Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 8, 1908
File No 4050/104–105.
The Acting Secretary of State to Ambassador Leishman.
Washington, June 30, 1908.
Sir: Referring to the department’s circular instruction of April 19, 1907, I inclose for your information and for the files of your embassy a copy of a remonstrance which Mr. E. C. Tambaky and others, claiming to be naturalized American citizens resident in Turkey, have addressed to the President, in which they criticise the department’s interpretation of the act of Congress approved March 2, 1907, in reference to the expatriation of citizens and their protection abroad I also inclose a copy of the department’s reply to the remonstrance mentioned.
I am, sir,
Petition signed by E. C. Tambaky and others addressed to President Roosevelt.
Honorable Sir: The undersigned naturalized American citizens, at present residing in Turkey, respectfully call your attention to their situation, as apparently regarded by the State Department in its interpretation of chapter 2534, of the United States Statutes at Large, and entitled “An act in reference to the expatriation of citizens, and their protection abroad,” and approved March 2, 1907.
The undersigned, with two exceptions, have never been Turkish subjects.
The two exceptions are first, a citizen who has obtained an imperial decree, or iradé, permitting him to adopt American citizenship, and second, one who is an American citizen by birth, whose father was naturalized when a resident of the United States.
A circular has been issued and is, we believe, now posted in every American consulate in Turkey, which professes to be based on section 2 of the said act of March 2, 1907, and also upon paragraph 144 of the Diplomatic Instructions and Consular Regulations as amended by the Executive order of April 6, 1907 This circular declares that the above-mentioned act and the regulations in question are applicable to American citizens who reside in the Turkish dominions.
The circular states that the following classes of persons will be presumed to have ceased to be American citizens:
- 1.
- Naturalized American citizens, formerly Turkish subjects, who return to Turkey and reside there for a period of two years.
- 2.
- Naturalized American citizens, not formerly Turkish subjects, who reside in the Turkish dominions for five years.
Your memorialists with the exceptions above referred to all belong to this second category.
While not presuming to doubt for an instant the power of our Government to make acts of Congress that shall be binding upon all American citizens, wherever residing, the undersigned feel confident that the act of Congress in question would never have been declared applicable to American citizens residing in Turkey if the peculiar and altogether exceptional character of the legal situation and relations of American citizens residing in Turkey had been remembered.
As such relations result from the treaties and from the rights acquired by the United States Government in Turkey we have considered it desirable to obtain an opinion from Mr. Edwin Pears, an English barrister at law, whose historical works are known in America, and who has examined the position of foreign subjects residing in the Ottoman dominions more fully than any other writer in the English language.
We refer to his opinion annexed herewith.
The conclusions arrived at by him are the following:
- 1.
- That the citizens of the United States residing in Turkey are in an entirely different position from that of such citizens residing in the United States, England, Germany, or other foreign country.
- 2.
- That from a legal and largely also from a practical point of view such citizens are legally considered as residing in the United States themselves, Mr. Pears speaks with confidence on this question and adds the significant paragraph that the position which he takes up is not seriously disputed so far as he is aware by any person who has written on the subject.
- 3.
- That as no conflict of law has arisen or is likely to arise between our Government and that of the Sublime Porte in reference to the nationality of citizens in the category to which we belong, there is no necessity, nor is it desirable to apply the act, as the circular proposes, to the undersigned.
Your memoralists, while unable of course to give an opinion with the authority of a specialist like Mr. Pears upon this question, unhesitatingly assert that their respective advocates and their acquaintances belonging to the British, German, Austrian, Italian, and other European communities invariably hold the same language, that the citizens of such countries residing in Turkey are always regarded as legally domiciled in the countries from which they have come, and that each non-Ottoman subject of origin is regarded as living in a foreign colony In other words, the position set out in Mr. Pears’s opinion is, as far as we can learn, one which is universally held by those who have studied such question in Turkey.
But while such is the legal position the undersigned ventures to suggest that the United States department, and yourself in particular, as its respected head, [Page 740] will recognize that an act of injustice will be done if the provisions alluded to in the above-mentioned circular are made applicable to this country They came here as naturalized American citizens, knowing they were coming under American jurisdiction and under the protection of its laws; that legally they were coming to an American colony; and when duly admitted by decision of the American court they considered themselves assured, under the Constitution, as entitled to equal rights with those enjoyed by native-born Americans They have entered into business relations with citizens in America and with other persons, under the belief on both sides, that they were Americans and that in any legal disputes American law would be the one applicable.
They respectfully submit that to make the provision applicable to the undersigned will be to give the statute a retroactive effect, which is unjust It will change the status which they acquired legally in America Under the laws of the United States the undersigned became American citizens by the decision of a competent court, and they respectfully submit that the State Department in making the circular applicable in their case is taking a step which is not only unfair to them, but unconstitutional—unconstitutional because it discriminates between the rights of natural-born American citizens and a naturalized one.
The undersigned also submit that it could not have been the intention of the American legislators to hand over naturalized citizens to an Asiatic power which is hardly the superior of China, where also consular jurisdiction is in full force If the undersigned were thus cast off they would become, by virtue of the Turkish law, Turkish subjects, which they have never been and which they do not desire to become.
An act of injustice would be done not only to them but to all who have entered in such contractual relations with them It need hardly be said that American citizens and others belonging to civilized States would have in many cases refused to enter in such contractual relations had they thought that the law courts to which, in case of dispute, they would have had to appeal were those of Turkey.
The undersigned also call attention to the fact that there are many anomalies which would result from the application of the law If they were cast off by America and became Turkish subjects the children of any of the undersigned who are resident in America would by Turkish law be unable to take any portion of the succession of their father.
But the undersigned do not wish to base their appeal merely upon technicalities They rather submit the proposition that if the law is made applicable to them and the class of persons to whom they belong, a great act of injustice will be done They put the matter in its simplest form, namely, that each one of them having gone to the United States and fulfilled the requirements by which he was able to become naturalized, subsequently, for the purpose of his business found it desirable to leave the United States and establish himself not in the country of which he was a subject but in Turkey By industry and under the protection of the laws of their newly acquired country they have obtained possession of a right of which they are proud, and they respectfully request that they may be permitted to retain such possession, and urge that it would be a manifest injustice that they should lose the legal status which they have obtained on their naturalization, and that without any fault of their own they should be compelled to become Turkish subjects or to leave the country in which they have made business connections.
The undersigned submit these considerations to your careful attention in the fullest confidence that the question so important to them in their private and family relations, as well as in their capacity of citizens of the great country you represent, will receive the sympathetic examination which your distinguished career has shown that you invariably give to matters regarding the rights of individual citizens.
The undersigned have the honor to remain, honorable sir, your most obedient servants,
Opinion of Edwin Pears, barrister at law, and late president of the European bar at Constantinople.
I am asked to give an opinion on the following question:
“What is the legal status of naturalized American citizens residing in Turkey who have never been Turkish subjects in reference (1) to the Turkish Government and (2) to the American Government?”
I have written regarding the status of all subjects of various European States, including American citizens, residing in Turkey on various occasions My last contribution on the subject appeared in the London Law Quarterly Review of October, 1905 (Turkish capitulations and the status of British and other foreign subjects residing in Turkey) The article in question will furnish full information on the general questions submitted.
The legal position of foreigners in Turkey is a survival of a conception of law which has disappeared from the jurisprudence of western States Each community of foreign subjects in Turkey constitutes a legal colony under the jurisdiction of the sovereign State to which the members of such colony belong The members of such colony, both individually and collectively, are clothed, with exterritoriality.
This result, though somewhat anomalous so far as civilized countries are concerned, is yet well established and undoubted, and is easily understood when examined historically When the Turks took possession of Constantinople in 1453, they found a colony of Genoese occupying Galata and other places in Turkey under a treaty or capitulation which had been granted to them by the Byzatine Emperors They had their own governor and their own law courts, and they were not to have the advantage of the Byzantine courts.
Mahomet the Conqueror confirmed the treaty or capitulation which he found in existence In 1535 the King of France made capitulations with the Sultan of Turkey, giving to France similar rights to French subjects throughout the Empire The English obtained similar privileges contained in a treaty or capitulation a few years afterwards Without attempting to give the precise dates it is sufficient to say that the sovereigns of other European States followed the example of France All these treaties or capitulations were based upon the idea of exterritoriality and upon the model of the concession given to the Genoese It is still more remarkable that these old treaties have been continued to the present day Certain modifications in reference to details inserted to make the stipulation more precise have been added, but in reference to the principles which obtain they remain unchanged.
Among the latest countries to obtain capitulations was the United States But the capitulations with the United States, as is indeed the case with those of other countries, contain “The most-favored-nation clause,” by which America is to have the advantage of any clause which figures in the capitulations of the other powers.
The result is a striking one, and I prefer to sum it up in the words of a judgment given in the British Privy Council 22 years ago in the case of Abd-ul-Messih v. Farra (13 Appeal Cases, 440) Lord Watson, in giving the judgment, says:
“The legal condition of foreigners resident in Turkey, who are exempted by treaty from the jurisdiction of its local courts, is very well described by Feraud-Giraud (Jurisdiction Franchise, Vol II, p. 58), one of the authorities referred to by the appellant’s counsel They form, according to the view of that learned writer, an anomalous exterritorial colony of persons of different nationalities, having unity in relation to the Turkish Government, but altogether devoid of such unity when examined by itself; the consequence being that its members continue to preserve their nationality and their civil and political rights just as if they had never ceased to have their residence and domicile in their own country.”
To this statement of Lord Watson it may be added, as that distinguished judge would have been ready to add had it been necessary, that the members of the territorial colony, American, English, or other and their descendants, preserve their nationality and civil and political rights just as if they had never ceased to have their residence in their own country Such a statement would not of course be applicable to a country where similar capitulations do not exist.
The above statements are in my opinion quite correct, and I add that I know of no writer who contradicts them, while I can produce, as indeed I do in the article referred to, many authorities who agree with them.
[Page 742]It follows therefore that American citizens residing in Turkey are legally to be considered as domiciled in America; that, in the words of Lord Watson, “they preserve their nationality and their civil and political rights just as if they had never ceased to have their residence and domicile in their own country.”
It is undoubted that Americans, British, Germans, and Italians, etc., residing in the exterritorial colonies in Turkey are regarded by the Turkish Government itself as being clothed with exterritoriality The children belong to the colony to which the fathers belong There are, for example, Italians and Austrians who are the descendants of ancestors who have been settled in Turkey upward of two or three centuries, and their right to be considered Italians, Austrians, etc., has never been called in question by the Turkish Government.
The young men of such nationalities are called upon, as they would in the country of their ancestors’ origin and to which they still belong, to render military services and to conform to the laws of their country applied to the exterritorial colony of which they are members.
My answer therefore to the first portion of your question is that the legal status of naturalized American citizens residing in Turkey is, in reference to the Turkish Government, that they are regarded by such Government as continuing subjects of the United States over whom and over whose children the Turkish Government has no control Their legal relations (with the exception of certain cases provided for in the capitulations themselves) are regulated by the laws of the State to which they belong and not by the law of Turkey, which admits them to the status of exterritoriality and regards them as living in a legal American colony.
In consequence, the Porte, provided such citizens are not of Turkish origin, or if they be, have obtained its permission to adopt American nationality, has no more right over them than over American citizens born in the United States As a matter of fact neither in regard to American, nor British, French, German, and other foreign subjects has the Porte ever put forward a claim to their subjection or that of their children.
The second question regarding the legal status of naturalized American citizens residing in Turkey, with reference to the American Government, raises other considerations.
The United States as a sovereign State has an absolute right to make such laws in reference to its citizens as it thinks proper within the limits of the American Constitution The United States Government desires to avoid the conflict of laws and such conflict constantly arises when a citizen of one State, without the permission of the State to which he has belonged, becomes naturalized in another and returns to that of which he was a member previous to naturalization.
The English Government avoids the difficulty by providing under the naturalization act of 1870, and indeed stamping upon the passport a notification that naturalization entitles the person to protection in every State except that of which the person was a subject when he became naturalized in Great Britain.
There are Turkish subjects of origin who are naturalized in England When they return to Turkey they cease to have protection by the British Government This aspect, however, of the case is provided for by Turkish law itself, which enacts in its “Loi sur la Nationalité” that naturalization in a foreign state will not be recognized, unless the person desiring it should obtain the permission of the Sublime Porte Many persons have obtained this permission, and when they return to Turkey they are entitled to be protected by the British authorities as if they were British-born subjects In other words they enter and form part of the quasi British colony.
America, under section 2534 of the United States Statutes at Large, provides that when any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any foreign state, it shall be presumed that he has ceased to be an American citizen, etc., and it is upon this act, as I understand, that a circular has been issued this year stating that this provision is applicable to American citizens who reside in the Turkish dominions I am of opinion that if it is so applicable it has become so under a legal misapprehension of the status of American citizens residing in Turkey.
In my opinion there is a legal presumption, juris et de jure, that American citizens resident in Turkey have not lost their civil and political rights, but on the contrary, in the words of the English privy council, already quoted, they “continue to preserve their nationality and their civil and political rights just as if they had never ceased to have their residence in their own country.”
The framers of the circular have overlooked the fact that a country under capitulations forms an exception to the general rule.
[Page 743]For the purpose of argument I assume that the circular is issued by the executive authority of the State Department upon the basis of the act of Congress I say as a jurist, without hesitation, that if the act is held to be applicable to Turkey it has been so held in forgetfulness of the peculiar legal position of American citizens residing in Turkey To show what I mean let me try to realize what was the object of the legislator in framing the law Many countries, e. g., Germany and France, refuse to allow their citizens to evade their military duties by expatriation When such citizens have acquired foreign nationality, and return to their country of origin, conflicts arise between the two sets of law, by one of which the person is claimed as a subject in virtue of his naturalization, while by the other he is claimed by virtue of his not having received permission exuere patria But in Turkey no such conflict ever has arisen in the case of naturalized American citizens who have been subjects of a State other than Turkey before their naturalization Of course if there were a dispute as to the fact of the previous subjection of the subject, this would not be a legal question I may add as a matter of fact that after upward of 30 years of legal practice in Constantinople I have never known or heard of such a case as a British, American, or other naturalized subject having his claim disputed by the Ottoman authorities where the claimant was not an Ottoman subject when he became naturalized.
The same exemption from possibility of dispute exists where an Ottoman subject of origin has become naturalized in America having obtained the permission of the Sublime Porte.
All such subjects resident in Turkey are recognized as belonging to the foreign community As such they are legally and in practice clothed with exterritoriality; for at the risk of repeating myself I say that all authors who have written on the subject are agreed that the legal position of a member of a foreign community in Turkey is that of a person so clothed This exterritoriality is not of the same extent as that which clothes an ambassador, though it is of the same quality The right to be so clothed has been guarded carefully by all the powers Once it is recognized that American citizens residing in Turkey are clothed with exterritoriality, and once it is admitted (as it must be in regard to citizens who were not Turkish subjects before acquiring American nationality, or being Turkish subjects have obtained Turkish consent to their naturalization) that there is no precedent to show that there can arise any conflict of law between the American and Turkish Governments in regard to the nationality of the naturalized American, there is no reason known to me why the statute in question should be made applicable to Americans residing in Turkey and a presumption arises which it appears to me ought to be sufficient to rule out the applicability of the law to Americans residing in Turkey It is for these reasons that I conclude that the circular which has made it so applicable is drawn up under a mistake as to the legal position of such American citizens Had such legal position been regarded there would have been no necessity to make a provision which, however useful in other countries, has no raison d’être in Turkey.
To resume my argument on this second part of the question it is as follows:
The United States as a sovereign State has the power of expatriating its own citizens, and the framers of the act of Congress in question have contemplated the exercise of such power in all those countries where conflict of jurisdiction has arisen or was likely to arise No such conflict of jurisdiction has ever arisen or in my opinion could ever arise between the Government of the United States and that of Turkey The reason, therefore, for the passing of the act does not apply to the American exterritorial colony in Turkey Cessante ratione cessat lex ipsa.
There is another legal point which is worth serious consideration.
When an act of the English Parliament is passed the rights acquired under treaties are always reserved We express this by saying that in such cases salvo regis jure.
I am not an expert upon American treaty law, but I venture to suggest that it is worth examining, whether a treaty giving rights to American citizens is legally set aside by an act of Congress A treaty is, so to say, a bilateral contract between two sovereigns represented, as I believe in the United States, by the President and the Senate, and, of course, in Turkey by the Sultan.
While I suggest that this point should be examined, I regard that which I have already taken as more important, namely, that it can hardly have been the intention of the American Legislature to limit the rights acquired in the American exterritorial colony in Turkey.
[Page 744]While the above is my estimate of the legal position, I may be permitted to add a general consideration which appears to me of importance It is that it would be impossible for non-Turkish subjects to do business in Turkey unless they had the protection which the capitulations give them I add that such a step would do injury to American commence, and that as the Sublime Porte itself makes no objection to its own subjects, once they have obtained its permission, becoming American or British subjects, there could be no occasion for conflict of laws between the American Government and the Porte except in the case of an Ottoman subject who had obtained American naturalization without the Porte’s consent As the question submitted to me, however, relates to naturalized American citizens who have never been subjects of the Porte, I need not enter further upon this point Once they are American citizens and, as in the case submitted to me, are not residing in the country of which they were citizens before becoming naturalized, it is difficult to see how there could be any conflict between the law of America and that of Turkey.
The Acting Secretary of State to E. C. Tambaky and others signing a petition to the President, dated April 21, 1908.
Washington, June 18, 1908.
Gentlemen: The department has received, by reference from the President of the United States, to whom it was addressed, your communication of April 21, 1908, in which you present reasons why the act of March 2, 1907, entitled “An act in reference to expatriation of citizens and their protection abroad.” should not be construed as being applicable to American citizens residing in Turkey You present an opinion from Mr. Edwin Pears, a barrister at law practicing in Constantinople, to the same effect.
The act referred to provides in the second section as follows:
“When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe.”
The department has construed the provisions quoted above as being fully applicable to American citizens resident in Turkey, especially in view of the stipulation made that rules and regulations may be prescribed for overcoming the presumption of expatriation, and the department has, accordingly, made rules which take into consideration the peculiar status of Americans resident in Turkey The act and the rules made in accordance therewith have for their object the protection of American citizenship from imposition and fraud by people of alien birth who have obtained naturalization without intent to incorporate themselves into American society, but with the manifest purpose of making their domicile outside of the United States and of using their naturalization merely as a means of obtaining the protection of this Government while they perform none of a citizen’s duties toward it The rules are also intended to afford a convenient means for all who acquired American naturalization in good faith, with intent to assume the responsibilities of citizenship, to make the conservation of their citizenship and their right to the protection of this Government a matter of official record.
At the time the rules which are embodied in the circular instruction of December 11, 1907, were prescribed, the department had fully considered the proposition embodied in your letter and in Mr. Pears’s opinion, and it sees no reason for reconsidering the conclusions it has reached.
I am, etc.,
Circular.
Washington, December 11, 1907.
expatriation and protection of americans in turkish dominions.
To the diplomatic and consular officers of the United States in Turkish dominions.
Gentlemen: Section 2 of the act of March 2, 1907, and paragraph 144 of the Diplomatic Instructions and Consular Regulations as amended by the Executive order of April 6, 1907, relative to expatriation and the protection of Americans abroad, are applicable to American citizens who reside in Turkish dominions.
Therefore a naturalized American citizen, formerly a Turkish subject, who returns to Turkish dominions and there resides for a period of two years will be presumed to have ceased to be an American citizen, and a naturalized American citizen not formerly a Turkish subject who resides in Turkish dominions for five years will be presumed to have ceased to be an American citizen.
The presumption may be overcome in either case by his presenting to a diplomatic or consular officer of the United States proof establishing the following facts:
- (a)
- That his residence in Turkey is solely as a representative of American trade and commerce and that he intends eventually to return to United States to reside or
- (b)
- That some unforeseen and controlling exigency beyond his power to foresee has prevented his carrying out a bona fide intention to return to the United States within the time limited by law and that it is his intention to return and reside permanently in the United States immediately upon the removal of the preventing cause; or
- (c)
- That he resides in a distinctively American community recognized as such by the Turkish Government; or
- (d)
- That he resides in Turkish dominions as a regularly appointed missionary of a recognized American church organization.
The evidence required to overcome the presumption of expatriation must be of the specific facts and circumstances which bring the alleged citizen under one of the foregoing heads, and mere assertions, even under oath, of any of the enumerated, reasons existing will not be accepted as sufficient.
Whenever evidence shall be produced to overcome the presumption of expatriation as indicated in this instruction the depositions and other proofs must be made in duplicate, one copy thereof being sent forthwith to this department, and if the proofs have been presented to a consular officer he shall notify the embassy at Constantinople of the name of the person and of the facts concerning his residence abroad.
This instruction, in so far as it relates to the presumption of expatriation from residence in Turkey, supersedes the corresponding parts of the department’s circular instruction of April 19, 1907, entitled “Expatriation.”
I am, gentlemen, your obedient servant,