No. 644.
Mr. Beardsley to Mr. Fish.
Agency
and Consulate-General of the United States in
Egypt,
Cairo
,
December 15, 1874. (Received January 20,
1875.)
No. 248.]
Sir: I have the honor to transmit herewith four
inclosures, relating / to the conditional acceptance by the Versailles
government of the project of judicial reform in Egypt.
Inclosure 1 is an official note from the minister of justice, in which
his excellency informs me that the negotiations with France have been
brought to a satisfactory conclusion, and the final result embodied in a
protocol, signed at Cairo on the 25th day of September, 1874, by Cherif
Pasha, minister of justice, on the part of the government of Egypt, and
the Marquis de Cazaux, agent and consul-general, on the part of the
government of France, to which the Versailles cabinet has given in its
adhesion, subject to the approval of the National Assembly. His
excellency incloses a copy of the protocol in question; enumerates the
different points concerning which the two governments have been so many
months at variance; explains the result of the final negotiations; and,
in conclusion, expresses the conviction of His Highness the Khedive that
the Government of the United States will approve of the terms of the
protocol signed with France, and continue to lend its powerful support
to the work of reform in Egypt.
Inclosure 2 is a translation of the protocol, with a copy of the original
in French. It stipulates, 1st, that indictments for fraudulent
bankruptcy, alluded to in article 8, paragraph G, title second of the
organic regulations, shall remain within the competence of the French
tribunals; 2d, that one of the judges of the courts of first instance
shall be [Page 1322] chosen from among
French magistrates in the same manner as is provided for the nomination
and appointment of judges to the court of appeal; 3d, that one member of
the “parquet,” or attorney-general’s office, shall also be chosen from
among French magistrates; 4th, that the agent and consul-general of
France shall, after a certain delay and in a certain manner, point out
to the minister of justice particular points in the codes which require
revision and elucidation; 5th, that the “statut
personnel,” omitted in the organic regulations, shall be
re-inserted in the revised regulations; 6th, that the Egyptian
government shall call the attention of the new magistracy to the desire
expressed by France that one of the magistrates called to try European
cases shall be of the same nationality, if possible, as the party to the
suit; 7th, that all the immunities, privileges, prerogatives, and
exemptions now enjoyed by foreign representatives, consuls,
vice-consuls, and their subordinate officers, shall be maintained, and
that the new laws shall not be applied to their persons or to their
dwelling-houses; 8th, that the new laws shall have no retrospective
effect; 9th, that claims now pending against the Egyptian government
shall be submitted to a commission of three magistrates of the court of
appeal, whose judgment shall be final; 10th, that if the claimants
prefer, they may submit their claims to special chambers, one of first
instance and one of appeal, as already agreed upon between the Egyptian
and Austrian governments; 11th, that in cases where the claimants are of
several different nationalities, the manner of trial shall be determined
upon by the respective consuls-general; and 12th, that the settlement of
such cases shall commence on the establishment of the new tribunals.
These twelve points are all virtual concessions on the part of the
Egyptian government, and they undoubtedly strengthen the guarantees
heretofore given to the foreign powers.
Inclosure 3 is an official note from the minister of justice, bearing the
same date as inclosure 1, and received at the same time. The minister
states that the Khedive has given orders that one judge for the
tribunals of first instance and one substitute (member of the parquet)
shall be chosen from among the magistrates of each of the great powers,
subject, however, to the said powers deeming it expedient to propose
such magistrates: and he asks me to submit the matter to the Government
of the United States, and to inform him as soon as convenient whether
our Government deems it necessary, in view of American interests in
Egypt, to designate to His Highness proper persons for the positions
mentioned.
The judge’s salary will be thirty thousand francs a year, the contract to
be for five years, and three months’ salary for traveling expenses,
&c. In case of illness, rendering him unfit for service, one year’s
salary, and on the expiration of the five years’ service the same amount
in lieu of a pension. In case of death a year’s salary to his widow or
children. The terms of contract with the substitutes will be the same,
except that their salary is fixed at twenty-five thousand francs, and
their term of service is at the pleasure of the Egyptian government.
Inclosure 4 is the revised regulations, which have just been issued.
I am unable to state at this early moment just what steps will be taken
by the other great powers in regard to the Franco-Egyptian protocol; but
it is generally believed here by their representatives that it will be
favorably received. General Stanton, Her Britannic Majesty’s agent and
consul-general, informs me that the government of Great Britain has
signified its intention of nominating a magistrate and substitute, but
he has received nothing official from the foreign office as yet.
[Page 1323]
I presume it is not necessary that our Government should take any
official action in this matter one way or the other, as we will in any
event reap whatever advantages may accrue to any other power.
If, however, in view of our present and prospective interest in Egypt, it
is deemed expedient to nominate two magistrates for the positions
indicated, great care should be taken in their selection. A thorough and
practical knowledge of the French or Italian language is an absolute
necessity, especially for the lower courts.
I am, &c.,
[Inclosure 1 in No.
248.—Translation.]
Cherif Pasha to
Mr. Beardsley.
Ministry of Justice
,
November 19, 1874.
Beardsley, Esq.,
Agent and Consul-General for the United States of
America:
Sir: I have the honor to inform you that
the Versailles cabinet has given in its adhesion to the project of
judicial reform in Egypt, subject to approval by the National
Assembly.
The Government of the United States of America, prompted by feelings
of high benevolence toward Egypt, was pleased, since the
commencement, to acknowledge the judicial reform as an achievement
of civilization and progress, to the realization of which we were
urged with constant and equal solicitude on the one hand by the
ever-growing importance of our commercial and industrial relations
with Europe and America, and on the other hand by the strong
securities to be afforded to the weighty interests at stake.
The adhesion given by the United States Government is a striking
token of its high sympathy for a work with which public welfare in
Egypt is so intimately connected, wherefore the Khedive’s government
feels it a duty, dictated by its gratitude toward the American
Government, to state summarily for its information the points on
which negotiations with France were conducted, and which of late
have been fortunately brought to such a satisfactory conclusion.
The first point had reference to bankruptcy matters.
In the first instance, the French government had expressly
stipulated, and the Khedive government had agreed thereto, that all
suits having reference to the “personal statute” should belong to
consular jurisdiction.
Hence declarations of bankruptcy, which so deeply affect the status
and capacity of persons, were naturally to be reckoned among such
reserved cases:
The Versailles cabinet, however, appreciating the reasons set forth
by the Khedive’s government, and which were suggested to us by our
most sincere wish to afford to commercial interests of Frenchmen in
connection with other nationalities in Egypt, more efficacious
protection and more serious security, the Versailles cabinet
desisted from the strictness of the principle, and did accede, as
other powers had done, to the competency of the Egyptian
jurisdiction in matters of bankruptcy.
Yet one difficulty remained to be overcome, that is to say, with
reference to indictments for fraudulent bankruptcy. The French
government contended that it would not be consistent with the
principles of sound administration of justice to disjoin the
attributes of penal authority. This particular point gave rise to
long negotiations, which it would be superfluous to state here.
Notwithstanding the reasons advanced by government, and which were of
a certain weight, the Khedive did not conceal his wish that France
should partake of the concert of the powers whose adhesion to the
judicial reform was now an accomplished fact. The interest of this
great deed of progress, its unity of action, required common
exertion and understanding between all parties concerned. France,
whose commercial and industrial relations in Egypt are so extended,
and whose colony is so important, could not and would not remain a
stranger to the collective desire expressed by the powers to see
uniform judicature established in this country, so as to afford
protection to all kinds of interests, and therefore the Khedive,
founding his decision on this course of ideas, of which the
importance cannot, sir, escape your attention, and considering on
another hand the extremely rare occurrence of such cases as
contemplated in article the 8th, paragraph G, of the organic
regulations, (règlement organique,) [Page 1324] has left the cognizance
of felonies in the matter of fraudulent bankruptcy, as in the past,
to the competency of the jurisdiction of the accused.
The second point concerns the constitution of the inferior tribunals,
(tribunaux de première instance.)
The French government, founding its demand on the importance of its
own colony, as well as those of other great powers, desired that the
judges in the inferior tribunals should belong partly to the great
powers. The Khedive having already from the first applied to the
great powers for the proposal by them of magistrates to sit in the
court of appeal, found it very easy to accede to the desire
expressed by the French government concerning the formation, which
it is now admitted becomes necessary, of a second chamber in the
inferior tribunals at Alexandria, which, after all, would allow the
appointment of such judges as might be proposed by the great powers
without precluding those belonging to minor powers.
The proposal of a “substitute” (pro-attorney-general) of French
nationality is the third point of the arrangement concluded with
Marshal MacMahon’s government. His Highness did the more willingly
accede to the desire expressed by the Versailles government on this
point, as it was within the Khedive’s views to have the parquet (the
attorney-general’s office or court) partly formed of foreign
magistrates, and that accordingly application for “substitutes” had
already been made by the Egyptian government to several powers.
The fourth point was with regard to the codes.
The French government called our attention to the obscurity and to
certain contradictions that had slipped in in the framing and
wording of our codes. We answered that while upholding the judicial
principles which constitute the groundwork of our codification, and
which have been acknowledged by the powers as being consistent with
modern judicial principles, the Khedive’s government, in the
interest of a sound legislation that should offer on its application
the least possible discrepancies, did appreciate with all due
attention such proposal, and that a commission created by us, and
chosen from among the appeal-court counselors, would be appointed to
inquire into the importance of the alterations suggested by the
French government, with a view to remove, if needs be, such
contradictions and obscure matter as were brought to our
attention.
Fifthly. The French government desired that the reservation
respecting the personal statutes, which had been omitted in article
the 9th of the organic regulations, should be inserted also in the
text of the said regulations. There was, and there could be, no
objection on our part with reference to this point, the reservation
in question being written in clear words on the face of our civil
code.
Lastly. The remaining articles of the convention concluded with the
French agent and approved by the Versailles cabinet, concerning the
constitution of the chambers, consular immunities, and the mode of
settling pending claims, do not differ in the slightest degree from
what has been agreed with other powers.
Only with reference to pending claims, the French government, while
adhering to what had been accepted by other powers, proposed to the
Egyptian government several other more speedy modes of settlement,
considering the large amount of French claims and the delay they
might have incurred, had they to undergo the two degrees of
jurisdiction.
Such considerations led on our part to a proposal which was adhered
to by the French government, as offering all desirable guarantees;
that is to say, the appointment of a commission composed of three of
the members of our appeal court, to whom pending claims would be
submitted, and whose decision would be final and admitting of no
appeal, unless, however, the interested parties should prefer having
such claims brought before a special chamber in first degree, (première instance,) and another special
chamber in appeal, thus following the arrangements entered into
between several other powers and the Egyptian government.
This is a summary of the ensemble of the
convention concluded on the 25th of September ultimo, approved by
the Versailles cabinet, and of which I have the honor to subjoin
herewith a copy, together with a copy of the new organic
regulations.
From the premises and by perusal of the above convention, it may
easily be inferred that no privilege has been granted to one power
to the detriment of other powers. On the contrary, it might be said
with reason that the securities afforded to the powers have been
thereby improved.
His Highness, therefore, is thoroughly convinced that the Government
of the United States, concurring in the Khedive’s views, will
appreciate as it deserves the present communication, and will in
consequence continue to lend its powerful and kind support to the
work so eminently profitable to the reform.
In communicating to you, sir, this solution, through which the last
obstacle to the establishment of the new judicial institution in
Egypt is now removed, I avail with eagerness of this opportunity to
renew in the name of the Khedive’s government the expression of our
feelings of gratefulness toward the American Government for its kind
and constant concurrence, a deed which on many grounds so highly
concerns [Page 1325] the subjects
(citizens) of the United States, as well as our own nationals, and
of which the wise and skillful application shall secure to
foreigners their lawful interests and at the same time allow of the
country improving, and extending, under the safeguard of sound
administration of justice, its resources at home as well as its
international relations.
I have the honor, &c.,
The minister of justice,
CHERIF.
Cairo
,
November 19,
1874.
[Inclosure 2 in No.
248.—Translation.]
Protocol signed between his excellency Cherif
Pasha, minister of justice, and the French consul-general in
Egypt.
On the twenty-fifth day of September, one thousand eight hundred and
seventy-four, his excellency Cherif Pasha, minister of justice to
His Highness the Khedive, and Monsieur le Marquis de Cazaux, agent
and consul-general of France, acting by order and pursuant to
instructions from their respective governments, having held a
conference for the purpose of coming to a final understanding
respecting the conditions on which the French government would
adhere to the judicial reform in Egypt, have agreed as follows:
- First. Indictments for fraudulent bankruptcy, alluded to
in article 8, paragraph G, title the second, of the original
regulations, shall continue, as in the past, to be within
the competency of the jurisdiction of the accused.
- Second. With regard to the choice of one of the judges of
the courts of first instance, the Egyptian government shall
apply to the ministry of justice in France, in the form
provided for the nomination of judges for the appeal court,
and the magistrate thus designated shall be in preference
appointed to sit in the Cairo tribunal.
- Third. One of the members of the public ministry
(attorney-general’s office or parquet) shall be chosen from
among the French magistracy, and it is expressly understood
that in the event of a second chamber being created within
one of the Cairo or Zagazic tribunals, another member of the
public ministry shall also be chosen from the among the
French magistrates.
- Fourth. With reference to the revision of the codes, the
agent and consul-general of France shall address to his
excellency Cherif Pasha, within fifteen days from the
notification by the French cabinet of its approval to the
Egyptian government, a statement as to the particular points
requiring elucidation in the wording and system of the new
laws, and suggesting such alterations as may be thought
necessary to remove any contradictions therein
contained.
- Fifth. The reservation respecting the “statute personnel,” omitted in article 9 of the
organic regulations, shall be re-inserted in the text of the
said regulations.
- Sixth. With reference to the constitution of the chambers,
the French government, having desired that one of the
magistrates called to try European cases be, as far as
possible, of the same nationality to which the party in the
suit belongs, the Egyptian government engages itself to call
the attention of the new magistracy to this point which
alone is intrusted with the organization of its own
service.
- The same answer was given to the Austro-Hungarian
government, which had expressed an identical desire.
- Seventh. The immunities, privileges, prerogatives, and
exemptions actually enjoyed by foreign consuls, as well as
by their subordinate officers, by virtue of diplomatic usage
and of treaties in force, shall be maintained in their
integrity. Therefore agents and consuls-general, consuls,
vice-consuls, their families, and persons attached to their
service, shall not be amenable to the new tribunals, and the
new laws shall not be applied either to their persons or to
their dwelling-houses. The same reservation is stipulated
with respect to Catholic establishments, whether religious
or educational, placed under French protection.
- Eighth. It is well understood that the new laws and new
judicial organization shall have no retrospective effect,
according to the principle laid down in the Egyptian civil
code.
- Ninth. Claims now pending against
[see original, “entre,” which means
“between,” cannot stand here.— Translator] the Egyptian government shall be
submitted to a commission consisting of three magistrates
from the appeal court, chosen by mutual consent by the two
governments. The said commission will, decide finally, and
without appeal, and will itself prescribe the form of
procedure to be observed.
- Tenth. However, the said claims, if the interested parties
so prefer, may be brought before a special chamber of first
degree, (instance,) and another special chamber of [Page 1326] appeal,
consisting of magistrates belonging to the tribunal and to
the appeal court, respectively, and constituted according to
the provisions already agreed upon between the Egyptian
government and the Austro-Hungarian government, and several
other powers. The above two chambers, although proceeding in
conformity to the rules of procedure for the new tribunals,
shall, nevertheless, try the merits of the case in
conformity to the laws and customs in force at the time of
the occurrence of the facts which gave origin to the
claim.
- Eleventh. Cases in which claimants of several
nationalities are concerned shall be tried in conformity to
either of the two above modes, as may be agreed upon by
their respective consuls-general.
- Twelfth. The settlement of the above-indicated cases shall
commence at once on the establishment of the new tribunals,
and shall continue so long as the said tribunals remain in
operation.
The stipulations contained in the present procés-verbal shall be submitted without any delay to the
two governments, respectively, for ratification.
[Inclosure 3 in Io.
248.—Translation.]
Cherif Pasha to
Mr. Beardsley.
Sir: The Khedive having directed that one
judge for the inferior tribunals (tribunaux de
premiere instance) and one substitute (pro
attorney-general,) both of them belonging to each of the great
powers, be called to form part of the new judicial organization,
subject however to the said powers finding it expedient to propose
to His Highness’s choice the two above magistrates, I have,
therefore, the honor to request you will kindly submit the matter to
the Government of the United States of America, and to inform me at
your earliest convenience whether the American cabinet would find it
necessary, with a view to American interests that may exist in
Egypt, to take part in the said arrangement, by designating for the
Khedive’s appointment one judge for the said tribunals and one
substitute.
The judge’s position will consist of thirty thousand francs’
allowance per annum—five years’ engagement; three months’ salary in
lieu of traveling and settling expenses. In the event of illness,
such as would occasion unfitness for service, one year’s allowance.
On the expiration of the five years, one year’s allowance in lieu of
retiring pension. In case of death, one year’s allowance to his
widow or children.
The same terms are made with regard to the substitutes, excepting
their allowance, which is fixed at twenty-five thousand francs per
annum, and under the following proviso: Pursuant to the provisions
of the rules, (reglement,) and of its own
nature, their office being removable, one year’s stipend to be
allowed to them should government find it necessary to give up their
services before the expiration of the above-mentioned period of five
years.
I have the honor, &c.,
Beardsley, Esq.,
Agent and Consul-General of the United States of
America.
