No. 343.
Mr. Farman to Mr. Fish.

No. 45.]

Sir: I have the honor to transmit herewith a copy of a dispatch from Chérif Pasha, secretary of foreign affairs, dated August 3, 1876, and its translation. The subject of this dispatch is a project for the increase of the number of judges in the new tribunals of Egypt. The facts rendering this increase necessary are set forth in detail. It seems to be impossible for the present number of judges to do the work that is required, [Page 615] and it is proposed to promote the European substitutes of the parquet to judges. There are five of these European substitutes, being one from each of the following countries, namely: England, France, Germany, Austria-Hungary, and Italy.

No substitute having been as yet named by the United States, it is proposed, if this project is accepted, to give such substitute as shall be regularly nominated by our government and accepted by the government of the Khédive, at once, on such acceptance, the position of judge in the court Première Instance (Court of First Instance), the same as the other substitutes already chosen.

The ratio between the foreign and native judges is not to be changed; but the Khédive is to be at liberty to appoint such person as he may choose and think necessary to the parquet, without consulting the foreign powers.

Whether the American substitute, when promoted to judge, would be assigned to Ismaïlia, Cairo, or Alexandria, is left to be hereafter determined.

After an examination of the facts I approve of the project, and recommend its acceptance by the Government of the United States and the nomination of a suitable person for substitute.

It is desired that an immediate answer be given to this proposition, so that in case it is accepted the new tribunals may, at the end of their vacation on the 15th of October, recommence their work with the proposed increased number of judges.

The position of the appointee, when accepted by the Khédive, would be the same as that now held by Judge Bacheller.

Russia is in the same condition as regards the new tribunals as America, not having yet proposed a substitute; and the same proposition is made to that government in relation to the appointment of a substitute as is made to the Government of the United States.

If both Russia and the United States propose substitutes, it will give to the Egyptian courts seven additional foreign judges and a proportionate number of native.

I have, &c.,

E. E. FARMAN,
United States Agent and Consul-General.
[Inclosure.—Translation.]

Mr. Agent and Consul-General: Thanks to the firm and enlightened support which the Government of the United States of America has given to judiciary reform, the new tribunals were definitively established and began their functions on the 1st February. Their inception, Mr. Agent and Consul-General, has been of a nature to show in the most evident manner the importance of these new tribunals, and to permit us to foresee the development they are destined to attain.

It suffices, to reach this conviction, to consult the statistics of the causes brought before the tribunal at Alexandria, during the first five months of the term, and which now number 2,600, of which 1,026 have been decided.

Also, Mr. Agent and Consul-General, the vice-president of the court of appeals, in a very detailed report, addressed, at the end of April, to the ministry of justice, did not hesitate to declare that the number of eight, five, and four European judges at the tribunals of Alexandria, Cairo, and Ismailia would certainly be insufficient, notwithstanding all the devotion displayed by each one of these magistrates in the exercise of his functions. This statement is all the more easily understood, when we consider that it is not only the great number of causes to be decided, but also the variety of the attributes and of the proceedings of the new tribunals. They are, in fact, at the same [Page 616] time, tribunals of summary justice, civil tribunals, “tribunals of infractions” (o police regulations pertaining to the courts), and even “correctional tribunals,” and “of penal instruction” in cases of crimes and misdemeanors, although their competency is restricted as regards this latter attribute. Evidently these numerous attributes complicate and burden the operations of the tribunals as much as the administration of the clerks.

It has already been found necessary to double the number of clerks, sheriffs, and interpreters in order to meet the exigencies of the service.

As regards the personnel of the magistracy, the vice-president of the court of appeals calls attention in his report to the fact that the tribunal at Alexandria is composed of two chambers, which require three European judges in the formation of each one of them, and which cannot meet the needs of the situation without having three sittings each week, which necessitate long deliberations and the drawing up of numerous decrees, thereby absorbing all the time and all the energies of these magistrates. He adds that the judge in charge of whom at first was placed the department of summary justice found himself, notwithstanding his experience and qualifications, incapable of sustaining alone the burden of the numerous causes allotted to each sitting, and it was quite necessary to detail another magistrate to assist him. In this manner it will be seen that the needs of the two chambers and of the department of summary justice of the tribunal at Alexandria require already more labor than the European judges can perform.

And still this tribunal must furnish “judges of service” (judges for chamber orders), “of reference” (for special term business), in urgent matters, cases of bankruptcy, and of “contraventions” (violations of police regulations in the administration of the tribunal), and, should the occasion offer, of crimes and misdemeanors (meaning crimes and misdemeanors connected with the administration of the courts). Besides; this tribunal must furnish the necessary persons for the formation of the two special chambers, whose duty it is to judge the pending claims.

As to the court of appeals, every one is aware that its share in the common work is very large, and that, while meting out justice, it is also charged with the general direction of the whole, the supervision, the discipline, &c.

As regards the tribunals of Cairo and Ismailia, they are relatively in the same situation as that of Alexandria.

In the tribunals of Cairo, which are composed of only five European judges, the amount of business is so great that the number Of causes amounts to more than two-thirds as many as those pending in the tribunal of Alexandria, and rendered necessary, even from the beginning, the creation of a second chamber.

The tribunal at Ismailia is composed of only four European judges.

The delegation to Port Said, at stated periods, of one of the judges of this tribunal, deprives it, besides, of the services of one of its members.

The insufficiency of numbers makes itself felt throughout the personnel of the magistracy. Although the code of procedure stipulates that it would be inconsistent to clothe a single judge with several judicial functions, yet, on the other hand, the present state of said personnel but ill allows of the application of article 4 of the regulations of organization, which state that, in cases of absence or of hinderance, provision can be made for the vacancy by the delegation of judges from one tribunal to another.

How is this insufficiency to be remedied in the interest of the good administration of justice? That is a serious question, which has occupied the serious attention of the government of the Khédive from the day On which this insufficiency made itself apparent, and was further demonstrated by the court of appeals, which is the medium of interpretation of the convictions of the entire magistracy, and supported by said article 4 of the regulations of judicial organization, which stipulates that the number of judges of appeal or of first instance may be increased, if the court makes known the necessity of such a measure, for the needs of the service, without modifying the ratio at present existing between the number of native and European judges.

After having maturely considered the situation, and after having obtained positive information from the most reliable sources, the government of the Khédive has thought, Mr. Agent and Cousul-General, that the easiest and at the same time the most speedy remedy would be to seek among the persons now performing duty at the new tribunals, outside of the judges properly speaking, the elements requisite for the attainment of the object which is now so important.

In this order of ideas, his attention has been particularly drawn by the court to the personnel of the parquet (procurator-general and five substitutes).

The European substitutes are already familiar with the working of the tribunals and with the affairs of the country; that is a most important advantage. They have, moreover, had experience, and this experience and the information they have acquired, united, qualifies them for apt and capable judges.

Besides, the attributes (duties) of the parquet are naturally prescribed within the limits laid down by the reform, and within those limits the “ministère public” has not to the present time been permitted to intervene in civil matters, except in questions [Page 617] of the statut personnel (nationality and identity of the person), questions delicate and of frequent occurrence, and which, moreover, open the widest field for its action. Nor in penal matters could it use its influence, except in special cases.

From this it would seem that a smaller number of substitutes could, at least in the actual state of affairs, meet the requirements of the situation and the aim of article 27 of the regulations of organization, which provides for a number of substitutes sufficient for the service of the sittings and of the police administration.

In this connection the court observes that, in the few months just elapsed, the functions of the “ministère public” have ordinarily been vested by the attorney-general in the native substitutes, as well, before the tribunal of appeals, up to the recent arrival of Mr. Vacher, as before the civil and commercial tribunals of Cairo; while the European substitutes have been more especially intrusted with the administration of summary proceedings.

The court is also pleased to believe as entirely justified the confidence which Mr. Vacher has reposed in these native substitutes, who needed to be initiated, as soon as possible, into the manner of transacting the business, and in whose intelligent and devoted services the parquet found a most reliable element for the attainment of the object in view. It is known, moreover, that the nomination of the present number of substitutes was less the result of the actual exigencies of the service than the application of a measure adapted to meet any emergency that might arise, and as a mark of deference to the great powers toward which the Khédive wished to observe a principle of strict equality and identical guarantees. In this latter conviction, if it is admitted that the co-operation of the body of substitutes, officials who are liable to, removal, is an additional guarantee of the rigid observance of good law, it would evidently seem that, as judges clothed with the character of unremovability, they would strengthen all the more that guarantee, and add to the satisfaction of the powers concerned.

Such are the considerations, Mr. Agent and Consul-General, which have caused the government, inspired by the court of appeals, to seek in the parquet itself those auxiliaries which have been indispensable to the tribunals.

I am, therefore, authorized by the Khe”dive to make the proposition that the substitutes named, on presentation by the governments concerned, shall be attached, as judges, to the tribunals of first instance, in which tribunals they have, up to the present time, been employed.

The Government of the United States of America, Mr. Agent and Consul-General, has not yet presented the name of any one for nomination as substitute by the Egyptian Government.

The Khédive is perfectly willing to consider any step taken in this connection by the Government of the United States of America, and to apply to the American substitute, who shall be regularly nominated, the proposition relative to the other substitutes.

In transmitting this proposition to you, Mr. Agent and Consul-General, I am confident that, having a full knowledge of the state of affairs, and of the importance of the considerations to which the Government of the Khédive must submit, in the interest of justice, you will not hesitate to recommend it to the Government of the United States of America for its consideration. If it is accepted, as the Government of the Khédive hopes it will be, the American substitute who shall have been regularly presented and nominated will be, from the date of said acceptance, promoted to the functions of a judge, under the same conditions as the judges of first instance.

Moreover, from the flay of said acceptance, the Government of the Khedive will be able to exercise freely the right mentioned in article 4 of the regulations of judicial organization looking to the continuance of the fixed proportion between the native and foreign judges; and it will retain the full faculty of providing for everything which concerns the personnel of the parquet without having to consult the foreign governments, which, under the circumstances, will find themselves entirely disinterested from the fact of the promotion of the substitutes to judges.

I am allowed also to add, Mr. Agent and Consul-General, that the court is heartily desirous that a decision may be arrived at on this subject before the 15th of October next, in order that, from that date, the tribunals may be enabled to continue their operations with a full personnel, and for that reason be better able to fulfill their mission, so important and so difficult.

I shall, in consequence, be much indebted to you if you would communicate to me the answer of the Government of the United States of America as soon as it shall have reached you, and I take this occasion, Mr. Agent and Consul-General, of renewing to you the expression of my high esteem.

CHÉRIF.