« PreviousContinue »
the objects found pronounced by the Court; whether the latter portion of the judgment was carried into effect; whether any protest was made by Mr. di Cesnola against the jurisdiction of the Court; whether Turkish sovereignty continues to exist in Cyprus, and, if so, what power there is to try foreigners, not being British subjects, in disregard of the Capitulations; whether appeals from the Courts in Cyprus to Constantinople will be allowed by Her Majesty's Government; and whether there exists any correspondence on the subject of Jurisdiction in Cyprus."
To this very comprehensive series of interrogatories, the Under Secretary for Foreign Affairs made answer briefly,
,* that “ Mr. di Cesnola, described as an American, was tried before a district Court in Cyprus, assisted by an English Assessor," and he answered the questions regarding the judgment and the protest of Mr. di Cesnola in the affirmative. That is to say, Mr. Bourke admitted the facts, that a foreigner was sentenced by a Cypriot Court, under the presidency of an Ottoman Judge, for an offence against Ottoman Law, on soil the government of which is administered by Great Britain.
Mr. Bourke went on to say that, “ As to the question whether Turkish sovereignty continued to exist in Cyprus, he could only refer the hon. Baronet to the Convention on the subject.” Here, according to the report we cite, the House, seeing the thing in a jocular light, was moved to “laughter.” Whether honourable members, seized with a sudden zeal for exploration, and caught red-handed in the unwitting perpetration of a similar offence to that with which Mr. di Cesnola was charged, would have been equally ready to laugh if subjected to the same treatment as Mr. di Cesnola, may be left to the judgment of our readers. Some dim sort of idea that he was treating the subject too lightly does seem to have passed through the mind of the Under
* Daily News, ut supra.
Secretary, when he roused “ironical cheers" by begging the hon. Baronet “not to think that he was treating him with discourtesy. It was really the best answer he could give him.” Possibly, some members may have thought, “bad is the best,” and have attempted to express this feeling in the irony which they threw into their cheers.
• With regard to Jurisdiction in Cyprus," the Under Secretary proceeded to say, "arrangements were gress and would, he hoped, soon be completed." The case for the Foreign Office was brought to a close by a statement, rather astounding to our limited intelligence when read by the light of admitted facts, to the effect that “Every precaution was taken to secure a fair trial to any foreigner who might be charged with an offence.” We should rather like to know who charged Mr. di Cesnola with his offence, which was one not against British but Ottoman law, and whether there is in Cyprus such an official as an Ottoman Crown Prosecutor, by whom the heinous crime of digging up old stones and old bones is charged against the luckless foreigner who has come to what he probably supposed to be a British colony or dependency, without a previous study of Ottoman law. In regard to the “negotiations” which Mr. Bourke had referred to in his reply to Sir Charles Dilke, when pressed by Sir William Vernon Harcourt, he changed his phrase to
arrangements," which he said was "a better word.” In fact, having first spoken of “negotiations,” the Under Secretary for Foreign Affairs proceeded, with really magnificent sang froid, to entirely change his front, and aver that “there was no negotiation going on between any other Power and Her Majesty's Government.” With respect to two important questions put by Sir Charles Dilke as to the Court to which appeals from Cyprus would go up, Mr. Bourke gave what may have been to some persons the startling information that "no appeal from the Cyprus Courts to Constantinople was allowed by Her Majesty's Government,” and with regard to jurisdiction, that “there was no correspondence on the subject of jurisdiction with any other Government."
“ Bourke locutus est, causa finita est."
There are in Cyprus no capitulations; there are in Cyprus no Consular Courts; there is in Cyprus not so much protection to the foreigner, whether British or of any other nationality, as is afforded under the Capitulations by the required presence of the Consular Dragoman of the defendant's country; there is from the district Courts of Cyprus no appeal.
If we may see in Cyprus a representation in miniature, as presumably we may, of the legal position of foreigners throughout Asia Minor, under that “ Asian Mystery,” the British Protectorate, we may be excused for doubting whether the picture is so attractive as to be likely to draw men and money into the “noble work of regenerating ” the Asiatic Provinces of the Turkish Empire. For the Turkish Empire is the Turkish Empire still by the constant and solemnly reiterated asseverations of the British Government; and the sovereignty of Asia Minor, as of Cyprus, is as constantly and solemnly asserted still to be vested in the Sublime Porte of Felicity, the Gate of Justice, the Pillar of the Universe, the Shadow of God upon Earth. What matter if all the Western Nations do not see in the Porte the same amount of Felicity, the same love of Justice, as must evidently have been visible to the eyes of British statesmen? God is great; and Mohammed is the Prophet of God. And perhaps, when a sufficient number of the subjects of the Western Nations shall have been condemned by Cypriot district Courts without appeal, the unbelievers will at last acknowledge that the Gateways of the East are in truth the Gateways of Felicity, and that Ottoman Law is a stream pure and undefiled, flowing from the Fountain of Justice. Meanwhile, with that melancholy distrust of Turkish Law which seems so in
veterate a feature of Western relations with the Turkish ruler of the New Rome, our friends and neighbours, who have hitherto been living in the Levant under the protection of the Capitulations, do not seem at all inclined to give up the shelter from despotic treatment under which they have for centuries dwelt in security. They go so far, it would seem, as to denounce the ignoring of the Capitulations in Cyprus as involving a breach of International Law and Treaty engagements.
And they go on to hint that the rest of the powers must recall Great Britain to a sense of the necessity of observing Treaty obligations. This is the language held towards a country whose government, not so long ago, stood forth in the character (at any rate self-attributed) of champion of the Public Law of Europe, guardian and defender of Treaties. How has such a noble mission failed in being accepted by the rest of the countries of Europe? How have we, in so short a time, fallen from so high an estate ? And what is the nature of these Treaty obligations which we are to be reminded that it is our duty to observe; what are these Capitulations which we are plainly told we are considered to have violated ?
The enquiry that we are thus led to enter upon, is one which may not be without interest in connection alike with the History of Public International Law and the Doctrine of Exterritoriality, and it is certainly not without the interest arising from the circumstance of its being a practical question of the day. At the outset we are met by the difficulty that little is said about the Capitulations in the most familiar English and American Text-writers. This fact, remarkable as it may appear, furnishes us with an additional reason for pursuing our own investigations. Where Wheaton, Twiss, Halleck, and Abdy's Kent, fail to give us adequate light, we must have recourse to other sources of
* Daily News, Monday, 23rd December, 1878, citing the Roman journal, "Il Diritto."
information, much as we must regret not having them as guides in the whole of our present course of studies.
It is quite possible that few of our readers are aware how far back the Capitulations have their place in the story of the legal and diplomatic relations between the Western Nations and the Turkish representative of Islam. The earliest of which we have been able to find mention, was concluded by the Republic of Pisa, in 1173, thirty years before the Latin Conquest of Constantinople ; the next in date was made by the Venetians in the year following the enthronement of the Turks on the seat of the Cæsar of New Rome. The Capitulation which governs the existing relations between French subjects and the Porte was concluded in 1740, between Sultan Mahmoud, “son of the Sultan Mustapha, ever victorious,” and his “very magnificent, honoured, and ancient friend, Louis XV., the glory of the Princes of the Faith of Jesus, the Emperor of France, and of other vast dependent kingdoms." We may remark, as a point not without significance under present circumstances, that in the long roll of sonorous titles inscribed in this Capitulation one of the designations of Sultan Mahmoud, son of Sultan Mustapha, is “Lord of Cyprus." When we ask what appears to be the legal aspect of the Capitulations we find ourselves in presence of two conflicting views. The ordinary view seems to be that they are concessions granted as favours by the Sublime Porte to the Christian nations which enjoy their benefits. This is the line taken even in an otherwise valuable Paper on the Judicial Reform in Egypt, read by M. Louis Renault before the Society of Comparative Legislation.*
We shall have occasion to cite some interesting details from M. Renault, but examination of the text of the Capitulation of 1740 leads us to the opposite conclusion, ably advocated by M. Gavillot, Judge of the Correctional Tribunal of France at Cairo, in a work of considerable
* “Bulletin,” May, 1875. (Paris: Cotillon.)