Mr. Beardsley to Mr. Fish.
Cairo , January 27, 1874. (Received February 25.)
Sir: On the 24th instant I had the honor to send you a telegram, a copy of which is herewith inclosed, in relation to the project of judicial reform about to be put in operation in Egypt, and on the 26th I received your reply, a copy of which I also inclose herewith. Russia has at last accepted the project, making the number of great powers now pledged to it five, viz: England, Germany, Austria, Italy, and Russia.
Now that these five great powers have accepted the reform, his excellency Nubar Pacha has determined to organize the new courts at once, but His Highness the Khedive is very anxious for the approval and support of the United States in this important measure, which he believes to be of such vital interest to the country, and he awaits the action of Congress with hopeful expectation and interest.
It was this expressed anxiety on the part of His Highness for information as to the present status of the question in Congress which prompted me to telegraph to you.
The United States will be entitled to one or more judges in these courts, and it is very desirable that proper persons should be chosen, as our interests in Egypt and the honor of our country will, in a measure, be dependent upon the selection made. The sooner we accept the project the better will be our opportunity of securing a fair representation in the new courts and the more readily will we be able to exercise an influence in the selection of judges with the object of securing only able and honest men for these important posts.
By next mail I hope to state definitely the number of American judges we may hope for, their emoluments, and other particulars.
In regard to the probable action of Congress in this matter, I have the honor to refer to my dispatch, No. 163, of the 6th instant, and to renew the hope therein expressed that nothing will be done to impair the present judicial power of United States consuls in Egypt or Turkey. In stating in my telegram of the 24th instant that “consular jurisdiction over American citizens not affected by the project,” I alluded to all that concerns American citizens as between themselves. It is, I presume, only in regard to the rights of such citizens as between themselves that Congress has power to legislate. When treaties with foreign powers define the relations which shall exist between citizens of the United States and citizens of such foreign powers, Congress may invest the ministers and consuls of the United States residing in those countries with the necessary judicial power over citizens of the United States and other has provided for in the said treaties. Such is the nature of the [Page 1184] act of June 22, 1880, which invests the minister of the United States and the consuls of the United States residing in the Ottoman dominions with certain judicial powers over American citizens which are to be executed in conformity with the provisions of the treaty with the Sublime Porte of May 7, 1830. If the treaty is modified in its application to Egypt, the judicial powers of consuls in Egypt will be accordingly modified, it would seem, without any action of Congress.
In Egypt, four different kinds of cases, involving judicial powers, are liable to engage the attention of United States consular officers:
- Cases in which both plaintiff and defendant are citizens of the United States.
- Cases in which the defendant is a citizen of the United States and the plaintiff a citizen of some other nation, but not Egyptian.
- Cases in which the plaintiff is a citizen of the United States and the defendant a citizen of some other nation, but not Egyptian.
- Cases in which one of the parties is a citizen of the United States and the other party a subject of Egypt.
In all cases arising under the first head, the jurisdiction of the United States consular courts is now complete, and will remain so under the new system.
All cases arising under the second head are now tried in the United States consular courts or the court of the defendant, and are judged by the United States consuls. Under the new system, all cases of that class will be tried in the new courts, and the present judicial powers of United States consuls will, in this respect, be prejudiced.
Cases arising under the third head are now taken before the consular court of the defendant, and the United States consular courts have no jurisdiction whatever. Under the new system, all similar cases will be tried by the mixed tribunals instead of the consular courts, and the judicial authority of United States consuls is unaffected.
According to the treaty stipulations between the United States and Turkey, cases arising under the fourth head should be tried by the United States minister or consul, or, according to the interpretation of the treaty by the Sublime Porte, before the local Egyptian courts, with the presence of the American dragoman. In Egypt, all the foreign consuls insist on trying such cases before their consular courts when the plaintiff is an Egyptian. This practice, which is contrary to the stipulations of the treaties between the European powers and the Sublime Porte, can only be defended on the ground that justice cannot be obtained for a foreigner in the Egyptian courts, which is hardly the case today, whatever it may have been in past times.
All such cases, that is, all cases between citizens of the United States and citizens of Egypt, will, under the new system, be taken before the mixed tribunals, and the judicial powers of the United States consuls, as exercised in Egypt, will, in this respect, be impaired.
It will thus be seen that the judicial powers of consuls of the United States in Egypt will be impaired or affected in only two kinds of cases, namely, cases arising under the second and fourth heads as above enumerated. All cases, however, arising between citizens of the United States will continue to be tried in the United States consular courts, and practically the judicial powers of consuls as created by the act of June 22, 1860, will remain unimpaired.
Any present action of Congress should, in my opinion, be limited to the acceptance of the project of judicial reform for five years, as proposed by the Constantinople commission.
I am, &c,