suls, 376; Mr. Rockhill, Assist. Sec. of State, to Mr. Burke, consulgen. at Tangier, No. 33, Nov. 7, 1896, 154 MS. Inst. Consuls, 334. "No certificate of protection can . . . be issued by the consul-general [at Tangier] until the right of the person claiming it has been fully established to the satisfaction of the Department, which then instructs the consul-general to furnish the applicant with a certificate." (Mr. Olney, Sec. of State, to Baron Fava, Ital. amb., Jan. 29, 1896, MS. Notes to Italy, IX. 78.) "I have to apprise you in connection with the Department's letter to you of July 14, last, of the receipt of a letter from the Secretary of the Navy, of the 9th instant, covering copies of the correspondence beteween Mr. Felix A. Mathews, United States consul at Tangier, and Rear-Admiral Earl English, commanding the European Squadron, by which it appears that Admiral English, on the 20th ultimo, who visited Tangier in his flagship Lancaster, made a formal demand upon the Moorish Government for the immediate release of your two native agents imprisoned at Fez; the immediate return of all property belonging to your firm and unjustly taken by the governor of Ducalla, and for the dismissal. and punishment of the said governor for having violated treaty obligations in the person of those agents." (Mr. Bayard, Sec. of State, to Messrs. Roosevelt and Howland, March 11, 1885, 154 MS. Dom. Let. 439.) (4) CONSULAR JURISDICTION. $290. In 1849 Mr. Daniel S. Macauley, United States consul at Alexandria, entertained and decided the case of Fargion against Halfor. "His proceedings in that case were disapproved on the ground that he had no rightful jurisdiction because neither of the parties was a citizen of the United States, though the defendant, Halfor, was nominally what is called a broker to the consulate.” Mr. Seward, Sec. of State, to Mr. Hale, consul-general at Alexandria, Dec. 11, 1866, MS. Inst. Barbary Powers, XIV. 332. The British minister at Washington having expressed the opinion that British consular officers were entitled, under the treaty between Great Britain and Morocco of December 9, 1856, to exercise jurisdiction, both civil and criminal, over Mr. Scott, the interpreter of the American consulate at Tangier, who was admitted to be a British subject, the Department of State replied that it failed to find in that treaty any foundation for the claim of such jurisdiction. The treaty, it was true, said the Department of State, gave to British consular officers "ample jurisdiction over British subjects in Morocco generally, but certainly no treaty to which the United States are not a party can rightfully extend such jurisdiction over any foreigner whom they may think proper to employ in their consulate. Furthermore, Mr. Scott cannot properly be said to be within British jurisdiction, because he is in the service of an officer of the United States accredited to the Emperor of Morocco, and who, as such, according to the usage of that country, is entitled to privileges of exterritoriality, one of which is the exemption of his servants, including his interpreter, from any other jurisdiction than his own." With the statement that it was likely that the United States, if the case were reversed, would never claim jurisdiction over an American citizen in British service, the Department of State expressed the hope that Her Majesty's Government would, upon further consideration, " acknowledge the reasonableness of our objections to their claim to jurisdiction over Mr. Scott." Mr. Fish, Sec. of State, to Sir Edward Thornton, British min., April 5, 1872, MS. Notes to Great Britain, XV. 466, in reply to a note of Sir Edward Thornton of April 3, 1872. In 1873 the United States consul at Smyrna was instructed that the Department of State, in authorizing the diplomatic and consular officers of the United States, by circulars No. 11, of June 16, and No. 15. of December 15, 1871, to extend protection to Swiss citizens in certain cases, had not contemplated that those citizens were to be registered as entitled to the same protection as citizens of the United States; but that the purpose of the circulars was to allow the good offices of ministers and consuls to be employed in any particular case in which a Swiss citizen might suppose himself to have been aggrieved. Mr. Fish, Sec. of State, to Mr. Smithers, consul at Smyrna, Dec. 18, 1873, For the circulars of June 16 and Dec. 15, 1871, above referred to, see For. In July, 1888, two Swiss citizens, brothers, named Sigmund Benario and Theodor Benario, applied to Mr. Cardwell, United States agent and consul-general at Cairo, for protection. They had previously been under German protection, but withdrew from it on account of misunderstandings with the German consul at Alexandria. Mr. Cardwell gave them a certificate of protection. They were afterwards accused of swindling certain merchants of Germany, and the United States consular agent at Alexandria was requested to issue an order for their arrest. Mr. Cardwell advised the consular agent not to issue such an order till evidence was submitted to him showing the authority of the person making the complaint and also establishing the grounds of it prima facie. Mr. Cardwell having sought the instructions of the Department of State, the Department replied that it did not clearly appear what was the nature of the complaint against the Benarios, whether it was sought to punish them criminally for the crime of " swindling," or whether it was desired to obtain substantially a writ of ne exeat in a civil suit to recover money. If the proceedings contemplated were civil in their nature, it would seem clear that he had no jurisdiction, since by the act for the organization of mixed courts the jurisdiction of those tribunals extended to suits, in civil and commercial matters, between natives and foreigners and between foreigners of different nationality. But, assuming that a criminal prosecution was intended, the Department observed that two important questions were to be considered, (1) that of the protection accorded in Egypt to foreigners who had no diplomatic or consular representative, and (2) that of the exercise of jurisdiction. As to the first question, the Department referred to the special case of citizens of Switzerland, as explained in Foreign Relations 1887, page 1074, and stated that, as protection had already been granted to the Benarios, the Department would not direct it to be withdrawn. As to the second question, the Department said that it would seem plain that Mr. Cardwell could not properly assume jurisdiction "of a criminal complaint against persons not citizens of the United States without the consent of their government." Mr. Rives, Act. Sec. of State, to Mr. Cardwell, agent and consul-general at Cairo, No. 151, Oct. 13, 1888, 127 MS. Inst. Consuls, 246. After the foregoing instruction in the case of the Benario brothers was sent, a statement of the matter was presented to the Swiss Government. When the answer of that Government was received Mr. Cardwell was instructed that it removed" any objection to exercising criminal jurisdiction over the persons in question," but that any criminal proceedings instituted against them must be conducted in accordance with the rules applied to citizens of the United States. It then seemed probable, however, that the case had been otherwise disposed of. Mr. Rives, Assist. Sec. of State, to Mr. Cardwell, No. 167, Feb. 2, 1889, 128 MS. Inst. Consuls, 523, referring to instruction No. 151 of Oct. 13, 1888. In 1890 the Department of State, while stating that there was no arrangement between the United States and any of the Spanish American states under which the protection of the former was extended to the citizens of the latter in Turkey or in Egypt, and that, if a request for such protection were made by any of those states, the decision of the Government of the United States thereon "would be made known to its agents in those countries [Turkey and Egypt] by appropriate circulars," said: "I am not unaware that the usage of the Government of Turkey and, under its suzerainty, of that of Egypt, following the ancient capitulations, recognize the right of any alien to place himself under whatsoever foreign protection he will, independently of his own natural allegiance, and that when the fact is established, he is regarded as though in fact a citizen or subject of the protecting state. This fact was brought out in the case of the Benario brothers, in 1888, as reported in Mr. Cardwell's dispatches Nos. 245, 246, and 247. H. Doc. 551-vol 2- 48 However this doctrine may be viewed by the European states whose rights in the Ottoman dominions flow from their common capitulations, it seems to the Government of the United States that this concession on the part of Turkey cannot constrain us to treat an alien on the footing of our treaties as a citizen, nor constrain the government of the individual to respect his voluntary choice of another protection than that flowing from his natural allegiance." (Mr. Adee, Second Assist. Sec. of State, to Mr. Grant, vice and deputy consul-general at Cairo, No. 56, Oct. 22, 1890, 134 MS. Inst. Consuls, 595.) "Referring to previous correspondence concerning the case of the Benario brothers in Egypt, I have the honor to acknowledge the receipt of your note of the 3d ultimo, in which you inform me of the action of the Swiss Federal council in delegating to the American consular court in Egypt the right that would belong to the Swiss courts to try the Benario brothers for the acts with which they are charged. "In reply I have the honor to inform you that the consul of the United States at Cairo has been informed of the removal of the objection to his exercising criminal jurisdiction over the persons in question. The consul has been instructed in the same connection that any proceedings entertained against the. Benario brothers must be conducted in accordance with the rules applied to citizens of the United States, and must not assume the form of a vexatious, inquisitorial process. Mr. Bayard, Sec. of State, to Mr. de Claparede, Swiss min., Feb. 5, 1889, In 1890 the governor of Cairo, Egypt, requested the United States consulate-general at that place to assume jurisdiction of a charge against Doctor Arciniega of injuring a native while driving in the streets. The governor having described him as "an American," the consulate-general summoned Doctor Arciniega to appear for verification of his papers and registration. On appearing, Doctor Arciniega declared that he was a citizen of Peru, but had been under the protection of the consulate-general for some months. Whether this allegation was borne out by the records was not stated; but the consulate-general informed him that it could give him no protection without the consent of the United States, but would do what it could for him without going beyond the instructions of the Department of State, No. 151, October 13, 1888, in the case of the Benario brothers. The consulate-general therefore took Doctor Arciniega's voluntary statement denying the charge against him and communicated it to the governor of Cairo. The Department of State, in approving the consul's unofficial aid to an unrepresented foreigner, remarked that the case differed from that of the Benarios," in that the latter, as Swiss citizens, were under a formal protection asked by the Swiss Government, accorded by our own under certain limitations, and recognized by the Khedivial government. . . . The request of the alien's government is necessary in the first instance to validate the protection; but even when this is of record it has been held, as in the case of the Benario brothers, that the express consent of the alien's government is necessary to permit jurisdiction of any crime with which he may be charged. By reference to the Department's instructions, No. 167, to Mr. Cardwell, under date of February 2, 1889, you will see that the Swiss Government, upon being consulted, removed by its reply any objection to the exercise by our agent of criminal jurisdiction over the two Benarios. I have unofficially conferred with the minis ter of Peru in this city, and he is unable to state the policy of his Government in regard to the friendly protection of Peruvians by the agents of other states, in countries where Peru maintains no representation. . . . The statutes of the United States contemplate the cases of American citizens only; and the authority and provision for the punishment of an alien under an indirect privilege of extraterritoriality is open to grave question. This aspect of the case may, however, be left for consideration should the emergency arise." Mr. Adee, Second Assist. Sec. of State, to Mr. Grant, vice and deputy consul-general at Cairo, Oct. 22, 1890, 134 MS. Inst. Consuls, 598. The Swiss minister of foreign affairs, in a note of January 28, 1891, referring to the subject of jurisdiction over Swiss citizens in criminal matters in Turkey, stated that, as the relations of Switzerland with the Sublime Porte were not regulated by the régime of the capitulations, Switzerland had no representative in the Ottoman Empire, so that Swiss citizens there were entirely at liberty "to choose the power under whose protection they may wish to place themselves. Consequently, we admit, without reserve, that protected Switzers in Turkey are subject to the consular jurisdiction, both civil and criminal, of the state which protects them." Mr. Washburn, min. to Switzerland, to Mr. Blaine, Sec. of State, No. 31, January 31, 1891, 27 MS. Desp. from Switzerland, enclosing copy of a note from Mr. Droz, Swiss min. of for. aff., of Jan. 28, 1891. III. QUESTIONS OF ASYLUM. 1. THE RIGHT OF ASYLUM." $ 291. No legal term in common use is perhaps so lacking in uniformity and accuracy of definition as the "right of asylum." The word asylum has in its legal relations become to a great extent metaphorical. |