No. 349.
Mr. Farman to Mr. Evarts.
Cairo , May 2, 1877. (Received May 23.)
Sir: I have the honor to acknowledge the receipt of your dispatch No. 47, dated March 17, 1877, inclosing a dispatch received from the Hon. George Seward, United States minister to China, asking information in regard to the system of mixed courts in Egypt.
I am instructed by your dispatch to forward to the Department for transmission to him such papers and documents on the subject as can be procured, with a statement of my views in regard to the practical working of the system.
I forwarded to you by the last mail a full set of all the publications [Page 627] that have been issued for the use of these courts, including the “Codes Egyptiens,” preceded by the “Règlement d’organisation judiciaire.” There can be no question but that this new system of courts has thus far proved a great success. It is the best institution in the Orient. This is now almost universally admitted by all persons having a knowledge of its practical working.
Even the nations who at first looked upon it with distrust, arising from national and religious prejudices, now admit the justice of its decisions, and have no fears in submitting to its jurisdiction.
It has even become common for natives to sell their claims to Europeans for the sole purpose of having them prosecuted in these courts.
A serious question has been raised on the part of the Egyptian Government as to their jurisdiction in a certain class of causes, but I have good reason to believe that the government is well satisfied with the system as a whole, although it would undoubtedly prefer to make some changes restricting the jurisdiction of the courts in actions against itself and the Daïra of His Highness the Khédive.
The new tribunals have no criminal jurisdiction except in a limited number of cases mentioned in section 2 of title 2 of the “Règlement d’organisation judiciaire,” pertaining mostly to matters of discipline of their judges and officers, and crimes and misdemeanors against the execution of their judgments and orders. All other criminal cases are left to be tried as formerly.
They have, however, jurisdiction in all civil cases between natives and foreigners and between foreigners of different nationalities; and as there are nearly one hundred thousand resident foreigners in Egypt, consisting of many different nationalities, and transacting nearly all the business of the country, and most actions of importance are what are here termed “mixed,” that is having parties of different nationalities, and consequently within the competence of the mixed courts these courts constitute, therefore, the principal tribunals of the country and decide nearly all its important cases.
The courts commenced their sittings for the hearing of causes on the 1st day of February, 1876, and have since continued without interruption,, except that during the vacation in the months of July, August, and September, only a sufficient number of judges was retained to hear those causes that are here denominated urgent, and transact such business as could not be delayed.
The court of appeals is located at Alexandria, and has seven foreign and four native judges, and a native president, who has no voice either in the deliberations or decisions of the court.
The courts of “première instance” were at first organized with sixteen foreign and twelve native judges, and divided into three branches, holding their sessions, respectively, at Alexandria, Cairo, and Ismaïlia.
There was also attached to the courts a parquet, after the French system, consisting of “proeureur général” and four foreign and three native substitutes.
It was found as early as the 1st of July that the number of judges in the courts of “première instance” was insufficient to perform the necessary labor.
The use, in these courts, of three languages, French, Italian, and Arabic, few if any of the judges being acquainted with them all, increases very much the amount of work. It is common for the testimony to be given in one language, and the pleadings on one side in another, and on the other side in a third, and for the different addresses of the lawyers in the same case to be in two and sometimes three languages
[Page 628]The system of practice is also new, being unlike that of any other country, although taken principally from the French.
The laws, also, to a considerable extent, are new to the judges. It is necessary to apply the laws of every European nation, as well as the local Arab and general Mussulman laws, and the laws and prescriptions of a great variety of ecclesiastical systems, the law of a case often depending not only upon the nationality of the parties, but also sometimes upon the question of the particular religious sect to which they are considered as belonging and with which they are classified.
Since the month of July last the Egyptian Government has been constantly endeavoring to increase the number of judges, but has as yet only added four foreign and three native.
Four new foreign judges were made by the promotion of the substitutes nominated for the parquet by Great Britain, Germany, Austria-Hungary, and Italy. The French substitute has been made “avocat général,” and up to this time the Government of the United States and Russia have failed to nominate substitutes. As soon as such nominations shall be made and accepted by the government of the Khédive the nominees will be at once promoted to be judges.
Notwithstanding all the difficulties of the language, laws, and practice that have surrounded the new tribunals in their efforts for organizing and carrying into practical operation this new system, difficulties that could hardly exist in so great a degree in any other country in the world, they have succeeded admirably, and have thus far performed a great amount of labor, and disposed of a great number of causes. The following tables give the business of these courts for the first nine months of their sittings to October 31, 1876.
Tribunals of first instance.
| Place of the tribunals. | Causes. | Manner of obtaining judgments. | Notarial acts. | ||||||||||||
| Enrolled | Judgments rendered. | ||||||||||||||
| Civil. | Commercial. | Summary. | Referred. | Total. | Civil. | Commercial. | Summary. | Referred. | Total. | By default. | Trial. | Bankruptcy. | Interlocutory | ||
| Alexandria | 1,293 | 1,351 | 1,530 | 65 | 4,239 | 671 | 689 | 1,033 | 47 | 2,440 | 800 | 1,172 | 94 | 374 | 386 |
| Cairo | 902 | 636 | 1,038 | 64 | 2,640 | 403 | 228 | 622 | 58 | 1,311 | 507 | 569 | 58 | 177 | 228 |
| Ismaïlia | 475 | 153 | 264 | 14 | 906 | 240 | 72 | 197 | 14 | 523 | 104 | 296 | 14 | 109 | 95 |
| Total | 2,670 | 2,140 | 2,832 | 143 | 7,785 | 1,314 | 989 | 1,852 | 119 | 4,274 | 1,411 | 2,037 | 166 | 660 | 709 |
Court of appeals.
| Causes. | Manner of obtaining judgments. | Disciplinary. | |||||||
| Enrolled. | Judgments rendered. | ||||||||
| Civil. | Commercial. | Total. | Civil. | Commercial. | Total. | By default. | Total. | Interlocutory. | |
| 127 | 58 | 185 | 52 | 35 | 87 | 9 | 66 | 12 | 2 |
These figures show the extent of the judicial labors of the courts, and are a sufficient proof of their usefulness and success.
The court of appeals, in addition to the causes heard by it, has been thus far largely engaged in the preparation of legislative and administrative acts, and in matters of organization.
The mixed courts have no jurisdiction in causes pending on the 1st day of February, 1876, the date of their inauguration, such causes being left to be decided as formerly by the consular courts.
Most of the powers, however, have entered into a convention with the Egyptian Government for the appointment of commissioners, consisting of judges of the court of appeals, and for the formation of special chambers, one of the judges of the court of appeals with appellate jurisdiction only, and the other of judges of the court of first instance, to determine claims pending diplomatically against the Egyptian Government at the date of the inauguration of the courts.
The inclosed schedule, A, shows the result of the work of the several commissions and the special chambers to October 31, 1876.
The only serious objection I have heard raised against the new tribunals is their expensiveness to suitors. The design is to make them self-sustaining, and thus far the fees received have been sufficient, or nearly so, to pay all expenses, including salaries of the judges.
When the expenses arising from the use of several languages, necessitating the employment of a large number of interpreters for translating and copying, are taken into consideration, together with the fact of the comparatively small amount of business that can be done under ali the difficulties surrounding these courts, it will be readily seen that if the litigants pay all expenses, including their attorneys’ fees, the sum must be excessively large.
The inclosed schedule, B, gives the fees received by the different courts to October 31, 1876. The total amount is 2,835,51523/48 piasters tariff, which equals $141,038.51.
I also include a third schedule, 0, which gives the names and nationality of present judges of the courts and the members of the parquet.
The information above given is all that can now be obtained that is important, bearing upon the question of the practical working of the mixed courts in Egypt, and it will probably be, with the publications sent, sufficient to enable those studying the subject to understand this, new system, which it is to be hoped may remain one of the permanent institutions of Egypt until such time as the advanced civilization of the country shall render it, or any similar organization composed in part of foreign judges, unnecessary.
I ought perhaps to add that the system of laws and practice introduced here, and principally taken from the French, is not as satisfactory to the English and Americans as their own would be.. It is not, according to our mode of thinking, so well adapted to secure impartial justice. It could not, however, be expected that where, as is the case in Egypt, nineteen-twentieths of the foreign element is composed of people from countries which take in a great measure the civil law as the basis of their systems of jurisprudence, mixed courts could be established with a system of laws and practice based upon the common law of England.
I am, &c.,