TURKEY. RIGHT OF AMERICAN CITIZENS TO PROSECUTE CLAIMS AGAINST THE GOVERNMENT OF TURKEY IN THE COURTS OF THAT COUNTRY. File No. 14776/2. The Acting Secretary of State to Ambassador Leishman. [Telegram.-Paraphrase.] DEPARTMENT OF STATE, (Mr. Bacon, acknowledging the telegram of July 25,1 informs Mr. Leishman that section 1068 of the Revised Statutes permits aliens, citizens of a country which grants reciprocal privileges, to sue the United States in the Court of Claims, and that certain Turkish subjects have brought suit against the United States in the Court of Claims to recover for alleged excessive customs duties paid. Mr. Leishman is instructed to reply by dispatch whether an American citizen could sue the Turkish Government in a like case in Turkish courts, and whether the remedy accorded is as practicable, efficient, and absolute as remedy in the Court of Claims. Also to explain as far as possible the nature of the cases in which an American citizen can sue the Turkish Government in Turkish courts.) File No. 14776/3. No. 795.] Ambassador Leishman to the Secretary of State. AMERICAN EMBASSY, Constantinople, October 6, 1908. SIR: In reply to the department's telegraphic instructions of July 30 last, inquiring concerning the right of an American citizen to sue the Turkish Government for the recovery of excessive customs duties, I have the honor to report that I have caused inquiries to be made at the Sublime Porte and from the legal advisers of the Porte and of the customs administration and am informed that an American citizen, as well as an Ottoman subject or other foreign subject, may sue the Ottoman Government in the Ottoman courts to recover excessive customs duties. The form of procedure and admittance of evidence, as well as the law applied, will naturally be those fixed by Ottoman law. With regard to the nature of the cases in which an American citizen can sue the Ottoman Government in the Ottoman courts, I beg to state that the law does not limit such cases. It can be said in a 1 Not printed. 76851°-F B 1908 47 737 general way that in all matters wherein a foreign subject enters into relations with the Ottoman Government he can sue the same in the Ottoman courts. Such action, when brought by a foreign subject or citizen enjoying capitulatory rights in Turkey, comes within the jurisdiction of the "mixed courts," which is presided over by an Ottoman judge, and comprises, besides the president, two Ottoman associate judges, called members of the court, and two foreign assessors, appointed by the diplomatic or consular authorities of the nation to which the foreigner belongs. Such action is not heard unless the dragoman of such foreign mission or consulate be present. As to the question whether the remedy accorded is as practicable, efficient, and absolute as that furnished by the American Court of Claims, I beg to state that an action in an Ottoman court, and an irrevocable judgment sanctioning the claims of the foreigner, are the only remedies which a foreigner has in Turkey. It is true that under the old régime foreigners who obtained judgments against the Ottoman Government experienced delays in the execution of these judgments, but this does not change the point of law, which recognizes the jurisdiction of the Ottoman courts against the customs administration in claims for the recovery of excessive customs duties. The delay in writing this reply to the department's inquiry was caused by the wish of the embassy to ascertain, from the office of the legal advisers of the general customs administration, whether there have ever been cases of this nature against the department. All their old records were searched, but no such case was found; yet they recognize that there is no doubt whatever about the jurisdiction of the courts, and that they would not for a moment think of raising an exception of want of competency, in case such action were brought against their administration. Their present legal adviser states that, whenever such claims have been presented during his tenure of office, he has caused them to be settled out of court. I have, etc., JOHN G. A. LEISHMAN. STATUS OF RESIDENTS OF TURKEY WHO CLAIM TO BE NATURALIZED AMERICAN CITIZENS. File No. 4050/104-105. The Acting Secretary of State to Ambassador Leishman. DEPARTMENT OF STATE, Washington, June 30, 1908. SIR: Referring to the department's circular instruction of April 19, 1907, I inclose for your information and for the files of your embassy a copy of a remonstrance which Mr. E. C. Tambaky and others, claiming to be naturalized American citizens resident in Turkey, have addressed to the President, in which they criticise the department's interpretation of the act of Congress approved March 2, 1907, in reference to the expatriation of citizens and their protection abroad. I also inclose a copy of the department's reply to the remonstrance mentioned. I am, sir, ROBERT BACON. [Inclosure 1.) Petition signed by E. C. Tambaky and others addressed to President Roosevelt. HONORABLE SIR: The undersigned naturalized American citizens, at present residing in Turkey, respectfully call your attention to their situation, as apparently regarded by the State Department in its interpretation of chapter 2534, of the United States Statutes at Large, and entitled "An act in reference to the expatriation of citizens, and their protection abroad," and approved March 2, 1907. The undersigned, with two exceptions, have never been Turkish subjects. The two exceptions are first, a citizen who has obtained an imperial decree, or iradé, permitting him to adopt American citizenship, and second, one who is an American citizen by birth, whose father was naturalized when a resident of the United States. A circular has been issued and is, we believe, now posted in every American consulate in Turkey, which professes to be based on section 2 of the said act of March 2, 1907, and also upon paragraph 144 of the Diplomatic Instructions and Consular Regulations as amended by the Executive order of April 6, 1907. This circular declares that the above-mentioned act and the regulations in question are applicable to American citizens who reside in the Turkish dominions. The circular states that the following classes of persons will be presumed to have ceased to be American citizens: 1. Naturalized American citizens, formerly Turkish subjects, who return to Turkey and reside there for a period of two years. 2. Naturalized American citizens, not formerly Turkish subjects, who reside in the Turkish dominions for five years. Your memorialists with the exceptions above referred to all belong to this second category. While not presuming to doubt for an instant the power of our Government to make acts of Congress that shall be binding upon all American citizens, wherever residing, the undersigned feel confident that the act of Congress in question would never have been declared applicable to American citizens residing in Turkey if the peculiar and altogether exceptional character of the legal situation and relations of American citizens residing in Turkey had been remembered. As such relations result from the treaties and from the rights acquired by the United States Government in Turkey we have considered it desirable to obtain an opinion from Mr. Edwin Pears, an English barrister at law, whose historical works are known in America, and who has examined the position of foreign subjects residing in the Ottoman dominions more fully than any other writer in the English language. We refer to his opinion annexed herewith. The conclusions arrived at by him are the following: 1. That the citizens of the United States residing in Turkey are in an entirely different position from that of such citizens residing in the United States, England, Germany, or other foreign country. 2. That from a legal and largely also from a practical point of view such citizens are legally considered as residing in the United States themselves, Mr. Pears speaks with confidence on this question and adds the significant paragraph that the position which he takes up is not seriously disputed so far as he is aware by any person who has written on the subject. 3. That as no conflict of law has arisen or is likely to arise between our Government and that of the Sublime Porte in reference to the nationality of citizens in the category to which we belong, there is no necessity, nor is it desirable to apply the act, as the circular proposes, to the undersigned. Your memoralists, while unable of course to give an opinion with the authority of a specialist like Mr. Pears upon this question, unhesitatingly assert that their respective advocates and their acquaintances belonging to the British, German, Austrian, Italian, and other European communities invariably hold the same language, that the citizens of such countries residing in Turkey are always regarded as legally domiciled in the countries from which they have come, and that each non-Ottoman subject of origin is regarded as living in a foreign colony. In other words, the position set out in Mr. Pears's opinion is, as far as we can learn, one which is universally held by those who have studied such question in Turkey. But while such is the legal position the undersigned ventures to suggest that the United States department, and yourself in particular, as its respected head. will recognize that an act of injustice will be done if the provisions alluded to in the above-mentioned circular are made applicable to this country. They came here as naturalized American citizens, knowing they were coming under American jurisdiction and under the protection of its laws; that legally they were coming to an American colony; and when duly admitted by decision of the American court they considered themselves assured, under the Constitution, as entitled to equal rights with those enjoyed by native-born Americans. They have entered into business relations with citizens in America and with other persons, under the belief on both sides, that they were Americans and that in any legal disputes American law would be the one applicable. They respectfully submit that to make the provision applicable to the undersigned will be to give the statute a retroactive effect, which is unjust. It will change the status which they acquired legally in America. Under the laws of the United States the undersigned became American citizens by the decision of a competent court, and they respectfully submit that the State Department in making the circular applicable in their case is taking a step which is not only unfair to them, but unconstitutional-unconstitutional because it discriminates between the rights of natural-born American citizens and a naturalized one. The undersigned also submit that it could not have been the intention of the American legislators to hand over naturalized citizens to an Asiatic power which is hardly the superior of China, where also consular jurisdiction is in full force. If the undersigned were thus cast off they would become, by virtue of the Turkish law, Turkish subjects, which they have never been and which they do not desire to become. An act of injustice would be done not only to them but to all who have entered in such contractual relations with them. It need hardly be said that. American citizens and others belonging to civilized States would have in many cases refused to enter in such contractual relations had they thought that the law courts to which, in case of dispute, they would have had to appeal were those of Turkey. The undersigned also call attention to the fact that there are many anomalies which would result from the application of the law. If they were cast off by America and became Turkish subjects the children of any of the undersigned who are resident in America would by Turkish law be unable to take any portion of the succession of their father. But the undersigned do not wish to base their appeal merely upon technicalities. They rather submit the proposition that if the law is made applicable to them and the class of persons to whom they belong, a great act of injustice will be done. They put the matter in its simplest form, namely, that each one of them having gone to the United States and fulfilled the requirements by which he was able to become naturalized, subsequently, for the purpose of his business found it desirable to leave the United States and establish himself not in the country of which he was a subject but in Turkey. By industry and under the protection of the laws of their newly acquired country they have obtained possession of a right of which they are proud, and they respectfully request that they may be permitted to retain such possession, and urge that it would be a manifest injustice that they should lose the legal status which they have obtained on their naturalization, and that without any fault of their own they should be compelled to become Turkish subjects or to leave the country in which they have made business connections. The undersigned submit these considerations to your careful attention in the fullest confidence that the question so important to them in their private and family relations, as well as in their capacity of citizens of the great country you represent, will receive the sympathetic examination which your distinguished career has shown that you invariably give to matters regarding the rights of individual citizens. The undersigned have the honor to remain, honorable sir, your most obedient servants, E. C. Tambaky, T. S. Baltassi, Panay N. Magnatidis, Polycarp Speropulos, H. Seferiade, Denis G. Canale. Angelis Feros, Dimitrios Y. Karayiannopulos, A. C. Adamupaulos, George Coureiyios, Nicolas D. Nicolaides, George S. Tricoglu, W. E. Zhulu, Elen P. Haggitiris, Calliope Canale, Anthony J. Prossen, C. F. Missir, Yani Zervoudaki, Emilie A. Calléya, Olga Demitroff, Anna Demitroff, A. Melloni. SMYRNA, April 21, 1908. [Sub-inclosure 1.] Opinion of Edwin Pears, barrister at law, and late president of the European bar at Constantinople. I am asked to give an opinion on the following question: "What is the legal status of naturalized American citizens residing in Turkey who have never been Turkish subjects in reference (1) to the Turkish Government and (2) to the American Government?" I have written regarding the status of all subjects of various European States, including American citizens, residing in Turkey on various occasions. My last contribution on the subject appeared in the London Law Quarterly Review of October, 1905 (Turkish capitulations and the status of British and other foreign subjects residing in Turkey). The article in question will furnish full information on the general questions submitted. The legal position of foreigners in Turkey is a survival of a conception of law which has disappeared from the jurisprudence of western States. Each community of foreign subjects in Turkey constitutes a legal colony under the jurisdiction of the sovereign State to which the members of such colony belong. The members of such colony, both individually and collectively, are clothed with exterritoriality. This result, though somewhat anomalous so far as civilized countries are concerned, is yet well established and undoubted, and is easily understood when examined historically. When the Turks took possession of Constantinople in 1453, they found a colony of Genoese occupying Galata and other places in Turkey under a treaty or capitulation which had been granted to them by the Byzatine Emperors. They had their own governor and their own law courts, and they were not to have the advantage of the Byzantine courts. Mahomet the Conqueror confirmed the treaty or capitulation which he found in existence. In 1535 the King of France made capitulations with the Sultan of Turkey, giving to France similar rights to French subjects throughout the Empire. The English obtained similar privileges contained in a treaty or capitulation a few years afterwards. Without attempting to give the precise dates it is sufficient to say that the sovereigns of other European States followed the example of France. All these treaties or capitulations were based upon the idea of exterritoriality and upon the model of the concession given to the Genoese. It is still more remarkable that these old treaties have been continued to the present day. Certain modifications in reference to details inserted to make the stipulation more precise have been added, but in reference to the principles which obtain they remain unchanged. Among the latest countries to obtain capitulations was the United States. But the capitulations with the United States, as is indeed the case with those of other countries, contain "The most-favored-nation clause," by which America is to have the advantage of any clause which figures in the capitulations of the other powers. The result is a striking one, and I prefer to sum it up in the words of a judgment given in the British Privy Council 22 years ago in the case of Abd-ulMessih v. Farra (13 Appeal Cases, 440). Lord Watson, in giving the judgment, says: "The legal condition of foreigners resident in Turkey, who are exempted by treaty from the jurisdiction of its local courts, is very well described by FeraudGiraud (Jurisdiction Française, Vol. II, p. 58), one of the authorities referred to by the appellant's counsel. They form, according to the view of that learned writer, an anomalous exterritorial colony of persons of different nationalities, having unity in relation to the Turkish Government, but altogether devoid of such unity when examined by itself; the consequence being that its members continue to preserve their nationality and their civil and political rights just as if they had never ceased to have their residence and domicile in their own country." To this statement of Lord Watson it may be added, as that distinguished judge would have been ready to add had it been necessary, that the members of the territorial colony, American, English, or other and their descendants, preserve their nationality and civil and political rights just as if they had never ceased to have their residence in their own country. Such a statement would not of course be applicable to a country where similar capitulations do not exist. The above statements are in my opinion quite correct, and I add that I know of no writer who contradicts them, while I can produce, as indeed I do in the article referred to, many authorities who agree with them. |