Mr. Boker to Mr. Fish.
Constantinople , April 4, 1873. (Received April 24.)
Sir: I have the honor to acknowledge the receipt from the Department of State of dispatch No. 81, under date of March 14, 1873, addressed to Mr. Goodenow.
The question of judicial reform in Egypt has reached a point at which a further report from me may seem desirable to the Department. Italy, Sweden and Norway, and Belgium have given in their adhesion to the plan. There is little doubt that Great Britain will soon follow, as I have been so assured by the embassador of that power. The German government has agreed, subject to its consent being ratified by the Reichstag, as the modification of the provisions of a treaty will be necessary, it is thought, before a full authorization can be given. The relation of the German government to the Reichstag resembles that of our Executive Department to the Senate, whenever the consideration of a treaty is involved. In view of the difficulty of modifying the treaty which we possess with Turkey, I would suggest the following plan: Let the treaty remain untouched; let no modification of its provisions be attempted. Instead of that, let the Senate pass a resolution that such provisions of the treaty as interfere with the establishment of judicial reform in Egypt be suspended, in that province of the empire only, for the period of five years. This will enable the Egyptians to [Page 1109] try their judicial experiment, will not affect the permanence of the treaty, and will receive the assent of the Sublime Porte, that, as is well understood, favors a trial of the Egyptian scheme.
It will be well, perhaps, to examine how far the project of judicial reform will affect the provisions of the treaty. In ordinary criminal matters there will be no change whatever. An offending American will still be tried by his consul-general. The only criminal jurisdiction claimed by the proposed courts will be in case an offense shall be committed by a foreigner against the judges or against the officers of the courts in the performance of their legal duties; and this jurisdiction over foreigners, it is obvious, will be necessary in order to enforce respect toward the new tribunals.
Questions between a foreigner and a native, involving property, will be tried, as at present is provided by the treaty, before a native court; only, instead of the consular dragoman being present to represent the interests of his countrymen, the cause will be tried before a bench of judges, the majority of whom will be foreigners. This I look upon as an improvement in the procedure, and as an additional safeguard for the rights of a foreigner; because the consular dragomans are generally illiterate men, and in many cases they are natives of Egypt, and therefore open to agnatic corruption.
Sentences against foreigners will not be handed to the consuls for execution. This duty will be performed by officers of the courts, but the consul in all cases will be notified to be present. The same notice will be given to the consul in case the officers of a court, bearing a warrant from that court, and only when thus provided, shall enter the house of a foreigner in the execution of their legal duties.
It will thus be seen that the existing treaty will be affected but in three points: in the presence of the consular dragoman, as a quasi official, in suits between foreigners and natives before a native court; in the duty of executing judgments being withdrawn from the consul-general; and in the right which the officers of native courts, when armed with a warrant, will have to enter the house of a foreigner, after his consul shall have been duly notified of their intention.
There seems to be little real danger in conceding to the Egyptians the privilege of trying their system, since, as they well know, should it prove a failure in practice, the strong hand of the great powders will be laid upon it, and the old order of things will be re-established, long before the probational five years, or any considerable part of them, shall have elapsed.
I have, &c.,