing upright shall pay the djizyah to the Moslem who receives it sitting down; he shall be seized by the collar and shaken and spoken to thus : ' Pay the djizyah, oh zimmi, oh enemy of God ! ' " But foreigners, whether Christians or Israelites (and all those who came from Europe were such), were bound by Moslem law to put them- selves upon the same footing as non-Moslem subjects or zimmis. They were called Mustamen, i. e., seeking or asking security for their persons; for without a safe conduct the non -Moslem foreigner could not r emain on Moslem ground, any one being free to kill him. ^'Mustamen is the name given to every harbi {hostis) who comes into our country under the protection of the promise of Amdn, i, e., security." And on page 109 of the Arabic text of Multaqa-el-Ahhur: " It is not permitted to the Mvsta- man to remain in our country for a year; and he shall be told: "If thou remainest a year, we will place upon thee the djizyah;'' if then he remains a year he becomes a zimmi and may no more return to his country." The promise of personal security was, therefore, given him only on con- dition of his being treated like the native non-Moslem subjects, or, in other words, that he be subjected to all the taxes, humiliating or vexatious, to which they were subjected. It was Impossible, in the presence of such a state of things, that the powers of Christendom which entered into treaties with the Porte should allow that their subjects or citizens should be subjected to the same im- posts as the natives, and especially to those laid upon non-Moslems, called Rayahs. To have done it would have been to render it impossible for them to approach Moslem territory. Here then is the reason why the capitulations expressly declare that, aside from customs duties, the Euro- peans were to be free from every other tax throughout Turkey. U'or was this reason done away with until about the time of the Cri- mean war, when the tide of public opinion in Europe had set in so strongly against Eussia that the admission of the Ottoman Empire into the family of European states and under the protection of the interna- tional law of Christendom had become an idea so popular as to sweep every other consideration before it. The statesmen of that time, and especially those among them who, through their personal intercourse with the Orient, had become familiar with the naked reality of things, propounded to themselves the question as to whether Turkey, under her then existing organization, was fit to enter, as a co-ordinate mem- CAPITULATIOITS OF THE OTTOMAN EMPIRE, 75 ber, into the concert of civilized nations,* a question to which they could reply m the negative only. What was the good of all the Sul- tanic confirmations of the ecclesiastico-national privileges granted to the Baya. peoples in a state, where all depended upon the whim of a single unknown man, liable to be influenced in a hundred different ways, that IS to say the Sultan, who could, by a new decree, annul all former state enactments'? What was the use of new Firmans and Hatti-Shanfs in tavor of the Christian confessions, when they only kept up the supe- riority and supremacy of the Turkish race, which rested upon the ancient right of conquest over all others ? It is not necessary to speak here of the education or culture of the officials that come from this race who, only a few years after the Crimean war, were capable of the hor- rible massacres of Christians in Damascus and Syria ; that there still lay hiddeu m the Turks so much barbarism as that which came to light during the Syrian massacres, was not dreamt of at the time, not even by their bitterest enemies. What was required to be done at that time was to do away with the civil and political superiority of the Moslem over the Christian, in order, so it was thought, to turn the Turkish state of arbitrary power into one of right, and to thus make it, like the European kingdoms, the true fatherland of all its inhabitants, and ren- der the Sultan's government the object of their common reverence and self-sacrificing love. It was thought that Turkey, thus regenerated and guided by the principles of the most perfect toleration, should not be kept back, and kept out of the European concert, on account of its Mohammedanism that stood side by side with Christianity within the empire. It is here necessary to briefly call attention to the fact that the re- molding of Turkey was not so easy a matter as had been thought, and that disappointments would surely follow upon those sanguine hopes. During their endeavors to induce the Turkish ministers to adopt meas- ures of reform of so radical a nature as to grate with equal harshness against the civil rights as well as the religious prejudicies of the Turks, the ambassadors of the western powers found none of that enthusiastic readiness to meet them half way, which they had considered themselves warranted to expect. They rather became aware that nothing would have been more agreeable to the Ottoman Divan than that, after Kussia had been once driven back within her limits, the old slow and slip-shod internal organization should be suffered to continue. In order to bring into existence that which had been nevertheless already recognized as necessary and indispensable, the diplomats, after ha^^ng lost all hope of making the desired impression by friendly Vords of counsel, found themseh'es at last forced to adopt a tone that was more suited to an angry commander than to an ally. At the beginning of the complica- tions it was undoubtedly the British ambassador who took the lead in the counsel of the Porte ; later, owing to the brilliant display of French power that awakened great admiration in Constantinople, as also every- where else, the representative of the Emperor J^JTapoleon III took the place of the former. It was considered that the most pregnant expression of the subordi- nate and despised status of the Christians in the Turkish body politic was to be found firstly in their legal incapacity to give valid testimony before court against Mohammedans (against one another and against Jews their testimony could be accepted), and secondly in the poll-tax {Ajizyah) due from them, which, according to the old Islamic A'iew, rep- *Article 7 of the Treaty of Paris of March 30, 1856. 76 CAPITULATIONS OF THE OTTOMAN EMPIRE. resented a yearly ransom-money, a slave-like tribute to be paid for the head and life of each individual. It was accordingly against these two points, before all else, that Lord de Eedcliffe directed his attacks, and he succeeded, at least theoreti- cally, in getting the Porte to abolish them. By a decree of March 16, 1854, (17 Djamdd AkUr, 1270), the testimony of Christians in criminal matters, against or in favor of Mohammedans, was declared admissible; and at the same time another decree was issued, according to which, in the provincial capitals, new tribunals, independent of the specific Is- lamic legislation, were to be instituted after th'e pattern of the police court that had been in working at Constantinople since 1847, and hav- ing competency in all cases of offense or transgression, and also in such criminal cases as did not involve capital punishment. The decree that ordained the abolishment of the poll-tax followed over a year later, on the 10th of May, 1855 (22 Shaban, 1271); it had an importance which extended far beyond the immediate object sought to be obtained by it. The tax or tribute here spoken of stamped the per- son held to its payment as a zimmi (a bondsman, a helot), not participat- ing in the right of bearing arms, and, consequently, freed him from the military conscription. It is true that, since the annihilation by the Sul- tan Mahmiid II of the warrior caste of the Janissaries and the intro- duction by him of the military reorganization and of the other reforms which had deprived the soldiers of their prestige as a special class, this prerogative, attached to the ruling Turkish race, of bearing arms, had been changed from an invaluable privilege into an irksome burden ; and that, on the other hand, the ignominious character of the tax paid by the Christian rayahs had been well nigh forgotten. Still the abolition of the difference in rank between the races was to be so effected as to clothe it with the appearance of a gracious gift. And as it was felt that the Moslem population alone could not, in the long run, meet the requirements of the entire state as to military service, it was decided, after long debates, to extend the conscription to the Christians also. The decree of the 10th of May accorded, therefore, to the rayahs, in principle, the duties and prerogatives attaching to the capability of bear- ing arms as soldiers; but it nevertheless established the provision that, at the outset, only a portion of the contingent to be furnished by each Christian nationality should be called out, and that for the remainder of such contingent a war-tax, corresponding with the Maradj, but under the name of Badaldt asko, i. e., military substitutions, should be levied. But the conscription is looked upon throughout all the Ottoman Empire as the greatest misfortuiife that can befall a man in his life as a subject ; and even the Turkish population, although accustomed from the earliest times to warfare and soldier-life, was, only by the iron hand of necessity, brought to the point of submitting to forced levies. But even this could not be expected from the weaklier rayah populations bent upon money- making. Instead of, as had been hoped by Sir Stratford Eedcliffe, their catching with eagerness at the means afforded for their civil and polit- ical emancipation, and going so far even as to requite England with their warm sympathy for its trouble in their cause, they learned with anxiety and horror of the Sultanic decree, and their influential men did all they could to hinder its execution. The Christian races of the empire, Who saw in the Turks the destroyers of their national independence, and who, after the experience of four hundred years, could have no faith in the Porte's honest intention to improve their condition, were not going to pour out their life-blood in the armies of their oppressors. Not less was the displeasure of the Ottomans themselves at this plan of CAPITULATIONS OF THE OTTOMAN EMPIEE. 77 arming the Christians and organizing them into an army. They well knew that their advantage and superiority over the rayahs lay especially in their military organizations ; and it had ever been their political aim to render such an organization impossible for the Christians. Who would guarantee them their supremacy over their European provinces against a well-ordered army of rayahs? Certainly not those powers which Greece had to thank most for its freedom. The Ottoman ministry of those times had to yield to this dissatiefaction ; the levying of rayah recruits was indefinitely postponed ; and there remained of the entire decree nothing but the abolishment, not of the tax on the Christians, but of its old name of hharadj* only ; for it was substituted the military commutation tax (badaldt asJcariah), which is up to this day paid by the non-Moslem subjects of the Sultan, t Aside from the military substitution tax, all Ottoman subjects now pay the same imposts; J the zakat has disappeared. This latter term, which carries with it a religious idea, that, namely, of the accomplish- ment of the religious duty of alms-giving, which could only be accept- able from a believer, has been replaced by a synonymous appellation that can, however, be appUed to all creeds without distinction, the so- called vergni. Under the latter denomination the Moslems pay the ancient Koranic zakat, and the Christians the various imposts that stood in the place of it. The vergni is a sort of income-tax levied upon the supposed fortune of individuals, whether such fortune consists of real, movable, or commercial possessions. § On the other hand the customs duties had been, and still are, fixed at a rate high enough to constitute a contribution, by the foreigners re- siding in Turkey, to the ordinary taxes of the country, which they pay under this form of customs-tax rather than under their various other names. It was owing to the bad methods of taxation obtaining through- out the empire that this system of customs duties had to be resorted to with regard to foreigners and definitely stipulated for in the various capitulations. Until, therefore, the system in force of the exemption of foreigners from all taxation other than customs duties had been altered by a com- mon understanding between the powers and the Porte, it was not possi- ble to subject foreigners owning real property to the payment of the taxes that were laid upon the lands and real estate held by the natives. The abolition of the strictly discriminating taxes upon Christians, i. e,, the Jcharadj and the djizyaJi, having preceded the promulgation of the Hatti-Hamayoun of 1856, as has been shown above, it became possible, nay, even reasonable, for the Porte to declare expressly in that imperial edict that only after a previous understanding with the powers, on the subject of taxation, with a view to the modification of the provisions of the existing capitulations in this respect, and in respect to police laws and regulations, would foreigners be permitted to possess real property in like manner as natives. 'In later times the kharadj and the djizyah have been often confounded. + Rosen, Geschichte der Turkei, Part 2, pp. 233 to 338. t See Hatti-Hamayoun of 1856, Art. 23, and Firman to the Protestants of 1850 ; and although it is true that, with the exception of this military distinction, every other difference, resulting from a difiference of creed, has been formally abolished in Turkey, as regards the collection of taxes, and that non-Moslems are subjected to the same imposts as Moslems, still no amelioration of their condition has been affected thereby iff the system of tax collection itself. The only result has been that ever since then both Moslems and non-Moslems are equally hard pressed by the government. 5 For the reglement concerning the vergni tax of January 27, 15 Eadjab, 1277, see "Legislation Ottomane," Part III, pp. 373 to 377. 78 CAPITULATIONS OF THE OTTOMAN EMPIRE. These conditions received a fuller development in the law of the Porte of the 18th June, 1867, and were made dependent for their applicability to foreigners upon the agreement of the powers to them. Article V of that law says : All foreigners shall enjoy the privileges of the present law as soon as the powers on which they depend shall agree to the arrangements proposed by the Sublime Porte for the exercise of the right to hold real estate. The powers have agreed to t>he arrangements proposed in this respect, and the consequence is that, according to the law in question, foreigners, holders of real estate in Turkey, are directly and solely amenable to Ot- toman civil tribunals in all matters relating to landed property through- out the empire, and are able to avail themselves of their personal nation- ality only as to the reserve of the immunities attached to their persons and their movable goods according to the treaties. In other words they are, as to their persons and effects, still foreigners; but as to their real property they are as though they were Ottoman subjects. Without entering into the minor details of the provisions contained in the other four articles of that law, I shall close this section by briefly noticing the contents of the protocol which constitutes the agreement of the powers to the provisions of the law itself. Whatever fault may be found with the form in which some of the powers have agreed to this protocol — for in some cases the governments concerned did not consult their Chambers or Parliaments on the subject, but were content with simply authorizing their ambassadors to adhere to those two documents that affect so greatly the provisions of all pre- ceding treaties* — no such reproach can be made as to the United States. The preamble to the President's proclamation of the 29th October, 1874, refers to the section of the act of Congress, approved March 23, 1874, which invests him with the necessary authority in regard to this and a like matter. The protocol declares that foreigners, who may become owners of real estate, will continue to be protected in their persons and movable prop- erty by the treaties, and that the immunities specified by the treaties are not interfered with by the law which grants to foreigners the right of holding real property in Turkey. It also defines, most clearly, the residence of the foreigner, and declares it to be inviolable, in conformity with the treaties, and not to be entered by the Ottoman agents of the public force without the assistance of the consul, or of the delegate of the consul, of the power on which the foreigner depends. Some have held that this definition of the residence has greatly limited the appli- cation of the principle of inviolability of domicile as contained in the treaties, since by the latter the domicile covered the counting-house, store, workshop, and in general the business place of the foreigner, as well as his dwelling place, whereas it is now narrowed down to the house of inhabitation and its dependencies. The protocol then makes an exception to the inviolability of the for- eigner's residence, by the agents of the public force, without consular assistance, for localities in which the residence is distant more than nine hours' joui ney t from the residence of the consul. , This exception is, how- ever, hedged in by specifications of the cause for which the residence may be~ entered, and by a number of safeguards, precaittions, and fprmaUties, that are to be observed by the Ottoman agents of the public *B. Brunswik's "Eeforms et Capitulations," 240 to 248. t Nine hours' journey means, throughout Turkey, a distance that can be traversed during that space- of time by a horseman riding as fast as the horse can walk; that is to say, between 3 and 4 miles an hour, according to the good or bad state of the road. CAPITULATIONS OF THE OTTOMAN EMPIRE. 79 force before they can enter, unaccompanied by the consul, the distant residence of a foreigner. The safest course for the foreigner to take is to reside always within the mne-hour limit, never beyond it, and this not only to preclude the possibility of his residence being entered by the local authorities with- out the presence of the consul, but also in order that he may not in his own person and personal effects become amenable to the local courts in the manner provided for by the tenth, eleventh, and twelfth paragraphs of the protocol. According to the first of these three paragraphs, it is provided that in localities more distant than nine hours' travel from the residence of the consular officer, in which the law of the judicial organi- zation of the Vilayats (provinces governed by a governor-general), may be in force, foreigners shall be tried without the assistance of the con- sular delegate, by the council of elders fulfilling the functions of justice of the peace, and by the tribunal of the canton {Eaza), as well for ac- tions not exceeding 1,000 piasters, as for offenses entailing a fine of 500 piasters only at the maximum. This is perhaps the provision that derogates most of any from the immunities enjoyed by foreigners under the treaties. Whilst by the other conditions of the law and protocol, the foreigners' real property is left, where it can alone be left, entirely under the laws of the land, and constitutes^ in its very nature, a kind of pos- session not included in or contemplated by the treaties, and whilst the domicile or residence of the foreigner is limited within bounds that are, perhaps, narrower than those secured by the treaties, and is subjected, as to its inviolability, to the further restriction that it be not over a given distance from the consular residence, by this tfenth provision it is the very person and personal or movable effects of the foreigner him- self that are, in certain civil and criminal cases, placed under the direct or immediate jurisdiction of the local tribunals, without the right in such cases, of securing the presence of the consul or his delegate * on the trial. These derogations are for civil actions not exceeding 1,000 piasters, and for offenses (minor crimes) entailing a maximum fine of 600 pias- ters, both the civil and the criminal cases, however, being such as are in localities where the foreigner is removed more than nine hours' travel from the residence of a consular officer or agent. It is not necessary after all that has been said in the preceding pages to point out how much these provisions derogate from the civil and criminal immunities of foreigners as secured by the treaties. M. de Bourr^e in his cii'cular considers that all or any of the derogations con- tained in the law and protocol apply only to such foreigners as become real-estate holders and to no others. Others doubt whether his view is carried out by the text of the two documents. The penal code of the Ottoman Empire, which would be applicable to the criminal cases cov- ered by these provisions is to be found in " Legislation Ottomane," Part II, pp. 212 to 273 ; and bears date, 28 Zil-Hicljah, 1274, (August 9, 1868.) The law of the judicial organization of the Vilayats referred to in the provisions here treated of is that of 1867, and is to be found in Part II of " Legislation Ottomane," pp. 273 to 289. It is not possible within the limits of this report to enter into the wide subjects of Ottoman penal and civil law, and the administration of justice in Ottoman tribunals. Those who desire to pursue the subject and learn how the law of 1867 concerning the tribunals of the Vilayats (provinces) originated, and something of its workings, will find a verj' clear analysis of its contents, * By delegate M. Bounce would seem to understand the consular dragoman or interpreter. 80 CAPITULATIONS OF THE OTTOMAN EMPIEE. and a most instructive resume of the reports of British consuls on its working, in Mr. B. Brunswik's "Etudes Pratiques sur la Question d'Orient, E6formes et Capitulations," chap. iv. That law was intended to be the carrying out or realization of the thirteenth paragraph of the Hatti-Hamayoun of 1856, which is worded thus : A reform shall be proceeded with in the composition of the i^rovincial and commu- nal councils for guaranteeing the sincerity of the choice of the delegates of the Mos- lem, Christian, and other communities, and the liberty of votes in the councils. My Sublime Porte will deliberate as to the employment of the most efficacious means of knowing exactly and controlling the results of the deliberations and of the decisions arrived at. Passing over the remaining paragraphs of the protocol, I conclude this report by giving an English translation of the 16. — CIRCULAR relative to the right of holding real estate conceded to foreigners by the Sublime Porte, addressed, under date of August 17, 1868, by the ambassador of France at Constantinople to the consuls, vice-consuls, and consular agents of France in Turkey : Sir : On the 19th of June last I signed, by order of his excellency the minister of foreign affairs, the protocol opened for such powers as might wish to cause their cit- izens to enjoy the benefits of the law according to foreigners the right of holding real property. The ratifications of this act having just been exchanged, the sftipulations of the law and of the protocol are henceforth applicable to the subjects of the Emperor, The importance of these innovations does not need to be pointed out, but the con- dition of things that they bring about appears to me to call for certain explanations. By the concession to foreigners of the right to possess land the Ottoman Government proposed to develop the innumerable riches of Turkey by calling to its firaitful soil both the capital of Europe and its knowledge in the working of mineralogical, agri-! cultural, and forest undertakings. Such must be in truth the consequences of these liberal measures ; they must produce, we are convinced of it, reciprocal advantages. But while opening to foreigners a field that had been hitherto forbidden them, the government of the Emperor and that of the Sultan had to recognize that there would be therein for Europeans a new situation that the capitulations had not regulated. The capitulations, in point of fact, had been orginally intended only to protect mer- chants, few in number, established at certain points on the seacoast under the imme- diate safeguard of their respective consuls ; every line of the capitulations brings out the truth of this. Not only did they then suffice, but in all probability they did not give rise to any of the objections that have been brought against them since the mul- tiplication of Europeans in Turkey beyond what could have been possibly foreseen in 1740 ; and this must have been still more the case at the time of the first conventions made with the Ottoman Empire. The essential guaranties insured by the capitulations to foreigners established in Turkey are : Inviolability of domicile, into which the local authorities cannot pene- trate without consular presence ( article 70), and the right of the presence of a consular dragoman before the local tribunals when these tribunals have to try Iforeigners (article 20). These provisions presuppose that the Europeans dwell in the same city as their consuls, or in an immediate neighborhood. It was the same when the capitulations were conceded. With the gradual increase of the number of foreigners that spread themselves everywhere these conditions of common dwelling, or at least of neighbor- hood, existing no longer, the capitulations might have greatly risked lapsing into de- cay for the lack of consuls to watch over the stipulations thereof. This eventuality has been warded off by themultiplication of consulates and by the creation of numerous consular agencies. If this had not been done, foreigners, left to themselves far off from consular protection and in the presence of guaranties that would have been ren- dered chimerical by this distance of place, would have in all probability made the best arrangement they could practically have come to under the circumstances rather than have no justice at all. At least this is what common sense and one's own interest would have counseled them to do: and it is these two considerations that in the end get the better of all inexecutable conventions. To-day the concession made to foreigners of the right to hold real property might hereafter, if it has its probable result, so multiply the number of such foreigners that it would be no longer possible to claim to watch over the safety of their persons and CAPITULATIONS OP THE OTTOMAN EMPIEE. 81 their goods, ^vliilBt keeping within the text of the capitulations, except hy creatinff «rwi w '"f^^ Y-^o-consulates without end. This expedient, supposinVit were prac^ are ca^knl of thrlr Snnd^' "' inoonyement for the pVte as'for^ose f'o Jrs Xh government standing; it certainly would be inadmissable for the Emperor's mSfestfro?J,''th?^lot°°*^""^ ^if')T oo^^^-ention with the Porte became, therefore, ^,d ffuallvXpl^p/tnl I ''^ *?,? Government of the Sultan cast aside its dislikes and tmally decided to enter upon the pathway that had been for so many years indi- cated to It by the counsels of the friendly powers. ^ ■* The law sets forth the conditions upon which foreigners may possess land in Turkey and the protocol provides for the rights and duties^hat shall grow toectly oS^ rectlyoutof a new situation Neither the law nor the protocol are made for those who shall continue to live withm the conditions the capitulations have in view and regulate.* The law and the protocol specify the slight derogations to the capitula- tionsthat are consented to m what concerns foreigners, but the ancient guaranties are theremnone the less formally maintained. Paragraph 1 of the protocol recoo-nizes this m the most autlientio manner, for it says in so many words that that law does not interfere with the immunities specified by the treaties as to the person and the mo^-ablc property of foreigners who may become owners of real estate. The second paragraph fixes the aim that the Porte had in view in causintr every distinction as to real estate to cease between Ottoman subjects and foreigners ° Paragraph 3 guarantees the inviolability of domicile; it points out that the ao-entof the public force cannot enter into it without the assistance of the consul or of the del- egate of the consul of the power on which the foreigner depends. ,, ?' TT important that a definition be given of the domicile. Paragraph 4 contains this definition as broad as we could wish it to be. Certainly it would not have been admissible that a vast extent of land by the fact alone that it might belong to a for- eigner had to be considered as a domicile into which the agents of the Turkish Gov- ernment were not to be authorized to come or penetrate. To claim more than this would have been to pretend that all laud belonging to a foreigner had to enjoy the benefit of exterritoriality ; this would have been to wish, and at the same time not to wish, for it would have been asking so as not to get ; the Porte being never able to consent that real property in Turkey should be subjected to foreign jurisdiction. In the fifth paragraph the inviolability of domicile is again aflirmed, only it is stated that the consul shall be bound, in case of a demand for ,i domiciliary visit, to give his immediate assistance to the local authorities in order that the action of justica may not be suspended. According to paragraph 6, in localities distant by nine hours' or more than nine hours' travel from the consular residence, the agents of the pulJic force may, on the request of the local authority and with the assistance of the members of the Council of Elders of the Commune,! enter into the residence of a foreigner without being assisted by a consular agent too far ofi' to be called ; but only in case of urgency and for the search and proof of the crime of murder, of attempt at murder, of incendiarism, of armed robbery either with infraction or by night in an inhabited house, of armed rebellion, and of the fabrication of counterfeit money. We could not have refused this stipulation without ignoring the right of the Sultan to administer and exercise justice within his empire. But, while conceding to the local authorities the right to proceed without a consul, when beyond reach or not existing, we have taken all necessary precautions to prevent abuses, and we are suitably armed for causing any such as may be committed to be punished. The agents that shall have elfected a domiciliary visit under the conditions just noticed shall be bound, moreover, to draw up minutes (jwoces verbal) of their action and communicate them immediately to the snperior authority under which they stand, which shall in its turn be bound to trans- mit the same without delay to the nearest consular officer (]iaragraph 8). By paragraph 10, it is established that strangers in localities distant more than nine hours from a consular residence shall be tried by the Ottoman tribunals, iu the ab- sence and notwithstanding the absence of a dragoman, both for suits not exceeding 1,000 piasters (230 francs), and fat otfenses entailing fines of which the maximum might be 500 piasters (115 francs). I^ might be simply remarked, on this head, that we had no interest to require that our citizens, even for the smallest suits, should be neces- sarily conducted to the neafrest consular residence — which might at times be very far away — in order to be thetc tried with the assistance of their consul. But this oberva- tion would not be enough to bring out the exact value of the foregoing provisions. In order to judge of these provisions as they ought to be judged of, and recognize the "It is the opinion of some that this statement is not borne out by the true and log- ical interpretation of the text itself of those two documents. But M. BourriSe, who had more to do with the making of these instruments, ought to be the best judge and authority as to what they mean or do not mean. t See note at end of Appendix No. IX. * S. Ex. 3 6 82 CAPITULATIONS OF THE OTTOMAN EMPIRE. spirit -wliicli inspired their embodiment into the protocol, one must consider the right that foreigners still have of making appeal (§ ll), which appeal shall always suspend the execution of the sentence (§ 12) ; one must also bear in mind what are the effects of a suspending appeal in Turkey; and iinally one should read the thirteenth clause, which stipulates that the execution of the judgment that may have been rendered by the tribunal of appeal, in the very rare case where appeal shall have been taken, always requires the co-operation of the consul. It follows implicitly from the foregoing that foreigners shall not be subjected to Ottoman jurisdiction except when they shall be established too far away from the consulates to be assisted by the dragomans, and when the question is one of suits in- ferior to 1,000 piasters, or of offenses punishable by a fine not exceeding 500 piasters. From these very provisions it follows explicitly that when it is a question of more important matters, it ia necessary that Ottoman subjects attack fpreigners before the tribunals that shall be in the consular residences. Here we come back to the cases provided for by the capitulations ; that is to say, that the right of foreigners to he assisted by a dragoman at the tribunals, whenever such a thing is physically pos- sible, reappears in all its force. It cannot be too often repeated — the protocol has not derogated from the capitulations ; it has made up for that which, under the capitu- lations, would have been vain or iuexecutable, owing to circumstances not foreseen by them ; that is to say, for cases where there would have been neither consul nor dragoman, and where, nevertheless, for the very reason of their distant and isolated positions, foreigners, owning real estate, could not live outside of the range of all ju- dicial authority and of all law. More, still, had to be foreseen ; it had to be admitted that foreigners would have daily preferred to waive the guaranty of the dragoman's presence, when themselves bringing suits before the tribunals of the place of their residence on cases involving more than 1,000 piasters, rather than have to seek justice far away from their domi- ciles for the sake of obtaining the consular presence. It was in order to meet this considerable interest that the fifteenth paragraph was made, which authorizes for- eigners to voluntarily declare themselves amenable to the jurisdiction of the Ottoman tribunals, whilst reserving for themselves the right of appeal before the superior tri- bunals, where they would again meet with the assistance of the consul. It is unhesitatingly affirmed that if this faculty [option] had been refused by their governments for foreigners domiciled in the inland provinces, and if they had not been permitted to have recourse to local justice in small suits, they would have been placed in a position that bad faith could without pity take advantage of — a situation that would be all the more unbearable, seeing that, as land owners settled within these lands, they will, in eighty cases out of every hundred, be themselves the claim- ants and plaintiffs. We wanted that this acquiescence to the competency of the tribunal should be given in writing, and before any beginning of proceedings ( 5 16). This, too, is a guar- anty added to so many others. We are not unmindful that there is in this faculty [option] something unwonted and derogatory to the principles of ordinary justice, in that it grants to the plaintiff [the right] to treat established tribunals as arbitration committees, that hold their authority only by a compromise signed by both parties; but here the rigor of this principle is not in place. These cases of accepting of the competence of the Ottoman tribunals by foreigners are, furthermore, quite frequent as a matter of fact ; only, as the capitulations do not provide therefor, and as the embassies do not ratify them, some dishonest plaintiffs profit thereby and refuse to allow those judgments to be executed that have gone against them. By sanctioning this faculty [option] for localities where consular officers are wanting, the protocol takes into account an undeniable neces.sity, and suppresses, in such localities at least, acts of bad faith. Paragraph 18 gives, not only to foreigners, but to all Ottoman subjects, the pub- licity of the hearings and the liberty of defense that are secured by the Satti-Eama- youn, but which the Government of the Sultan had left in the condition of promises [not fulfilled]. These wei{;hty matters have no need of any comment; still, it must be observed that the insertion of these two great principles into the protocol renders them henceforth beyond discussion, and stamps them with the character of an inter- national engagement, whose execution the signatory powers have a right to demand, both for Ottoman subjects as well as for their own citizens. We should rejoice over this, and congratulate Turkey on having entered upon the pathway of reforms which, if she resolutely keeps on therein, must regenerate her. All the foregoing more than sufficiently demonstrates that the stipulations, whose spirit has just been set forth, are not applicable except to those who should become real-estate holders or who should group themselves around agricultural or industrial establishments created far off from the consular authorities ; that is to say, to those who should have deemed the guaranties afforded by an empire, whose social condition is still imperfect, as being sufficient. Prudence would doubtless counsel them to choose certain provinces where civilization is further advanced, where the habits and CAPITULATIONS OF THE OTTOMAN EMPIRE. 83 customs of the inliaMtanta have been long since softened by contact with Europeans. There are other parts, however, into whieh it would be for 'the present better not to take our capital and industry. Our consuls and consular agents will, in this respect, be the beat of counselors. It is likely that they will have to combat some tendency to settle too exclusively within circuits of twenty or twenty- iive leagues diameter, the centers of which would be either one of our consulates or consular agencies, as though within so many oases wherein the privilege, secured by the capitulations, of the pres- ence of a consular officer or dragoman in all personal suits before the Ottoman tri- bunals, would be preserved. Our fellow-countrymen, in reasoning thus, would over- look too much the consideration that none gf our consulates would possess a number of dragomans sufficient to prevent svioh a calculation from being illusory in practice. It has been noticed, not without some surprise, that criticisms, representing the law concerning the right of foreigners to hold real property, and the protocol, as destroyers of the capitulations, have been multiplied to profusion, and in a manner more hostile to Turkey than to the Government of the Emperor. The reasoning has generally been such as though all our countrymen were going, ipso facto, to become real-estate owners, quit, willingly or unwillingly, their counting-houses, and betake themselves far away from their consulates in order to place themselves in a situation into which they had been drawn by no one knows what phantom. There is in these criticisms a want of logic that the inhabitants of the East will see through readily. They will recognize that if the Porte had put certain conditions upon the right granted to foreigners of owning real estate these conditions were in the very nature of things, and that the most im- mediate effect of the new law will be to put an end to the abuses and injustices arising out of the use of borrowed names in the matter of real estate, and to substitute the real fact in the place of a dangerous fiction, which, as experience confirms, left our fellow- countrymen in a position where it was impossible for them to personally defend them- selves, whether against arbitrary taxation or before the law, against contestations that jeopardized their rights. Accept, sir, the assurance of my distinguished consideration. BOURREE. APPENDICES, APPENDIX 1. MAHOMMED'S WILL OE COMMAND. rSee "Cliarte Turqiie," by M. Grassi, Paris, 1825, tome 2, pp. 74 to 89.] In the beginning of his rule Mahommed, either out of real feelings of toleration and moderation or through adroit and well-calculated hypocrisy, everywhere proclaimed ^tf "JiJ^? toleration toward every kind of religion, and particularly toward that ot the Christians ; for, according to the teachings of his Kor^n, God had at first sent unto men the prophet Moses, and after him Jesus (Issa), a greater prophet than Mosee and after Jesus himself, Muhammad, greater, he said, than either of them. He had said that Jesus was horn of a virgin who had conceived him by breathing the perfume of a rose ; that she was herself free from original sin. It was he who first spoke of the VirginMary's immaculate conception, anditis thought thathe had taken this belief from the Eastern Christians. Saint Bernard is the first Latin writer who spoke of it clearly and in formal terms, which led to the conjecture that it was the Crusaders who brought this belief to the "West in the 12th century. The first chapters of his Koran are filled with the praises of Jesus Christ and the Virgin Mary his mother. By this adroit policy he wished to conciliate the Christians in his favor, and assure them that he did not threaten their religion. To stiU further guarantee to them th& free exercise of their worship, and his entire toleration of it throughout his realm, ho made a treaty with them. It is entitled Tastamentum et paoHones initm inter Mahomeddum et Christiance fidei caltores, and was printed in Latin and in Arabic at Paris in 1630. This treaty should be considered as a masterpiece of political forethought, and as a rare monument of wisdom, morality, and toleration ; we give it here below as it has been given in the work of M. Riccaut. It is true that Mahommed afterwards changed the tone of his language toward the Christians, and made fearful laws against them ; but, alwaysin conformity with his first discourses, he never spoke ill of Christ, nor of the Virgin, nor of the Christian religion. The praise he had given them in his Kor^n remained in it untouched. But Mahom- med, finding himself, or deeming himself, attacked by the Christians, who had, not- withstanding his praise and toleration, sworn his destruction, and claiming that they were violating their treaty, no longer delayed, and swore that thc^y should perish. It was then that he launched against them the chapter called The Sfirah of Punishment (Sale's Koran, chap, ix, verses 30-36, pp. 151, 152), which is quite contrary to the spirit of the treaty. He also gave out the chapter of War (Sale's Koran, chap, xlvii, also en- titled Mohammed, p. 410), which the Moslems read before going to war. It contains these words : " When ye encounter the Christians, strike off their heads until ye have made a great slaughter among them ; and bind them in bonds; and either give them a free dismission afterwards or exact a ransom." (See Muir's Life of Mahommet, vol. iv, chap, xxix, pp. 311, 212.) It is by this Sflrah of the Kordn that the Turks behaved with such cruelty in the war of Greek independence. But to return to the treaty, Riccaut, in his History of the Ottoman Empire, tome 1, p. 189, says that the original document was found in a convent, belopging to the Car- melite order of monks, one day's journey from Mekka where the Moslem pilgrims per- form their sacrifice or Kurban ; and that it was said to have been carried to the library of the King of France. However this may be, it is an ancient and curious document, and I think the reader will be pleased to have it before him word for word. TREATY OF MAHOMMED WITH THE CHRISTIANS. Mahommed, messenger of God, sent to teach men and declare to them his Divine mis- sion, has written the following things, to wit: That the matter of the Christian re- 85 86 C.\P1TULATI0NS OF THE OTTOMAN EMPIKE. ligion, emanated from God, can remain free in all parts of the East and of the West, both among those who are [natives] of the country and among those who are neigh- bours to it, both among those who are strangers and among those who are not ; and I leave to all these people this present writing as an inviolable treaty and as a perfect ([rule of] decision in all differences and contestations to come hereafter, and as a law by which justice is shown, and the observation of which is strictly enjoined. Where- fore every man, professing the faith of the Moslems, who shall neglect to fulfill these things, and who shall violate or break this agreement, after the manner of unbelievers, and shall transgress the things I herein command, breaks the covenant of God, resists His will, and despises his testament, be he king, prince, or other unbeliever. By this -agreement, whereto I have bound myself, on the prayers of the Christians, both in my name and in the name of my followers, to enter with them into the covenant of God and into the peace of the prophets, the chosen apostles, the faithful saints, and the blessed of times past and of times to come ; by this my covenant, which I wish to be executed ag religiously as a prophet sent of God or an angel who draws nigh to the Divine Majesty, is exact and regular in the obedience that he owes to His law and commandments, I promise to protect their magistrates in my provinces with my foot and horse, with my auxiliaries, and with the believers that follow me. I promise also to defend them against their enimies, be they far or near, to guard them in peace and in war, to keep their churches, their temples, their oratories, their convents, and the places to which they make pilgrimages, wherever they be situate, upon mountains or in valleys, in caverns or in houses, in the fields or in the deserts, or in any other sort of buiJding whatsoever, and to preserve also their religion andtheir goods in whatever place they be, whether on land or on the sea, in the East or in the West, in the same way that I preserve myself and my scepter and the faithful believers who are my people. I promise also to take them under my protection and to guarantee them from all violence and vexation that shall be committed against them, and to repulse the enemies who might wish to harm them and me, and to resist sucli rigorcusly, both in my own person and by my servants and by those who are my people and my nation ; for, whereas I am set over them, I ought to and must defend them and guarantee them from all adversity and prevent any harm from befalling them that does not iirst befall my own who labor with me in the same work. I also promise to exempt them from all the burdens that confederates are bound to bear, whether loan of silver or imports, so that they shall not be held to pay but that which they please, without ^ny hai'm or punishment being inflicted upon them for so doing. Their bishop shall not be taken away from his diocese nor shall any Christian be constrained to renounce his faith, nor any workman his profession, nor shall any pilgrim be troubled while making his pilgrimage, nor any monk in his cell; neither shall their temples be torn down or converted into mosques, for he who does this breaks the present covenant of God, opposes His message, and renders null the Divine Testament. No impost shall be put upon the monks or the bishop nor upon any of those who are not subject to taxes, unless it be with their consent. The tax to be de- manded of the rich merchants, of the pearl-fishers, and of the miners who mine precious stones, gold and silver, as well as that to be demanded of other wealthy Christians, shall not exceed one crown a year ; and shall be taken only upon those who are domiciled and established in fixed places, and not upon travelers or those who have no fixed dwelling place ; these shall not be subjected to auy impost nor to the ordinary contributions, if they have no goods or heritage ; for he who is held to pay, legiti- mately, and according to the law, money to the ruler, shall pay as much as another and no more, and nothing shall be required of him beyond hii strength and ability ; so also he who is taxed for his land, his houses and his income, shall not be overbur- dened or oppressed with greater taxes than those who pay the contribution. The con- federates shall in no way be obliged to go to war along with the Moslems against their enemies either to fight or to discover their armies ; for allies are not to be em- ployed in military expeditions, this treaty having been made with them only to re- lieve them and prevent their being crushed. Still more, the Moslems shall watch over them, guard and defend them. They shall not, therefore, be obliged to go to fight and oppose the enemy, nor to furnish horses or arms, unless of their own free will ; and those who shall furnish anything of the sort, shall be compensated and thanked therefor. No Moslem shall torment the Chris- tians, nor dispute with them unless it be with civility ; he shall treat them kindly- and shall abstain from doing them violence of any sort. If it happen that some Chris- tian commit a crime or fall into some error, the Moslem is bound to help him, intercede for him and become his surety and settle his matter; he can even redeem his life; and he shall not be abandoned or deprived of succour, because of the godly covenant made with him, and for that he ought to enirty that which the Moslems enjoy and suffer that which they suffer ; and, on the other hand, that the Moslems enjoy what he enjoys and suffer what he suffers. And in conformity with this treaty, which is made upon the just prayers of the Christians, aud in conformity with the diligence CAPITULATIONS OF THE OTTOMAN EMPIRE, 87 that is required in oTjeying its authority, ye are hound to protect them and guarantee them from all calamity and render them all possible good ofi&ces, and so to do that all Moslems shall share with them both good and had fortune. Furthermore, particular care shall be had that no TJolenoe be done them in the matter of marriage ; that is to say, that the fathers and mothers shall not be forced to give their daughters in mar- riage to lloslems, and that they shall be in no way troubled for having refused their sons or their daughters in marriage, for this act is purely voluntary, and ought to he done with a good heart and with joy. That if it come to pass that a Christian woman unites herself to a Moslem, he shall leave her her liberty of conscience and suffer her to obey her spiritual father and be instructed in the doctrine of her faith without any hinderance. He shall, therefore, leave her in quiet, and shall in no way torment her by threatening to divorce her or by pressing her to renounce her religion ; and if he does otherwise on this head, he despises the covenant of God, he rebels against the treaty made by his apostle, and becomes one of the liars. If the Christians wish to repair their churches, their monasteries, or other places where they perform divine service, and stand in need of the help and liberality of Moslems, the latter are bound to contribute thereto with all their power and grant what they ask, not with the design of asking it again or of deriving benefit therefrom, hut gratuitously as a token of good will toward their religion, aiid in obedience to the treaty made by the apostle of God, and in view of the obligation they are under to execute and fulfill it. They shall oppress none of them, living among the Moslems ; they shall not in any way hate them, or oblige them to carry letters or serve as guides, and shall do them no violence whatsoever; for he who often practices these kinds of tyranny is an oppressor, an enemy of God's apostle, and a rebel against his commands. Behold the things that have been laid down between Mahommed, God's apostle, and the Christians : The conditions to which I bind them in conscience are that no Chris- tian shall entertain a soldier who is an enemy of the Moslems, nor receive him into his house, be it publicly or secretly ; that they shall give no shelter to an enemy Of the Moslems, and that 'they shall not suffer such to dwell in their houses, churches, or convents ; that they shall in no way furnish underhand the camp of the enemy with men, with arms, or with horses, and that they shall have no correspondence or intercourse with the enemy, be it by writing or otherwise ; but that by withdrawing to some place of security they look to their own preservation and the defense of their religion ; that they furnish during three days to every Moslem things necessary for his subsistence and that of his beasts, and this properly and in different kinds of goods ; that they also do their utmost to defend them if attacked, and to guard them against every unhappy accident ; for this reason, if any Moslem wishes to hide himself in any of their houses, they shall hide him, with a good will and deliver him from the danger in which he is placed without discovering him to his enemy ; if the Chris- tians keep faith on their part, those who shall violate some of these conditions, whichever they may he, and shall do any to the contrary, shall be deprived— the Christians of the advantages contained in the covenant of God and His Apostle, and shall be unworthy of enjoying the privileges granted to bishops and other monks; and the believers of that which is contained in the Kor^n. , ^ , , Wherefore I do conjure my people, in the name of God and by his prophet, to keep faithfully all these things, and fulfill them in whatever part of the earth they may be ; and the messenger of God will recompense them, provided that they inviolably observe themtilltheday of judgment and till the dissolution of the world. n „ -, The witnesses to the present conditions to which Mahommed, the apostle, ot 0.oa, ■"^Abl^'B^kfes-Suddlk; Omar Ibn-el-Khattab ; Othmftn Ibn 'Affto ; 'All Ibn AbiTalib and several others ; the scribe who has drawn them up is Mn'awiyah Ibn Abi bahan, the soldier of the apostle of God, the last day of the moon of the fourth month, the fourth year of the flight to Medina. May God recompense those who are witnesses to this writing. Praise be to the God of all creatures. rNoTE.— This treatv is considered by many as apocryphal. ] „ , . ,. x. For other treaties with the Christians, and Mahommed's system of subjecting them to a humiliating tribute, see Muii's " Life of Mahommed," London, Moti, vol. ii, pp. 298 to 305. 88 CAPITULA.TIOXS OF THE OTTOMAN EMPIRE. APPENDIX II. [Translation.] Capitulations of the Pimn BepiiUic with Saladin, Sultan of Egypt, 15 Safar, 569 =25 September, 1173. In the Name of God, the Merciful and Compassionate. This is a copy of the con- vention which the King of Babylon,* Saladin,t made with the commonwealth of Pisa through the instrumentality of Aldebrand, t sent to him by the consuls as am- bassador. I, King Saladin, say what follows, which is to have force thronghont all my realm; and every one shall take care not to fall short [in obeying] my orders, throughout all my realm, but all shall rigorously observe and respect my covenant ; andlet my char- ters be most valid in the hand of the Pisans. When I, King Saladin, made this instrument and this covenant, in the year of our Lord Jesus Christ 1174, § and of the Prophet Mahommed 569, there came to our court, which is great, wonderful, and full of justice, Aldebrand, a great soldier, messenger- consul of the Pisans, and brought with him the letters of their consulate, and I heard from his mouth and understood from his letters that they desired to have our love, to obey our orders, and to come into our state as they were wont to do heretofore. |1 And from him and his letters we learned that this ambassadorhad come in the name of the consuls and in that of all the commonwealth of Pisa ; in such wise that his tongue was to be considered as their tongue, and his hands as their hands, and what- everthing I, King Saladin, should have done with him, would have its full effect. And after we knew that he had come in the name of all the commonwealth and con- suls, we made him come before our court, and we interrogated him as to why the con- suls and the commonwealth had sent him, and as to what he asked of us, so as to be able to respond by such sayings as would be of honor to us and to him also, and as would be a cause of love and peace between us. And he said such words as those which we say to you, and we gave the reply which we give to you. And we confirmed all this by means of a charter which they were to have in their hands, so that this charter should be a witness between us and them, and should be in faith of the conventions that we have established with them. That, if any failure [or omission] shall take place, I, King Saladin, towards them, and they towards me, we must have recourse to this charter as witness for a long time [to come]. This is the cause for which this ambassador was sent by tlie commonwealth in re- spect to the merchants that come and bring goods into our territory and are to pay a duty.ir » " * 7# * # # Of all that which is wood, iron, and pitch they were wont to pay 19 per cent. Now, by reason of the prayers that they made on this head, we reduced the duty to 10 per cent, and cochineal 20 per cent., neither more nor less. And on other goods that are sold in the custom-house IDogana, Arabic DnliMn, i. e., shop] they must pay the duty as heretofore. And in return for all these things they must be treated with love, and they must be made to pay the duty in a kind way and amicably, and they must pay nothing to any servant of the custom-house, be he great or small, nor shall any wrong be done them, nor shall their goods be undervalued in such a way that they shall be ' sold below the price. And when they make purchases for their ships and for what- * Babylon was the name of a Roman fortress situated near old Cairo ; by tbls name it was customary to translate into Latin the Axabio name Masr or Masr el-Kdhira, that is, Cairo the capital of Egypt. t Saladin, Snltan of Egypt, was at that time most powerful ; and although he nominally recognized the authority of the Bagdad Calif, he in fact ruled absolutely over the territory between Baxca and the Euphrates. He It was who retook Jerusalem from the Crusaders on the 7th' October, 1187. See Tre- ^ vot's JSgypt from Alexanderto Bonaparte, Tiuhlishei by the London Tract Society, chapter xvii ; this book is an excellent historical sketch, of easy access to all. } This ambassador was the consul of the Pisan Eepublic. See Aniarl's Arab Diplomas of the Floren- tine Archives, p. 459. 6 According to the common style this year corresponds with 1173. 11 These words refer to the preceding capitulations obtained by the Pisans inEgypt. Many fragments of those of 1154 are famished in the second diploma of the second series of Ainari's Arab Diplomas. Moreover everything warrants us in holding that there wore others still older than those. IT In this and in other passages the Latin translation from the Arabic becomes unintelligible. On page 71 of his introduction Amari remarks, concerning the diplomas originating from Egypt, that " Coptic priests and Italian merchants had labored upon them together ; the former to turn over the Arabic into I know not what idiom, and the latter to put it into Latin both ungrammatioal and mixed with Ita,lianisms, and with some Arabisms." This often obliges one to guess at the sense of the Latin translation, which at times is altogether incomprehensible. CAPITULATIONS OF THE OTTOMAN EMPIRE. 89 Z;Crron?.':^onle^ZtTt^^^J^' "" '^'^ '"^"'^ ^^^"^ ^^"^ '^ -* J-*' -^ ^'^-^ „nyn^„^^n^!.f °™^"*f°''A^'S'''''l T"^"'^ ^^=^11 «""«'' neither tlie sails nor the rudder fl?« «« Jr^ii n???^''^^ whatever of their ships shall be withheld from them. Nor shall tlj.Z^Tf-^^'' custom-house or the freighters (drcatorea) or those who serve with nr +W±f ^T ^"y^V^'.l^^!.*^'!* ^^'"^ *^« "'-l Christian merchants shall attest or thedwna (sic) guaranteed by the believers. * * « They begged that we would permit them to repair the FunduJc> for their use, so that their |oode and persons might ^e safe. So also they prayed us for a bath, and we granted it to them, and the cus- +ril°M '^ "^^^ \° I'^y ^^^ ^""^ t^T ' ^^"l "^ **"> "l^y -^^^^ tliey were to go to it to wash themselves no stranger was to be able to go into it and no one else was to be therein. As to the church that belonged to them and that we gave them, they shall have it as they had it before ;t and wien they shall go to the cEuxeh they shall suffer no mo- lestation whatever, neither on the way nor within the church : and inside of the church no noise can be made that hinders them from hearing the word of God according to the precept of their law. But they may observe their law even as the precepts of God and their laws ordain. They begged us to be able to keep in their FunduTc a steel- yardt [or balance] for their use, and to be able to sell and buy with it, which we accorded to them, tor we know that merchants can neither buy nor sell without iustioe. Ihat It they buy things m any place and find them of less weight by their steelyard, It is my will that the whole be restored to them and that they obtain full iustioe. Ihey complained to us that all those of the court-house took one too much, and gave leas to the merchants, and undervalued their goods and treated them unjustly. We heard such complaints and ordained that every ware that should be acquired by us must be taken for that which it was worth without any diminution. And all that which should be bought by our Camera (sic) should be first estimated in such wise as that the merchants might not be able to murmur, and should willingly give that which is right. That if our Bajuli wish to exchange with any of the merchants, this must be done with their free will. 1 have also given orders to my Bajuli, both in the past and in the future, that they cannot occupy themselves with any litigation or matter between the merchants without their consent, § nor institute actions [or instigate actions] against the merchants so as to delay them ; and thus they cannot complain that their causes are badly dealt with nor that any wrong is done them, nor that any molesta- tion befalls them ; it being my firm will that they are to be treated with the greatest justice, both in the past, in the present, and in the future. That they asked to be able to draw their ships on to the land. Whereupon we in- formed ourselves as to what were the rights [or dues] of the custom-house ; and it was ascertained that the custom-house had to take for every ship two liras for putting the ship on land ; two liras for launching it ; and /our liras for the rudders [or oars]. Having heard their prayers we forgave them all, for we knew it to be too burdensome, considering the other outlays that they had to support ; this condonation we did not make to any nation other than they. They complained that some persons would buy of them goods which they sold and took to their houses, and would then return the goods after having damaged them and diminished thpir price ; and that they did this after having seen and examined them. Upon hearing this we ordered our Bajuli that, such sales taking place, no loss should be suffered by the merchants, and we enjoined upon those who follow our law that equal justice should be observed between the Christian and the Saracen, without dit- ference between them. *Fmidulc, a -word often used in Arabic to denote a tavern, Tras applied to the quarter which, in the cities of the Levant, was inhabited by the Pisans, Genoese, and others who traded there. Breyden- bach, in his Peregrinat. Sierosol., defines it thus : Eat fonticus dom/us grandis in qua et merces e'orum coneervantur, ubi et forwm^&nalium habent. Miltitz, tome 2, p. 433, says of it: " That which consti- tuted a consulate in the Levant was a shut inclosure, wherein resided the consul of a foreign nation and the merchants, his fellow-citizens." To this day such quarters still exist in Alexandria, and are called "Wik^lah." Some of them still keep the name of the nation to which they belonged, as, for example, the Trench wik^lah; the English wikAlah. So also in the city of Sidon there still exists the Ehan el Afrange, i. e., the building or khan of the Franks. t Herein consisted the priyilege of private worship which we see written in all the succeeding capitu- lations with the other nations. All public exercise of worship was forbidden, even to the use of bells. X The monopoly of public weighiujg and of hollow measures dates very far back, is still kept up in wholesale trade, and is a great vexation to all buyers and sellers throughout the Ottoman dominions. § Out of this provision sprung the privilege possessed bj^ all European nations in the Levant of being exempt from the jurisdiction of the local tribunals in their lawsuits, and of being judged by the con- suls according to their own laws and customs. This privilege, which still continues, will be found more clearly set forth in the succeeding Italian capitulations, and in those of the other nations of Chris- tendom. Beside this privilege the Pisans, the Venetians, and others, too, had obtained an exceptional jurisdiction when they had suits with Moslems. It was not the CAdi or any other ordinary judge, but the lieutenant of the Sultan who had to decide in such cases. See Amari's Arab Diplomas, introduc- tion, p. 62. Compare, also, treaty between United States and Algiers of 1795, article 15. A repro- duction of such concession may be seen in the oapitulations afterwards entered into with theOttoman Porte, wherein it is stipulated that every suit involving more than 4,000 aspers ia to be adjudicated by the DivAn of Constantinople. 90 CAPITULATIONS OF THE OTTOMAN EMPIRE. They complained that in freighting the ships, the freighters and servants claimed that which was not owed, and, without affording any advantage to the custom-house, made the condition of the merchants worse. Wherefore we ordered the Turcoman runners. Emirs, Cadis, inspectors and rulers never to permit any wrong to he done to the Christians, so far as should depend upon them, in order that no blame should at- tach to our court, and that the merchants should not hecome frightened by bad treat- ment. They prayed that whoever of their nation should die* in our realm and leave money or wares, that these should be taken by his companions in order to deliver them to the relatives in his country. And those who shall take these goods must write let- ters and give security that they will deliver everthing to the relatives. This we granted them, for the law ordains it, and justice requires that it be thus done. They begged us that they wished to stop our [people] from doing them harm by sea and from opposing them during the voyage, and from robbing them. Their prayers being heard we ordered our commander and admiral of the galleys that they should never take away arms from their vessels nor do them any wrong, but should save them and guard them to the utmost. They begged as to the gold and silver that they brought into our realm that we should not subject it to any duty, but that only the wares bought for exportation should pay the accustomed duty. And having heard all their prayers, and been convinced that they desired to have our love and wish to bear us good will and obey our orders, we forgave them every evil and forgot all discord that had heretofore been between us. Wherefore we or- dained throughout all our kingdom and unto all our tajuU that as soon as they should see and hear these our letters, they should entirely and perfectly observe the same, and that if any of them should prevaricate, his person and his goods shall be put upon trial. ■ In consideration of all which things they did promise us and did agree that they would faithfully and diligently keep in safety all our kingdom, whether by sea or land, and secretly as well as openly, and would never give succor to the enemies of our kingdom nor cause harm to any cities and castles both in the East and in the West. They bound themselves not to carry, neither by seat nor by land, any man who might wish to do harm to our realm, nor to come with any man who might wish to make war upon orbeseige our lands, nor to damage any Saracen merchant, nor betray him nor deceive him. That if any Saracen should accompany them, they should keep and guard him like their own selves and not hand him over to the enemy. We have agreed that they shall bring into our realm that which is necessary, namely, arms, wood [or timber], and pitch, and whatever is in their countries, and the wares that they are wont to bring into our lands. On this wise has been made and established this agreement between them and us, in order that there be by it complete concord between us. That if they shall fail in such agreements, or in a part of them, the same shall be destroyed and shall lose all faith and trust. Which agreements were drawn up and read before the ambassador, who understood them well and agreed thereto and gave guaranties, taking with him our letters, and he guaranteed them by a thorough oath before the archbishop and priest, which was done in Babylon the 15th of the month, which in the tongue of the Saracens is called Safar, September 25, 1173. Witnesses hereof were, Mark, patriarch of Alexandria t and of Babylon, i. c, Cairo, and of Nubia, and of Saba, and Michel, bishop of Barbacaha, and Homodeus, priest and prior of Cairo. The letters were written by Biilcaira [i. e., Abou-1-Kheir], son of the priest Homodeus. ^ * This is one of the moat important privileges that the Moslem ruler had granted to Europeans, namely, to free them from the so-called jDroits d'Aubaine, that existed in times past throughout all countries, and ^^ere most rigorously exercised in Europe. In virtue of it the Pisans and every other foreign nation collected freely and liquidated without hindrance the estates of their deceased fellow- citizens. This stipulation will be seen in all succeeding capitulations. f This engagement was intended to hinder the transport of the Crusaders to the Levant. Moreover we know that it was exactly the ships of the Genoese, Pisans, and Venetians that came laden with Crusaders bound for the Holy Land. The obligation not to transport Crusaders was still more clearly assumed in the conventions above cited of 1154, where it is said : " iV>c aliquis vestrorum mercatorum secv/m adduxerit aliqueia ex JFrancie Suri(B in patriam nostram eos sciente in similitudinem ^nercato- ruTn." Amari, loc. cit \ 1 Mark was the Jacobite patriarch of Cairo. § In these capitulations no mention is made of the pilgrimage to the sepulchre of Christ, which in many of the succeeding agreements is expressly permitted to Christiana. The reason is that at the time of this compact the kingdom of Jerusalem existed and was in the hands of the Franks, from whom it was wrested by Saladin thirteen years later. CAPITULATIONS OF THE OTTOMAN EMPIRE. 91 APPENDIX III. Capitulations of the Republic of Florence with the Sultan of Egijpt, in the year 1488. The commandment of the Sultan of Egypt, Abu-Nasr (Kait-Bai).* In the name of God the Merciful. The commandment of the Suhlime Emperor [signature or seal of the Sultanl, may the most high God exalt him and make him illustrious ! Be it known unto aU the vicars, governors, prefects of the Moslems, and secretaries employed in the city of Alexandria, which may God preserve, and in the other parts ot our illustrious Moslem dominion how that the burgess Luigi della Stufa, envoy of the. lofty Emperor and gpvernor of the Florentines, t has presented himself at our illustrious gate, and after having had the good fortune to stand in our illustrious pres- ence and set forth in the name of his chief the things touching the Florentine nation and its merchants, together with the capitulations of commerce already established by the Sultans, our predecessors, and has requested of our beneficence the renewal and confirmation of the said capitulations through and by au illustrious commandment from us. Wherefore we order all our ministers that they obey this our present com- mandment and put into execution the capitulations about to be given here below for the sake of greater surety, and in order that they be punctually observed. 1. Luigi aforesaid, together with his fellow-merchants of Florence, asked of our illus- trious beneficence that no one should have the hardihood to oppose the Florentine ships, whether square, long, or of any structure whatever, nor that any one should cause them extortions or vexations or any sort of unfriendly contrariety, neither by sea nor by land, neither in the city of Alexandria nor in any other port of our Moslem dominion, but that they should come freelyinto our illustrious States with their cargoes, merchants, factors, and brokers, with the condition, however, that they pay the cus- toms duties of the Dogana. We ordain the execution of this head . 2. That the Florentine merchants or their comrades on presenting themselves at the place of Alexandria or at another port of our Moslem dominion with cloth, silk, soap, oil, nuts, ointments, coral, sulphur, and every other sort of ware, be safe in their per- sons and goods, and be able to sell freely their merchandise for cash or for exchange, and that no one can or dare to hinder them, damage them, not even so much as a farthing. Whereof we do ordain the exocntion.j: 3. Furthermore, that formerly the officials of the custom-house of Alexandria, upon the arrival of the merchandise of the Florentines, proceeded to open the bales with violence and confusion, in such a way that some of them appropriated to themselves in the mean time a part of said merchandise by falsely asserting to have bought the same, whereby the trade of the Florentines was hurt ; that in the future no one of the vicars, presidents, and officials of the custom-house, and also no one of the said Flor- entine nation, dare to take the merchandise of the Florentines without their full con- sent ; and also that in order to obviate the recurrence of the disorders above referred to, the Florentine merchants be permitted to quickly transfer the goods ii to their own magazines, and that they be then visited by the ministers of the custom-house, so as not to defraud the rights of the custom-house. Whereof we do ordain the execution. 4. That the merchandise belonging to the Florentines, being landed and at once transported, as above, to the magazines, if within a delay of three days they are not visited by the ministers of the custom-house, out of negligence or malice in order to retard the disposing of said goods, the Florentines and their factors can communicate to the presidents of the custom-house only the note [or list] of the same and pay the accustomed duty, and freely sell their goods without awaiting the visit of the afore- said ministers. Whereof we do ordain the execution. * Kait-Bai, or Qaayt-My, was one of the last Sultans of Egypt of the dynasty of the Circassian Mame lakes. His reign may be said to be one of the longest and most glorious of that dynasty, for it lasted not less than twenty-nine years. This prince kept np a continual feud with the Ottoman Sultan Bajazid. He died on the 22d Zil-Kadah 901 of the He,irah (September 21, 1495). There still exists in the city of Cairo the beautiful mosque that bears his name, and is considered as the most perfect monur ment of Arab architecture in Eg,ypt. t Lorenzo the Magnificent, who stipulated these capitulations with Kait-Boy, greatly extended the commercial relations of the Florentines with Egypt. Eoscoe, in chapter 6 of hia Life of Lorenzo de Medici, says that such was the esteem that the Sultan of E^pt had for him that he, in 1487, sent an ambassador to Florence with rich regalia of rare animals and precious ob.ieots to be presented to the chief of the republic. Luigi of Stufa, who was intrusted by Lorenzo the Maguificent with obtaining these capitulations, belonged to one of the most conspicuous families of that city, where that family still exists and resides. J These two first articles correspond with articles 20 and 30 of the French capitulation of 1740. 92 CAPITULATIONS OP THE OTTOMAN EMPIRE. 5. Tliafc the Florentine having paid according to custom one surifo for each, barrel ■ of liquid extract (as wine or spirits) in the ports of our Moslem dominion, no one shall dare to burden or vex them not even for a farthing. Whereof we do ordain the exe- cution.* 6. That the Florentines may freely sell their goods for cash or for bills within our illustrious dominion whenever they shall pay, at the tribunal of the custom-house, 14 dinars per hundred, and upon this rate shall be regulated in the future the duties and customs in cash or in kind, excepting the outlays to be incurred for the sensaljes [i. e., native brokers] and interpreters; and when they have paid the aforesaid duty they can transfer their merchandise to Cairo or elsewhere, and sell the same without other import. Whereof we do ordain the execution.t 7. That neither the Florentines nor the Moslems can fail to fulfill the contract made between them and communicated to the tribunal of the weigher. Whereof we do ordain tne execution. 8. That when a Florentine is the creditor of any official of the custom-house, at the arrival of his goods, he can take from the official the amount due him by diminishing just so much the duty due, nor is he to be defrauded of the recovering of the amount due him through the pretext of the customs duties of the tribunal upon his goods.- Whereof we do ordain the execution. 9. That should a Florentine perish t in our Moslem dominion, having previously made his will, none of the Moslems or otliers can hinder [the carrying out] of his wishes, nor contest the effects or moneys of the ^perished Florentine, nor cause the same to be burdened by any costs by our governors or ministers. On the other hand, should a Florentine §perish without a will, let his effects remain under the care of the national consul until the arrival of the legitimate heirs.* » » * Whereof we do ordain the execution. ^ Art. 10. » * ' * , . , Art. 11. That no Moslem can accuse or carry on a suit with the Florentine mer- chants except in the tribunal of the president of the custom-house ; and should the cause not be terminated by such president according to the rules of justice, it is our will that the revision and decision thereof be referred to our illustrious tribunal. || Whereof, &c. Art. 12. ,*,»»*» Art. 13. * * * * * .* . * Art. 14. Should any controversy or disagreement arise between the said Florentines, none of the governors or Moslem judges may interfere in their affairs, but jurisdiction therein belongs to the consul of the Florentines ; which is to be brought in such cases in accordance with the legal custom of the Florentines.il Of which we ordain, &c. Art. 15. That should any Florentine make a voyage from one country to another in our Moslem dominion, he can, for greater security of his person and effects while traveling on the way, dress himself lilie a Moslem •*so as to freehimself from, bad en- counters and vexations, and no one may dare disturb him as to eating and drinking, neithej burden him with any costs and charges. Whereof we do ordain the execution. Art. 16. ****** * Art. 17. '»»**• * Art. 18. Should a Moslem have any just claim against a Florentine, either a busi-, ness claim or a criminal cause, the other Florentines shall not, for this reason, be held for the debts of a fellow-ooiintryman, nor judicially, nor the father for the son, nor the son for the father. (See French capitulation, article 22.) Art. 19. After that a Moslem has made a contract with the Florentine merchant, and the Exchange of the drugs or other merchandise has already been effected at the tribunal of the weigher, if another Moslem should come forward and assert that such ^oods were his and had been taken from him by fraud or some other pretext by the first Moslem, the contractor, yet nevertheless the Florentine shall not be held to re- store the goods. Whereof we do ordain the execution. Art. 30. ****** * Art. 21. That after the Florentine merchants have paid the customary duties on * See rrench capitulation of 1740, article 40. t Corresponding witli article 57 of French capitulation. A difference, however, is to be noticed in the rate of duty, "which in the French capitulation is reduced to 3 pet cent. JAccording to Moslem language a non-believer does not die and pass over unto the mercy of his Creator, but perishes; goes to eternal perdition. See the Hatt-Hamayoun of 1856, concerning "the effacing forever from the administrative protocol of every distinction or designation tending to make any class of the subjects of the Ottoman Empire inferior to another class on account of their religion, language, or race." & Article 72 of the French capitulations of 1740 contains an identical provision. I II Article 41 of French capitulations says : "Suits exceeding 4,000 aspers shall be heard at my impe- rial divan, and not elsewhere. IT Article 26 of the French capitulation is amioat a reproduction of this article. **Article 63, French capitulation : "And for their safety and convenience they may dress themselves according to the custom of the country, &c." CAPITULATIONS OP THE OTTOMAN EMPIRE. 93 tPvi'of+W^d"/^"^""''"" or elsewliere, if there should follow a change of the minis- excuse of no? fi«^'rl"ff ' ^"^ -'r '^T-^'ll' ''^"^^'^ '^*^™''=^'i ^^^ ^^■^'^ duties, with the norie constrahfe^i^^ ^i registered ,n the books, nevertheless the Florentines shall IT constrained to pay a second time. Whereof we do ordain, &c. Art. 23. ***,,, , Art. 24. ■"»*»,, j, Art. 25. That the accounts between a Florentine and a Moslem having been made and registered m writing, they shall be valid, and neither of the two^arties can The et?cutfor ^'=«°""t« ™'^d« Si^^e by judicial means.* V/hereof wl do ordain +w L^l" 7^?;* "° I''" shall dare to commit the least insuK to the Florentine ships that come to the ports and shores of our dominion, provided that they pay the port dues and that they may leave and take provisions without let or Mndrince, accord- '°? Z o^ "^^r^l 'I'J'^ privilege of the Venetians. Whereof we do ordain the execution . ART. ^7. ihat thcilorentme consuls and merchants shall have a determinate site for their dwelling pi a«e m Alexandria, and special store-houses, as have the other European nations.t Whereof we do ordain, &c. Art. 28. That the Florentine merchant, after he shall have sold and bought mer- chandise in Alexandria or elsewhere and paid the established duties and changes, can return treely to bis own country, or whithersoever he will, without being held to pav neither one farthing more nor less. Whereof we do ordain the execution Art. 29. * » * « . « , Art. 30. That the Florentine merchants can quickly sell, upon the market of Alex- andria and m all our dominion, their goods without hindrance, provided they pay the established duties. Whereof we do ordain the execution. We ordain that all persons do revere this our illustrious commandment and punctu- ally execute the heads inserted therein, without any alteration or diminution. Given on the 6th day of the month of Moharram, in the year of the Heiira 894 = De- cember 10, 1488; November, 1489. (Sign of the illustrious commandment.) Glory to God alone and to our sovereign. APPEIirDIX IV. Artlc'es 7/ trtatics of other powers toith Turkey that are like Article IV of the treaty of 1830 ietwein the United States and Turkey. treaty between turkey AXD BELGIUM, OP AUGUST 3, 1838. Art. VIII. Belgians, honestly and peaceably engaged in their business or commerce, can never be arrested ormolested by the local authoritiesf |but in case of crimes or mis- demeanors the affair shall he handed over to their minister, charge d'affaires, consul or vice-consul ; the accused shall be judged by him, and punished according to the practice established with regard to the iTranks. TREATY BETWEEN TURKEY AND I OUTUGAL, OP MARCH 20, 1843. Art. VIII. Portuguese, honestly and peaceably engaged in" their commercial affairs, shall never be liable to be arrested or molested by the local authorities; but in cases of a crime or misdemeanor the matter shall be- brought before their charge d'affaires, consul, orjvice-consul ; the accused shall be judged by them, and punished in accord- ance with the custom established relating to Franks. TREATY BETW EEN TURKEY AND THE UNITED STATES, OP MAY, 1830. ' Art. IV. If litigations and disputes shall arise between subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgment be pronounced, unless the American dragoman be present. Causes in which the sum may exceed 500 piastres shall be submitted to the Sublime Porte, to be decided according to the laws of equity and justice. Citizens of the United States of America, quietly pur- suing their commerce, and not being charged or convicted of any crime or offense, shall *Like article 71 of Frencli capitulation. f Hereby it was accorded to the riorentines to have a ' ' Fundulc " in Alexanrlria. (See the note to the word ''ihinduk" in the translation of the Pisan capitulations, Appendix II.) 94 CAPITULATIONS OF THE OTTOMAN EMPIRE. not he molested ; even when they may have committed some oifense they shall not be arrested and put in prison hy the local authorities, hut they shall be tried by their minister or consul and punished according to their offense; following, in this respect, the usage observed towards other Franks. TREATY OF PBACB OF 1740 BETWEEN TURKEY AND THE TWO SICILIES. Art. 6. Les gouverneurs et autres offioiers de I'Bmpire Obtoman ue pourront fairei emprisonuer aucun de nps sujets, ni le molester ou insulter sans raisou; et an cas que quelqu'uu de nos sujets vlut k Stre emprisonn^, 11 sera consign^ a noa ministres et con- suls, lorsqu'ils le requerant, pour etre chriti6 selon qu'il le mSrite. TREATY OF AMITY AND COMMERCE OF 1839 BETWEEN TURKEY AND THE HANSE CITIES. Art. 8. Les oitoyens hans^atiques vaquant honnStemeut et paisiblement h leurs oc- cupations ou hi leur commerce, ne pourront jamais 6tre arr6t(58 ni molest^s par les au- torit^s locales, mais en cas de crime ou de d^lit, I'affaire sera remise h leur ministre, charge d'affaires, consul ou vice-consul, le plus voisin du lieu oil le d^lit a 6t6 com- mis, et les accuses seront jug^a et puuis par lui, selon I'usage 6tabli h, l'<5gard des Francs. APPENDIX V. Extracts from some of the treaties between some of the powers and Turkei/ concerning the presence of dragomans in civil suits hetiveen foreigners and Ottoman subjects, and concern- ing, also, the status of dragomans and guards (janissaries or cavasses). FRENCH CAPITULATIONS OF 1740. Art. 26. Si quelqu'un avait un diff^rend avec unmarchand Frangais et qn'ils se por- tassent chez le kadi, ce juge n'^coutera point leur procfes si le drogman Fran^ais ne se trouve present ; et si cet interpr^te eat occup6 pour lors k quelque affaire pressante, ondiff^rera jusqu'J. oe qu'il vienne; mais aussi les Frau^ais s'empresseront de le repre- sentor, sans abuser du priStexte de 1' Absence de leur drogman. Et s'il arrive quelque contestation eutre les Franijais, les ambassadeurs et les consuls en preudront connais- sance et en d^oiderout selon leurs us et contumes sans que persoune putsse s'y opposer. ENGLISH CAPITULATIONS OP 1675. Art. 15. That in all litigations occurring between the English, or subjects of Eng- land, and any other person, the judges shall not proceed to hear the cause without the presence of an interpreter, or one of his deputies. Art. 24. That if an Englishman, or other subject of that nation, shall be involved in any lawsuit, or other affair connected with law, the judge shall not hear nor de- cide thereon until the ambassador, consul, or interpretor shall be present; and all suits exceeding the value of 4,000 aspers shall be heard at the Sublime Porte, and no- where else. Art. 28. That the ambassadors and consuls shall and may take into their service any janizary or interpreter they please, without any other janizary or other of our slaves intruding themselves into their service against their will and consent. Art. 45. That the ambassadors of the King of England, residing at the Sublime Porte, being the representatives of His Majesty, and the interpreters the representa- tives of the ambassadors for such matters, therefore, as the latter shall translate or speak, or for whatever sealed letter or memorial they may convey to any place in the name of their ambassador, it being found that that which they have interpreted or translated is a true interpretation of the words and answers of the ambassadors or consul, they shall be always free from all imputation or fault of punishment ; and in case they shall commit any offense, our judges and governors shall not reprove, beat, or put any of the said interpreters in prison, without the knowledge of the ambassa- dor or consul. Aet. 46. That in case any of the interpreters shall happen to die, if he be an English- man proceeding from England, all his effects shall be taken possession of by the am- bassador or consul ; but should he be a subject of our dominions, they shall be deliv- ered up to his next heir ; and having no heir, they shall be confiscated by our fiscal oiBcers. CAPITULATIONS OP THE OTTOMAN EMPIRE. 95 and^exem;,t^from*^n I'J.^^^^w"" °"^? ^"Slisli ambassadors having always been free ^^.f^T^iu <.^} contributions and impositions whatever, respect shall in future ItlT^m **"? «fticles of the capitulations stipulated in andent times without the hscai officers mtermeddling with the effects of any of the interpreter who mav ban pen to die ; which effects shall be distributed amongst his hei>s ^ ^ ALSO, ARTICLE 9 OF TREATY OP 1809 BETWEEN GREAT BRITAIN AND TURKEY. English ambassadors and consuls may supply themselves, according to custom with such dragomans as they shall stand in need of; but, as it has already been mutilllv ?^vnvnf'^^H-'-H^^*i*^\^"l''™''^°'^*^ ^^""^^ not grant the "Barat" of dragC^n n favor of individuals who do not execute that duty in the place of their destination it ZT^^lf^ ''^ conformity with this principle, that in future the " Bami" shall not he granted to any person of the class of tradesmen or bankers, nor to any shopkeeper or manufacturer in the public markets, nor to one who is engaged in any matter of tMs description; nor shall English consuls be named from am?n| the subjects of the Sub- lime Porte. [Dragomans and cavasses are excused from military service in Turkev whilst attached to the British embassy or to British consulates.* See reports, British Consular Establishments, laid before Parliament, 1873, Part III.] TREATY OF 1740 BETWEEN TURKEY AND THE TWO SICILIES. Art. 5. * * * Les marchands et afitres de nos sujets ou ceux qui sont sous notre protection qui auront quelque proc&s ou dispute aveo les marchands et sujets de la Porte Ottomaue, soit pour vente, achat ou n^gociations de marchandises ou pour quelque autre raison, seront tenus d'avoir recours anx juges ; si ancuns de leurs drog- mans ne se trouvent prfiseuts, les juges ne pourront reoevoir les d^nonciations ui de- cider 1 affaire ; et si les dettes ou cautionnements ne sont pas bien prouv6s Mgitimes par des obligations ou comptes anthentiques, les d(Sbiteurs ne seront point molest6s pour la pretention de ces dettes indues. * * * TREATY BETWEEN BELGIUM AND TURKEY, OP 1838. Art. 8. Dans le cas de contestation ou de procfes entre les sujets de la Sublime Porte et des sujets de Sa Majesty le Rot des Beiges, les parties ue seront entendues, ni la cause jug^e qu'en presence du drogman de Belgique. TREATY OF AMITY AND COMMERCE BETWEEN PORTUGAL AND TURKEY, OF 1843. Art. 8. Dans le cas de contestation ou de procfes entre les sujets de la Sublime Porte et les snjets de Sa Majesty Tr&s-FidMe, les parties ne seront pas entendues ui la cause jug6e qu'en presence du drogman de Portugal. APPENDIX YI. Heglemenl concerning foreign consulates in the Ottoman Empire. I have never been able to find anywhere in the official publications of the Stat© Department within my reach an English translation of the Ottoman regulation of the 9th of August, 1863, concerning foreign consulates in Turkey. This appendix consists of an English translation, made by me, of that regulation, and also of the circular let- ter from the Sublime Porte to the Valis (governors-general) of the provinces which "develops" and comments upon the regulation. To go into the origin of the system by which foreign legations and consulates and even foreign residents in Turkey protected natives in their service would be beyond the limits of the report to which this appendix belongs. This subject is treated of in Baron de Testa's Becueil des traites de la Porte ottomav^, &c., tome I, (France), pages 224 to 228 ; and the reader is also referred to D. Nicolaides' L4gislation ottomane, part II, Constantinople, 1874, page 421, where he will find a memo- randum addressed by the Sublime Porte in 1869 to the representatives of foreign powers relating to the capitulations. The memorandum was ably refuted by Baron J. de Testa in a " brochure " on the subjeot.t *Hertslet, p. 29. t The memorandum of April, 1869, is fully exposed and refuted by B.Branewik in chapters, of part-?, of hie Etudes pratiques, <&o., JU/ormes et capitulation Every consul -will do well to read both the memorandum and the refutations of de Testa and Bmnswik. 96 CAPITULATIONS OF THE OTTOMAN EMPIRE. [Translation.] K1>,GLKMENT RELATIVE TO FOKEIGN CONSULATES, PUBLISHED BY THE SUBLIME POETB THE 9th of august, 1863 (23 SAEAE 1280)., Akt. 1. Consulates can employ tnrKi/ejics (native-Ottoman) subjects as privileges em- .ployds up to the number hereinafter fixed; consulates-general or consulates at the chief places of a province, four dragomans, four yassakdjis; * consulates depending from (subordinate to) consulates-general, three dragomans and three yassakdjis. Vice-consulates or consular agencies, two dragomans and two yassakdjis. In case the number tixed hereabove for the native employes of consulates should be insuffi- cient, the consulates will have to address themselves to their [diplomatic] representa- tives at Constantinople, who will apprise the Sublime Porte thereof and will come to an understanding with it. Art. 2. Consulates-general or consular agencies can keep beyond the number indi- cated in article 1, dragomans and yassakdjis, but it is well understood that the latter will be in nowise considered as privileged after the manner of the others mentioned in the said article. In case, however, of the understanding with the Sublime Porte, of which mention is made in the article 1, natives thus admitted over and above the fixed number of employes shall be privileged after the manner of the others. Art. 3. Every time that a consulate or vice-consulate shallhavetonamea native privi- . leged dragoman it is bound to first make application to the representative of its gov- ernment at Constantinople to obtain through that channel a vizierial letter addressed to the government of the place and authorizing the same to recognize the person designated. The local authorities are henceforth forbidden to recognize any Ludividual in this character without such letter.t Art. 4. Consulates-general must give notice, as is the practice at Constantinople, of the nomination of their yassakdjis, with their names, to the governor-general, who shall cause them to be registered, and shall recognize them, i. e., so many of them as shall be within the number fixed hereabove. Consulates, vice-consulates, or consular agencies shall apply to their respective consulates-general, to which they are subordi- nate, to obtain through them from the Vali [governor-general] of the province a letter authorizing the recognition of their yassakdjis by the authorities of the, place where they reside. Art. 5. Temporary prot(5giSs shall enjoy the same rights as ordinary prot^giSs ; and in criminal prosecutions the same judiciary forms shall be employed toward the former as toward the latter, without the provincial authorities being able to deviate from the tutelary rules followed in the capital of the Empire, so that, in short, the former as well as the latter may, during the whole course of the suit brought against them, receive without restriction the assistance due them by the authority to which they are attached, [_VautoriU dont ils releventf] The protection of privileged femploy 63 of consulates is individual and attached to their functions. It will cease in case of deaths and of the cessation of these func- tions. This protection cannot be extended during their lifetime to tbeir relatives and children, nor can it be transmitted to their heirs after their death. Privileged employes shall enjoy all the immunities that are accorded them by the capitulations, but their estates shall pay the land-tax and they cannot be exempt from military service or the tax for substitutes. || Still for five more years (to come) their service with consuls- shall be counted to them as the accomplishment of their military service, and, in the future, all those who shall have been entered on the rolls of redif [reserves] and should be found in the service of consuls cannot in case of calling in of the reserves be taken away from them. Art. 6. No indighie [Ottoman subject] can be appointed vice-consul or consular agent of a foreign power. Should important commercial interests necessitate the maintaining of a consular agent at a place where it would be impossible to confide such a trust to a person other than a subject of the Sublime Porte, the interested power for this exceptional eventuality shall be allowed to come to an understanding on this point with the Sublime Porte through the medium of its representative at Con- stantinople. Still such an exception shall not be admitted but for cases of recognized urgency, recognized by the one side and by the other, for the time being only. As soon as the circumstances that shall have necessitated the exceptional appointment here spoken of shall have ceased to exist, provision shall be made for replacing the native agent *CaTaa8 Janissary, see rrench capit. n40, articles 4.5 and 50, and English capit. of 1675, artiole3 45, 46, and 69, and Bflglish capit. of 1809, article 9, and llussian capit. of 1783, articles 50, 51, and 54. tSee Treaty between the Sublime Porte and Great Britain of 1809, article 9. : French Capitulations, articles 43, 65, 84 ; Kussian Capitulations, articles 51, 74. § See British Capitulations of 1675, article 46. II Compare French Capitulations of 1740, article 13, and Russian Capitulations of 1783, articles 2C, 50 51. CAPITULATIONS OF THE OTTOMAN EMPIRE. 97 thus appointed. Furthermore, it is underBtood that the native in question shall not be able to invoke the protection of the power in whose service he shall have been alter the moment -when he is no longer in that service. Art. 7. No vice-consul or consular agent shall be able to exercise his functions with- out obtaimng a B&attTom the Imperial DivAu through the superior foreign authori- ties, which Berat shall serve him as hitherto as exequatur. Art. 8. No Ottoman subject can be withdrawn from Ottoman jurisdiction by the trust, employment, orservice that he may hold from a foreign subject. Onlytheforeica interests that may be found confided to his hands shall enjoy foreign protection In order to have those interests recognized by the local authorities, foreign subjects shall, If they form a partnership with an Ottoman subject, or if they intrust him •with a special affair, be obliged to execute an instrument in due form at the tribunal of commerce of the place, or if the service to be rendered is not susceptible of an in- strument before the tribunal of commerce, they shall notify the local authorities of the same in order to have it registered. Art. 9. Beyond the foreign interests with which they may be intrusted in conformity ■with the foregoing provisions, Ottoman subjects shall not cease for a single instant to preserve their characters of Ottoman subjects and to be under Ottoman jurisdiction in their private affairs and in their persons. This clause is applicable to the partners and business agents of foreign subjects. Still, in so far as regards ecclesiastical missions and foreign monasteries, there shall be accorded to each of these establishments [the right or privilege] to have one attor- ney and one dragoman, who shall enjoy, on the same footing with the employes of consulates, the privileges of temporary protection.* Art. 10. Consuls, vice-consuls, and consular agents of foreign powers shall no longer exercise any protection over shops or shop-keepers, subjects of His Majesty the Sultan, under any pretext whatever, t Art. H. It is well understood that the protection with which privileged employes are to be thus clothed is, as is said in the foregoing articles, quite personal, and attaches only to effective, actual service ; it shall not therefore be accorded in any case on an honorary footing, nor extended to persons who shall have ceased to be employes, neither to their relatives ; they ought, however, to be considered as shielded from all pursuit [prosecution] which may have its origin in the services which the consulate may have received from them.t The local authorities will see to it, in concert with the consuls, that the taxes due by this class of prot^g^s upon their real property be regularly paid, in order that they may not be exposed at the exxjiration of their service to prosecutions for arrears due the treasury. As a matter of course prot6g6s are not to pay, whilst they enjoy protection, any but real estate tax or those burdens to which foreigners are subjected. Consequently they cannot be prosecuted after the cessation of protection for arrears of taxes to which they are not legally subject during the period In which they were enjoying protection.^ Art. 12. Native servants of consuls || belonging in nowise to the category of priv- ileged employes shall have no right to protection. Still, they shall not be proceeded against save under forms compatible with the regard due to the consul, and they can- not be arrested until after the latter has been notified in due form and in full time. Additional article. IT When the agent of a power, whatever his rank in the con- sular body, is ofificially and In a permanent manner recognized as Intrusted with the interests of one or of several foreign powers in the same locality, the aggregate num- ber of his employes is not to exceed the maximum of the number allowed him by ar- ticle 1, account being taken of his position of consul-general, vice-consul, or consular agent of one single power. Still, whenever the necessity should anywhere arise for a greater number of employes of this category, this augmentation shall be the object of a special understanding be- tween the Sublime Porte and the representative of the power whose interests may call for such augmentation. The 20th December, 1865. (New style.) [Translation.] CIRCULAR TO GOVERNORS-GENERAL. (Legislation Ottomane, part IV (Droit International), p. 19.) I have formerly transmitted to you a copy of the riglement, established by common agreement between the Sublime Porte and the representatives of the powers at Con- * Compare French Capitnlatdons of 1740, articles 1, 32, 33, 35, 82. tSee article 9 of treaty with Great Britain of 1809. 1 See British Capitulations of 1675. article 45. § British Capitnlations of 1675, article 59. [I Compare article 47 of French Capitnlations of 1740. . . U Compare the wording of this clause with the wording that is given of it in Legislation ottomane, volume 4 (part 4), page 19. S. Ex. 3 7 98 CAPITULATIONS OF THE OTTOMAN EMPIRE. stantinople, concerning foreign oocsalates in Turkey. That reglement has for its object to determine, in a clear and precise way, the rights and prerogatives that foreign con- suls enjoy by virtue of the ancient treaties ; to do away with the difficulties and dis- cussions that from time to time occur in this respect ; to preserve undisturbed the relations of friendship and good understanding, the maintenance of which is so desir- able between the local authorities and foreign consuls in the provinces, as well as the ■ rights and prerogatives of the latter. Finally, as consuls jn choosing their employes amongOttoman subjects can withdraw them from their natural jurisdiction, the object of that reglement is to put certain restrictions upon this head. Such are the important points of tliat reglmaeut, a commentary and development of which you will find here- inafter. The first and second articles have only for their object to determine the number and official character of Ottoman subjects who shall be employed by consuls, and to point out, at the same time, certain exceptions which may be tolerated. The provisions of articles 3 aaid 4 will generalize those principles, the efficacy of which experience has well proved at Constantinople, in order to remove the difficulties that might arise in the exercise of acquired rights. The first paragraph of the fifth article relates to the assimilation of temporary pro- t^g& to other prot^gds ; its object is to leave no more place for misunderstandings on this subject by fixing, for instance, in what way the former shall be prosecuted in case of crime or for other cause, and to subject the prosecutions and trials of temporary or non-temporary protiSg^s, if they ever occur, to the rules that are applied in the capital. Furthermore and in conformity with that rule, no temporary prot^gS shall be arrested or imprisoned without the information and previous assent of the consul in whose service he is engaged; no part of the instrnction [trial] should be concealed from the consul, who on his part shall not refuse his assent, for ungrounded and un- acceptable motives, to the arrest and incarceration. On the other hand, the investigation, debates, hearing of witnesses who depose gainst or in favor of the culprit as well as the compilation of the Mazbata* is a succinct history of the case, the legal points in it and the judgment], shall take place agreeably to ancient treaties in the presence of the consul or his delegate, and the tribunal shall listen with the greatest attention to the observations which are consistent with law, regulations, justice, and equity that the consul or his delegate shall present to it. In a word, you shall above all things follow equity and impartiality ; this is one of your first duties in such law-suits and trials. The second paragraph of the fifth article has for its object to make it known that the withdrawal of Ottoman subjects, who are under a foreign protection from their natural jurisdiction, is a condition purely temporary and exceptional; they cannot even be fully exempted from military service and other obligations of the same kind. However, the third paragraph of this same article gives to consuls certain facilities for the choice of the Yassakdjis (cavasses) whom they shall employ in their service. The employes of consuls who enjoy ternporary protection shall be treated in other matters just as other prot^gfis, but they cannot claim to be better treated ; thus they can neither free themselves from paying the land-tax on their real estate, nor escape from the special imposts to which foreigners are subjected in accordance with agree- ments come to between the Sublime Porte and the powers ; this is what the eleventh article explains in detail. But, abusing those rights, temporary prot^g^s claimed to extend to certain members of their family, wife, children, or relatives, the privileges which they enjoyed, or to themselves enjoy those privileges as heretofore, when their functions had already ceased. This article has for its object to put an end to such abuses. The protection of Turkish subjects, prot^g^s, employed in consulates, ends with their service ; they shall of course be as well treated in every way as other native subjects ; they shall find every desirable protection and safeguard for their persons, family, and property. The Sublime Porte will not suffer them to be molested by any- body on account of their former condition of " prot6g6s." The sixth and seventh articles need no exnlanation. Articles 8 and 9 sanction two established principles, namely : The foreign protection of foreign interests when they are intrusted to an Ottoman subject ; the impossibility for an Ottoman subject to withdraw himself from his nationality when he is in the service of a foreign subject. The second paragraph of the eighth article establishes a wise rule, which is that of giving notice to the local authorities of the various contracts of partnership which may be executed between Ottoman and foreign subjects. It is very important to see that this rule is observed. The persons excepted from this rule arc : An attorney and a dragoman , native subjects employed in the service of each foreign monastery. These two persons alone shall enjoy the privileges of the protection accorded to the employes of consulates. In some localities consuls claimed to have a right of protection over certain Ottoman shop-keepers by founding their claim on a custom which bad ended by *The Mazbata. CAPITULATIONS OF THE OTTOMAN EMPIRE. 99 Sfe" pfte'aU 5^ in thistS,::f ""^ "^^^^'' ^""^ *'^« ^^^^ -'-^^ -- —-I to caBnot*b6^ixtonded^lnTh« nn?-^'"^ down the principle that the privilege of protection a foreign agent It is to the tact „f tlf« Vn?i= 5 T ''"'^ «"gage Dispatch to the British embassy, of June 25, 18.=i9. Eeceutly the grand council of the Vlemas protested against the intervention of Europe in the affairs of the country. S. Ex. 3 9 130 CAPITULATIONS OF THE OTTOMAN EMPIRE. ■with the reorganization of Moldavia and Wallachia, roughly drafting out the primary bases of the Roumanian union, which the Porte rejected. This union, rendered still more necessary by the double hospodar-eleotion of 18J>9, the suzerain had to accept of in 1861 ; and it was finally sanctioned iu 1867 by the international recognition of au heredi- tary prince.' In that very same year (1858) the foreign governments interposed in the struggle that had broken out between Turkey and Montenegro ; and from 1858 to 1861 they worked together in the negotiations that were to fix the frontiers of those two states.* At about the same epoch, the massacres of the Hedj&z called forth the appointment of English and French commissioners and the bombardment of Djeddah. Analogous but more energetic measures — for they were backed up by a French army corps— put an end in 1860 and 1861 to the Syria uprising.^ In 1862 and 1863 an European military commission determined the perimeter of the Belgrade citadel, and four years later the embassies dictated to the Sultan the firman whereby he gave up the occupation of this important war-post, as well as the four other fortresses of the Servian principality.'' During the Cretan insurrection in 1866, France, England, and Russia concerted to- gether for the adoption of a common line of conduct; France, Russia, Prussia, and Italy at first pronounced themselves for non-intervention. Nevertheless au identical note, more or less comminatory, was addressed to the Porte by the great powers as- sembled together, and it was under their auspices that the Cretan question received its solution.* 1 overlook, for the moment, in this rapid enumeration, the successive acts of European intervention that are connected with the insurrections of Bosnia, Herzegbvina, and Bulgaria, and with the last war of the East." Beyond and outside of these divers initiative actions, sealed by public treaties or by more or less solemn protocols, that are either common or individual, and by which the great powers of Europe have imposed their wills upon Turkey, whether in the reg- ulating of her social and political difficulties or in the fulfillment of her humanitarian duties, there is not one governmental interest as to matters internal but what the Divan has received, in relation thereto, more or less imperative directions from with- out [in the French, de V Stranger]. Let us consider, for example, Turkey's financial management. As early as 1857, one year after the Paris peace, England demanded a " substantial" European control over the operations of the Ottoman Bank. Upon her proposal, and in agreement with France, a "superior council of the treasury" was instituted two yeais later, which council included within itself a French delegate and a British dele- gate whose mission it was to reform the financial system of the state. After numerous loans, the fruits of foreign savings,' and under the rule of a disorder that was to bring about bankruptcy ; the governments intervened more than once in favor of their citizens,* and it finally came to pass that a congress discussed and adopted the idea of an European financial commission that should have to examine the claims of the bondholders of the Ottoman debt and propose the most efficacious means for meeting and satisfying the same.^ If such a development did not go beyond the limits of a simple review, one could show that in no branch of its administrative activity is Turkey more subordinated than in that of her financial economy, and that there is for her perhaps do complica- tion more alarming from the double point of view of her autonomy and of her integ- rity, than that which might authorize her creditors from without to lay bauds upon her revenues.'" Shall I say, further, in order to show whither can lead this surveillance exercised over Turkey in her character as debtor, that ambassadors have been known to surfeit the grand vizier on the subject of the Sultan's expenditures, for the marriage of his daughters, for the construction of his palaces, and even for his foreign journeys?" How many official remonstrances addressed to the Porte about the administration of justice, how many changes introduced into the organization of its tribunals, how many sentences revised under the pressure of diplomatic demands! The English and ' Paris conferences of 1858, 1859, 1864, 1867, &o. 2 Moniteur Frangau of March 1^, 185t?, Cunatantinople conferenoe and protocol of November 8, 18.58, &o. 8 Dispatfh of M. Thouvenel to the London embassy of July 17, 1860. Conference of Constantinople of June, 1861. ■iProtooolof Conatantinoplo of Septembers, 186S. Conference of Belgrade of February, 1863. Fir- man of lr67 ^Dispatch of Mr. Drnuvn do Lliuya of Aufinat 24, 1866. Identical and collective note of May 17, 1S67. HYeuoh Yellow-BooliS of 1867,'and of 1868, &o. * Berlin conferences of llie three noithern courts; sending of the British fleet toBeaika; Contan- tinople conference, &c. 'At least four such Joans .ire counted within ten years, irrespective of the local loans. ^English diapatchea ot January 17, and February 16, 1861, &o. "Berlin congress of 1^78, protocol of July 11. 'oit ia well known thai, in Egvpt there alreailv exifits an iuternatinnal commission of liquiGati ii. "Euii!ishdi...palohe8of May 14, l!^37 ; of August 16, 18.59; of May 19, 1863. CAPITULATIONS OF THE OTTOMAN EMPIEE. 131 Frencli Parliamentary collections famish only too mauy documents on this special point for it to be necessary to cite them here. ' As a characteristic feature of the Porte's judiciary dependence, I -will simply note here that even the Moslem tribunals are sought out in the exercise of their regular attributes. When speaking elsewhere of the capitulations," I brought out the point that in matters criminal the consuls, as avowed by the local authorities, interfered at times in the trial of certain actions, the cognizance of which was forbidden them. An analogous incident that keenly occupied public opinion took place lately in Constan- tinople. In March, 1880, the embassies had laid before the Porte apro memoria, wherein they protested against the insufficient punishment which it was supposed had been pronounced by a Turkish tribunal upon a Moslem subject convicted of assassination i committed against' a foreign subject.^ The Porte, it is true, objected that the snit ( was one belonging to it exclusively ; but it none the less admitted foreign co-operation by associating in its inquiry the different medical doctors of the diplomatic missions. Even the government personnel is not sheltered against these outside iuflaences, whether it be in matters concerning the high functionaries of the capital or provin- cial agents. How many appointments, but above all how many dismissals, brought about through or by the ambassadors or the consuls! It is England more than all others, be it here said, that has manifested in this re- spect a zeal so persevering that, at a certain epoch (which one could indicate) and in certain situations or circumstances, a depositary of the executive authority had to seek her approval and obtain after a certain fashion her investiture. Is there practically a branch of the public service that is absolutely withdrawn be- I yond foreign interference ? Is not one warranted.in asking this when in the secondary branches of the administration, such as the health office, the postal service, the public works, European agents are met with that hold an official commission from their gov- ernments ? Indeed, during the twenty years that preceded the last Eastern war the great powers conducted themselves toward Turkey as though they had taken up among one another the engagement which Russia was later on to invite them to, that, namely, of securing within the states of the Sultan a durable and efficacious European con- trol.' VI. There existed, none the less, since the treaty of 1853, a formal text that forbade the guaranteeing powers from mixing themselves up iu the relations of the Sultan with his subjects, and in the internal administration of the empire ; and the Porte did not fail to invoke it, as occasion required, against foreign undertakings.'^ This resource, it is true, did not at all avail the Porte in its great straits ; but it formed a portion of the arsenal of means that the Divan brought into play for divid- ing, as occasion rectnired, its ordinary counsellors. So inoffensive as it had remained, the Sultan had one day to give up this weapon that the Pans congress had left in his hand. On the Slst of March, 1877, the London conference put into a protocol the toi- lowing declaration : ,, , ^, ■ <. i- „„ „j. "The contracting parties propose to watch over, through their representatives at Constantinople, and their local agents, the manner in which the p>-onmes of the Turk- ish government shall be executed. If their hope should be ag.uii deceived, such a statlof things would be considered by tbem as incompatib e with their interests and the interests of Europe in general. In such a case, they will take c '"nsel in eotnmon as to the means that they may deem to be the most fitted to secure the well being of the Christian populations and the interests of general peace. „„^„„,.nnb of Not only did these enunciations annul the restriction of the second paragraph of Article 9 Jf the treaty of 185.5, but they substituted therefor *^f^'«°l"tytTca and principle, by making out of intarvention a common rule wherewith tl^« P»l\t;««;' ^"'^ consular missions of the Orient were henceforth to inspire themselves and by repre- senting the int ernal condition of Turkey as being of European interest ■ See especially the iDStrnotions published m the Bine-Books of 1856 to 1S75. determine the conditions and the time of the sentence of the tiibanal. ^Berlinonneressof 1878, proctooolslS, 16,anaiB. i„ia(!7 Thn Tnrki-h Governramitbronght '% is tme that in afflxins his si^naturo at the bottom of tli«Xtn"VecW 'thit'tblt 'Jlf^uSgL^t t^SiSrntKnf ^ir 'tht iyZlitZZT^.finU^tlZ:n have as its result or effect the , 132 CAPITULATION'S OF THE OTTOMAN EMPIEE. Is it necessary to bring ont tlie fact that promises, whose fulfillment the powers thus Tneant to watch over, and in case of need require, were summed np in a programme of reforms that the Porfe had officially communicated to them in 1875,' which pro- gramme was for the most part nothing else than a re-edition of the Hatti-Hamayoun ■of 1856 ? But the Irddeh of 1875 and the Hatti-Haniayoun of 1856 constituted veritable char- ters defining the political, civi), and religious rights of all Ottoman subjects, without -distinction of race or worship, and Jience no branch of the Turkish administration was ito escape from foreign control." The Congress of 1878, whose assembling Turkey had hailed as a sort of deliverance, ■drew tighter the sleeves of the straight-jackets of ' her autonomy by putting new bounds to this "relative independence," in regard to which the British plenipotentiary in particular was so exercised.^ Such are, on this head, the principal decisions of the Berlin assembly. As I have stated at the opening of this research, the constituting authority is the J essential attribute of every sovereign state. It is by exercising this authority in the plenitude of its liberty that a state sets up the principles of its existence and creates the organs of its life.^ Now, by the Berlin treaty the Porte has had to give up the right of organizing its own self throughout nearly the whole of its European provinces. It has given up this right for that part of its possessions situated to the north of the Balkans, that is to say, for Bulgaria, which without having ceased to figure upon the map of its territory, is clothed with, the right of establishing its own constitutional compact and of alone conducting its own affairs. It has given up this right, for the time being, as to Bosnia and Herzegovina, both of • which, whilst kept under its nominal authority, are to be ruled and administered by Austria- Hungary. It has given it up as to Eastern Eoumelia, upon which has been bestowed a special constitution by an international commission. It has given it up, in a certain measure, as to Crete, and as to all its other European provinces, having formally consented that the organic regulations applicable to those different countries should be beforehand submitted for examination to the commission for Houmelia. < And even in that which concerns the Asiatic provinces, or at least those inhabited by the Armenians, it has not onl.y come to an understanding with England in order to reform their institutions, but it is also bound to make known, periodically, to the great cabinets the measures it shall have taken to this end.^ I will add that the Turkish Government is no longer free in the choice of the chiefs called to govern Bulgaria and Eastern Eoumelia, nor even in the military occupation of the latter province, the bulwark of its own capital.^ I should like to close here the methodical exposition of facts by which I have sought to explain and account for the title, and justify the practical aim, of this essay. The reader will doubtless sufficiently account for [in his own mind] the exceptional appli- cation that has been made in Turkey of this right of intervention, as to which it is, furthermore, impossible to formulate a complete set of precise and invariable rules. I may be, however, permitted to cite a last and curious example of that which might be called /orei^n collaboration in the Ottoman Empire. VII. In the midst of the numerous mixed commissions that have followed one upon the other in the Orient during the past quarter of a century, and whose iisef ul labors have not always had the notoriety they merit, the European Commission of the Danube, that has, so to speak, become permanent, occupies a privileged place in the history of international relations. ^ pre ven lion of war between EiUssia and Turkey. On Ms part, the plenipotentiary of Italy made the validity of the protocol to depend upon the maintenance of the concord between the assembled powers. In any state of the case, however, the protocol remained obligatory for the other contracting parties. "War having been once entered npon, it no longer bound England and Italy in so far as it contained the , formal engagement to co-operate in coercive measures ; but it does not become any the less sure that those two powers have recognized, along with the others, that the internal condition of Turkey affected the interests of all, and that hence Europe had the right to forearm itself against the dangers that might arise therefrom for general peace. They thus formulated an absolute opinion, independent of the state of war, from which it was to be logically deduced tbat Turkey could not treat the Christian populations at its will and pleasure, and that the foreign governments were authorized, if nded be, "to intervene in the relations of the Sultan with his subieots," ' See in this respect the Berlin memorandum of May 13, 1876. ' In speaking of the Irddeh of 1875 the Duke Oeoazes wrote on the Iflth .lanuary, 1876 : " Never has any charter entered so completely into the quick of the iUs inherent in the administrative condition and ethnographic constitution of the Ottoman Empire." * An expression employed by Lord Salisbury in the second sitting of the Berlin congress. ^International hww dodified, Bluntschli, Article 69. ^ A. recent English circular invites tlie powers to remind Turkey of her engagements. '^Articles 3, 16, and 17, of the Berlin treaty. CAPITULATIONS OF THE OTTOMAN EMPIRE. 133 At the Vienna conferences of 1855, when the deliberations were brought to bear upon the second point of the peace preliminaries, the Austrian plenipotentiary suggested several plans [provisions "dispositions"] calculated to guarantee in an efficacious man- ner the freedom of navigation of the Danube. According to him, the future mixed commission , called to exert its action in the delta and at the mouths of the river, ought to functionate as an JEuropean syndicate, a term then not in use in diplomatic language, and which, in the eyes of the Russian plenipotentiary, implied certain rights of sover- eignty. Beyond this, the delta was to be neutralised, and Russia, the mistress of the river mouths, would not have kept safe jurisdiction over its own subjects. Barring this important restriction, the Danubian commissioners would have enjoyed, in the widest acceptation, the benefits of exten-itoriality. At the Paris Congress of 1856, and in consequence of circumstances that I have not at all to relate at this time, this programme was not at all adopted in its integrity ; but later on, under the sway of local necessities of a more or less urgent character (Turkey had been placed in possession of the mouths), the governments were success- ively brought to recognize, for their delegates on the Lower Danube,' the greater part of the immunities and extraordinary attributes which, at the beginning, were to have secured their independence as toward Russia. There arose out of this understanding npon practical issues a condition of things not only exceptional but unique, and which it is not without interest to here notice.' According to the acts of the Vienna Congress of 1815, commissions, set over rivers that are called " conventional," are composed exclusively of mandataries of the states bordering on the river. Purely deliberative (in French diliberatives, i. e., not having a vote but only a right to counsel) in character, such commissions have to discuss and recommend all measures dictated by the needs of common navigation. They cannot promulgate directly neither laws nor ordinances.' Bat the European Commission of the Danube, which comprises several agents of states not bordering on the river banks, is at one and the same time both [advisory] deliberative and executive. As a deliberating body, there is no question touching the merchant marine upon the river, the examination of which is forbidden it. The com- mission elaborates the regulations of police and navigation, the tariffs, and the plans of the hydraulic works that it considers opportune. When they have been once voted these projects [drafts] become obligatory, and the publication of the same is done by the commission itself. As an executive authority, its constituents have bestowed upon it a portion of the rights of a sovereign administration by entrusting it with the application of its own regulations, tariffs, and plans for bettering the river channel. To this end, it has under its orders a numerous staff of hands of various specialties, upon whom it confers a public character, and who take their oath of office before it. It is assisted by war ves- sels stationed at the mouths. Th^ European Danube Commission participates in the functions of the three kinds of power that represent a state. Not only does it prepare and promulgate in its own name the laws that govern, within the limits of the space under its authority, the [mercantile] navies of all nations, the execution of which laws it oversees through its own agents; but it also prosecutes all infractions committed against such laws. In- deed it has, as a superior tribunal, the right to annul, alter, or confirm the sentences pronounced in the name of the Sultan by the inspector of the Lower Danube and by the captain of the port of Sulina.* Its decisions are final, and France has admitted m principle that they can be valid in a foreign country. In other respects the commission acts as an autonomous government. It at times treats with the neighboring states without any intermediary. A direct arrangement has been come to between it and Turkey for regulating its relations with the local au- thorities. It has entered into telegraphic conventions and conventions of river police with the Roumanian administration. It has its revenues, and even its public loans. It possesses vast lands, establishments of different kinds, and steamboats flying a special flag recognized by most of the maritime powers. It is really a state Yithm a state ; and ic is--one can affirm it, thanks to this privilege— without precedent that it has succeeded in accomplishing a great and fruitful task. f„+i.„„t,„,.f i.i„ Thus (and it is on this account that I though t fit to annex this chapter to the short his- torical sketch of the interventions that the Divan has successfully provoked, toler - ?S"y, Om'aShk.*°ih^Sa^tSiX'cS^^^^^^^ M. Ed. Holier, and as chief engiueer, M. °?Sefin the Bevm to dmx Mondes of July 1, 1870, the Eesearohea or Inquiry [Etude] upon the mouthe "'4^ ae°Conventioual Kule of Government for International Streams, by Ed. Eugelhardt, 1879, ""^i?'?: J ^ * .,.ii«„r,=iin«tmmentanuexeatoproctocol341ofth6 24thof]!fovember, 1879, the Jad!^Sw"?bf fnnfecSSrof Z'SX*D^^^^ the captain of the port of Sulina are to be rendered in the name of the European commission. 134 CAPITULATIONS OP THE OTTOMAN EMPIRE. ated, or sustained"), Turkey, reinstated by Europe in its former Danubian territory, has had to give up to Europe the care of therein undertaking and therein carrying out a technical, administrative, and financial work, whereof she was deemed incapable of working up the plan, or of foreseeing and overcoming the difSeulties. To sum up — and it is only simple facts that I have put forward — the Ottoman Porte finds itself, as towards the continental powers, in that subordinate situation against which Prance and England had sought to forearm it in 1876 at the time of the negotia- tions of the three courts of the north in relation to the pacification of Herzegovina. That is to say, that " the Porte is in tutelage,"' and that " the daily oversight [or sur- veillance] whereof it is the subject, in its internal affairs, has reduced to nearly nought •its sovereign authority."^ A teaching is unfolded of its own self out of this only too evident conclusion, and one could enounce it with the certainty that it is afforded by a long and unvarying experience. Nevertheless, before formulating any judgment whatever upon the fate of an empire whose existence interests in such a high degree the equilibrium of Europe, it is well to take into account, as a whole, the work of renovation by which this em- pire has been trying for the past half century to get a place in the family of civilized states. Sueh will be the subject of a third and a longer research which will bear the .title : History or Eefoems in the Ottoman Empire. Paris, in the month of May, 1880. Additional Note. — Since these pages were written, the foreign missions accredited to Constantinople have addressed an identical note to the Porce, wherein they insist upon the speedy execution of the clauses of the Berlin treaty relating to the frontiers of Greece and of Montenegro, and to the reforms to be introduced into the provinces inhabited by the Armenians. That same note informs the Ottoman Government of the convocation of a conference intrusted with resolving, by mediation, the territorial question upon which the Divan has not been able to come directly to an understand- ing with the cabinet of Athens. ' DuVe Decazes' dispatch of January 10, 1876. 'Lord Derby's dispatches of July 14 and September 27, 1876. Cornell University Library JX 1568.U58 Capitulations of the Ottoman Empire. 3 1924 007 490 422