No. 480.
Mr. Evarts to Mr. Comanos.
Washington, July 22, 1879.
Sir: I have received your message by cable (July 19), stating that an Egyptian lawyer had been assassinated by a naturalized citizen of the United States; that the man who committed the act had voluntarily surrendered himself, and was now at your instance confined in the Egyptian prison for Europeans; that the consul-general was absent; that the mixed tribunals possessed no jurisdiction of the case; and that you conceived yourself prohibited from acting, in pursuance of Mr. Fish’s instruction to Mr. Beardsley of the 29th of June, 1875.
I have transmitted the following, under date of to-day, to Alexandria:
Vice-consuls-general, by act February 1, ’76, have the power of consul. Exercise the jurisdiction as Farman would if present. Further instruction by mail.
The instruction of the 29th of June, 1875, to Mr. Beardsley, was rendered necessary by the fact that, in the original compilation of the Revised Statutes, the terra “vice-consul-general” was inadvertently omitted, and the error not having been discovered until after the publication of the first edition, an act of Congress became essential to its correction. It was accordingly so corrected by the act of Congress of the 1st of February, 1876, and that correction has been embodied in the second edition of the Revised Statutes, published in 1878. I inclose herewith a copy of section 4130, as it now stands, and I also transmit a copy of the second or revised edition of the Revised Statutes for the use of the consulate-general.
You are correct in stating that the mixed tribunals are not invested with jurisdiction in criminal matters. By article 9 of section 1, “Reglement d’Qrganisation Judiciaire,” that jurisdiction is prescribed and limited as follows:
These tribunals shall have sole cognizance of all suits in civil and commercial matters between natives and foreigners, and between foreigners of different nationalities not comprised in the personal statute.
They shall also have cognizance of all actions concerning real estate between all persons, even when they belong to the same nationality.
The President’s proclamation of the 27th of March, 1876, suspended the United States consular courts within the dominions of the Khedive, so far as the jurisdiction of said [mixed] tribunals may embrace matters now cognizable by the ministers, consuls, and other functionaries of the United States in said dominions.”
Consequently the United States consular courts in Egypt retain jurisdiction to try and punish citizens of the United States for offenses (crimes) which they may have committed in the dominions of the Khedive, as conferred by the fourth article of the treaty of 1830 between the United States and the Ottoman Empire, and prescribed by the act of Congress of the 22d of June, 1860. The provisions of this act of Congress are now embodied in the Revised Statutes, sections 4084 to 4130, inclusive.
Your attention is invited, however, to articles 6 and 7 of section 2 of the “Réglement d’Organisation,” which appear to provide for the trial and punishment by the mixed tribunals of persons accused of certain offenses in the nature of contempt of court. If the homicide was committed while the deceased (whom you state to be a lawyer) was in the presence of the mixed tribunal, or in the discharge of functions or duties in connection with the business of that tribunal, it may be that these circumstances would bring the case within the jurisdiction of the mixed tribunal. Of this, of course, the tribunal itself, with all the facts before it, would be the competent judge. Not having these facts before me, I refrain from the expression of any opinion on that question.
Should the case not come within the category of offenses enumerated in article 7, section 2, of the “Réglement d’Organisation,” it will become your duty to proceed in the matter as prescribed by the provisions of the Revised Statutes already referred to as sections 4084 to 4130, inclusive. In doing so, you will carefully observe every requirement, both of form and substance, prescribed by those provisions, and you will omit no proper measure or act within the scope of your judicial powers to secure to the accused a fair and impartial trial.
You will see that he is allowed to have counsel for his defense, and, if necessary, compulsory process to secure the attendance of such witnesses as he may deem essential to that defense. In case the trial of the accused shall result in a conviction, you will transmit, with as little delay as may be, a copy of the record of the proceedings, including the evidence adduced for and against the prisoner, to the Department; this in addition to the copy you are required to transmit to the United States minister at Constantinople; and you are further instructed to stay the execution of any sentence that may be pronounced by the consular court until you shall have received instructions from the Department, after the Secretary of State shall have examined the record.
With only the facts briefly stated in your telegram, I cannot now give you more precise instructions, but your judgment and discretion will at once dictate the necessity of prudence and care in the discharge of the duties devolving upon you in a matter of such serious importance.
I am, &c.,