Mr. Angell to Mr.
Day.
Legation of the United States,
Constantinople, May 31,
1898.
No. 141.]
Sir: A rather interesting case of law and usage
concerning the privileges of the dragoman of a consular officer has
occurred at Salonica, and I desire to make report to the Department of
the position which, after careful consideration, I deemed it proper to
take upon the issue raised.
[Page 1110]
The facts as given me by our consular agent at Salonica are briefly
stated, as follows:
An action was brought against G. Costa, dragoman of our agency, for
payment of 11,000 piasters alleged to be due in consequence of his
having indorsed a promissory note. The tidjaret (court) very properly
summoned Mr. Costa through the consular agency, thus recognizing his
official relation.
In accordance with custom and with law, the consular agent sent a second
dragoman and two assessors to the tidjaret to attend the trial, but the
president of the tidjaret refused to permit them to be present.
Thereupon Mr. Costa withdrew by way of protest. The tidjaret then
proceeded with the case, and condemned Mr. Costa in his absence. The
consular agent refused to accept the judgment, and returned it to the
court with the statement that he should refer the case to the
legation.
On December 8, 1897, I sent a statement substantially like the above to
the secretary for foreign affairs, and asked that the proper orders be
given to correct the mistake of the tidjaret and to secure to Mr. Costa
the kind of trial to which he was entitled.
It was not until April 14 that I received an answer. It was brief. It
affirmed the regularity of the judicial action, and added:
Mr. Costa being of Ottoman origin and according to article 9 of
the regulations for foreign consulates falling under Ottoman
jurisdiction in respect to his private affairs, the suit which
was instituted against him concerning a business matter must be
judged without consular intervention. Accordingly the refusal of
the consular agent to accept the judgment could not by any means
be justified.
On April 23 I made reply denying the soundness of the conclusions reached
by the Porte. I inclose a copy. When I presented it in person and
pointed out what I regarded as the misinterpretation of article 9 of the
regulations for foreign consulates, the secretary intimated that he had
not personally given attention to the matter and that perhaps a mistake
had been made.
I have received no rejoinder nor have I heard that any further
proceedings have been instituted against Mr. Costa.
I have the honor to be, sir, etc.,
[Inclosure to No. 141.]
Mr. Angell to
Tewfik Pasha.
Legation of the United States,
Constantinople, April 23, 1898.
No. 29.]
Sir: I beg to acknowledge the receipt of
the note which your excellency has addressed to me on the case of
Mr. Costa, dragoman of the consular agency in Salonica. It is No.
Gle. 27753/5, and of the date April 14, 1898, and is in reply to my
note of December 8, 1897.
It is to the effect that in the opinion of the Department of Justice
article 9 of the Ottoman “règlement relatif aux consulats étrangers”
is to be interpreted as sustaining the tribunal at Salonica in
refusing to Mr. Costa the presence and assistance of the consular
representatives and the assessors at the trial of a commercial
case.
May I venture to call the attention of your excellency to certain
considerations, which indicate that this opinion is not justified by
a careful study of the reglement.
[Page 1111]
Article 1 reads:
Les consulats peuvent employer des indigènes comme employés
privilégés au nombre fixé comme ci-après.
Clearly the dragoman officer is one of the “employés
privitégiés.”
The whole tenor of the réglement shows that the “privilège” thus
granted is the immunity belonging to the suite of the consuls.
Article 5, in assuring to persons temporarily in the service of the
consulate the same privileges as to permanent employees assures to
them “toutes les immunités que les capitulations leur
accordent.”
The “circulaire aux gouverneurs-généraux,” which is appended to the
règlement as an exposition of it, says in paragraph 3, speaking of
article 5:
Il a pour objet de ne plus laisser place à aucun malentendu à
ce sujet, en fixant, par exemple, de quelle manière les
premiers (les protégés temporaires) seront poursuivis en cas
de crime ou autres.
It then goes on to assure them the aid of the consul or his
representatives. For instance, it says:
L’instruction, les débats, l’audition des témoins à charge et
à décharge, et la réduction des mazbatas auront lieu,
conformément aux anciens traités, en présence du consul ou
de son délégue.
Such, it is clear, is the right of the “employé privilégé”, and the
dragoman is such.
Article 9 does, indeed, provide that Ottoman subjects in the service
of foreign subjects shall be subject to Ottoman jurisdiction
exclusively, in respect to their private affairs.
But can the department of justice contend that the dragoman of a
consulate is in the service of a “foreign subject?” He is in the
service of a foreign government. The distinction is very clear. It
is made doubly clear and is emphasized by the last paragraph in
article 9, which discriminates between the employee of a foreign
subject and the employee of a foreign government, when it says:
Toutefois, en co qui regarde les missions ecclésiatiques et
les monastères étrangers, il sera accordé à chacun de ces
établissements d’avoir un procureur et un dragoman qui
jouirout au meme titre que les employés du consulat, des
priviléges de la protection temporaire.
And the reason for this distinction is not far to seek. If the
dragoman of a consulate did not have the privilege of invoking
consular assistance at a trial, the consul might be robbed of his
services at any time by men who should bring false charges against
him. It is proper enough that an Ottoman subject, who is a clerk of
a foreign subject, should be treated like any other Ottoman subject
in respect to his private affairs. But the dragoman of a consul can
not be interrupted in his official duties by vexatious suits in
which he may not invoke the presence of a consular representative to
see that the interests of the consulate are properly protected.
The principle is one of so much importance that I have ventured to
dwell on it at some length. But I trust that your excellency on
reconsideration of the subject will agree with me in the
interpretation of the law, and will so instruct the authorities at
Salonica.
Receive, excellency, etc.,
His Excellency Tewfik
Pasha,
Minister for Foreign
Affairs, Sublime Porte.
