No. 454.
Mr. Hunter to Mr. Brown.
Washington, September 11, 1871.
Sir: I acknowledge the receipt of your dispatch No. 15, of the 12th ultimo, with inclosures, and thank you for the interesting and valuable information it furnishes upon the existing state of Turkish law in relation to the tenure of real estate by foreigners.
A reason which has heretofore disinclined this Department to accept the protocol prescribed as the condition of our citizens obtaining the benefit of the new law, is the provision under which citizens in localities distant more than nine hours from the residence of a consular agent may be judged by the council of the parish or by the tribunal of the caaza. This is apparently in conflict with Article IV of the treaty of May 7, 1830, as understood by the Ottoman government, and perhaps more clearly to the practical interpretation which, we have put upon it. We cannot accede to the protocol under these circumstances without the advice and consent of the Senate. A similar question arises in respect to a subsequent provision, authorizing our citizens, in any part of the empire, to submit spontaneously their suits to the Turkish tribunals. While such rights of exterritoriality as they possess have doubtless been obtained mainly for the benefit of the citizens concerned, and while, as in general, a party may waive a provision introduced for his own benefit, this principle is not applied in cases involving public policy, such, for example, as trial by jury for capital offenses. It may well be, therefore, that a citizen cannot waive a right given by the existing treaty, unless that waiver be sanctioned by the authority competent to ratify a new treaty.
It may well be doubted whether there is any such public interest in facilitating investments by our citizens in immovable property in the Ottoman dominions as to require the initiative to be taken without the advice of the Senate, and while the construction of the treaty of 1830 is still undetermined by that body.
I am, &c.,