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 Foreigners in Turkey; their juridical sta 
 
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FOREIGNERS IN TURKEY 
 
 THEIR JURIDICAL STATUS 
 
FOREIGNERS IN TURKEY 
 
 THEIR JURIDICAL STATUS 
 
 BY 
 
 PHILIP MARSHALL BROWN 
 
 Assistant Professor of International Law and Diplomacy in Princeton 
 
 University. Formerly Secretary and Charge d'Affaires of 
 
 tlie American Embassy in Constantinople, and 
 
 Minister to Honduras 
 
 PRINCETON UNIVERSITY PRESS 
 
 PRINCETON 
 
 LONDON: HUMPHREY MILFORD 
 
 OXFORD UNIVERSITY PRESS 
 
 1914 
 
Copyright, 1914, by 
 Princeton University Press 
 
 Published October, 1914 
 
PREFACE 
 
 The rights and privileges of foreigners in Turkey- 
 are extensive and anomalous in character. 
 
 Under the extraordinary regime of the Capitula- 
 tions the Turks have retained but few of the rights 
 of territorial sovereignty in respect to jurisdiction over 
 resident foreigners. 
 
 The result of this condition of affairs has been an 
 attitude of irritating superiority on the part of the 
 privileged foreigner; a corresponding resentful hos- 
 tility on the part of the humiliated Turk ; and incessant 
 diplomatic controversies of a most trying nature. 
 
 When an official in the American Embassy to Tur- 
 key the writer came to realize the general need of a 
 clearer understanding in regard to the exact rights 
 of foreigners as distinguished from their privileges 
 and, in some instances, from their undue pretensions. 
 This understanding seemed necessary quite as much 
 for the purpose of doing justice to the sovereign rights 
 of Turkey as for the purpose of protecting the just 
 rights of foreigners. 
 
 To discover the precise juridical bases of these rights 
 was not an easy task because of the fact that the 
 sources of information were scattered, incomplete, and 
 required considerable comparative study. 
 
 This volume presents in somewhat condensed form 
 
iv PREFACE 
 
 the results of a special investigation begun several 
 years ago in Constantinople, and completed at Cam- 
 bridge, Massachusetts, largely by the aid O'f the re- 
 markable Ottoman Collection in the library of Harvard 
 University, and the helpful suggestions of George 
 Grafton Wilson, Ph.D., LL.D., Professor of Inter- 
 national Law in that institution. 
 
 The writer has aimed first of all to indicate the ori- 
 gins of so-called exterritorial rights; secondly, to set 
 forth in the form of a brief code the juridical rights 
 enjoyed by foreigners in Turkey; and thirdly, to 
 find a working hypothesis on which to base those 
 readjustments which are bound to come in the relations 
 between the Sublime Porte and the Powers if the 
 Ottoman Empire is to be allowed a normal, inde- 
 pendent development as an equal member in the family 
 of nations. 
 
 It is hoped that the material here gathered together 
 and the views presented may prove of some slight 
 value to those interested in this particular problem and 
 the unusual questions of international law it involves. 
 
 Philip Marshall Brown. 
 May 25, 1914. 
 
 Princeton, New Jersey. 
 
CONTENTS 
 
 CHAPTER PAGE 
 
 Preface iii 
 
 I — Origin of the Rights of For- 
 eigners 3-24 
 
 Introduction 3 
 
 Moslem law concerning foreigners 4 
 International usage concerning for- 
 eigners prior to 1453 ... 8 
 Legal status of non-Moslem Otto- 
 man subjects 18 
 
 II — The Capitulations 27-47 
 
 Charter of rights granted to Geno- 
 ese of Galata 27 
 
 Treaty of 1454 between the Turks 
 
 and the Venetians .... 28 
 
 Privileges granted to French in 
 
 1528 32 
 
 Treaty of 1535 between Sultan 
 
 Soliman II and Francis I . . 33 
 
 The French Capitulations of 1740 38 
 
 Modifications of Capitulations in 
 
 1867 42 
 
 III — The Juridical Rights of Foreign- 
 ers 51-97 
 
 A. Immunities of jurisdiction in 
 cases involving foreigners of 
 the same nationality ... 52 
 
 V 
 
CONTENTS 
 
 1. Jursidiction of consular tri- 
 
 bunals 
 
 2. Courts and procedure 
 
 3. Law administered 
 
 4. Execution of law 
 
 B. Immunities of jurisdiction in 
 cases involving foreigners of 
 different nationality . 
 
 1. Jurisdiction of consular tri- 
 
 bunals 
 
 2. Courts and procedure 
 
 3-4. Law administered. Execu- 
 tion of law 
 
 52 
 
 54 
 
 59 
 61 
 
 66 
 
 66 
 69 
 
 69 
 
 IV — The Juridical Rights of Foreign- 
 ers (Continued) 
 
 C. Immunities of jurisdiction in 
 
 matters affecting both foreign- 
 ers and Ottoman subjects . 
 
 1. Jurisdiction of Ottoman tri- 
 
 bunals .... 
 
 2. Courts and procedure 
 
 3. Law administered 
 
 4. Execution of law . 
 
 D. Inviolability of domicile 
 
 E. Special immunities . 
 
 75 
 
 75 
 81 
 
 87 
 89 
 90 
 92 
 
 Vi — Immunities of Jurisdiction and In- 
 ternational Law .... 
 Rights of foreigners the main con- 
 cern of international law 
 
 101-118 
 
 lOI 
 
CONTENTS vii 
 
 International private law an inte- 
 gral part of international law . 105 
 
 Opinions of international law publi- 
 cists 106 
 
 General conclusions .... no 
 
 Application of general conclusions 
 
 to problem 112 
 
 Suggested solution of problem . 114 
 
 Appendix. Regulations in force in 
 the Consular Courts of the 
 United States in the Ottoman 
 Dominions 119 
 
 Selected Bibliography .... 135 
 
 Index 139 
 
ORIGIN OF THE RIGHTS OF 
 FOREIGNERS 
 
CHAPTER I 
 
 Origin of the Rights of Foreigners 
 
 introduction 
 
 The origin of the exterritorial rights^ so long en- 
 joyed by foreigners in Turkey, as well as the perpetu- 
 ation of these special immunities, has long been 
 ascribed to the necessity of protection from the in- 
 equalities and rigors of Moslem law as applied to 
 non-Moslems.^ 
 
 It is also held that the existence of this regime of 
 exceptional privileges is derogatory to the sovereign, 
 independent rights of Turkey since its formal admis- 
 sion into the family of nations by the Treaty of Paris 
 in 1856.^ 
 
 A careful study of the subject, however, may lead 
 
 1 Exterritoriality, as has been pointed out by Bonfils and other 
 recent writers on international law, is a fiction which is inade- 
 quate and misleading. It is not true that a foreigner enjoying 
 so-called exterritorial rights carries with him his own laws, and 
 that he is subject to the jurisdiction of his own country: For- 
 eigners in Turkey, for example, hold land in accordance with 
 Ottoman law and jurisdiction. The term immunity of juris- 
 diction is much more accurate and satisfactory though exterri- 
 toriality has acquired by usage a definite place in the phrase- 
 ology of international law. See Bonfils, Droit International 
 Public, sections 337 and 693. See also Wilson and Tucker, 
 International Law, p. 142. (sth ed.) 
 
 2 Bonfils, Sec. 80. 
 
 3 Hall, International Laisf, p. 52 (6th ed.). 
 
4 FOREIGNERS IN TURKEY 
 
 one to doubt the correctness of both these points of 
 view. It is possible to regard this privileged status of 
 foreigners, not as a bitter humiliation for the Turk, 
 but rather as very much to his credit. Instead of 
 treating immunities of jurisdiction as exceptions to 
 international law, and hence, as affronts to Turkish 
 sovereignty, they may properly be regarded as evi- 
 dence of a more enlightened and a more liberal inter- 
 pretation of the law of nations than has yet been 
 granted in Europe, the place of its origin, though not 
 of its exclusive development, or application. 
 
 Recognizing therefore the existence of another point 
 of view of this subject than that generally accepted, 
 we may proceed first to an examination of the primary 
 causes and the peculiar conditions which gave rise to 
 these immunities of jurisdiction; secondly, to an 
 analysis of these privileges ; and thirdly, to a determin- 
 ation of their precise relation to international law. 
 
 MOSLEM LAW CONCERNING FOREIGNERS 
 
 The conventional method of explaining the favored 
 status of foreigners in Turkey is by adverting to the 
 fact that, according to the Koran all non-Moslems 
 must obtain special guarantees (eman), or be con- 
 sidered as members of the "house of war" (Dar-ul- 
 harb), with whom perpetual hostilities are enjoined 
 in the absence of a truce {soulh).* Such an explanation 
 
 * See Report on the Capitulations by Van Dyck in Senate Ex. 
 Doc. 3. Special Session of Senate of 46th Congress, p. 31. 
 See also D'Ohsson, Tableau General de L'Empire Ottoman, pp. 
 39-41- 
 
ORIGIN OF RIGHTS 5 
 
 is inadequate being but partially true, and only to be 
 accepted in a qualified sense. 
 
 It is true that the Prophet Mohammed seemed to 
 consider all mankind as divided into two opposing 
 camps: that of the "House of Islam" (Dar-ul-islam) , 
 and that of all unbelievers, the "House of war".^ But 
 Mohammed failed to maintain a rigid distinction in 
 this respect. As a practical statesman, if not as a 
 tolerant Caliph, he provided that all conquered non- 
 Moslems, might live in peace under Moslem jurisdiction 
 by paying tribute (haradj).^ Moreover, in the mass 
 of conflicting opinions attributed to the Prophet in 
 the Koran one finds frequent commands to observe 
 a particularly considerate attitude towards "the people 
 of the Book" (Kiafir-kitaby) ,'' as Mohammed chose to 
 denote Christians and Jews alike, in distinction from 
 genuine pagans or idolators (Mushrikin), towards 
 whom no mercy was to be shown.* 
 
 The designation of non-Moslems as members of 
 "the house of war," therefore, would seem to have no 
 practical value in determining the juridical status of 
 foreigners in Turkey. It may properly be considered 
 
 ^ The Koran, Sura XLVII, verse 4. "When ye encounter the 
 infidels, strike oflF their heads till ye have made a great 
 slaughter among them, and of the rest make fast the fetters." 
 
 ' Koran^ Sura IX, verse 29. 
 
 ' Koran, Sura V, verses 72, 73. "Verily they who believe, 
 and the Jews, and the Sabeites, and the Christians — whoever of 
 them believeth in God and in the last day, and doth what is 
 right, on them shall come no fear, neither shall they be put 
 to grief." 
 
 ^ Koran, Sura IX, verses i-S- 
 
6 FOREIGNERS IN TURKEY 
 
 as an approximate equivalent of hostis as applied by 
 the Romans to foreigners, or of barbarian as used by 
 the Greeks. 
 
 While Islam is truly "a gospel, code and constitu- 
 ition," it has, however, like the American Constitution, 
 jbeen amplified and adapted to altered circumstances 
 |in ways not probably anticipated by its founder. The 
 universally accepted authority in Moslem jurisprudence 
 in Turkey is the general code Midteka-ul-ebhar ("con- 
 fluence of the seas") drawn up by Sheikh Ibrahim of 
 Aleppo by order of Soliman II. (i 520-1 566). This 
 code comprises five codes, namely, the religious, civil, 
 commercial, political, and military codes.' It is to the 
 political code that we must refer in order to determine 
 the status of foreigners in Turkey from the Moslem 
 point of view. 
 
 Chapter III. of the political code, entitled Foreigners 
 in Moslem Lands, reads as follows : 
 
 When he enters with the express permission of the 
 sovereign or of his representatives, the foreigner ought 
 to enjoy in Moslem territory the protection of the laws. 
 Commentary. By this permission, protection and safe- 
 conduct (eman) is accoided to the foreigner who, in 
 consequence, is called Mustemin, that is to say, placed 
 under the protection of the State. If necessary, any 
 Moslem, provided he be a freeman, may also grant to a 
 foreigner at the frontier, entrance into the country, and 
 his guarantee should be respected.^" 
 
 " D'Ohsson, op. cit., pp. 39-41. Also, Miltitz, Manuel des 
 Consuls, Appendix VIII, volume I, containing excellent 
 resume of Ottoman legislation. 
 
 10 D'Ohsson, vol. IV, p. 37. Also, Steen .de Jehay, De la 
 situation legale des sujets Ottomans non-Musulmans, p. 21. 
 
ORIGIN OF RIGHTS 7 
 
 That nothing invidious is intended by this designa- 
 tion of Mustemin is proved by the interesting fact that 
 the same term is appHed to the Moslem in foreign 
 lands. 
 
 A Moslem should not go to a foreign land except 
 under the pledge of a public safeconduct. Commentary. 
 Likewise he should then bear the title of Mustemin, as 
 the foreigner in Moslem lands. (Chapter IV.)" 
 
 It would be difficult to express in simpler terms the 
 rights of foreigners under the law of nations than in 
 the words of this Moslem code : "when he enters with 
 the express (or implied) permission of the sovereign 
 or of his representatives, he ought to enjoy . . . the 
 protection of the laws." Such a liberal, tolerant point 
 of view conflicts with the theory previously alluded to, 
 namely that all unbelievers must be warred against 
 until they are conquered or obtain special guarantees 
 by means of a truce. 
 
 It is clear both by Moslem law and practice that a 
 foreigner {Mustemin) may enter Turkey without the 
 necessity of first obtaining specific guarantees by treaty 
 or otherwise; and that he is entitled to enjoy full 
 protection of the law. The most eloquent proof of this 
 fact is found in the experience of the Spanish Jews,^^ 
 who, driven forth by the Inquisition and deprived of 
 all foreign protection, found a welcome asylum under 
 the Star and Crescent, and were permitted to enjoy 
 
 11 D'Ohsson, vol. IV, p. 44- 
 
 12 Steen de Jehay, op. cit., p. 347- Also, Young's Csrps de 
 Droit Ottoman, vol II, sec. XXVIII. 
 
8 FOREIGNERS IN TURKEY 
 
 with other non-Moslem subjects of the Sultan exten- 
 sive immunities of jurisdiction. 
 
 We may therefore conclude that the theory of an 
 open and irreconcilable hostility between Moslem law 
 and the law of nations as regards the rights of foreign- 
 ers is not based on fact. We are obliged consequently 
 to look elsewhere for a satisfactory explanation of the 
 origin of the special immunities of jurisdiction so 
 long enjoyed by foreigners in Turkey. It is important 
 for this purpose to determine what had been the estab- 
 lished practice in regard to foreigners, of those nations 
 having relations with the Orient previous to the time 
 of the capture of Constantinople by the Turks. It is 
 also important to determine the legal status of those 
 non-Moslems who came under the domination of the 
 Turks. 
 
 INTERNATIONAL USAGE CONCERNING FOREIGNERS 
 PRIOR TO 1453 
 
 It has been remarked that "commerce has been the 
 cradle of international law." The venturesome trader, 
 whether on the Baltic or on the Mediterranean, was 
 the principal factor in the early development of the 
 rules of peaceful intercourse between nations.^^ The 
 Rhodian Laws undoubtedly had their origin in the 
 extension of commerce, as also the rules determining 
 the rights and duties of consuls.^* Thus, the alien 
 
 ^^ Hautefeuille, Histoire de Droit Maritime International, pp. 
 78-79. 
 
 "Wilson and Tucker, pp, 17-18, 189-191 ; Hautefeuille, op. cit., 
 PP- 95-99- 
 
ORIGIN OF RIGHTS 9 
 
 who at first was treated as barbarian and hostis, who 
 was denied any legal standing in the country where 
 he might be sojourning or domiciled for purposes of 
 trade, was able, nevertheless, through the exigencies 
 of commerce to obtain extensive privileges. What 
 precisely was the nature of those privileges, and how 
 far they had become established usage at the time of 
 the Turkish conquest of Constantinople are questions 
 of especial interest in determining the origin and nature 
 of the immunities of jurisdiction granted to foreigners 
 after the conquest. 
 
 Herodotus is authority for the statement that the 
 Phoenicians from Tyre settled at Memphis in Egypt 
 possibly as early as the reign of Proteus (1294-1244 
 B.C.), and that they were permitted to have separate 
 temples for worship.^^ King Amasis (579-526 B.C.), 
 according to Herodotus, allowed Greek merchants to 
 establish themselves at Naucratis, and permitted them 
 to be judged by their own magistrates according to 
 their own laws and customs.^® 
 
 The Athenians provided proxenoi to attend to the 
 wants of strangers and adjudicate their differences. 
 These officials enjoyed special privileges and immuni- 
 ties, and were often designated by the parent state of 
 the foreigners concerned.^'' 
 
 The office of praetor peregrinns was early instituted 
 at Rome to judge between foreigners, as well as be- 
 
 15 Herodotus, II, 112. 
 le/Wrf., II, 178-179. 
 " Miltitz, I, p. II. 
 
lO FOREIGNERS IN TURKEY 
 
 tween Romans and foreigners.^* The Emperor Clau- 
 dius (41-54 A.D.) granted to the merchants of Cadiz 
 the privilege of choosing their own magistrate and of 
 being exempted from the jurisdiction of the Roman 
 courts.-'® 
 
 The extraordinary privileges granted by the lavi^s 
 of the Visigoths in the time of Theodoric (453-466 
 A.D.) allowing foreign merchants in Spain to try their 
 cases before their own magistrates (telonarii) , would 
 seem to correspond closely to the privileges of for- 
 eigners in Turkey at the present time.^" 
 
 Justinian allowed the Armenians residing in Con- 
 stantinople to settle questions of marriage, inheritance, 
 etc., according to their own laws, — a privilege they 
 have enjoyed ever since.^^ 
 
 The Caliph Omar granted to the Greek Monks in 
 Palestine about 636 A.D., special privileges in the way 
 of exemptions from local jurisdiction.^^ 
 
 As early as the ninth century, Arab merchants 
 formed a settlement at the port of Canton, China, and 
 
 were allowed to be ruled and judged by their own 
 Cadi.23 
 
 18 Ibid., I, p. 14. 
 
 ■^^Ibid., I, p. 15. 
 
 2" Dum transmarini negcfciatores inter se causam, nuUas de 
 sedibus nostris eos audire .presumat, nisi tantummodo suis legi- 
 bus audiantur apud telonarios suos. Quoted by Miltitz (I, p. 
 161) from Leges Visigoth. Liv. XL Tit. III. Art. 2. 
 
 21 Edwin Pears, Fall of Constantinople, p. 144. 
 
 22 G. Pelissie du Rausas, Le Regime des Capitulations dans 
 L'\Empire Ottoman, p. 9. 
 
 2^ Wilhelm Heyd, Histoire de Commerce de L'Orient, II, 
 p. 246. 
 
ORIGIN OF RIGHTS n 
 
 There is evidence that Charlemagne in the ninth 
 century obtained from the Cahph Haroun-el-Raschid 
 special guarantees and privileges for French 
 merchants.^* 
 
 The entertaining account given in the Chronique de 
 Nestor^^ of the early diplomatic relations between 
 Russia and Constantinople discloses the interesting 
 fact that the Varangians (Warings),^* who were of 
 the same Scandinavian stock as the English, made 
 treaties with the Emperors of Byzantium in 907, 912. 
 and 945 A.D., containing stipulations of an exterri- 
 torial character. The treaty of 912 included provisions 
 for trial according to Rusian law, of Russians 
 charged with assault ; for the support of accusations by 
 oath or by credible witnesses ; for cases of shipwreck ; 
 for extradition ; and for the administration by Russian 
 representatives in Constantinople of the property of 
 Russians dying intestate.^'^ Nestor gives the text of 
 the treaty of 945, and as the earliest documentary 
 evidence of the granting of immunities of jurisdiction 
 to foreigners, it is of interest to quote here two 
 Articles, translated from the quaint French text of 
 Louis Paris.^* 
 
 If a Russian should attempt to steal from any one 
 in our Empire, he shall be severely punished for that act ; 
 and if he shall have accomplished the theft, be shall pay 
 
 2*Du Rausas, op. cit.„ p. 11.; Hautefeuille, op. cit., p. 96. 
 25 Louis Paris, Chronique de Nestor, Paris, 1834-35. 
 28 Gibbon, Decline and Fall of the Roman Empire, vol. IV, 
 ch. LV, sec. Ill; Pears, Fall of Constantinople, pp. 149-150. 
 2T Chronique de Nestor, pp. 36-44. 
 28 lUd., pp. 57-64- 
 
fa FOREIGNERS IN TURKEY 
 
 double the value of the object stolen. It shall be the 
 same for the Greek in respect to the I?.ussian ; the guilty 
 person, moreover, shall be punished in accordance with 
 the laws of his country. (Article IV.) 
 
 "If the Greeks who are under our sway should commit 
 any crime, the Great Russian Prince shall in nowise exact 
 satisfaction; but he will await the orders of our Tzar 
 (Emperor of Byzantium) for the infliction of the punish- 
 ment which their crime shall home deserved." (Article X.) 
 
 / ' We thus have five hundred years before the capture 
 
 lof Constantinople by the Turks treaty agreements 
 
 ( granting to foreigners very similar exterritorial privi- 
 
 I leges to those granted in turn by the Sultans of Tur- 
 
 I key, with this important difiference, however, that while 
 
 the earlier privileges were reciprocal in character, the 
 
 \ immunities of jurisdiction which still exist in the Otto- 
 
 )man Empire are entirely one-sided concessions on the 
 
 part of the Turks. 
 
 The practice of conceding to foreign merchants the 
 right to carry with them the jurisdiction of their own 
 laws outside their own territory became quite general 
 with the gradual extension of commerce. It is fitting 
 at this point to draw attention to the fact that as 
 stated by Professor Holland "the notion of a terri- 
 torial law is European and modern." The same 
 writer also observes that : 
 
 There is a stage in civilization at which law is 
 addressed, not to the inhabitants of a country, but to the 
 members of a tribe, or the followers of a religious system, 
 irrespectively of the locality in which they may happen to 
 be. This is the "personal" stage in the development of 
 law. The governments which the barbarians established 
 on the ruins of the Roman empire did not administer 
 one system of justice applicable throughout a given ter- 
 
ORIGIN OF RIGHTS 
 
 13 
 
 ritory, but decided each case that arose in pursuance of 
 the personal law of the defendant; so that, according to 
 an often-quoted passage in one of the tracts of Bishop 
 Agobard, it might well happen that "five men, each under 
 a different law, would be found walking or sitting to- 
 gether." In one and the same town the Frank, the Bur- 
 gundian and the Roman lived each under his own system 
 of law.^* 
 
 Treating of this same subject, Professor Emerton 
 has remarked that : 
 
 The German thought of his legal rights as belonging 
 to. him, not because he was a member of the state, but 
 because he was himself, the son of his fathers, and the 
 heir of all that had seemed right to them. His law was a 
 part of himself. He could no more change it or part with 
 it than he could change or part with his own existence. 
 If he went into the territory of another people, he carried 
 his law with him and looked to have it respected. This 
 notion of law is what is called by scholars the idea of 
 the "personality of law," as distinguished from the "ter- 
 ritoriality of law."^° 
 
 The particular instances we are considering of ex- 
 territorial privileges granted to foreigners should not, 
 therefore, be regarded as anomalous in character, but 
 rather as in accordance with usage which became gen- 
 erally recognized with the gradual extension of 
 commerce. 
 
 To continue our investigation: in the year 991, the 
 Greek Emperor at Constantinople permitted the Vene- 
 tians domiciled there to be judged by their own mag- 
 istrates (Bajuli) f^ and the "Golden Bull" (Bulla 
 
 ^^T. E. Holland, Elements of Jurisprudence, p. 401 (loth ed.). 
 s" Ephraim Emerton, Introduction to the Study of the Mid- 
 dle Ages, p. 75- 
 31 Pears, op cit., p. 158. 
 
14 
 
 FOREIGNERS IN TURKEY 
 
 aurea) of the Emperor Alexis, promulgated in 1199, 
 gave them the extraordinary privilege of haling his 
 own subjects in certain instances before Venetian 
 magistrates to be judged according to Byzantine law.®^ 
 The Venetian quarter of Constantinople which was 
 entirely withdrawn from local jurisdiction comprised 
 more than three eighths of the city.^^ 
 
 The Genoese in 1261 obtained permission to establish 
 on the opposite shore of the Golden Horn the separate 
 town of Galata where they maintained not only an 
 entirely distinct jurisdiction, but were even at times 
 openly hostile to the Imperial authorities of Constanti- 
 nople.^* During the siege of the city by the Turks in 
 1453, the Genoese promised to remain neutral provided 
 they were left in the undisturbed enjoyment of their 
 independent rights in Galata. It should be noted, in 
 passing, that while the Turks did not fully keep their 
 word in this respect, they did confirm to the Genoese 
 their immunities of jurisdiction. 
 
 The universality of the custom of granting exterri- 
 torial privileges to foreigners is evidenced by the dif- 
 ferent codes goveirnimg maritime intercourse from 
 early times. One of the cardinal principles of the 
 Hanseatic League was that its citizens should be judged 
 by their own laws and customs wherever they might 
 engage in commerce. ^^ The German merchants and 
 
 22 Sir Travers Twiss, Law of Nations, p. 450. (Ed. 1884.) 
 33 Heyd, op cit., I, 248. 
 
 3* Pears, p. 158; Heyd, I, 248; Hautefeuille, p. 99; Gibbon, 
 
 V, ch. LXIII. Miltitz, op. cit., II, pp. 80-90. See also infra, p. 27. 
 
 35 Miltitz, I, p. 141 ; Le regime des Capitulations by "Ancien 
 
ORIGIN OF RIGHTS 15 
 
 Other inhabitants of Wisby on the island of Gothland 
 in the Bahic evidently enjoyed from as early as the 
 1 2th century exterritorial privileges in the Republic 
 of Novgorod in Russia.^^ It is of interest to note 
 that while these privileges were granted under the form 
 of municipal statutes (Skraa), they were actually of 
 a reciprocal nature, and were possibly excerpts from 
 the famous Laws of Wisby, which served as a kind of 
 international law for the merchants of those northern 
 nations. That the Amalfitan Tables provided for ex- 
 territorial jurisdiction is evident from the fact that 
 Amalfi in 1093, if not earlier, maintained its own 
 consular court in the neighboring port of Naples.^'' 
 
 Several of the Italian cities, such as Pisa and Ragusa, 
 early obtained exterritorial privileges from the Greeks 
 and from the Saracens ; and after the conquests made 
 by the Crusaders the practice became general.^* Pisans, 
 Venetians, and other foreigners, including Moslems, 
 were allowed exterritorial jurisdiction in their own 
 quarters in Jerusalem, as well as in many other places 
 in the possession of the Latin conquerors, such as 
 Beirut, Jafifa, Cyprus, and Rhodes.^® 
 
 In 1 173, the Pisans obtained special concessions from 
 Saladin, Sultan of Egypt, on condition that they should 
 not transport any Crusaders!*'^ 
 
 Diplomat," p. 28; Pardessus, La Collection des lois maritimes 
 anterieWes au XVIII Steele, T.II.Qi.XIV. 
 
 ssMiltitz, I, pp. 401-408; Pardessus, III, pp. 493-494. 
 
 3' Pardessus, I, ch. 4. 
 
 38 Rausas, p. 12; Bonfils, op. cit., sec. 73s with note. 
 
 3» Heyd, op. cit., I, pp. 158-161. Rausas, ch. V. 
 
 *" Rausas, p. 12. 
 
1 6 FORiEIGNERS IN TURKEY 
 
 In 1229, the Venetians were granted by the Sultan 
 of Aleppo the right to establish a church, counting- 
 house, and magistracy of their own.*^ 
 
 The Mameluke Sultan, Maleck-Almazor, granted 
 the Genoese Consul in Alexandria at about this time 
 the right of jurisdiction in suits between Genoese 
 and Saracens, as well as between Genoese and other 
 Christians.*^ 
 
 King Louis, the Saint, arranged with the Sultan of 
 Egypt in 1252 for consular courts at Tripoli and 
 Alexandria.*^ 
 
 Somewhat later, on the initiative of the Sultan of 
 Egypt, an agreement was entered into with the Grand 
 Master of Rhodes whereby the latter was allowed to 
 have representatives in Jerusalem and other places held 
 by the Saracens. He was also permitted "to protect 
 all Christians, whomsoever, who might be exposed to 
 injuries or insults from Moslems."** 
 
 It is of especial interest to note that, while the 
 Christians were obtaining the above enumerated privi- 
 leges from the Saracens, the Moslems in turn residing 
 in Corsica and Sicily were allowed to have their own 
 judges and separate jurisdiction.*^ 
 
 So general had become the custom of according 
 special privileges to foreigners that by the beginning 
 
 *i D. B. Warden, The Origin, Nature, and Influence of Con- 
 sular Establishments, p. 52. 
 
 *2 Ancien Diplomat, p. 48. 
 
 ^3 Rausas, p. 12. 
 
 ** Ancien Diplomat, p. 48. 
 
 *5 M. F. Elie de la Primaudaie, Les Arabes en Sicilie et en 
 Italie, p. 319. 
 
ORIGIN OiF RIGHTS 17 
 
 of the 15th century, Italian Consuls possessing ex- 
 tensive judicial functions were to be found in The 
 Netherlands*® and even in London. And finally, as 
 perhaps the most significant of all these various early 
 instances of exterritorial jurisdiction, we have the 
 extraordinary fact that sixty years before the capture! 
 of Constantinople the Turks had been permitted to 
 have in that city their own Mahometan community 
 under the administration of a Cadi in accordance with 
 Moslem Sheri law.*'' 
 
 It may be claimed that many of these concessions 
 granted to foreigners were for services rendered; for 
 promises of support, as in the case of the Genoese. It 
 may also be asserted that this practice was based on 
 mutual prejudice and distrust: that foreigners would 
 not trust themselves to the jurisdiction of other nations. 
 It may be insisted that all such privileges were obtained 
 mainly through the exigencies of commerce, — from 
 the necessity of giving a quid pro quo rather than from 
 a liberal, tolerant conception of the rights of aliens. 
 The subject certainly admits of discussion and perhaps 
 of controversy. It would, however, serve no particular 
 purpose at this point to do more than emphasize the 
 important fact, that when the Crescent supplanted the 
 Cross on the dome of St. Sophia, it had become the 
 almost universal custom to grant to foreigners ex- 
 tensive immunities of jurisdiction. 
 
 *" Bonfils, sec. 737 with note ; Miltitz, IT, p. 152. 
 *^ Ancien Diplomat, p. 47. 
 
FOREIGNERS IN TURKEY 
 
 LEGAL STATUS OF NON-MOSLEM OTTOMAN SUBJECTS 
 
 The principal concern of Mohammed the Conquerer 
 immediately after the capture of Constantinople was 
 the establishment of an effective system of administra- 
 tion which should relieve the government of needless 
 embarrassments, and prove suitable to the needs of his 
 newly conquered Christian subjects. 
 
 His idea was extremely simple. He aimed to leave 
 the Greeks to the fullest practicable extent in the free 
 enjoyment of their own laws and customs under the 
 responsible control of their Patriarch who should serve 
 as their intermediary or ambassador before the Sublime 
 Porte. Within four days after his triumphal entry into 
 the capital, Mohammed induced the fanatical monk, 
 Georges Scholarius, to occupy the vacant throne of the 
 Patriarchate.*® The Sultan himself assisted in state at 
 the investiture of the new Patriarch, on whom, as 
 the spiritual successor of the Greek Emperors, Mo- 
 hammed conferred the unusual title of Mil'let BasJn, 
 "Head of the Nation."*^ He also solemnly granted to 
 the Patriarch and his successors, an almost unrestricted 
 jurisdiction over the members of the Greek "nation." 
 Unfortunately, the original Berat of Mohammed con- 
 firming these extraordinary privileges has disappeared. 
 Successive Sultans have most explicitly reaffirmed 
 
 ■** Steen de Jehay, op. cit., pp. 87-90; Sir Charles Eliot (Odys- 
 seus) Turkey in lEurope, pp. 266-267. (Ed. 1900.) 
 
 *" The term mil'let, meaning nation, has been replaced in 
 Turkish official documents by djema'at, signifying community. 
 Steen de Jehay, p. 83. 
 
ORIGIN OF RIGHTS 
 
 19 
 
 them, however, and except for curtailments which were 
 inevitable in the progress of four centuries and more, 
 these exceptional powers are still asserted by the Greek 
 Patriarch, as well as by the heads of other religious 
 communities which later received similar grants.^" 
 
 Although the judicial functions of the Mil' let Bashi 
 have gradually become reduced to questions affecting 
 principally the personal status'^ of members of the 
 various communities, such as marriage, divorce, dowry 
 and inheritance, the tendency of these communities to 
 maintain a national solidarity and political exclusive- 
 ness has been very marked. The collection of taxes 
 has usually been made through the heads of these 
 Mil' lets, ^^ — an arrangement which, while convenient 
 for both the Government and its non-Moslem subjects, 
 serves very distinctly to emphasize their peculiar juri- 
 dical status as tributary nations under the suzerainty 
 of the Sultan. The invidious capitation tax (kharadj), 
 formerly extracted from Christians in token of sub- 
 mission, as well as the offensive designation of Rayah 
 
 '" Young, Corps de Droit Ottoman, II, sec. XXII ; Steen de 
 Jehay, ch. II; Eliot, op. cit., pp. 296-297, 302; Baron de Testa, 
 Receuil des Traites de la Porte Ottomane, vol. V, p. 170. 
 
 ''I Bluntschli in the note to section 379 of his Droit Interna- 
 tional, (ed. 1874) says : "Le principe du status personnel, en 
 vertu duquel la loi du pays d'origine suit la personne partout ou 
 elle se rend, s'applique sur tout aux questions relatives a I'etat 
 et a la capacite des personnes et aux successions; c'est ce meme 
 principe qui determine les conditions requises pour la validite 
 d''un mariage, les questions de tutelle, les conditions requises 
 pour succeder, etc." See also Young, II, p. 2; Steen de Jehay, 
 p. 12. 
 
 5" Steen de Jehay, note on p. 11. 
 
20 FOREIGNERS IN TURKEY 
 
 (sheep), has been aboHshed. In its place was substi- 
 tuted in 1856 the mihtary exemption tax (bedel-i- 
 askerye) which has naturally fallen almost entirely 
 on non-Moslem subjects owing to the unwillingness 
 of the Turks to incorporate any unbelievers in the army, 
 and on the other hand, to the unwillingness of the 
 non-Moslems to serve in the army.^^ 
 
 The question of compulsory military service and 
 other questions concerning the right to vote and the 
 alleged right of national representation in the Turkish 
 Parliament, raised after the Revolution of the Young 
 Turks in 1908, have all served to reveal the extraor- 
 dinary pretensions of the Greek and Armenian 
 Patriarchs, as well as of the heads of the other com- 
 munities, to represent their "nations" in a political, 
 capacity before the Sublime Porte. One of the chief 
 embarrassments of the new constitutional regime in 
 Turkey was the unwillingness of the various com- 
 munities, particularly that of the Greeks, to sub- 
 ordinate their national sentiments to the broader and 
 superior claims of Ottoman nationality.^* 
 
 Such an abnormal state of affairs, — the existence of 
 veritable imperia in imperio, — cannot be expected to 
 continue indefinitely. But as concerns those immuni- 
 
 ^^ Ibid., pp. 8-11. The Young Turks after their revolution of 
 1908 tried compulsory military service as a means of Ottomaniz- 
 ing their diverse non- Moslem fellow subjects. It was found, 
 however, that this plan would not work, and it was accordingly 
 abandoned. 
 
 s* The Young Turks perhaps committed an irretrievable blun- 
 der in treating with the respective religious communities as 
 distinct nations, and in determining representation in parliament 
 
ORIGIN OF RIGHTS 21 
 
 ties of jurisdiction in matters relating to the personal 
 status of non-Moslem subjects which were granted 
 spontaneously by Mohammed the Conqueror as an act 
 of constructive statesmanship, it would seem likely that 
 such privileges would continue to exist for a long time 
 to come. 
 
 The reason for the perpetuation of these privileges,' 
 in last analysis, is to be found in the fact that the 
 Moslem confounds race, religion, and law, as one and 
 the same thing. The Sheri, — ^the union of the Koran 
 and all sacred law,' — is the basis of all Mohammedan 
 law and legislation on an immense variety of subjects. 
 Its prescriptions both as to rights and obligations can 
 only apply in toto to the followers of the Prophet. If 
 this be true in such matters as questions of personal 
 status, then non-Moslems, as well as Moslems, must be 
 permitted to observe their own laws and customs.^^ 
 
 on the basis of nationalities rather than on a strictly Ottoman 
 basis. Correspondence and diplomatic negotiations with the 
 Greek Patriarch on the subjects of recruitment, electoral rights, 
 etc., were carried on by the Grand Vizier as if with the am- 
 bassador of an independent nation. 
 
 5^ The observations of Du Rausas (p. 19) in this connection 
 are of interest : "Or la loi religieuse est necessairement person- 
 elle. Elle est faite pour les croyants et pour les croyants seuls; 
 elle ne regit et ne protege qu'eux. Tous les rapports juridiques 
 se resolvant en rapports religieux, le droit est en quelque sorte 
 une grace divine dont seule peuvent beneficier les adeptes de la 
 religion." Steen de Jehay (p. 22) also presents some interesting 
 observations in the same connection : "Quel devait done etre 
 le traitement a reserver aux infideles soumis par la conquete 
 dans tous les cas oil la loi musulmane ne pouvait ni leur etre 
 appliquee ni etre acceptee par eux? Le Scher'i lui-meme dis- 
 tingue a cet egard entre les idolatres ou atliees (muchrik) et les 
 
22 FOREIGNERS IN TURKEY 
 
 Thus while Mohammed may have been actuated by 
 tolerant and statesmanlike motives in according such 
 extensive privileges to his conquered subjects, he was 
 also trying to solve a peculiar problem having its origin 
 in the Moslem conception of the identity of the state 
 and religion. The same laws, under this conception, 
 could not apply equally to both Moslem and non- 
 Moslem. The solution of the difificulty was simple 
 and reasonable. If in certain respects Moslems may 
 invoke from the authorities of the state the application- 
 of Moslem law, then it follows that non-Moslems may 
 likewise invoke the application of their own laws under 
 similar circumstances. As the Ottoman authorities 
 are not competent to administer such laws, the non- 
 Moslems have the right to appeal to their religious 
 heads, the Mil'let Bashi. The latter thus become, in a 
 sense, political authorities acting in place of the Otto- 
 man authorities, and to that extent are to be considered 
 as heads of their respective "nations." While this has 
 
 kafir-kitabi, c'est-a-dire ceux 'dont la religion est contenue dans 
 un livre.' Les premiers 'n'ont d'autre alternative que de croire 
 ou de mourir; les autres sont admis, et faisant leur soumission 
 aux Musulmans victorieux, a conserver, sous le nom de simmis 
 et plus tard, sous celui de \rayahs, leur vie, leurs biens et meme 
 leur religion, ainsi que tout ce qui, dans leur organization, leurs 
 moeurs, leurs coutumes et leurs lois, etait, aux yeux des Arabes, 
 inseparable de la religion.' 
 
 Les Sultans Osmanlis ne firent pas autre chose qu'appliquer 
 ces regies lorsqu'ils eurent renverse I'Empire byzantin. Etant 
 kafir-kitabi, les rayahs ne pouvaient etre traites en esclaves. II 
 fallait se borner a exiger d'eux un tribut. II fallait aussi, pour 
 tous les cas ou ils ne seraient pas mis sur le meme pied que 
 les Musulmans, leur donner une loi speciale ou leur permettre 
 se regir suivant leurs lois propres." 
 
ORIGIN OF RIGHTS 
 
 23 
 
 created some embarrassments for the Turkish authori- 
 ties, they have at the same time been relieved of the 
 more embarrassing obligation of assuming jurisdiction 
 in matters foreign to Moslem law and usage. The 
 solution of the problem reached by Sultan Mohammed 
 in granting immunities of jurisdiction to his non-Mos- 
 lem subjects may therefore be considered on the whole 
 as wise and satisfactory. 
 
 What were precisely the immunities of jurisdiction 
 to be enjoyed by these communities; and just what 
 relation these national organizations should bear to the 
 Porte, are questions which have given rise to much 
 controversy. The essential fact to be noted is simply 
 that the Turks in the midst of a great triumph spon- 
 taneously and generously recognized the right of the 
 conquered to be governed by their own laws and cus- 
 toms in matters held sacred by the Moslems, as well 
 as in matters not of vital concern to the state. 
 
 It is evident then that this tolerant policy was in 
 no way antagonistic to the spirit or the letter of Islam. 
 It was, in fact, in entire harmony with the Moslem 
 system of jurisprudence, and eloquently refutes the 
 universal reputation for intolerance so unjustly at- 
 tributed to the Turks. This policy, moreover, was in 
 harmony with the generally recognized practice of na- 
 tions at that time. Christian and Moslem rulers as we 
 have seen, were already accustomed to accord to the 
 subjects of each other reciprocal privileges of an ex- 
 territorial character. It likewise had been the practice 
 of Mohammedan conquerors very much as the English 
 
24 FOREIGNERS IN TURKEY 
 
 have done in India^® to leave the subjugated races in 
 the fullest enjoyment of their own laws, whether in 
 Sicily under the Arabs^'^ or Spain under the Moors.^* 
 
 Whatever may have been the reasons and motives 
 guiding the Ottoman Turks in their policy towards 
 their non-Moslem subjects, whether of tolerance, 
 statesmanship, or practical necessity, it is sufficient for 
 the purpose of determining the origin and nature of 
 the exterritorial privileges of foreigners in Turkey, 
 simply to note in this connection that, without the aid 
 of powerful armies or battleships, the Christians and 
 other subjects of the Sultan received extensive immuni- 
 ties of jurisdiction resembling in certain respects those 
 subsequently granted to foreigners. 
 
 ^8 Holland, op. cit., p. 401. 
 
 5^ Qui Siciliam, Sardinian!, Corsicamque incolebant populi 
 Christian! tempore, quo Arabes insulas illas occuparent, Grae- 
 corum, quorum tum parebant imperio, jure utebantur. Cujus 
 juris fundamentum illi legum codices erant, quos imperator 
 Justinianu, Triboniani maxima opera, condiderat, etc. Johann 
 Geor. Wenrich, Rerum ab Arabis in Italia, etc. p. 280. 
 
 "8 According to S. P. Scott in his History of the Moorish 
 Empire in Europe (p. 265) the Moors respected the ancient 
 laws and usages in Spain as far as was consistent with public 
 policy. 
 
THE CAPITULATIONS 
 
CHAPTER II 
 The Capitulations 
 
 Having noted the policy of Sultan Mohammed to- 
 wards his non-Moslem subjects, we may now turn to 
 the consideration of the privileges accorded by that 
 Monarch to foreigners residing within his newly ac- 
 quired dominions. 
 
 Reference has already been made to the fact that a 
 few days after the capture of Constantinople on May 
 29, 1453, Mohammed confirmed the exterritorial privi- 
 leges previously enjoyed by the Genoese of Galata 
 under the Greek Emperors. As the first formal state- 
 ment of the policy regarding foreigners subsequently 
 followed by the Turks with almost unvarying con- 
 sistency, the charter^ of rights granted to the Genoese 
 is of particular interest. It runs in part as follows : 
 "I, the Great Seigneur, the Great Emir, Mohammed 
 Bey, etc., etc., ... I swear by God the creator of the 
 heavens ... by the seven variants of the Koran which 
 we confess, etc., . . . that / concede to the inhabitants 
 of Galata their laws and franchises. . . . The walls of 
 Galata shall be razed ; but the inhabitants shall preserve 
 their goods, houses, shops, vineyards, mills, ships, boats, 
 women, and their children. . . . They shall retain their 
 churches and their hymns; but it shall be forbidden 
 
 1 Joseph von Hammer, Geschichte des Osmanischer Reichs, 
 vol. I, pp. 675-678. 
 
 27 
 
28 FOREIGNERS IN TURKEY 
 
 them to ring the bells, etc., etc." Thus, while Galata 
 ceased to exist as an independent municipality, its in- 
 habitants retained the right to choose their own magis- 
 trates and settle their differences according to Genoese 
 laws and customs. 
 
 It is of special interest to note that the political and 
 commercial privileges conceded to the inhabitants of 
 Galata were quite analogous to those granted to the 
 merchants of Genoa by the Sultan of Egypt in 1290.^ 
 In other words, the confirmation by Sultan Mohammed 
 of the ancient privileges enjoyed by the Genoese under 
 the Greek Emperors, was not merely a special, isolated 
 act of a novel character, or the recognition simply of 
 an old custom which the Turks by reason of their 
 reverence for custom in general might have felt 
 constrained to recognize. It was rather the acknowl- 
 edgment of the general practice of the times, — a 
 conformity to the accepted rules of international 
 intercourse. 
 
 This charter of rights, however, was of a municipal 
 character rather than an international obligation, being 
 a grant, not to a foreign nation, but to certain for- 
 eigners residing within Turkish dominions. The treaty 
 of peace concluded at Adrianople April 15, 1454, be- 
 tween Venice and Sultan Mohammed, on the other 
 hand, was a formal international agreement of a reci- 
 procal nature.^ As the precursor, if not the prototype, 
 of those later agreements between Turkey and other 
 
 ^Miltitz, op. cit., II, ch. I, sec. Ill, art. I, p. 109. 
 2 Pierre Daru, Historia della Republica di Venezia, libro XVI, 
 sec. XV, p. 281. 
 
THE CAPITULATIONS 29 
 
 nations, commonly termed Capitulations,* this compact 
 is of importance and worthy of special consideration. 
 
 It should be remembered that the Venetians residing 
 in their quarter along the Golden Horn in Stamboul, 
 unlike the Genoese of Galata on the opposite shore, 
 had been completely identified with the Greeks in a 
 common resistance to the Turks, and consequently had 
 suffered severe penalties on the capture of the city, the 
 chief Venetian magistrate having been decapitated and 
 many Venetian nobles thrown into prison. ° The treaty 
 of Adrianople® while of general import as regarding 
 the commercial and other interests of Venice, aimed 
 
 * A forced significance has been given to the term Capitulation 
 as if it implied the submission of unbelievers to the Moslem 
 Caliph in order to obtain peace. This conception has some basis 
 m the fact that Soulh, the Arabic word employed in the early 
 Capitulations, means truce, — the cessation of war. But this can 
 hardly be held to have any other import than peace in the gen- 
 eral sense, as employed in many treaties of peace, amity, and 
 commerce, which signify, not the conclusion of war, but the 
 agreement of two nations to live at peace with each other. 
 Baron de Testa, in his Receuil des Traites etc. (vol. I, p. 6), 
 asserts that the correct word for Capitulation is Ahd-nameh, 
 meaning "letters of privilege." This seems entirely logical in- 
 asmuch as the early Capitulations were in the form of a grant, 
 or charter of privileges accorded to foreigners by the Sultans. 
 The fact that these privileges were set forth under various 
 headings {caput, capittda), as statutes, or ordinances, gave rise 
 to the vernacular use of the term Capitulations, which in the 
 ordinary acceptance of the word as originally employed by the 
 Italians, viz., capitulazione, meant nothing more than a con- 
 vention, an agreement expressing in orderly form the various 
 stipulations agreed upon. See also, Belin, Des Capitulations et 
 des Traites de la France en Orient, p. 9. 
 
 " Miltitz, vol. II, p. 73 ; Daru, op. cit., libro XVI, p. 277. 
 
 Daru, libro XVI, sec. XIV, pp. 281-286, 
 
30 FOREIGNERS IN TURKEY 
 
 particularly to determine the status of Venetians re- 
 siding in Turkey. Among its many provisions were 
 included one for the mutual rendition of criminals; 
 another for the custody and settlement by the Venetian 
 Consul (Bailo) of the estates of Venetians dying in- 
 testate or without heirs ; and also a unique agreement 
 on the part of the Sultan to make indemnification for 
 Venetian property destroyed during the capture and 
 occupation of Constantinople. '^ 
 
 A provision calling for special mention is one fixing 
 a duty of 2 per cent on all goods sold by Venetians in 
 Turkish ports. In thus including import duties in a 
 solemn treaty agreement, Turkey brought on itself in 
 the course of centuries a most unfortunate situation, 
 such that it cannot today change its customs tariff with- 
 out first obtaining the consent of all nations with whom 
 it has treaties. As this consent in each case can only be 
 obtained as a rule by the concession of a substantial 
 quid pro quo, a virtual servitude of a singularly harsh 
 nature was thus innocently established by these early 
 treaties of the Porte. 
 
 The provision of the Venetian treaty of 1454 which 
 
 is pertinent to our present investigation reads as 
 
 follows :^ 
 
 . . . the Signoria of Venice may freely send to Con- 
 stantinople a Bailo, together with his suite according to 
 usage, who is free to rule in a civil capacity and govern, 
 
 '' Ibid.; Che il Gran Signore si obbliga a ristorare tutti i danni 
 si nell'avere che nella persona patiti per opera di Turchi da 
 Veneziani nella presa di Constantinopoli, purche idoneatnente 
 provati. 
 
 8 Ibid., p. 28s. 
 
THE CAPITULATIONS 
 
 31 
 
 and administer justice between Venetians of all classes, 
 the Sultan obligating himself to require the Pasha, or 
 Serasker (chief military officer) of Roumelia to grant 
 every assistance to the Bailo, whenever requested, for 
 the carrying on of his functions. 
 
 Here again we have not only a confirmation of 
 ancient privileges, but also a further recognition of 
 universal practice by the Turks. The Venetians had 
 previously obtained quite similar privileges in 1238 
 from the Sultan of Egypt, Melek-el-Adel. But of 
 greater interest is the fact that Aladin, the Turkish 
 Sultan of Konia, entered into a treaty agreement of a 
 reciprocal character with the Venetians in 1219, 
 whereby nationals of the one party enjoyed in the 
 dominions of the other immunities of jurisdiction in 
 all matters not of a criminal nature." 
 
 Thus, the exigencies of Moslem jurisprudence, re- 
 spect for the ancient usage of the Greek Empire as 
 well as that of the Turks themselves, and respect for 
 the generally accepted rules of international inter- 
 course; all combined to induce Sultan Mohammed to 
 grant by this treaty of 1454 with Venice exterritorial 
 
 ^ The provision of this treaty conceding the immunities men- 
 tioned, is given by Carlo Antonio Marin in his Storia civile .e 
 politica del commercio de Veneziani as follows : "Se nascesse 
 litigio tra Veneto ed un d'altro nazione, — Latinorum, Pisanorum 
 e aliarum gentium cioe ■di'ogni altra nazione che non fosse Latina, 
 dovra esso litigio esser giudicato dai piu probi tra i Veneti, 
 excepta plaga gladii, & excepto latrocinio, vale a dire i delitti 
 criminali, i quali esser denno giudicata dal Soldano, e dalla sua 
 Corte. 
 
 Dall altro cauto il Despota Tiepolo (then Ambassador) pro- 
 metta al Soldano a nome del Doge di osservare del Veneto 
 stato e giurisdizione le stessissima condizione." 
 
32 
 
 FOREIGNERS IN TURKEY 
 
 privileges which with slight variations have persisted 
 through the different Capitulations between the Porte 
 and the separate Italian States until this present day. 
 
 While the Genoese charter of rights of 1453, and the 
 Venetian treaty of 1454 decided in principle the atti- 
 tude of the Turks towards foreigners, and were the 
 precursors of other treaties on the subject, it was not 
 until the first part of the sixteenth century that the 
 definite foundation stones of the regime of the Capitu- 
 lations were laid. 
 
 In the year 1528, Sultan Soliman II formally con- 
 \,farmed the privileges long enjoyed by the French and 
 Catalan merchants established at Alexandria, Egypt. 
 This charter of rights prescribed principally the rules 
 to be observed in all commercial transactions ; but as a 
 necessary guarantee for complete freedom of trade, it 
 also prescribed the special immunities of jurisdiction 
 of the merchants concerned, as well as the privileges of 
 the consuls. In addition to a general guarantee from 
 hindrance and annoyance, these Capitulations defined 
 the juridical status of the merchants as follows ■.^° 
 
 // any difference should arise between Franks^'^ and 
 Catalans, the Consul should decide, unless, however, there 
 may have been shedding of blood, in which case our chief 
 officials (presidens) shall try the case. . . . And in conclu- 
 sion, in all their acts and negotiations, that they should 
 proceed in the ancient ways without innovation of any 
 sort, etc., etc. . . . In conformity with which we command 
 that all that is here above written be conceded to the 
 
 i»Ancien Diplomat, p. 49; Miltitz, II, bk. II, p. 208. 
 11 The word currently employed in Turkish to designate all 
 Europeans is Efrenji, an obvious corruption of Frank. 
 
THE CAPITULATIONS 
 
 33 
 
 nations of the Franks and of the Catalans and other 
 nations under the jurisdiction of their consul. 
 
 The quaint phraseology of this old document, as well 
 as the absence of data showing exactly what were the 
 "ancient ways" of carrying on business in Alexandria, 
 leaves some uncertainty as to the full scope of the im- 
 munities granted. Judging, however, by other similar 
 Capitulations of the Sultans of Egypt with Pisa and 
 Florence, it may be presumed that the merchants of 
 France, Catalonia, and other nations, were quite free 
 to govern themselves and settle their own dififerences 
 without any interference on the part of the local au- 
 thorities. Nothing is indicated as to how differences 
 between natives and the merchants were judged. 
 
 More definite, complete, and formal were the solemn 
 treaty engagements^^ of Sultan Soliman in 1535 with 
 Francis First of France, who, from the time he was 
 a prisoner in the hands of Charles the Fifth, had 
 labored to bring about an alliance with the Turk 
 against their common abhorred enemy, the House of 
 Hapsburg. 
 
 This general treaty of peace, amity, and commerce 
 may be considered as the real commencement of the 
 regime of the Capitulations whereby foreigners in 
 Turkey have come to enjoy such extraordinary privi- 
 leges. Certainly all subsequent treaties were closely 
 modelled on this treaty ; and other nations have claimed 
 as favorable treatment as therein accorded to France. 
 In fact, it is stated in the body of this compact that the 
 King of France reserved the right on behalf of the 
 12 Ancien Diplomat, pp. 60-66. 
 
34 FOREIGNERS IN TURKEY 
 
 Pope, the King of England, and the King of Scotland, 
 to adhere to the treaty should they so desire.^^ 
 
 It is of fundamental importance, therefore, to con- 
 sider briefly the specific provisions of this epoch-making 
 document which determined the juridical status of the 
 French and other foreigners within the dominions of 
 the Grand Seigneur. 
 
 Article III. . . . whenever the King shall send to Con- 
 stantinople or to Pera or other places in this Empire a 
 magistrate (Bailie), just as he has at present a Consul at 
 Alexandria, said magistrates and Consul should be re- 
 ceived amd maintained in authority, in a fitting manner, 
 and according to their Faith and law, without that any 
 judge. Cadi, Soubashi, or other officials should intervene 
 in, hear, judge or decide, whether in civil or criminal 
 matters, any lawsuits, trials, or disputes, which may arise 
 between merchants amd other subjects of the King. But 
 in case the orders and decisions of said magistrates and 
 consuls should not be obeyed, and they should need the 
 Soubashi or other officers of the Grand Seigneur in order 
 to carry out their orders and decisions, the said Soubashi 
 and other officers needed, should give their help and the 
 force necessary. Nor may the Cadis or other officers of 
 the Grand Seigneur judge any disputes of said merchants 
 and subjects of the King, even though said merchants 
 should so request; and if by chance said Cadis should 
 judge, their decisions should be of no effect. 
 
 This article is so explicit and comprehensive as 
 to require no special comment. It is of interest, how- 
 
 i'*" Le Roy de France a nomme la Saintete du Pape, le Roy 
 d'Angleterre son frere et perpetual confedere, et le Roy d'Ecosse, 
 ausquels se laisse en eux d'entrer au present traite de paix, si 
 bon leur semble, avec condition que, y voulans entrer, soient 
 tenuz dans huict mois envoyer au Grand Seigneur leur ratifica- 
 tion et prendre la sienne. (Quoted from text of Ancien 
 Diplomat, p. 66.) 
 
THE CAPITULATIONS 35 
 
 ever, to note in this connection that until the latter part 
 of the nineteenth century the Porte claimed no juris- 
 diction whatsoever, either in criminal or civil suits, 
 between foreigners of different nationalities; and that 
 it never has claimed jurisdiction in suits involving for- 
 eigners of the same nationality. 
 
 Article IV. . . . the merchants and subjects of the 
 King may not be summoned, molested, nor judged, in a 
 civil suit against Turks or other subjects of the Grand 
 Seigneur, unless said Turks, Kharadjis, or other subjects 
 of the Grand Seigneur present something in writing from 
 the hand of the accuser, or formal document from the 
 Cadi, magistrate (Bailie), or consul; when such a paper 
 is not presented, no testimony of any Turk or anyone 
 else will be of value or accepted in any part of the 
 dominions of the Grand Seigneur; and the Cadis, police 
 officers, and other officials may not try or judge said 
 subjects of the King without the presence of their 
 dragoman. 
 
 While this article is not clearly worded, its purpose 
 was to guard against false accusations and illegal suits 
 devised to annoy or thwart any Frank trying to secure 
 justice through the agency of Turkish judicial pro- 
 cedure. It probably could not have been realized at the 
 time the treaty was signed that the presence at the trial, 
 of the official interpreter of the consulate of the for- 
 eigner party to a suit, would transform that official in 
 the process of time into a kind of judge without whose 
 signature and assent no sentence would be strictly 
 considered as of legal value.^* 
 
 Article V. . . . said merchants and other subjects of 
 the King may not be summoned by the Turks or other 
 
 i*'Du Rausas, op. cit., vol. I, pp. 437-440. 
 
36 FOREIGNERS IN TURKEY 
 
 subjects of the Grand Seigneur, in criminal suits, before 
 the Cadis or other officials of the Grand Seigneur and 
 said Cadis and officials may not judge them; they should 
 thus send them imMuediately to the Sublime Porte, and in 
 default of said Porte, to the principal representative of 
 the Grand Seigneur where the testimony of the subject 
 of the King and of the Turkish subject against each other 
 shall be (duly) weighed.^^ 
 
 The effect of this provision was to remove all cases 
 involving life and liberty of foreigners from the juris- 
 diction of Ottoman courts and to submit them to 
 settlement through diplomatic negotiations with the 
 Sublime Porte. This cumbrous, non-judicial method 
 of procedure became in time most unsatisfactory, and 
 early in the nineteenth century the consular courts as- 
 sumed jurisdiction over their nationals charged with 
 crimes against Ottoman subjects. After the judicial 
 and other reforms of the year 1856, however, the rights 
 of jurisdiction of Ottoman courts in such cases were 
 conceded by the Powers, with the important restriction 
 requiring the presence of the dragoman of the consu- 
 late of the accused, together with the virtual right of 
 review of the decision by his consular or diplomatic 
 representative. 
 
 1^ The significance of this reference to the weighing of testi- 
 mony lies in the fact that the testimony of Christians in ordi- 
 nary Moslem courts was not held of equal value with that of 
 a "true believer.'' The Sublime Porte, in treating such cases 
 through diplomatic, extra-judicial negotiations, was able thus to 
 give proper weight to the testimony of a Christian. It was not 
 until 1854, that by Imperial decree dated March 16, "the testi- 
 mony of Christians in criminal matters against or in favor of 
 Mohammedans, was declared admissible." See Van Dyck's re- 
 port, pt. I, p. 76. 
 
THE CAPITULATIONS 37 
 
 Other provisions of the treaty of 1535 relating to 
 freedom of religious beHef and worship, to exemption 
 from taxation, to the settlement of the estates of those 
 dying intestate or without heirs, and to such kindred 
 subjects, are of no slight interest, but are not germane, 
 however, to the subject in hand. 
 
 Owing to the Turkish theory that a treaty could have 
 force only during the life of the Sultan who signed it, 
 as a kind of modus vivendi or temporary truce with 
 unbelievers (south), the Capitulations of 1535 were 
 subjected to numerous alterations of a sweeping char- 
 acter at the time of every new confirmation by succes- 
 sive Sultans. It was not until 1740 that these treaty 
 rights were made perpetual, and hence not subject to 
 further emendation. 
 
 It would be interesting and profitable to consider the 
 various diplomatic negotiations connected with each 
 renewal of the Capitulations between 1535 and 1740; 
 to note the rivalries of the various Powers to obtain 
 preeminence and special privileges in the Levant; to 
 study the evolution of these early conventions from 
 mere commercial agreements with attendant safeguards 
 for freedom of commerce, into compacts granting to 
 foreign nations and their nationals exceptional privi- 
 leges not strictly necessary to freedom of trade. It 
 would be especially of interest to study in detail the 
 evolution of certain doubtful immunities of jurisdiction 
 which have been claimed, and more or less successfully 
 maintained by foreigners in Turkey. The scope of 
 the present investigation, however, does not permit, nor 
 
38 FOREIGNERS IN TURKEY 
 
 does it perhaps require so extended an historical treat- 
 ment of the subject. While a clear understanding of 
 the origin of the Capitulations is necessary to a clear 
 understanding of the juridical status of foreigners in 
 the Ottoman Empire, the main object in view is to de- 
 termine the precise immunities of jurisdiction actually 
 guaranteed through treaties or through prescription, if, 
 in fact, any prescriptive rights should have arisen. 
 
 Inasmuch as the Capitulations of 1740 are the legal 
 basis, not only of French rights, but indirectly of the 
 rights claimed by all other foreigners, it is important 
 to examine seriatim the principal provisions of that 
 treaty relating to immunities of jurisdiction. 
 
 By way of general comment, it should be observed 
 that the treaty^" of 1740 is of the form properly termed 
 Capitulations, containing, as it does, eighty-five articles 
 (capitula) resembling ordinances, which together with 
 the elaborate preamble embrace a great range of sub- 
 jects. Among these are detailed regulations governing 
 commercial intercourse, provisions defining the rights 
 of merchant vessels, and others relating to the com- 
 mercial privileges of consuls, as well as to the special 
 prerogatives of ambassadors. 
 
 The articles which set forth the juridical rights of 
 
 French subjects and, through the most-favored-nation 
 
 clause, the rights of other foreigners are as follows : 
 
 Article 15. If a murder or other disorder should 
 occur between Frenchmen, their ambassadors and con- 
 suls shall give judgment according to their usages and 
 customs, without molestation in this regard by any of our 
 officials. 
 
 1^ Ancien Diplomat, pp. 150-182. 
 
THE CAPITULATIONS 39 
 
 Article 26. If any of our subjects should have a dispute 
 with a French meixhant, and they should refer it to the 
 Cadi, said judge will not entertain the suit, if the French 
 dragoman is not present; and if said interpreter is busy 
 at that time with some pressing afifair, they shall wait 
 until he should come ; but the Frenchmen will also hasten 
 to produce him, without abusing the pretext of the ab- 
 sence of their dragoman. And if any difference should 
 arise between French subjects, the ambassadors and 
 consuls shall hceve jurisdiction, and shall give judgment 
 according to their usages and customs without hindrance 
 from anybody. 
 
 Article 29. We also confirm to the French all that is 
 contained in the Imperial Capitulations accorded to the 
 Venetians ; and forbid all persons from opposing by any 
 obstacle, suit, or trickery, the course of justice and the 
 execution of my Imperial Capitulations. 
 
 Article 41. Suits exceeding four thousand aspres shall 
 be judged by my Imperial Divan (the Porte) and no- 
 where else. 
 
 Article 52. If it should happen that the French Consuls 
 and merchants should have any disputes with the con- 
 suls and merchants of another Christian nation, they shall 
 be permitted with the consent and at the demand of the 
 parties (to the suit), to have recourse to their ambassa- 
 dors who reside near my Sublime Porte : and as long as 
 the plaintiff and the defendant shall not consent to bring 
 sudh suits before the Pashas, Cadis, officials, or customs 
 officers, the latter (authorities) shall not compel them 
 to do so, nor presume to take cognizance of same. 
 
 Article 65. If a Frenchman or a protege of France 
 commit a murder or some other crime, and it is desired 
 that justice be had i'n the case, the judges and officers of 
 my Empire shall proceed in the matter only in the pres- 
 ence of the ambassador and consuls, or of their deputies 
 in the places where they may be found ; and in order that 
 they should do nothing contrary to elevated justice or 
 
40 
 
 FOREIGNERS IN TURKEY 
 
 to the Imperial Capitulations, the necessary search and 
 investigation shall be made with care by both parties. 
 
 Article 66. When one of our subjects, whether a 
 merchant or otherwise, shall possess letters of exchange 
 on Frenchmen, if those on whom they are drawn or the 
 responsible persons do not accept them, it shall not be 
 permitted without true cause, to compel them to pay said 
 letters, and merely a letter of protest shall be required, 
 in order to act thereupon against the drawer, and the 
 ambassador as well as the consuls shall do everything 
 possible to obtain reimbursement. 
 
 Article 70. The officers of justice as well as the 
 tary officials (police) may not, without necessity, enter by 
 force a house inhabited by a Frenchman; and when the 
 situation requires that it be entered, they shall notify the 
 ambassador or the consul in the localities where they may 
 be found, and he shall be taken to the place in question 
 with the persons involved; and if anyone violates this 
 provision he shall be punished. 
 
 Articles 71 and 72 which are too lengthy and dis- 
 cursive to quote here, provide against any possible 
 abuses in the way of judicial persecutions of Frenchmen 
 and natives without the cognizance and consent of the 
 ambassador or consul, as well as of the Sublime Porte. 
 
 Such are the principal provisions of the Capitulations 
 of 1740, on which rest the claims of the French and of 
 nearly all other foreigners to the extensive immunities 
 of jurisdiction they today enjoy in Turkey. There are 
 other articles of the treaty relating to these immunities ; 
 but as their effect is to guarantee the faithful execution 
 of the principal stipulations, they do not warrant for 
 our purpose special consideration. 
 
 Through tenacious insistence on the right to the same 
 treatment accorded to the most favored nation, the 
 
THE CAPITULATIONS 
 
 41 
 
 Other nations have successively obtained from Turkey 
 for the benefit of their ovirn nationals the same privi- 
 leges granted to France in the Capitulations of 1535 
 and 1740 as confirmed by subsequent treaties.^'' Eng- 
 land was the first, in the year 1579; Holland also in the 
 same year; Austria in 161 5; Russia in 1711; Sweden 
 in 1737; Denmark in 1756; Prussia in 1761 ; Spain in 
 1782; Sardinia in 1825; the United States in 1830; 
 Belgium in 1838; Portugal in 1843; Greece in 1854; 
 Brazil in 1858, etc.^^ Most of these treaties were 
 later modified; by extension in some instances, by re- 
 strictions in others. But in general it may be said that 
 France first obtained for the rest the main immunities 
 of jurisdiction claimed by all the Powers in subsequent 
 treaties ; and that all, through the most-favored-nation 
 clause, secured the mutual benefit of those special privi- 
 leges obtained by any individual nation. For example. 
 Article IV of the treaty between Turkey and the United 
 States, which led to rather extreme claims of jurisdic- 
 tion on the part of the latter (as will be shown further 
 on),^*° offers a precedent though perhaps a poor one 
 on which other nations might found similar claims. 
 
 1' Van Dyck's Report, pt. I, pp. 15-23. 
 
 18 The Arbitral Award of the Ambassadors of the six Powers, 
 signed March 20, 1901, in respect to the rights of Greek sub- 
 jects in Turkey after the war of 1897, confirmed the rights of 
 foreigners, in the main, though it made some concessions to the 
 Turks by restricting slightly the privileges enjoyed by the 
 Greeks before their disastrous trial at arms with Turkey. See 
 Journal de Droit International Prive, 1902, pp. 936-945. For an- 
 alysis of this award, see article by Professor Politis in the 
 Revue generate de Droit International Public, 1903, p. 86. 
 
 18" See page '76 infra. 
 
42 FOREIGNERS IN TURKEY 
 
 The whole regime of the Capitulations was subjected 
 to a sweeping readjustment in 1867 through the pro- 
 mulgation of the law granting to foreigners the right 
 to possess real estate.^" This readjustment was brought 
 about by the fact that the concession of the right to 
 hold land was made contingent on the consent of the 
 foreigner to become completely subject to Ottoman 
 jurisdiction and law in all that concerned ownership 
 of real property. 
 
 Articles one and two of the Imperial rescript of the 
 7th Sepher 1284 (January 16, 1867) are as follows:^" 
 
 Foreigners are admitted to the same privilege as Otto- 
 man subjects, and without any other restriction, to enjoy 
 the right of holding Real Estate whether in the city or 
 in the country, throughout the Empire, with the exception 
 of the Province of the Hedjaz,^^ by submitting them- 
 selves to the laws and regulations which govern Ottoman 
 subjects, as is hereafter stated. 
 
 This arrangement does not concern subjects of Ottoman 
 birth who have changed their nationality, who shall be 
 governed in this matter by a special law.^^ 
 
 1^ Van Dyck in his Report, part I, pp. 48-83, gives an excel- 
 lent historical and critical' review of the whole question of land 
 ownership, and of the negotiations connected with the drawing up 
 of the Protocol by which the Po\yers assented to the modifica- 
 tions of the Capitulations involved in the concession to for- 
 eigners to hold real estate subject to Ottoman law and 
 jurisdiction. 
 
 20 As given in Treaties, Conventions, etc., of the United States, 
 pp. 1344-1348. This translation is awkward but it is quoted 
 because official. 
 
 21 The Hedjaz district in Arabia was exempted for the 
 reason that it contains the Moslem holy places of Mecca, 
 Medina, et al., which may not be defiled by the presence of 
 ■'unbelievers." 
 
 22 The object of this clause was to discourage the naturaliza- 
 
THE CAPITULATIONS 43 
 
 Foreigners, proprietors of Real Estate in town or in 
 country, are in consequence placed upon terms of equality 
 with Ottoman subjects in all things that concern their 
 landed property. 
 
 The legal effect of this equality is : 
 
 r. To oblige them to conform to all the laws and regu- 
 lations of the police or of the muncipality which govern 
 at present or may govern hereafter the enjoyment, the 
 transmission, the alienation, and the hypothecation of 
 landed property. 
 
 2. To pay all charges and taxes under whatever form 
 or denomination they may be, that are levied, or may be 
 levied hereafter, upon city or country property. 
 
 3. To render them directly amenable to the Ottoman 
 civil tribunals in all questions relating to landlord (sk) 
 property, and in all real actions, whether as plaintiffs or 
 as defendants, even when either party is a foreigner. In 
 short, they are in all things to hold Real Estate by the 
 same title, on the same condition and under the same 
 forms as Ottoman owners and without being able to avail 
 themselves of their personal nationality, except under the 
 reserve of the immunities attached to their persons and 
 their movable goods, according to the treaties. 
 
 So violent a breach in the citadel of the Capitulations 
 could not be effected by the mere fiat of the Sultan, 
 laudable as it was in purpose. The submission of for- 
 eigners to Ottoman jurisdiction and law to so sweeping-, 
 an extent could only be secured through the formal 
 consent and sanction of the Powers. After prolonged 
 diplomatic negotiations in which the Porte displayed 
 
 tion in foreign countries of Ottoman subjects whose allegiance 
 has always been held to be inalienable except by the express 
 consent of the Sultan. Moreover, it has been the constant aim 
 of the Porte to prevent by every possible means any increase 
 in the number of foreign proteges of whatever sort in Turkey 
 with the attendant evils of diplomatic intervention derogatory 
 to Turkish sovereign rights. See page 94 infra. 
 
44 FOREIGNERS IN TURKEY 
 
 great skill and won substantial concessions as a 
 pro quo for granting the right to hold real estate, a 
 protocol was drafted and agreed to by the principal 
 Powers^* under the leadership of Monsieur Bourree, 
 the French Ambassador, defining the conditions under 
 which foreigners should be subject to Ottoman laws 
 and jurisdiction. 
 
 While this momentous agreement reaffirmed the 
 immunities conferred by the Capitulations, and ac- 
 cording to Monsieur Bourree, was intended to apply 
 solely to foreigners holding real estate,^* it did in fact 
 make concessions which were in derogation of privi- 
 leges previously enjoyed by all foreigners. These con- 
 cerned the right of local authorities, under certain con- 
 ditions, to search the residences of foreigners which 
 had hitherto been deemed inviolable. They concerned 
 also the right of local tribunals to try certain cases 
 without the presence and assistance of the consular 
 representative of the foreigner party to the suit as 
 formerly required under the Capitulations. 
 
 This Protocol is too lengthy to be quoted in full, 
 but certain of its provisions should be noted in order 
 that we may have clearly before us the exact modifi- 
 
 23 Most of the Powers gave their consent to this important 
 modification of exterritorial rights by authorizing their diplo- 
 matic representatives in Constantinople to sign the Protocol. 
 The United States preferred to give the transaction the character 
 of a formal, international convention signed under seal by duly 
 authorized plenipotentiaries. The Protocol was formally pro- 
 claimed by the President on October 29, 1874, in accordance 
 with the authorization of Congress expressly given by its Act 
 of March 23, 1874. See U. S. Treaties, etc., pp. 1344-1346. 
 
 2* Van Dyck's Report, part I, p. 81, 
 
THE CAPITULATIONS 45 
 
 cations of the Capitulations which were entailed by the 
 admission of foreigners to equal rights with Ottoman 
 subjects .in the ownership of real estate.^^ 
 
 The law granting foreigners the right of holding real 
 estate does not interfere with the immunities specified by 
 the treaties, and which will continue to protect the person 
 and the movable property of foreigners who may become 
 owners of real estate. . . . (Domicile.) The domicile 
 of any person residing upon Ottoman soil being inviol- 
 able, and as no one can enter it without the consent of the 
 owner, except by virtue of orders emanating from compe- 
 tent authority and with the assistance of the magistrate 
 or functionary invested with the necessary powers, the 
 residence of foreigners is inviolable on the same principle, 
 in conformity with the treaties, and the agents of the 
 public force cannot enter it without the assistance of the 
 Consul or of the delegate of the Consul of the Power on 
 which the foreigner depends. 
 
 By residence we understand the house of inhabitation 
 and its dependencies : that is to say, the outhouses, courts, 
 gardens and neighbouring enclosures, to the exclusion of 
 all other parts of the property."* 
 
 In the localities distant by nine hours or more than 
 nine hours of travel from the residence of the Consular 
 Agent, the agents of the public force may on the request 
 of the local authority . . . enter into the residence of a 
 foreigner, without being assisted by the Consular Agent, 
 but only in case of urgency, and for search and proof of 
 
 25 U. S. Treaties, etc., pp. 1344-1346. 
 
 26 The inviolability of the domicile of foreigners arose from 
 their original custom of permitting them to reside in their own 
 quarters under the separate jurisdiction of their own officials as in 
 the case of the Genoese and Venetians in Constantinople. When, 
 in the process of time, foreigners began to reside outside of 
 these quarters, they were allowed to carry with them the same 
 privileges. In other words, the domicile of the Genoese or 
 Venetian was treated as national territory just as the quarter 
 formerly assigned to his nationality. It is easy to see how 
 naturally the term exterritoriality came into use when applied 
 in this sense. See Du Rausas, I, p. 87. See page 90 infra. 
 
46 FOREIGNERS IN TURKEY 
 
 the crime of murder, of attempt at murder ; of incendiar- 
 ism, of armed robbery either with infraction (sic) or by 
 night in an inhabited house, of armed rebelUon and of the 
 fabrication of counterfeit money, and this entry may be 
 made whether the crime was committed by a foreigner 
 or by an Ottoman subject, and whether it took place in 
 the residence of a foreigner or not in his residence, or 
 in any other place. . . . 
 
 Beyond the residence, the action of the police shall be 
 exercised freely and without reserve; but in case a 
 person charged with crime or offence, should be ar- 
 rested, and the accused shall be a foreigner, the im- 
 munities attached to his person shall be observed in 
 respect to hi'm. . . . 
 
 (Jurisdiction of local tribunals.) In localities more dis- 
 tant than nine hours' travel from the residence of the 
 Consular Agent, in which the law of the judicial organi- 
 zation of the Vilayet (province) may be in force, for- 
 eigners shall be tried, without the assistance of the Con- 
 sular delegate by the Council of Elders fulfilling the 
 function of justices of the peace, and by the tribunal of 
 the canton, as well for actions not exceeding one thou- 
 sand piasters as for offences entailing a fine of five 
 hundred piasters only, at the maximum. 
 
 Foreigners shall have, in any case, the right of appeal 
 to the tribunal of the Arrondissement (Caza) against 
 the judgments issued as above stated, and the appeal 
 shall be followed and judged with the assistance of the 
 Consul, in conformity with the treaties. The appeal 
 shall always suspend the execution of a sentence. 
 
 In all cases the forcible execution of the judgments, 
 issued on the conditions determined heretofore, shall not 
 take place without the cooperation of the Consul or of 
 his delegate. . . . 
 
 Foreigners, in whatever locality they may be, may 
 freely submit themselves to the jurisdiction of the Coun- 
 cil of Elders or of the tribunal of the canton without 
 the assistance of the Consul in cases which do not 
 exceed the competency of these councils or tribunals, 
 reserving always the right of appeal before the tri- 
 bunal of the Arrondissement, where the case may be 
 
THE CAPITULATIONS 
 
 47 
 
 brought and tried with the assistance of his Consul or 
 his delegate. . . . 
 
 It is well understood that all these restrictions do not 
 concern cases which have for their object questions of 
 real estate, which shall be tried and determined under 
 the conditions established by the law. 
 
 The right of defence and the publicity of the hearings 
 shall be assured in all cases to foreigners who may ap- 
 pear before the Ottoman tribunals, as well as to Ottoman 
 subjects. 
 
 The preceding dispositions shall remain in force until 
 the revision of the ancient treaties, — a revision which the 
 Sublime Porte reserves to itself the right to bring about 
 hereafter by an understanding between it and the friendly 
 powers. 
 
 It is clear that "the concessions included in the above 
 quoted provisions of the Protocol governing the sub- 
 mission of foreigners holding real estate to Ottoman 
 jurisdiction constituted a serious weakening of the 
 whole fabric of the Capitulations, while demonstrat- 
 ing incidentally the insufficiency of the fiction of ex- 
 territoriality as an explanation of privileges which, 
 strictly speaking, are immunities of jurisdiction that 
 may be considerably restricted from time to time by 
 mutual agreement. 
 
 Having thus briefly reviewed the historical develop- 
 ment of the Capitulations, and noted their principal 
 provisions governing the juridical rights of foreign- 
 ers, we may next proceed to endeavor to reduce to the 
 compass of a simple code these rights as recognized in 
 practice or claimed in theory at the present time in 
 Turkey.^'' 
 
 27 Egypt and Cyprus are not considered in this connection 
 because they are only nominally Turkish territory and enjoy 
 a special status under British rule. 
 
THE JURIDICAL RIGHTS OF 
 FOREIGNERS 
 
CHAPTER III 
 The Juridical Rights of Foreigners 
 
 In attempting to reduce to the limits of a definite 
 code the recognized or asserted rights of foreigners in 
 Turkey, it is necessary to bear in mind that these 
 rights do not rest in the case of each nationahty on 
 any single treaty. If this were so, the task would be 
 relatively simple. As has been already pointed out 
 (page 41), those rights which were originally based 
 on the French Capitulations of 1535 and 1740, in the 
 process of time, have been extended or restricted by 
 other treaties or protocols, as well as by varying inter- 
 pretations accepted in different cases arising between 
 the Powers and the Porte. Usage also plays no little 
 part in determining the rights of foreigners. Our ob- 
 ject must be to try to determine clearly : first those 
 rights which are not disputed, and second, those rights 
 which, though questioned, may have the sanction of 
 long usage. 
 
 The subject may best be considered under the fol- 
 lowing aspects : ( i ) immunities of jurisdiction in 
 cases involving foreigners of the same nationality; (2) 
 in cases concerning foreigners of different nationality ; 
 and (3) in cases between foreigners and Ottoman 
 subjects. In each instance the principal points to be 
 considered are : ( i ) the nature of the rights involved ; 
 
 SI 
 
52 FOREIGNERS IN TURKEY 
 
 (2) the kind of tribunals and judicial procedure em- 
 ployed; (3) the law to be applied; and (4) the execu- 
 tion of the law. 
 
 A. IMMUNITIES OF JURISDICTION IN CASES INVOLVING 
 FOREIGNERS OF THE SAME NATIONALITY^ 
 
 I. Consular tribunals have absolute jurisdiction in 
 cases involving foreigners of the same nationality.^ 
 
 This sweeping immunity of jurisdiction has been 
 consecrated by all the Capitulations since the charter 
 of rights granted to the Genoese of Galata by Mo- 
 hammed the Conqueror in 1453. It has never been 
 questioned by the Porte, even in cases which directly 
 concerned the state in the maintenance of public order. 
 If one foreigner murders another of the same na- 
 tionality, he may be tried and punished only by his 
 own consular court. 
 
 There are, however, certain exceptions to the rule 
 
 1 The material for this chapter has been drawn mainly from 
 Le Reginue des Capitulations by Pelissie du Rausas, head of the 
 French Law School in Cairo, and from La Justice Ottomane, 
 by Andre Mandelstam, formerly Dragoman of the Russian Em- 
 bassy in Constantinople. The former work is a most ex- 
 haustive, analytical study of the whole subject. The latter is 
 the latest, and perhaps the most authoritative book in regard 
 to actual usage and practice in Turkey respecting the juridical 
 rights of foreigners. The writer is under particular obliga- 
 tion to Mr. Mandelstam both as to form and substance in the 
 preparation of this volume. 
 
 2 Mandelstam, pp. 213-224; Du Rausas, pp. 219-393. See page 
 supra, for text of Article 15 of the French Capitulations of 
 1740, on which this right is based. 
 
JURIDICAL RIGHTS 53 
 
 stated above. First, as .previously indiiicated, for- 
 eigners are subject to Ottoman law and jurisdiction 
 in all matters relating to the ownership of real estate.' 
 The question of inheritance, however, as in all matters 
 involving questions of personal status, may properly 
 come before a consular tribunal in order to determine 
 who are the legal heirs entitled to inherit property 
 of a deceased foreigner. The Porte has endeavored 
 to extend Ottoman jurisdiction in property matters so 
 as to cover disputes as to rent. This contention has 
 not been admitted by the Powers. Such cases are 
 regarded by them as of like nature to any other con- 
 tracts between foreigners of the same nationality, and 
 hence justiciable in a consular court. 
 
 Another question of like nature is that of mort- 
 gages. It is recognized that anything relating to the 
 sale or transfer of mortgaged property is entirely 
 within the province of Ottoman tribunals. But if the 
 point at issue is merely the payment of interest in 
 compliance with the terms of the mortgage, namely, 
 the carrying out of a contract, this is claimed by the 
 Powers to be within the competence of the consular 
 court of the parties concerned.* 
 
 The Porte has claimed that all suits relating to the 
 falsification of trademarks are within the competence 
 
 3 Du Rausas, pp. 444-466. See also page 42 supra. 
 
 * Mandelstam, p. 119. See the same work (pp. 111-138) for 
 detailed discussion regarding the conflicts between the Powers 
 and the Porte over the interpretation of the law and protocol 
 of 1867 in respect to jurisdiction in questions involving owner- 
 ship of real estate. 
 
54 FOREIGNERS IN TURKEY 
 
 of Ottoman tribunals alone; but this has not been 
 formally conceded by the Powers.® 
 
 It has been noted that foreigners of their own free 
 will may have recourse to Ottoman courts if they so 
 prefer.®" Such a procedure, however, as a matter of 
 fact, is not countenanced by the Powers except in suits 
 involving less than a thousand piasters ($44.00), in 
 localities distant more than nine hours from the con- 
 sular agent of the foreigners party to the suit.® 
 
 2. Courts and Procedure 
 
 Consular courts vary greatly in form and pro- 
 cedure. England''' and Austria-Hungary, for example, 
 both maintain supreme courts at Constantinople with 
 powers of original jurisdiction as well as of appeal. 
 The United States, however, has no formal tribunal, 
 the Consul acting as judge without any legal ceremo- 
 nies or complicated procedure. The principal provisions 
 of the United States Statutes for the organization 
 
 '■' Mandelstam, p. 223. 
 
 ^° See article 52 of treaty of 1740, page 39 supra; also page 46. 
 
 ^ Ibid., p. 214. A curious conflict of jurisdiction exists be- 
 tween certain of the Patriarchs in Constantinople and the 
 Powers, the former claiming the right to judge in matters re- 
 lating to personal status between foreigners owing spiritual al- 
 legiance to the respective Patriarchates. Thus it is entirely- 
 possible that two Armenians, who may have been naturalized 
 in the United States, might submit for the decision of the 
 Armenian Patriarch a question relating to divorce or inheri- 
 tance. See Mandelstam, p. 219. 
 
 ^ For powers and jurisdiction of British courts in Turkey 
 see Hall, Foreign Jurisdiction of the British Crown, chapter II ; 
 Young, op. cit., I, pp. 279-284. 
 
JURIDICAL RIGHTS 55 
 
 and procedure of Consular Courts as set forth in the 
 Instructions to the Diplomatic Officers of the United 
 States, are as follows :* 
 
 214. Criminal Jurisdiction. — Consuls . . . are empow- 
 ered to arraign and try all citizens of the United States 
 charged with offences against law, committed in such 
 countries, respectively (China, Siam, Turkey, etc.), and 
 to sentence such offenders in the manner therein author- 
 ized, and to issue all processes as are suitable and nec- 
 essary to carry this authority into execution. — R. S., sees. 
 4084, 4087. 
 
 215. Civil Jurisdiction.- — ^Consuls are invested with all 
 the judicial authority necessary to execute the provisions 
 of such treaties, respectively, in regard to civil rights, 
 whether of property or person; and such jurisdiction 
 embraces all controversies between citizens of the 
 United States, or others, provided for by such 
 treaties. . . . — R. S., sec. 4085. 
 
 220. Original Jurisdiction. — The power of commenc- 
 ing original civil and criminal proceedings is vested in 
 consuls exclusively, except that capital cases for murder 
 or insurrection against the government of the country 
 in which they reside, by citizens of the United States, 
 or offences against the public peace amounting to felony 
 under the laws of the United States, should be tried be- 
 fore the Minister of the United States in the country 
 where the offence is committed, if allowed jurisdiction; 
 and except, also, that original jurisdiction is vested in 
 said ministers respectively in cases where a consular 
 officer shall happen to be interested as party or as wit- 
 ness. — R. S., sees. 4090, 4109.^ 
 
 8 Instructions to the Diplomatic Officers of the United States, 
 1897, PP- 79-98. The numbers prefixed indicate paragraphs. 
 See also Wharton's International Law Digest, I, Sec. 125; 
 Moore's International Law Digest, II, Sec. 262-266. The Regu- 
 lations in force in the Consular 'Courts of the United States, 
 in Turkey are given in the Appendix to this volume. 
 
 9 "The word 'minister' as used in Title XLVII of the Re- 
 
56 FOREIGNERS IN TURKEY 
 
 221. Associates in Criminal Cases. — Whenever, in any 
 case, the consul is of opinion that, by reason of the legal 
 questions which may arise therein, assistance will be 
 useful to him, or whenever he is of opinion that severer 
 punishment than five hundred dollars fine or ninety days' 
 imprisonment will be required, he shall summon to sit 
 with him on the trial one or more citizens of the United 
 States, not exceeding four, who shall be taken by lot 
 from a list previously submitted to and approved by the 
 minister and who shall be persons of good repute and 
 competent for duty. Every such associate shall enter 
 upon the record his judgment and opinion and shall sign 
 the same; but the consul shall give judgment in the 
 case. — R. S., sec. 4106. 
 
 222. Capital Caisesj — In trials for capital offenses there 
 must be not less than four associates, who must all con- 
 cur in opinion with the consul; and their opinion must 
 be approved by the minister before there can be a con- 
 viction. But a person put upon trial for a capital of- 
 fense may be convicted of a lesser offense of similar 
 character. — R. S., sees. 4102, 4106. 
 
 223. Associates in Civil Cases. — Whenever a consul is 
 of opinion that any case involves legal perplexities and 
 that assistance will be useful to him, or whenever the 
 damages demanded exceed five hundred dollars, he shall 
 summon to sit with him on the hearing of the case not 
 less than two nor more than three citizens of the United 
 States, who shall be taken from a list previously submit- 
 ted to and approved by the minister and who shall be 
 of good repute and competent for duty. Every such 
 associate shall note upon the record his opinion, and 
 also, in case he dissents from the consul, such reasons 
 
 vised Statutes means the person invested with and exercising 
 the principal diplomatic functions. The word 'consul' means 
 any person invested by the United States with and exercising 
 the functions of consul-general, vice-consul-general, consul, or 
 vice-consul. — R. S., sec. 4130." (Paragraph 202 of Diplomatic 
 Instructions.) 
 
JURIDICAL RIGHTS 57 
 
 therefor as he thinks proper to assign; but the consul 
 shall give judgment in the case. — R. S., sec. 4107. 
 
 227, 228. Settlement of Civil Cases and Minor Of- 
 fenses. — These paragraphs on the instructions relate to 
 sections 4098 and 4099 of the Revised Statutes which 
 provide for the settlement out of court by arbitration, 
 referee, etc., of controversies of a civil character, and 
 criminal cases of minor importance, upon pecuniary or 
 other considerations. 
 
 229. Forms of Proceedings. — (This paragraph relates to 
 sections 41 17-4120 of the Revised Statutes which pro- 
 vide for the drawing up and promulgation of rules and 
 regulations by the minister with the advice of the several 
 consuls in regard to the forms of processes to be is- 
 sued by the consular courts, the manner in which the 
 trials shall be conducted, fees, bail, etc., etc.) 
 
 233. Evidence. — In all cases, criminal and civil, the 
 evidence shall be taken down in writing in open court 
 under such regulations as may be made for that purpose ; 
 and all objections to the competency or character of 
 testimony shall be noted, with the ruling in all such 
 cases. The evidence so taken down shall be a part of 
 the case. — R. S., sec. 4097. 
 
 234. Appeals to Minister. — The minister is authorized 
 to hear and decide all cases, criminal and civil, which 
 may come before him on appeal and to issue all processes 
 necessary to execute the power conferred upon him; and 
 he is fully empowered to decide finally any case upon 
 the evidence which comes up with it or to hear the 
 parties further if he thinks justice will be promoted 
 thereby. He may also prescribe the rules upon which 
 new trials may be granted, either by the consul or by 
 himself, if asked upon sufficient grounds. — R. S., sec. 
 4091. 
 
 235. Appeals to Minister, when Allowed. — An appeal 
 is allowed from the consul to the minister in the follow- 
 ing cases : 
 
58 FOREIGNERS IN TURKEY 
 
 In civil cases — 
 
 (a) When the consul sits with associates and any of 
 them differ from him. If no appeal is lawfully claimed, 
 the decision shall be final. — R. S., sec. 4107. 
 
 (b) (In China and Japan.) 
 
 In criminal cases — 
 
 (a) When the consul silts with associates and any of 
 them differ from him. The case shall be referred to the 
 minister for his adjudication. — R. S., sec. 4106. 
 
 (b) When the consul sits alone and the fine exceeds 
 one hundred dollars or the term of imprisonment for 
 the misdemeanor exceeds sixty days. The appeal may 
 be either upon errors of law or matters of fact. — R. R., 
 sec. 4089. 
 
 237. Judgments of Consuls Final. — The judgments of 
 consuls are final in the following cases : 
 In civil cases — 
 
 (a) When the consul sits alone and the damages de- 
 manded do not exceed five hundred dollars. — ^R. S., sec. 
 4107. 
 
 (b) When the consul sits with associates and they 
 concur with him. . . .R. S., sees. 4092, 4107. 
 
 In criminal cases — 
 
 (a) When the consul sits alone and the fine does not 
 exceed one hundred dollars or the term of imprisonment 
 does not exceed sixty days. — R. S., sec. 4105. 
 
 (b) When the consul sits with associates and they 
 concur with him, except in capital cases. — R. S., sec. 4106. 
 
 It may be seen from these excerpts that the organiza- 
 tion and procedure of the consular courts in Turkey 
 is extremely simple with a view to meeting peculiar 
 conditions and facilitating the administration of jus- 
 tice.^* In these respects, exterritorial jurisdiction has 
 
 1" In Moore's International Law Digest (vol. II, sec. 263) 
 are to be found the following observations in this connection. 
 
JURIDICAL RIGHTS 59 
 
 much to commend it in comparison with the jurisdic- 
 tion of the home courts. 
 
 J. Law Administered 
 The laws enforced in the foreign judicial tribunals 
 in Turkey are such as may be prescribed by the legis- 
 lation of the various countries, and vary greatly in 
 character and scope. Those of France" are most 
 elaborate and comprehensive, while those of the Uni- 
 ted States"' are very simple though adequate for their 
 purpose. The chief provisions of the Revised Statutes 
 in this respect, as indicated in the Instructions to the 
 Diplomatic Officers of the United States, are as 
 follows.-'^ 
 
 "... Mr. Fish entered into a full discussion of the minister's 
 power to make decrees and regulations, under section S and 6 
 of the act of June 22, i860. He described it as being 'confined 
 to the course of procedure in pursuing judicial remedies, and 
 as not extending to the creation of new rights or duties in citi- 
 zens of the United States, or to the modification of personal 
 rights and obligations under the existing laws,' and, with re- 
 gard to the diversities in the common law arising from the 
 complex Federal system in the United States, he expressedi the 
 opinion that 'it would be most discreet to allow the anomalous 
 jurisdiction of our consular courts ... to find its limits and 
 definition from the practical exigencies of administration and 
 the acquiescence of the government within whose territory the 
 jurisdiction is exercised.' " 
 
 The enormous latitude allowed to the jurisdiction of Ameri- 
 can consular courts in Turkey could not fail to give rise to a 
 unique body of law and procedure having slight relation to 
 that observed in the United States. 
 
 " Du Rausas, pp. 308-332. 
 
 11" See Appendix for United States Rules, etc., for consular 
 courts. 
 
 12 Diplomatic Instructions, p. 87. 
 
6o FOREIGNERS IN TURKEY 
 
 217. Jurisdiction, How Exercised. — Jurisdiction in 
 both criminal and civil matters shall be exercised in 
 conformity, first, with the laws of the United States; 
 second, with the common law and the law of equity and 
 admiralty; and third, with decrees and regulations, hav- 
 ing the force of law, made by the ministers of the United 
 States in each country, respectively, to supply defects 
 and deficiencies when neither the common law, nor the 
 law of equity or admiralty, nor the statutes of the United 
 States furnish appropriate and sufficient remedies. — R. S., 
 sec. 4086. 
 
 218. Power of Ministers to Make Regulations. — The 
 authority of a minister to make regulations having the 
 force of law within the country to which he is accredited 
 is a judicial authority. The minister is required to ex- 
 ecute the power in conformity with the laws of the 
 United States, with authority to supply defects and de- 
 ficiencies : (a) Where those laws are not adapted to the 
 exercise of the judicial authority conferred by the statute ; 
 (b) where they are deficient in the provisions to furnish 
 suitable remedies. (R. S., sec. 4086.) In each of these 
 contingencies the minister has authority to make regula- 
 tions in order "to furnish suitable and appropri'ate reme- 
 dies," and for no other purpose whatever. Every powei* 
 named in the statute in this respect is conferred upon 
 the minister "in order to organize and carry into effect a 
 system of jurisprudence." . . . 
 
 Under the exterritorial theory respecting the status 
 of foreigners in Turkey, they should only be subjected 
 to those laws which are applicable to them within their 
 native jurisdiction. As a matter of fact, however, 
 acting in conformity with the Roman legal maxim 
 locus regit actum, the consular courts frequently are 
 influenced in their decisions by local usages and cus- 
 toms. This principle applies in such matters as mar- 
 riage, in various commercial transactions, the organi- 
 
JURIDICAL RIGHTS 6i 
 
 zation of special communities and corporations, and in 
 general in the determination of the validity of juridi- 
 cal acts. Du Rausas goes so far as to affirm that : 
 
 The consular tribunals should refuse to approve any 
 custom which might be in opposition with a law of pub- 
 lic order inspired by motives of moral and social inter- 
 est; but if the law of public order contradicted by the 
 custom is inspired by political or economic motives, the 
 consular tribunals should not hesitate to apply the cus- 
 tom. By way of resume, custom has force of law in 
 every case where it does not contradict a law of public 
 order inspired by motives of moral or social import}^ 
 
 It is clear that foreigners are not truly under the 
 extraterritorial jurisdiction of their home laws. On 
 the contrary, they may even be denied the benefit of 
 their own laws, as illustrated by the fact that Ameri- 
 cans, accused of crime before a United States Consular- 
 Court in Turkey, may be indicted without a grand jury 
 and tried without a petit jury.^* 
 
 4. Execution of Law 
 As to the enforcement of law, the powers and 
 functions of consuls vary widely. The police juris- 
 diction of French consuls^^ over their own nationals is 
 
 13 Dm Rausas, p. 318. The same author also states (p. 241) 
 that : "The rule 'locus regit actum' serves as universal law 
 {droit commun) when it is a question of determining as to 
 form the value of an act which took place in a foreign land. 
 In order to discard the application of this universal law in the 
 Ottoman Empire, a formal provision Oexte) v/ould be neces- 
 sary. This provision does not exist either in French legislation, 
 or in any other foreign legislation." 
 
 ^''^ Diplomatic Instructions, p. 83. 
 
 15 As to powers and jurisdiction of French consuls, see Du 
 Rausas, pp. 243-263, 332-393- 
 
62 FOREIGNERS IN TURKEY 
 
 very great extending even to the right of expulsion. 
 In earlier times a French consul exercised over his 
 fellow countrymen a control closely resembling that 
 of a governor of a conquered province. The police 
 powers of the American consuls, on the other hand, 
 are most limited being concerned with punitive rather 
 than with preventive measures.^* In general, it may 
 be said that, while theoretically foreigners are bound 
 equally with natives to respect Ottoman laws and 
 regulations, in actual practice they enjoy greater free- 
 dom than many of them would have in their native 
 lands. This is due to the fact that Turkish police 
 have learned by bitter experience that it is often unwise 
 to interfere in any way with foreigners, and also that 
 the police powers of consular authorities are insuffi- 
 ciently employed except in the case of gross infractions 
 of the law. 
 
 The arrest of foreigners accused of crimes by other 
 foreigners of the same nationality is usually effected 
 by the marshals of the consular courts issuing the 
 warrants of arrest.^'' The native guards (Cavass) 
 attached to every consulate may also make the arrest.^^ 
 In some instances the consular authorities may re- 
 quest the Ottoman officials to make the arrest, or the 
 latter on their own initiative may arrest foreigners 
 
 1^ The Consulate General in Constantinople is aided in its 
 police work by a United States marshal duly appointed for the 
 purpose. 
 
 1' Mandelstam, p. 176. 
 
 i^Van Dyck's Report, part I, pp. 96-99. 
 
JURIDICAL RIGHTS 63 
 
 flagrante delictu, and turn them over immediately to 
 the competent consular representatives.^^ 
 
 In case there is no consular prison for the detention 
 of such persons, it is customary to request their im- 
 prisonment in Turkish jails. This is undesirable from 
 the point of view of the Turks who have to feed and 
 care for prisoners in whom they have no interest. It 
 is likewise undesirable from the point of view of the 
 prisoner whose physical comforts are frequently 
 neglected.^" 
 
 After sentence has been pronounced by the consular 
 tribunal, it is usual to remand the prisoner to the 
 country of his allegiance, either for trial on appeal, 
 or for the infliction of the penalty imposed. For minor 
 offenses, the consular courts usually prefer to impose a 
 fine rather than imprisonment with all its attendant in- 
 conveniences of maintaining a foreign prison in Tur- 
 key, or the expense and trouble of deportation. 
 
 For grave offenses, most of the Powers require final 
 judgment by the home courts in case of appeal. Such 
 a procedure has the obvious merit of taking from a 
 consular court the extreme powers of indictment, trial, 
 and judgment, without review by another tribunal. 
 
 The British, Greek, /and American judicial pro- 
 cedure, while varying greatly in form,- is based on the 
 principle that the proper place for a trial is the forum 
 delicti. Appeal in certain cases, both civil and crim- 
 inal, is allowed from the British Supreme Court in 
 
 1' Hall, Foreign Jurisdiction of tlie British Crown, section 69. 
 20 Moore, Int. Law Digest, II, pp. 634, 677. 
 
64 FOREIGNERS IN TURKEY 
 
 Constantinople to the Privy Council in London; and 
 the execution of the death penalty may not take place 
 within Ottoman jurisdiction.^^ Under the Revised 
 Statutes, the American Ambassador in Constantinople 
 is the final court of appeal except in cases involving 
 the infliction of the death penalty. The procedure 
 after conviction, as set forth in the Instructions to 
 Diplomatic Officers, is as follows : 
 
 224. Punishments. — In the inflictions of punishments 
 on persons convicted in consular courts, consular officers 
 will be governed by the provisions of the statutes of the 
 United States prescribed for similar offenses and will be 
 careful that the sentence in each case is in conformity 
 thereto. Consular courts have no power to banish 
 American convicts to the United States or other coun- 
 tries, nor to send them to the United States, to serve out 
 their ternis of imprisonment. — i Whart. Int. L. Dig., p. 
 805 ; 14 Op. Att. Gen., 522 ; 19 Op. Att. Gen., 377.^^ 
 
 21 Hall, op. cit.j pp. 169-170. 
 
 22 In regard to extradition Moore states (vol. II, p. 633) : 
 "With most countries it has been the rule to regard the re- 
 covery of their fugitive subjects, charged with ordiinary crimes, 
 as an incident of the extraterritorial jurisdiction exercised 
 through their ministers or consuls. The United States, how- 
 ever, has not generally sought to enjoy this privilege, but has, 
 on the other hand, in two cases — those of the Ottoman Empire 
 in 1874 and Japan in 1876 — entered into treaties of extradition 
 with the governments of countries in which citizens of the 
 United States were entitled to extraterritoriality." Moore, 
 however, points out that on two different occasions the United 
 States has extradited citizens through the exercise of extra- 
 territorial jurisdiction. John H. Suratt who was charged with 
 complicity in the assassination of President Lincoln, was ar- 
 rested in Alexandria, Egypt, in 1866, and sent to the United 
 States in an American warship. Henry Myers and J. F. Tun- 
 stall of the Confederate cruiser Sumter were also seized at 
 Tangiers and taken to the United States. 
 
JURIDICAL RIGHTS 65 
 
 225. Execution of Death Penalty. — The statutes pro- 
 vide that in case of a conviction entailing the death pen- 
 alty, it shall be the duty of a minister to issue his war- 
 rant for the execution of the convict, appointing the 
 time, place and manner; but if the minister is satisfied 
 that the ends of public justice demand it, he may from 
 time to time postpone such execution. If he finds miti- 
 gating circumstances which authorize it, he may submit 
 the case to the President for pardon. — R. S., sec. 4103. 
 
 226. Requesting the President's Views. — As the pro- 
 vision of section 4103 of the Revised Statutes stand's, it 
 appears to make the diplomatic representative the sole 
 judge of the propriety of extending Executive clemency 
 to the convict. It was probably not the intent of Con- 
 gress to bar the exercise of the President's power of 
 pardon at the discretion of a diplomatic representative; 
 and it would be manifestly improper, as well as of doubt- 
 ful constitutionality, to do so in the possible case of 
 conviction being had before the officer whose duty it is 
 made to execute the sentence. In cases coming under 
 this statutory provision, the Department of State deems 
 it advisable that the diplomatic representative should al- 
 ways regard the ends of public justice as requiring post- 
 ponement of the execution until the case is reported and 
 copies of the judgment and testimony are transmitted to 
 the Department of State and the President's views in the 
 premises have been received.^^ 
 
 To summarize in a general way the immunities of 
 
 jurisdiction in cases involving foreigners of the same 
 
 nationality, it may be said that jurisdiction belongs 
 
 23 In the case of Stephen P. Mirzan, an alleged American 
 citizen who was accused of the murder of one Alexander 
 Dahan in the streets of Alexandria, July 17, 1879, Minister 
 Maynard tried Mirzan and sentenced him to be hanged. Presi- 
 dent Hayes commuted the sentence to imprisonment for life. 
 President Arthur, in 1882, directed that Mirzan be brought to 
 Albany, New York, where he remained until released in 1889. 
 Moore's Digest, II, pp. 63S, 683. 
 
66 FOREIGNERS IN TURKEY 
 
 exclusively to the consular tribunal of the parties con- 
 cerned ; that this tribunal follows such procedure as is 
 prescribed by its government; that the law applied, 
 while in the main that enforced in the home land, is 
 not infrequently altered to harmonize with local cus- 
 toms and usages ; and that the carrying out of the law, 
 whether preventive or punitive, varies greatly ac- 
 cording to the legislation of each country, being as 
 a rule much less severe than would be the case if the 
 same offenses had been committed in the countries to 
 which those under conviction owe allegiance.^* 
 
 B. IMMUNITIES OF JURISDICTION IN CASES INVOLVING 
 FOREIGNERS OF DIFFERENT NATIONALITIES^^ 
 
 I. The consular tribunal of the defendant has juris- 
 diction in cases involtnng foreigners of different 
 nationalities. 
 
 The Porte has never questioned the competence of 
 consular tribunals to hear and decide civil suits be- 
 tween foreigners of different nationalities,^® though 
 it has denied with reason that they have exclusive 
 jurisdiction, inasmuch as the parties concerned have 
 the right under the Capitulations to bring suit in Otto- 
 
 2* For a concise summary of the immunities of jurisdiction in 
 cases between foreigners of the same nationality, see Mandel- 
 stam, pp. 265-266; also Du Rausas, pp. 257-261. 
 
 25 Mandelstam, pp. 225-250; Du Rausas, pp. 294-411. 
 
 2^ This statement should be qualified to the extent noted 
 above (p. 53) as regards questions of rent, mortgage, etc., 
 which relate to the ownership of realty by foreigners according 
 to the provisions of Ottoman law. These questions are in a 
 sense, moot points on which an understanding has not yet been 
 reached by the Porte and the Powers. 
 
JURIDICAL RIGHTS 67 
 
 man courts. In actual practice, however, recourse is 
 not had to such tribunals ; and usage has thus impliedly 
 prescribed the consular courts as the proper tribunals 
 in such cases. 
 
 In harmony with the legal principle actor sequitur 
 forum rei, it is customary for the plaintiff to bring 
 suit in the consular court of the defendant. An ex- 
 ception to this rule is found in the provisions of the 
 British Orders in Council whereby British Courts in 
 Turkey may assume jurisdiction in cases where the 
 defendant is a foreigner who submits himself with 
 the express consent of his government to be tried 
 according to the law which is habitually administered 
 in said British courts. Ottoman subjects have the 
 same privilege. ^'^ 
 
 As has already been observed, the Porte has never 
 disputed the jurisdiction of consular courts in civil 
 suits between foreigners of different nationalities. 
 Likewise, previous to 1881 the Porte did not deny the 
 competence of these courts in criminal suits between 
 foreigners of different nationalities. The right of 
 jurisdiction in such matters, under the Capitulations, 
 was apparently considered by the Porte to be of the 
 same character as the right of jurisdiction in matters 
 relating to foreigners of the same nationality. The 
 same principle was involved, namely, that the Porte 
 was not concerned in any controversies between for- 
 
 2^ Hall, For. Jurisdiction, etc., pp. 161-163. Although British 
 courts in Turkey are competent to try Ottoman subjects with 
 the consent of the Porte, such a case has never arisen. The 
 Porte would never give its consent to a proceeding so deroga- 
 tory to the sovereignty of Turkey. 
 
68 FOREIGNERS IN TURKEY 
 
 eigners, but was concerned merely in questions af- 
 fecting Ottoman subjects. 
 
 With the adoption of judicial reforms, and the 
 increasing resentment of the Porte over the encroach- 
 ments of the exterritorial system, the Turkish Gov- 
 ernment began in 1881 to claim jurisdiction in all 
 cases between foreigners of different nationalities 
 where the interests of the state in respect to public 
 order and morals might be deemed to be involved. 
 The Porte based this claim legally on its interpretation 
 of the Capitulations, notably Article 52 of the treaty 
 of 1740 with France, which reserved to the consular 
 authorities jurisdiction in "disputes" between foreign- 
 ers of different nationalities. The Porte claimed that 
 the word "dispute" {niza) referred simply to con- 
 tentions of a civil character, and that criminal ques- 
 tions, namely, murder (katl), misdemeanors (teuh- 
 met), etc., involving public order and morals, were 
 undoubtedly within the exclusive competence of Otto- 
 man courts. 
 
 The Powers disputed the correctness of the Porte's 
 interpretation of the Article in question; but rested 
 their claim to exclusive jurisdiction on recognized 
 usage, asserting that "the alienation of a sovereign 
 right may be completely effected through tacit aban- 
 donment." The Porte, on the other hand, argued that 
 "sovereign rights might not be parted with by non- 
 usage" : that "sovereign rights are imprescriptible." 
 etc.28 
 
 28 Mandelstam, p. 250. See also pages 223-250 for a masterly 
 presentation of the merits of this controversy. 
 
JURIDICAL RIGHTS 69 
 
 It does not appear that the claims of either the 
 Porte or the Powers are either expressly supported or 
 disproved by the Capitulations. The position of the 
 Porte seems to be clearly sustained through its inherent 
 rights as territorial sovereign to be concerned with all 
 that pertains to public order and morals. But the 
 acquiescence of the Ottoman authorities in the exclu- 
 sive jurisdiction of the Powers in all questions between 
 foreigners of different nationalities over so long a pe- 
 riod of time would sem to have amounted virtually 
 to an abandonment of its sovereign rights of jurisdic- 
 tion in such cases. 
 
 2. Courts and Procedure 
 
 In suits involving foreigners of different nationali- 
 ties the same courts are resorted to and the same 
 procedure employed as in cases involving foreigners 
 of the same nationality. A peculiarity of this system, 
 however, is found in the fact that the defendant may 
 not bring a cross-suit in his own consular court but 
 must sue in the court of the plaintiff. In case the 
 competent court of appeal annuls the decision of the 
 court, the defendant who may have been falsely ac- 
 cused and wrongly condemned is thus quite likely to 
 have his petition for a cross-suit rejected by the con- 
 sular court of the original plaintiff.^® 
 
 ^-^. Law Administered. Execution of Law 
 
 The law enforced and the penalties inflicted in suits 
 involving foreigners of different nationalities are the 
 
 29 Ehi Rausas, p. 407. 
 
70 FOREIGNERS IN TURKEY 
 
 same as in suits involving foreigners of the same na- 
 tionality except in the following instances indicated 
 by Du Rausas :^'' 
 
 Usage, whose legal value and liberalism it is difficult 
 to challenge, has established the following rules. Thie 
 law to be applied, in principle, is that of the state in 
 whose name the tribunal resorted to dispenses justice, 
 that is to say, specifically, the national law of the de- 
 fendant, and in matters relating to inheritance, the 
 national law of the deceased. This law, however, ceases 
 to be applicable in three instances: (i) When it is a 
 question of determining the status and legal capacity of 
 the foreigner as plaintiff: the law to be applied then is 
 the national law of that foreigner; (2) when it is a 
 question of determining the validity of a juridical act, 
 or when it is a question of interpreting an agreement 
 and determining the effects of said act or agreement: 
 the law to be applied is then the territorial law, whether 
 the written law or local customs, in conformity with the 
 rule locus regit actum and with the rule of (legislative) 
 freedom of will (I'autonomde de volonte) ; (5) when, 
 even outside of cases of the application of the rule locus 
 regit actum and the rule of (legislative) freedom of 
 will, the law of the tribunal concerned is in opposition 
 to the local customs; for reasons which we have pre- 
 viously indicated, the local customs have force of law in 
 the Ottoman Empire and should be applied even wheni 
 they are in derogation of the law of the state in whose 
 name the consular tribunal concerned, dispenses justice. 
 
 In addition to these judicial functions, consular of- 
 ficials in Turkey are usually empowered to perform 
 acts of a juridical nature where foreigners of different 
 nationalities are concerned, as for example notarial 
 acts, and the celebration of the marriage ceremony. 
 
 The powers of the various consuls differ considera- 
 
 2° Ibid., p. 407. 
 
JURIDICAL RIGHTS 71 
 
 bly in these respects. For example, Italian law au- 
 thorizes Italian Consuls to solemnize marriages where 
 both parties are Italian subjects or the husband alone 
 is of Italian nationality.*^ British Consular officials 
 are empowered to solemnize marriages between British 
 subjects, or when one of the persons is a British 
 subject.^^ American Consular officials, however, have 
 no authority to perform the marriage ceremony, though 
 strange to say they may exercise jurisdiction in ques- 
 tions of divorce.^* 
 
 To summarize existing usage under the Capitula- 
 tions concerning foreigners of different nationalities, 
 the consular tribunal of the defendant has jurisdiction 
 as a rule in all civil suits. In criminal suits, the same 
 tribunal likewise exercises jurisdiction, though the 
 Porte has unsuccessfully maintained that Ottoman 
 courts should have jurisdiction in such cases whenever 
 public order or morals are involved. The courts and 
 procedure in such cases, with slight variations, are 
 the same as in cases between foreigners of the same 
 nationality. The law enforced and the penalties in- 
 flicted are likewise the same, though the lex loci is 
 frequently applicable in preference to the national law 
 of the defendant. Consular officials have also certain 
 extra-judicial functions such as the drawing up of 
 legal instruments and the solemnization of marriages. 
 
 '1 Du Rausas, p. 409. 
 
 32 Hall, For. Jurisdiction, etc., p. 87. 
 
 33 United States Consular Regulations, 1897, sections 417-422. 
 
THE JURIDICAL RIGHTS OF 
 FOREIGNERS (Continued) 
 
CHAPTER IV 
 The Juridical Rights of Foreigners (Continued) 
 
 c. immunities of jurisdiction in matters affect- 
 ing BOTH foreigners AND OTTOMAN SUBJECTS^ 
 
 I. Ottoman tribunals have* jurisdiction in cases in^ 
 valuing foreigners and Ottoman subjects except in 
 matters relating to the personal status of the former.^ 
 
 The early Capitulations, particularly the French 
 Capitulations of 1740 (Articles 26 and 65), left hardly 
 any doubt as to the intention of the Porte to reserve 
 to itself jurisdiction in all matters between natives and 
 foreigners, or in the case of offenses against the state. 
 
 1 Mandelstam, pp. 49-208, 251-255; Du Rausas, pp. 412-443; 
 Young, Corps de Droit„ etc., pp. 251-278. 
 
 2 The exceptions noted include inheritance and bankruptcy 
 which by some curious analogy are grouped together and con- 
 sidered within the province of the consular courts because in- 
 volving questions of personal status. The power to settle the 
 estates of deceased foreigners is assimilated to the power to 
 settle the affairs of bankrupt foreigners. The execution of the 
 decisions of consular tribunals in this respect is left to the 
 Ottoman tribunals. As has already been pointed out (page 42) 
 foreigners hold real estate subject to Ottoman law and juris- 
 diction. Wherever the personal status of the foreigner is in- 
 volved, however, such questions may be deferred to the compe- 
 tent consular court. Here exists a conflict of jurisdiction of 
 serious import but not of actual moment for the purpose of 
 the present discussion. 
 
 75 
 
76 FOREIGNERS IN TURKEY 
 
 As already pointed out, however, the settlement of 
 an ever increasing number of judicial questions 
 through diplomatic, extra-judicial negotiations with the 
 "Imperial Divan" proved to be a cumbrous, and en- 
 tirely unsatisfactory procedure. The absence of reliable 
 Turkish courts, as well as the lack of a code of laws 
 applicable to foreigners, led the different consular 
 tribunals during the first half of the nineteenth cen- 
 tury to assume jurisdiction over cases involving their 
 own nationals when defendants in suits brought by 
 Ottoman subjects. But with the formation of proper 
 courts and the promulgation of adequate commercial 
 and penal codes under the judicial reforms of 1840, 
 1847, 1850, i860, 1867, and 1879, the Porte gradually 
 resumed its jurisdiction in such cases, having secured 
 the formal consent or the tacit acquiescence of the 
 other nations excepting the United States, Belgium, 
 and Portugal. 
 
 The treaties signed by Turkey with the United 
 States, Belgium, and Portugal in 1830, 1838, and 1843, 
 respectively, all contained a like provision whose gen- 
 eral purport, in contrast with the early Capitulations, 
 was apparently to grant to the consular tribunals of 
 these three countries absolute criminal jurisdiction 
 over their own nationals without any reservations what- 
 ever as to arrest, trial, and punishment. 
 
 Article IV of the American treaty of 1830, ac- 
 cording to the English version officially maintained by 
 the United States against the French version upheld 
 by the Porte, reads in part as follows :^ 
 
 2 Moore's Digest, II, p. 701. For a resume of the official cor- 
 
JURIDICAL RIGHTS -jy 
 
 . . . Citizens of the United States of America, quietly 
 pursuing their commerce, and not being charged or con- 
 victed of any crime or offense, shall not be molested ; and 
 even when they may have committed some offense they 
 shall not be arrested and put in prison, by the local 
 authorities, but they shall be tried by their Minister or 
 Consul, and punished according to their offense, follow- 
 ing, in this respect, the usage observed towards other 
 Franks. 
 
 The French version of Article IV, according to 
 the Turkish Government, is as follows : 
 
 Les citoyens Americains vaquant paisiblement aux af- 
 faires de leur commerce ne seront point molestes sans 
 motif tant qu'ils n'auront pas commis quelque delit ou 
 quelque faute; meme en cas de culpabilite, ils ne seront 
 pas imprisonnes par les juges et les agents de la surete, 
 mais ils seront punis par les soins de leur ministre et 
 consul a I'instar de ce qui se pratique a I'egard des autres 
 Francs. 
 
 The official translation of this Article as given in 
 Secretary Blaine's note* of December 22, 1890, to Min- 
 ister Hirsch reads : 
 
 American citizens peaceably attending to matters of 
 commerce shall not be molested without cause or fault. 
 Even in case of culpability they shall not be imprisoned 
 by the judges and police agents, but they shall be pun- 
 ished through the agency of their ministers and consuls, 
 according to the practice observed in regard to other 
 Franks. 
 
 The serious divergence between these English and 
 French versions of the Turkish text, which alone 
 
 respondence between Turkey and the United States on the 
 subject of the arrest, trial, and punishment of Americans, see 
 Moore, II, pp. 668-772. 
 ^Ibid., p. 701, 
 
78 FOREIGNERS IN TURKEY 
 
 should be held as authoritative, has rendered an ad- 
 justment of the controversy extremely difficult. Mr. 
 Frelinghuysen, Secretary of State, fairly expressed 
 the reductio ad absurdum of the Turkish contention as 
 follows :' 
 
 So far as the Turkish position may be inferred from 
 what has been said heretofore, it implies contention for 
 four alternate stages of procedure, viz: 
 
 (a) The Turks to arrest (which is expressly forbidden 
 by the Capitulations). 
 
 (b) The minister to imprison. 
 
 (c) The Turks to try the accused in the presence of 
 their minister or consul (but without the latter exercising 
 any of the "instrumentality" which the treaty of 1830 ad- 
 mittedly reserved to them) ; and 
 
 (d) The minister or consul to "punish" in accordance 
 with the offense (although all instrumentality in fixing 
 a punishment is denied to the minister or consul). 
 
 It would serve no particular purpose to go into the 
 details of this long diplomatic logomachy in which 
 the advantage would seem to have remained on the 
 side of the United States.®" The Department of State, 
 
 " Ibid., p. 696. 
 
 ^' While the United States has had the better of the argument 
 in this controversy, it suffered a severe defeat in the test case 
 Oif Charles Vartanian and Hovhanes Afarian, naturalized 
 American citizens of Ottoman origin who were arrested and 
 tried by the Turkish authorities in 1905 on the charge of killing 
 a rich Armenian merchant in Constantinople. The Sublime 
 Porte refused the demand of the United States for a stay in 
 the proceedings pending a diplomatic adjustment of the whole 
 question of Article IV, as well as the peremptory demand that 
 the accused be handed over to the American Consulate-Gen- 
 eral for trial and punishment. The men were tried and sen- 
 tenced without the presence at the trial of the American drago- 
 man, Vartanian being condemned to death and Afarian to 
 
JURIDICAL RIGHTS 79 
 
 however, has been willing to make the substantial con- 
 cession of trial by Ottoman courts, as in the case of 
 other foreigners, though reserving the right to punish.^ 
 At the time the Porte entered into the treaties with 
 the United States, Belgium, and Portugal, the recog- 
 nized usage concerning foreigners accused of crime by- 
 Ottoman subjects was that jurisdiction in such cases 
 belonged to the consular tribunals. These .separate 
 treaties amounted, therefore, to nothing less than a 
 formal and solemn recognition of existing usage.'^ As 
 impartial and reliable an authority as Andre Mandel- 
 stam, formerly First Dragoman of the Russian Em- 
 bassy in Constantinople, fully .sustains this point of 
 view.* 
 
 If our opinions (says Mandelstam) as to the Turkish 
 text of Article IV of the treaty of 1830, be accepted, the 
 
 fifteen years' imprisonment at hard labor. Owing to the vigor- 
 ous representations of the American Embassy, the Porte did 
 not permit the sentence against Vartanian to be carried out. 
 The United States allowed the matter to rest in this form. 
 As .the issue was clearly drawn, the result was most unfortu- 
 nate in that it revealed that the United States was not prepared 
 to insist in actual practice on what it claimed in principle. See 
 Foreign Relations of the United States, 190S, p. 885. 
 
 ^ Ihid., p. 703. 
 
 ' Mandelstam, pp. 146-151. 
 
 ^ Ibid., p. 163. For an excellent analysis of this whole ques- 
 tion, see same author, pp. 1S2-174. Mandelstam treats of the 
 Turkish treaty of 1823 with Sardinia, and the treaty of 1839 
 with the Hanseatic towns, containing similar provisions to those 
 of the treaties with the United) States, Belgium and Portugal. 
 As both Italy and Germany have allowed any alleged rights 
 under the two treaties mentioned to lapse, they have not any 
 value for the purpose of this discussion except to confirm the 
 usage in respect to Franks at the time the three other treaties 
 were made. 
 
So FOREIGNERS IN TURKEY 
 
 question relative to the nature of the final clause "ac- 
 cording to the practice observed in regard to other 
 Franks,' solves itself. The Turkish text, as moreover 
 the French text of this Article, should not be considered 
 as constituting a general most-favored-nation clause. The 
 final reference of that text is only an illustration, an ex- 
 ample. It does not purport to make American rights de- 
 pend on French rights ; after having described and speci- 
 fied American rights, it simply shows that the other 
 Franks enjoyed these rights at that time. It is in no way 
 a most-favored-nation clause which would render the 
 privileges conferred by Article IV uncertain, varying 
 with the usage of other Franks. Article IV established 
 an original and immutable American right. 
 
 Mandelstam further states his belief that the other 
 nations through long acquiescence in respect to Otto- 
 man jurisdiction over foreigners accused of crime by 
 Turkish subjects, have forfeited any right to claim 
 under the most-favored-nation clause the same privi- 
 leges claimed by the United States, Belgium,*" and 
 
 *" An interesting test case between Turkey and Belgium arose 
 in igos, the same year of the test case between the United 
 States and Turkey (note 5°), in the arrest and condemnation of 
 Charles Edouard Joris, a Belgian subject, by the Turkish au- 
 thorities at Constantinople, on the charge of an attempt on the 
 Hfe of the Sultan. ' "Joris was assisted at the trial before the 
 criminal court by a representative of the Belgian Legation, who 
 refused to join in the judgment of the court. After judgment 
 the Belgian Legation demanded that Joris be handed over to the 
 Belgian Government for trial before the court of assize of 
 Brabant, which has jurisdiction, under Belgian law, 'over crimes 
 committed by Belgians in non-Christian countries.' The Turk- 
 ish Government refused to comply with this demand, and has 
 maintained its attitude, notwithstanding the repetition of the 
 Belgian demand." {American Journal of International Law, 
 vol. I, p. 485, 1907.) The case was finally disposed of by the 
 action of the Porte in releasing Joris and permitting him to 
 
JURIDICAL RIGHTS 8i 
 
 Portugal. But he believes that in case Ottoman jus- 
 tice should prove hopelessly inadequate and unsuited 
 for foreigners, these privileges might afford by way 
 of precedent considerable moral support to other na- 
 tions desiring to w^ithdraw their nationals from the 
 jurisdiction of Turkish courts.® 
 
 Whatever may be the special privileges obtained by 
 the United States, Belgium, and Portugal, through 
 their treaties with Turkey, it seems reasonably clear 
 that general usage and simple equity recognizes the 
 right of the Porte in the exercise of territorial sov- 
 ereignty to jurisdiction (with certain restrictions such 
 as the assistance of foreign assessors and consular 
 dragomans) in all cases, civil and criminal, involving 
 foreigners and Ottoman subjects. The United States 
 has been prepared to concede as much;^** and the ques- 
 tion at issue should be susceptible of amicable and 
 satisfactory adjustment. 
 
 2. Courts and Procedure^'^ 
 The Ottoman tribunals competent to assume juris- 
 diction in cases involving both foreigners and natives, 
 or in cases of crime against the state, are the following : 
 
 leave the country. Professor Politis of the University of Paris 
 in an article in the Revue de droit international prive (vol. II, 
 p. 659), attacks the claims of Belgium to jurisdiction in this 
 and similar cases, asserting that neither treaties or usage pre- 
 vent jurisdiction by the Turkish courts. 
 
 " Mandelstam p. 173. 
 
 1" Moore, II, p. 702. 
 
 11 For the laws, regulations and special provisions relating to 
 Ottoman courts, and to the juridical privileges of foreigners, 
 see Young, Corps de Droit, etc., vol. I, chapters VII to XV 
 inclusive. 
 
82 FOREIGNERS IN TURKEY 
 
 (a) The "Tribunaux correctionnels" (to employ 
 the designation borrowed from the French judicial 
 system) are competent to try with the assistance of 
 the consular dragoman any foreigner charged with 
 a crime or misdemeanor against an Ottoman subject, 
 or against the state. 
 
 (b) The tribunals designated in Turkish as Nisa- 
 mieh are competent to try: (i) all realty suits con- 
 cerning a foreigner without the presence of a drago- 
 man at the trial; (2) all questions of rent, if the 
 owner is a foreigner, without the presence of the 
 dragoman; (3) all civil suits between a foreigner and 
 •a native not involving a sum exceeding a thousand 
 piasters ($44.00), the dragoman being present. 
 
 (c) The Mixed Tribunals, otherwise known as 
 Commercial Tribunals, composed of three Ottoman 
 judges and two foreign assessors assisting at the trial 
 together with the consular dragoman, have jurisdiction 
 in respect to all commercial litigations between an 
 Ottoman subject and a foreigner, or any civil suit 
 where the sum involved exceeds one thousand piasters. 
 Appeal from the decisions of the Mixed Tribunals 
 outside of Constantinople may be taken to the Mixed 
 Tribunal in the capital. 
 
 The three classes of courts above indicated do not 
 exist uniformly throughout Turkey. In certain locali- 
 ties the Mixed Commercial Tribunals or their equiva- 
 lents have been suppressed. In such cases, commercial 
 disputes are brought before the competent civil tri- 
 bunals {Nizamiehy^ with final appeal to the Mixed 
 
 12 The Nizamieh tribunals when trying commercial questions 
 
JURIDICAL RIGHTS 83 
 
 Tribunals in Constantinople when the amount involved 
 exceeds a thousand piasters. 
 
 As previously pointed out,^^° foreigners residing in 
 places more than nine hours distant from their consular 
 officials, are not entitled to precisely the same privi- 
 leges as foreigners within the nine-hour zone. They 
 are deprived of the assistance of the consular drago- 
 man though they retain the right of appeal where the 
 amount involved exceeds one thousand piasters. 
 
 As to the presence of foreign assessors^* in the 
 Mixed Tribunals, these functionaries are designated 
 by their respective Embassies and Legations for vary- 
 ing periods of service, and cannot be considered as 
 judicial officials in the strict sense. Their functions 
 are largely extra-judicial in character. When the de- 
 cision of the three Ottoman judges may be contrary to 
 the opinion of the two foreign assessors, the latter as 
 a rule merely register their dissent in signing the pro- 
 ces-verbal. If they refuse, however, for exceptional 
 and powerful motives to acquiesce in the decision, it 
 then becomes necessary to leave the matter to diplo- 
 matic adjustment through the medium of the Ministry 
 of Justice and the Sublime Porte, — a procedure which 
 cannot fail to be most unsatisfactory whatever the 
 result. 
 
 of this character are authorized to allow foreign assessors to 
 assist in accordance with the practice of the Mixed Tribunals 
 in this respect. (Young, I, p. 243.) The Porte does not recog- 
 nize the right of foreigners to insist that foreign assessors be 
 summoned in such suits, but has often been compelled to con- 
 cede in practice what it denies in principle. 
 
 12" See page 45 supra. 
 
 13 Mandelstam, pp. 77-82. 
 
84 FOREIGNERS IN TURKEY 
 
 The Porte for a time objected to the presence of a 
 foreign assessor of a nationality dififerent from that 
 of the foreigner party to the .suit, but afterwards with- 
 drew its objection when it became evident that in some 
 instances a competent assessor of the same nationahty 
 would not be available.^* 
 
 The original Capitulations guaranteed the right of 
 
 a foreigner to the assistance of his ambassador, consul, 
 
 or of their representative, the dragoman, in all trials 
 
 before the Ottoman courts.^^ What was meant by 
 
 "assistance," however was never well defined, and the 
 
 Porte, while making a virtue of a necessity, has long 
 
 denied the right of the dragoman to exercise certain 
 
 powers which that official has accumulated in the 
 
 course of time. Du Rausas remarks in this connection 
 
 that: 
 
 . . . the extent of the powers of the dragoman varies 
 every day ; it varies with the consulates, with the drago- 
 mans themselves ; it depends upon the relations which 
 the ambassador of this or that Power maintains with the 
 Porte, of the attitude more or less favorable to foreign- 
 ers which the president of this or that tribunal may hold, 
 sometimes also of the ability demonstrated, or of the per- 
 sonal sympathy which this or that consul or dragoman 
 may inspire/" 
 
 Without attempting to discuss the merits of the 
 controversy between the Powers and the Porte con- 
 cerning the functions of the dragoman, we may take 
 note of the ordinary usage followed in this respect, as 
 set forth by Du Rausas. 
 
 1* Young, op cit., I, p. 243. 
 
 1= Mandelstam, pp. 82-94. Also supra p. 36. 
 
 1' Du Rausas, p. 438. 
 
JURIDICAL RIGHTS 85 
 
 The mission of the dragoman is not simply that of an 
 interpreter; it is a mission of control and surveillance. 
 This being admitted, it is very evident that it is necessary 
 to give to the dragoman the practical means of fulfilling 
 efficaciously his mission of control and surveillance. 
 These means are, and cannot be otherwise than the power 
 recognized in the dragoman to stop the proceedings, as 
 the case may be, or prevent the execution of the decision. 
 Hence the necessity of the vise and the signature: they 
 must be affixed to all important papers in the proceedings, 
 that is to say, in a civil suit, to the original complaint, to 
 the records of the investigation and examination (into the 
 facts), to the final sentence; and in criminal suits, to the 
 summons to appear before the examining magistrate, to 
 the records of the examination (of the person accused), 
 or of the hearing of witnesses, to the rulings of the 
 magistrate, and finally, to the sentence of condemnation. 
 . . . The presence of the dragoman, indicated by his 
 vise and signature, is a guarantee of the validity 
 of the proceedings and of the sentence. If, then, 
 the vise and the signature of the dragoman do not 
 appear on a document where they normally should 
 appear in the proceedings, this document is inap- 
 plicable to the foreigner, with the result that the trial 
 may not begin, or is terminated. Especially, if the vise 
 and the signature of the dragoman do not appear on the 
 order for arrest issued against a foreigner, or on the 
 sentence of conviction pronounced against a foreigner, 
 that order and that sentence may not be carried out." 
 
 From the foregoing excellent summary it may 
 readily be appreciated how many occasions for con- 
 tention and friction may arise between the dragoman 
 and the Ottoman authorities; how the normal course 
 of justice may be unreasonably interrupted at times; 
 and finally, how thoroughly objectionable to the Turks 
 must be this autocratic control over their courts, es- 
 
 " Ibid.^ pp. 439-440- 
 
86 FOREIGNERS IN TURKEY 
 
 pecially when exercised by subordinate foreign officials 
 not always well versed in local laws and customs. To 
 such an extent is this control carried that the Turkish 
 Government is unable to carry out the decrees of the 
 Cour de Cassation, the supreme judicial tribunal of 
 the Empire, owing to the fact that the Powers refuse 
 to acknowledge its jurisdiction over foreigners with- 
 out the assistance of the dragoman at the trial. 
 
 For the sake of justice, as well as out of respect to 
 the rights of territorial sovereignty, whenever it may 
 be shown that the rights of foreigners to a fair trial 
 are properly protected, it would seem of the utmost 
 importance that the Porte should secure the consent 
 of the Powers to an extensive curtailment of the su- 
 pervisory control of the dragoman over Ottoman 
 courts. 
 
 One other fact to be noted in respect to the pro- 
 cedure in Ottoman courts is that suits brought against 
 Turkish subjects by foreigners are commenced through 
 the medium of the proper diplomatic or consular of- 
 ficials. This is done by the dragoman who presents 
 to the Mixed Tribunal the charges duly translated into 
 Turkish. This tribunal must likewise employ the 
 same agency in order to notify foreigners of sum- 
 monses and sentences of the courts. In such cases 
 the legal delays for appeal, etc., date from the day 
 when the consulate receives the notification in ques- 
 tion.^^ Following the rule laid down by the early 
 Capitulations, all evidence of transactions on which 
 
 18 Young, I, p. 246. 
 
■ JURIDICAL RIGHTS 87 
 
 suits are based must be presented to the Mixed Tribu- 
 nal in writing. Charges based on oral testimony- 
 may not be entertained.^* 
 
 J. The Law Administered -** 
 
 The law lying at the base of all laws in Turkey is 
 the Sheri, the Moslem sacred law, which in theory 
 cannot countenance any legislation contrary in any 
 respect to its precepts. However, when the system 
 of mixed commercial tribunals was adopted in 1848 
 with the consent of the Powers, a commercial code 
 was adopted (two years later) ; an appendix to the 
 code was published in i860; a code of commercial 
 procedure, in 1862; and finally, a maritime commercial 
 code, in 1864, — all with the approval of the Powers. 
 These codes were drawn for the most part from the 
 French commercial codes though in a very defective 
 manner. The Mixed Tribunals when endeavoring to 
 supply the deficiencies of the Ottoman commercial 
 code had recourse to the principles of the French 
 code. But with the adoption of the Ottoman civil 
 code, the Medjelle, in 1868, — a code compiled mainly 
 from the Sheri, — ^the Mixed Tribunals began to have 
 recourse to this body of law. The Medjelle, based 
 as it was on the sacred law, is not in harmony in all 
 respects with the principles of the codes drawn from 
 French sources. It does not recognize for example 
 the element of usury in commercial enterprises. 
 
 19 Ibid. 
 
 2" As to the law applied in mixed suits in Ottoman tribunals, 
 see Mandelstam, pp. 1-60, 96-1 11, 206-208. 
 
88 FOREIGNERS IN TURKEY 
 
 The Powers have insisted that inasmuch as the 
 Ottoman commercial code is based on the theory and 
 principles of the French code, any defects in the 
 former should be supplied from the original source. 
 The Powers, moreover, deny to the Porte the right 
 to amend the commercial code without their consent. 
 The result, as may readily be conceived, is that there 
 exists a most serious divergence of views as to the 
 law to be applied in the Mixed Courts. It would seem 
 obvious, as insisted by Mandelstam, that an under- 
 standing on this subject between the Porte and the 
 Powers is indispensable.^^ 
 
 The law which is applied in the civil and criminal 
 courts in cases involving foreigners, is that contained 
 in the civil and criminal codes, and in the regulations 
 relative to the enforcement of the decrees of the 
 courts, promulgated by the Porte in 1879. Though 
 based largely on French laws, these codes and regula- 
 tions have never been approved by all the Powers 
 because of the fact that they contain features con- 
 ■ sidered inapplicable to foreigners, such as for example 
 imprisonment for debt. Wherever these codes are 
 defective, the tendency of the Turkish courts is to 
 have recourse to the Sheri. 
 
 It should always be borne in mind that the Ottoman 
 tribunals are subjected, in their application of law 
 in the case of foreigners to the restraining influence 
 of the foreign assessors and the consular dragoman. 
 
 21 Mand'elstara, p. iii. 
 
JURIDICAL RIGHTS 89 
 
 4. Execution of Law ^^ 
 
 The actual practice observed in regard to the carry- 
 ing out of the decisions of Ottoman courts in com- 
 mercial and civil suits cannot be more clearly- 
 summarized than in the words of Mandelstam. 
 
 In respect to the execution of the decisions of Otto- 
 man courts rendered against foreigners, there are . . . 
 five different systems. One group of nations, Russia 
 and Austria-Hungary, proceed to the execution of these 
 decisions through the medium of their own consulates 
 and according to their own laws in respect to the execu- 
 tion of decisions. A second group of states, France, 
 Belgium, and the United States, permit the carrying out 
 of Turkish decisions according to Ottoman law, except 
 in those cases where it is in flagrant opposition to the 
 law of the foreigner, as in the matter of physical con- 
 straint. A third group of states, Germany, Italy, and 
 Roumania, authorize the execution of decisions by the 
 agency of their consulates, applying the Ottoman law 
 even when it is contrary to their national laws. A fourth 
 system, adopted by England, leaves the execution of de- 
 cisions in the hands of the Ottoman authorities. The 
 fifth system, finally, which is that assigned to Greece by 
 the arbitral award of 1901,^^° recognizes the right of ex- 
 ecution of decisions by the consular authorities, save to 
 cause the right to revert to the local authorities after a 
 certain delay. . . . The execution of the decisions of Otto- 
 man courts against Ottoman subjects and in favor of 
 foreign subjects belongs indisputably to the Ottoman 
 authorities.^^ 
 
 In regard to the arrest and detention of foreigners 
 accused of crimes before the Ottoman courts, it may 
 be said that most of the Powers, while differing as to 
 
 "^Ibid., pp. 138-144, 185-192, 208-211. 
 22" See page 41 supra. 
 ^^Ibid., p. 143. 
 
90 FOREIGNERS IN TURKEY 
 
 the handing over of such persons to the consular 
 authorities, claim in principle the right of detention 
 during trial, though in practice this right is often 
 waived by certain of these states. 
 
 In criminal cases, the Powers with the sole ex- 
 ception of Austria-Hungary have never expressly 
 renounced the claim to the right of foreigners con- 
 victed and sentenced in Ottoman courts to serve their 
 sentences in consular prisons. Germany, Holland, 
 Russia, and naturally the United States, have always 
 maintained this right. England, Spain, France, Italy, 
 Greece, Persia, and Sweden, allow their nationals, with 
 occasional exceptions as in the case of imprisonment 
 for debt, to be imprisoned in Turkish jails. ^* 
 
 D. INVIOLABILITY OF DOMICILE ^^ 
 
 Article 70 of the French Capitulations of 1740 pro- 
 claimed, and the Protocol of 1867 confinned the 
 inviolability of the domicile of foreigners. In the 
 process of time, however, the Ottoman Government 
 has sought naturally to place limitations on this im- 
 munity especially as regarding hotels and printing 
 establishments. The Powers have as strenuously 
 maintained their extreme pretensions in this respect. 
 
 Without attempting to go into a discussion of the 
 
 2* Young, I, pp. 253-256. 
 
 25 Mandelstatn, pp. 176-185; Du Rausas, pp. 129-133. The 
 principle on which the inviolability af the domicile of foreign- 
 ers is based, as expressed by Du Rausas, is "The Ottoman au- 
 thorities have no jurisdiction over the domicile because they 
 have no jurisdiction over the person of a foreigner." See also 
 page 45 supra. 
 
JURIDICAL RIGHTS 91 
 
 merits of various controversies over this matter, we 
 may note briefly the practice generally observed in 
 reference to the visit and search of the houses, shops, 
 etc., of foreigners. 
 
 (i) "The domicile of a foreigner may not be visit- 
 ed by the local authorities without consular assistance, 
 except in the instances noted in the Protocol of 
 i867."2« 
 
 (2) The Powers have insisted that "consular as- 
 sistance is equally necessary in those instances where 
 the local authorities proceed to investigate and search 
 printing establishments, bookstores, liquor shops, 
 places of public amusement, and all other similar es- 
 tablishments, as also hotels, apartments, or hostelries, 
 kept by foreigners."^'' 
 
 (3) "The inspection of foreign vessels is abso- 
 lutely forbidden to local authorities. Foreign subjects 
 •who have committed an ofifense or crime on shore are 
 not handed over to the authorities; but Ottoman sub- 
 jects may be surrendered upon the presentation of a 
 proper order of arrest."^^ 
 
 (4) The local authorities, in some instances,^^ have 
 
 2^ See also supra pages 45. The quotations here cited are 
 from Mandelstam (p. 184). 
 
 2^ While the Powers have resisted in principle the claims of 
 the Turkish police to exercise a close surveillance over public 
 resorts, they have occasionally acquiesced in the entrance and 
 search of foreign hotels, etc., by the competent local authorities. 
 
 28 See also footnote 26 to chapter II. 
 
 2^ It would be unreasonable to deny the right of the Turkish 
 authorities to enter the house of a foreigner in case of fire, 
 murder, or any serious disturbance amounting to a breach of the 
 peace. 
 
92 FOREIGNERS IN TURKEY 
 
 the right to enter the domicile of a foreigner accused 
 of a crime or offense, in order to make the necessary 
 investigation; but this does not confer the right to 
 arrest or imprison. The Porte has decHned to admit 
 that the Turkish authorities have no such right, and 
 consequently difficulties in this connection are con- 
 stantly arising. 
 
 E. SPECIAL IMMUNITIES 
 
 I. Consular Immunities *" 
 
 In view of the extraordinary powers of consular 
 officials in Turkey, usage and the Capitulations have 
 accorded to them and their families, as well as to their 
 dependents, the same privileges and immunities usually 
 granted to diplomats and their suites. That inviola- 
 bility of domicile which is the right of all foreigners 
 is doubly the right of all consular representatives. 
 If, however, a consul owns land or engages in business, 
 he may not claim any greater privileges than enjoyed 
 by other foreigners. 
 
 In common with all foreigners, consuls are exempt 
 from personal taxes. 
 
 The regulations^^ concerning consular rights and 
 privileges promulgated with the consent of the Powers 
 July 27, 1869, exempt the personal as well as the 
 official effects of consular officials from customs duties. 
 These regulations also conceded to consular officials 
 engaged in business certain customs exemptions vary- 
 ing in extent with the rank of the official.*^ 
 
 '"Du Rausas, pp. 467-480; Van Dyck's Report, Appendix VII. 
 21 Van Dyck's Report, Appendix VIII. 
 32 Du Rausas, p. 479. 
 
JURIDICAL RIGHTS 93 
 
 2. Proteges ^^ 
 
 An anomalous condition of affairs has arisen 
 since the earliest establishment of foreign communities 
 in Turkey in regard to the proteges, native as well as 
 foreign, withdrawn from Ottoman jurisdiction and 
 placed under the protection of the various Powers. 
 These special immunities have accrued to the depend- 
 ents of foreigners mainly in order to guarantee effec- 
 tively the free enjoyment by foreigners of their 
 immunities in respect to persons, residence and business. 
 
 Various Powers for political purposes have sought 
 to extend their protection, either in a general way 
 over certain sects, as France for example over the 
 Syrian Catholics, or in a more specific manner, over 
 different monastic and other religious communities. 
 
 So many abuses arose in' connection with the pro- 
 tection accorded to Ottoman subjects that the Porte 
 in 1863 with the consent of the Powers promulgated 
 full regulations defining clearly the status of all 
 proteges.** 
 
 The various classes of proteges together with their 
 respective privileges are as follows : 
 
 (o) Consular Proteges. These include all native 
 consular officials such as vice-consuls, consular agents, 
 dragomans, clerks, and guards {Cavass). They are 
 under the protection of the country they serve, and 
 while performing their official functions are entitled 
 for general purposes to the same privileges as na- 
 tionals of that country. 
 
 ^^Ibid., II, pp. 1-79. ^ 
 
 3* Van Dyck's Report, Appendix VI. 
 
94 FOREIGNERS IN TURKEY 
 
 (b) Foreign Proteges. Many foreigners, the Swiss, 
 for example, are without diplomatic or consular rep- 
 resentation in Turkey, and are entitled to elect the 
 protection of certain Powers which practically all of 
 the privileges and rights of nationals of the country 
 empowered to grant protection. 
 
 (c) Religioiis Communities.^^ Certain monasteries 
 and other religious communities, some of which were 
 formerly under the protection of the Papal States, and 
 others which France, Russia, Austria-Hungary, and 
 other Powers have asserted the right to protect, are 
 regarded as of the nationality of the protecting nation. 
 
 The head of these religious establishments and 
 communities together with their superior officials 
 including the dragomans are entitled to immuni- 
 ties closely resembling those granted to consular 
 establishments. 
 
 A curious feature of this system is that if an 
 individual in such a community commits a misde- 
 meanor in the exercise of his religious duties, he 
 receives the consular protection of the nation claiming 
 jurisdiction over the community. If, however, he 
 should commit an offense as an individual while not 
 engaged in his religious functions, he would properly 
 be entitled to the protection of the consulate of his 
 own nationality whatever that might be. 
 
 It is also of interest to note that these religious 
 communities through the getierosity of the Turkish 
 Government have been granted certain exemptions 
 
 3= Du Rausas, IT, pp. 80-175. 
 
JURIDICAL RIGHTS 95 
 
 from customs duties. These privileges in turn have 
 been claimed by all other religious communities in- 
 cluding the American Protestant Missionary establish- 
 ments throughout Turkey.*® 
 
 (d) Permanent and Other Proteges. Prior to the 
 promulgation of the regulations of 1863 restricting 
 the rights of proteges, many Ottoman subjects had 
 acquired the status of proteges, and were allowed 
 by the Porte to maintain this exceptional status as an 
 hereditary right.*''^ 
 
 While employees of foreign commercial houses and 
 other establishments have no definite right to be treated 
 as foreign proteges, they enjoy as a matter of fact a 
 very large measure of immunity from Turkish juris- 
 diction. The euphemistic "unofficial good offices" of 
 the foreign employer's government are most effect- 
 ively brought into play in their behalf at times ; and 
 the Turkish authorities are ever reluctant to invite 
 diplomatic intermeddling by reason of any alleged 
 interference, either direct or indirect, with the personal 
 or business interests of any foreigner. It is therefore 
 more prudent, even under severe provocation, to leave 
 the native employees of foreign establishments severely 
 alone. 
 
 J. Inviolability of Correspondence^^ 
 
 The freedom of foreigners to engage in trade and 
 maintain establishments subject to the jurisdiction of 
 
 36 Van Dyck's Report, Appendix XIV. 
 3'' Dn Rausas, II, pp. 64-74. 
 
 38 Ibid., I, note I on page 417. See also Journal de Droit 
 International PrivS, 1901, p. 617. 
 
96 FOREIGNERS IN TURKEY 
 
 their own governments carried with it the freedom of 
 communication and correspondence. The Turks gave 
 themselves no concern until recently as to how for- 
 eigners carried on their correspondence. The result 
 has been the development of a complete postal service 
 for the benefit of foreigners, and of those natives as 
 well who choose to use it, entire withdrawn from the 
 supervision and control of the Turkish Government. 
 The six great Powers all maintain their own post- 
 offices in various parts of Turkey, and carry on a large 
 proportion of the postal operations which naturally 
 should lie within the competency and province of the 
 Ottoman postal service. 
 
 A privilege of this character which does not rest 
 on any specific grant of the Capitulations, and which 
 is most offensive to the amour propre of the Turks, 
 must inevitably be relinquished as soon as it can be 
 demonstrated that the Turkish post-offices are efficient 
 and reliable. 
 
 SUMMARY 
 
 We have traced in rough outline the origin and 
 evolution of the regime of the Capitulations. We have 
 noted the historical bases of the juridical rights of 
 foreigners in Turkey, and have endeavored to deter- 
 mine the exact nature of these rights. We have ob- 
 sei~ved certain features of this regime which would 
 seem to require considerable modification. We are 
 conscious that so abnormal a state of affairs cannot 
 endure indefinitely.^® As to just how it will be possible 
 
 8' The official attitude of the Turkish Government is reflected 
 
JURIDICAL RIGHTS 97 
 
 to reconcile the point of view of the Powers who are 
 naturally bound to protect the interest of their own 
 nationals, with the point of view of the Imperial 
 Ottoman Government whose jurisdiction as territorial 
 sovereign has suffered such serious and humiliating 
 limitations, is difficult to conjecture. And yet it would 
 seem necessary before leaving the subject to 
 seek, if possible, some reasonable solution of the 
 problem, — some rational, working hypothesis on 
 which to base future adjustments between Turkey and 
 the Powers. This task will be the object of the 
 following chapter. 
 
 in the views expressed 'by Count Ostorog, at that time legal 
 advisor of the Ministry of Justice, in an interview published 
 in the Stamboul of Constantinople under date of September 
 14, 1910. (Quoted also by Mandelstam, page vii.) "Le gouv- 
 ernraent ottoman . . . ne pense pas exiger la suppression absolue 
 et immediate des Capitulations, estimant que ce serait premature. 
 Pour le prouver il suffit de rappeler les declarations faites par 
 le Ministere de la Justice, Nedjmeddine Bey, a un redacteur du 
 Tanine au cours d'une interview sur la question. . . . D'apres les 
 aveux meme des legistes les plus impartiaux et les plus eminents, 
 il est patent que I'application etenduedes Capitulations a donne 
 lieu a des hesitations, a d'intiles differends et quelquefois aussi 
 a des faits absoluement contraires au droit et a I'equite. ... II 
 faut reviser les dispositions des Capitulations; supprimer les 
 causes de conflit ainsi que tout ce qui est de nature a blesser 
 I'amour-propere national et a donner lieu a un refroidissement 
 dans les relations entre les ottomans et les etrangers; enfin 
 trouver un modus vivendi provisoire base sue I'amitie, la sin- 
 cerite, le droit et la justice. Voila ce que demande le gouvern- 
 ment imperial. Quel est le gouvernement, I'homme d'Etat qui 
 puisse taxer cette pretention d'exageration et d'inopportunite." 
 
IMMUNITIES OF JURISDICTION AND 
 INTERNATIONAL LAW 
 
CHAPTER V 
 
 Immunities of Jurisdiction and International 
 
 Law 
 
 The rights of ahens would logically appear to be 
 the most important concern of international law. It 
 would seem that there could be no law of nations 
 which did not arise from the relations of individuals 
 in international intercourse. 
 
 Nations cannot act as impersonal entities with ab- 
 solute consistency. In their relations with each other 
 they deal as men with men. If these relations are 
 disturbed, it is through the action of men, and very 
 frequently the cause of international differences is to 
 be found in the grievances of individuals. This truth 
 is illustrated in many different ways. For example, 
 the rights of citizens of a neutral state who may be 
 engaged in the sale, shipment, and transportation of 
 goods of the nature of contraband of war are to be 
 determined by the rules of international law. Article 
 4 of the Hague Convention for the Establishment of 
 an International Prize Court permits an individual to 
 appear before the Court in certain instances.^ 
 
 The extradition of foreigners is a matter which 
 concerns the individual quite as vitally as the state, 
 and is properly regulated by recognized rules of inter- 
 national law. 
 1 A. Pearce Higgins, The Hague Peace Conferences, p. 409. 
 
 lOI 
 
I02 FOREIGNERS IN TURKEY 
 
 The exceptional status of merchant vessels and- 
 their crews in foreign ports is also expressly set forth 
 in all treatises on the law of nations. 
 
 Many of the most serious diplomatic incidents, 
 leading to warlike aggression in some instances, have 
 arisen over the alleged violation of the rights of aliens. 
 Witness the acts of reprisal on Greece by England in 
 1850 to secure reparation in the case of Don Pacifico, ^ 
 as well as the blockade of Venezuela in 1902 by Eng- 
 land, Germany, and Italy, to obtain payment of claims 
 held by their nationals.* 
 
 It not infrequently happens that a nation reserves 
 to itself the right to protest vigorously, and even in- 
 tervene by force, whenever it is convinced that its 
 nationals are not protected in their rights by the courts 
 or by the responsible officials of another country. Italy 
 in 1 89 1 very properly made the failure of the authori- 
 ties of New Orleans to protect Italian subjects from 
 mob violence the basis for drastic diplomatic repre- 
 sentations ; and the United States as properly responded 
 by the payment of an indemnity.* 
 
 All such matters are recognized as being within the 
 province of diplomatic negotiations, and deserving 
 the solicitous consideration of nations.^ And yet, 
 when the international law publicists approach this 
 
 2 Scott's Cases on International Law, p. 461. 
 
 s Moore's Digest, VI, p. S^. 
 
 * Scott, op cit., pp. 328-329. 
 
 ^ Despagnet in Droit International Prive (page 17) goes 
 so far as to aiErm that, in matters of conflict respecting penal 
 laws, recourse should be had rather to international public law 
 than to international private law. 
 
IMMUNITIES OF JURISDICTION 103 
 
 immense field of the rights of individuals within for- 
 eign jurisdictions, they seem to attempt to leave it one 
 side by affirming that international law has only to 
 do with the relations of states.® The rights of indi- 
 viduals, they say, are to be treated properly as a 
 separate branch of law denoted paradoxically as Pri- 
 vate International Law, International Private Law, or 
 preferably, as Story tried to solve the difficulty, 
 Conflict of Laws. 
 
 It has been said that there is a natural tendency in 
 the human mind to define a thing in order to avoid the 
 necessity of understanding it. It would be unjust 
 perhaps to apply this stricture to those publicists who 
 hold that the question of the general powers and juris- 
 diction of nations over the foreigners within their 
 borders is not properly the concern of international 
 law, but that it "is merely a subdivision of national 
 law", and "derives its force from the sovereignty of 
 the states administering it."'' It still remains true, 
 however, that if one so defines this subject he is spared 
 the necessity of giving it the earnest consideration it 
 would seem to deserve. 
 
 The English and American writers on this subject,^ 
 
 •i Hall, International Law, p. 51; Oppenheim, International 
 Laiv„ I, p. 18 (ed. 1905) ; Bonfils, Droit International, p. 2. 
 
 7 Hall, pp. 51-52. 
 
 8 Story, Conflict of Lams, Chapter II. (3d. ed.) "The first 
 and most general maxim or proposition is that . . . every nation 
 possesses an exclusive sovereignty and jurisdiction within its 
 own territory" (p. 28). See also Dicey, Conflict of Lams, 
 pp. 12-1S, 38 (ed. 1896) ; Westlake, International Private Law, 
 pp. 4, 20 (ed. 1880) ; Phillimore, International Law, vol. IV. 
 
104 FOREIGNERS IN TURKEY 
 
 notably Dicey and Story (Phillimore shows a distinct 
 tendency in a more liberal direction), weighted down 
 by the feudal traditions of the Common Law as a law 
 strictly territorial in character and scope, have jeal- 
 ously endeavored to maintain that the power of the 
 territorial sovereign over all persons within his juris- 
 diction is absolute. They claim that his courts are 
 bound to recognize no other laws as having extra- 
 territorial force in his territory except such as they 
 may be pleased to recognize on the grounds of "inter- 
 national comity and mutual utility."* 
 
 The continental writers on international law, on the 
 other hand, protest that no right can rest on comitas 
 gentium: that a right demands recognition because of 
 its own intrinsic merits. ■^'' These writers, who are 
 under the sway of Roman Law, have almost unani- 
 mously maintained that the territorial sovereign by no 
 means has absolute power and jurisdiction over the for- 
 eigner within his territory. They maintain that for- 
 eigners should have the benefit of their own laws 
 
 chapter on comity (ed. 1879) ; Holland, Jurisprudence, op. cit., 
 chap. XVIII. 
 
 ^ "The true foundation on which the administration of inter- 
 national law must rest, is, that the rules which are to govern 
 are those which arise from mutual interest and utility." Story, 
 P- 45. 
 
 1° Ce n 'est done pas en vertu d'une concession gracieuse 
 (comitas gentium) mais bien en obeissant a une regie de droit, 
 c'est-a-dire de raison et justice, tiree de la nature meme des 
 relations Internationales, que chaque pays accepte, dans certains 
 cas, sur son territoire, I'application de la loi etrangere. Des'- 
 pagnet, p. 26. 
 
IMMUNITIES OF JURISDICTION 105 
 
 whenever such laws are in no way opposed to the 
 public order and law of the sovereign state. 
 
 In other words, the continental authorities in in- 
 ternational law in opposition to the Anglo-American 
 authorities most emphatically deny that the rights of 
 aliens are to be determined solely by the varying legis- 
 lation of each sovereign nation. They insist with 
 convincing logic that these rights are essentially inter- 
 national rights to be determined only through the 
 joint agreement of nations. Nor is this mere abstract 
 reasoning or a verbal contention. The chief nations 
 of Europe have already embodied in formal inter- 
 national compacts those principles of law and rules 
 of procedure which should be observed in the treat- 
 ment of aliens respecting marriage, divorce, guardian- 
 ship, inheritance, and civil matters. ^^ 
 
 The problem concerning the abstract rights of 
 foreigners is presented concretely and most uniquely 
 in the case of Turkey. The solution of this problem 
 should be in accordance with sound international 
 principles rather than as a modus vivendi in frank 
 derogation of any hitherto accepted principles of the 
 law of nations. It should no longer be treated under 
 the absurd and unsatisfactory fiction of exterritorial- 
 ity as an exception to the general rules of interna- 
 tional law. A sound working hypothesis should 
 therefore be found to solve this problem in order to 
 afford a basis for future adjustments between the 
 Powers and Turkey. 
 
 11 See Actes de la Troisieme Conference de la Haye sw le 
 Droit International Prive, 1901. 
 
lo6 FOREIGNERS IN TURKEY 
 
 In view of the fact that the continental writers on 
 international law are practically united in treating the 
 rights of aliens as properly the first concern of the 
 law governing the intercourse of nations, their views, 
 in so far as they apply to the subject immediately at 
 hand, cannot fail to be of especial interest. 
 
 Professor Politis of the University of Paris states :^^ 
 
 There is an opposition and contradiction, it seems, be- 
 tween the terms "international" and "private." If our law 
 is international, it could not be private, because once a 
 relation between states is established, recourse is had to 
 a public law. If then, being international, it is public, 
 it blends with the law of nations of which it appears as 
 a special branch. . . . Now, i'n every matter of private 
 international law, one is in the presence of a conflict 
 of two sovereignties. In a conflict of laws, the ques- 
 tion is to know which is the competent law; and, 
 as the law itself has authority only because it is 
 the expression of the will of the legi'slator, this 
 amounts to demanding who is that legislator, that is 
 to say, the sovereign who has the right to see that his 
 orders are obeyed so far as they have relation to the 
 subject matter. This, then, is a conflict between sover- 
 eignties, exactly as in the law of nations. Hence they 
 are the same principles which should govern its solution. 
 
 In a memorandum presented by the Roumanian 
 
 delegate to the Third Conference of the Hague for 
 
 the Codification of International Private Law, occur 
 
 the following observations :^^ 
 
 The principles of international private law to-day are 
 enjoined on all states by virtue of a rule consecrated by 
 the law of nations. According to this rule, states owing 
 to each other a mutual respect of their sovereignty, are 
 
 12 Journal de Droit International, 1908, p. 409. 
 
 13 Actes de la Conference de la Haye, etc., 1901, p. 160. 
 
IMMUNITIES OF JURISDICTION 107 
 
 obliged to reciprocally respect the rules of private law by 
 means of which, each of them protects its nationals, its 
 persons, and its interests. Respect for foreign law, then, 
 is not founded on a grant, but truly on a rigorous appli- 
 cation of the principles of international law. 
 
 The following excerpts from various international 
 
 law publicists will serve to support these main points, 
 
 and also emphasize other important aspects of this 
 
 question. 
 
 Fillet : 
 
 From the moment states gave themselves over to inter- 
 national commerce and reciprocally authorized their sub- 
 jects to devote themselves to it, they tacitly consented to 
 the mutual penetration of their sovereignties.^* 
 
 Each sovereign should tolerate on its territory the ap- 
 plication of foreign laws to the extent that said applica- 
 tion serves the common advantage of nations.'^^ 
 
 The first question which international law should solve 
 is that of the juridical status of foreigners.^" 
 
 It is therefore certain that the state has not the same 
 freedom of action towards the foreigner that it possesses 
 towards a national.'^^ 
 
 To deprive a foreigner arbitrarily of the benefit of his 
 personal status, is to refuse to recognize the civil effects 
 of his standing as a foreigner; it is to strike a blow at 
 the right of legislation which the foreign state preserves 
 over its subjects abroad. ^^ 
 
 Rights duly acquired should be respected in inter- 
 im Fillet, Principes de Droit International Prive, p. 73 (ed. 
 
 1903)- 
 
 15 Ibid., p. S3. 
 "! Ibid., p. 168. 
 ^"^ Ibid., p. ig6. 
 18 Ibid., p. 202. 
 
io8 FOREIGNERS IN TURKEY 
 
 national society. This idea of respect among the nations 
 comprised in the international community, implies to- 
 gether with the obligation to do nothing that may weaken 
 or destroy a right duly acquired, the duty to guarantee 
 on their territory every consequence (of these rights) 
 compatible with the exigencies of public order. ^^ 
 
 Despagnet : 
 
 It is therefore not by virtue of a gracious concession 
 (comitas gentium) but indeed in obeying a rule of law, 
 that is to say, of reason and justice, deduced from the 
 nature of international relations, that each country ac- 
 cepts, in certain cases, the application of foreign law on 
 its territory.^" 
 
 Fiore : 
 
 . . . One may henceforth consider as a rule of law 
 common to all the states of Europe, that laws relative to 
 
 "■' Ibid, 534. The following observations of the same trend 
 by Fillet also deserve quotation. La souverainete a franchi les 
 limites territoriales de I'Etat du jour ou une pensonne a ete 
 admise a entretenir d'es relations hors de sa patrie : la reconais- 
 sance de I'effet extraterritorial d'une souverainete etrangere 
 (page 58). La loi Internationale doit s'efforcer de porter au 
 plus haut degre I'autorite des lois nationales dans le domaine 
 des relations Internationales (page 150). Dans les relations 
 Internationales la national! te joue le role du premier element 
 d'ordre sur lequel repose la possibilite d'une comraunaute juri- 
 dique, et cela meme dans les pays qui n'accordent a la loi 
 nationale aucune competence dans la solution des conflits. La 
 nationalite est I'element qui differencie le citoyen de I'etranger, 
 c'est elle qui donne le plus souvent a une question de droit sa 
 forme Internationale (page 176). 
 
 ^Despagnet, op. cit., p. 26. He qualifies this statement later 
 on as follows : Un premier point hors de doute c'est que 
 I'etranger ne pourra jamais invoquer les dispositions de sa loi 
 nationale pour faire regler son etat et capacite, quand ces dis- 
 positions seront contraires aux prinoipes d'ordre public admis 
 dans le pays ou il se trouve (page 471). 
 
IMMUNITIES OF JURISDICTION 109 
 
 status and juridical capacity follow the citizen every- 
 where.^^ 
 
 Laurent : 
 
 Burgundus said that "land attracted man to itself," or, 
 as M. Mignet stated it, "man was in a way possessed by 
 the land : while according to our modern ideas, land is the 
 accessory of the individual." So it was in all things the 
 law of the land which should preponderate under the 
 feudal regime, and today it is the individual and his 
 rights that control.^^ 
 
 The Anglo-American jurists start with the principle' 
 that each nation has an exclusive sovereignty on its own 
 territory. . . . This is the principle of the Middle Ages. 
 . . . Sovereignty is no longer, as it was in the Middle 
 Ages, the power, and if necessary, the caprice of the pro- 
 prietor who might use and abuse his possessions. Its 
 mission is more elevated.^^ 
 
 If sovereignty is territorial, said Savigny, and if sov- 
 ereign power is absolute, the foreigner will be at the 
 mercy of a sovereign who may do all that he wills ; that 
 is to say, he is without law. This is what the common 
 law, so dear to Anglo-Americans, teaches us.^* 
 
 Comitas has nothing in common with law (droit) ; it 
 is on the contrary the negation of law. As concerns 
 
 21 Fiore, Droit Internationale Prive, p. 81 (2d. ed.). Fiore 
 also remarks that: le souverain territorial ne peut avoir aucun 
 interet a soustraire I'etranger a I'empire de sa loi naturelle et a 
 lui imposer des lois faites pour ses propres citoyens. Son droit 
 unique est d'empecher que I'etranger n'exerce ses droits sur le 
 territoire qui lui est soumis en vertu de la loi de son pays 
 lorsque I'exeroice et la recoinnaissance de ces droits est contraire 
 aux principes d'ordre public et de droit public en vigeur sur le 
 territoire. . . . le systeme qui donne la preference a la loi nation- 
 ale est en principe le plus conforme aux principes rationnels 
 (page 83). 
 
 22 Laurent, Droit Civil Intertiational, p. 271 (ed. 1880). 
 
 23 Ibid., p. 553- 
 ^^Ibid., p. 561. 
 
no FOREIGNERS IN TURKEY 
 
 territorial sovereignty, it is dominated by a law which 
 is superior to it, the society of mankind which should be 
 ruled by one and the same law.^'* 
 
 Heffter: 
 
 The state which would deny the authority of a civil 
 law other than that it has established, would at the same 
 time deny the existence of other states and the equality 
 of their rights with its own.^" 
 
 Mancini : 
 
 The treatment of foreigners cannot be dependent on 
 the comitas and the sovereign, arbitrary will of each ; 
 state. Science can only consider this treatment as a 
 strict obligation of international justice from which a 
 nation may not escape without breaking the bond which 
 unites the human species in one great community of law, 
 founded on the community and the sociability of human 
 nature.^' 
 
 Holtzendorfif : 
 
 What a blow to the authority of civil law, if the fact 
 of having crossed the boundary of a territory should 
 cause the rights of a citizen to depend on the arbitrary 
 will of a foreign functionary! In order to assure these 
 rights, especially in the time of easy communication in 
 which we live, solid guarantees are needed which should 
 safeguard them beyond even the area of the control of 
 territorial laws. It is here that private laiv finds its point 
 of contact with the law of nations.''^ 
 
 The consensus of opinions above quoted would seem 
 to lead to the following general conclusions : 
 
 I. The rights of foreigners may not be subject to 
 the unrestrained judgment and action of any one 
 
 25 Ibid. 
 
 28 Heffter, quoted by Despagnet, page 22. 
 
 2' Mancini, quoted by Laurent, p. 637. 
 
 28 Holtzendorff, quoted by Despagnet, p. 23. 
 
IMMUNITIES OF JURISDICTION m 
 
 nation. Sovereignty does not confer on the territorial 
 legislature full power over foreigners.^® Their rights 
 may be determined only by the deliberate, united 
 agreement of all nations, in accordance with the most 
 liberal conceptions of the law of nations. Interna- 
 tional, not national jurisprudence must have sway. 
 
 II. Foreigners carry with them wherever they go 
 such rights as accompany their nationality, in so far 
 as the recognition of such rights is not repugnant to 
 the law and order of the state within whose jurisdic- 
 tion they may temporarily reside. 
 
 III. These rights are in general terms such as re- 
 late to civil status and capacity, and include such 
 matters as marriage, separation or divorce, legitima- 
 tion, guardianship of minors, idiots et al., inheritance, 
 settlement of estates, bankruptcy, etc., etc. (In penal 
 matters, a.* has already been noted,^®" nations reserve 
 the right to protect their nationals against unduly harsh 
 punishments such as imprisonment for debt, or against 
 any evident failure of foreign courts to accord full 
 justice.) 
 
 IV. It is most desirable that these rights should 
 be definitely determined by international agreements. 
 Where this is difficult, or impossible by reason of a 
 serious divergence in systems of law and procedure, 
 as for example in the case of Italy and the United 
 States, or Russia and Japan, the general principles 
 
 29 For a forceful presentation of this point of view, see, Con- 
 sultation pour les Societes d'assurance sur la Vie, by Edouard 
 Clunet (Paris, 1912). 
 
 29' See page 102 supra. 
 
112 FOREIGNERS IN TURKEY 
 
 governing the rights of foreigners should formally be 
 recognized and respected to the fullest possible extent. 
 They should not be made to depend on international 
 comity but on international law. 
 
 Applying now these general observations to the 
 particular problem at hand, namely, the finding of a 
 working hypothesis on which to base future adjust- 
 ments of the Powers with the Porte in regard to the 
 protection of foreigners, with due respect to the sov- 
 ereign rights of Turkey as an independent, equal state 
 in the family of nations, we are led to the following 
 conclusions : 
 
 I. According to the basic principles of international 
 law, Turkey should have exclusive jurisdiction over 
 foreigners, as well as natives, in all matters affecting 
 public law and order in the Empire. This is essentially 
 a fundamental right of independent sovereignty. 
 
 Turkish criminal and civil law should therefore be 
 made to accord fully both in form and substance with 
 the law generally accepted in all civilized lands. The 
 introduction of judicial reforms and adequate guar- 
 antees for the proper dispensation of justice should 
 prove merely a question of time. Once accomplished, 
 there do not appear to be any insuperable obstacles in 
 the way of securing the consent of the Powers to the 
 complete renunciation of criminal jurisdiction on the 
 part of the consular courts. Public law and order 
 cannot tolerate conflicting criminal jurisdictions within 
 the same territory. 
 
 Furthermore, a necessary corollary to the recogni- 
 
IMMUNITIES OF JURISDICTION 113 
 
 tion of the independent jurisdiction and integrity of 
 the Turkish courts would be the renunciation by the 
 Powers of the offensive supervision and control over 
 Ottoman tribunals in cases involving foreigners which 
 has hitherto been exercised by the consular dragoman. 
 
 II. The profound difference between the basic prin- 
 ciples of Moslem jurisprudence and other systems of 
 law is of so irreconcilable a character as to render it 
 impossible for Turkey to enter into any international 
 agreement defining the rights of foreigners in respect 
 to personal status and civil capacity.^" No reciprocal 
 arrangement in this regard would seem within the 
 realm of possibility. 
 
 Nor for the same reason would it be feasible to 
 attempt to prescribe the general principles which should 
 guide the courts in the application of foreign laws 
 which in spirit and in letter are so much out of har- 
 mony with Moslem legal precepts. The Turks them- 
 selves have recognized this difficulty by leaving to the 
 different religious communities (Mil'let) exclusive 
 jurisdiction in matters affecting the personal status of 
 the members of these communities. 
 
 III. The institution of a special mixed court com- 
 posed of native and foreign judges similar to the 
 courts in Egypt with full and final powers, as sug- 
 gested by Mandelstam,^^ is open to serious objection. 
 It would be entirely offensive to the national pride of 
 the Turks as a most humiliating form of international 
 intermeddling which would ultimately threaten to ex- 
 
 30Bonfils, sections I747-I7S3- 
 31 Mandelstarn, pp. 268-270. 
 
1 14 FOREIGNERS IN TURKEY 
 
 tend to all matters involving both foreigners and 
 natives. An international tribunal functioning inde- 
 pendently within a sovereign independent state would 
 constitute a constant menace to its independence and 
 sovereignty. 
 
 IV. The way out of the dilemma would seem 
 clearly to lie in a frank recognition of the desirability 
 of leaving to the exclusive jurisdiction of the consular 
 courts all questions regarding foreigners which do 
 not in any way affect the public law and order of the 
 Empire. 
 
 The Ottoman courts would be relieved of the 
 embarrassment of attempting to ascertain and apply 
 foreign laws not in harmony with Moslem legal 
 precepts. ^^ 
 
 The perpetuation and unobtrusive functioning of 
 the consular courts within well defined limits would 
 thus prove a blessing to the Turkish courts, and facili- 
 tate most effectively the ends of justice. This would 
 require, of course, that full faith and legal effect 
 should be given to the decisions of the consular courts. 
 
 As matters stand now, where no international agree- 
 ments exist in respect to the juridical rights of for- 
 eigners, it seems unreasonable and repugnant to 
 justice to leave to a judge, say of France, the duty of 
 determining the exact nature and effect of a law affect- 
 ing a Japanese, when the public law and order of 
 Prance is in no way involved. 
 
 52 Sir Travers Twiss in his Law of Nations (vol. I, p. 469), 
 expresses the opinion that the suppression of the regime of the 
 Capitulations would be a positive wrong to the Turks. 
 
IMMUNITIES OF JURISDICTION 115 
 
 In actual practice, a judge in such an instance may: 
 (i) call in so-called experts to advise the court con- 
 cerning the law to be applied; (2) he may make re- 
 quest by means of letters rogatory direct to the 
 competent foreign judicial authorities; (3) he may 
 even apply to the consular representative of the for- 
 eigner concerned in the suit.^^ 
 
 In principle, there does not seem to exist any sound 
 reason M^hy a court should not only appeal to a consul 
 for such information, but should even request that 
 official to decide the actual question at issue, provided, 
 of course, that he were empowered by treaty to per- 
 form judicial functions of this character. In the case 
 of Goddard ifersus Luhy, quoted by Stowell in Con- 
 sular Cases and Opinions, where suit was brought for 
 "slanderous words," the United States Court held 
 that under the treaty then in force with France, juris- 
 diction belonged to the French consul of that district.^* 
 
 A consul, as a matter of fact, actually does perform 
 many acts of a more or less juridical character in the 
 drawing up of papers, the settlement of estates of de- 
 ceased fellow-countrymen, etc. He has extended 
 powers of jurisdiction on board merchant ves- 
 sels flying the flag of his country. These powers 
 are conceded to him under the fiction of exterri- 
 toriality, a merchant vessel being considered as a 
 floating portion of the country of the flag it flies. 
 
 33 Fiore, op. cit., pp. 285-291. 
 
 3* For an excellent resume of the pdwers of Consuls, see 
 Stolwell's Consular Cases and Opinions, under head of Compen- 
 dium, pp. 739-748. See also Moore's Digest, vol. II, sec. 205- 
 208; V, sec. 696-733. 
 
Ii6 FOREIGNERS IN TURKEY 
 
 It has been remarked that "one invents fictions 
 when one does not know how to justify rules which 
 are perceived to be necessary."^' It would seem just 
 as logical by analogy that if merchant vessels are not 
 to be considered as having come fully within local 
 jurisdiction for all purposes, foreigners sojourning on 
 shore likewise should not be considered as fully subject 
 to local jurisdiction in all that may in no way concern 
 public law and order. 
 
 It would seem more in consonance with modern 
 conceptions of the respect due to the rights of for- 
 eigners in the intercourse of nations, as well as more 
 in accord with the ends of justice, to give to consular 
 representatives judicial powers wherever foreign laws 
 are to be interpreted and applied without injury to the 
 interests and rights of the territorial sovereign. 
 
 An arrangement of this nature might not appear 
 necessary or desirable where countries have similar 
 laws and judicial procedure, and particularly where 
 they have agreements such as have already been signed 
 by certain of the European nations in respect to the 
 rights of aliens. 
 
 In the case of countries having essentially different 
 laws and procedure, such as China and Germany, Eng- 
 land and Italy, or the United States and Turkey, 
 the arrangement suggested would seem eminently 
 desirable. 
 
 An agreement of this character which would nec- 
 essarily be reciprocal in effect, would offend the na 
 tional pride of no one. In harmony with the most 
 
 35 PiUet, Principes, etc., p. 258. 
 
IMMUNITIES OF JURISDICTION 117 
 
 enlightened concepts of international law and inter- 
 course, this solution would afford, in the case of Tur- 
 key, a reasonable working hypothesis to justify the 
 perpetuation, in a much modified form, of an extra- 
 ordinary regime which has been in many respects 
 ineffective and intolerable. 
 
 The germ of such an adjustment already exists 
 among the Chinese in the United States. Owing to 
 the incongruities of Chinese and American law, they 
 are unwilling to have recourse to the American courts. 
 They therefore maintain a kind of unofficial, judicial 
 system of their own whereby their disputes are judged 
 and settled by their own representatives according to 
 Chinese laws and customs. 
 
 It would not seem unreasonable or Quixotic to 
 express the belief that such an institution should be 
 replaced by consular tribunals properly empowered by 
 treaty to exercise judicial functions wherever the 
 public law and order of the territorial sovereign is 
 in no way affected. The decisions of such courts, 
 moreover, should be given the same respect and have 
 the same legal effect as in the case of the decisions of 
 foreign courts which may be entitled to recognition 
 and execution by the courts of the territorial sovereign.' 
 
 The suggestion here presented may seem on first 
 consideration radical and offensive, even, to those who 
 hold jealously to the exclusive rights of jurisdiction 
 by the territorial sovereign. Under the theory, how- 
 ever, that "what the King permits, he commands," 
 they might be willing to concede that the local sov- 
 ereign could properly consent to judicial jurisdiction 
 by consular courts within properly defined limits. 
 
Ii8 FOREIGNERS IN TURKEY 
 
 From the point of view of international law, there 
 does not seem to exist any sound objection to this 
 proposed consecration of judicial jurisdiction by con- 
 sular courts. On the contrary, such an enlightened 
 arrangement between countries having distinct sys- 
 tems of law and procedure would seem better cal- 
 culated to facilitate international intercourse, and more 
 adequately protect the sacred rights of foreigners than 
 the present unsatisfactoiy arrangement. All that is 
 required to effect this reform would be the extension by 
 treaty agreements of powers already possessed in em- 
 bryo by consular officials throughout the world. 
 
 In the case of Turkey, it would mean simply the 
 perpetuation of the existing consular court with 
 considerably restricted powers of jurisdiction; and a 
 clear delimitation of the respective spheres of these trib- 
 unals and Ottoman courts. Turkey could then feel 
 that the presence of these foreign tribunals was no 
 longer in derogation of its sovereign rights. 
 
 Recalling with pride that the privileges voluntarily 
 and generously granted to foreigners and Christian 
 subjects alike, were granted when the Turks were at 
 the height of their military power, the descendants of 
 the race of Osman might well claim with equal pride 
 that the continuation of these greatly modified im- 
 munities of jurisdiction might properly be regarded, 
 as suggested in the introduction, "as evidence of a 
 more enlightened and more liberal interpretation of 
 the law of nations than has yet been granted in Eu- 
 rope, the place of its origin, though not of its exclusive 
 development or application." 
 
APPENDIX 
 
 REGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE 
 UNITED STATES IN THE OTTOMAN DOMINIONS. 
 
 I. — Ordinary Civil Proceedings 
 
 1. Civil proceedings between American citizens must 
 commence by written petition verified by oath before the 
 consul. 
 
 2. Ordinary personal civil actions are of three classes, 
 viz: 
 
 Contract — comprising all cases of contract or debt. 
 Wrong — when damages are claimed for a wrong. 
 Replevin — when possession of a specific article is 
 claimed. 
 
 3. In contract, the petition must aver that payment or 
 a performance of the conditions of the contract has been 
 demanded and withheld; and in replevin, that the arti- 
 cles to be replevied have been demanded. 
 
 4. The petitioner shall be required to deposit a reason- 
 able sum to defray the probable expenses of court and 
 defendant's costs. Subsequent deposits may be required, 
 if found necessary. 
 
 5. Upon deposit of the money, the consul shall order 
 notice on the petition in writing, directing defendant to 
 appear before him at a given day and hour to file his 
 written answer on oath. 
 
 6. Notice must be served on each defendant at least 
 five days before return day, by delivery of an attested 
 copy of the petition and order and of any accompanying 
 account or paper. 
 
 7. Personal service should always be required when 
 practicable. 
 
 8. On proof of due notice, judgment by default shall 
 be pronounced against any defendant failing to appear 
 
 119 
 
I20 FOREIGNERS IN TURKEY 
 
 and file his answer as required; but the default may be 
 taken off for good cause, within one day after (exclu- 
 sive of Sunday). 
 
 9. But in actions of wrong and all others where the 
 damages are in their nature unliquidated and indefinite, 
 so that they cannot be calculated with precision from 
 the statements of the petition, the amount of the judg- 
 ment shall be ascertained by evidence, notwithstanding 
 the default. 
 
 ID. If defendant appears and answers, the consul, hav- 
 ing both parties before him, shall, before proceeding 
 farther, encourage a settlement by mutual agreement or 
 by submission of the case to referees agreed on by the 
 parties, a majority of whom shall decide it. 
 
 11. Parties should at the trial be confined as closely 
 as may be to the averments and denials of the state- 
 ment and answer, which shall not be altered after fiHng 
 except by leave granted in open court. 
 
 12. On application of either party and advance of the 
 fees, the consul shall compel the attendance of any wit- 
 ness within his jurisdiction, before himself, referees, or 
 commissioners. 
 
 13. Each party is entitled, and may be required, to 
 testify. 
 
 14. Judgment may be given summarily against either 
 party failing to obey any order or decree of the consul. 
 
 ATTACHMENT AND ARREST 
 
 15. For sufficient cause and on sufficient security, the 
 consul, on filing a petition, may grant a process of at- 
 tachment on any defendant's property to a sufficient 
 amount, or of arrest of the person of any defendant not 
 a married woman, nor in the service of the United States 
 under commission from the President, nor otherwise 
 exempted by law. 
 
 16. Any defendant may at any time have the attach- 
 ment dissolved by depositing such sum or giving such 
 security as the consul may require. 
 
 17. Perishable property, or such as is liable to serious 
 depreciation under attachment, may, on petition of either 
 
APPENDIX :2I 
 
 party, be sold by the consul's order and its proceeds de- 
 posited in the consulate. 
 
 i8. Any defendant arrested or imprisoned on civil 
 petition shall be released on tender of a sufficient bond, 
 deposit of a sufficient sum, or assignment of sufficient 
 property. 
 
 19. Any person under civil arrest or imprisonment 
 may have his creditor cited before the consul to hear a 
 disclosure of the prisoner's affairs under oath, and to 
 question him thereon, and if the consul shall be satisfied 
 of its truth and thoroughness, and of the honesty of the 
 debtor's conduct toward the creditor, he shall forever 
 discharge him from arrest upon that debt, provided the 
 prisoner shall offer to transfer and secure to his creditor 
 the property disclosed or sufficient to pay the debt, at the 
 consul's valuation. 
 
 20. The creditor must advance to the jailer his fees 
 and payment for his prisoner's board until the ensuing 
 Monday, and afterwards weekly, or the debtor will be 
 discharged from imprisonment and future arrest. 
 
 EXECUTION 
 
 21. Oh the second day after judgment (exclusive of 
 Sunday) execution may issue enforcing the same, with 
 interest at 12 per cent, a year, against the property and 
 person of the debtor, returnable in 30 days and 
 renewable. 
 
 22. Sufficient property to satisfy the execution and all 
 expenses may be seized and sold at public auction by the 
 officer after due notice. 
 
 23. Property attached on petition and not advertised 
 for sale within ten days after final judgment shall be 
 returned to the defendant. 
 
 24. When final judgment is given in favor of defend- 
 ant, his person and liberty are at once freed from im- 
 prisonment or attachment, and all security by him given 
 discharged. And the consul may, at his discretion, award 
 him compensation for any damage necessarily and direct- 
 ly sustained by reason of such attachment, arrest, or 
 imprisonment. 
 
122 FOREIGNERS IN TURKEY 
 
 EXEMPTION AND DISCHARGE 
 
 25. The consul may exempt from attachment, seizure, 
 or assignment any articles of personal property indis- 
 pensable to the comfort of the owner or his family, and 
 he may at any time release or bail any debtor, discharge 
 any security or dissolve the whole, or a part, of any 
 attachment, when justice requires. 
 
 OFFSET 
 
 26. In actions of contract, defendant may offset peti- 
 tioner's claim by any contract claim, filing his own claim 
 under oath with his answer. Petitioner shall be notified 
 to file his answer seasonably on oath, and the two claims 
 shall then be tried together and but one judgment given 
 for the difference, if any provided, in favor of either 
 party; otherwise for defendants' costs. 
 
 COST 
 
 27. Except as hereinafter provided, the party finally 
 prevailing recovers costs, to be taxed by him and revised 
 by the consul. 
 
 TRUSTEE PROCESS 
 
 28. In contract, the consul may order defendant's 
 property or credits in a third party's hands within the 
 jurisdiction of the United States to be attached on the 
 petition, by serving him with due notice as trustee, pro- 
 vided petitioner secures trustee his costs by adequate 
 special deposit. 
 
 29. If adjudged trustee, the third party may retain his 
 costs from the amount for which he is adjudged trustee, 
 if sufficient; otherwise, the balance of trustee's costs must 
 be paid out of petitioner's special deposit, as must the 
 whole of his costs if not adjudged trustee. 
 
 30. The amount for which a trustee is charged must 
 be inserted in the execution and demanded of him 
 by the officer within ten days after judgment, or all claim 
 on him ceases. Process against the property or person of 
 trustee may issue ten days after demand. 
 
APPENDIX 123 
 
 31. If petitioner recovers judgment for less than $10, 
 or if less than $10 of defendant's property or credits is 
 proved in the third party's hands — in either case the 
 third party must be discharged, with costs against 
 petitioner. 
 
 REPLEVIN 
 
 3a. Before granting a writ of replevin, the consul shall 
 require petitioner to file a sufficient bond, with two re- 
 sponsible sureties, for double the value of the property 
 to be replevied, one an American citizen, or petitioner 
 may deposit the required amount. 
 
 II. — Tender, etc. 
 
 ,33. Before a creditor files his petition in contract, his 
 debtor may make an absolute and uncondi'tional offer of 
 the amount he considers due by tendering the money in 
 the sight of the creditor or his legal representative. 
 
 34. If not accepted, the debtor shall, at his own risk 
 and paying the charges, deposit the money with the 
 consul, who shall receipt to him and notify the creditor. 
 
 35. It shall be paid to the creditor at any time if de- 
 manded, unless previously withdrawn by the depositor. 
 
 36. If the depositor does not withdraw his deposit, and 
 upon trial is not adjudged to have owed petitioner at the 
 time of the tender more than its amount, he shall recover 
 all his costs. 
 
 OFFER TO BE DEFAULTED 
 
 37. At any stage of a suit in contract or wrong, de- 
 fendant may file an offer to be defaulted for a specific 
 sum and the costs up to that time, and if the petitioner 
 chooses to proceed to trial, and does not recover more 
 than the sum offered and interest, he shall pay all defen- 
 dant's costs arising after the oflfer, execution issuing 
 for the balance only. 
 
 III. — Reference 
 
 38. When parties agree to a reference, they shall im- 
 mediately file a rule and the case be marked "Referred" ; 
 
124 FOREIGNERS IN TURKEY 
 
 a commission shall then issue to the referees, with a copy 
 of all papers filed in the case. 
 
 39. The referees shall report their award to the consul, 
 who shall accept the same and give judgment and i'ssue 
 execution thereon, unless satisfied of fraud, perjury, 
 corruption, or gross error in the proceedings. 
 
 40. In cases involving more than $500, if his accep- 
 tance is withheld, the consul shall at once transmit the 
 whole case, with a brief statement of his reasons and the 
 evidence therefor, to the minister resident, who shall give 
 judgment on the award or grant a new trial before the 
 consul. 
 
 IV. — Appeal 
 
 41. Appeals must be claimed before three o'clock in 
 the afternoon of the day after judgment (excluding Sun- 
 day), but in civil cases only upon sufficient security. 
 
 42. Within five days after judgment, the appellant 
 must set forth his reasons by petition filed with the con- 
 sul, which shall be transmitted as soon as may be through 
 the consul-general to the minister, with a copy of the 
 docket entries and of all papers in the case. 
 
 43. The consul-general may allow any prisoner (by law 
 entitled to appeal) sent to Constantinople for imprison- 
 ment on sentence of a consul, to file his appeal within 
 ten days after notice of his arrival, if in his judgment 
 justice would be promoted thereby, requiring such pris- 
 oner to file with the appeal his petition, which shall be at 
 once transmitted to the minister. 
 
 V. — New trial 
 
 44. On proof of the perjury of any important witness 
 of the prevailing party upon a material point affecting 
 the decision of a suit, the consul who tried it may within 
 a year after final judgment grant a new trial, on such 
 terms as he may deem just. 
 
 45. Within one year after final judgment in any suit in- 
 volving not more than $500, the consul who tried it, or his 
 successor, may upon sufficient security grant a new trial. 
 
APPENDIX 125 
 
 when justice manifestly requires it; if exceding $500, 
 with concurrence of the minister. 
 
 VI. — Habeas corpus 
 
 46. No consul shall recognize the claim of any Amer- 
 ican citizen to hold any person in slavery or bondage 
 within the Turkish Empire. 
 
 47. Upon application of any person in writing and 
 under oath, representing that he or any other person is 
 enslaved, unlawfully imprisoned, or deprived of his 
 liberty by any American citizen within the jurisdiction of 
 a consul, such consul or the consul-general may issue his 
 writ of habeas corpus directing such citizen to bring said 
 person, if in his custody or under hi's control, before him, 
 and the question shall be determined summarily, subject 
 to appeal. 
 
 VII. — Divorce 
 
 48. Libels for divorce must be signed and sworn to 
 before the consul, and on the trial each party may testify. 
 
 49. The consul, for good cause, may order the attach- 
 ment of libellee's property to such an amount and on 
 such terms as he may think proper. 
 
 50. He may also, at his discretion, order the husband to 
 advance to his wife or pay into court a reasonable sum to 
 enable her to prosecute or defend the libel, with a rea- 
 sonable monthly allowance for her support pending the 
 proceedings. 
 
 51. Alimony may be awarded or denied the wife on her 
 divorce at his discretion. Custody of the minor children 
 may be decreed to such party as justice and the children's 
 good may require. 
 
 52. Divorce releases both parties, and they shall not be 
 remarried to each other. 
 
 53. Costs are at the discretion of the consul. 
 
 VIII. — Marriage 
 
 54. Each consul shall record all marriages solemnized 
 by him, or in his official presence, and at the end of each 
 year transmit a copy to the Secretary of State and to 
 the consul-general. 
 
126 FOREIGNERS IN TURKEY 
 
 IX. — Births and deaths 
 
 55. The birth and death of every American citizen or 
 protege within the limits of his jurisdiction shall likewise 
 be recorded and annually transmitted. 
 
 X. — List of citizens and proteges 
 
 56. Each consul shall prepare and keep a correct list of 
 all adult male citizens of the United States living within 
 his jurisdiction, with their age, birthplace, occupation, 
 residence, and year of arrival in Turkey, and the names, 
 &c., of the members of their families ; adding the date and 
 court in case of naturalized citizens. 
 
 57. Also a similar list of all proteges of the United 
 States, adding the year of their original protection, by 
 whom it was granted, and where; also the date of their 
 last permit of residence and by whom issued. 
 
 58. A copy of said lists shall be transmitted to the Sec- 
 retary of State, to the minister resident and to the consul- 
 general, when completed, and a memorandum of the 
 changes at the end of each year. And every citizen and 
 protege is required to register himself and family at the 
 consulate each December. 
 
 XL — Bankruptcy, partnership, probate, &c. 
 
 59. Until promulgation of further regulajtions, consuls 
 will continue to exercise their former lawful jurisdiction 
 and authority in bankruptcy, partnership, probate of 
 wills, administration of estates, and other matters of 
 equity, admiralty, ecclesiastical and common law not 
 specially provided for in the foregoing orders, according 
 to such reasonable rules, not repugnant to the Constitu- 
 tion, treaties, and laws of the United States, as they may 
 find necessary or convenient to adopt. 
 
 XII. — Seamen 
 
 60. In proceedings or prosecutions instituted by or 
 against American seamen, the consul may, at his discre- 
 tion, suspend any of these rules in favor of the seaman, 
 when, in his opinion, justice, humanity, and public prop- 
 erty may require it. 
 
APPENDIX 127 
 
 XIII. — Criminal proceedings 
 
 61. Complaints and information against American citi- 
 zens should always be signed and sworn to before the 
 consul, when the complainant or informant is at or near 
 the consul's post. 
 
 62. All complaints and informations not so signed and 
 sworn to by a citizen of the United States, and all com- 
 plaints and informations in capital cases, must be authen- 
 ticated by the consul's certificate of his knowledge or 
 belief of the substantial truth of enough of the complaint 
 or inTormation to justify the arrest of the party charged. 
 
 63. No citizen shall be arraigned for trial until the of- 
 fense charged is distinctly made known to him by the 
 consul in respondent's own language; in cases of magni- 
 tude, and in all cases when demanded, an attested copy 
 (or translation) of the complaint, information, or state- 
 ment authenticated by the consul shall be furnished him 
 in his own language as soon as may be after his arrest. 
 
 64. The personal presence of the accused is indispen- 
 sable throughout the trial. 
 
 65. He shall always have and be informed of his right 
 to testify, and cautioned that if he chooses to offer him- 
 self as a witness, he must answer all questions that may 
 be propounded by the consul or his order, like any other 
 witness. 
 
 66. The government and the accused are equally en- 
 titled to compulsory process for witnesses within the 
 jurisdiction of the United States; and if the consul be- 
 lieves the accused unable to advance the fees, his neces- 
 sary witnesses shall be summoned at the expense of the 
 United States. 
 
 67. When punishment is by fine, costs may be included 
 or remitted at the consul's discretion; an alternative sen- 
 tence of not less than 30 days' imprisonment may 
 take effect on non-payment of any part of the fine or 
 costs adjudged in any criminal proceeding. 
 
 68. Any prisoner before conviction may be admitted 
 to bail by the consul who tries him, except in capital cases. 
 
 69. No prisoner charged with a capital offense shall be 
 
128 FOREIGNERS IN TURKEY 
 
 admitted to bail where the proof is evident or the pre- 
 sumption of his guilt great. 
 
 70. After conviction and appeal, the prisoner may be 
 admitted to bail only by the minister or consul-general. 
 
 71. Any citizen of the United States offering himself as 
 bail shall sign and swear before the consul to a schedule 
 of unemcumbered property of a value at least double the 
 amount of the required bail. 
 
 72. Any other proposed bail or security shall sign and 
 swear before the consul to a similar schedule of unem- 
 cumbered personal property within the local jurisdiction 
 of the consulate, or he may be required to deposit the 
 amount in money or valuables with the consul. 
 
 "J 2). Unless such sufficient citizen becomes bail, or such 
 deposit is made, at least two sureties shall be required. 
 
 74. Any American bail may have leave of the consul to 
 surrender his principal on payment of all costs and 
 expenses. 
 
 75. Any complainant, informant, or prosecutor may be 
 required to give security for all costs of the prosecution, 
 including those of the accused; and every complainant, 
 &c., not a citizen of the United States shall be so requi'red, 
 unless in the consul's opinion, justice will be better pro- 
 moted otherwise; and when such security is refused the 
 prosecution shall abate. 
 
 HONORABLE ACQUITTAL 
 
 76. When the innocence of the accused both in law and 
 in intention is manifest, the consul shall add to the usual 
 judgment of acquittal, the word, "Honorably." 
 
 TJ. In such case judgment may be given and execution 
 issued summarily against any informer, complainant, or 
 prosecutor for the whole costs of the trial, including those 
 of the accused, or for any part of either or both, if the 
 proceeding appears to have been groundless and vexa- 
 tious, originating in corrupt, malicious, or vindictive 
 motives. 
 
 78. Consuls will ordinarily encourage the settlement of 
 all prosecutions not of heinous character by the parties 
 aggrieved or concerned. 
 
APPENDIX 129 
 
 XIV.— Oaths 
 
 79. Oaths shall be administered in some language that 
 the witness understands. 
 
 80. A witness not a Christian shall be sworn or ex- 
 amined according to his religious belief. 
 
 81. An avowed atheist shall not be sworn, but may 
 affirm' under the pains and penalties of perjury, the 
 credibility of his evidence being for the consideration 
 of the consul. 
 
 82. A Christian conscientiously scrupulous of an 
 oath may affirm under the pains and penalties of perjury. 
 
 XV. — Dockets, records, &c. 
 
 83. Each consul shall keep a regular docket or calendar 
 of all civil actions and proceedings, entering eadi case 
 separately, numbering consecutively to the end of his 
 term of office, with the date of filing, the names of the 
 parties in full, their nationality, the nature of the pro- 
 ceeding, the sum or thing claimed, with mihutes and 
 dates of all orders, decrees, continuances, appeals, and 
 proceedings until final judgment. 
 
 84. He shall keep another regular docket for all crim- 
 inal cases with sufficient similar memoranda. 
 
 85. Upon final judgment each case shall be recorded 
 in a book of records, at sufficient length to identify it 
 and prevent a second proceeding for the same cause. 
 
 86. Civil proceedings are to be kept distinct from 
 criminal and recorded in separate books, and returns of 
 each made to the consul-general at the end of each year. 
 
 87. Each docket and book of records shall contain an 
 index. 
 
 88. All original papers shall be filed at once and never 
 removed ; no person but an officer of the consulate or the 
 minister should be allowed access to them; all papers 
 in a case must be kept together in one inclosure and 
 numbered as in the docket with the parties' names, the 
 nature of the proceeding, the year of filing the petition 
 and of final judgment conspicuously marked on the in- 
 closure and each year's cases kept by themselves in their 
 order. 
 
I30 
 
 FOREIGNERS IN TURKEY 
 
 XVI. — Limitation of actions and prosecutions 
 
 89. Heinous offenses, not capital, must be prosecuted 
 within six years ; minor offenses within one. 
 
 90. Civil actions based on written promise, contract, 
 or instrument must be commenced within six years after 
 the cause of action accrues ; others within two. 
 
 91. In prosecutions for heinous offenses, not capital, 
 and in civil cases involving more than $500, any absence 
 of respondent or defendant for more than three months 
 at a time from Turkey shall be added to the limitation; 
 and in civil cases involving more than $100 the period 
 during which the cause of action may be fraudulently 
 concealed by defendant shall likewise be added. 
 
 92. No action in contract, replevin, or wrong shall be 
 commenced for less than $S, no trustee process for less 
 than $10, no property attached for less than $25, nor 
 the person arrested for less than $50; and if petitioner 
 recovers less than the i-espective amount in either case, 
 he shall pay all costs unless for special reasons to the 
 contrary. 
 
 XVII. — General provisions 
 
 93. All trials and proceedings in the United States 
 consular courts in Turkey shall be open and public and 
 conducted in the English language. 
 
 94. Papers and testimony in a foreign language shall 
 be translated into English by a sworn interpreter ap- 
 pointed by the consul; in civil cases to be paid by peti- 
 tioner. Oaths and questions shall be translated by the 
 interpreter from the English for any witness who does 
 not understand English. 
 
 95. Parties may be required to file their petitions, an- 
 swers, complaints, informations, and all other papers 
 addressed to the court, in English, or they may be trans- 
 lated by the interpreter, at the consul's discretion. All 
 testimony must be taken in writing in open court by the 
 consul or his order signed by the witness after being 
 read over to him for his approval and correction, and it 
 shall form part of the papers in the case. 
 
 96. The consul may adjourn his court from time to 
 
APPENDIX 
 
 131 
 
 time and place to place within his jurisdiction, always 
 commencing proceedings and giving judgment at the 
 consulate. 
 
 97. The first Monday of each month shall be a regular 
 court day to which civil actions will stand adjourned 
 unless otherwise provided for. 
 
 98. No court shall sit on February 22, July 4, Decem- 
 ber 25, or on any Sunday. 
 
 99. All processes not served by the consul personally 
 must be executed by an officer of the consulate, who 
 shall sign and swear to his return before the consul, 
 specifying the time and mode of service and annexing 
 an account of his fees ; process from the consul-general 
 shall be served by the marshal of his deputy. 
 
 100. On appeal, copies of all the papers must be paid 
 for in advance by the appellant, except in criminal cases 
 where respondent is unable to pay. 
 
 loi. Any person interested is entitled to a copy ot 
 any paper on file on prepayment of the fee. 
 
 102. Reasonable clearness, precision, and certainty 
 should be required in the papers, and substantial justice 
 and all practicable dispatch is expected in the decisions ; 
 but technical accuracy is not essential. 
 
 103. The word "consul" is intended to include the 
 consul-general and any vice-consul or deputy consul 
 actually exercising the consular power at any consulate, 
 unless the sense requires a more limited construction. 
 
 104. Each associate in a consular trial shall, before 
 entering on his duties, be sworn by the consul. Before 
 taking the oath, he may be challenged by either party 
 and for sufficient cause excused and another drawn. 
 
 105. Consuls will always preserve order in court, pun- 
 ishishing summarily any contempt committed in their 
 presence or any refusal to obey their lawful summons, 
 or order, by imprisonment not exceeding 24 hours, or by 
 fine not exceeding $50, and costs. 
 
 106. Every party to a civil or criminal proceeding may 
 be heard in person or by attorney of his choice, or by 
 both, but the presence of counsel shall be under exclusive 
 control and discretion of the consul. 
 
132 FOREIGNERS IN TURKEY 
 
 107. The accounts of the consular courts shall be kept 
 in United States currency, and every order or deposit, 
 decree of costs, taxation of fees, and generally every 
 such paper issuing originally from the court, shall be 
 expressed in dollars and cents and satisfied in United 
 States metallic money or its equivalent coin as fixed by 
 law. 
 
 XVIII. — Proceedings with foreigners 
 
 108. All petitions, informations, complaints, and othei 
 papers from subjects of the Sublime Porte, or subjects 
 or citizens of any other friendly power, should be com- 
 municated through the Turkish authorities or the con- 
 sulate of such other power. 
 
 109. All notices, answers, &c., should be communicated 
 to such subject or citizens through said authorities or 
 such consulate, respectively. 
 
 XIX. — Mixed commissions 
 
 1 10. When any foreign petitioner is entitled to a mixed 
 commission the suit shall be tried at the United States 
 consulate or such place as the United States consul may 
 direct, and proceedings shall be conducted as nearly as 
 may be as in suits between citizens of the United States. 
 
 111. Every commissioner nominated by a foreign au- 
 thority must have his appointment acknowledged and 
 approved by the United States consul before taking his 
 seat on the commission ; and all objections to the approval 
 of the nomination or appointment of either commissioner 
 shall be heard and determined by the consul summarily 
 and without appeal. 
 
 112. The commissioner appointed by the United States 
 consul should be a citizen of the United States, when 
 practicable ; he will always preside, and his presence is 
 indispensable throughout the proceedings. 
 
 XX. — Design of the rules 
 The promulgation of these rules abrogates no authority 
 hitherton lawfully exercised by consuls not inconsistent 
 herewith. 
 
 XXI. — Changes 
 Whenever, in the opinion of the consul, a change be- 
 
APPENDIX 
 
 133 
 
 comes necessary in the rules, the proposed change, with 
 the reasons, shall be communicated in writing to the 
 minister, and, the change approved by him, be submitted 
 to the other consuls and published over his signature 
 before going into effect. 
 
 Amendments to the foregoing Rules decreed by the 
 Minister Resident to Constantinople, June 14, 1880 
 
 TO THE CONSULS GENERAL AND CONSULS OF THE UNITED 
 STATES OF AMERICA IN THE OTTOMAN EMPIRE 
 
 It appearing to me that neither the common law, nor 
 the laws of equity and admiralty, nor the Statutes of the 
 United States furnish appropriate and sufficient remedies 
 for the cases hereinafter mentioned and provided for, 
 therefore I, Horace Maynard, Minister Resident of the 
 United States at the Sublime Porte, by virtue and in 
 pursuance of Section 4086 of the Revised Statutes of the 
 United States, do hereby decree as follows: 
 
 Section i. Whenever any citizen of the United States 
 shall have died leaving any personal estate within the ter- 
 ritorial jurisdiction of any Consular officer of the United 
 States appointed to reside in the Ottoman Empire, and 
 such death having occurred in any country or place, not 
 within such Consular jurisdiction, then such Consular 
 officer shall be invested with and have the same powers 
 and duties in relation to and over such personal estate as 
 are given by section 1709 of the Revised Statutes to such 
 Consular officer in relation to and over the personal 
 estates of citizens of the United States who shall have 
 died within his Consulate. 
 
 Section 2. The words "Consular Officer of the United 
 States" as used in the next preceding Section are meant 
 to include the Agent and Consul General at Cairo, the 
 Consul General at Constantinople, and the vice consuls 
 general, the consuls and vice consuls appointed to reside 
 in the Ottoman Empire, and no others. 
 
 Section 5. The following consular officers to wit, said 
 Agent and Consul General and said Consuls General and 
 Consuls shall each have the power, whenever in his 
 
134 
 
 FOREIGNERS IN TURKEY 
 
 opinion it is necessary, to appoint an administrator or 
 administrators to take charge of and administer such per- 
 sonal estate of any deceased citizen of the United States 
 as shall be within the territorial jurisdiction of the officer 
 making such appointment giving to such administrator or 
 administrators and investing him or them with all the 
 powers, and imposing upon him all the duties and obliga- 
 tions in relation to such estates as might have been 
 exercised by or would have devolved upon such consular 
 officer. 
 
 Section 4. Such Agent and Consul-General, Consul- 
 General, and Consuls shall each also have the power to 
 appoint a guardian or guardians to take charge of the 
 property and persons and to protect the rights of any 
 infant being a citizen of the United States and having 
 property or being himself within the territorial juris- 
 diction of such consular officer, giving to such guardian 
 or guardians all necessary power and authority to fulfill 
 their duties as such. 
 
 Section 5. In the case of the appointment of any ad- 
 ministrator or guardian under the foregoing Sections 3 
 and 4, it shall be the duty of the officer making such ap- 
 pointment to require of and take from such administrator 
 or guardian such surety for the faithful performance of 
 his duties as such officer shall deem adequate; and such 
 officer shall also have the power to compel such adminis- 
 trator or guardian to render from time to time as he may 
 require an account of his proceedings and to disburse 
 and pay over any and all moneys in his hands as he, the 
 said consular officer shall direct. 
 
 In testimony whereof the said Horace 
 Maynard, Minister Resident as aforesaid 
 (L.S.) hath hereunto set his hand and caused the 
 seal of the Legation to be affixed at the 
 Legation of the United States at Con- 
 stantinople, this, the 14th day of June 
 A.D. 1880. 
 
 Horace Maynard. 
 By the Minister Resident, 
 G. H. Heap, 
 
 Secretary of Legation. 
 
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 H. H. Milman. Edition by A. L. Burt Company, 
 
 New York. 
 Hautefeuille, Laurent B., Histoire de Droit Maritime 
 
 International. Paris, 1858. 
 Heyd, Wilhelm, Histoire du Commerce du Levant, 
 
 etc. Leipzig, 1885-1886. 
 Miltitz, Alexandre de, Manuel des Consuls. London 
 
 and Berlin, 1837- 1842. 
 Pardessus, J. M., La Collection des lois maritimes 
 
 anterieures au XVIII. siecle. Paris, 1838-1845. 
 
 Imprimerie royale. 
 Warden, D. B., The Origin, Nature and Influence of 
 
 Consular Establishments. Paris, 1813. 
 
 Special Works: 
 
 Amari, Michele, Dai Diplomi Arabi, etc. Firenze, 
 
 1863. 
 Daru, Pierre, Historia della Republica di Venezia. 
 
 Paris, 182 1. 
 Marin, Carlo Antonio, Storia civile e politica del 
 
 commercio de Veneziani. Venezia, 1798- 1808. 
 Muratori, Ludovico A., Rerum Italicarum Scriptores. 
 
 Citta de Castello, 1900. 
 Paris, Louis, Chronique de Nestor. Paris, 1834- 
 
 1835- 
 Primaudaie, F., Elie de la, Les Arabes en Sicilie et 
 
 en Italie. Paris, 1868. 
 Sauli, Lodovico, Della Colonia de Genovesi in Galata. 
 
 Turin, 1831. 
 
 I3S 
 
136 FOREIGNERS IN TURKEY 
 
 Scott, S. P., History of the Moorish Empire in 
 Europe. Philadelphia and London, 1904. 
 
 Wenrich, Johann Geor., Rerum ab Arabis in Italia, 
 etc. Leipzig, 1845. 
 
 Period Subsequent to 1453 
 General Works: 
 
 Charriere, Ernest, Negotiations de la France dans 
 
 le Levant, etc. Paris, 1848-1860. 
 Eliot, Sir Charles (Odysseus), Turkey in Europe. 
 
 London, 1900. 
 Flassan, M. de, Histoire Generale et Raisonnee de la 
 
 Diplomatie Frangaise, etc. Paris, 1809. 
 Hammer, Joseph, Freiherr von, Geschichte des Os- 
 
 manischer Reichs. Pest, Wien, 1827-1835. 
 Pears, Sir Edwin, Turkey and its People. London, 
 
 1912. (2d. ed.) 
 
 Special Works: 
 
 "Ancien Diplomat," Le Regime des Capitulations. 
 
 Paris, 1898. 
 Angell, James B., Turkish Capitulations. Annual 
 
 Report of American Historical Association for 
 
 1900. 
 Belin, Francois Alphonse, Des Capitulations et des 
 
 Traites de la France en Orient. Paris, 1878. 
 Brunswik, Benoit, Etudes Pratiques sur le Question 
 
 d'Orient, Reforms et Capitulations. Paris, 1869. 
 Engelhardt, Edouard, La Turquie et le Tanzimat. 
 
 Paris, 1882-1884. 
 Hall, W. E., Foreign Jurisdiction of the British 
 
 Crown. Oxford, 1894. 
 Hinckley, F. E., American Consular Jurisdiction in 
 
 the Orient. Washington, igo6. 
 Mandelstam, Andre, La Justice Ottoman dans ses 
 
 Rapports avec les Puissances fitrangeres. Paris, 
 
 191 1. (2d. ed.) 
 Moore, John Bassett, International Law Digest (un- 
 der Exterritoriality). Washington, 1906. 
 
BIBLIOGRAPHY 137 
 
 Piggott, Sir Francis T., Exterritoriality. London, 
 
 1892. 
 Rausas, Pelissie du, Le Regime des Capitulations 
 
 dans L'Empire Ottoman. Paris, 1910. (2d. ed.) 
 Tarring, Judge C. J., British Consular Jurisdiction in 
 
 the East. London, 1887. 
 Van Dyck, Edward A., Report on the Capitulations 
 
 of the Ottoman Empire. In two Parts : Senate Ex. 
 
 Doc. 3. Special Session of 46th Congress; and 
 
 Senate Ex. Doc. No. 87, ist Session, 47th Congress. 
 Wharton, Francis, International Law Digest (under 
 
 Exterritoriality). Washington, 1887. (2d. ed.) 
 
 Turkish Laws and Usages: 
 
 Aristarchi, Gregorios, Legislation Ottomane. Con- 
 stantinople, 1 873- 1 888. 
 
 D'Ohsson, Mouradjea, Tableau General de L'Em- 
 pire Ottoman. Paris, 1788-1824. 
 
 Gatteschi, D., Manuale de Diritto Ottomano, etc. 
 Alexandria, Egypt, 1865. 
 
 Rodwell, J. M., The Koran. London and New York, 
 1909. (Everyman's Library.) 
 
 Steen de Jehay, F. M. J. G. van den, De la situation 
 legale des sujets Ottomans non-musulmans. Brus- 
 sels, 1906. 
 
 Young, George, Corps de Droit Ottoman. Oxford, 
 1905-1906. 
 
 Treaties: 
 Elliot, Jonathan, The American Diplomatic Code, etc., 
 
 Washington, 1834. 
 Hertslet, Sir Edward, Treaties in Force. London, 
 
 1875. 
 Malloy, W. M., Treaties, etc., of the United States. 
 
 Washington, 1910. 
 
 Martens, F. F., Receuil des Traites, etc. St. Peters- 
 burgh, 1874. 
 
 Noradounghian, Gabriel, Receuil d'actes internation- 
 aux de I'Empire Ottoman, etc. Paris, 1897-1900. 
 
 Testa, Barons Alfred and Leopold de, Receuil des 
 Traites, etc. Paris, 1864-1911. 
 
138 FOREIGNERS IN TURKEY 
 
 International Law Publicists: 
 
 Bonfils, Henry, Manuel de Droit International Pub- 
 lic. Paris, 1908. (5th. ed.) 
 
 Despagnet, F., Precis de Droit International Prive. 
 Paris, 1899. (3d. ed.) 
 
 Dicey, A. V., Conflict of Laws. London, 1896. 
 Latest edition, London, 1908. 
 
 Fiore, Pascuale, Droit International Prive. Paris, 
 1890-1891. 
 
 Hall, W. E., A Treatise on International Law. (6th. 
 ed.) Oxford, 1909. 
 
 Hefjfter, A. W., Droit International Public. Berlin, 
 Paris, 1883. 
 
 Holland, T. E., The Elements of Jurisprudence. Ox- 
 ford, 1906. (loth. ed.) 
 
 Holtzendorfif, F. von, Handbuch des Volkerrechts. 
 Berlin, 1885-1889. 
 
 Kent, James, Commentary on International Law. 
 Cambridge and London, 1878. (2d. ed.) 
 
 Laurent, Francois, Droit Civil International. Brus- 
 sels, 1880-1881. 
 
 Phillimore, Sir Robert, Commentaries upon Interna- 
 tional Law. London, i86r. (3d. ed. 1879-89.) 
 
 Pillet, Antoine, Principes de Droit International 
 Prive. Paris, 1903. 
 
 Savigny, F. Karl von. Private International Law. 
 Edinburgh, 1880. (2d. ed.) 
 
 Story, Joseph, Conflict of Laws. Boston and Lon- 
 don, 1896. (3d. ed.) 
 
 Twiss, Sir Travers, Law of Nations. Oxford, 1884. 
 
 Westl'ake, John, Private International Law. London, 
 1880. (2d. ed.) Third edition, 1890. 
 
 Wharton, Francis, Conflict of Laws. Philadelphia, 
 1872. 
 
INDEX 
 
 A 
 
 Actions and Prosecutions 
 
 United States Consular Court Regulations, 130 
 Actor sequitur forum rei 
 
 foreigners sue in consular courts of defendant in accordance 
 with principle of, 67 
 Administration of Estates 
 
 U. S. Consular Court Regulations, 133 
 Adrianople, Treaty of (see Venice) 
 Afarian 
 
 arrest and trial of, by Turks, 78 
 Ahd-nameh 
 
 correct term for Capitulations, 29 
 Aliens (see Foreigners) 
 
 international law concerned with protection of rights of, lor 
 
 comitas gentium not basis of rights of, 104, 112 
 
 proper subject of international agreements, 105 
 Amalfi 
 
 consular court in Naples, Amalfitan Tables, is 
 American Missionaries 
 
 customs exemptions of, 95 
 Appeals 
 
 U. S. Consular Court Regulations, 124 
 Arabs 
 
 exterritorial privileges of, in China, 10 
 
 exterritorial privileges of foreigners in Sicily under rule 
 of, 24 
 Armenians 
 
 exterritorial privileges granted by Justinian, 10 
 
 exterritorial privileges of Patriarchate, 18 
 Arbitral Award of Ambassadors of Six Powers 
 
 rights of Greece after war of 1897, 41, 89 
 
 139 
 
I40 INDEX 
 
 Arrest 
 
 of foreigners by consular officials, 62 
 
 of foreigners by Turkish police in cases of flagrant delit, 62 
 
 of foreigners accused before Turkish courts, 90 
 
 U. S. Consular Court Regulations, 120 
 Article IV of United States Treaty, 41, 76 
 
 text supported by United States, jy 
 
 text supported by Turkey, yy 
 
 views of Secretary Frelinghuysen concerning, 78 
 
 test case of Vartanian and Afarian, 78 
 
 views of Andre Mandelstam formerly Dragoman of Russian 
 Embassy concerning, 79 
 
 conciliatory attitude of United States in respect to inter- 
 pretation of, 81 
 Assessors 
 
 presence of foreign assessors in Mixed Commercial Tri- 
 bunals, 83 
 
 restraining influence of, 88 
 Associates 
 
 of U. S. Consuls in criminal, capital and civil cases, 56 
 Attachment and arrest 
 
 U. S. Consular Court Regulations, 120 
 Austria-Hungary 
 
 treaty with Turkey, 41 
 
 consular courts of, 54 
 
 practice of, in respect to nationals sentenced by Turkish 
 courts, 89 
 
 B 
 
 Bailo, Bajuli, Bailie 
 
 Venetian magistrate, 13, 30 
 
 French magistrate, 34 
 Banishment 
 
 U. S. Consuls not authorized to banish American convicts, 64 
 Bankruptcy 
 
 within province of consular courts, 75 
 
 U. S. Consular Court regulations, 126 
 Barbarian, Hostis 
 
 Use of terms, 9 
 Belgium 
 
 treaty with Turkey, 41 
 
INDEX 
 
 141 
 
 arrest and trial of Joris, Belgium subject, by Turks, 80 
 
 claims criminal jurisdiction over nationals, 76 
 
 practice of, in respect to nationals sentenced by Turkish 
 courts, 89 
 Births and deaths 
 
 U. S. Consular Court Regulations, 126 
 Bouree 
 
 Real Estate Protocol drawn up by, French Ambassador, 94 
 Brazil 
 
 treaty with Turkey, 41 
 British (see England) 
 Byzantium 
 
 treaty with Warings of Russia, 11 
 
 C 
 Cadiz 
 
 exterritorial privileges of foreign merchants in, 10 
 Capitulations, 27-47 
 
 use of term, 29 
 
 privileges of Franks and Catalans confirmed by Soliman, II, 
 32 
 
 treaty of 1535 between Soliman II and Francis I, 33 
 
 renewal of, 37 
 
 treaty of 1740, 38, 75 
 
 revision of regime of, 96 
 Catalans 
 
 privileges of confirmed by Soliman II, 32 
 Cavass 
 
 arrest of foreigners by, 52 
 
 consular proteges, 93 
 Charlemagne 
 
 privileges obtained from Haroun-el-Raschid by, 11 
 Chinese 
 
 method of adjusting differences without appeal to courts, 117 
 Citizens 
 
 registration of, U. S. Consular Court Regulations, 126 
 Civil Suits and Proceedings 
 
 provisions of Capitulations of 1535 in respect to, 34 
 
 jurisdiction by consular courts between foreigners in, 52, 67 
 
 presence of dragoman in, 24', 82, 84, 88 
 
 provisions of Capitulations of 1740 in respect to, 39 
 
142 
 
 INDEX 
 
 Turkish Civil Code, 87 
 
 reform of Turkish laws in respect to, 112 
 
 in U. S. Consular Courts, 119 
 Claudius, Emperor 
 
 privileges accorded merchants in Cadiz, 10 
 Coinitas Gentium 
 
 rights of aliens not dependent on, 104-10S 
 Commerce 
 
 cradle of international law, 8 
 
 Mixed Commercial Tribunals, 82 
 
 presence of assessors in commercial suits, 83 
 
 Commercial Code, 87 
 
 usury not countenanced by Moslem law, 87 
 Conflict of Laws (see Private International Law) 
 Constantinople 
 
 Armenians in, 10 
 
 Venetians in, 13, 29 
 
 Genoese in, 14, 27, 29 
 
 Moslems in, 17 
 Consuls 
 
 use of term by U. S. Statutes, 55 
 
 police powers of, 61 
 
 limited police powers of American Consuls, 62 
 
 power of, to punish, 64 
 
 execution of death penalty by, 65 
 
 no power to banish, 64 
 
 various juridical acts of, 70 
 Consular Courts 
 
 jurisdiction of, over foreigners of same nationality, 52 
 
 jurisdiction of, in matters of inheritance, rent, mortgage, 
 etc., S3 
 
 forms and procedure of, 54 
 
 jurisdiction of, over foreigners of different nationality, 67 
 
 lex loci often applied by, 71 
 
 jurisdiction in matters affecting personal status, 113 
 
 jurisdiction in various matters, 115 
 
 judicial powers which should be granted to, 116 
 Consular Courts of the United States 
 
 organization and procedure of, S4-61 
 
 rules and regulations of, 1 19-134 
 
 jurisdiction of, how exercised, 60 
 
INDEX 143 
 
 powers of Ministers to make regulations for, 59 
 
 powers of, to punish, 64 
 
 jurisdiction of, in divorce, 71 
 
 jurisdiction in criminal cases, 55, 76, 127 
 
 civil jurisdiction of, 55 
 
 original jurisdiction of, 55 
 
 associates in criminal cases, 56; in capital cases, 56; in civil 
 cases, 56 
 
 settlement of civil cases and minor offenses, 57 
 
 forms of proceedings, 57 
 
 evidence in, 57 
 
 appeals to Minister, 57 
 
 judgments final, 124 
 
 execution of judgments, 58, 121 
 
 court costs, 58, 122 
 
 no juries, 61 
 Consular Immunities 
 
 of diplomatic character, 92 
 
 customs exemptions, 92 
 Consular Proteges (see Proteges) 
 Correspondence 
 
 inviolability of, 95 
 
 foreign post-offices, 95 
 Costs 
 
 U. S. Consular Court Regulations in respect to, 122 
 "Cour de Cassation 
 
 restrictions on jurisdiction of, 86 
 Criminal Suits and Proceedings 
 
 in cases between foreigners, 52 
 
 in cases between foreigners and natives, 36 
 
 provisions of Capitulations of 1740 in respect to, 32 
 
 claims of Turkey to jurisdiction in cases involving public 
 law and order, 68 
 
 claims of U. S. to jurisdiction over Americans, 76 
 
 jurisdiction of Tribunaux Correctionnels, 82 
 
 reform of Turkish criminal law, 112 
 
 abandonment of jurisdiction by Powers, 112 
 
 U. S. Consular Court Regulations in respect to, 127, (see 
 Consular Courts of the United States) 
 Crusaders, 15 
 
144 
 
 INDEX 
 
 Customs 
 
 international servitude in respect to, 30 
 
 exemptions for religious communities, 95 ; for consuls, 92 
 Cyprus 
 
 nominally Turkish but enjoying special status under 
 England, 47 
 
 D 
 Dar-ul-harb 
 
 applied to non-Moslems, 4 
 
 use of, similar to barbarian and hostis, 9 
 Dar-ul-Islam 
 
 applied to Moslems, 5 
 Denmark 
 
 treaty with Turkey, 41 
 Divorce 
 
 by American Consuls, 71 
 
 U. S. Consular Court Regulations, 125 
 Djema'at 
 
 use of term, 18 
 Dockets, Record, etc. 
 
 U. S. Consular Court Regulations, 129 
 Don Pacifico 
 
 case of, cited, 102 
 Domicile, Inviolability of, 90 
 
 provisions of Capitulations of 1740, 40 
 
 provisions of Real Estate Protocol, 45 
 
 hotels, apartments, printing establishments, bookstores, 
 liquor shops, places of amusement, etc., go 
 Dragoman 
 
 provisions of Capitulations of 1740 in respect to presence of, 
 in suits between foreigners and natives, 24 
 
 judicial powers of, 24 
 
 presence of, in Tribunaux Correctionnels, Nizamieh, and 
 Mixed Tribunals, 82 
 
 usage respecting, 84 
 
 restraining influence of, 88 
 
 renunciation of powers of, 113 
 
 E 
 Efrenji 
 
 applied to all Europeans, 32 
 
INDEX 
 
 145 
 
 Egypt 
 
 nominally Turkish territory but enjoying special status under 
 England, 47 
 
 Mixed International Courts, 113 
 Eman 
 
 use of term, 4, 6 
 England 
 
 right of, to adhere to Capitulations of 1535, 30 
 
 treaty with Turkey, 41 
 
 consular courts of, 54; right of Ottoman subjects to sue in, 67 
 
 British Consuls authorized to marry foreigners of dififerent 
 nationality, 70 
 
 practice of, in respect to nationals sentenced by Turkish 
 courts, 89 
 
 blockade of Venezuela by, 102 
 
 reparation obtained by, in case of Don' Pacifico, 102 
 
 personality of laws recognized by English in India, 24 
 Execution of Judgments 
 
 U. S. Consular Court Regulations, 121 
 Exemption and discharge 
 
 U. S. Consular Court Regulations, 122 
 Exterritoriality (see Immunities of Jurisdiction) 
 
 inadequacy of term, 3, 46 
 
 foreigners do not always carry with them exterritorially their 
 own laws, 60, 61 
 Extradition 
 
 provisions of treaty between Byzantium and Warings, 11 
 
 in countries under exterritorial regime, 64 
 
 of Tunstall, Myers, and Surratt, 64 
 
 proper concern of international law, loi 
 
 Foreigners (see Aliens) 
 
 origin of exterritorial rights of, 3-24 
 denoted as Mustemin in Moslem lands, 6 
 guarantees to, by Moslem law, 4, 6 
 international usage concerning, prior to 14S3, 8-17 
 jurisdiction of consular courts in suits between, $2, 67 
 right of recourse to Ottoman courts, 66 
 provisions of Capitulations of 1740 respecting, 39 
 suits of, before Imperial Divan, 34, 36 
 
146 INDEX 
 
 Forum delicti 
 
 American, British, and Greek judicial procedure in con- 
 sular courts based on principle of, 63 
 France 
 
 privileges obtained for Franks by Charlemagne, 11 
 
 exterritorial jurisdiction granted in Tripoli and Alexandria, 
 16; privileges confirmed by Soliman II, 32 
 
 Capitulations of 1535, 33 
 
 Capitulations of 1740, 38 
 
 ■extensive police powers of French Consuls, 61 
 
 practice in respect to nationals sentenced by Turkish courts, 
 89 
 
 law administered in consular courts of, 57 
 
 jurisdiction of French consuls in U. S. according to decision 
 in Goddard v. Luby, 115 
 Francis I 
 
 treaty with Soliman II, 33 
 G 
 Galata (see Genoese) 
 Genoese 
 
 separate town of Galata occupied by, 14 
 
 privileges obtained by, in Alexandria, 16, 27 
 
 privileges granted by Mohammed the Conqueror, 14, 27 
 Germany (see Prussia) 
 
 privileges enjoyed in Novgorod by Germans of Wisby, 13 
 
 practice in respect to nationals sentenced by Turkish courts, 
 89 
 
 blockade of Venezuela by, 102 
 Goddard v. Luby 
 
 case cited, iiS 
 Greece 
 
 settlement of Greek merchants at Naucratis, 9 
 
 privileges granted Greek monks in Palestine by Omar, 10 
 
 powers of Greek Patriarchate, 18 
 
 treaty with Turkey, 41 
 
 Arbitral Award of Ambassadors of Six Powers respecting 
 rights of, 41 ; provisions of Award respecting Greeks 
 sentenced by Turkish courts, 89 
 
 reparation obtained from, in case of Don Pacifico. 
 Guardianship 
 
 U. S. Consular Court Regulations, 134 
 
INDEX 147 
 
 H 
 
 Habeas Corpus 
 
 U. S. Consular Court Regulations, 125 
 Hanseatic League 
 
 exterritorial privileges of merchants of, 14 
 Haradj 
 
 use of term, S, 19 
 Hedjaz 
 
 foreigners not allowed to own land in, 42 
 Holland 
 
 treaty with Turkey, 41 
 
 practice in respect to nationals sentenced by Turkish courts, 
 89 
 Hostis (see Barbarian) 
 
 I 
 
 Immunities of Jurisdiction (see Exterritoriality) 
 
 origin of, 3-24 
 
 privileges granted by treaty between Byzantium and Warings 
 of Russia, II 
 
 originally common practice and not anomalous, 13 
 
 modifications of, in Turkey, 41, 96 
 
 relation of, to international law, 101-118 
 Immunities of Jurisdiction in Cases Involving Foreigners of 
 Same Nationality, 52-66 
 
 jurisdiction of consular courts, 52 
 
 procedure of consular courts, 52 
 
 law administered by, 59 
 
 execution of law, 61 
 
 arrest of foreigners, 62 
 
 imprisonment of foreigners, 63 
 
 remanding of convicted foreigners to native land, 64 
 
 execution of death penalty, 65 
 Immunities of Jurisdiction in Cases Involving Foreigners of 
 Different Nationalities, 66-71 
 
 jurisdiction of consular courts, 66, 67 
 
 defendant may not bring cross-suit in own consular court, 69 
 
 law administered and executed, 69 
 
 right of foreigners to sue in Turkish courts, 66 
 
 jurisdiction of British courts over foreign defendants, 67 
 
148 INDEX 
 
 claim of Porte to jurisdiction in cases affecting public law 
 and order, 68 
 
 principle of locus regit actum applied by consular courts, 70 
 
 various juridical acts of consuls, marriage, etc., 70 
 Immunities of Jurisdiction in Matters Affecting Both Foreigners 
 and Ottoman Subjects, 75-90 
 
 jurisdiction of Turkish courts, 7S 
 
 jurisdiction in criminal cases claimed by U. S., 76 
 
 courts and procedure, 81 
 
 presence of Dragoman in Turkish courts, 85 
 
 presence of assessors, 83, 88 
 
 summons and sentences of Turkish courts, 86 
 
 law administered, 87 
 
 execution of law, 89 
 Imperial Divan (see Porte) 
 
 diplomatic adjustment of judicial questions by, 39, 76 
 Imprisonment 
 
 in Turkish jails, 63 
 
 in native land for appeal or punishment, 63 
 
 for debt, 90 
 
 practice in respect to foreigners sentenced by Turkish 
 courts, 89 
 India 
 
 personality of laws recognized by British in, 24 
 Inheritance 
 
 jurisdiction in cases of, claimed by consular courts, 53, 75 
 International Law 
 
 protection of aliens proper concern of, loi, 102 
 
 status of individuals under, loi 
 
 relation of Private International Law to, 103-112 
 
 relation of immunities of jurisdiction to, 100-118 
 
 liberal interpretation of, 118 
 International Private Law (see Private International Law) 
 Italy 
 
 consuls in London and Netherlands, 16 
 
 exterritorial privileges obtained through Venetian Capitula- 
 tions, 32 
 
 powers of Italian Consuls in respect to marriage, 70 
 
 practice in respect to subjects sentenced by Turkish courts, 89 
 
 reparation on account of New Orleans riots obtained by, 102 
 
 blockade of Venezuela by, 102 
 
INDEX 149 
 
 J 
 Jails 
 
 Consular, 63 
 
 Turkish, 63, 90 
 Jerusalem 
 
 special privileges of foreigners in, under Crusaders, 15 
 
 representative of Grand Master of Rhodes in, 16 
 Jews 
 
 attitude of Koran towards, S 
 
 exterritorial privileges granted to, by Turks, 7 
 Joris 
 
 arrest and trial of Belgian subject by Turks, 80 
 Judicial Reforms, ^(i 
 
 modifications of exterritorial rights after, 36 
 Juridical Acts 
 
 in accordance with local usage, 60 
 
 various acts performed by consuls, 70 
 Juridical Rights of Foreigners, 51-97 
 
 not based on any single treaty, 51 
 Jury 
 
 none in trials by U. S. Consular Courts, 61 
 Justinian 
 
 grants privileges to Armenians in Constantinople, 10 
 
 K 
 
 KiafkY-Kitahy 
 
 applied to Christians and Jews, S, 21 
 Koran 
 
 concerning infidels, 5 
 
 concerning Jews, Sabeites and Christians, S 
 
 Land, Ownership of (see Real Estate) 
 Letters Rogatory 
 
 employed by courts in ascertaining foreign law, 115 
 Lex Loci 
 
 as applied by consular courts, 71 
 Locus Regit Actum 
 
 consular courts recognize principle of, 60, 61 
 
150 INDEX 
 
 M 
 Marriage 
 
 by consuls, 71 
 
 international agreements concerning, 105 
 
 governed by local laws, 60 
 
 U. S. Consular Court Regulations in respect to, 125 
 Medjelle 
 
 Ottoman Civil Code, based on Sheri, 87 
 Military Exemption 
 
 of non-Moslems, 19, 20 
 Mil'let 
 
 creation by Mohammed the Conqueror, 18 
 
 independent religious communities, 19 
 
 recognized as nations by Young Turks, 20 
 
 exclusive jurisdiction in matters affecting personal status, 113 
 Minister 
 
 use of term in U. S. Statutes, 5S 
 Mirzan 
 
 sentenced to death in Alexandria by American Minister, 65 
 Missionaries 
 
 customs privileges of, 95 
 Mixed Commissions 
 
 U.S. Consular Court Regulations, 132 
 Mohammed, The Conqueror 
 
 policy of, towards conquered Greeks, 18; in harmony with 
 Moslem system of jurisprudence, 23 
 
 privileges granted to Genoese of Galata, 14, 27 
 Mohammed, The Prophet 
 
 attitude towards non-Moslems, S 
 Moors 
 
 respected local laws in Spain, 24 
 Mortgage 
 
 jurisdiction of consular courts in questions relating to, 53 
 Moslems 
 
 attitude of, towards foreigners, 4-8 
 
 jurisprudence, codes, etc., 6 
 
 no irreconciliable hostility between Moslem law and inter- 
 national law, 8 
 
 in Jerusalem, 15 
 
 in Corsica and Sicily, 16 
 
 in Constantinople before 1453, 17 
 
INDEX 151 
 
 conflict between Moslem jurisprudence and other systems in 
 respect to personal status, 113 
 
 Sheri basis of all Moslem law, 21, 87 
 
 usury not countenanced by Moslem law, 87 
 Most-Favored-Nation 
 
 exterritorial rights of various nations granted to each and 
 all through principle of, 38, 41 
 Multeka-ul-ebhar 
 
 Moslem Code drawn up by Sheikh Ibrahim, 6 
 Mushrikin 
 
 as applied to pagans and idolators, 5 
 Mustemin 
 
 applied to foreigners in Moslem lands, 6 
 
 applied also to Moslems in foreign lands, 7 
 Myers 
 
 forcible extradition from Morocco, 64 
 
 N 
 
 Naturalization 
 
 not recognized by Turks without express permission, 42 
 New Trial 
 
 U. S. Consular Court Regulations, 124 
 Niza 
 
 as interpreted by Turks in limited sense, 68 
 Nisamieh Tribunals 
 
 jurisdiction of, 82 
 Non-Moslems 
 
 attitude of Koran towards, 4, 5 
 
 guarantees of Moslem code to, 6 
 
 exempted from military service, 19 
 
 legal status of, 18-24 
 
 not subject to Sheri law in matters of personal status, 21 
 
 granted similar rights as foreigners by treaty, 24 
 Novgorod 
 
 early laws of, respecting foreigners, 15 
 
 O 
 
 Oaths 
 
 U. S. Consular Court Regulations, 129 
 Offset 
 
 U. S. Consular Court Regulations, 122 
 
152 INDEX 
 
 Omar, The Caliph 
 
 grants privileges to Greek Monks in Palestine, lo 
 Ottoman Tribunals 
 
 controversy as to jurisdiction of, in matters of inheritance, 
 rent, mortgage, trademarks, S3 
 
 right of foreigners to sue in, 54 
 
 jurisdiction of, in matters affecting foreigners and natives, 7S 
 
 Tribunaux Correctionnels, 82 
 
 Nizamieh Tribunals, 82 
 
 Mixed Commercial Tribunals, 82; foreign assessors in, 83 
 
 law administered by, 87 
 
 execution of sentences of, 89 
 
 jurisdiction over foreigners more than nine hours' travel 
 from consular representative, 46 
 
 P 
 
 Partnership 
 
 U. S. Consular Court Regulations, 126 
 Patriarchates 
 
 Investiture of Greek Patriarch by Mohammed the Con- 
 queror, 18 
 
 claim jurisdiction in certain cases involving foreigners, S4 
 
 jurisdiction in questions involving personal status, 21 
 Persia 
 
 practice concerning nationals sentenced by Turkish courts, 89 
 Personality of Law 
 
 as distinguished from territorial law, 12 
 
 respected by English in India, 24 
 Personal Status 
 
 meaning of term, 19 
 
 jurisdiction of Patriarchates in questions of, 21 
 
 foreigners carry with them rights of, iii 
 
 conflict of Moslem law with other law in respect to, ii'3 
 
 consular courts should have jurisdiction in matters involv- 
 ing personal status, 53, 114 
 Phoenicians in Memphis, 9 
 Pisa 
 
 obtained privileges from Greeks and Saracens, 15 
 Police 
 
 powers of French Consul, 62 
 
 powers of American Consuls, 62 
 
 arrest of foreigners, 62 
 
INDEX 153 
 
 Political Code, Moslem, 6 
 
 Porte, The Sublime, (see Imperial Divan) 
 
 formerly adjusted judicial questions involving foreigners, 36 
 negotiations for modification of exterritorial regime, 45 
 
 Portugal 
 
 treaty with Turkey, 41 
 claims criminal jurisdiction, 76 
 
 Post-offices (see Correspondence) 
 
 Praetor Peregrinus, 19 
 
 Private International Law 
 
 relation to international law, 103-112 
 
 international agreements respecting marriage, divorce, etc., 
 
 lOS 
 Third Hague Conference on, 105 
 opinions of continental publicists on, 106-110 
 method of ascertaining foreign laws to be applied by courts, 
 
 IIS 
 Probate 
 
 U. S. Consular Court Regulations, 126 
 Proteges, 93-9S 
 
 policy of Powers in respect to, 93 
 
 consular proteges, 93 
 
 foreign proteges, 94 
 
 religious communities, 94 
 
 permanent and other proteges, 95 
 
 U. S. Consular Regulations, 126 
 Protocol (see Real Estate) 
 Proxenoi, 9 
 Prussia (see Germany) 
 
 treaty with Turkey, 41 
 Punishment 
 
 in Turkish jails, 63 
 
 powers of U. S. Consular Courts, 64 
 
 practice of Powers in respect to nationals sentenced by 
 Turkish courts, 89 
 
 R 
 
 Rayah, 19, 21 
 Real Estate 
 
 Law of 1867 granting to foreigners right to own, 42 
 
IS4 
 
 INDEX 
 
 Protocol defining status of foreigners owning Real Estate, 4S 
 
 controversy as to jurisdiction in matters of rent, mortgage, 
 inheritance, trademarks, S3 
 
 jurisdiction of Nizamieh tribunals in matters relating to, 82 
 Reference 
 
 U. S. Consular Court Regulations, 123 
 Religious Communities 
 
 independent status of, 19 
 
 as proteges, 94 
 
 protection of individuals in, 94 
 
 customs exemptions of, 94 
 Rent 
 
 controversy as to jurisdiction in questions of, 53 
 
 jurisdiction of Nizamieh tribunals in matters of, 82 
 Replevin 
 
 U. S. Consular Court Regulations, 123 
 Rhodes, 8, 16 
 Roumania 
 
 practice in respect to nationals sentenced by Turkish 
 courts, 89 
 Russia 
 
 early treaties with Byzantium, 11 
 
 treaty with Turkey, 41 
 
 practice in respect to nationals sentenced by Turkish courts, 
 89 
 
 S 
 Safeguards, Guarantees 
 
 granted to non-Moslems, 4, 6 
 Sardinia 
 
 privileges of foreigners in, under Arabs, 24 
 
 treaty with Turkey, 41 
 Scotland 
 
 allowed to adhere to Capitulations of 1535, 34 
 Seamen 
 
 U. ,S. Consular Court Regulations, 126 
 Servitude, International 
 
 customs dues in treaty with Venice constituted, 30 
 Sheri 
 
 base of all laws, 21, 87 
 
 not applicable to Christians, 21 
 
 invoked to supply deficiencies of civil and criminal codes, 88 
 
INDEX 155 
 
 Sicily 
 
 local laws respected by Arabs in, 24 
 Soliman II 
 
 confirmed privileges granted Franks and Catalans in Alex- 
 andria, 32 
 
 ■entered into treaty with Francis I, 33 
 Soulh, 4, 29 
 Sovereignty 
 
 alienation of sovereign rights of Turkey, 68 
 
 respect for sovereign rights basis of future adjustments with 
 Powers, 112 
 
 jurisdiction in matters affecting public law and order a 
 right of, 68 
 Spain 
 
 exterritorial privileges accorded by Visigoths in, 10 
 
 local laws respected by Moors, 24 
 
 treaty with Turkey, 41 
 
 practice regarding nationals sentenced by Turkish courts, 89 
 Summonses and sentences 
 
 of Turkish courts, 86 
 
 U. S. Consular Court Reuglations, 132 
 Suratt 
 
 forcible extradition from Egypt, 64 
 Sweden 
 
 treaty with Turkey, 41 
 
 practice in respect to nationals sentenced by Turkish courts, 
 
 Telonarii, 10 
 Tender 
 
 U. S. Consular Court Regulations, 123 
 Territorial Law 
 
 a modern notion, 12 
 
 under theory of common law, 104 
 Testimony 
 
 of Christians not of equal value with Moslems', 36 
 Trademarks 
 
 jurisdiction claimed by consular courts, 54 
 
156 INDEX 
 
 Treaties 
 
 Venetian Capitulations, 31, 39 
 
 Capitulations of ±535, 33 
 
 Capitulations of 1740, 38 
 
 of European Powers with Turkey, 41 
 Tribunaux Correctionnels. 
 
 jurisdiction over foreigners charged with crimes by Otto- 
 man subjects, 82 
 Trustee Process 
 
 U. S. Consular Court regulations, 122 
 Tunstall 
 
 forcible extradition of, from Morocco, 64 
 Turkey 
 
 rights of foreigners under international law in, 105 
 
 need of basis for adjustment of question of jurisdiction over 
 foreigners between Powers and, 112 
 
 right of jurisdiction in all that affects public law and order, 
 112 
 
 treaties with (see Treaties) 
 Turkish Tribunals (see Ottoman Tribunals) 
 
 U 
 
 United States 
 
 treaty with Turkey, 41 
 
 Article IV a precedent for other nations, 41 (see Article IV) 
 
 Real Estate Protocol signed by, 44 
 
 case of Vartanian and Afarian, 78 
 
 claims to jurisdiction in criminal cases, 76 (see Article IV) 
 
 practice in respect to Americans sentenced by Turkish 
 courts, 89 
 
 jurisdiction of French Consuls in, lis 
 Usury 
 
 not countenanced by Moslem law, 87 
 
 V 
 
 Vartanian 
 
 arrest and trial of, by Turks, 78 
 Venice 
 
 Venetian quarter in Constantinople, 13 
 
 privileges granted by Sultan of Aleppo, 16 
 
 treaty of 14S4 with Turks, 29 
 
INDEX 157 
 
 compensation for property of Venetians destroyed in cap- 
 ture of Constantinople, 29 
 
 customs dues fixed by treaty, 30 
 
 treaty witli Sultan of Konia, 31 
 
 privileges granted by Sultan of Egypt, 31 
 Vessels 
 
 inviolability from search, 91 
 
 jurisdiction of consuls over, 115 
 
 status determined by international law, 102 
 Visigoths 
 
 granted exterritorial privileges to foreigners in Spain, 10 
 
 W 
 
 Warings 
 
 early diplomatic relations with Byzantium, iii 
 Wisiby 
 
 privileges enjoyed by merchants of, 15 
 
 Young Turks 
 
 recognized national status of religious communities, 20 
 attempted compulsory military serv/ice of non-Moslem sub- 
 jects, 20