783.003/239

The Secretary of State to President Roosevelt

My Dear Mr. President: Pursuant to your authorization, the Government of Egypt has been informed that the Government of the United States will be officially represented at the Conference called by the Government of Egypt to meet at Montreux, Switzerland, on April 12, 1937, for the purpose of concluding a convention to provide for the termination of the capitulatory or extraterritorial rights which the United States and its nationals, in common with the governments and nationals of eleven other countries, now enjoy in Egypt. The principal capitulatory rights now enjoyed by the United States in Egypt are:

1.
Exclusive jurisdiction of American consular and ministerial courts over American nationals, in accordance with the laws of the United States, in the following categories of cases:
(a)
All cases in which American nationals are charged with crimes or offenses, except (1) minor police offenses; (2) fraudulent bankruptcy, and (3) offenses against judges and other officers [Page 629] of the Mixed Courts of Egypt, or directed against the execution of the Courts’ functions. The three excepted classes of cases are within the jurisdiction of the Mixed Courts.
(b)
All civil cases in which all parties are American nationals.
(c)
All suits against American nationals involving questions of their personal status, including marriage, divorce, decedents’ estates, guardianship, et cetera.
2.
Inviolability of domicile. Prohibition against search of houses of American nationals without first notifying the American Consul and giving him opportunity to be present during the search.
3.
Exemption of American nationals from all direct taxes without the consent of the Government of the United States.
4.
Right of the Government of the United States to request reconsideration of any Egyptian law which has been approved by the legislative Assembly of the Mixed Court of Appeals as applicable to capitulatory nationals.

The first two rights listed above, namely, the judicial capitulations and the inviolability of domicile were derived originally from the Treaty of Commerce and Navigation concluded on May 7, 1830,15 between the United States and the former Ottoman Empire, of which Egypt was then a part. The right of inviolability of domicile was reaffirmed in a protocol between the United States and Turkey signed on August 11, 1874.16 While the Treaty of 1830 is no longer in force between the United States and Turkey, that treaty and the protocol of 1874 are still in effect between the United States and Egypt, at least so far as concerns the capitulatory rights in question, and it would seem therefore that the termination of those rights on the part of the United States should be effected by a formal treaty, with the advice and consent of the Senate, or by an act of Congress approved by the President. The third and fourth rights listed above, however, are not based on treaty and their relinquishment by this Government would appear to be within the discretion of the President.

From information which the Department has obtained informally from the Egyptian and British Governments, it seems probable that an effort will be made at the Conference to conclude (1) a convention providing specifically for the termination of the capitulatory régime and the transfer to the Mixed Courts of Egypt of all jurisdiction now exercised by the consular courts, with such guarantees or safeguards for the protection of former capitulatory nationals as may be agreed upon; (2) an annex to the convention, but forming an integral part thereof, revising the regulations of the Mixed Courts to provide for their enlarged jurisdiction and their eventual transition to the status of native courts of Egypt, and (3) a separate protocol to provide that [Page 630] the revised regulations of the Mixed Courts shall become effective not later than October 15, 1937, without regard to whether the convention shall have entered into force at that time.

If the plan outlined above should be carried out, the Governments who sign the proposed protocol will have surrendered their principal capitulatory rights without waiting for the ratification of the convention. Since that course would be equivalent to a declaration by the signatories of the protocol that ratification of the convention is not essential to their acquiescence in the termination of their principal capitulatory rights in Egypt, it is apparent that the Government of the United States would not be warranted in signing the proposed protocol, since the capitulatory rights of the United States derived from treaties could be relinquished only by a formally ratified treaty or by an act of Congress.

The Department is of the opinion, however, that if the other principal capitulatory powers should sign the proposed protocol, this Government would be fully authorized legally to declare that, while the United States could not sign the protocol, it would be prepared to give practical effect to its provisions, pending formal ratification of the convention by the United States, by suspending the jurisdiction of the American consular and ministerial courts in Egypt and permitting their jurisdiction to be transferred to the Mixed Courts of Egypt.

This opinion is based on the fact that the President is now authorized by the Act of Congress approved March 23, 1874,17 to suspend the exercise of the judicial functions of American consular and diplomatic officers in Egypt

“whenever the President of the United States shall receive satisfactory information that the … Government … of Egypt has organized other tribunals on a basis likely to secure to citizens of the United States in their domains the same impartial justice which they now enjoy there under the judicial functions exercised by the minister, consuls, and other functionaries of the United States pursuant to the Act of Congress approved the 22nd of June, 1860,18 entitled ‘An Act to carry into effect provisions of the treaties between the United States … and other countries giving certain judicial powers to ministers and consuls or other functionaries of the United States in those countries and for other purposes[’].”

By virtue of the authority contained in the Act of 1874, President Grant issued a proclamation on March 27, 1876,19 the pertinent part of which reads as follows:

“And whereas satisfactory information has been received by me that the Government of Egypt has organized other tribunals on a basis likely to secure to citizens of the United States in the dominions [Page 631] subject to such Government the impartial justice which they now enjoy there under the judicial functions exercised by the minister, consuls or other functionaries of the United States pursuant to the said Act of Congress approved June 22, 1860:

“Now, therefore, I, Ulysses S. Grant, President of the United States of America, by virtue of the power and authority conferred upon me by the said Act approved March 23, 1874, do hereby suspend during the pleasure of the President the operation of the said Act approved June 22, 1860, as to the said dominions subject to the Government of Egypt in which such tribunals have been organized, so far as the jurisdiction of said tribunals may embrace matters now cognizable by the minister, consuls, or other functionaries of the United States in said dominions, except as to cases actually commenced before the date hereof.”

The tribunals referred to in the above quoted proclamation were the Mixed Courts of Egypt, which were established in 1875 by agreement between the Government of Egypt and the capitulatory powers, including the United States.20 Since the jurisdiction of the Mixed Courts at the time of their establishment included only a small part of the jurisdiction theretofore exercised by the consular courts, the jurisdiction of the latter was suspended by the proclamation quoted only “so far as the jurisdiction of said tribunals may embrace matters now cognizable by the minister, consuls, or other functionaries of the United States in said dominions, except as to cases actually commenced before the date hereof.” The proposed protocol, however, will provide for the transfer of all the remaining judicial jurisdiction of consular and diplomatic officers in Egypt to the Mixed Courts, in accordance with the revised regulations to be incorporated as an annex to the convention. Assuming that the protocol will become effective, the Mixed Courts of Egypt will then be vested with all of the jurisdiction now exercised by American consular courts. There would accordingly appear to be no doubt of your authority under the Act of March 23, 1874, to suspend the American consular jurisdiction now exercised in Egypt, such suspension to continue during your pleasure and to be converted into a definite relinquishment of the judicial capitulatory rights of this Government upon the formal ratification of the proposed convention.

The Department is of the opinion that every reasonable effort should be made to cooperate with the Egyptian Government and the other capitulatory powers for the realization of the Egyptian Government’s desire to be freed from the burden of the capitulatory régime, since such cooperation would be thoroughly in accord with our good neighbor policy. For that reason and in order to avoid the raising of any question as to the legal right of the Egyptian Government unilaterally to terminate the capitulatory régime,—a right which the Egyptian [Page 632] Government appears to have reserved by the terms of the Anglo-Egyptian Treaty of August 26, 1936,—it is respectfully recommended that I be authorized to instruct the American Delegation to the Conference, which plans to leave Washington on March 30, 1937, to give to the Egyptian Delegation assurances in the sense of the views expressed herein.21

Faithfully yours,

Cordell Hull
  1. William M. Malloy (ed.), Treaties, Conventions, etc., Between the United States of America and Other Powers, 1776–1909 (Washington, Government Printing Office, 1910), vol. ii, p. 1318.
  2. Foreign Relations, 1874, p. xxii .
  3. 18 Stat. (pt. 3) 23.
  4. 12 Stat. 72.
  5. 19 Stat. 662, or Foreign Relations, 1876, p. 1.
  6. See Foreign Relations, 1874, pp. 11261192, passim.
  7. Marginal note: “C. H. Approved, F. D. R.”