883.0513/89a

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

No. 306

Sir: The Department refers to its written instruction No. 275 of July 7, 1926,5 directing you to inform the Egyptian Foreign Office that appropriate reply would be made in due course to its note of May 16, 1926, addressed to you6 in the matter of the proposed appointment of a British subject to succeed Judge G. A. W. Booth on the Cairo Mixed Court of First Instance, a matter which acquires some importance as it now requires the consideration by this Government of the question of the applicability to the mixed court judiciary of the principle of equal representation amongst the powers.

In your note of April 9, 1926, to which the Ministry’s note of May 16 was in reply, you quoted extracts from the letter addressed by Sir Henry Elliot to Nubar Pasha under date of May 26, 1873,7 wherein the Egyptian Government was informed that the British Government was “prepared forthwith to accept the proposed arrangements respecting the judicial reforms in Egypt”. After a careful study of the available correspondence the Department concurs in the conclusion which you appear to have drawn from these extracts, i. e. that one of the conditions made by the British Government in giving its adherence to the Khedive Ismail’s program of judicial reform, as drafted by the International Commission which sat in Constantinople during the latter months of 1872 and the early months of 1873, was that “of avoiding giving any preponderance to one nationality over another in the selection of judges either in constituting the tribunal or in supplying the vacancies that may from time to time occur among them”. Sir Henry Elliot’s letter appears to be clear on this point, for he adds that “Her Majesty’s Government have instructed me to intimate that their final acceptance was dependent upon the maintenance of this principle”.

[Page 561]

Stated in other terms, the principle to which expression was given by Sir Henry Elliot was that there should be equality of representation as between the principal capitulatory powers in the appointment of foreign judges chosen to serve on the Egyptian Mixed tribunals. This principle carried to its logical conclusion would necessarily recognize the fact that the representation of any lesser capitulatory power or of any non-capitulatory country should not exceed that accorded to each of the principal powers, a conclusion sanctioned by the practice of nearly forty years. There is no doubt in the mind of this Government that, at the time of the entering into force of the Khedive Ismail’s project of judicial reform, this principle and its logical consequence were properly considered as applying to the selection of the foreign judiciary of the proposed mixed tribunals, i. e. to the selection of the foreign judges to serve both on the court of appeal as is evident from the earlier negotiations, and on the inferior courts, as evinced by the later negotiations which led to the choice of two magistrates from each of the principal capitulatory nations to serve on the courts of first instance. A copy of Sir Henry Elliot’s letter was formally transmitted to this Government by its Minister at Constantinople under covering despatch dated May 29, 1873, and the principle outlined therein was considered by this Government as fundamental when, by proclamation of the President dated March 27, 1876,8 the adherence of the United States was given to the judicial reform in Egypt.

As a matter of fact, from 1876, the year in which the mixed courts commenced to function, to 1915, there was but one departure from this principle of equal representation, i. e. when a French national was appointed to fill one of the two supplementary seats, created in 1879, on the Court of Appeal, thus giving to France a total representation of four, or one greater than that of any other foreign power, on the mixed judiciary. With respect to this case, however, it should be noted that, upon the retirement of the French appointee, his place was filled by a judge of Portuguese nationality.

In 1915, following the proclamation of the British protectorate over Egypt, one French and two British judges were appointed to fill three of the four vacancies left in the judiciary of the first instance courts by the forced vacating of the seats of the German and Austrian judges. The fourth of these vacancies was filled the following year by the appointment of a judge of Italian nationality. Further, in 1920 and resulting indirectly from the elimination of German, Austrian and Russian representation on the court of appeal, two additional British judges were appointed to serve on that tribunal. These comparatively recent departures from the principle of equal representation [Page 562] were noted by this Government, but no formal objections were made to the Egyptian or Allied governments for the reason that the Department had under advisement certain proposals of the British Government which, should they have been adopted by the interested foreign powers, would have led to the conclusion of agreements between them and Great Britain whereby the latter’s special position in Egypt would have been recognized and whereby there would have been confided to Great Britain the powers necessary to enable it to discharge the duties which that special position was alleged to impose upon it both towards Egypt and towards foreign nationals there residing.9

An essential feature of these proposals was that which provided for a “reconstitution of the Mixed Tribunals” amounting in effect to the transfer thereto of the jurisdiction exercised in Egypt by the consular courts of the various capitulatory powers. That this particular matter was still under consideration at the time of the most recently expressed adhesion of the powers to the mixed courts is evident from the phraseology of the Egyptian Government’s circular note of September 4, 1921, addressed to the representatives of the capitulatory powers in Cairo.10 In that circular the Egyptian Foreign Office, when requesting the representatives to secure the adherence of their governments “to continue the present mixed courts for an indefinite period”, stated that “the Egyptian Government does not find it expedient to establish a new organization for these courts by the date mentioned”. Reference may be made in this connection also to the Department’s written instruction No. 2 of February 13, 1922.10 It was with the foregoing considerations in mind that the Department, in its instruction No. 271 of June 8, 1926, when mentioning the various precedents for the appointment of a British judge to succeed Judge Booth, referred to them as “not, however, necessarily closed to objection”. These same considerations lead the Department logically to the necessity of instructing you to file with the Egyptian Foreign Office an exception to the closing paragraph of its note of May 16, 1926.

Leaving for the moment further consideration of the Egyptian Government’s note of May 16 and returning to the discussion of the applicability to the foreign judiciary of the principle of equal representation as amongst the powers, it is to be noted that not only did Sir Henry Elliot express, on behalf of his government, adherence to this principle, but he clearly indicated, also, that his government’s action was taken specifically in response to proposals received from the Khedive Ismail. The recognition by Egypt of this principle is, [Page 563] in the opinion of the Department, clearly to be inferred from that passage of Sir Henry Elliot’s letter in which he states that “the question … respecting the nationality of judges … received the attention it deserved from Her Majesty’s Government who concur in the view of the Khedive as to the importance of avoiding giving any preponderance to one nationality …”. As of interest to the Legation in this connection, reference may be made also to letters addressed by Nubar Pasha to the American Chargé d’Affaires and to the Italian Minister at Constantinople under dates of January 17 and February 24, 1873 (i. e. some months earlier than the date of the British note) wherein, with reference to the question of equal representation amongst the powers in the choice of judges for the proposed court of appeal, he stated, in part, as follows:

To the American Chargé d’Affaires: “… l’intention de Son Altesse est de composer notre cour d’appel de magistrats pris dans les pays qui ont été representé et ont étudié la question dans la commission internationale du Caire.”11

To the Italian Minister: “J’ajouterai même au delà de ce que vous m’avez demandé, mon chèr comte, que Son Altesse tient à cette composition et elle entend la maintenir pendant l’époque quinquennale d’essai, de sorte que, si pendant cette période quelqu’un des conseillers devrait, pour une cause ou pour une autre, quitter sa position, elle entend le remplacer en engageant un autre magistrat de la même nationalité.”12

Returning to the question raised in the Egyptian Government’s note of May 16, the Department desires that you take early occasion to discuss this matter orally with the appropriate authorities at Cairo. It is not believed that, with the foregoing in mind, you will require specific or detailed instructions as to the particular matters which should be the subject of your representations. It is believed desirable, however, that, when mentioning the note, you should consider the matters discussed therein, paragraph by paragraph, as follows:

1) Paragraph 1. The Egyptian Government evidently reads into your note of April 9, 1926, a meaning which does not follow from the statements made therein. You may state that it was not your intention, nor was it the intention of your Government, to propose that the presently vacant seat on the Cairo Mixed Court of First Instance should be filled by an American nominee.

2) Paragraph 2. Keeping in mind the foregoing discussion of the principle of equal representation, you may point out that such of [Page 564] the pertinent correspondence, exchanged between Egypt and the powers during the decade beginning 1867, as has come to the Department’s attention does not appear to indicate that any formal acceptance was necessary on the part of the Egyptian Government to the statements contained in Sir Henry Elliot’s note, for the reason that the proposals in question originated with the Khedive Ismail and were accepted by the British Government as one of the bases for the judicial reform.

In this connection your attention is directed to the letters of Judges Brinton and Crabitès transmitted with your despatch No. 827 of May 24, 1926.14 In particular, the Department would approve your following the sense of the suggestion made by Judge Brinton that the Legation might appropriately request that it should be furnished with copies of the correspondence or other documents upon which the Foreign Office relies to negative the sense of Sir Henry Elliot’s letter.

3) Paragraphs 3 to 6. There is, of course, no disposition on the part of this Government to question the statement contained in paragraph 3 of the Egyptian Government’s note of May 16 that “the Tribunals of the Reform are Egyptian courts”. However, the further statement made in this connection, i. e. that “the freedom of the appointment and of the choice of the judges is not limited except by the conditions imposed in Article 5 of the Reglement d’Organization Judiciaire”, is open to the objection that it was specifically with respect to this article that extensive assurances and explanations were offered by the Egyptian Government to the powers during the negotiations which led up to the definitive establishment of the Judicial Reform. This Government was well aware of the attitude of the Egyptian Government in the matter of the selection of the individual foreign judges to serve on the courts, the appointment and choice of whom was vested in the Egyptian Government by the article in question. This position was explained in detail by Nubar Pasha in a note addressed to the American Agent and Consul General at Cairo under date of May 22, 1874,14 agreeing, upon the recommendation of President Grant, to appoint Mr. Victor C. Barringer as a judge on the projected mixed court of appeal. This Government accepted that position as one necessary to the maintenance of the principle that the proposed courts were to be truly Egyptian in character.

The Department does not feel, however, that the contentions set forth in paragraphs 3 to 6 of the Egyptian Government’s note are wholly pertinent to the issue. It is clear that this Government willingly concurs in the contention of the Egyptian Government that it accorded to each of the principal capitulatory powers a minimum representation in the mixed judiciary, i. e. a minimum of one judge on the court of appeal and of two judges on the inferior courts, but it questions the implication, to be drawn from the further statements made in this connection, that the choice of foreign judges for the positions not thus filled may be exercised by the Egyptian Government without applying the principle that no preponderance is to be given to any one nationality.

This Government relies, therefore, both on the understanding existing [Page 565] at the time of the establishment of the courts and on the sanction which almost forty years of successful practice had given to the arrangements then put into effect to establish the desirability of a return to the application of the principle of equal representation amongst the principal capitulatory powers to the composition of the mixed judiciary. In view of the recent departures from this principle it is probable that such return could most appropriately be effected either by the gradual replacement, when occasion permits, of the additional British, French, and Italian judges now serving on the courts or by the appointment thereto of such numbers of additional American, French and Italian or other judges as would re-establish equality of numbers amongst the representatives of the four remaining principal capitulatory powers.

4) Paragraph 7. Your attention is redirected to the Department’s comment contained in the paragraph beginning at the foot of page four of the present instruction.15

The Department does not desire nor does it feel that it need to enter at this time into a more detailed discussion of the position taken by the Egyptian Government in its note of May 16, last. That position, refusing as it does to recognize as applicable the aforementioned principle of equal representation, is so evidently opposed to the views of this Government, such denial is so clearly contrary to the understanding of this Government both at and continuously since the time of its first adherence to the mixed courts, that it is felt that, before making any further observations with respect thereto, should such prove necessary, it is essential that the Egyptian Government set forth at greater length and in greater detail the arguments which lead it to the conclusions expressed in its latest note. In other words, it should show clearly upon what evidence it arrived at the conclusion expressed in that note with respect to Sir Henry Elliot’s letter.

The Department desires to receive and will read with interest a full report of the results of the further informal representations which, in accordance with the foregoing, you are directed to make in this matter to the Egyptian Government. The Department does not desire, however, that you address at this time any written communication with respect to this matter, either formal or informal, to the Egyptian Government.

I am [etc.]

Frank B. Kellogg
  1. Not printed.
  2. Ante, p. 557.
  3. Foreign Relations, 1873, vol. ii, p. 1118.
  4. 19 Stat. 662; Foreign Relations, 1876, p. 1.
  5. See Foreign Relations, 1920, vol. ii, pp. 216 ff; ibid., 1921, vol. i, pp. 903921.
  6. Not printed.
  7. Not printed.
  8. Translation: “The intention of His Highness is to compose our Court of Appeal of magistrates selected from those countries which have been represented and have studied the question in the international commission at Cairo.”
  9. Translation: “I would even add, beyond what you have requested of me, my dear Count, that His Highness holds to this composition and that he intends to maintain it during the five-year trial period in such a way that if, during that period, one of the magistrates should for some reason or other give up his position, His Highness would replace him by engaging another magistrate of the same nationality.”
  10. Not printed.
  11. Not printed.
  12. i. e., the paragraph beginning “An essential feature of these proposals”, p. 562.