"Ambiguities and inaccuracies of this character respecting such important instruments are to be deplored; every proper effort should be made to avoid them, and when brought to light they should be corrected. "The President can not take it upon himself to determine whether the Senate would or would not have advised and consented to the ratification of the treaty had it been understood in the sense which we are now satisfied that it bears, nor is he disposed, without the advice of the Senate, either to promulgate a new and correct translation or to ask the Government of Turkey to enter into a new treaty, conforming to the English version which was proclaimed by President Jackson. He has therefore determined to submit the facts to the consideration of the Senate and await its resolution before inaugurating any diplomatic action. You are instructed in the meantime to avoid, and to direct our consular officers to avoid, making any issue the maintaining of which depends upon the English versions of the 4th and 7th articles of the treaty which is contained in our statutes, or drawing in question the construction which the Government of Turkey puts upon the original document." Mr. Fish, Sec. of State, to Mr. Morris, Oct. 19, 1869, MS. Inst. Turkey, II. 262. July 25, 1876, Mr. Farman, agent and consul-general at Cairo, called the attention of the Department of State to the fact that his berat from the Porte contained the following clause: "Citizens of the United States quietly pursuing their commerce and not being charged or convicted with any crime or offense, shall not be molested; and if they have committed any offense they shall be put in prison by the local authorities, but they will be punished with the cooperation of the consulgeneral, following in that respect the usage in force toward other Franks." No copies of the berats issued to Mr. Farman's predecessors had been sent to the Department of State, and he was informed that whether the attention of Turkey would be called to the clause in question would depend on the practice that had previously prevailed with regard to its insertion. Meanwhile, he was to govern himself by Mr. Fish's instructions to Mr. Morris, supra. (Mr. Cadwalader, Act. Sec. of State, to Mr. Farman, Aug. 25, 1876, MS. Inst. Egypt, XVI. 41.) In 1877 the United States consul at Smyrna tried and acquitted a seaman named Kelly, of the U. S. S. Vandalia, who Case of Kelly, 1877. was charged with the murder of a Turkish subject. This case caused a renewal of the discussion between the United States and Turkey as to the interpretation of Article IV. of the treaty of 1830. In a note of December 8, 1877, to the Turkish minister at Washington, Mr. Evarts stated that, in order that the discussion of the subject might be approached in perfect good faith, he had no hesitation in confirming the conclusion" reached by Mr. Fish, October 19, 1869, "that the English version, upon the faith of which the treaty was ratified by the Senate and the President of the United States, is erroneous." Mr. Evarts maintained, however, that the English version substantially reproduced "the purposes of the American plenipotentiaries," which were concurred in by the Senate and the President, as well as "the original version in the French tongue, signed first by Mr. Rhind, and afterwards by Commodore Biddle and Mr. Offley, and delivered to the Government of the Porte in exchange for the official Turkish version:" and he also contended that there was no just ground to doubt that the English version, as ratified by the Senate and the President, represented the current usage towards foreigners accused of crime in Turkey." 66 Mr. Evarts, Sec. of State, to Aristarchi Bey, Turkish min., Dec. 8, 1877, "Referring to the correspondence heretofore exchanged between your legation and the Department of State, and to the conferences which we have held, concerning the case of the seaman Kelly, who was tried by the United States consul at the port of Smyrna, I have now the honor to acquaint you with the sincere desire of this Government to put an end in an amicable manner to the long-pending discussion. "I am directed in the first place by the President to admit, on the part of the Government of the United States, that the United States are bound by the Turkish text of the treaty of 1830, which was signed in that text alone. I make this admission the more cheerfully in view of your repeated assurances, in the name of your Government, that not only shall the true intent of that text be observed, but also that the citizens of the United States within Ottoman jurisdiction shall have the treatment accorded to the citizens or subjects of the most favored nation either by treaty or by virtue of existing local laws or customs. "In the next place, with regard to the case of the above mentioned seaman Patrick Kelly, who, being accused of the commission of a homicide at Smyrna, was tried and released by the consul of the United States, I have the honor to state that without admitting any express or implied obligation in the premises, and without presently passing upon the true English equivalent of the Turkish text in the article involved, and upon the assurances tendered by you that the act of Kelly has reduced a Turkish family to penury and distress, the Government of the United States is prepared to spontaneously offer the sum of twelve hundred dollars ($1,200), money of the United States, for the relief of this suffering family. 66 Doubting not that your Government will regard all source of difference on this point as ended by such a course, I embrace this gratifying opportunity to renew to you," etc. Mr. Evarts, Sc. of State, to Aristarchi Bey, Turkish min., May 14, 1880, MS. Notes to Turkey, I. 251. See, also, same to same, June 26, 1880, id. I. 253. The discussion of Article IV. of the treaty of 1830 was continued in the case of Stephen P. Mirzan, an alleged citizen of Mirzan's case, 1879. the United States, who murdered Alexander Dahan, a distinguished lawyer, in the streets of Alexandria, Egypt, July 17, 1879. It appears that Mirzan and Dahan had an altercation in the street and finally came to blows, Mirzan striking Dahan. The latter ran away, fleeing through a bookstore, closely pursued by Mr. Mirzan, who, as Dahan passed out of one of the doors, shot him through the back of the head, the ball coming out through the forehead. Dahan died instantly. He was a subject of Turkey. Mirzan was tried at Alexandria before Mr. Maynard, then United States minister to Turkey, and was convicted June 12, 1880, of murder in the first degree and sentenced to be hanged October 1, 1880. President Hayes, July 29, 1880, commuted his sentence to imprisonment for life. (See supra, § 266, p. 635.) August 3, 1882, President Arthur directed that he be brought to Albany to serve out the remainder of his sentence in the penitentiary at that place. Mr. Bayard, Sec. of State, to Mr. Garland, Att. Gen., June 16, 1885, 156 For the notification of the commutation of Mirzan's sentence by President The question whether Mirzan should be tried before the consul-general of the United States at Cairo was fully considered by the Department of State. By the last clause of sec. 22 of the act of June 22, 1860, it was provided that if at any time there should be no minister in either of the countries therein mentioned, the judicial duties imposed upon him by the act should devolve upon the consul-general or consul residing at the capital of the country. This provision was not incorporated into the Revised Statutes, and was therefore excluded from consideration. The conclusion was reached that Egypt could not be deemed, for the purposes of the Revised Statutes, secs. 40834130, an independent country, but must be held to be a part of the Ottoman Empire, at the capital of which the United States maintained a diplomatic representative. In capital cases the statute, it was observed, invested the minister with original jurisdiction concurrently with the consul, and that when the trial was held in the consular court the defendant had a right of appeal to the minister. In view of the gravity of the offence with which Mirzan stood charged, and the probability that in the case of conviction before the consular court he would ask for a new trial before the minister, it was decided that the trial should be held before the minister in the first instance, and Mr. Maynard was accordingly instructed to proceed to Alexandria and hold it. (Mr. Evarts, Sec. of State, to Mr. Farman, consul-general, March 16, 1880, MS. Inst. Egypt, XVI. 161.) As to the refusal of the Department of State to issue to Mirzan a passport in 1890, after his liberation, on finding that he was apparently naturalized in the United States after only three years' residence, see Mr. Wharton, Acting Sec. of State, to Mr. Mirzan, July 30, 1890, 178 MS. Dom. Let. 458. Correspondence of 1884-1889. "The Imperial Ottoman legation has repeatedly been under the necessity of making representations to the Department of State in relation to the jurisdiction which is assumed by the United States consuls in Turkey over American citizens who have been guilty of crimes or misdemeanors committed within the terrritory of the Empire, to the exclusion of all intervention on the part of the Ottoman authorities, and that not only in cases in which the injured party is a foreign subject, but also in those in which such party in an Ottoman subject. "The Sublime Porte has always opposed this view of the United States, which is based upon an erroneous translation of Article IV. of the treaty of 1830. “Without wishing, Mr. Secretary of State, to enter upon a minute discussion of this question, which has already formed the subject of much correspondence between the two Governments, I will say that Article IV. of the said treaty does not create an exceptional régime in favor of American citizens. "The expression found therein following the usage observed towards (other) Franks,' can leave no doubt on this head. 6 "It clearly shows that neither more nor less was granted to American citizens than was granted to the subjects of other powers. I beg, moreover, to remind you that according to the declaration of Mr. Porter, then representative of the United States in Turkey (which declaration has never been disavowed), the Turkish text of the treaty of 1830 is the only one that is binding, and as that document says, In case any dispute shall arise between the two contracting parties, the said instrument (i. e., the Turkish text) shall be the only one according to which the difficulty shall be settled.' It was not until the year 1868 that Mr. E. Joy Morris, then United States minister at Constantinople, raised this question of jurisdiction, basing his action on the English translation of the Turkish text of Article IV. of the treaty of 1830. "The case in which he did so was that of two Americans, Romer and Lamar, who had been concerned in an affray in Syria. 66 There are in that translation entire phrases which are wanting in the Turkish text, which is, I repeat, the only one that is binding. "A long discussion between the two Governments followed, and Mr. Morris, by order of the Department of State, had new translations of Article IV. made at Constantinople, by six dragomans who were attached to various embassies there. According to the admission of the Department of State not one of those translations contains any phrases or words that would grant to the representatives of the United States the right of jurisdiction which we contest. In view of these facts, Mr. Fish, who was at that time Secretary of State, laid the question before the Senate, as appears from a dispatch addressed by him to Mr. Morris. Sixteen years have elapsed since then, and notwithstanding the reiterated efforts made by the Sublime Porte, both here and at Constantinople, no decision, so far as I am aware, has been reached by that body on this subject. The United States Government, yielding to evidence, finally adhered, it is true, in principle, to the view taken of this question by the Sublime Porte. It will be sufficient for me to quote in this connection the declaration made by Mr. Evarts, then Secretary of State, to my predecessor, in the name of His Excellency the President: I am directed,' wrote the Hon. Mr. Evarts, May 14, 1880, by the President to admit, on the part of the Government of the United States, that the United States are bound by the Turkish text of the treaty of 1830, which was signed in that text above.' [Mr. Evarts's note says in that text alone.] "I make this admission the more cheerfully in view of your repeated assurances, in the name of your Government, that not only shall the true extent' [Mr. Evarts's note says intent] of that text be observed, but also that the citizens of the United States, within Ottoman jurisdiction, shall have the treatment accorded to the citizens or subjects of the most favored nations' [Mr. Evarts wrote nation] either by treaty or by virtue of existing local laws or customs.' "Aristarchi Bey took note of this declaration, and, in his reply to the honorable Secretary of State, gave the most positive assurances. that citizens of the United States should enjoy, in Turkey, the same privileges and immunities as citizens of other countries. Notwithstanding these declarations, which ought to have put an end to the difference existing between the two countries, the Washington Cabinet thought proper once more to remit the examination of this matter to Constantinople, as stated by the Hon. Bancroft Davis, then Acting Secretary of State, to Aristarchi Bey, under date of December 30, 1881. You were also pleased to assure him, Mr. Seeretary of State, that the necessary instructions had been forwarded to the representative of the United States in Turkey, to enable him to settle this difference. No settlement has, however, been reached. "In the meantime, cases of crimes and misdemeanors continue to |