THE CONSUL

Evening Post, Volume CVIII, Issue 83, 4 October 1924, Page 13

THE CONSUL

TRADE WITH THE EAST

SOME HISTORICAL REFERENCES

(By Humberto Bidone, Doctor of Laws, Buenos Aires and Rome.)' " (Written for " The Post.") •''

111. In, the commercial line we find more significant precedents. The considerable movement of goods begun between the maritime cities of the Mediterannean— Marseilles, Genoa, Piza, Venice, Barcelona—and the ports of Asia Minor, of Syria, and of Egypt—Alexandria, "Beyruth, Tyre, etc.—show us the route of penetration towards the regions of Caucasus; Persia, Arabia, and Africa. But commerce requires security for expansion and progress in its social relations, to which end direct treaties are signed in order to assure the protection of business men. Remnants of these treaties are found from the time of Charlemagne and Caliph Arun al Rashid. '

The Italian republics obtained many charters. of concession, first from the Christian princes of the Kingdom of Jerusalem, and afterwards from the Caliphs and Sultans. All these charters 'are modelled -on one single type. They guarantee commercial liberty; grant to the city the right of ,-naming Consuls; " recognise in the Consuls the rights of judging their own compartiots " in accordance with their personal laws, etc. It is useless to record the facts of the various concessions granted to Genoa, Venice, Marseilles, and Piza. In 1251, by a concession to the King Saint Louis, the sending of French Consuls to Alexandria, and Tripoli was allowed. When, two centuries and a half later Selim I. seized Egypt, his first act was to confirm the charter granted to France in 1251 by the Sultans. In 1258 Solirnan confirmed it again, and seven years later it served as the basis for the first capitulation.

From hisj-orical precedents in religious and economic domains, already referred to, it is evident that the Treaty of 1535, as Pelissie well expresses it, generalised rules already existing in Mussulman countries, and that the capitulations do not constitute an exception to common law, but rather its pure and simple application. Another French "writer of authority, Ferand Girand, maintains that the special situation created for -foreigners in the Ottoman Empire is based on the radical divergence of religion,- customs, and institutions existing between \the Chrisian and Mussulman worlds.' Yet ou the other, hand Pelissie replies :r Why is, there no reciprocity; of : , treat-: ment for Mussulmans in Europe?' It might be 'supposed that the capitulatory concessions had been wrenched out byforce, but s»;h is not the history of the Turco-Christian illations, for the ' first and most important concession was granted by conquering Caliphs and Sultans to' vanquished Christians. •■ The French Army had been beaten at'Mnnsourahwhen the Sultan of Hjypt granted Saint Louis the charter authorising the residence of "a French Consul in Alexandria. The King of France had been beaten at Pavia, and was prisoner in Madrid when the confirmation by the Sultan of Egypt on behalf of Soliman of tho concession made to tho French took place in Constantinople. Then seven years later the "first capitulation of 1535 occurred.

One must distinguish clearly between the charters due to the chiefs of the Crusades—i.e., the Christian kings of Latin Orient—aud the concessions mado by the Byzantine Emperors to certain Italian republics under the regimen organised by the Turkish capitulations. Ihe greatest difference consists in that in tho former ono finds no proofs that local_ sovereignty was limited. Origin of the Capitulatory Regimen (the Religious Idea nnd Legal Conception).—We must remember that- tho modern conception of . the State is tho _ last stage of lengthy evolution which has as its turning-point the gradual separation of the religious idea from the legal one. If we judge the origin and means of evolution of capitulatory laW, starting., from the modern conceptions of the rights of the State, the capitulations appear as a legal absurdity and an indecipherable riddle. If, oh the other hand, we remember the theocratic character of the Ottoman institutions, and the complete confusion which existed in tho 16th century between tho religions idea and tho legal conception, we como to tho conclusion that it might bo summed up in tho words of an old aud famous formula as " the historical climate " in which capitulations germinated. The modern idea of tho Stale is "closely related to the " territorial " element, as Jellenik well says. Now, if territory be an indispensable element in tho idea of the State, tho religious law appears foreign to any idea of territoriality and is necessarily "personal." in so f ar a 8 it is related to the conscience, berond every limitation of territory, and its end is found in the degree of spiritual faith in the believer. If the idea of law (or, in other words, the legal tutorship of individuals) is thus confused iii the primitive obscurity of faith, the legal relations are converted into religious relations having as their aim the religious law, by which it is seen that the law or legal protection, turns out to be ken quelque ' sorte une grace divine dont seuls peuvent beneficier les adeptes de la religion." All nations in the beginning of their history havo had this religious conception of law; all people have traversed that zone in which divine commands and legislative ideals are mixed in. inextricable confusion. What has been the position of foreigners under these social conditions? The answer is simple: during this period, which mHit be called theocratic or priestly, the foreigner is a human element outside the domain of law. He does not participate in the legal life, and the law neither can nor ought to- recognise or protect him Tho foreigner is the enemy, and his position is summed up in the fierce Roman formula: "Adversus hostem aetenna autoritas.'' But economic requirements bring about inevitable conflicts between the. various social nuclei. As a result of this the hostile character of the foreigner still remains at the basis, but there arises the need of altering the' actual relations which find; their origin in the requirements of business. The following might well be the law of theso relationships:—The application of thenown law—i.e.,, that "the foreigner remains subjected to the foreign law." Roman Law and Capitulatory Law.— There are some remarkable examples in the course of Roman and capitulatory law, which teach us a great amount about history., Let us look .at these examples. The old Roman law was 'exclusively religious. The primitive form of contract, of share-holding, and of the transfer of property; iire all regulated by a symbolism which is related to tho dominating religious conception of law. rAt this stage Roman law is nothing more than the "jus quii-itium" (or tho law "dei cittadino romani"). The foreigner is'considered unworthy of being allowed lo partake in this law :ho cannot acquiro ' the "do: minium ex jure quiritium",- cannot take part in a "mancipatio" ; cannot pronounce the sacred formula of tho "sponsio," etc. When the increasing needs of a social and economic kind make eon-

tracts with foreigners inevitable and unceasing, the law governing these relations is not that of Rome (the law in which the foreigner may participate apart from the religious life of the Romans), but is called the "jus gentium," which is somewhat similar to the personal law of the "peregrinus" or foreigner. An analogous situation is shown us in the beginnings of capitulatory law. When the first capitulation was arranged, the official law of the Ottoman Empire was Mussulman, i.e., a law which was an integral part of a religious conception, of which the synthetic expression was to be found in the Koran. The unbeliever was consequently outside the law. Thus, when the necessity of regulating actual relations (made by the ever-increasing and ever more intimate bonds with foreigners) arose, the solution was found in the system of individuality of law, whereby the foreigner cannot participate in the l ei? Protection (for it is dependent upon the religion to which he is a, stranger), hut remains on the contrary subjected to the rule of his own Jaw. Thus capitulations and Roman law present us in their origin, as it were, a typical recourse to a true and real historical law, which might bo called the Law of Individual Rights. .It is a law in so far as the fact of the individuality of rights is bound in a uniformly recurring form to the promiscuity of the religious and legal idea. It is repeated in every moment during the course of social evolution, when groups of people meet together in that state of standard 'indistinction which precedes the secularisation of the idea and of legal constitution. ,

The raison d'etre of capitulatory law having been thus exposed, let us rapidly examine its external history as time permits. There are three important facts to remember: Firstly, the initial capitulation, of which we "have already spoken (1535); secondly, the capitulation signed on the 28th of May, 1740, between Louis XVI., King of France, and the Sultan Mahmoud; and, thirdly, the Congress of Paris, where the abrogation of the capitulations was first mooted and discussed.

The difference between the first and second capitulations is that the latter is less commercial, and is perpetual. In the third period of its historical' formation, capitulatory law is changed into a treaty of "settlement and consular ■ conventions." The starting point?, of the transformation of capitulatory law in the XIX. Century must be sought for in the intensification of social relationships between Europe and Turkey, and in the necessity for stabilising the capitulatory guarantees, in so far as foreigners were concerned. Thus has been brought about —on the basis of tho Treaty of Settlement, and by virtue of the clause of tho most favoured nation—the formation of a real and actual common law for for-' signers in Turkey. This law rests on the uniform application of the capitulatory privileges to all foreigners living in the Empire. Thus, in the place of that uniformity which at first was the .automatic result of the application of the above-mentioned clause, we. have afterwards, as it wero, the result, of a typical process of customary formation, by which new and more complicated leal relationships between the Sublime Poite and the European nations aro built upon the basis of the original capitulations. lhis process has a double aspect On the one hand, the accumulation of' the capitulatory privileges granted to foreigners by separate treaty is placed under the joint guardianship of the Powers On tho other hand, wo have an inequivocal recognition by Turkey of the legality of the action thus collectively exercised by the European States in defence ot the capitulatory privileges. This is the reason why the Sublime Porte has never refused to treat and discuss with the Commissions the disputable points of capitulatory law. (I leave aside tha events of tho present time.) Hence arises a real contractual obligation which has as its subjects—on the ono hand, lurkey on tho other, tho Powers; and as its object—the upholding of a uniform: law for foreigners on tho basis of tho principles stipulated in each of the lroaties of Settlement. Finally, a regimen such as that of capitulations, reposing as it does on tho principle of the individuality of law will only disappear gradually. Although at the present moment Turkey is copying the- Occident in its most advanced political and social institutions, yet time is required to ripen tlio fruits of tho spirit, and of tho collective intelligence. lho study of capitulatory law, and of its relative problems, allows us to appreciate at its full value all tho importance of the work which the Consuls have done in Turkey as organs or instruments of that .regimen of capitulations, which, according to the happy phrnso of a jurist, has been "la breuho gui a livi-o passage a lous les progrcs do la civilisation."

(Concludod.)