883.05/294

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

No. 136

Sir: I have the honor to acknowledge the receipt of the Department’s telegraphic instructions of January 26, 1929, informing me of the substance of the reply which, should I perceive no objection, it was desired that I should make to the Egyptian Government’s Notes of December 25, 1927, and October 28, 1928, in the matter of the proposed revision of the capitulatory regime in Egypt.

I now have the honor respectfully to enclose a copy of the Note which, in pursuance of these instructions, I addressed, under date of January 31, 1929 to the Egyptian Minister for Foreign Affairs.14

In this Note but one substantial departure is made from the text appearing in the Department’s aforementioned instructions, i. e. the omission of the last sentence of the Department’s draft reply to the fifth of the specific proposals made in the Egyptian Government’s Note of December 25, 1927. This proposal had as its object the liberalizing of the present regulations governing the elections to the offices of President and Vice President of the Mixed Court of Appeals and of the three Mixed Courts of First Instance. The omitted sentence read as follows: “It is felt that outstanding judicial ability [Page 941] should be the sole criterion upon which election to these offices should be based.” My reason for omitting this sentence was that its sense does not represent the principle traditionally followed by the Mixed Court judiciary in the conduct of the elections in question. The generally accepted and applied basis of such elections is, I am informed, “seniority, in the absence of distinct and recognized inability.” Outstanding judicial ability alone has never been and cannot, I believe, ever be the sole criterion upon which elections to these offices can be based. The principle of seniority, as modified in the aforementioned sense, is, I am informed, one common to the general practice of European countries as to the choice of presiding officers of chambers of courts of civil law jurisdictions. The Mixed Courts are, of course, organized strictly on these lines. In these circumstances and in the exercise of the discretion granted me in the first paragraph of the Department’s instruction under reference, I did not believe it was necessary for me to solicit the Department’s instructions before presenting the Note in the enclosed form.

I have [etc.]

Franklin Mott Gunther
  1. Not printed.