The Secretary of State to the Ambassador in Great Britain ( Dawes )
346. Reference the Department’s No. 980 of November 5, 1931.17 The Minister in Egypt has telegraphically reported his informal discussion of the question of American representation on the Egyptian Mixed Courts with the British High Commissioner, whose purely personal opinion as expressed was that support by the British Government of the American viewpoint in this connection would involve a marked change in the attitude and practice of the British [Page 149] Government with reference to the courts. Sir Percy Loraine felt also that should the principle of equality of representation be admitted, representation would be demanded by other great powers not represented now on the courts. He added that concerning the appointment of foreign nationals to judgeships beyond the three required posts, his Government has consistently acted upon the principle that the qualifications and nationality of candidates were matters solely for the Egyptian Government’s discretion.
The point was stressed by the High Commissioner that the above were purely personal views and he would have to seek the British Foreign Office’s views before giving a definitive answer. However, it is altogether probable that the Foreign Office will take its cue from Sir Percy when it replies to your recent informal representations. Since his personal views are known now to be unfavorable to the position of this Government, it is deemed desirable that another informal approach in this matter be made by you to the Foreign Office before the preparation of its definitive reply to your recent representations.
For such discreet use as may be deemed desirable and for your information, the Department is not impressed at all by the reasoning that representation would be demanded by other great powers not represented now on the courts following British acquiescence in the American request. The Department in this connection fails to understand the basis upon which powers not represented now would be entitled to make a demand for such representation. Since the Department’s records indicate that on more than one occasion the British Government has taken an interest or intervened in the appointing of foreign judges, it is difficult also to comprehend Sir Percy’s statement that his Government has acted consistently on the principle that the qualifications and nationality of candidates were matters for the Egyptian Government’s discretion.
In again discussing this matter with the appropriate authorities in London, you may point out that it is not considered essential by this Government that the Egyptian Government necessarily should acknowledge formally the principle of equality of representation, and it would be satisfactory for effect to be given to that principle and for the present discrimination to be removed by the early appointment in sufficient number of American judges to ensure representation to the United States equal to that of principal capitulatory powers exclusive of Great Britain.
This Government, as you know, bases its claim to equality of representation with the other principal capitulatory powers upon the letter by Sir Henry Elliot on May 26, 187318 (see enclosures with the Department’s [Page 150] instruction No. 980, November 5, namely, letter of Judge Pierre Crabitès dated January 31, 1931, transmitted with despatch No. 88, March 13, from the Legation at Cairo19). The Department never has received copies, though on several occasions such have been requested, of documents upon which the Egyptian Government has relied to negative the sense of the letter by Sir Henry Elliot. When the United States by proclamation of the President on March 27, 1876, adhered to the judicial reform in Egypt, the principle of equality of representation was regarded as fundamental. From the founding in 1876 of the Mixed Courts until 1915 there was, in fact, only a single temporary departure from the principle of equality.
You may, in view of these circumstances, state the hope of this Government that the British Foreign Office will see its way clear to instruct the High Commissioner in Egypt to give suitable support in this matter to the American viewpoint. It may be added by you that the United States Government would not be disposed to consider favorably the eventual transfer from the Consular Courts to the Mixed Courts of criminal jurisdiction unless and until satisfied that in the appointment of judges to the Mixed Courts this Government will not be the subject again of discrimination in comparison with the other principal capitulatory powers.
This telegram and your answer should be repeated to the Legation in Egypt.