No. 799.
Mr. Beardsley to Mr. Fish.
Agency and Consulate General of the United States in
Egypt
Cairo,
August 18, 1874. (Received
September 16.)
No. 221.]
Sir: I have the honor to inclose herewith
copies and translation of a correspondence which has taken place
between this office and his excellency Cherif Pasha, minister of
justice, in relation to the formation of a special tribunal for the
trial of cases pending at the time the new courts shall be organized
and go into operation.
As the result of several conversations on the subject, his excellency
sent me his first letter, (inclosure No. 1,) by which you will
perceive that a protocol has been signed by the representatives of
Austria-Hungary and of Egypt, providing for the formation of a
special tribunal, to consist of a court of first instance and a
court of appeal, before which the claimants will be invited to bring
their cases within a delay of three months from the organization of
the new tribunals.
This special tribunal will, in its deliberations, be governed by the
rules of procedure laid down for the new tribunals, but will base
its judgments upon the laws and legal customs in vigor at the time
the claims originated.
Claimants who fail to take advantage of this privilege may always
resort to the regular new tribunal, which, in such cases, will base
their decisions upon the laws and legal customs in vigor at the time
the claims originated, instead of upon the laws of the new code.
Thus far all appears to be plain and simple. The statement, however,
that the special court or chamber of first instance and the special
court or chamber of appeal were both to be “composed by the corps of
magistrates sitting in Egypt, of judges “belonging to the tribunal
or to the court,” did not appear to me to be sufficiently clear and
definite, and I addressed a note to the minister, (inclosure No. 2,)
asking for either a copy of the protocol in question or a résumé of its provisions, especially of those
provisions relating to the number and nationality of the judges.
His excellency the minister answered (inclosure No. 3) by sending me
a translation of the adhesion of the government of Austria-Hungary
to the protocol.
You will observe by a reference to this translation that the entire
matter of the organization of these special courts is disposed of as
follows: The claimants will be invited to present “their regular
claims to
[Page 1194]
a senate,
established for this purpose by the tribunal of first instance, from
the decision of which it will be legal for the parties to appeal to
a senate or a tribunal of appeal delegated for this purpose. The
composition of these colleges of first and second instance will be
made by the respective tribunals themselves, and in the manner which
has been proposed in general for the composition of the senate.”
This leaves the matter in as much uncertainty as before, so far as
the all important question of the nationality and number of the personnel of the special courts are
concerned.
Cher if Pasha informs me that the members of the special courts in
question will be of the same nationality and number as of the
regular new tribunals, that, in fact, the special courts and the
regular courts of the new tribunals will be practically the
same.
The negotiations between Austria-Hungary and Egypt were carried on
between Nubar Pasha and Mr. Ceschirii, the agent and Consul-general
of Austria. Both Nubar Pasha and Mr. Ceschini are now out of
Egypt.
Besides myself, there are but three consuls-general now in Egypt:
those of England, France, and Italy; the remainder of the seventeen
being on leave of absence. Neither England nor Italy have yet
formally accepted the protocol, for the reason that its provisions
are not sufficiently clear. France could not accept it, as she has
not accepted the reform itself.
We are but little interested in the matter ourselves, having but few
old cases to be settled. So soon as Mr. Ceschini returns, however, I
will obtain a copy of the protocol itself and forward to you; it may
be more satisfactory than the communications I have the honor to
inclose herewith.
I will also be careful to inform you what action Great Britain takes
in the matter.
Illness has prevented me from forwarding the papers herewith inclosed
at an earlier date.
I am, &c.,
[Inclosure 1 in No.
221.—Translation.]
Cherif
Pasha to Mr. Beardsley.
Alexandria, June 20, 1874.
Mr. Agent and Consul-general: In the
verbal and written communications which have been exchanged
between the respective authorities in regard to the judiciary
reform, it has often been a question to determine the proper
course to follow in regard to the settlement of claims actually
pending.
The necessity of some action in this regard being based upon the
idea that the jurisdiction of the new tribunals can only be
exercised in principle for the future, and that consequently the
past must be regulated after a special and well-determined
process, different propositions have been made in regard to this
matter.
One of these propositions, proposed by the agent and
Consul-general of Italy, consisted in referring the decision of
the claims to a commission, formed as a chamber of I last
resort, and pronouncing judgment in accordance with the laws in
vigor, and chosen by the Egyptian government from among the
judges called to form, the new tribunals.
The government of the Khedive was quite disposed to accept this
proposition, which furnished the means of putting an end to the
difficulties and to the complications which these claims
constantly give rise to, and which the parties interested always
endeavor to remove from the regular way of the tribunals, to
place upon a ground where this government cannot follow.
The agents and consuls-general of Germany, England,
Austria-Hungary, and Russia, equally impressed with the
necessity of terminating these difficulties, showed themselves
quite favorable to the formation of the proposed commission,
which, while constituting
[Page 1195]
a special tribunal, should not, however,
resemble in any manner a tribunal, of arbitration which the
Egyptian government could not accept.
This proposition, so closely connected with the question of the
reform, has often arisen in the discussions which have taken
place on this subject.
Penetrated yourself with the importance of the subject, you have
always appeared disposed, Mr. Agent and Consul-general, to lend
to this end your loyal assistance for the application of some
means which, in principle, might harmonize and unite all
opinions.
During the long negotiations of which the reform has been the
occasion this subject has been studied and examined, and the
proposition has finally resulted in the following understanding
between the government of Austria-Hungary and the government of
the Khedive.
In a protocol signed by the agent and Consul-general of
Austria-Hungary and by the Egyptian government the claimants
will be invited to present, within a delay of three months from
the organization of the new tribunals, their claims before a
special chamber of first instance and another special chamber of
appeal, both composed, by the corps of magistrates sitting in
Egypt, of judges belonging to the tribunals or to the court.
This tribunal and this court, while judging in accordance with
their own rules of procedure, will base their judgment on the
laws and customs in vigor at the time the claims originated.
Those claimants who do not take advantage of this right within
the fixed delay may always present their demands to the new
regular tribunals, which will judge in accordance with the new
rules of procedure, but will base their judgment on the laws and
legal custom actually in vigor.
Such is, Mr. Agent and Consul-General, the result of the
communications exchanged between the government of
Austria-Hungary and the Egyptian government, notably under the
dates of February 18 and May 23, last.
As you will remark, this arrangement rests upon the fundamental
idea which served as the base of the first proposition, and
which referred the judgment of pending reclamations to the
magistrates chosen among the judges of the new tribunals.
But, aside from the general resemblance to the first proposition,
the agreement arrived at presents some points of difference
containing so many advantages, that their importance cannot
escape your attention.
In effect, according to the terms of this agreement, it is no
longer simply a question of a decision rendered in last resort,
that is to say, passed by a single decree of jurisdiction and
announced by a commission or special tribunal chosen by the
Egyptian government from among the magistrates composing the new
tribunal; it is now a decision rendered in first instance and in
appeal, that is to say, passed by two degrees of jurisdiction,
and emanating from special chambers of first instance and of
appeal, composed, by the same corps of magistrates, of judges
belonging to the tribunals of first instance and of appeal.
The advantages of the mode of procedure established by the last
arrangement are therefore evident, and the decision rendered by
the magistrates thus designated and proceeding like ordinary
tribunals with the conditions of publicity, appeal, &c,
which form the base of all serious judgment, seems to present
all the guarantees desirable, whether for the interested or for
the judges themselves; guarantees which would not exist in a
tribunal of arbitration sitting, so to say, with closed doors
and without publicity or appeal.
Thus, Mr. Agent and Consul-general, the government of
Austria-Hungary has completely accepted this mode of procedure
which the government of the Khedive was the first to sustain as
being the best and most regular.
The Government of the United States, which holds the sentiment of
justice so high, will, without doubt, equally recognize that the
way indicated in the agreement with the government of
Austria-Hungary is really the most sure and the most proper to
preserve every interest in principle.
In charging me to request you, Mr. Agent and Consul-general, to
be so good as to submit this agreement to the kind attention of
your Government, His Highness hopes that the Government of the
United States will not hesitate to join its adhesion to that of
the government of Austria-Hungary; and thus will cease all the
embarrassments which pending reclamations have given rise
to.
Accept, &c,
[Inclosure 2 in No.
221.]
Mr. Beardsley to Cherif
Pasha.
Monsieur le Minister: I have had the
honor to receive your communication of the 20th ultimo, in
relation to the formation of a special tribunal for the
consideration of
[Page 1196]
unsettled cases which may he pending when the new judicial
tribunals shall go into operation.
Your excellency says with truth that the necessity of some action
in this direction is based upon the fact that the jurisdiction
of the new tribunals can only extend, in principle, to the
future, and that, consequently, the past must be regulated after
a special and well-determined process.
In the course of the long negotiations which have taken place
between the government of His Highness and the other powers in
relation to judicial reform this question has often arisen, and
different propositions have been made in regard to it.
The representatives in Egypt of Germany, England, Italy, Russia,
and Austria have all shown themselves favorably disposed toward
the formation of some kind of a commission, which, while
constituting a special tribunal, shall not in any manner
resemble a tribunal of arbitration, which the Egyptian
government could not accept.
Your excellency proceeds to say that after long and careful study
and examination of the subject, a final arrangement has been
entered into between the government of Austria-Hungary and that
of His Highness the Khedive, and a protocol on the subject has
been signed by the Consul-general of Austria-Hungary and by the
Egyptian government.
By the terms of this protocol the claimants will be invited to
present their cases, within a delay of three months after the
establishment of the new tribunals, before a special chamber of
original resort and another special chamber of appeal, both
composed, by the body of magistrates sitting in Egypt, of judges
belonging to the tribunals or to the courts, (“les réclamants
seront invités a présenter dansun dédai de trois mois à partir
de I’installation des nouveaux tribuneaux, leurs instances
regulières devant une chambre spéciale en prémière instance, et
une autre chambre spéciale en appeal, composeés l’une et l’autre
par le corps de la magistrature siégeant en Egypte, de judes
appartenant aux tribuneaux on a la cour.”)
This tribunal and this court will be governed in their
deliberations by their own rules of procedure, but they will
base their judgments upon the laws and customs in vigor at the
time the actions originated.
The claimants who do not profit by this right within the delay
fixed will always be permitted to bring their claims before the
regular new tribunals, which in the consideration of such claims
will be governed by their own rules of procedure, but will base
their judgments upon the laws and legal customs in vigor at the
time the actions originated.
After pointing out the advantages of this manner of disposing of
such cases as may be pending at the time of the inauguration of
the new tribunals, your excellency invites me to submit the
terms and conditions of the protocol in question to the
attention of the Government of the United States, and expresses
the hope that the United States will not hesitate to give its
adhesion to an arrangement so well calculated to settle all
differences and remove all embarrassments resulting from
reclamations now pending.
In reply to your excellency’s dispatch, I have the honor to say
that the general idea of disposing of all claims now pending, or
of those which may originate before the organization of the new
tribunals, by the means of a special commission or tribunal
appointed for that purpose, seems to be a practical solution of
an embarrassing question.
In regard to the arrangement entered into with the government of
Austria-Hungary, the provisions of the protocol are not fully
explained in your excellency’s dispatch.
That I may arrive at a just understanding of the terms of the
protocol, so as to be able to submit them clearly to the
consideration of the Government of the United States, I have the
honor to request that I may be either furnished with a copy of
the protocol, or a résumé of its
provisions; especially of those provisions relating to the
number and nationality of the judges composing the tribunal and
court of appeal.
Accept, &c, &c,
[Inclosure 3 in No.
221.—Translation.]
Cherif
Pasha to Mr. Beardsley.
Alexandria, July 25, 1874.
Mr. Agent and Consul-general: I have
received the dispatch which you have done me the honor to
address to me under date of the 18th instant, in response to
mine of the 20th of June, on the subject of the formation of a
special tribunal to which shall be referred affairs now pending,
and those which may arise before the organization of the new
tribunals.
I hasten to respond to the desire which you have expressed to me,
by transmitting to you, herewith, a copy of the translation of
the adhesion of the government of Austria-Hungary,
[Page 1197]
which has been
communicated to the government of His Highness the Khedive, by
the agent and Consul-general, Mr. Ceschini:
“In a protocol signed by the agent and Consul-general in the name
of the government of Austria-Hungary, on the one hand, and by
the competent authority in the name of the Egyptian government,
on the other hand, the parties claimants will be invited to
present, within a delay agreed upon, fixed at three months, for
example, their regular claims to a senate, established for the
purpose by the tribunal of first instance, from the decision of
which it will be legal for the parties to appeal to a senate, or
a tribunal of appeal delegated for this purpose.
“The composition of these colleges of first and second instance
will be made by the respective tribunals themselves, and in the
manner which has been proposed in general for the composition of
the senates.
“The decisions will be based upon the laws and legal customs
actually in vigor.
“The Egyptian government, on the one hand, and the parties who
may take advantage of this right, on the other hand, will submit
absolutely to the sentences of these tribunals, which will be
executed after having been passed in judgment, in conformity to
the rules of the statute of organization.
“Those claimants who do not take advantage of this right within
the fixed delay may always present their claims to the new
regular tribunals, which, in pronouncing judgment in accordance
with the forms of the new procedure, will base their decisions
upon the laws and legal customs actually in vigor.”
I hope, Mr. Agent and Consul-general, that the text which
precedes will enable you to enlighten your Government in regard
to the proposition which I have had the honor to make to you
relative to pending affairs.
Accept, &c.,
