The Legal Status of American Jews in Palestine
INTERNATIONAL Law is the commonly accepted moral law that determines the intercourse of nations. On the other hand, a treaty is like a constitution, which is a matter of agreement and consent; it is specific in its requirements. Hence, in any dispute or controversy between parties to an agreement, the treaty should be first considered. What, then, was the nature of the treaty between the United States and Turkey, proclaimed May 7th, 1830, and ratified February 4th, 1832, which treaty is still in force ?
The first and fourth articles have some bearing on the subject of this essay, and are as follows: Art. I. — Merchants to have the privileges of those of most favored nations.
Art. IV. — If litigation and disputes should arise between subjects of. the Sublime Porte and citizens of the United States, the parties shall not be heard unless the American Dragoman be present. Causes in which the sum may exceed 500 Piastres shall be submitted to the Sublime Porte to be decided according to the laws of equity and justice. Citizens of the United States of America, quietly pursuing their business and not being charged or indicted for any crime or offense, shall not be molested; and even when they may have committed some offense, they shall not be arrested, but they shall be tried by their minister or consul, and punished according to their offense, following in this respect the usages observed toward other Franks.
This latter clause places citizens of the United States within the jurisdiction of the American consul in all criminal matters, and in all civil matters to as great an extent as enjoyed by citizens of other European nations. An act of Congress of June 22nd, 1860, provides in detail for the exercise of such jurisdiction.
Another treaty was concluded between the same parties on June 5th, 1862, in which the same consular protection was given American citizens. It also contained articles regulating the tariff relations of the parties to the agreement. This treaty contains a provision permitting so much of it as is supplementary to the second agreement, to be abrogated by either party upon giving notice of such intention. With reference to this option, the Turkish government contends that the treaty of 1862 is null and void
because it gave notice to the United States of its intention to consider it so after June 5th, 1884. To this the United States government replies that the notice was not given in due form. However, the treaty of 1830, upon which my argument is based, cannot be abrogated except by consent of both parties. That fact is not disputed by the Turkish government, except in that it claims some error in the interpretation of it.
It appears very strange that the Turkish diplomats did not discover that the treaty of 1830, which had been accepted by President Jackson and approved by the Senate, was not the identical counterpart of the Turkish copy, until 1869, 39 years thereafter. It is claimed that the Turkish copy did not contain the following words found in Article IV of the United States copy:— “They shall be tried by their minister or consul and punished according to their offenses,” and again, “They shall not be arrested.” President Grant and Secretary Fish were disposed to admit the claim of Turkey, but thought that the facts should be submitted to the Senate. In a note to Aristarchi Bey, dated 1877, Secretary Evarts said: “I have no hesitation in confirming the conclusion reached on the 19th of October, 1869, that ‘the English version, on the faith of which the treaty was ratified by the Senate and the President of the United States, is erroneous... But this translation was, nevertheless, the faithful reproduction of the purposes of the American Plenipotentiaries, and as such received the sanction of the Senate and the President of the United States. . .” Secretary Evarts again wrote to the same gentleman in 1880: “... The United States are bound by the Turkish text of the treaty of 1830, which was signed in that text alone. I make this admission cheerfully in view of your repeated assurances in the name of your government that not only shall the true intent of that text be observed, but also that the citizens of the United States within Ottoman territory shall have the treatment accorded to the citizens or the subjects of the most favored nations, either by treaties or by virtue of local laws or customs.”
This admission is almost equivalent to those provisions in the treaty of 1830, which the Turkish government claims were not contained in its