I. EARLY USAGE
II. THE CRUSADES AND THE RISE OF EXTRATERRITORIALITY
III. EXTRATERRITORIALITY IN THE MOHAMMEDAN STATES PRIOR TO 1453
Notes by the Author
I. EARLY USAGE (^)
In the preceding chapter the judicial powers of the consul in Europe were briefly considered. The present chapter will deal with the rise of the consulate with its jurisdictional rights in the Levant and in the Mohammedan states prior to 1453.
In Sir Paul Rycaut's The Present State of the Ottoman Empire there was published for the first time a document known as the Testament of Mohammed, dated 625, which gave the Christians certain privileges and concessions, one of which was the protection accorded to Christian judges in the Mohammedan provinces [1]. The authenticity of the document is questioned by some writers [2], but the fact that the Capitulation of Omar, which is referred to below, mentions an act of the Prophet giving security to Christians may be regarded as confirmation of its existence [3].
The same apocryphal character is ascribed to the Capitulation granted by Caliph Omar Ibn-Khattâb to the Christians in Syria in 636 [4]. But although the document may have been fictitious, it is of great historical importance, because in the later disputes between Christians and Turks it was constantly referred to, and it contained many of the stipulations of the later Turkish Capitulations [5]. The Capitulation of Omar granted equal security to the Christian churches, companies and places of pilgrimage. It ordained the Christians to be respected on account of the honor that had been bestowed upon them by the Prophet. Moreover, they were exempted from the capitation tax and all other tolls in the Moslem states, and on their entry into the Holy Sepulcher no one should receive anything from them. But the Christians who visited the Holy Sepulcher should deposit with the Patriarch one and a half drams (drachme) of white silver. Finally, it was ordered that the true followers of both sexes, whether rich or poor, should observe this law.
In the ninth century, Charlemagne is said to have obtained from Caliph Haroun-el-Raschid privileges for the Frankish merchants at Jerusalem, but unfortunately the text of the agreement is not in existence [6].
That the Mohammedans stood for exemption from territorial jurisdiction was confirmed not only by their own concessions to the Christians, but also by their status in some of the foreign countries. An Arab merchant by the name of Soleyman relates that in the city of Canfu [7], which is the present Haiyen, Chekiang, a Mussulman was charged by the Emperor of China with power to decide the disputes which arose among the men of the Mohammedan religion in the ninth century [8]. This shows that the Mohammedans of that age were just as jealous of their own rights abroad as they were willing to let foreigners in their realm heed their own affairs. The reason for this state of affairs lies in the fundamental religious beliefs which mark off the Mohammedan from the "infidel" and which will be treated of when we come to the later Christian consulates in the Mohammedan Levant.
In the tenth century, Capitulations were entered into between the Byzantine Emperor and the Varangians or Russians. The agreement of 912 provided, inter alia, that "He who strikes any one with a sword or any other instrument shall pay for the act a fine of five pounds of silver according to Russian law" [9]. In the treaty of 945, we find the following significant provision:
If a Russian should attempt to steal from any one in our Empire, he shall be severely punished for that act; and if he shall have accomplished the theft, he shall pay double the value of the object stolen. It shall be the same for the Greek in respect of the Russians; the guilty person, moreover, shall be punished according to the laws of his country [10].
The reciprocal nature of this treaty inevitably points to the degree of tolerance with which the exemption was regarded on both sides and shows that there was a time when even in the relations of one Christian Power with another the practice of extraterritoriality was by no means such an anomaly as it is now.
II. THE CRUSADES AND THE RISE OF EXTRATERRITORIALITY (^)
The influence of the Crusades upon the development of international commerce is well-known. While the transcendent motive of this great armed movement, which, pervaded all classes of men who participated in it, was religious, there were also other considerations which lured them on to their final goal. These latter differed according as the social status of the participants differed: with the princes, it was the love of conquest and adventure; with the lower classes, it was the desire to elevate their social status; and with the 'bourgeois, it was the thirst for gain [11]. As a result of the notable role played by the bourgeois, a great increase in the volume and scope of overseas trade was brought about.
The reasons for this unusual development of international commerce are not far to seek. In a large part the progress is to be ascribed to the favorable situation of Constantinople and of its environs. For a long time, due to their advantageous position, the Byzantines had held in the Mediterranean a supremacy undisputed by the Occidentals. In the south, there was Egypt, where the Red Sea commanded the merchandise of the Levant; in Asia Minor, Syria, where caravan parties from the Arabian Sea, the Persian Gulf or the center of Asia came to discharge their burdens; and on the Black Sea, there were many places of commercial interest [12].
Brought into contact by the Crusades with this land of opportunity, the Italian and other maritime peoples of the West sought to fortify themselves still further by obtaining numerous privileges and concessions from the Christian princes who planted themselves in the Levant during this period. To the ambitions of the merchants the circumstances of the time were peculiarly favorable, for in the conquests made by the crusading princes, the Italian fleets were constantly called upon to render invaluable services, without which all the bravery and military tactics of the knights would have been in vain. Moreover, even after the taking of the well fortified ports of Syria, the assistance of the Italian fleets was needed for their retention. Evidently, the possession of these ports was a matter of life and death to the Crusaders, as through them unobstructed communication was maintained with the Occident, whence only resources of man power and money could come. The sovereigns of the conquered States could, therefore, hardly be oblivious of the assistance rendered by the Italians, and it was in recognition of this that many concessions were granted to them in their respective establishments. On their side, it was also not uncommon, nor was it unnatural, that the Italians felt at times conscious of the importance of their aid, and in many an instance, made their help conditional on promises of extravagant remuneration. Thus, a large number of colonies were founded, which, in the course of time, became commercial centers of greater or less importance in the Levant [13]. In the grants made by the Prince of Tyre to the Pisans in 1188 [14] and 1189 [15], for instance, it was expressly stated that the privileges were conceded on account of military services rendered by the Pisans.
In the States of the Levant under Christian sovereignty during the Crusades, special privileges of consular jurisdiction existed in the Byzantine Empire [16], Syria [17], and Cyprus [18]. As it is to be expected, the provisions of the early grants were not always specific or comprehensive, but in a general way the rights conceded were in strict accord with the principle actor sequitur forum rei. With few exceptions [19], the Italians in the Levant, who were commonly allowed to dwell in special quarters provided for them, were placed under the exclusive jurisdiction of their own consular courts in cases affecting themselves alone [20]. Mixed cases were assigned by some of the earlier grants to the competence of the local courts [21], but later practice differed in no wise from the modern rule that the plaintiff should follow the defendant into his court. Cases of natives against Christians were under the jurisdiction of the consular court concerned, and cases of Christians against natives, under that of the local courts [22].
It should be pointed out in passing that independently of these acts of privilege, there existed in Jerusalem a régime in the nature of a mixed court system. When the Christians of the First Crusade conquered Palestine and formed the kingdom of Jerusalem in 1099, they established the military and feudal constitution known as the "Assises de Jérusalem." The "Assises'' set up a Commercial Court and a Cour des Bourgeois. The Commercial Court was composed of a bailiff and six jurors, two of whom were Christians and four Syrians. All civil and commercial disputes were brought before this court; but criminal matters were within the sole competence of the Cour des Bourgeois, which was composed of the Viscount and jurors [23].
III. EXTRATERRITORIALITY IN THE MOHAMMEDAN STATES PRIOR TO 1453 (^)
The Testament of Mohammed and the Capitulation of Omar furnish the customary basis of Mussulman practice with regard to jurisdiction over foreigners. The explanation for the position held by the Mussulman on this subject, as has been intimated above, has to be sought in his religious beliefs. According to the Koran, which is at once a gospel, a code and a constitution, all those who were not followers of the Mohammedan religion were to be treated as enemies and to be slaughtered without mercy [24]. But the exigencies of commerce demanded and effected a mitigation of this rule. "The innate and invincible aversion of the Mohammedans," says Pradier-Fodére [25], "to do business outside their country; their inexperience in navigation, which forced them to recruit their crews only from among foreign sea-men; the need, which the political chiefs of Islamism felt, of utilizing their extended coast, their fine harbors, the rich products of their fertile soil, and of reaping the numerous advantages of maritime commerce, were early destined to inspire the Sultans with a favorable disposition towards the foreigners. It was necessary to invite the Christians to the exploitation of so many resources and, in the interest of the State, to encourage them to make settlements in the Levant." The writer is here discussing the origin of the Turkish Capitulations, but what he says is, in a general way, applicable to all the Mohammedan States prior to the conquest of Constantinople. The Mussulman's desire to develop commerce and navigation, therefore, saved the unbeliever from the Damoclean sword of Islam.
Indeed, the commercial motive, before which even religions bigotry gave way, was so overwhelming that it has left its imprint in the very Capitulations granted by the Mussulman rulers. It is a remarkable fact that all these Capitulations are unilateral or one-sided, dispensing favors without exacting any consideration. The explanation is again to be sought in the exuberant zeal for commercial development or nowhere. The object of the Capitulations was to regulate the conditions under which Europeans were to do business in the Levant; the interests of the Mussulman, whether at sea or abroad in a Christian country, were ignored in the scramble for the benefit of European commerce at home [26]. Thus, the element of reciprocity was conspicuously absent, but its absence, though conspicuous, ought not to betray any derogation from sovereignty on the part of the proud Saracens. The fact is that during the period under examination, the notion of exclusive sovereignty was still unborn, and it is highly improbable that much attention could have been paid to it by the negotiators on either side. Be this as it may, the consul, who was usually invested with the judicial authority, occupied a not at all exalted position in the Levant at the time [27].
Saved as the foreigner was from the fate of the infidel, by the Mohammedan quest after the boom of European commerce, he was nevertheless outside the pale of the Mohammedan religion. In the Koran, we find a passage to the following effect:
Say: O ye Unbelievers!
I worship not what ye worship,
And ye are not worshippers of what I worship;
And I am not a worshipper of what ye have worshipped,
And ye are not worshippers of what I worship.
To you your religion; and to me my religion. [28]
Inasmuch as the Koran was a judicial as well as a moral or religious code, one who was not a follower of the religion was naturally not amenable to the law. Hence, it was necessary to submit the foreigner to a special jurisdiction, the most reasonable being that of his own country [29].
Amalfi is said to have been the first Christian Power to enter into commercial relations with Egypt. According to Sir Travels Twiss, the merchants of that city obtained from the Caliphs of Egypt towards the end of the ninth century the privilege of trading at Alexandria under a consul of their own nationality, though the text of such a grant does not exist [30].
The earliest grant made by Egypt to a Christian Power, which has been preserved is a letter of 1154 addressed by an Egyptian official to Pisa, which guaranteed to the Pisans their own jurisdiction [31]. In this letter, allusion was made to the maintenance of old rights [32], which indicates the existence of consular jurisdiction in Egypt prior to 1154. Other Italian republics which enjoyed extraterritorial privileges in Egypt at this time were Venice [33], Genoa [34] and Florence [35].
Outside of Egypt, rights of consular jurisdiction existed also in the Barbary States in favor of the Italian and Spanish States [36].
According (to these Capitulations, the Christians were allowed to dwell in specially provided quarters under their own administration. Cases, whether civil or criminal, involving Christians of the same nationality were within the exclusive competence of their consul administering their own laws [37]. In mixed cases, the principle actor sequitur forum rei was generally adopted, but not without vagueness and confusion at times. Thus, while the Pisans were completely exempted from local interference in any cases involving them [38] and were required to proceed against criminals in the court of the admiral of Alexandria [39], and while the Venetian consul was to take cognizance of cases between Venetians and other Christians in Egypt [40], the Florentines, when they succeeded to the rights of the Pisans, were subjected to the jurisdiction of the sultan in their litigations with other Christians in Egypt [41]. This deviation from the general principle was removed by the treaty of 1496, which granted to the Pisans the same rights as had been enjoyed by the Venetians [42]. In general, cases involving foreigners of different nationalities were to be disposed of by their consuls, and cases between natives and Christians were likewise placed under the jurisdiction of the defendant's court [43].
In some of the treaties, a right of appeal was allowed to the local courts in cases where natives proceeded against Christians in their consular courts [44].
Notes by the Author (^)
[1] "By this Covenant ... I promise to defend their judges in my Provinces, with my Horse and Foot, Auxiliaries, and other my faithful Followers..." Rycaut, op. cit., p. 100; Van Dyck, "Report on the Capitulations of the Ottoman Empire," U.S. Sen. Ex. Doc. 3, 46th Cong., Sp. Sess., (Appendix I).
[2] Ravndal, The Origin of the Capitulations (Washington. 1921), p. 12.
[3] "Ils [the Christians] méritent tous les égards, parce qu'ils furent déjà autrefois honorés par le Prophète d'un Document muni de sou Sceau, par lequel il nous exhorte à les ménager et à leur accorder la sureté." Text in Miltitz, op. cit., vol. ii. pt. i, p. 500. Cf. Féraud-Giraud, De la Juridiction française dans les Echelles du Levant (Paris, 1866), vol. i, p. 36, n. 1.
[4] See a French translation of the text in Miltitz, op. cit., vol. ii, pt. i, p 500.
[5] Charriere, Négociations de la France dans le Levant, vol. i, pp. lxvi-lxix.
[6] Miltitz, op. cit., vol. ii, pt. i, p. 7; Pardessus, Collection de lois maritimes, vol. i, p. lxv.
[7] Klaproth, "Renseignements sur les ports de Gampou et de Zaithoum, déscrits par Marco Polo," Journal Asiatique, vol. v, pp. 35 et seq. Many writers have erroneously taken Canfu for Canton. Even such a learned scholar as Sir Travers Twiss has fallen into this mistake. Twiss, Law of Nations, vol. i, p. 447.
[8] Reinaud, Relation des voyages (Paris,, 1845), vol. i, p. 13. Cf. Par-dessus, op. cit., vol. ii, p. xxviij. Of the authority for the existence of a Mohammedan judge in China in the ninth century, Sir Travers Twiss says: "This interesting fact was first made generally known by a narrative purporting to be the work of two ancient Arab travelers which was translated into French by Eusebius Renaudot in 1718, and subsequently translated into English in 1733. The MS., however, of which there is preserved in the Bibliotheque Nationale in Paris a perfect example, has been subsequently ascertained to be an extract from a larger work by a most famous Arab historian, Ali Abou'l Hassan Mas'oudy, who died in Egypt A.D. 956, and who was a contemporary of the Arab travelers, whose voyage he has handed down to us." On Consular Jurisdiction in the Levant (London, 1880), p. 6.
[9] La Chronique de Nestor, trans, by L. Paris (Paris, 1834-35), vol. i, p. 40.
[10] Ibid., p. 61.
[11] Heyd, Histoire de commerce du Levant (Leipzig, 1885-86), vol. i, p. 131.
[12] Heyd, op. cit., p. 24; Nys, Les Origines du droit international (Brussels, 1894), p. 281.
[13] Heyd op. cit., vol. i, pp. 131-132. 135-136. Cf. Martens, Das Consularwesen (Berlin, 1874), p. 61; Nys, Les Origines, p. 283.
[14] Lünig, Codex Ital. Dip. (Francfort, 1725-34), vol. 1, c. 1060.
[15] Muratori, Antiq. Ital. (Avetti, 1773-80), vol. vi, c. 279.
[16] Venice, Nov., 1199, Tafel und Thomas, Urkunden zur älteren Handels- und Staatsgeschichte der Republik Venedig (Vienna, 1856-57), vol i, pp. 273-276; Genoa, Venice and Pisa, 1265, Pachymeres, Michael Palaologus (Rome, 1666), p. 105; Turkey, 1391, Ducas, Historia Byzantina (Paris 1649), p. 30. According to the last-mentioned grant, the Turks were to have a cadi in Constantinople to decide their own cases. This is important, as it constitutes a significant basis for the later Turkish Capitulations, especially as it was granted by a Christian to a Mohammedan Power. See Chapter III.
[17] Venice: Jerusalem, 1123, Tafel und Thomas, op. cit., vol. i, p. 87; May, 1125, ibid., p. 92; 1130, Muratori, op. cit., vol. vi, c. 288; Beirut, Dec., 1221, Tafel und Thomas, op. cit., vol. ii, p. 231; Tyre, 1275, Muratori, Rerurm italicarum scriptores (Mediolani, 1723-51). vol. xii, c. 382-383.
Pisa: Antioch, 1154, I.ünig, op. cit., vol. i, c. 1046; Jerusalem, 1157, ibid., c. 1047; Antioch, 1170, Muratori, Antiquitates Italicae, vol. vi, c. 268; Tripoli, 1187, ibid., c. 271; Tyre, Oct. 6, 1187, Ughelli, Italia Sacra (Venice, 1717-22), vol. iii, c. 415-416; 1188, Lünig, op. cit., vol. i. 1060; 1189, Muratori, op. cit., vol. vi, c. 278; 1191, ibid., c. 281; Antioch, 1216, ibid., c. 284.
Genoa: Antioch, Sep. 1, 1190, Dumont, Corps universel diplomatique, vol. i, pt. i, p. 115.
Marseilles : Syria, Nov. 8, 1226, ibid., p. 164.
[18] Genoa: July 12, 1218, Mas-Latrie, Histoire de l'île de Chypre (Paris, 1852-61), vol. ii, Doc., p. 39; June 10, 1232, ibid., pp. 51-52; Dec. 25, 1233, ibid., p. 58; Feb. 16, 1329 (art. 2), ibid., p. 153; April 18, 1365, (art. 3), ibid., pp. 258-9.
Venice: June 3, 1306 (art. 7), ibid., pp. 105-6; Sep. 4, 1328, ibid., pp. 142-3; Aug. 16, 1360, ibid., p. 232.
[19] The excepted cases were those of murder, rape, assault, treason and robbery. See Venice-Beirut, 1221; Pisa-Tripoli, 1187; Genoa-Cyprus, 1218, 1365 (art. 3); Venice-Cyprus, 1306 (art. 7).
[20] See all the acts listed in notes 13-15
[21] Pisa-Antioch, 1154, 1170. The Byzantine grant of 1199 to Venice stated that only the more important cases between Venetians and Greeks were to be tried by the local court.
[22] Venice-Byzantium, 1199; Venice-Jerusalem, 1123, 1125, 1130; Venice-Tyre, 1275; Pisa, 1187, 1189; Genoa-Cyprus, 1365 (art. 3); Venice-Cyprus, 1306 (art. 7).
[23] Miltitz, Manuel des consuls, vol. i, pp. 42-48, 168, n. 6; vol. ii. pt. i. p. 16; Ancien Diplomate, Le Régime des Capitulations, pp. 38-39; Depping, Histoire du commerce (Paris, 1830), vol. ii, p. 210. Cf, Foucher, Assises de Royaume de Jérusalem, 1 vol. in 2 (Rennes, 1839-41); Beugnot, Assises de Jérusalem, 2 vols. (Paris, 1841-43).
[24] Koran, sura xlvii, verse 4, "When ye encounter the infidels, strike off their heads till ye have made a great slaughter among them, and of the rest make fast and fetters."
[25] "La Question des Capitulations," Revue de droit international et de législation comparée (hereafter referred to as R. D. I.), vol. i, p. 119. Cf. Féraud-Giraud, De la Jurisdiction française dans les Echelles du Levant, vol. i, pp. 33-35.
[26] Mas-Latrie, Traités de paix el de commerce (Paris, 1865), Introduction Historique, pp. 114, 115. According to M. Mas-Latrie, who has made an exhaustive study of the documents bearing on the commercial relations between the Christian States of Europe and the Mohammedans of North Africa, a condition of reciprocity in all but one respect, could have come about. "Save this case [of religion] and this case alone, perhaps, the Mussulmans would probably have obtained in Europe complete equality of treatment, if the Arab plenipotentiaries, nearly always charged with the first draft of the treaties, of which the Latin text was only an interpretative version, had felt it opportune to stipulate for it." Ibid., p. 115.
[27] In the writings of Khalil ben-Schahin Dhahéri occurs a passage, which is translated by M. Silvestre de Sacy into French as follows: "Dans cette ville [Alexandria] sont otages des consuls, c'est-a-dire, de grands seigneurs d'entre les Francs des diverses nations: toutes les fois que la nation de l'un d'eux fait quelque chose de nuisible a l'islamisme, on en demande compte à son consul, qu'on en rend responsable." Silvestre de Sacy, Christomathie arabe (Paris, 1806), vol. ii, p. 318.
[28] Sura cix.
[29] Cf. Pelissie du Rausas, Le Régime des Capitulations dans l’Empire Ottoman (2nd ed., Paris, 1910-11), vol. i, p. 21, where it is said: "The Mussulman law was not made for the foreigner, since he is a non-Mussulman; it is necessary that he remain subject to his own law. The Mussulman law can neither protect him nor judge him nor punish him, since it protects, judges and punishes only Mussulmans; it is necessary that he be protected, judged and punished by his own law. The Mussulman law is the Jus Quiritium; it is the exclusive right, the privilege of the Mussulmans; and it is the Jus Gentium that rules the foreigner."
[30] Twiss, Law of Nations (2nd ed., Oxford, 1884), vol. i, p. 446.
[31] Amari, I Diplomi Arabi (Firenze, 1863), p. 247. This letter was confirmed by another letter from Saladin dated Sep. 25, 1173, ibid., p. 257, and a treaty of 1215-16 (art. 33), ibid., p. 287.
[32] Ibid., p. 248.
[33] Nov. 14, 1238, Tafel und Thomas, op. cit., vol. ii, p. 338.
[34] 1200, Notices et extraits des manuscrits de la Bibliothèque Nationale et autres bibliothèques, vol. xi, p. 35.
[35] June 14, 1422, Amari, op. cit., p. 333; 1488 (arts. 11, 12, 14), ibid., p. 384; 1496, ibid., p. 212; 1509, ibid., p. 223.
[36] Tunis: Venice, 1251 (arts. 4, 23), Mas-Latrie, Traités de paix et de commerce, Doc., pp. 200, 202; 1271 (art. 3), ibid., p. 204; 1305 (art. 3), ibid., p. 212; 1317 (art. 3), ibid., p. 217; 1392 (art. 3), ibid., p. 233; 1438 (art. 3), ibid., p. 251; 1456, ibid., p. 255; Genoa, June 10, 1236 (art. 15), ibid., p. 117; Oct. 18, 1250 (art. 15), ibid., p. 120; Oct. 17, 1391, ibid., p. 132; Oct. 19, 1433 (arts. 3, 15), ibid., p. 135; 1445, ibid., p. 142; Pisa, May 16, 1353 (arts. 9, 35), ibid., pp. 58, 62; Dec. 14, 1397 (art. 5), ibid., p. 74; Florence, 1421 (arts. 2, 3, 5), ibid., p. 347; Aragon, 1271 (arts. 9, 28), ibid., p. 283; 1285 (art. 28), ibid., p. 289; 1314 (art. 15), ibid., p. 309; 1323 (arts. 16, 17, 18), ibid., p. 322.
Morocco : Pisa, 1358 (art. 11), ibid., p. 68.
[37] See all the Captulations listed in notes 33-36.
[38] Letter of Saladin, Sep. 25, 1173.
[39] 1215-16, art. 33.
[40] 1238.
[41] 1488, art. 24.
[42] Amari, op. cit., p. 212.
[43] Venice-Egypt, 1238; Genoa-Egypt, 1290; Venice-Tunis, 1251, art. 23; 1305, art. 3; 1317, art. 3; 1392, art. 3; 1438, art. 3; Genoa-Tunis and Tripoli, 1236, art. 15; Genoa-Tunis, 1250, art. 15; 1433, art. 3; Pisa-Tunis, 1353, art. 9; 1397, art. 5; Florence-Tunis, 1421, arts. 2, 3, 5; Aragon-Tunis, 1271, art. 9; 1323, art. 16; Pisa-Morocco, 1358, art. 11. The treaty of 1356 between Venice and Tripoli contained the peculiar provision that cases between Saracens and Christians should be tried by special local judges, according to the laws of each party (art. 4).
[44] Venice-Tunis, 1305, art. 3; 1317, art. 3; 1392, art. 3; 1438, art. 3; Pisa-Tunis, 1397, art. 5; Florence-Tunis, 1421, art. 5; Aragon-Tunis, 1323, art. 16.