File No. 2751/5–10.
The Third Assistant Secretary of
State to Consul-General
Iddings.
Department of State,
Washington, January 30,
1907.
No. 67.]
Sir: I have to acknowledge the receipt of your
dispatch No. 147 of the 16th ultimo relative to the case of Jorge Nelken
y Waldberg, a naturalized American citizen and publisher of a daily
newspaper at Cairo, who it has been suggested to you should be expelled
from Egypt at your instance on account of virulent attacks made by him
in his newspaper against several foreign officials in that country.
In reply I have to inform you that the powers of the agency and the
consulate-general in this class of cases and its limitations would seem
to have been made quite clear by the department’s telegram of December
1, 1906.
For your fuller information, however, the following portions of opinions
of the solicitor of the department are embodied herein and a copy of
that officer’s memorandum upon certain phases of American
extraterritorial jurisdiction in China, which is suggestive as to a
number of points, is inclosed:
An American in Egypt could be prosecuted for libel both civilly
and criminally. The civil suit would be within the jurisdiction
of the mixed tribunals of Egypt, which “extends in general to
civil and criminal cases between aliens and natives, including
officials of the Egyptian government, and between aliens of
different nationalities.” (Hinckley, American Consular
Jurisdiction in the Orient, p. 156.) The criminal prosecution
would be a matter for our consular court. (See p. 3 of
memorandum.) In case of conviction, sentence might properly be
sustained on condition of his leaving the country, thus working
a practical deportation.
It is, of course, settled that American consular officers, even
in extraterritorial regions, have no authority conferred upon
them by statute to expel or deport. (Hinckley, American Consular
Jurisdiction in the Orient, p. 105.)
Article 4 of our treaty with Turkey of May 7, 1830, confers
criminal jurisdiction over American citizens in Turkey upon
American consular and diplomatic officers when it says: “And
even when they (American citizens) may have committed some
offense they shall not be arrested and put in prison by the
local authorities, but they shall be tried by their minister or
consul and punished according to their offense, following in
this respect, the usage observed toward other Franks.” Section
4125, Revised Statutes, provides that the statutory provisions
conferring judicial authority upon American diplomatic and
consular officers shall extend to Turkey under the treaty of May
7, 1830. Our treaty, and the statutes enacted to carry the
treaty into effect, confer criminal jurisdiction over American
citizens upon American consular and diplomatic officers to the
same extent as that exercised by other foreign powers within the
Turkish dominions. (Dainess v. Hale, 91
U. S., 13, semble). A large portion of the civil jurisdiction
conferred upon American consular courts in Egypt, and a certain
[Page 1079]
part of the
criminal jurisdiction, have been more recently conferred, with
the consent of the United States, upon the so-called “mixed
tribunals.” (See President Grant’s proclamation reciting the
statute of Congress to this effect; For. Rel., 1876, p. 1; act of Mar. 23, 1874; 18 Stat.
L., 23; Hinckley, American Consular Jurisdiction in Orient, p.
155.) The text of the regulations defining the jurisdiction of
mixed tribunals may be found in British and Foreign State
Papers, volume 66, page 593; volume 81, page 578. The substance
of these regulations, in so far as they refer to the criminal
jurisdiction of the court, may be thus stated, quoting
Plinckley: “The courts have a limited criminal jurisdiction,
intended in the first place solely for their own protection, but
extended in 1889 by decree of the Khedive so as to apply to all
general police regulations for the public security, not
including offenses of a serious nature.”
It would seem clear that jurisdiction over criminal libel
committed by American citizens in Egypt still vests in the
American consular courts and has not been transferred to the
mixed tribunals. (See, for a general discussion of the
common-law powers of American consular courts, 7 Op. Atty. Gen.,
495 at 503; memorandum of the solicitor; in regard to offenses
against morality and decency within the jurisdiction of the
consular courts in China, Solicitor’s Docket No. 884. For the
account of a murder trial in the American consular court in
Egypt, see For. Rel. 1879, p, 1010.)
I am, etc.,
[Inclosure.]
memorandum by the solicitor.
Department of State,
Washington, January 2,
1907.
Mr. Wilson: The Waldberg matter came up in
connection with the accompanying cable of Consul-General Iddings of
November 26, 1906, and the memorandum herewith submitted was
prepared at that time. The cablegram submitted with the memorandum
was sent to Consul-General Iddings on December 1.
It is believed that the memorandum will be found to be substantially
responsive to your note of December 21. Mr. Waldberg could be
prosecuted for libel both civilly and criminally. The civil suit
would be within the jurisdiction of the mixed tribunals of Egypt,
which “extends in general to civil and criminal cases between aliens
and natives, including officials of the Egyptian Government, and
between aliens of different nationalities.” (Hinckley, American
Consular Jurisdiction in the Orient, p. 156.) The criminal
prosecution would be a matter for our consular court. (See p. 3 of
memorandum.) In case Waldberg was convicted sentence might properly
be suspended on condition of his leaving the country, thus working a
practical deportation.
As regards the question of giving Waldberg a passport in case he
should apply for one, which is discussed on pages 1–2 of the
accompanying memorandum, it should be noted that recently in the
case of one J. H. Brown, the Secretary has refused to issue a
passport to an American citizen who had previously denied his
American citizenship. That is to say, he has exercised the
discretion vested in him by statute and declined to issue a passport
to a man admittedly an American citizen.
As pointed out on page 2 of the memorandum, it would be in like
manner entirely within the competence of the Secretary to direct a
refusal of a passport to Mr. Waldberg in case he should apply for a
renewal, as a matter of policy.
The solicitor, in his memorandum to the Secretary in regard to the
Brown case, used the following language:
“If the passport is desired to accomplish a criminal purpose, it
would be properly refused. If the passport is sought to prolong a
residence in a foreign country, and if such residence would be
impossible or disadvantageous without the passport, it may well be a
question for the Secretary to consider whether the occupation in
which such person is engaged is legitimate or illegitimate, judged
either by the laws of the United States or by the laws of the
applicant’s residence, to determine whether or not the request for
the passport should be refused. If it appears that the applicant
keeps a disorderly house, or that he is engaged in gambling, or that
he has violated knowingly, notoriously, the laws of
[Page 1080]
his residence, it may well be that
the United States may not care to make itself a party to such
misconduct by the issue of a passport.
* * * * * * *
“If a passport were in itself a certificate of citizenship, and if
the inability to produce a passport carried with it the loss of
protection, it might well be urged that Brown is entitled to a
passport irrespective of his conduct, misconduct, or the interests
of the United States. If, however, protection is not dependent upon
passport, but that in a proper case an American citizen in a foreign
land will be protected, it follows that the existence or
nonexistence of a passport does not affect the status of the person
without it in his relation to the home government. Its possession
would, however, be in international law an evidence of citizenship;
its absence would not be fatal to protection.”
It might perhaps be well to inquire of the agency, when calling upon
it for a report in this case, as to whether or not the possession of
a passport is either legally or practically necessary to Mr.
Waldberg in order to prolong his residence in Egypt. In case it
should be thought desirable to refuse Waldberg a passport it would,
of course, be perfectly possible to give at the same time directions
that he should receive protection as an American citizen.
The memorandum in the Brown case is appended for your
information.
Of course no question arises at present in regard to the refusal of a
passport; first because Waldberg does not as yet appear to have
applied for such passport, and secondly, because no evidence is at
present before the department regarding Waldberg’s alleged
libels.
There would seem to be no special reason why Lord Cromer should enjoy
an immunity from unfavorable comment in Egypt which he could not and
does not enjoy either in England or the United States.
[Subinclosure.]
memorandum by the solicitor in regard to the
jurisdiction over the offense of criminal libel committed by an
american citizen in egypt.
Department of State,
Washington, December 1,
1906.
Mr. Adee: The department is in receipt of
the following cablegram:a
This cablegram raises several questions. In the first place, the
question arises as to whether or not Mr. Waldberg could properly be
refused a passport on account of anything which appears in the above
cablegram. Stating the case as against Mr. Waldberg as strongly as
possible, it amounts to this: That he is alleged to be the publisher
of a newspaper which publishes libels, and that he is accused of
publishing attacks upon Lord Cromer which may amount to criminal
libel.
The law officer of the department respectfully concurs with Mr. Hunt
in thinking that a passport is not a certificate of character,
although the granting of a passport is a matter of discretion with
the Secretary and not a matter of strict right. (See 23 Op. Atty.
Gen., 509; 13 Op. Atty. Gen., 89–92; Moore’s Int. Law Digest, sec.
512.) In the exercise of this discretion passports may be refused to
persons who are unquestionably American citizens on high grounds of
public policy. (See instance cited by Mr. Hunt; also, suggestions of
the Attorney-General that the public interest might require the
refusal of a passport to an avowed anarchist, 23 Op. Atty. Gen., 509
at 511.) But “even in cases of crime or offense in a foreign land a
citizen of the United States would be entitled in case of need to
such certification of his status as a passport affords.” (Mr. Adee
to Mr. Conger, For. Rel. 1899, 186.)
It would therefore seem that nothing disclosed in Mr. Idding’s
cablegram would afford a sufficient reason for refusing a passport
to Mr. Waldberg except by express direction of the Secretary, as a
matter of policy.
Secondly. Mr. Idding’s cablegram states that Lord Cromer “wishes
Waldberg expelled.” This would seem, from the context, to mean that
he desires the expulsion of Mr. Waldberg by American authority. It
is, of course, settled that American consular officers, even in
extraterritorial regions, have no authority conferred upon them by
statute to expel or deport. (Hinckley, American Consular
Jurisdiction in the Orient, p. 105.) The question of the
[Page 1081]
right of the Egyptian
government to expel Waldberg does not arise on the face of the
cablegram and need not be discussed at present.
Thirdly. Mr. Waldberg, according to the facts stated in the
cablegram, may well be guilty of the common-law offense of criminal
libel. “It is a misdemeanor at common law to maliciously publish any
writing, picture, sign, or other representation which tends to
defame a living person and expose him to ridicule, hatred, or
contempt.” (Clark & Marshall, Criminal Law, sec. 428.) It should
be noted, however, that Lord Cromer is a public character and
subject to “fair comment,” which means “a comment which is either
true or which if false expresses the real opinion of its author,
such opinion having been formed with a reasonable degree of care and
on reasonable grounds.” (Clark & Marshall, Criminal Law, sec.
428 at p. 650.)
Article 4 of our treaty with Turkey of May 7, 1830, confers criminal
jurisdiction over American citizens in Turkey upon American consular
and diplomatic officers when it says: “And even when they (American
citizens) may have committed some offense, they shall not be
arrested and put in prison by the local authorities, but they shall
be tried by their minister or consul and punished according to their
offense, following in this respect the usage observed toward other
Franks.” Section 4125, Revised Statutes, provides that the statutory
provisions conferring judicial authority upon American diplomatic
and consular officers shall extend to Turkey under the treaty of May
7, 1830. Our treaty, and the statutes enacted to carry the treaty
into effect, confer criminal jurisdiction over American citizens
upon American consular and diplomatic officers to the same extent as
that exercised by other foreign powers within the Turkish dominions.
(Dainese v. Hale, 91 U. S., 13, semble.) A
large portion of the civil jurisdiction conferred upon American
consular courts in Egypt and a certain part of the criminal
jurisdiction have been more recently conferred, with the consent of
the United States, upon the so-called “mixed tribunals.” (See
President Grant’s proclamation reciting the statute of Congress to
this effect, For. Rel., 1876, p.
1, act of March 23, 1874; 18 Stat. L., 23; Hinckley, American
Consular Jurisdiction in Orient, p. 155. The text of the regulations
defining the jurisdiction of mixed tribunals may be found in British
and Foreign State Papers, v. 66, p. 593; vol. 81, p. 578). The
substance of these regulations, in so far as they refer to the
criminal jurisdiction of the court, may be thus stated, quoting
Hinckley: “The courts have a limited criminal jurisdiction intended
in the first place solely for their own protection, but extended in
1889 by decree of the Khedive so as to apply to all general police
regulations for the public security, not including offenses of a
serious nature.”
It would seem clear that jurisdiction over criminal libel committed
by American citizens in Egypt still vests in the American consular
courts and has not been transferred to the mixed tribunals. (See,
for a general discussion of the common-law powers of American
consular courts, 7 Op. Atty. Gen., 495 at 503; memorandum of the
solicitor in regard to offenses against morality and decency within
the jurisdiction of the consular courts in China, Solicitor’s Docket
No. 884. For the account of a murder trial in the American consular
court in Egypt, see For. Rel., 1879,
p. 1010a)
Note.—It should be noted that it is a
misdemeanor at common law for two or more persons to conspire to
make a false charge against another for the purpose of injuring his
reputation or for the purpose of extorting money from him, as in
case of blackmail, but Mr. Iddings’s cable shows no evidence of
conspiracy, and a simple blackmail is not an offense at common law.
(Clark & Marshall, Criminal Law, sec. 145.)
