"I have inclosed the above documents in this instruction because (1) they indicate the basis on which rests the extraterritoriality in Turkey of our citizens both as to religious liberty and as to distinctive judicial organizations, and (2) these documents may not be readily accessible in Constantinople. From them you will see that there is no necessity of basing the claim of American missionaries in Turkey on the French capitulations. They are maintained far more effectively under the treaties of Paris and of Berlin, under the Turkish decrees which preceded these treaties, and under the settled customs of the Porte.

"The construction given by Turkey to these treaties, and especially to the capitulations to Great Britain quoted above, is evidenced by her continued protection of the American missions in Turkey, with their hospitals and schools, in which Turkish patients are received and Turkish children instructed. These missions have been in existence for many years. They have now connected with them six colleges, forty-three seminaries and high schools, attended by two thousand pupils, and five hundred primary and secondary schools with over ten thousand pupils. Of these schools Mr. Hyde Clarke, in the Journal of the British Statistical Society for December, 1867, page 526, thus speaks:

"By the assistance of American funds and the devoted exertions of the American missionaries, men and women, a great influence has been exerted in the Armenian body generally; their services have not been so much devoted to theological propagandism as to rendering service as physicians, teachers, and social reformers.' In these institutions a million of dollars, sent from the United States, has been invested, and from the United States their pecuniary support as well as most of their teachers are obtained. For more than half a century Turkey has seen these funds flow in, these schools built, these hospitals in beneficent operation, these children in process of instruction. During the sixty years that American schools have existed in Turkey, so it is stated in an official communication from the American Board of Commissioners of Foreign Missions, which has these missions in charge, 'it (Turkey) has not only not interfered with or objected to them, but it has repeatedly protected them against unlawful aggression on the part of ill-disposed persons.'

"The protection by Turkey of the schools established by other religious communions on Turkish soil, a protection which has existed from a time coincident with the establishment of such schools, shows that Turkey regarded them as among the incidents of the territorial rights assigned by the capitulations to those religious communions. We have, therefore, in this protection not merely a contemporaneous construction of the Turkish capitulations, treaties, and edicts, but a

construction so continuous that it has the force of settled law. And this construction is strengthened by the fact that the Porte has ordered that no duties should be charged on goods coming to the American missions or schools. There could be no stronger proof that these missions and schools are regarded by Turkey as having not merely a protected but a favored existence on her soil.

"It has been argued by high authority that the right on the part of American missionaries in Turkey to the continued maintenance of their churches, hospitals, and schools may be rested on the favorednation clause of our treaty of 1862 with Turkey, applying to us privileges granted to other sovereignties. Turkey has claimed that this treaty has terminated by notice; and though there is little strength in this contention, it is not necessary that the question should now be raised. The rights of the missionaries above noticed find abundant support in ancient usage and in the Turkish legislation prior and consequent to the treaties of Paris and Berlin, applied, as this legislation has been, in such a way as to grant what are virtually charters to the missions in question for their hospitals and schools.

"From what has been said it will be seen, therefore, that the right of Protestant citizens of the United States to conduct their missions, chapels, hospitals, and schools in Turkey in the way they have been heretofore conducted, rests on the privileges of extraterritoriality granted to Christian foreigners in Turkey, as expanded in the present case by usage established by Turkey, so as to enable persons of Turkish nationality to be received in such hospitals and schools.

"So far as concerns the right of Americans, whatever may be their religious faith, to protection in the exercise of that faith, the right rests on the concessions of extraterritoriality above stated. So far as it concerns their right to receive in their hospitals and schools (otherwise than as servants) persons of Turkish nationality, it rests on usage, amounting, from duration and the incidents assigned to it by law, to a charter. It is not, however, claimed that as to such persons of Turkish nationality extraterritorial rights in American missions can be acquired. They must remain subject to the sovereignty of the Porte, which is entitled to prescribe the terms on which they can be permitted to attend such missions. It is, therefore, with peculiar satisfaction that the Department learns that, in part through the instrumentality of Mr. Pendleton King, as chargé d'affaires, an arrangement has been effected with the Turkish authorities by which the missions are enabled to pursue, as heretofore, their meritorious, unselfish, and beneficent work among Turks in Turkey.

"I inclose herewith, as a matter of information, an opinion by Mr. Edwin Pears, lately forwarded to this Department by American citizens residing in Constantinople, as to their legal rights. Mr. Pears

is well known as president of the European bar at Constantinople, and as an accomplished lawyer and historian."

Mr. Bayard, Sec. of State, to Mr. Straus, min. to Turkey, Apr. 20, 1887,
For. Rel. 1887, 1094.

EXHIBIT E.

(The other exhibits attached to the above instructions are sufficiently noted in the text, and they may also be seen in For. Rel. 1887, 1101 et seq.)

The following is a translation in the Department of State of a passage from an article by Mr. Ed. Engelhardt in the Revue de droit international et législation comparée, vol. xii, p. 373:

"It remained for the Congress of Berlin to strike the most effective blow at the Porte's autonomy respecting religious government. By article 62 of the treaty of July 13, 1878, the Turkish Government not only recognized the existence in the foreign diplomatic and consular officers of a right of official protection over the ecclesiastics, pilgrims, and monks of their nationality, and over their establishments; it bound itself generally to maintain the principle of religious liberty, thus rendering itself liable to a control from which its own Mahometan establishment could not escape.

"The sequence of the steps is clear; foreign intervention was first limited to the holy places, to the priests officiating in them, and to foreign visitors. It afterwards extends to the other foreign persons in holy orders, both of the Frankish or Catholic religion, and of the Greek faith; next comes the Ottoman Christians, the patronage of whom, unjustly contended for by Russia, has devolved upon the great powers; lastly, the Mussulman religion itself is threatened in its ancient and jealous independence.

The autonomy of Islam, regarded solely from the religious point of view,
had already been impaired at the time of the discussion of the fourth
paragraph of the preliminaries of peace in 1856. The four deliber-
ating powers, England particularly, had indicated the interest they
felt in the suppression of the Mahometan law which punished apos-
tasy and public blasphemy by death, representing that inasmuch as
Turkey was about to form part of the European concert it was im-
possible to acquiesce in the maintenance of a rule which was of the
character of an insult to every civilized nation.
Moreover, during the years 1856 and 1857 the British Embassy had
more than once officially interceded in behalf of Mussulmans who had
been converted, or were about to be converted, and whom the local
authorities were prosecuting as criminals, and long diplomatic cor-

a “According to an interpretation based upon contemporary facts the clause of the treaty of Kutchuk-Kainaidji, by which the Porte promised to protect the Christian religion, only applied to the Christian provinces of the Danube and of the archipelago which Russia had occupied and which she restored to the Sultan." (Wharton, Int. Law Digest, 2d ed., III. 865.)

Despatches from the British embassy, 4th, 18th, and 26th Feb., 5th Mar.. 25th Apr., 30th May, 1856.

respondence had been exchanged on this delicate point of foreign intervention.a

"After the treaty of Berlin, so delicate a treatment was not deemed necessary, and Europe was the spectator of an incident which in certain respects recalled the adventure of which Prince Mentchikoff was the hero in 1853. Towards the close of the year 1879 the Turkish police arrested a mollah who had assisted an Anglican missionary in translating Christian works hostile to the Mahometan faith. In the eyes of the followers of Islam a more culpable act could not be conceived or one more odious than that of a priest of the national religion lending his personal assistance to a work of propagandism directed against that religion.

"Ahmet Tewfik Effendi was therefore condemned as proven guilty of a
crime defined by the law of the land.

"The English embassador, whose intervention in this case had been asked
by the agent of the London Church Missionary Society, did not con-
tent himself with intervening in behalf of his fellow-subject, who
had himself been put under examination and arrest; he demanded
of the Porte the immediate release of the ulema as well as his
immunity from all punishment, alleging the liberty of conscience
which the Sultans had promised their subjects, and the religious
liberty embodied in article 62 of the treaty of Berlin." (Note of Sir
II. Layard to the Porte, dated December 24, 1879.)
The ultimatum of Sir H. Layard was successfully supported by the
representatives of Germany, Austria-Hungary, and Italy.

66

"It would scarcely be possible to show more clearly that to the abdication of judicial functions, a result of the first capitulations, there had succeeded in Turkey a second and not less grave abdication, that of absolute autonomy in religious matters."

For citations of the instruction of April 20, 1887, see, particularly, Mr. Blaine, Sec. of State, to Mr. Hirsch, min. to Turkey, No. 263, Dec. 14, 1891, For. Rel. 1891, 765; Mr. Foster, Sec. of State, to Mr. Thompson, min. to Turkey, No. 3, Nov. 29, 1892, For. Rel. 1892, 609.

6. SCHOOLS.

$ 871.

"I thank you for the note which you addressed to me on the 12th instant, by which I am informed that the Sublime Porte, in its extreme desire to be agreeable to the government of the United States, and to give to it a fresh proof of the liberal spirit which guides the Turkish government in its relations with the United States, has just decided the question of the Robert College to the satisfaction of the United States citizens interested therein, and that His Majesty the Sultan has made a decree which authorizes Dr. Hamlin to build a college on the ground which was first selected by him. “ Mr. Morris, at Constantinople, will be instructed to assure the

a Despatches from the British embassy, 23 Sept., 1856, 26 Nov., 1857, 14 Aug., 1860.

Sultan's government that the United States highly appreciate the comity as well as the justice which mark this proceeding."

Mr. Seward, Sec. of State, to Blacque Bey, Turkish min., Jan. 20, 1869,
MS. Notes to Turkey, I. 31.

In July, 1888, the president of Robert College, under instructions from the trustees in New York, applied to the Ottoman government for permission to erect an additional school building as well as a dwelling house for the president. On examination of the original iradé for the erection of the college and the Ottoman laws regulating the construction of buildings, it was found necessary to apply for an iradé for the additional buildings and to file plans and specifications. The Sultan's iradé was issued May 6, 1889.

Mr. Straus, min. to Turkey, to Mr. Blaine, Sec. of State, No. 194, May 10, 1889, For. Rel. 1889, 717.

An error which was afterwards discovered in the iradé was duly corrected by the Ottoman Government. (For. Rel. 1890, 769.)

In the school law promulgated in 1869 there are only articles 129 and 130 which relate to schools conducted by foreigners, of which the following is a translation:

"Second category-Free schools.

"ARTICLE 129. The free schools are those founded by the communities or by private Ottoman or foreign subjects. The instruction is either gratuitous or by tuition, and their expenses are covered by their founders or by the vacaufs (a trust foundation in mortmain for a charitable or pious purpose) to which they are attached.

"The foundation of free schools shall be authorized in the provinces by the governor-general or by the academical council, and at Constantinople by the ministry of public instruction.

"This authorization will not be given but under the following conditions:

"(1) The teachers and professors must be furnished with a certificate of capacity, or diploma issued by the ministry of public instruction or by the academical council of the locality.

"(2) There shall be no teaching against politics and morals. To that effect the program of teaching and the text-books in the free schools must bear the approbation of the ministry of public instruction or of the academical council of the locality.

"Any school opened without these formalities will be closed.

"The principals of the said establishments will be bound to get the certificates or diplomas. Their professors may be provided, legalized by the ministry of public instruction or by the academical council.