heretofore steadily made, in support of those schools is wholly divested of sectarian preferences, and would be exerted with equal earnestness in support of the schools in Turkey of any other and all other American charitable or religious associations.

"And, further, in view of the general question of the rights of citizens of the United States in Turkey, it is important to maintain that the rights of extraterritoriality, claimed to a greater or less extent for these schools, are part of the same system by which rights of extraterritoriality are claimed by this government in Turkey (1) for our citizens in certain juridical relations, and (2) for our diplomatic and consular establishments, so as to enable them to extend protection to the extent to which such protection is enjoyed by other Christian embassies, legations, and consulates in Turkey. The basis of this jurisdiction may be thus stated:

Constantinople and the domain of which it is the capital have, from a very early period down to the present day, been populated by distinct and diverse nationalities, to which rights of government by their own especial laws have always been conceded. We have this. thus conceded (during the Greek empire) by Cassiodorus, the secretary of Theodoric the Great: Romanis, Romanus judex erit; Gothis, Gothus; et sub diversitate judicum una justitia complectabatur.'

"When the Ottoman Porte was established by conquest in Turkey the same system of recognition and assignment of self-government to each distinct nationality was not only adopted but extended. Not only were Armenians and other nationalities whom the Turks, after the conquest, found in their domains, recognized as entitled to a large measure of local self-government, but similar privileges were from time to time accorded to foreign Christian nations. For this course on the part of the Porte-a course which has led to the nonapplication to Turkey of the principles of territorial sovereignty generally recognized elsewhere the following reasons may be given:

"When the Porte took possession of Turkey its population was largely made up of Christian nationalities to which local self-government had been previously more or less assigned. These nationalities could not be expelled from Turkey without expelling the population by which its fields were tilled and its business exchanges conducted. On the other hand, the Porte could not undertake the municipal control of such nationalities, nor the settlement of their business differences, nor the supervision of their religious functions." Those

who rejected Mohammed were, to the Turk, not merely enemies, but Giaours unclean persons-persons with whom the Turk could have no business or even social relations. Hence they were to be excluded from Turkish armies. While they might be taxed for imperial purposes, they were, so far as concerns their own particular interests, to determine themselves the taxes which they were to bear. In Turkish

schools their children could not be received; and, therefore, they were entitled to have schools of their own, in which the teaching was to be distinctively Christian, and which were regarded as part of the system of diverse nationality recognized by ancient usage and essential to the existence of the Empire. And so it was with regard to the settlement of business disputes. As the Porte, or its courts, whatever they might have been, could not, without abandoning its fundamental doctrine of creed isolation, take cognizance of business disputes between unbelievers, these disputes must be settled by courts of the nationalities to which these unbelievers respectively belonged. And if questions of religion were involved, such disputes must be referred for determination to the head of the church to which the disputants belonged.

"This demarcation of jurisdictions will not appear strange when it is recollected that a similar policy and practice are adopted in this country by the dominant race toward the North American Indians. We can scarcely rate the incapacity of these Indians to adopt and apply our institutions as greater than the Ottoman conquerors regarded the incapacity of the Christian nationalities in Turkey at the conquest to adopt and apply Ottoman institutions, nor regard the political capacity of these Indians as of a less grade than the Ottoman conquerors regarded that of their new Christian subjects. And we continue to do for the Indians what the Ottoman conquerors of Turkey did for the Christian races who at the conquest were found there. Just as the Ottomans professed themselves unable to understand the laws of those Christian races, or to establish over them Moslem law, therefore leaving them to their own courts, so we, declining to absorb Indian law into our own, or even to apply to Indians our own municipal jurisprudence, leave the adjudication of questions arising in Indian tribes to the determination of their tribal law.

"This renunciation by the Porte of legislative and judicial control over Christian nationalities, which was worked into the traditions of the Empire, acquired not only greater municipal force but more fully recognized international validity, when the great European powers sent to Turkey not only diplomatic and consular agents, but merchants, to conduct business with the Christian subjects of the Porte, and missionaries to minister not only to persons of their own nationality but to whomsoever might apply. These visitors could not be repelled. Turkey could not afford to quarrel with the leading sovereigns of civilization, nor could she preclude that civilization from pouring, through its agents, into her domains. Those agents came and remained in great numbers; not merely merchants and capitalists, but religionists, devoted to the work of maintaining worship, according to their views, with hospitals and schools. To these energetic and influential settlers Turkish law, for the following reasons,

was even less applicable than to the native Christians. The newcomers were protected by foreign powers whom Turkey was unwilling to offend; and they belonged to Western races who, from their idiosyncrasies, can not be fused with the Orientals. There are, to adopt Lord Stowell's language, frequently cited with approval in the United States (The Indian Chief, 3 C. Rob. Adm. Rep. 29), immiscible,' so that by no comity of international law can the institutions of the one be applied to the other. No foreigner with ordinary business capacity or ordinary self-respect would live in a country where he could not be heard in the local courts of justice, or, if he were heard, it would be as degraded by the disabilities of an inferior and abject race. Yet, on the other hand, the presence in Turkey of foreigners of business capacity and of self-respect is essential to the maintenance of the Empire. By them its monetary affairs are conducted, its soldiers drilled, its schools taught in all that concerns liberal civilization, and its relations with the outside world regulated. Turkey could not, and can not now, be expected to surrender the policy which, nominally at least, treats the Ottomans as the dominant race on her soil; and the only alternative open to her has been, therefore, to permit foreigners of the classes so necessary to her political prosperity to enjoy, as far as practicable when living within her borders, their own distinctive institutions. The Porte could not exist if it were to surrender the political exclusivism of Islamism. It could not exist, also, if it were deserted by those foreigners to whom its progress in civilization is due. Hence the local self-government conceded to foreign communities in Turkey, evidenced in the old capitulations and gradually extending to meet the exigencies of the times, is a necessary emanation of the political and social conditions of that Empire as they now exist. It is for the legation of the United States at Constantinople to see that American citizens in Turkey enjoy in their various relations the rights of extraterritoriality which, under the system I have outlined, are among the essential conditions of the continuous political existence of Turkey under its present dynasty.

"The most important of the prerogatives growing out of these conditions is that of the distinctive jurisdiction assigned to our ministers in Turkey under treaty, and as applied by Revised Statutes, section 4125, which gives these officers such jurisdiction as is permitted by the laws of Turkey or [in the alternative] its usages in its intercourse with the Franks or other Christian nations.' By the same standard of usage, as evolved by the processes above stated, are to be determined the territorial rights exercised by our legations and consulates in the East, and the prerogatives of American missionaries, under the limitations above mentioned.

"The effect of the treaty of 1830 on this extraterritoriality is thus stated by Mr. Cushing (7 Op. 567, 568): Commerce, in the treaty,

means any subject or object of residence or intercourse whatsoever; ... as to all civil affairs to which no subject of Turkey is a party. Americans are wholly exempt from the local jurisdiction; and, in civil matters as well as in criminal, Americans in Turkey are entitled to the benefit of "the usage observed towards other Franks.” "I think the "causes spoken of in the second sentence of the fourth article are of the same nature as to parties as the "litigations and disputes" mentioned in the first sentence-that is, between citizens of the United States and subjects of the Porte; the meaning of which is, that causes between such parties under five hundred piasters in amount are to be decided by the ordinary local magistrates, assisted by the dragoman, and causes above that amount by the Porte itself—that is, the Sultan or his appropriate minister, with intervention of the minister or consul of the United States.

“My conclusions in this respect are founded, first, on the phrase in the second article which engages that citizens of the United States in Turkey shall not be treated in any way contrary to established usages." What are the "established usages?" Undoubtedly the absolute exemption of all Franks, in controversies among themselves, from the local jurisdiction of the Porte.

"I will not repeat here what has been said in previous communications as to the ground or principle of the right of extraterritoriality asserted by, and fully conceded to, Franks generally-that is, Western Christians in Turkey.

"One of the distinctive incidents of this extraterritoriality is thus noticed by Mr. Marcy in his note of September 26, 1853 (Dig. Int Law, § 198 [see supra, § 287, II. 728]):

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'By the laws of Turkey and other Eastern nations the consulates therein may receive under their protection strangers and sojourners whose religion and social manners do not assimilate with the religion and manners of those countries. The persons thus received become thereby invested with the nationality of the protecting consulate. These consulates and other European establishments in the East are in the constant habit of opening their doors for the reception of such inmates, who are received irrespective of the country of their birth or allegiance. It is not uncommon for them to have a very large number of such protégés. International law recognizes and sanetions the rights acquiesced [sic acquired?] by this connection.

"In the law of nations, as to Europe, the rule is that men take their national character from the general character of the country in which they reside; and this rule applies equally to America. But in Asia and Africa an immiscible character is kept up, and Europeans trading under the protection of a factory take their national character from the establishment under which they live and trade. This rule applies to those parts of the world from obvious reasons of policy,

because foreigners are not admitted there as in Europe and the Western parts of the world, into the general body and mass of the society of the nation, but they continue strangers and sojourners, not acquiring any national character under the general sovereignty of the country. (1 Kent Comm. 78, 79.)'

“In a report to the Institute of International Law on this subject, by M. F. de Martens (Annuaire, 1882-'83, p. 225), is found the following statement:

D'autre part, les gouvernements musulmans eux-mêmes n'ont jamais insisté sur leur pouvoir territorial pour juger les procès mixtes entre sujets des États chrétiens. Les contestations entre giaours étaient trop impures aux yeux des musulmans pour qu'une intervention de leur part fût permise.'

"And in the same volume, page 231, M. J. Hornung says:

"Cette exterritorialité des colonies européennes et américaines trouve sa justification dans les défauts de la justice et de la police locale et dans le déplorable état des prisons. Souvent, en outre, les pays de l'Orient sont encore, au point de vue religieux, dans leur droit et leur justice, ce qui soit dit pour leur défense-était encore le cas, dans les pays chrétiens, il y a cent ans ou même moins. Ainsi, devant les tribunaux ottomans de l'empire turc, le témoignage des chrétiens n'est pas, en fait, admis sur le même pied que celui des musulmans, le cheikulislam n'ayant pas encore donné son autorisation aux cadis. (Voir le rapport de Sir Travers Twiss dans le tome V de l'Annuaire.)'

"Concessions by the sovereigns of Constantinople and the region which it dominates of extraterritorial privileges were issued by the Christian Emperors to Venice early in the eleventh century; to the Amalfians in 1056; to the Genoese in 1098; to Pisa in 1110. The charters granting these privileges were called 'capitulations,' from the fact that they were divided into chapters; and this title they continued to hold after the Moslem conquest. When the Turks took possession of Constantinople, after the conquest of 1453, they found the Genoese in possession, under a specific capitulation, of the town of Galata, which was surrounded by an intrenched camp. This capitulation was confirmed by Mahomet when master of Constantinople. Capitulations to Venice, dated October 2, 1540, granted to Venetians the right of having all differences between Venetians in Turkey decided by judges to be appointed by Venice, while to the trial before Turkish courts of differences between Venetians and Turks, the presence of a Venetian interpreter was an essential condition. In the same capitulations was given to Venice the right of having permanently at Constantinople a magistrate, as a sort of Venetian viceroy, by whom general supervision over Venetians was