The Secretary of State to the Minister in Egypt ( Howell )

No. 271

Sir: The Department has received your telegram No. 12 and your despatch No. 793, both dated April 9, 1926, with respect to the recent resignation of Mr. G. A. W. Booth, a British Judge of the Cairo Mixed Court of First Instance, to accept the position of Royal Counsellor for the Egyptian Ministry for Foreign Affairs and the proposed appointment of a British subject to fill the position on the Mixed Court Bench thus made vacant. Acknowledgment is made also of the receipt of your despatch No. 783 of March 26, 1926,4 referred to in your telegram of April 9, reporting in greater detail with respect to this matter. You were correct in the assumption, expressed in your telegram of April 9, that this despatch had not been received by the Department.

In your telegram No. 12 of April 9 you expressed the opinion that, should a British subject be appointed to succeed Judge Booth, [Page 559] such action would constitute a departure from the principle of equal representation as between the Powers in the appointment of the foreign judges chosen to serve on the Egyptian Mixed Courts, and you inquired whether the Department desired you to make any representations in the matter. With your despatch No. 793 of the same date you enclose a copy of a note addressed by you to the Egyptian Foreign Office wherein you represent that the contemplated action in question “would appear to be out of conformity with the agreement entered into between the Great Powers and the Egyptian Government when these courts were established.”

The Department cannot understand why, having solicited its instructions, you proceeded, at the same time and without awaiting the receipt of these instructions, to make formal representations in this matter to the Egyptian Government.

With respect to the nature of the representations made in your note of April 9 to the Egyptian Foreign Office, it may be mentioned that the Department’s records indicate that Judge Booth was appointed to the Cairo Mixed Bench on January 12, 1918, to replace Judge W. H. Hill, also a British subject, who on December 31, 1917, had been appointed Counsellor of the Native Court of Appeals. It appears further that, at the time of Judge Booth’s appointment, three other British subjects held judgeships on the Egyptian Mixed Courts of First Instance, i. e. Judges E. A. Vaux and G. H. Carey at Alexandria and Judge E. Bateson at Cairo. Judge Vaux has been succeeded in turn by Judges J. H. Scott and A. S. Preston, Judge Carey by Judge W. H. H. Thorne, and Judge Bateson by Judge H. Holmes. All of these later appointees were British subjects. These appointments might be considered as constituting precedents, not, however, necessarily closed to objection, for the proposed appointment of a British subject to succeed Judge Booth. It may be noted in this connection also that since the date of the appointment of Judge Booth, at which time, as already noted, four British judges were serving on the Mixed Courts of First Instance, the United States Government has on four occasions agreed to the prolongation of the Egyptian Mixed Courts as constituted.

The Department appreciates that, since the replacement of the German and Austrian judges who before the war served on the Egyptian Mixed Courts, the principle of equal representation as between the Powers in the appointment of foreign judges chosen to serve on those courts has not been maintained. It has noted that the pre-war representation of the principal powers, i. e., three judges each, has been increased in the case of Great Britain to six and in the cases of France and Italy to four judges. Its records do not indicate that it was consulted with respect to these increases, and [Page 560] it does not consider that, should circumstances or policy render such action desirable, it would be debarred by its previous silence from formally taking exception to the present disproportionate representation. It would, however, have preferred that this question should not have been raised by you at the present time with the Egyptian Government, and it would not wish you to take any further action with respect thereto, except under instructions from the Secretary of State.

I am [etc.]

Frank B. Kellogg
  1. Not printed.