Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873
No. 187.
Sir
Edward Thornton to Mr. Fish.
Sir: In compliance with an instruction which I have received from Lord Granville, I have the honor to transmit herewith, for the information of the Government of the United States, two copies of a dispatch [Page 422] which his lordship has addressed to Her Majesty’s ambassador at Constantinople, on the report of the international commission which was lately convened at Constantinople, on the subject of judicial reform in Egypt, and which shows the conclusion at which Her Majesty’s government has arrived.
I have, &c.,
Earl Granville to Sir H. Elliot.
Sir: Her Majesty’s government have duly considered, in consultation with the law-officers of the Crown, the report of the commission on judicial reforms in Egypt, inclosed in your excellency’s dispatch No. 69, of the 4th of March.
They have had before them, also, memoranda communicated to them by the French ambassador on the 28th and 31st of March, of which I inclose copies for your information.
I have how to acquaint your excellency that Her Majesty’s government are for themselves prepared forthwith to accept the proposed arrangements, and to sanction the report of the international commission.
The only point raised in the French memoranda, to which I think it necessary specifically to allude, is that relating to consular jurisdiction in matters of bankruptcy.
Her Majesty’s government consider that the consular jurisdiction should not have jurisdiction upon the personal status as affected by bankruptcy in Egypt, and that such jurisdiction, until some serious inconvenience is found practically to exist, should be committed to the newly-erected tribunal.
There only remains the question as to the form in which the assent of the powers should be given to the new system of judicature to be established in Egypt; and as regards this point Her Majesty’s government consider that the sanction of the Sultan should be obtained; and that the best mode of preserving the rights of the Porte and of the Khedive would be that the Sultan should issue a firman to the Viceroy, recommending the adoption of the changes; and that this firman should be communicated to, and receive the consent of, the powers interested. By this means the consent of the Sultan, of the Khedive, and of the powers interested would be obtained to the very particulars of the changes introduced.
Your excellency will communicate to the Porte the conclusions at which Her Majesty’s government have arrived in regard to these matters, and Her Majesty’s representatives at foreign courts will be instructed to do so likewise to the governments to which they are respectfully accredited.
I am, &c.,
Remarks in relation to the plan for the reform of consular jurisdiction in Egypt.—(Communicated to Earl Granville by Count d’Harcourt, March 28, 1873.)
The representatives of the various governments at Constantinople have received information concerning the labors of Nubar Pasha in regard to the final regulations of judicial organization which are intended to fix the terms of the understanding established, after long negotiations, between the Khedive and the powers, for the reform of consular jurisdiction in Egypt. The new plan of the Egyptian minister corresponds pretty faithfully to what was agreed upon, either at the time of the examinations jointly made in 1869 and 1870 by all the parties interested, or during the course of the late conferences held at Constantinople. Nevertheless, certain passages in the draught of Nubar Pasha ought to be amended, in order that they may reproduce the exact embodiment of the thought expressed by the various cabinets.
Among the modifications which it would be proper to ask for, there is one which is desirable in view of the importance of the interests at stake. It must be well understood that the new Egyptian courts shall take no part even in the incidental discussion of the various questions which relate to the personal status of foreign residents, and in order to prevent any misunderstanding on this head it would be indispensable again to introduce, in article 9 of the new draught, the express mention which was made in the [Page 423] draught prepared in 1870 at Paris, with the concurrence of Nubar Pasha, and then approved by the majority of the powers. It cannot, in fact, he admitted that, under any pretext, the new jurisdiction to which the powers consent to transfer a part of the prerogatives of consular justice, can at any time decide concerning the nationality, the filiation, the rights as heirs or as married persons, or the civil or commercial political capacity of foreign subjects who may visit Egypt on business. Jurists in the various countries declare, almost unanimously, that questions of this nature should he settled according to the national law of the party interested. Some even deny that a foreign judge can, of right, take cognizance of them. But whatever may be the case as regards the general doctrine, it is certain that, under present circumstances, the governments have no intention of abandoning this class of cases to the Egyptian courts, and the limit of their concessions must be placed beyond all controversy.
The precautions stipulated for by the Egyptian government, with a view to securing, on the part of Europeans, respect for the new magistracy and the executions of its decisions, cannot fail to awaken the concern of the cabinets as regards the reciprocity of guarantees which their citizens are entitled to claim in their turn. This side of the question seems not to have been treated in the work of Nubar Pasha, and yet natives will find in the peculiar conditions of life in the East, were it, for instance, only in the inviolability of harems, so many opportunities of placing their persons and property beyond the reach of judgments rendered against them, that it would by all means be prudent to make provision for the difficulties which the course of justice may meet with, in this way, to the detriment of foreign residents.
At all events, and admitting that the powers are to adhere for the present, excepting a few inconsiderable modifications, to the terms of the last Egyptian draught, the time seems to have arrived for the precise definition of the form in which is to be stated the collective understanding of the powers, and their adhesion to the organic regulations proposed by the Viceroy. In order that the work of reform, to which the powers have lent their co-operation, may assume a serious character, in order that the bearing of the concessions made may be clearly established, and in order that the guarantees which have been furnished in exchange therefor may be placed beyond all controversy, it seems essential that the different points of agreement which have been reached should be determined in such a form as to obligate the Viceroy toward the governments and to maintain among the latter the solidarity which is indicated by the community of their interests. Among the combinations which might be adopted the most simple seems to be to enter, in a collective record, either at Constantinople or at Cairo, the regulations which may be presented by the Egyptian minister, and to secure in the same instrument, which might, if necessary, remain open, the successive or simultaneous adhesion of the different powers.
Continuation of the remarks in relation to the plan for the reform of consular jurisdiction in Egypt.
It appears from the latest advices received from Constantinople that the omission of the clause relative to personal status in the recent work of Nubar Pasha, concerning the judicial organization, seems purely fortuitous, and that the re-establishment of this stipulation would give rise to no difficulty. However, some confusion may have existed on this subject in the minds of the commission of delegates of the representatives of the powers at Constantinople, and it seems opportune to elucidate the question thoroughly, for the prevention of any misunderstanding in future. The commission has included among the crimes and offenses which are to be considered as committed against the execution of civil or commercial sentences of the new courts, the acts characteristic of fraudulent bankruptcy; this presupposes the existence of a judgment declaring that a failure has taken place. Now, a judicial declaration of failure is an act which affects the personal status; it greatly alters the legal condition, the civil, and even the political capacity of the individual who is its object, and it seems impossible to admit that it can be pronounced against a foreigner by the jurisdiction of the country without infringing upon the essential rights which the powers have always meant to reserve to their consuls. It is, therefore, important very clearly to establish the part that is to be taken by the two courts in cases of bankruptcy, and the guarantees that shall be enjoyed, in virtue of the new organization, by native creditors. Consular justice ought to retain cognizance of the question of personal capacity; Egyptian justice should decide questions relating to the interests in dispute.
Such is, in this complicated matter, the solution which seems the most conformable to the logic of law, and which is most easily reconciled with the respect due to the respective situations. The powers have the greatest interest in causing these principles to prevail, and in including, so that no dispute or doubt may arise on this head, [Page 424] declarations of bankruptcy among the matters reserved, as belonging to personal status, to consular jurisdiction.
There is another matter which claims the solicitude of the powers, and in view of which it would seem good for them to make their reserves before acquiescing in the installation of the new order of things. This refers to the guarantees necessary to secure in Egypt, on the part of the natives, the execution of the sentences pronounced by the new courts. Egyptian residents have the greatest interest in obtaining, in matters of this kind, the positive satisfaction of which they have hitherto been deprived. It is the more urgent to supply this defect, seeing that no precaution has been neglected in order to secure the execution of the new territorial justice as regards Christians. The immunities which rendered their domiciles, and sometimes their persons, inviolable, are subjected to all the restrictions which it was possible to demand; the powers have granted all guarantees, and have advanced, in this path, to the utmost limit of admissible concessions. They will thus have a stronger right to claim similar securities for their citizens.