Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress

Mr. Hale to Mr. Seward.

No. 115.]

Agency and Consulate-General of the United States of America, Alexandria, Egypt, February 29, 1868.

Sir: I have the honor to acknowledge the receipt of your instruction No. 49, under date of January 13, relating to the proposed changes in judicial arrangements here, which were the subject of my dispatch No. 111. Your instruction has received my careful attention. It is the purpose of the present dispatch to give you information of the progress of the negotiations relating to the subject.

I have prepared translations, hereto annexed; first, (marked A,) of the original proposition of Nubar Pacha, and secondly, (marked B,) of his remarks in explanation and qualification of the original proposition, these papers having been communicated to me by order of his Highness the Viceroy, just before your instruction was received. An extract (marked C) of a pamphlet written in support of the proposed changes by a lawyer in the employ of the Egyptian government, is also appended. These papers serve to show what it is that has been proposed, and how the proposition was supported by those appointed to defend it.

As you have observed by Lord Stanley’s communication, certainly an able and statesmanlike paper, the proposition was, on the whole, rather favorably received by the British government. By the government of France, the proposition was referred to a commission consisting of French statesmen, including Mr. Outrey, the French agent and consul-general for Egypt, then and still remaining in Paris. Nubar Pacha, also in Paris, was invited to attend their deliberations in behalf of the Egyptian government. The commission made a report to the French minister of foreign affairs, which is regarded as unfavorable to the scheme.

The governments of Prussia, Italy, and Russia so far accepted the scheme as to express their willingness to appoint representatives to consider it at a conference which, it was supposed, would be held in Egypt, and it was understood that Austria would accord a like measure of assistance.

To these governments, or most of them, as explained in my No. 111, the scheme has been communicated by agents in Europe.

His Highness the Viceroy, in informing me in January that he had directed the papers already mentioned to be communicated to me, expressed the hope that the United States would be represented in such a conference should it be held. At a later date, as I understand, the same invitation was extended to my colleagues here, or at any rate to some of them, representing governments to whom the plan had not already been communicated. But no other steps have been taken, so far as I can learn, for convening the conference, nor has any time been appointed for assembling it.

Mr. Rangabé has told you of the dislike with which the scheme was received by the Greek community here, and it is proper that I should state that the same feeling of dislike was general among Europeans. The English newspapers were invited by correspondents resident in Egypt to oppose the plan, and to criticise what was supposed to be Lord Stanley’s support of it; but this feeling of opposition, although almost universal, would no doubt be considerably mitigated if the scheme were better understood.

It is not now proposed to persevere in the proposition for any change in the hearing of criminal cases. As regards civil cases, it is certainly true that there have been complaints, not wholly without reason, of the existing state of things, some of the inconveniences of which are indicated in the papers annexed. Now, while an Englishman may very well view with distrust the justice of any other tribunal than that of his own consulate, it is well to remember that it is only in cases in which he is defendant of which his own consulate can take jurisdiction. For cases in which he may be plaintiff, having a claim against a native, or the subject of some other power, as matters stand he can have no better justice than may be meted out by tribunals which have no special claim to his confidence.

The problem to be considered by a merchant of any nation, therefore, is this: supposing a good and efficient tribunal could be set up, in which all cases might be brought without regard to the nationality of the parties, would it not on the whole be a convenience? Every merchant would gain the right to bring his claims against others before such a court simply at the expense of being himself subject to its jurisdiction. The fact that the English court here, for instance, is rigorously just, is a circumstance inuring less to the benefit of Englishmen than of subjects of other nations, so far as cases of mixed nationality are concerned. As regards cases between parties both of whom are subjects of the same power, no change in the existing arrangements is now proposed.

But I must not conceal from you that the difficulty most reasonably apprehended is not so much want of justice in the decisions of any new tribunal as want of confidence in a just and impartial execution of its decisions, and the “guarantees” proposed in the accompanying papers go but little way to abate an apprehension of this sort. The existing “tribunal of commerce,” for hearing cases of Franks against natives, is composed of a native president, with two native assessors and two Frank assessors; the latter serve in turn by months, from a list chosen by the “notables” of the several Frank communities, the list of “notables” serving as electors being prepared by the several consul-generals. The operation of the tribunal is at best unsatisfactory, but a great and substantial grievance is found in the fact than even when the tribunal may have given judgment in favor of the plaintiff, there is no sure means for obtaining execution of the judgments against the native defendants; the case, if at all difficult or important, generally becomes a question to be urged by the consul-general against the Egyptian government, the decision of the tribunal adding but little substantial strength to the case.

On the other hand, I doubt whether the large European communities would willingly accept at present a measure which should arm any tribunal of the Egyptian government, however composed, with power to touch the persons or property of Europeans otherwise than through their respective consulates.

The difficulty of the position would appear, therefore, to be insoluble, unless it is met in some such manner as the following, which I beg to submit for your judgment, as the basis of counsel which we might offer to the Egyptian government, should you deem it convenient: Let the Egyptian government, should it wish to do so, proceed at once, without further consultation with other governments, to create a tribunal of five judges, of whom two or three should be able and learned Frank gentlemen of unspotted integrity, assured of permanent salaries for at least a certain term of years. Let this tribunal have certain jurisdiction only of cases brought by Franks against the government or against native subjects. Let the Egyptian government request the consulates to give the same assistance to this tribunal, in requiring the attendance of witnesses and other incidental proceedings, as is now accorded in comity by one consulate to another. Let this tribunal hear and determine cases of the kind that has been described, and whenever its decisions may be in favor of the plaintiff, let them be promptly and fully carried into execution by the Egyptian government. If this is fairly done, the tribunal would at once become among Franks the most popular institution in Egypt. Then let it be a part of the plan that the same tribunal might also hear cases in which subjects of different nationalities were parties, whenever both parties agreed in advance to accept its jurisdiction; and let the Egyptian government request the Christian powers to instruct their consuls to give prompt and full execution to the decisions of the tribunal against any of their respective subjects resident in Egypt, in such cases—that is, only cases in which the parties had accepted the jurisdiction before the case was heard.

I entertain a very confident opinion that if such a tribunal proved itself to be really honest and impartial—a genuine seat of justice—it would be eagerly accepted by suitors of different nationalities in a very great number of cases, in preference to the complicated jurisdiction of the consulates; nor would any very long time be required for it to earn a good reputation were such reputation deserved. In process of time it might, perhaps, be made the necessary resort of suitors in mixed cases; but it would appear to me unwise for the Egyptian government to insist upon this beforehand.

For obvious reasons, the Egyptian government might except from the jurisdiction of the tribunal cases against the government arising from transactions anterior in date to the time of its institution, and might make other proper limitations, such as those which restrict the jurisdiction of the United States Court of Claims. Perhaps, even in the beginning, the jurisdiction might be confined to cases against native subjects, excluding at first cases against the Egyptian government; but this would be far less satisfactory.

Not to protract this dispatch to too great a length, some points of detail which would require attention are not touched upon. As regards the question of a code, this need make little trouble; it would be open to the suitors of all nations coming before the tribunal to plead the laws and usages of their own countries as affecting the case in hand, and the court would allow so much weight to these as seemed just in each case. In process of time the series of decisions made by the tribunal would of themselves make a sort of code, or, at all events, furnish a basis for one, better than any attempt to evolve such a work as a preliminary.

I have the honor to be, sir, very, respectfully, your obedient servant,

CHARLES HALE.

Hon. William H. Seward, Secretary of State, Washington, D. C.

A.

[Translation.]

Note to his Highness the Viceroy of Egypt, on the proposed changes in the judicial relations between foreigners and natives.

The jurisdiction which governs the Europeans in Egypt and determines their relations with the government and with the inhabitants of the country, has no longer for basis the “capitulation.” Of these capitulations there exists now only the name; they have been replaced by a legislation of custom which is arbitrary, the result of the character of each chief of agency, (principal consular officers,) a legislation based upon precedents more or less bad, which the force of circumstances presumes on one side, and the desire to give facilities for the establishment of foreigners in the country on the other, have introduced into Egypt, and which, in point of fact, leaves the government without strength and the population without regular justice in their relations with Europeans. This state of things profits nobody—as little the general interests of foreign powers as the honest population of the country, whether native or alien; it is employed to the injury of the country, the injury of the government, and to the advantage only of those who make it their business to turn it to their selfish account.

The need of a reform is keenly felt; the European colony increasing, the foreign agencies (consulates) themselves understand the necessity of this; they even claim it. The government and the consulates agree as to the principle of this necessity. Their disagreement begins when the means of putting the principle into practice is reached. It is not wished to have any hold of the capitulations. The abuses which have been introduced are brought forward as if they were laws or principles incapable of aboliion. In one word, the end, which is justice, is demanded; but as the means are refused, it results from this that Egypt presents to view a state where the native, whether plaintiff or defendant, unable to find justice, is in fact plundered, and is even happy if he gives up no more than his house to his tenant.

The government finds itself assailed by claims which the consuls themselves often cannot refrain from characterizing as scandalous. The population puts itself on its guard against the European. Is the government obliged, while it sees the progress of this same European, in the fear of being compromised, to hold it at a distance? Examples are not wanting; it would be tedious to enumerate them. It is enough to know that the government, in the space of four years, has paid 72,000,000 of indemnities. [This is understood to mean 72,000,000 francs, about $14,400,000, and probably includes the indemnity of the Suez Canal Company under the award of the Emperor Napoleon.] But it must be added that, paid under consular pressure, directly or indirectly exereised, these indemnities are characterized and represented by those very persons who have exercised the pressure as acts of generosity, without example, on the part of his Highness. If only this were the end of the evil! But the government, which perceives that progress can only come to it from Europe; which aspires to the introduction of this civilizing element, and which wishes to confide to it the great works on which are based agriculture and commerce; which wishes to attract capital, in giving it a remunerative employment—the government is reduced to impotence, and finds itself obliged to abandon the country to itself. Of all the works intrusted to Europeans, the dry dock at Suez alone is finished; all the others are either unfinished or not even begun, and, such as they are, have given and give ground for indemnities.

The manner in which justice is exercised tends to demoralize the country. All the efforts of his Highness are broken against the invasion of their demoralization. The Arab, forced to see Europe in the light of the European who takes selfish advantage of him, opposes himself to the progress of the west, and accuses the Viceroy and his government of weakness or mistake.

For more than forty years the Europeans have enjoyed the right of holding real estate in Egypt; he possesses estates said to be under the jurisdiction and legislation of the country. The consuls, in theory, agree with regard to this principle; but in practice, under the pretext of the capitulations which shield, they say, the European, the European owner of houses, or exercising a trade, pays no taxes; and if owner of a farm, he pays no titles; the consul then intervenes, and the consul’s intervention ends almost always in a non-payment.

This state of things, contrary to the spirit, contrary even to the letter of the capitulations, not only prevents the country from developing its resources, from furnishing to the industry and wealth of Europe all which it is fitted to give them, but puts an obstacle in the way of its organization, and ruins it morally as well as materially.

Your Highness has thought that the only remedy to bring to this state of things is the organization of a good system of justice, presenting to Europe all the guarantees which she has the right to ask.

Your Highness has thought that the foreign element ought to enter into the organization of our tribunals; in fact, this element, not numerous at Cairo, equals at Alexandria the native element; a number of Europeans are established in the provinces; all are merchants or workmen; their relations with the population are consequently of every day, of every hour, so to speak. This element ought then to be regarded in the organization of our tribunals, and even in principle; guarantees which are superfluous ought to be given, so as to inspire it with confidence among men and with the government.

The principle is the complete separation of justice from the administration. Justice ought to emanate from the government, not to depend upon the government; it ought no more to depend upon the government than upon the consulates. To be able to attain the object which your Highness proposes, the foreign powers should be persuaded of this fact: “justice emanates from, does not depend upon, the government.” The way to inspire this conviction is to have a body of magistracy. In fact, to make a good magistrate, the natural equity inherent in an honest native is not enough; knowledge of the law is indispensable; a study, a complete education. Our magistrates now in service have a perfect acquaintance with the civil and religious law which was enough when they had only to administer equal justice to a population homogeneous in its customs and its wants. But now necessities require new laws, and the Europeans, in establishing themselves in the country, have brought with them new usages, new relations. A mixed system has begun to introduce itself in our laws and in our codes. New men accordingly are required to apply this new system. It is required that Egypt should do for the administration of justice what Egypt has already done so effectively for her army, her railways, her engineers of roads and bridges, her services of health and hygiene. The competent element, the foreign element, has been introduced, and this element has served to mold the native element. That winch has been done in the material order must be done in the moral order—that is, in the organization of justice. The necessity of this mixed system has made itself so keenly felt that since many years the embassies have demanded its introduction at Constantinople. Constantinople has established a mixed tribunal of commerce, where all the commercial processes between natives and Europeans, whether plaintiff or defendants, are alike judged.

It is proposed to extend this system and to apply it to civil and criminal cases. The tribunal of commerce sitting at Alexandria and Cairo is not, properly speaking, a tribunal; it differs from that of Constantinople. It is rather a jury; but for commercial questions the basis of the institution, such as it is, is good, and deserves to be retained; it is only requisite to improve it. This jury or tribunal, instituted originally to take cognizance of commercial lawsuits arising between foreigners and natives, whether plaintiffs or defendants, is in point of fact abandoned. The consuls claim cognizance of cases in which persons of their nationality appear as defendants, and the tribunal often finds itself refused by them, even when the defendant is a native. They justify themselves in this by their want of confidence in the members composing the tribunal. I do not care to discuss the accusation against this tribunal, which I do not believe well founded. The phrase which your Highness has pronounced is enough for my purpose: “Let us give guarantees even that are superfluous.”

I have the honor to propose to your Highness the preservation of the two mixed tribunals of commerce established at Cairo and Alexandria; but instead of three members chosen by the consuls from the merchants of the European colony, and three native members, called by the government to sit in turn, I would propose to your Highness to compose them of four members only, two of whom the consuls would choose from the merchants presenting the best guarantees and the best known, and two others whom the government would choose from the natives whose relations are most intimate with the Europeans. The same as is now done, these members would sit in turn. I would propose to your Highness to give the presidency to an Egyptian, but to concede the vice-presidency to a magistrate selected in Europe; and to have a “guarantee on the subject of his character,” it would do well to address the ministry of justice, [that is of the county from which he is selected.] This magistrate would be permanent.

Above these tribunals it would be necessary to have a tribunal of appeal, sitting at Alexandria. This would be composed of three Egyptian members, whom your Highness might select from our young men who have studied law in Europe, and three other members, competent magistrates, whom your Highness would summon from Europe, addressing for their choice their governments.

This tribunal would perform its functions under the presidency of an Egyptian. Together with the two tribunals of commerce, there would be two tribunals for civil cases. They might be composed of two competent members, engaged abroad, and two Egyptian members, always under the presidency of an Egyptian subject.

The tribunal of appeal sitting at Alexandria would have also among its powers the revision of judgments given by the civil tribunals.

As to disputes arising from questions of land and real estate, the Europeans have always been subject to our tribunals. These tribunals work well; the members who compose them understand the business from the bottom; the foreign element would not be more competent in the matter. I propose to your Highness to leave them as they are.

The question of the immovability of the magistrates has attracted the attention of your Highness. Your Highness, after mature consideration, has thought, and with reason, that absolute immovability might present great inconvenience for a state of things that is new; that an engagement of five years for the magistrates is enough, and will give to parties in suit every guarantee, and will also allow time both for your government and for foreign powers to judge of the merit of the new institution.

As to criminal questions, they are not so simple as the civil and commercial. Nevertheless, they can be resolved, if reference is had both to the spirit and the letter of the capitulations, and especially to the state of things under Mehemet-Ali.

In fact, how were affairs carried on in the time of the great Viceroy? When a crime or offense was committed by a foreigner, the governor of the citadel took jurisdiction of it, made the examination, rendered the judgment, and sent the judgment and the delinquent to his consul for the execution of the sentence. As the number of Europeans was at that time very limited, and crimes and offenses rare, the care of the consuls over persons of their nationality was easier and more effectual. I do not remember any case of impunity presenting itself, or indeed if there were some discreditable tolerance, that any gave rise to claims or produced serious inconveniences. Such affairs passed off, so to speak, en famille, it being everybody’s interest to maintain good order, and every one having both the will and the power to do so.

I must, however, call the attention of your Highness to the fact that this matter of proceeding is not quite in conformity to the capitulation, which by no means removes foreigners from the jurisdiction of the country, and limit themselves to granting them, in criminal cases, the privilege of being tried, assisted by their dragomen or interpreters, by the supreme tribunal; the penalty always to be enforced.

Since Mehemet-Ali, as the number of Europeans increases, and consequently the number of offenses in proportion, the government, in view of the non-application by the consuls of the sentences which it decreed, hoped to gain its object, the enforcement of penalties, by including in the examination and in the judgment either the consul or the interpreter. But this mode of proceeding, which at the beginning produced satisfactory results, things still going on, as I have said, en famille, in its turn degenerated. About 1848, the consuls, under the pressure of persons of their nationality, having become arbiters in the place of the law, found themselves powerless, made of their weakness a principle, and were led, little by little, by pressure of circumstances, to assume making examinations for themselves outside the government, or at any rate to connect with themselves a functionary of the native police, under pretext that as the penalty must be applied and executed in their own country, the examination had no value except as it was conformable to their own laws. Such is actually the state of things, not only in regard to crimes, but for misdemeanors and simple infractions of law. Thus justice is completely given over, not to institutions, but to the arbitration of individuals. The position of the government is no longer tolerable, when we consider that its police is powerless to repress the most trivial infractions, unable even to cause the execution of highway regulations, or those referring to stations for public carriages; for if one consul is inclined to recall to order on the demand of the police some coachman who refuses to take his place, another treats the affair with indifference, sometimes for the reason alone that his colleague takes the other side.

Thus, Highness, the object now pursued by your government is not the destruction of the capitulations, but, on the contrary, to restore to them both letter and spirit, by demanding of the governments the abandonment of abuses and of personal arbitration. That, in fact, is the spirit of the capitulations; the protection of foreigners, but not impunity for them; that is their letter; the judgment of foreigners by the tribunals of the country, with the guarantee of the supreme tribunal, and the assistance of their dragomen.

The same objection is made to your Highness regarding the civil tribunals, and objection founded on the absence of laws and of magistrates who present sufficient guarantees. But your Highness, in your desire to regulate your relations with the powers, laying aside what you might demand as a natural right, and resulting from the capitulations themselves—the right, not to be prescribed, of all governments to apply the police and security laws to all who live within your jurisdiction, (territory,) has been willing to apply to the criminal code the idea which you had conceived for the civil, that is, to institute mixed correctional tribunals.

The capitulations protect inviolably the domicil and the person of foreigners. There is no thought of disturbing this principle; your Highness, in fact, wishes to strengthen it; to surround Europeans accused of crime with more guarantees than are granted by the capitulations; instead of a dragoman, who is but a silent witness, your Highness grants them judges chosen in Europe, and a jury half of Europeans and half native.

If more guarantees are required, your Highness will give them. Your object is the protection of honest citizens, more and more endangered by the impunity enjoyed by the guilty.

The case of less serious infractions, such as the French law calls délits or contraventions, will be submitted to the same mixed tribunals. In all cases appeal will be made to the superior tribunal established at Alexandria; this power of appeal presents all the guarantees desired. All penalties should be applied in Egypt, except in the case of imprisonment, which should be enforced in the respective consulates if this should be exacted by the consul. With the organization of the tribunals there would be occasion to give attention to the legislation which they should follow and apply. The commercial legislation now followed in Egypt is that of Constantinople, accepted by the foreign powers, “The French Code of Commerce.” For civil affairs your Highness has the intention to summon a commission of foreign jurisconsults, who, assembled with our lawyers, would reconcile the provisions of the Code Napoleon with those of our own legislation. This reconciliation is already half made; the work would neither be long nor difficult. This commission would also be charged to put our penal laws in harmony with those of the French penal code.

To sum up, that which your Highness asks, whether as regards civil or criminal affairs, is the return to the capitulations, and not only a return pure and simple, but on the contrary a return which would allow to foreigners guarantees far superior to those which the capitulations give them. In fact, according to the capitulations, it is a native tribunal which gives judgment in presence of the dragoman, a mere witness without voice in the deliberations; according to the reform proposed, your Highness, instead of this mute witness, gives to foreigners the guarantee of a tribunal in the composition of which enters a European element, and a code revised in conformity with European penal and civil laws.

The organization proposed by your Highness, calculated upon the judicial organization of Algeria, offers, it seems to me, all the desirable guarantees.

It would appear impossible to your Highness that the foreign powers should refuse to admit them. Hitherto, on the contrary, the foreign powers have availed themselves of every opportunity to come to the support of the material and moral development in Egypt. To-day, placed in presence of the real state of the country in refusing the establishment of the most precious guarantees, they would put themselves in the position of denying not only the progress, but even the very existence, of Egypt.

NUBAR.

B.

[Translation.]

Some explanations of the guarantees which will be presented by the judicial organization proposed for Egypt.

The majority in the tribunals which the government proposes to organize will rest with the European magistrates. These magistrates will be appointed by the Egyptian government, and chosen by it among the magistrates in Europe. The government will surround itself for this choice with all possible precautions. The making choice from magistrates already in office is itself a guarantee, because the French government, for example, is always free to accord or refuse its permission to the magistrates who would have been chosen. Irremovability will be granted to the magistrates either in the beginning or after a certain time, three or four years for instance. Add to these guarantees, already so effective in themselves, the publicity of proceedings, the complete liberty of defense, the institution of the court of appeal, and the Egyptian tribunals will present the same guarantees as the tribunals in Europe. But if there is added also the right, which would be granted to the party in suit, or to his consul, to refuse one of the judges of the tribunal, without giving reasons for his refusal, there is a guarantee which I will call substantial. Moreover, when the difference of position is considered, the advantage on the side of Egypt is obvious, for in France or England a magistrate has only to encounter the public opinion of a homogeneous public, while in Egypt two camps are watching him, the Moslem and the Christian, and in this latter sixteen different nationalities restless and eager. Under these conditions, it is difficult, if not impossible, that a magistrate should be false to the law and give judgment against his conscienee. The clerks and officers of the court would be chosen in Europe from the persons who have exercised or still exercise the functions of ministerial officers.

Civil cases between natives will be submitted to these tribunals, (questions of state, as marriage, divorce, &c., between natives will necessarily remain for resort to the existing tribunals, but the tribunals may be attached to the general organization in such manner as not to make a separate body.) Civil questions between natives and foreigners, whether plaintiffs or defendants, will be submitted to these tribunals. Commercial questions between natives, or between natives and foreigners, will be submitted to these tribunals, which, in these cases, will summon as assessors merchants selected from the well-known Europeans and Arabs of the country.

The inconveniences which arise from fifteen or sixteen foreign jurisdictions for the persons of the nationality at the different consulates in the questions of litigation which arise every day among them are always increasing; it would be desirable, therefore, in their own interest, that the processes between Europeans of different nationalities should be submitted to these tribunals, or at least that this should be permitted with the consent of both parties. But the power of these tribunals will not cover lawsuits between Europeans of the same nationality. The tribunal will have power over all questions which concern the administration of the domains of the Viceroy (present and past) and of the princes. It will take cognizance of all the demands made by the government against private persons, natives or Europeans, and of all such as may be brought against the government by such private persons for the execution of a contract. Nevertheless, it is understood that the tribunal cannot ordain any measure which may be of the nature to prevent or suspend the execution of an act of administration; it will take cognizance simply of claims for indemnity brought against the government on account of acts of administration alleged to be contrary to an engagement or concession previously granted. Mere violations of police regulations might be judged by the civil tribunal, or better by a European magistrate delegated by the tribunal and sitting at the police office. Punishment in correctional matters will be pronounced by the tribunal composed of two European magistrates and one native, and if thought necessary, upon the verdict of a jury. Punishment in criminal matters will be pronounced by a court composed of three magistrates, of which three will be Europeans and one native, on the verdict of a jury. The composition of the jury lists, the number of jurors, their manner of voting, whether by majority or unanimity, are among the questions which should be settled by the commission of jurisconsulst which will come to Egypt to determine the proceedure and adopt the European law to the wants of the country.

This same commission might determine the conditions under which the officers of police will have the right to make an arrest, or to enter houses; it will fix the terms within which preliminary investigations should be concluded; but it is important that it should be understood after this that these conditions, once fulfilled, the action of the police cannot be interfered with by the consuls, for the Viceroy having the responsibility of maintaining order in Egypt, it is necessary to establish as a principle that he ought to have the means to fulfill this responsibility. The police must possess, as regards foreigners, the same powers as regards natives; and in order that thieves and assassins may no longer be seen after having fired a pistol, or being taken breaking open a safe, walking about at Alexandria, thanks to the intervention of the consuls, the police must have the right to put in execution the regulations of the highway, and other police regulations, without having recourse to the consulates.

The establishment of the tribunals is only half of the organization; nothing will be accomplished if judgments are obtained which are not put in execution.

If the tribunals present the desired guarantees, and if accordingly they are accepted, there will be no objection, I think, that, as in France, the officers of these tribunals should be charged with the execution of the sentence, with power to require the officers of police if necessary.

This mode of proceeding is all the more necessary now the consuls have for a principle (not at all admitted by the government) to make the government responsible for the execution of sentences given against natives. The representative of the tribunal proceeding to the execution of its judgment, with the assistance of the public force in case of need, this pretended solidarity will disappear, and with it many really petty questions which are raised to the rank of diplomatic questions. It is very evident that if, for example, the government should refuse the aid of the public force for the execution of a judgment, the diplomatic intervention of the consuls would immediately have a reason for existing.

Thus, neither the government nor the consulates will be able to interfere with the execution of the sentence, either to prevent or suspend it.

If the consulates were charged with the execution, if they had even only the power to interfere, the firmness of some might take example from the weakness or want of power of others, and we should fall back with arbitrariness and the present confusion. If, in order to execute a sentence, it is necessary for the officer to enter a private house, it cannot be said that the domicile is violated by the government. It is not the government who forces itself in, it is the law, represented by the officer of the tribunal, and the law penetrates everywhere.

Besides questions of organization for civil, commercial, and criminal justice, there is room for regulating different points which are connected with simple administration, for instance, in relation to highways or to taxes. Thus, a European who wants to build in Alexandria, does it without the preliminary authorization of the council on highways or that of fortifications; whenever he finds against him the regulations of these councils, no native workman can labor for him under these conditions, to be sure, but he engages European workmen; his building is raised and finished under the eyes of the authorities, who appeal in vain to his consulate, which answers not at all, or after the building is completed.

The capitulations have never pretended to remove from the action of government any European who puts himself in opposition to the local laws. In the present state of disorder, it is necessary in such cases that the government should bring an action against the opposing party before the consul; and the consul, on this very account, interprets and comments upon the regulations made by the government, and has, consequently, power to approve or annul them.

The capitulations, and even French jurisprudence, if I am not mistaken, do not authorize the holding of real estate by Europeans in Egypt. This is a great misfortune for Egypt; therefore not only is it tolerated in Egypt, but even recognized and established for more than forty years. Europeans buy, sell, inherit property, like the natives, in their own names, inscribed upon the registers of the Melkiemés.

It is just that European proprietors should be submitted to the same expenses as the native, and that the laws in this case, laws well known, fixed, and determined, should be applied as to the native. This is a principle admitted and recognized; no consulate really denies it. But in application this principle is becoming impossible. A European possesses a farm; he does not pay his taxes; can the government proceed with him as with a native, that is, deprive him of a part of his land, which, sold at public auction, would restore to the exchequer the amount due to it? Government cannot do this; it must address itself to a consul, who may or may not give an answer, and who finally, whether he insists upon payment or not, becomes the arbiter and judge of the laws of the government. An examination may be made, if desired, whether anything can be modified in the present regulations so as to protect the rights and interests of all; but it is necessary to leave to the Egyptian authority, alone and without the intervention of the consulates, administrative action and jurisdiction in such matters, and the government must not abandon this principle.

This action and jurisdiction are a public right, and the capitulations never were intended to take them from Egypt.

NUBAR.

C.

[Translation.]

Extract from a pamphlet by P. Maunoury.

What shall be said of certain consulates where it is impossible to get justice? The least bad are those which, in the interest of persons of their nationality, hold back the decision and even the execution of their judgments until the foreign plaintiffs are worn out.

Thus, upon many complaints laid before the tribunal of Persia, not one judgment has been passed.

[Note.—Were the capitulations intended for unchristianized Asiatics?]

The consulate of France was obliged, in the affair of Marquet & Co. vs. Hauna Giamati, to interfere with the Spanish consulate to compel them to protest a bill of exchange for non-payment.

There is a consulate general of Brazil, although not a single Brazilian is established in Egypt. The consul general, an Italian, in order to create for himself a nation, had to put all the members of his family under the protection of his flag. His nephew, Abd-allah-el-Adin, attached to the consulate, became bankrupt. The difficulties thus caused were judged, in spite of the creditors, by the uncle of the bankrupt, all demands being refused.

The denials of justice on the part of the consul general of Greece have been so violent, that one day, in full hearing of the French tribunal, at the trial of an affair begun by a Greek against a Frenchman, Mr. Fricon, French consul, president of the tribunal, summoned before him the plaintiff, and said to him word for word as follows: “Your affair is erased from the docket. Go and tell your consul that as soon as he begins to render justice to the French, I will render it to persons of his nationality.”

It is useless to say that the local tribunals leave as much to be desired as does consular justice.

About a year since the European judges of the mixed tribunal at Cairo sent in their resignation en masse, on account of the partialities which they had witnessed.

Something quite curious has presented itself in connection with these mixed tribunals. They were instituted as tribunals of commerce.

Now, as none of their members clearly understood the distinction between civil and commercial affairs, for several years they passed judgment indiscriminately on all questions arising between Europeans and natives.

At the beginning of 1867 they bethought themselves to decide that they were incompetent in civil matters—a wise decision. But now comes a difficulty. Possibly a local civil tribunal may exist; but we can affirm that there is not a single person who might be the subject of its jurisdiction, nor even a European lawyer, who, after careful research, knows where this tribunal holds its sittings.

So that, for the last ten months, no civil complaint can be brought by a European against a local subject.