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A capitulation (from Lat. caput) is a treaty or unilateral contract by which a sovereign state relinquishes jurisdiction within its borders over the subjects of a foreign state. As a result, the foreign subjects are immune, for most civil and criminal purposes, from actions by courts and other governmental institutions in the state that makes the capitulation.
In Turkey arrangements termed capitilations, and treaties confirmatory of them, have been made between the Porte and other states by which foreigners resident in Turkey are subject to the laws of their respective countries.
In the 9th century, the caliph Harun al-Rashid granted 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-Muslim peoples were allowed their semi-autonomy in matters affecting their personal status, and, the Genoese of Galata were confirmed in their privileges.
The treaty of 1641 between the Netherlands and Portugal contains the first European formula. Cromwell continued the commercial treaty policy partly in order to obtain a formal recognition of the Commonwealth from foreign powers. His treaty of 1654 with Sweden contains the first reciprocal most favored nation clause: Article IV provides that the people, subjects and inhabitants of either confederate shall have and possess in the countries, lands, dominions and kingdoms of the other as full and ample privileges, and as many exemptions, immunities and liberties, as any foreigner doth or shall possess in the dominions and kingdoms of the said confederate. The government of the Restoration replaced and enlarged the Protectorate arrangements by fresh agreements. The general policy of the Commonwealth was maintained, with further provisions on behalf of colonial trade. In the new treaty of 1661 with Sweden the privileges secured were those that any foreigner should enjoy in the dominions and kingdoms on both sides.
The English capitulations date from 1569, and then secured the same treatment as the Venetians, French, Poles and the subjects of the emperor of Germany; they were revised in 1675, and as then settled were confirmed by treaties of subsequent date now and for ever.
Notes and references
- The Low-Latin diminutive of caput is capitulum, as indicating the form in which these acts were set down in chapters; the Greek equivalent, cephaleosis, is occasionally used in works of the 17th century.