No. 471.
Mr. Maynard to Mr. Evarts.

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.

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.


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.

[l. s.]
[Inclosure 2 in No. 389.]

Mr. Maynard to Mr. Comanos.

Sir: Your dispatch, No. 766, dated July 30, 1879, has been received, respecting the distressing homicide at Alexandria, and seeking instruction on certain points:

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.
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.
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.,