No. 471.
Mr. Maynard to Mr. Evarts.
Legation of the United States,
Constantinople, August 29, 1879.
(Received October 2.)
No. 339.]
Sir: A dispatch from the agency and
consulate-general at Cairo mentions a recent homicide by an American
citizen at Alexandria, and propounds certain questions relative to the
trial of the offender. The vice-consul-general at Constantinople, who
chanced in Alexandria at the time, corroborates the statement with
additional particulars. I have made answer to the propositions, and both
dispatch and answer are submitted to your careful attention.
[Page 988]
The most important inquiry is that which seeks the construction and legal
effect of the proviso to section 4109, Revised Statutes, in these words,
“Provided, That in cases where a consular
officer is interested, either as party or witness, such minister shall
have original jurisdiction.” Now, in the present case, should the
consular agent at Alexandria be a witness, and should his appointment as
consular agent be found legal, does the jurisdiction of the minister
thereby become exclusive or only concurrent with that of the consul? The
same question in one form or another has previously occurred, and it has
seemed to me, after examination, that the jurisdiction given to the
minister by the proviso is concurrent only, the legislative intent
conforming to the actual requirement.
For a trial of such gravity I desire the best advice possible, and
therefore beg you to examine the question. Should you differ with me in
opinion, and hold the jurisdiction of the minister to be exclusive,
please intimate whether the cause—parties and witnesses—should be
brought for trial to the legation in the capital, or should the minister
go to the district of the cause, after the manner of an American circuit
judge, or an English judge at nisi prius. Either
course would be extremely inconvenient.
I have, &c.
[Inclosure 1 in No.
339.]
Mr. Comanos to
Mr. Maynard.
Agency and Consulate-General of the United States in
Egypt,
Cairo, July 30,
1879.
Sir: At about half past two o’clock on the
afternoon of Thursday, the 17th instant, Etienne (i. e. Stephen) Polycarpe Mirzan, a citizen of the United
States, naturalized in Boston, Mass., and Dr. Alexander Dahan,
lawyer and Egyptian subject, met on the street in the city of
Alexandria, conversed together about certain money matters,
quarreled, and came to blows. The scuffle ended by Dahan’s running
through a corner bookstore, in at one door and out of the other,
closely followed by Mirzan, who then shot him with a good sized
revolver. The ball struck the back part of the head and pierced
through to the forehead, causing instantaneous death.
Mirzan then went straight to the United States consular agency at
Alexandria, gave up the revolver and surrendered himself to acting
consular agent Zograffo, saying that lie had just shot a man. Being
at the time in Alexandria, I was immediately sent for. At first
Mirzan refused to go to prison, and asked to be kept under arrest in
his own house. But when his lawyer, Mr. Kirby, came and told him
that he must go to prison, he went without resistance to the
Egyptian prison called “Moharram Bey,” to which all French and
English prisoners are now sent, and where he still remains, subject
to my orders. Under these circumstances I have not issued a formal
warrant for arrest, as Mirzan, by his own free act, has accomplished
all the purposes of such a warrant.
Mr. Agent and Consnl-General Farman is absent on leave of sixty days
with permission to go to the United States. I am acting in this
matter under Title XLVII of the second edition of the Revised
Statutes, 1878, and under the rules for the consular courts of the
United States in Turkey, published by the minister resident at
Constantinople March 31, 1863.
I beg you, sir, to inform and instruct me on the following
points:
1. Have the above-mentioned rules been modified in any way, and are
they binding on United States consular courts in Egypt?
2. Must the list of associates sent to you by Mr. Farman on the 16th
of October, 1876, remain intact, or can it be increased or
supplemented by submitting to you another list?
The reason for this question is that the list as it now stands
contains only nine names, and if the parties make free use of the
right to challenge (article 104 of the rules), and if several of the
gentlemen whose names are on the list object or refuse to act (and
it is highly probable that some of them will), the panel will soon
be run through. Besides, the list was, I suppose, as complete as it
could be made at that time, but during
[Page 989]
the past three years the number of eligible
and respectable citizens residing in Egypt has greatly increased. A
list of about fifteen names could be easily made out.
3. How am I to interpret the proviso in section 4109 of Title XLVII?
Does the term “consular officer” therein used mean only the “consul”
as defined in section 4130 of the same title, or does it include all
other classes of such officers? See Title XVIII, chapter I, section
1674, paragraph “fourth,” and chapter II, section 1689, and many
other sections of the same chapter. Throughout the whole of Title
XLVII this term consular officer, so far as I am aware, occurs only
in the proviso above mentioned.
The reason for this question is that in all probability one of the
parties will ask that the testimony be taken of Mr. Zograffo, United
States acting consular agent at Alexandria. In order to fully define
this gentleman’s position, I herewith inclose a copy of the
commission by virtue of which Mr. Zograffo is acting. In this
commission, Mr. Farman says, “by the authority vested in me.” He has
been authorized by an instruction from the State Department to
appoint, with the consent of the Egyptian Government, persons to
temporarily perform the duties of consular agent, and in the case of
Mr. Zograffo the consent of the Egyptian Government has been
obtained. If he be a “consular officer,” and if his testimony is
required, the case in hand falls immediately under your original
jurisdiction.
I beg you, sir, to give me also any other observations or
instructions you may think proper and likely to be of assistance to
me in the course of this affair. I am at present inclined to go only
so far as is necessary to secure the trial of the delinquent, and
leave the trial itself to be conducted by the consul-general some
time next fall. Please send one or two copies of the rules of March
31, 1863.
I have, &c.,
[Inclosure with dispatch of Mr. Comanos
to Mr. Maynard.]
agency and consulate general of the united
states of america for egypt and dependencies.
Greeting:
Know ye that I, Elbert E. Farman, agent and consul-general of the
United States of America at Cairo, Egypt, by the authority vested in
me, and by and with the consent of the government of His Highness
the Khedive, have appointed, and by these presents do appoint, O. A.
Zograffo, resident of Alexandria, to temporarily perform the duties
of the office of consular agent of the United States at that place,
until the return of C. M. Salvago, the consular agent, to his post
of duty, or until his place shall be otherwise filled.
Given under my hand and the impression
of the seal of the agency and consulate-general of the United
States at Cairo, July 8, A. D. 1879,
and in the 104th of the Independence of the United
States.
[
l. s.]
E. E.
FARMAN.
[Inclosure 2 in No.
389.]
Mr. Maynard to
Mr. Comanos.
Legation of the United States,
Constantinople, August 27, 1879.
Sir: Your dispatch, No. 766, dated July 30,
1879, has been received, respecting the distressing homicide at
Alexandria, and seeking instruction on certain points:
- 1.
- You ask if the rules for consular courts promulgated by my
predecessor, March 31, 1863, have been modified, and if they
are binding on the consular courts of Egypt. I reply, they
have not been modified, and they are obligatory on all the
consular courts in the Ottoman Empire, Egypt included. At
your request, I inclose two copies.
- 2.
- You inquire if the list of associates provided for by
section 4106 Revised Statutes may be increased by submitting
for approval an additional list. By referring to section
443, consular regulations, 1874, you will see that it not
only can be, but, under the circumstances detailed by you,
ought to be.
- 3.
- You seek an interpretation of the phrase “consular
officer” in the proviso to section 4109, Revised Statutes.
The words consular officer are to be interpreted by section
1674, clause fourth, and section 4130. But for the object
you have in mind, it is unimportant. What you wish to know
evidently is whether, if the consular agent at Alexandria
should be a witness, and, if his appointment be legal, the
consul-general at Cairo has jurisdiction; or must the case
be submitted to the minister. Section 4109 gives the
minister appellate jurisdiction only, except in cases of
murder, treason,
[Page 990]
and felony, where his jurisdiction is original. It is also
original when a consular officer is interested. But in none
of these exceptional cases is his jurisdiction exclusive, as
is evident from sections 4102 and 4106, both of which
contemplate the trial of capital cases by the consul and his
associates. There is no reason why a consul might not try a
case, simply because a consular agent might happen to be a
witness or even a party. It would be otherwise were he
himself a party or even a witness. Then the minister has
original jurisdiction to prevent what else might happen—a
denial of justice.
The provisions of law for the trial of murder are few and simple.
They are to be found in sections 4102, 4103, and 4106. As the result
of a trial may have serious consequences, you do well, doubtless, to
leave it to be conducted before the consul-general himself.
I am, &c.,
