The Chief of the Division of Near Eastern Affairs ( Murray ) to the Under Secretary of State ( Phillips )
Dear Mr. Phillips: You will recall that on October 12, 1934, the Egyptian Government addressed a circular note9 to the Capitulatory Powers bringing up two questions regarding the Mixed Courts; (one) the Egyptian Government requested the Capitulatory Powers to accede to the request that Egyptian judges be permitted to preside over the various Chambers of the Court and (two) the request was made that Egyptian judges be permitted to draft their opinions in Arabic.
Before drafting a reply to the Egyptian request we considered it desirable to obtain the opinion of one or more of the American judges on the Mixed Courts. The Legation has forwarded a letter9 from Justice Brinton, the American judge on the Court of Appeals, in which he expresses the opinion that since the General Assembly of the Courts has already decided that under existing regulations Egyptian judges are not entitled to preside over the Chambers, it would be difficult for the Powers to take an opposite view. He points out, moreover, that it is difficult to see how the Assembly could appropriately alter its opinion even if requested to do so by the Powers. He adds that the proper method of handling the question is for the Egyptian Government to propose to the Powers a specific modification of the text of the regulations of organization of the Mixed Courts. In this text specific provision could be made for Egyptian judges to preside over the Chambers.
With respect to the question of the use of the Arabic language Justice Brinton points out that the present regulations provide as follows:
“The judicial languages employed before the courts for the pleadings and the preparation of writs and decisions are: Arabic, English, French and Italian.”
Justice Brinton points out that it is unnecesary for him to remind the Department of the difficulties which would arise in the event that the various judges endeavored to use all of these languages instead of drafting their judgments in French as is now the case. He suggests that the only proper answer to the Egyptians would appear to be the suggestion to present a specific modification of the present regulation which could be considered by the Powers.[Page 572]
We had intended to draft a reply to the Egyptian circular note along the lines of Justice Brinton’s suggestions when we noticed a press report to the effect that the present Egyptian Government did not consider itself bound by the note of October 12th which was presented to the Powers by a previous government. Upon taking the matter up with the Legation at Cairo we learned that no responsible Egyptian official had indicated that the present government was not in accord with the note of October 12th. The Legation added, however, that the fact that the question had not been referred to since the new government took office had given rise to the belief in some quarters that the present government would not press the Powers for an answer. The Legation goes on to state that only one reply has been received by the Egyptians, and that is from the French Government. This reply was in general somewhat similar to that which we had had in mind making, but on the whole is apparently somewhat less satisfactory to the Egyptians than ours might be expected to be. No other Legation than the French has as yet made any answer to the Egyptian note.
As you know, it has long been our custom in dealing with capitulatory matters in Egypt to avoid taking the lead. We have felt that other Powers such as Great Britain, France, Italy and Greece with interests far greater than our own could more appropriately take the lead in such matters. In the present case, therefore, since only the French Government has replied to the Egyptian note and since the Egyptians are not pressing us for an answer, I should be inclined to delay a reply until after the Powers more directly concerned have taken action. It is not at all improbable that the new Egyptian Government will address a new note to the Powers in a tone more courteous and satisfactory than that drafted by the last Cabinet. A new note of this type would undoubtedly permit us to make a more satisfactory reply than we are able to do under existing conditions. Such a method of procedure appeals to me, moreover, in that it avoids our committing ourselves to a course of action when it is not necessary for us to do so.
However, if you feel that we should make a reply at this time we could possibly instruct the Legation to give the Minister for Foreign Affairs an oral answer along the general line of that which we have had in mind.10