1911 Encyclopædia Britannica/Capitulations

From Wikisource
Jump to navigation Jump to search

CAPITULATIONS (from Lat. caput, or its Low-Latin diminutive capitulum, as indicating the form in which these acts were set down in “chapters”; the Gr. equivalent cephaleosis, κεφαλαίωσις, is occasionally used in works of the 17th century), treaties granted by a state and conferring the privilege of extra-territorial jurisdiction within its boundaries on the subjects of another state. Thus, in the 9th century, the caliph Harun-al-Rashid engaged to grant guarantees and commercial facilities to such Franks, subjects of the emperor Charlemagne, as should visit the East with the authorization of their emperor. After the break-up of the Frank empire, similar concessions were made to some of the practically independent Italian city states that grew up on its ruins. Thus, in 1098, the prince of Antioch granted a charter of this nature to the city of Genoa; the king of Jerusalem extended the same privilege to Venice in 1123 and to Marseilles in 1136. Salah-ud-din (Saladin), sultan of Babylon (Cairo), granted a charter to the town of Pisa in 1173. The Byzantine emperors followed this example, and Genoa, Pisa and Venice all obtained capitulations. The explanation of the practice is to be found in the fact that the sovereignty of the state was held in those ages to apply only to its subjects; foreigners were excluded from its rights and obligations. The privilege of citizenship was considered too precious to be extended to the alien, who was long practically an outlaw. But when the numbers, wealth and power of foreigners residing within the state became too great, it was found to be politic to subject them to some law, and it was held that this law should be their own. When the Turkish rule was substituted for that of the Byzantine emperors, the system already in existence was continued; the various non-Moslem peoples were allowed their semi-autonomy in matters affecting their personal status, and the Genoese of Galata were confirmed in their privileges. But the first capitulation concluded with a foreign state was that of 1535 granted to the French. Lest it should be imagined that this was a concession wrested by the victorious Christian monarch from the decadent Turk, it should be borne in mind that Turkey was then at the height of her power, and that Francis I. had shortly before sustained a disastrous defeat at Pavia. His only hope of assistance lay in Suleiman I., whose attack on Vienna had been checked by the victorious Charles V. The appeal to Suleiman on the ground of the common interest of France and Turkey in overcoming Charles V.’s overweening power was successful; the secret mission of Frangipani, an unofficial envoy who could be disowned in case of failure, paved the way for De la Forest’s embassy in 1534, and in 1536 the capitulations were signed.[1] They amounted to a treaty of commerce and a treaty allowing the establishment of Frenchmen in Turkey and fixing the jurisdiction to be exercised over them: individual and religious liberty is guaranteed to them, the king of France is empowered to appoint consuls in Turkey, the consuls are recognized as competent to judge the civil and criminal affairs of French subjects in Turkey according to French law, and the consuls may appeal to the officers of the sultan for their aid in the execution of their sentences. This, the first of the capitulations, is practically the prototype of its successors. Five years later, similar capitulations were concluded with Venice. The capitulations were at first held to be in force only during the lifetime of the sultan by whom they were granted; thus in 1569 Sultan Selim II. renewed the French capitulations granted by his predecessor. In 1583 England obtained her first capitulation, until which time France had been the official protector of all Europeans established in Turkey. Later on, England claimed to protect the subjects of other nations, a claim which is rejected in the French capitulations of 1597, 1604 and 1607, the last-named of which explicitly lays down that the subjects of all nations not represented at Constantinople by an ambassador shall be under French protection. In 1613 Holland obtained her first capitulation, with the assistance of the French ambassador, anxious to help a commercial rival of England. In 1673 the French, represented by the marquis de Nointel, succeeded in obtaining the renewal of the capitulations which, for various reasons, had remained unconfirmed since 1607. Louis XIV. had been anxious to secure the protectorate of all Catholics in Turkey, but was obliged to content himself with the recognition of his right to protect all Latins of non-Turkish nationality; his claims for the restoration to the Catholics of the Holy Places usurped by the Greeks was also rejected, the sultan only undertaking to promise to restore their churches to the Jesuit Capuchins. An important commercial gain was the reduction of the import duties from 5 to 3%; and all suits the value of which exceeded 4000 aspres in which French subjects sued, or were sued by, an Ottoman subject, were to be heard not by the ordinary tribunals but at the Porte itself. Later, France’s friendship secured for Turkey a successful negotiation of the peace of Belgrade in 1739, and the result was the capitulation of 1740; this is no longer limited in duration to the sultan’s lifetime but is made perpetual, and, moreover, declares that it cannot be modified without the assent of the French. It conferred on the French ambassador precedence over his colleagues. Austria had obtained capitulations in 1718, modified in 1784; Russia secured similar privileges in 1784. In the course of the 18th century nearly every European power had obtained these, and such newly-established countries as the United States of America, Belgium and Greece followed in the 19th century.

The chief privileges granted under the capitulations to foreigners resident in Turkey are the following: liberty of residence, inviolability of domicile, liberty to travel by land and sea, freedom of commerce, freedom of religion, immunity from local jurisdiction save under certain safeguards, exclusive extra-territorial jurisdiction over foreigners of the same nationality, and competence of the forum of the defendant in cases in which two foreigners are concerned (though the Sublime Porte has long claimed to exercise jurisdiction in criminal cases in which two foreigners of different nationality are concerned—the capitulations are silent on the point and the claim is resisted by the powers).

The same system has been followed by such countries as Persia, China, Japan and Siam.

The practical result of the capitulations in Turkey is to form each separate foreign colony into a sort of imperium in imperio, and to hamper the local jurisdiction very considerably. As the state granting the capitulations progresses in civilization it chafes under these restraints in its sovereignty. Turkey’s former vassals, Rumania and Servia, though theoretically bound to respect the capitulations so long as they formed part of Turkey, had practically abrogated them long before securing their independence through the treaty of Berlin in 1878. The same may be said of Bulgaria. Japan was liberated from the burden of the capitulations some years ago.

The extra-territorial jurisdiction exercised by the foreign powers over their subjects in Turkey and other countries where capitulations exist is regulated by special legislative enactments; in the case of the United Kingdom by orders in council.

In Turkey the capitulations are practically the only treaties in force with the powers, since the expiration about 1889 of the commercial treaties concluded in 1861–1862. As they all contain the “most-favoured nation” clause, the privileges in any one apply to all the powers, though not always claimed. Thus America and Belgium claim under their treaties with Turkey the right to try all their subjects, even if accused of offences against Ottoman subjects—a claim recently made by Belgium in the case of the Belgian subject Joris, accused of participation in the bomb outrage of 1905 at Yildiz. One peculiar privilege granted in the capitulations of 1675 (Art. 74) authorizes the king of England to buy in Turkey with his own money two cargoes of figs and raisins, in fertile and abundant years and not in times of dearth or scarcity, and provides that after a duty of 3% has been paid thereon no obstacle or hindrance shall be given thereto.

  1. La Forest, a knight of St John of Jerusalem, was the first resident ambassador of France at Constantinople. He died in 1537.