JURISPRUDENCE.
In Europe and America disputes often involve a process of tedious
litigation. It is not so in Turkey; although the Koran and its
voluminous commentaries decide every case "from a point of faith to a
right of gutter," yet the form of trial is so simple that it becomes
quite expeditious. For all Turkish jurisprudence may be condensed
into these two principles, viz.,
1st. In every case of litigation the testimony of two witnesses is
required of the plaintiff, and
2d. In default of witnesses an oath is administered to the defendant
as the only alternative.
No written document, except judicial, is considered valid, or
recognized by the courts, unless it be substantiated by two witnesses.
For instance, a banker had advanced to the treasury about $30,000
on account of a certain pasha, who farmed a province from the
government. Before the year was out the pasha died, and the court
of chancery taking charge of the estate of the deceased, it became
necessary to examine and settle the banker's account current with
the defunct. On examination it was found that the banker had paid
to the treasury the above mentioned sum in thirty-three different
installments, and received from the deceased only $18,000; so that
there was a balance due the banker of $12,000.
But the court of chancery would not recognize the disbursements of
the banker in behalf of the deceased, unless each of the installments
made by the banker to the government could be substantiated by two
witnesses; thus requiring no less than sixty-six witnesses for the
case. It was in vain the banker produced the vouchers of the government
regularly signed and sealed by the proper authorities. The judges
would admit nothing but the requisite witnesses, and in default of
such witnesses claimed from the banker the $18,000, the receipt of
which was avowed by him, and consequently due to the heirs.
Nor is this mode of justice, primitive as it is, ever used with
impartiality.
Witnesses are never subpoenaed by the courts, and no oath is required
of them for the truth of their depositions; also on account of
the spirit of fanatical animosity which exists mutually between
the Christians and Mohammedans, no unbiased testimony is to be
procured. Indeed, formerly, the Christians were not even allowed to
appear as witnesses.
The judges themselves being men of low birth and grovelling principles,
only hold their offices as sources of personal emolument, as the
wealth of various of these functionaries fully attests. The late
Sheikh-ul Islam, at his death, left the sultan, by bequest, nearly
a million of dollars!
Although strictly prohibited by the Koran, they are in the constant
habit of receiving bribes to any amount; notwithstanding the precepts
of their religion, which are ever and anon held up as barriers
to all reform, they are so corrupted, that their consciences are
immediately lulled, whenever the requisite bonus is slily slipped
under the cushions on which they sit, and the testimony of hired
witnesses is then winked at by them, and even supported, as their
interest may demand.
The only qualification requisite for a witness to appear before these
courts of justice, is to be omniscient, and never to utter the fatal
word Bilmem, I don't know.
When conflicting interests occur, which induce the judges to take side
against the witnesses--and such occasions are by no means rare, since
justice is not only put up at auction, but a single recommendation
from a grandee suffices to turn the scale--the scene is truly farcical,
and its sketch worthy of the pen of Dickens himself.
The Kadis adopt a singular method to disqualify the testimony. The
questions which are put in the cross-examination, are not only entirely
irrelevant to the subject matter in dispute, but would even puzzle
the "cutest Yankee" how to answer. Their object is to disqualify the
testimony by questions, no matter how ridiculous, but by which the
witnesses will be forced at last to utter the ominous word Bilmem--I
don't know.
With a view to ascertain whether the witnesses are well acquainted
with the party in whose behalf they are testifying, they are asked,
"who was the grandfather of the plaintiff?" The usual and formal
answer in such cases is, "Abraham," meaning the old Patriarch. "His
great grandfather?" "Adam," beyond whom he (the plaintiff), is not
supposed to have any ancestors.
On a certain occasion, a judge being very anxious to defeat the
testimony of a clever witness, after various ingenious interrogatories,
made the quaint inquiry, "who married Adam and Eve?" To which the
witness unhesitatingly replied, not, as it may be supposed, "I don't
know,"--oh no, not so stupid as that--but, "I was not invited to
the wedding."
It was a maxim of the government and a profitable one to its employés,
that in the administration of justice, a speedy infliction of
punishment, even though unjust, was more desirable than a tedious
course of litigation, as the fear and awe thus infused into the
hearts of the people, rendered them submissive to the most irrational
commands, and terrified the mass into a dread of infringing the laws,
although some few might suffer unjustly.
This principle, though nominally abandoned by the government, is
still maintained by the judiciary; therefore, no pleading by lawyers
is allowed, and the sentence is passed with all possible dispatch,
or deferred at pleasure, as circumstances may require.
The whole of Turkey is divided into two separate judicial districts,
viz., Anadolou, and Roumely, or Asia and Europe, and there is a
Kazi-ul-Asker, or chief justice, appointed to each district, who
preside over their respective courts.
There, is, however, a supreme court called, Arz-Odassi, or court of
appeals, where the Grand Vezir and the Grand Mufty conjointly preside,
and there all cases, when appealed, are heard; but the sentences
are seldom reversed, as they wish to preserve the decisions of the
judiciary courts inviolable. When the injustice is too gross and
palpable, a new Ilam or sentence is granted by this court, without
any allusion to prior proceedings.
It is true that the people have the right to appeal to his majesty
for redress, but as they are invariably referred to this court for
reconsideration, justice is seldom rendered to the appellants.
Foreigners are not tried before these courts. If the litigation
is between themselves, their cases are tried and settled by their
legations; but if with the natives, they are referred to a special
court of the ministry of commerce, called Medjlissy-Tidjaret, composed
of various merchants both natives and foreigners, and presided over
by the Minister of Commerce, or his deputy.
The code by which this body pretends to be governed, is the "Code
de Commerce" of Napoleon. How equitably it is applied by them, may
easily be perceived.
Imagine some twenty-five or thirty merchants, of different nations
and tongues, assembled together in the character of jurors, who not
only do not understand a word or syllable that is uttered in their
hearing, but often do not even possess the means of communicating
their ideas to each other.
The affair brought before them, being unintelligible to most of them,
it is generally conducted by the government officials, or some of the
members who are fortunate enough to know something of the language,
and their decisions imparted to the passive members, who usually
give their sanction, taking it for granted that all is right. The
consequence is, that if one of the litigants is so happy as to secure
the good will and patronage of an acting member, he is sure to come
off successfully, no matter how bad his case.
This body, like the other Turkish courts, admits not the pleading by
lawyers, for a good and simple reason, that its members being men of
business, and ignorant of law and legality, prefer to be governed by
their own judgment, and constitute themselves at once, judge, jury,
and prosecutors.
The interpreters of the foreign legations, are, however, required by
treaty to be present, who not only interpret for the parties, but are
bound to defend and protect their fellow citizens, to the best of their
ability, and report thereupon to their respective ambassadors. It
is to be regretted that the services of these individuals are not
always disinterested. Policy sometimes inclines them to side with
this serio-comical court, for the sake of keeping on good terms
with the officials and its members, and thus maintaining their own
reputations at the Porte as emissaries of foreign lands; while at the
same time a good opportunity is offered them for the gratification
of any personal pique or prejudice against their clients; so that a
foreigner may either suffer injustice, or be injurious to the people
of the country, without the knowledge of his own ambassador. How true,
then, the observation of Lord Stratford, that "the very atmosphere
of Turkey is impregnated with venality."
The costs of lawsuits are always defrayed by the gainer of the cause,
as he is supposed to be better able to afford such expenses; but the
evident design is to induce people to go to law, since justice is set
aside, and every facility afforded by the suborning of witnesses. Even
the sentences are so carelessly, nay designedly worded, that at any
time flaws may be discovered, and a new trial demanded.
The equity of making the gainer of the cause pay the costs, was
ludicrously illustrated in the case of an Arnavout or Albanian, who
was accused of stealing a gimlet. When in the presence of the Kadi,
he pleaded not guilty. The plaintiff, according to law, was required
to substantiate his accusation, by producing two witnesses. The man
was in a dilemma, for he had no witnesses to produce; but, as usual,
he was relieved from the anxiety, by the prompt offer of those harpies,
who linger about mehkemes, or courts of justice, and tender their
benevolent services in such emergencies, for certain remuneration.
Moderate as was their demand, the trifling claim not justifying
much extra expense, he modestly declined availing himself of this
privilege, and pleaded to have no witnesses. The only alternative
then for the kadi was to administer the oath to the defendant; which
was unhesitatingly complied with; for the Arnavouts are generally
noted for their pliable consciences. Thus having been duly sworn,
our hero was pronounced the happy gainer of the cause, and requested
to pay only the costs, which were ten times more than the value of
the article in question.
The Arnavout being somewhat of a speculative genius, after due
consideration of the pros and cons, in the case, coolly put his hand in
his bosom, and producing the disputed gimlet, threw it at his accuser,
saying, "There, have your gimlet, be you the gainer of the cause,
and pay the costs!"
As to criminal laws, they cannot be said to exist in Turkey; for this
form of justice being based upon the principle of retaliation, or
kissass, the prosecution is always on account of the injured party,
and not of the government; so that the release of a criminal is at
the option of an individual.