THE Department of State was notified by the Turkish Ambassador to the United States on September 10, 1914, that: "The Ottoman Government has abrogated, as from the first of October next, the conventions known as the Capitulations, restricting the sovereignty of Turkey in her relations with certain powers. All privileges and immunities accessory to these conventions or issuing therefrom are equally repealed. Having thus freed itself from what was an intolerable obstacle to all progress in the Empire, the Imperial Government has adopted as the basis of its relations with the other powers the general principles of international law." Ambassador Morgenthau was promptly instructed to notify the Sublime Porte that the United States did not acquiesce in the attempt of the Imperial Government to set aside the Capitulations by a unilateral act having no legal effect, and that it reserved the right to make further representations on the subject.

During the World War Turkey was able in large measure to maintain its sovereignty in internal affairs, having constrained Germany and Austria-Hungary to assent to the abrogation of the Capitulations as part of the price of its participation in the war. After the armistice of Mudros of October 31, 1918, the Entente Allies revived the Capitulations in the areas under their control, though the Nationalists under Mustapha Kemal regained full freedom of action in most of Anatolia and even in Eastern Thrace.

In their negotiations with the powers represented at Lausanne the Nationalists refused categorically to consider any proposition tending to revive the régime of the Capitulations. They stood resolutely on Article Six of their Magna Carta, the National Pact drawn up by Mustapha Kemal and other patriots at Sivas on September 13, 1919. This article read as follows:

"With a view to assuring our national and economic development, and giving the country a more regular and more modern administration, the signatories of the present pact consider the possession of complete independence and liberty as the sine qua non of our national existence. In consequence, we oppose all juridical or financial restrictions of any nature which would arrest our national development. The conditions of settlement of our proved debts shall likewise not be contrary to these principles."

What, then, were these juridical and financial restrictions which were considered "an intolerable obstacle to all progress in the Empire?" What were the special privileges enjoyed by foreigners under the régime of the Capitulations?

First of all, it should be noted that the term capitulations has a significance entirely apart from its usual military meaning. It denotes the various early privileges accorded to foreigners by the Sultan in the form of imperial ordinances or treaty clauses which were colloquially designated as capitula, namely, chapter headings. It in no way implied a yielding under pressure, or surrender.

The régime of the Capitulations has sometimes been characterized inaccurately as one of exterritoriality, implying that foreigners by a legal fiction were on their own territory and subject only to their own laws. This was true, of course, of the early colonies of Genoese in Galata, and of the Venetians in Constantinople, who had been permitted by the Greek Emperors to reside in their own precincts governed by their own laws and officials. It ceased to be true when under the Turks they lost these special residential privileges and were granted only certain specified privileges. These were more correctly to be characterized as immunities of jurisdiction such as were subsequently conceded to other foreigners.

Among these immunities of jurisdiction enjoyed by most foreigners prior to 1914 was an exemption from the jurisdiction of Turkish courts and police in many matters. The Turkish tribunals had no jurisdiction in suits between foreigners. Even in litigations between foreigners and Ottoman subjects or in cases growing out of some offenses against public order they were sometimes denied jurisdiction. The United States went very far in denying the right of Turkish courts to judge American citizens, though with indifferent success owing to a reasonable divergence in the interpretation of the Turkish, English, and French versions of the Treaty of 1830 between Turkey and the United States.

After the sweeping judicial reforms of 1856 and the concession of the right of foreigners to own real estate, the various treaty powers--the European powers in 1868 and the United States in 1874--formally consented to the trial of foreigners by Turkish tribunals and to domiciliary visits by the police under certain circumstances in remote parts of the Empire. This concession amounted to a considerable breach in the régime of the Capitulations.

The powers retained, however, an effective control over Turkish tribunals through the provision that rendered a trial involving a foreigner null and void unless held in the presence of his Consular Dragoman. The signature of this official was required not only to the procès-verbal of the trial but to every document in the proceedings. The Dragoman was thus a most important functionary who appreciated himself more highly than did the Turks. The practical result of his enormous powers was virtually to paralyze the action of Turkish courts and permit their decisions to be annulled by the powers whenever it suited their pleasure.

Foreigners were so completely exempt from the jurisdiction of the Turkish police that they came, in effect, to be regarded as subject to no law inasmuch as none of the powers could attempt any general or special police surveillance over their own nationals. Consciously or unconsciously foreigners not infrequently indicated an utter disregard and contempt for many of the police regulations. The Turkish authorities often found themselves quite helpless under most trying and exasperating circumstances.

The most notorious instance of this helplessness was the impotence of the police in dealing with the hotels, cafés, gambling houses, saloons, dance-halls, and other pleasure resorts which were owned by foreigners and flourished insolently in defiance of Moslem sensibilities. Not that the powers deliberately protected dens of vice, but that the owners and inmates, by reason of the provision of the Capitulations requiring the consent and actual presence of consular representatives on the occasion of domiciliary visits by the police, were able to impose on the Turkish authorities. The proceedings were so complicated and so likely to give rise to controversies of a highly disagreeable nature that it was generally found more prudent to refrain from any interference with these foreign establishments. The result could not fail to be deplorable, and the so-called European quarters in Pera and Galata degenerated into districts so degraded as to constitute a shameful commentary on European civilization. It has been said on reliable authority that this situation became even worse after the Allied occupation of the city in November, 1918. It may readily be appreciated why the Nationalists on taking possession of Constantinople endeavored to prohibit, in accordance with the prescriptions of the Koran, the sale of intoxicating liquors.

This general exemption of foreigners from the jurisdiction of Turkish police and tribunals naturally gave to the various foreign missionary and other philanthropic institutions a peculiarly privileged status. The instruction given in these schools and their varied activities were subject virtually to no supervision or control by the Turkish authorities. Many of them endeavored most conscientiously to avoid giving offense to Turkish sensibilities but in some instances they were unquestionable centers of propaganda, religious and political, over which the Ottoman Government could exercise no real control. Among the further peculiar privileges of foreign schools and like establishments was a general exemption from taxation and from certain customs charges. A special favor originally granted to a French monastery to import articles for "religious purposes" became the basis of the claim of many foreign missionaries and teachers to import valuable household goods free of duty.

Some of these religious communities, such as the Syrian Catholics, were placed under the protection of a foreign power. Many Ottoman subjects thus enjoyed a privileged status. Because of their exemption from the jurisdiction of the Turkish authorities the foreign religious and philanthropic institutions practically became places of asylum for many Ottoman subjects. This system--called the protégé system--meant that the various employees and dependents of foreign establishments, whether commercial or otherwise, were practically withdrawn from Turkish jurisdiction, and it grew into so great an abuse that there actually was a class of "hereditary protégés!" The Turkish Government tried to abolish the system in 1863, but without much success, because it soon found that trouble could best be avoided by raising as few questions as possible with foreigners who could always count on the vigorous support of their governments.

A galling servitude imposed on Turkey was the right of the powers to limit the customs duties. No matter how bad the state of its finances or the needs of home industries, Turkey could not alter its tariff at will. If any increase was permitted it was generally at the cost of special concessions exacted by the several treaty powers. A striking example of how this restriction operated was the practical monopoly enjoyed by the Austrian manufacturers of the fez, the national head-dress of the Turks.

Another serious restriction on Turkish sovereignty was the establishment of post-offices throughout the country by the great powers, namely, by Great Britain, France, Italy, Germany, Austria-Hungary, and Russia. This effectively guaranteed the "inviolability of correspondence" assured under the Capitulations but it also enabled many persons--including Ottoman subjects--to escape the rigors of the customs and of censorship. The loss of revenue to the Empire by the operations of these foreign post-offices could not fail to be considerable.

In view of all these varied restrictions on the sovereignty of Turkey it may readily be understood why the régime of the Capitulations became intolerable. It may not be so readily understood how this state of affairs originated and how these restrictions were progressively increased and strengthened. We must go back several hundred years for the answer.

Long before 1453 the general usage of the peoples bordering on the Mediterranean had permitted foreign merchants to carry with them their own laws and customs wherever they went. This practice prevailed also among the members of the Hanseatic League and even in England and Scotland. Attention has already been drawn to the fact that the Venetians and Genoese had enjoyed a complete immunity of jurisdiction within their own precincts prior to the capture of Constantinople by the Turks. And the Turks themselves before the conquest of the city had been permitted by the Greek Emperor to have their own community under the administration of a Cadi, in accordance with Moslem law.

When Mohammed the Conqueror entered Constantinople his immediate concern was to institute an effective system of administration adapted to the needs of his new subjects and calculated to give the government as slight trouble as possible. The fact that Moslems in all questions of personal status--that is to say matters relating to marriage and conjugal relations, paternity, affiliation, adoption, the capacity of individuals, guardianship, trusteeship, majority, interdiction, etc.--were entitled to the benefit of their own sacred law, the Sheri, made it reasonable that non-Moslems should enjoy a similar privilege. Four days after the capture of the city Mohammed assisted personally at the investiture of the new Patriarch, on whom he conferred the title of Mil'let Bashi--"head of the nation"--with sweeping powers of jurisdiction over the members of the Greek nation. The Patriarch was empowered to settle most of their disputes and to act as an intermediary between them and the Turkish Government in the capacity virtually of an ambassador. The Patriarchate was also the agency for the collection of taxes.

Similar powers were conferred in turn on the other non-Moslem communities, which inevitably became imperia in imperio where a vigorous national or autonomous spirit was fostered in antagonism to the unity of the Ottoman Empire. This militated strongly against the efforts of the Young Turks after the revolution of 1908 to bring about a genuine fraternization between all Ottoman subjects and to encourage the sentiment of a single national allegiance. So strong was this separate nationalistic loyalty among the different non-Moslem communities, that it was found necessary to grant them the right of proportional representation within the new Chamber of Deputies!

The essential point to emphasize with respect to the origin of the régime of the Capitulations is that these extraordinary privileges which were conceded by the Turks to their newly conquered subjects were not unwillingly extorted or grudgingly accorded. They were freely granted as being best adapted to the administration of the Empire and as being in harmony with accepted usage.

This system of governing the non-Moslem elements of the Empire worked very well on the whole and only broke down because of the growth and accentuation of nationalistic aspirations. Curiously enough, it was the Greek Patriarch who took the initiative in attacking the system by his action in breaking off relations with the Ottoman Government on March 9, 1919, in anticipation of the Greco-Turkish War.

To extend to foreigners similar rights to those granted to non-Moslem subjects was quite logical. General usage, we have noted, permitted foreign merchants to retain their own ways and laws wherever they went. This avoided much trouble and greatly facilitated commercial intercourse. The dissimilarity of legal ideas and of the religious sanctions that regulated in large measure their relations made it more convenient and advisable that aliens should carry on their affairs under the jurisdiction of their own officials, namely the consuls.

It was but natural for the Turks to permit the Genoese in 1453 and the Venetians in 1454 to retain many of the immunities of jurisdiction which they had enjoyed under the Greeks, though denying to them the right of residence in special precincts. As a matter of fact, the Venetians had obtained quite similar privileges two centuries earlier from Melek-el-Adel, the Sultan of Egypt, and also from the Turkish Sultan of Konia. It should be specially noted that these privileges were reciprocal in nature. Sultan Suleiman II formally confirmed in 1528 the immunities of jurisdiction long enjoyed by the French and Catalan merchants in Alexandria.

These were the prototypes, if not the direct sources, of the régime of the Capitulations. The treaty of 1535 between Sultan Suleiman and Francis I of France was legally the commencement of the régime which was established in perpetuo by the treaty of 1740, in contrast with earlier conventions which were deemed to remain in vigor only during the reign of the Sultan who signed them.

All subsequent treaties with Turkey were modelled on these two treaties of 1535 and 1740, and other nations claimed as favorable treatment as was therein accorded to France. And this is where the real difficulties of the Turks began: they were often compelled under pressure to make sweeping concessions limiting their sovereign rights. In conceding to all, under the most-favored-nation clause, what they were forced to yield to each nation in turn, they found that the Empire was being gradually strangled in its development as a free independent nation. No wonder that they desired in 1914 to get rid of what they termed "an intolerable obstacle to all progress in the Empire."

Care should be taken to distinguish clearly the peculiar immunities acquired under the Capitulations from the special economic privileges acquired in other ways. Many important concessions like the Bagdad Railroad were granted for political and other reasons, not always of a savory nature. Valuable monopolies such as the Régie des Tabacs, and the Société de Zuais in Constantinople, Smyrna, and elsewhere, were created, quite as much to the profit of private individuals as to the profit of the state.

Whenever the government was in financial straits--and that was its normal condition--it was induced to hypothecate various revenues in order to obtain ready cash in the form of loans. In this way came into existence the Dette Publique Ottomane created by the Imperial Iradé termed Mouharrem of December 20, 1881. This institution which was designed to protect the interests of the foreign creditors of Turkey and which was controlled by Great Britain, France, Germany, Italy, and Austria-Hungary, became the most flourishing and powerful institution in the Empire. It collected at their source many of the taxes assigned to its service and acquired a large authority in fiscal matters all over the Empire.

In the light of all these various judicial and economic restrictions on the internal sovereignty of Turkey it is natural that the Turkish Nationalists should have insisted so tenaciously on the complete abolition of the Capitulations and of all other special privileges. They maintained that in order to accomplish the regeneration of the nation Turkey must be permitted to regain its full independence as a sovereign nation. They claimed the right of self-determination promised by President Wilson in the twelfth of his famous Fourteen Points. They were very properly distrustful of certain of the proposals of the powers represented at the Lausanne Conference which tended to revive in disguised forms some of the reprehensible features of the old régime.

But the difficulties in the way of progress in the Empire are not by any means all of external creation. Many Turks realize that the machinery of government and the administration particularly of justice must be thoroughly reformed in order to afford adequate guarantees to foreigners. Few would deny the utter demoralization of the Empire under the baleful reign of Abdul-Hamid II, or that the succession of wars since 1908 rendered the application of any extensive reforms practically impossible. Nor is there evidence in the past of a strong desire on the part of any of the Great Powers to encourage reforms that would make Turkey strong and independent. It is clear, in any event, that the internal situation of Turkey has long been such as to render excessively difficult its regeneration and rehabilitation among the nations.

It would be unfair to doubt the desire and the honest purpose of the Nationalists to afford adequate guarantees to foreigners for the protection of their persons and property. Nor can it be denied that the Capitulations have been abrogated once and for all. Whether it has been done legally or not does not much matter, as only force can revive what force alone was able to maintain. But it may fairly be asked whether the Turks are really prepared in their own interest to assume complete responsibility at the present moment for the adjustment of all the very complicated questions affecting foreigners. Do they not require an interval of at least five years for the accomplishment of the necessary judicial and political reforms to enable Turkey to deal adequately with these matters?

The Turkish delegates at Lausanne have indicated a liberal, wise attitude in conceding the right of foreigners to continue to settle all matters of personal status according to their own laws and procedure. This removes at once a large category of controversies from Turkish tribunals. With respect to other matters coming before these tribunals it would seem desirable during this transitional period in the development of the country to accept the proposal of the powers at Lausanne to permit several foreign legal experts to assist in the application of judicial reforms and in the administration of justice. Such a proposal is quite moderate and in the interest of the Turks. The legal experts are not to act as judges but as advisors, representing no particular nationality, who may see that every facility shall be accorded in cases affecting foreign interests. The provision that the consent of these functionaries should be secured by the police before making domiciliary visits on foreigners would not seem unreasonable. Foreigners properly may ask for some slight guarantee against arbitrary interference with their persons and property during a very brief transitional period of five years while waiting for satisfactory evidence of the ability of Turkish officials and institutions to meet adequately all international obligations. This should really serve the best interests of Turkey. A modus vivendi in judicial matters should be found to the advantage of all concerned, pending the achievement of the profound reforms required after centuries of misgovernment and of diplomatic entanglements. There should at least be an agreement that, in case of serious controversy over judicial decisions affecting foreigners, recourse might be had to some simple form of arbitration made readily accessible to all parties concerned.

With respect to economic matters the Turks would seem to be well within their rights in demanding that ancient servitudes should be abolished. Special concessions and privileges obtained by diplomatic intrigues, bribery or unfair coercion should not be revived, particularly when they served the ulterior political end of "pacific penetration." The proposals of the European powers represented at Lausanne concerning these dubious matters could not but arouse the distrust and apprehensions of the Turks. It is interesting to note the terms of Article 94 of the draft of the treaty which Turkey was asked to sign:

"All conventions or contracts relating to concessions made between Turkey and Allied subjects, and any agreements and decisions in regard thereto, prior to October 29, 1914, are also confirmed if they have begun to be put into operation, or have formed the object of agreements between the Ottoman Government and an Allied Government, notwithstanding the non-fulfilment by Turkey of all the conditions requisite for their final confirmation."

The last phrase "notwithstanding the non-fulfilment by Turkey of all the conditions requisite for their final confirmation" would seem clearly to cover the case of the alleged concession to France for the construction of the Samsoun-Sivas railroad now included under the "Chester Contract." It is an interesting illustration of the political-economic interests and rivalries which have so long caused the Turks embarrassment.

With respect to its debts and its financial needs Turkey will evidently be compelled like any other debtor to give important guarantees for the adequate protection of the interests of its foreign creditors. The Nationalists are apparently willing to permit the Dette Publique to continue to function under new conditions favorable to all interests. Nowhere was the administrative incapacity of the Turks more evident than in the finances of the Empire. Corrupt officials of course were partly responsible for the lamentable state of affairs, but there was a gross inefficiency of administration which will require considerable time to reform. The Nationalists know this and are wise in making these concessions to the Dette Publique if for no other reason than to invite confidence in future loans which may be required for national needs.

With respect to the foreign religious, educational and other philanthropic establishments in Turkey, the proposal of the powers at Lausanne that "there shall be no interference with the free working of existing establishments," and that "they shall be subject to Turkish law on the understanding that the special character of the institutions shall not thereby be impaired," may also arouse the apprehensions of the Turks. They have good reason to distrust any foreign establishments serving in any way as political agencies and affording at times pretexts for diplomatic intervention in the internal affairs of Turkey. Philanthropic institutions should be disassociated as far as possible from any suspicion of serving political ends. They should stand or fall on their own intrinsic merits. International altruism should keep itself entirely pure and should not rest on coercion of any sort. Certainly in matters of religion this element of political pressure should be eliminated.

No nation has a greater interest of this kind at stake in the Near East than the United States. Its missions, schools, hospitals, and orphanages represent a material investment amounting to over ten million dollars. These American institutions have been carried on for many years without any just suspicion attaching to them of being political agents or centers of propaganda. While they unquestionably benefited by the privileges of the Capitulations they also benefited by the tactful, lofty spirit in which they were conducted. Through them the Turks came to have a genuine respect for Americans in general and a desire for the support of the United States in the development of the country's resources and in the work of its moral regeneration. The cynics may possibly sneer at the recent grant of the "Chester Contract" as proof that the United States is interested mainly in the commercial exploitation of Turkey. But there is another side to the matter entirely independent of the exact nature of this important concession. It is that the Turks are seeking to free themselves from the economic servitudes imposed by Europe and that they turn to the United States with full confidence in its political disinterestedness and in the good-will as well as the ability of Americans to assist effectively in the task of national reconstruction.

The United States together with the European Powers must accept the fact of the abrogation of the Capitulations and must seek through the negotiation of a special treaty to secure adequate safeguards for legitimate American interests. Enjoying as it undoubtedly does the full confidence of the Nationalists, it is in a position of high advantage to render most important services in the rehabilitation of the Turkish nation and thereby to serve civilization and the best interests of the whole world.

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  • PHILIP MARSHALL BROWN, Professor of International Law in Princeton University, Secretary of the American Embassy, Constantinople, 1907-1908, Minister to Honduras, 1908-1910
  • More By Philip Marshall Brown