the ground that the President, having exercised his power under the act of 1874, had exhausted it; and that, “as our right of extraterritorial jurisdiction flows from our treaty engagements with the Ottoman Government, it being set aside so far as Egypt is concerned might require special negotiation with the Sublime Porte, and would certainly require the assent of Congress to enable the President to accept the criminal jurisdiction of the mixed tribunals in like manner as when the civil jurisdiction of those courts was established." 6 While disclaiming any intention to modify or overrule this decision, the Department of State in 1889, without any action by Congress or Presidential proclamation, assented to the exercise by the mixed tribunals of "simple police" jurisdiction. In explanation of this action, the Solicitor of the Department of State said: "It is true that police' courts sometimes exercise criminal jurisdiction; and that the line between police offences and criminal' offences is one which it is not easy, as a matter of elementary definition, to draw. In view of the prior history of these courts, however, I am of opinion that the words simple police,' as here used, are to be interpreted as meaning preventive police;' and as excluding such police jurisdiction as carries with it the power to punish crime by fine or imprisonment. This view is to be considered in connection with the fact that the Egyptian code civil,' adopted in 1875, contains a provision (in article 10, page 27) that 'Les poursuites pour contraventions de simple police sont soumises à la jurisdiction des nouveaux tribuneaux (the prosecutions for violations of simple police are referred to the new tribunals). The word 'simple' here is to be taken as part of a complete code, in which it is used to distinguish the terms 'contraventions de simple police from crimes elsewhere made punishable. The use of the word contraventions goes to strengthen this position. In French law, offenses which are the subject of criminal jurisdiction are called crimes' or 'délits.' The avoidance of the words, in the present case, indicates an exclusion of these contraventions from the category of offences subject to criminal jurisdiction. And an additional argument to the same effect is to be drawn from the fact that in the Egyptian system the civil and the criminal codes are distinct, and the provision before us is placed in the civil code." A telegram was accordingly sent to the agent and consul-general of the United States at Cairo, accepting the jurisdiction of the mixed tribunals in matters of "simple police," with the declaration that it a Mr. Frelinghuysen, Sec. of State, to Mr. Pomeroy, agent, etc., at Cairo, Aug. 20, 1883, MS. Inst. Egypt, XVI. 317. See, also, Mr. Frelinghuysen, Sec. of State, to Baron van Alphen, Sept. 11, 1883, MS. Notes to the Netherlands, VIII. 103; Mr. Frelinghuysen, Sec. of State, to Mr. West, Brit. min., Oct. 23, 1883, MS. Notes to Great Britain, XIX. 362; Mr. Rives, Assist. Sec. of State, to Mr. Cardwell, agent, etc., at Cairo, Jan. 28, 1889, 128 MS. Inst. Consuls, 460. was understood to mean preventive police jurisdiction, and not to include authority corporally to punish crime. It was conceived that the proclamation of March 27, 1876, vested this right in the mixed tribunals, so that no new proclamation was necessary." 10. PRACTICE OF PROTECTION. (1) POLICY OF THE UNITED STATES. § 287. "Some misunderstanding having arisen at the consulates on the coast of Africa in relation to the extent of the protection which ought to be afforded to individuals under the flag of the United States, I am instructed by the President to inform you that such protection is to be afforded to none but American citizens, and the persons actually in the service of the consul, and not to them, if they have been guilty of any crime involving a breach of the peace, proved to the satisfaction of the consul, and for which he can not inflict a punishment satisfactory to the Government." Mr. Livingston, Sec. of State, to the consuls at Tangier, Tripoli, and "I was well aware of the custom of the representatives of Christian powers in the Barbary States to extend the protection of their flags over many individuals who are not citizens of their respective countries, and who can not be properly considered as officials, such as brokers, interpreters, &c. But whilst I deem it the duty of our consuls to protect American citizens, and necessary and useful official persons connected with their consulates, they ought scrupulously and carefully to abstain from all interference in behalf of individuals who are neither citizens nor have any rightful claim to our protection, and the more especially when such protection is likely to bring the American consul into any kind of conflict with the rights and prerogatives of the representatives of friendly powers." Mr. Clayton, Sec. of State, to Mr. McCauley, consul at Alexandria, Jan. 14, 1850, MS. Inst. Barb. Powers, XIV. 115. a Mr. Bayard, Sec. of State, to Mr. Cardwell, agent, etc., at Cairo, Jan. 30, 1889, 128 MS. Inst. Consuls, 474, enclosing an opinion of Dr. Wharton, Solicitor, of Jan. 28, 1889. See, also, same to same, Jan. 18, 1889, 128 MS. Inst. Consuls, 366, as to the general question of changes in the organization and jurisdiction of the mixed tribunals, Mr. Bayard saying: "While expressing sympathy with the proposals of the Khedive's government and willingness to join in any reformatory scheme for the organization and control of the mixed courts which may rationally commend itself to the acceptance of all, it becomes proper to reserve a formal and definitive acceptance of the result until the final agreement is before us." By the laws of Turkey and other eastern nations, the consulates therein may receive under their protection strangers and sojourners whose religion and social manners do not assimilate with the religion and manners of those countries. The persons thus received become thereby invested with the nationality of the protecting consulate. These consulates, and other European establishments in the East, are in the constant habit of opening their doors for the reception of such inmates, who are received irrespective of the country of their birth or allegiance. It is not uncommon for them to have a large number of such protégés. International law recognizes and sanctions the rights acquiesced [acquired] by this connection. In the law of nations as to Europe, the rule is, that men take their national character from the general character of the country in which they reside; and this rule applies equally to America. But in Asia and Africa an immiscible character is kept up, and Europeans trading under the protection of a factory take their national character from the establishment under which they live and trade. . . . (1 Kents Com. 78-9.) The Lords of Appeal in the High Court of Admiralty in England decided, in 1784, that a merchant carrying on trade at Smyrna, under the protection of a Dutch consul, was to be considered a Dutchman as to his national character. (Wheaton's Int. Law, 384, 3 Rob. Adm. Reports, 12.)" Mr. Marcy, Sec. of State, to Mr. Hulsemann, Austrian chargé, Sept. 26, 1853, in Koszta's case, H. Ex. Doc. 1, 33 Cong. 1 sess. 44-45. "The practice that has hitherto prevailed among our representatives in the Barbary States of extending their protection to the subjects of the government where they reside or even to foreigners not clothed with our nationality to screen them from prosecution for offences, or to place them beyond the reach of the laws as applicable to others differently situated, is an abuse that, in the judgment of this Department, ought to be corrected. "The late Consul Macauley was fully instructed on this subject when he went to Egypt, and I refer you to the despatch addressed to him on the 14th of January, 1850. . . "That such a custom, so much abused, should ever have existed is a source of regret; because it is the obvious policy of the United States to avoid and to compel its agents abroad to avoid, as far as possible, all connection and interference with the affairs of citizens of other countries. But the evil must be remedied with as little delay as possible. It may not be easy nor politic to get rid of it suddenly, so far as relates to some of the individuals who are now under protection, although not in the service of the consulate, and who may have rendered services to this Government or its agents in Barbary on former occasions. It might be harsh and unjust to withdraw from such persons the protection they have hitherto deservedly enjoyed, so long as they continue to deport themselves with propriety and to furnish no cause of complaint to the authorities of the country. But you will take care that no employés or protégés of this character not entitled to the protection of the United States, be taken into the service in future without the express and special consent and sanction of this Department." Mr. Marcy, Sec. of State, to Mr. De Leon, consul at Alexandria, Dec. 23, 1853, MS. Inst. Barbary Powers, XIV. 157. Cited with approval in Mr. Seward, Sec. of State, to Mr. Hale, consul at Alexandria, Dec. 11, 1866, MS. Inst. Barbary Powers, XIV. 332. "This Government will not consent that its consuls in Turkey shall be denied any privileges in regard to protecting persons not citizens of the United States which may be enjoyed by the consuls of other nations who have no special treaty stipulations on the subject. If custom in Turkey gives to foreign consuls the right of protecting even Ottoman subjects, it is presumed that this right is limited to such persons as may be absolutely necessary for the discharge of the consular functions, and must have originated and be tolerated on account. of the difficulty of obtaining persons, not subjects of the Porte, sufficiently acquainted with the oriental languages. It is obvious, however, that it is the duty of the consul to exercise this privilege with discretion, and not to employ any person for the purpose of screening him from prosecution for offenses against the laws of the country or any one known to be reasonably objectionable to the Government.” Mr. Marcy, Sec. of State, to Mr. De Leon, Aug. 16, 1854, MS. Inst. Barb See, also, Mr. Davis, Assist. Sec. of State, to Mr. Beardsley, March 31 Soliman Gharbi, who claimed to be a lineal descendant of Ahmet Pacha Caramalli, of Tripoli, addressed to the President of the United States a petition expressing apprehensions as to the safety of his person and property in Alexandria, and asking that the American consul there be instructed to afford him all the protection which could be extended in his behalf. A declaration of intention by the petitioner, dated at New York, July 26, 1858, accompanied the petition. Mr. Cass, in writing to the consul, said: "This Government cannot extend to Mr. Gharbi such protection as it is bound to afford to its own citizens residing under foreign jurisdictions; . . . yet under the circumstances of the case, and especially in view of the position once occupied towards the Government of the United States by his alleged ancestor, it is deemed proper to commend Mr. Gharbi to your good offices, and to request you-after you shall have satisfied yourself that . . . he has given no just cause of complaint to the authori 6 ties of the viceroyalty to grant him such protection as may be authorized by law and by the regulations of the Department. In this, you will of course be careful not to transcend the authority given to consular officers of the United States in the East, by the 28th chapter of the regulations referred to, which prescribes the issuing, to aliens under consular protection, of a simple certificate that the person to whom it is given is cared for and received under the protection of the Government whose agent has granted it.' You are aware that this authority to protect aliens has not always been used with discretion, and that, in consequence of its abuse, the Department has, without entirely forbidding it, discountenanced its exercise as far as possible. It is, indeed, questionable whether the regulation which admits it is consistent with the act of August 18, 1856, in relation to the granting of passports and certificates. The Department hopes that you may be able, without committing your Government to a defence of the rights of Mr. Gharbi in case of their being invaded, to secure him and his family against further molestation, so long as their conduct is not justly obnoxious to censure." Mr. Cass, Sec. of State, to Mr. De Leon, consul at Alexandria, No. 17, The practice of protection being "liable to abuse and one that ought to be abolished," none but citizens of the United States with passports from the Department of State, or persons who, being citizens, were certainly known to be entitled to receive passports from the officials of the United States abroad, "have properly any right to protection from our legations and consulates." Mr. Cass, Sec. of State, to Mr. Williams, min. to Turkey, Feb. 20, 1858, In 1861 Mr. Seward, replying to an inquiry whether a person, alien born, but who had taken the initiatory steps towards becoming a citizen of the United States, could, during a contemplated visit to Alexandria, Egypt, place himself under the protection of the United States consul-general there, stated that, in consequence of the abuse of the practice of extending consular protection to aliens, the consular officers of the United States in Turkey and other Eastern nations had of late years been instructed "to exercise their right in this respect with much caution." The degree of protection, if any, which it might be proper to afford to the person in question, it would be for the consul-general to determine without special instructions. Mr. Seward, Sec. of State, to Mr. Roelker, Sept. 9, 1861, 55 MS. Dom. |