Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offence, shall not be molested; and even when they may have committed some offence they shall not be arrested and put in prison, by the local authorities, but they shall be tried by their Minister or Consul, and punished according to their offence, following, in this respect, the usage observed towards other Franks.
When our Government proceeded to obtain exact translations of this clause, it was found that the Turkish version did not contain the words "arrested" or "tried," although the phraseology made clear that American citizens were not to be imprisoned in Turkish prisons, but punished through their minister or consul. Consequently, the Turkish authorities could arrest but not imprison, could try but not inflict punishment.
The Turkish Government would not recognize as accurate any of the translations the United States presented. When asked to present a translation of its own, however, the matter was gradually put in abeyance.
In 1862 our minister, E. J. Morris, concluded another treaty with the Porte, entitled, as was the first one, "A Treaty of Commerce and Navigation," which, by its Article XX, was to remain in force twenty-eight years unless either party saw fit to abrogate at the end of fourteen or twenty-one years. In January, 1874, the Turkish Government gave notice to our Department of State of its desire to terminate the treaty, following this notice up with another communication to the same effect in September, 1875. Although by the terms of the treaty such notice was to be permissible not earlier than June, 1876, nothing was said in Washington regarding the untimeliness of these communications, and in his Annual Message of December, 1876, President Grant announced: "Under this notice the treaty terminated upon the fifth day of June 1876." President Cleveland, on the other hand, in his first Annual Message nine years later, questioned the official termination, but added: "As the commercial rights of our citizens in Turkey come under the favored-nation guarantee of the prior treaty of 1830 ... no inconvenience can result" from our agreeing to the abrogation. Thus questions of jurisdiction and commercial rights were thrown back for settlement under the Treaty of 1830, the translation of which was and has remained in dispute.
Much of this confusion was due, again, to the slight actual regard, on the part of the Ottoman Empire, for the terms of treaties. In this attitude they had been encouraged by some of the European nations—most of all Russia in its more powerful days—who, in return for other advantages, were not insistent upon their claims under the capitulations, especially the claims of jurisdiction over nationals. So far as concerned the United States, this loose effectiveness of treaties caused constant misunderstanding with regard to the handling of cases arising under them.
With every question that came up under the disputed Clause IV, for instance, the Turks would controvert the right of our consuls to try, and we would insist on that right. The battle then would be won after a fashion by the side with the most persistence. During my administration I happened to be the winner much of the time, although my winning merely released a possibly innocent person; for while we argued about a trial for the suspect he lingered in jail, and after I got his release the Turks would refuse to acknowledge our jurisdiction and not prosecute. Innocent and guilty alike were made to suffer in jail, and alike were set scot-free upon release. Not only that, but whenever an American citizen committed, or was alleged to have committed, a crime and was arrested by the Turkish authorities, it created irritation and a strain of our relationship.
The only other treaty then negotiated between the Ottoman Government and our own—the Treaty of Naturalization and Extradition—had also been a subject for discussion and dispute ever since it was signed by Minister George H. Boker in 1874. When it was concluded, the Senate refused to confirm it because under it American citizenship was forfeited ipso facto by the return of the naturalized citizen to his native land and his remaining there two years; but the Senate amended this treaty by changing the phraseology of the clause containing the two-year reference. The Sublime Porte accepted the amendment by a declaration of what it understood to be its intent and significance, which interpretation our Government, in turn, would not accept.
And there that treaty was hung in 1875, although our Government that year made an appropriation of ten thousand eight hundred dollars for presents to Turkish officials, which was then customary on concluding a treaty with the Porte.