Papers Relating to the Foreign Relations of the United States, 1920, Volume II

883.05/174

The Chargé in Great Britain (Wright) to the Secretary of State

London, August 18, 1920.
[Received August 31.]

No. 3304

Sir: In compliance with the Instructions contained in the Department’s Telegram No. 874 of August 17, 4 p.m.,⁷ I have the honor to transmit herewith quadruplicate copies of the Note, No. 8016/508/16⁸ of July 15, 1920, from the Foreign Office, relative to the British proposals for reforms in Egypt, which should have accompanied the Embassy’s despatch No. 3171 of July 19, 1920.

I have [etc.]

J. Butler Wright

[Enclosure]

The British Secretary of State for Foreign Affairs (Curzon) to the American Ambassador (Davis)

[London,] July 15, 1920.

No. E 8016/509/16

Your Excellency: At the time when the British Protectorate over Egypt was proclaimed in 1914 after Turkey’s intervention in the war against the Allies, His Majesty’s Government stated that though it had been repeatedly placed on record that the system of the capitulations was no longer in harmony with the development of the country they considered that the revision of these treaties might most conveniently be postponed until the end of the war.

2. The investigations made by the Special Mission under Lord Milner to Egypt during the past winter have shown that the time has come when the good administration of the country cannot be ensured unless substantial changes are made in the present form of Government in the country, and particularly unless the protecting Power is placed in a position which will enable her to discharge the duties and responsibilities towards foreign Powers and their subjects in Egypt which she has undertaken by the proclamation of the Protectorate. First and foremost among the changes which are called for is the reorganisation of the judicial system which now prevails in Egypt.

3. Your Excellency is doubtless aware that in 1875, after years of skilful negotiation on the part of Nubar Pasha, a series of Mixed Tribunals were instituted in Egypt by decree of the Sultan approved by the Powers. These tribunals were made competent to deal with civil suits between foreigners in Egypt of different nationalities or between foreigners and Egyptians. They were also given a limited criminal jurisdiction, but in general criminal jurisdiction over foreigners entitled to the benefits of the régime of the capitulations as well as all civil suits between those of the same nationality continued to be dealt with in the consular court of the Power concerned.

4. The Mixed Tribunals were originally instituted for a period of five years, but their existence was constantly prolonged for further quinquennial periods, and has more recently been prolonged for shorter periods. The Decree now in force establishing the courts will expire on the 1st of November next, and it is not the intention of His Majesty’s Government to advise the Sultan of Egypt to renew it, as they feel that the time has come when a reform of the conditions affecting foreigners in Egypt should be carried through. This reform must necessarily entail the closing of the consular courts, as His Majesty’s Government feel that the maintenance of these twelve separate foreign courts is inconsistent with the existence of the Protectorate. It is net their intention, however, at present to attempt the unification of all the jurisdictions in Egypt; their view is that the first step should be the reorganisation of the Mixed Tribunals and the transfer to them of the jurisdiction hitherto exercised by the consular courts, leaving the jurisdiction of the Native Courts untouched for the present.

5. To enable this reorganisation of the judicial system to be carried into effect in Egypt and due effect to be given to the British Protectorate which was recognised by the United States Government on April 22nd, 1919, an agreement will be necessary between the United States Government and His Majesty’s Government. I have already had the honour to furnish you with a copy of a draft convention showing the lines on which it is suggested that such an agreement should be based. This draft agreement was drawn up on the assumption that the United States having already recognised the special position of Great Britain in Egypt will also be willing to confide to her the powers which are necessary to enable her adequately to discharge the duties which that position entails.

6. You are also in possession of copies of the draft decrees which have been prepared in order to effect the reorganisation of the Mixed Tribunals. These drafts were discussed in detail at Alexandria with representatives of the Judges and the Bar of the Mixed Courts. Many valuable suggestions were made by these gentlemen, all of which were incorporated in the drafts, particular attention being devoted to the question of cases relating to the “statut personnel” of foreigners, a matter of considerable importance in Egypt.

7. Further modifications may yet be made in these draft laws as the observations or criticisms of all the judges of the Mixed Courts have been invited. You will, therefore, realize that the drafts in question are not to be regarded as furnishing the text of a law [to] which the consent of the United States Government is sought. The measure will be one for which Great Britain alone will be responsible and into which His Majesty’s Government will be free to introduce any amendments which they feel will conduce to the good administration of justice in Egypt.

8. The general effect of these new Decrees when they come into force will be not merely to reorganise the Mixed Tribunals but also to remove the two great obstacles which the régime of the capitulations has opposed to the good government of the country, viz., immunity from taxation imposed by the local Government, and immunity from local legislation. Under Article 1 of Law 2, the new Mixed Courts will enforce all Egyptian legislation which has received the approval of the High Commissioner. Taxation which is imposed by an Egyptian Decree will therefore apply to foreigners as well as to Egyptians, if it has been approved in the manner indicated, in the same way as it would have applied to them in the past, if the Decree had been submitted to and approved by their respective Governments.

9. For the purpose of enabling His Majesty’s High Commissioner for Egypt to obtain the views of the various foreign colonies on the legislation proposed or enacted in Egypt and of advising him as to the exercise of the power of approving Egyptian legislation so as to make it binding on foreigners, it is the intention of His Majesty’s Government to establish a consultative committee on which the foreign colonies in Egypt would be represented in proportion to their numbers.

10. You will no doubt, however, realise that the real and effective guarantee to all foreigners in Egypt, one which would alone be sufficient to justify foreign Governments in confiding to His Majesty’s Government the care of the interests of their nationals in Egypt in all matters connected with the régime of the Capitulations, is the assurance contained in Article 3 of the draft Convention that American citizens shall stand on precisely the same footing as British nationals.

11. The judges of the Mixed Tribunals have in the past been appointed by the Egyptian Government after unofficial discussion with the Governments which have adhered to the judicial reforms of 1875. The result has been that all these Governments are represented on the Bench. This is not a system which is in reality conducive to the good administration of justice. The intentions of His Majesty’s Government are to appoint to the reconstituted Mixed Courts all the existing judges of the Mixed Tribunals (other than those whose age qualifies them to retire on a pension) who are subjects or citizens of a Power which agrees to close its consular courts. As no doubt the United States Government will be willing to enter into an agreement for this purpose with His Majesty’s Government, the American judges now serving in the Mixed Tribunals will be appointed to the new courts. As regards future appointments, however, nationality will not be taken into account except in so far as local conditions may require. The nationality of the judges will be determined solely by reference to the proper discharge of their functions by the Courts, and the only foreign judges, other than subjects of the Protecting Power, will be those whom it may be desirable to appoint for administering justice to their fellow countrymen.

12. His Majesty’s Government attach considerable importance to the conclusion of this agreement with as little delay as possible and I should, therefore, be grateful if you would be good enough to give the matter your earliest consideration.

I have [etc.]

(for

Earl Curzon

of Kedleston)

J. A. C. Tilley⁸

7. Not printed.
8. Number incorrect; see enclosure infra.
8. Chief of the Near Eastern Division of the British Foreign Office.