Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Moran to Mr. Seward
Sir: Referring to your dispatch No. 2156, of the 13th of April, to Mr. Adams on the matter of judicial reforms in Egypt, I now have the honor to forward two copies of a parliamentary paper on the subject, just issued by her Majesty’s government.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Papers respecting judicial reforms in Egypt.
(Presented to both houses of Parliament by command of her Majesty, 1868.)
Memorandum by Nubar Pacha on the alterations to be effected in the judicial relations of natives and foreigners.
[Translation.]
The legislation which governs Europeans in Egypt, and determines their relations with the government as well as with the inhabitants of the country, is no longer based on the capitulations. Those capitulations remain but in name; they are supplied by an arbitrary legislation of usages, dictated by the whim of the chief agent—a legislation based on the antecedents, more or less abusive, which the force of things—urgency on one side and the desire to facilitate the settlement of foreigners on the other—have brought into Egypt, and which actually leaves the government without power, and the people without regular justice in their trade with Europeans. This state of things profits nobody—neither the foreign powers, nor the honest inhabitants of the country, whether foreign or native; it is used to the damage of the country and the injury of the government by those who make it a business to take advantage of it for their own profit.
The necessity of reform is urgent; as the European colonies increase, the foreign agents comprehend this, and they demand it. The government and the consuls agree on the principle of this necessity, but they do not agree on the method of putting it in practice; one wishes to discard the capitulations; abuses are adduced as laws and principles not to be set aside; in a word, justice is demanded, but as the means to obtain it are rejected the result is, that a native can get no justice in Egypt, neither as plaintiff nor defendant in a suit, he submits to be robbed, and is lucky if the strange tenant does not take even his house.
The government is often assailed by suits, which even the consuls acknowledge to be outrageous. The inhabitants will not trust the European; the government, knowing how aggressive the European is, is compelled to keep him at a distance, for fear of becoming a victim to him. Examples are too numerous to be cited; it is enough to know that the government has paid indemnities to the amount of $72,000,000, in four years. But we must add that these indemnities, paid through direct or indirect consular [Page 315] influence, are represented as acts of unexampled generosity on the part of his highness by those very persons who forced them. But this is not all the harm! The government, wishing to attract the civilizing element of progress from Europe, whence it can only come, confides all its grand agricultural and commercial enterprises to Europeans, so as to draw capital by suitable remuneration, and then, rendered powerless, takes no care of the country. The Suez dock is the only one of the great works that has been finished by Europeans; all the other works given to them are either unfinished or are not yet begun, and in such condition they call for indemnity.
This manner of doing justice demoralizes the country, and all the efforts of his highness are frustrated by such a demoralization; the Arab, judging Europe by the specimen of its people among us, is opposed to western progress, and accuses the Viceroy and his government of weakness or error.
For more than 40 years the Europeans have enjoyed the right of property in Egypt; they own property and hold it under the jurisdiction and legislation of the country; the consuls accept this principle in theory, but reject it in practice: they say the capitulations protect the European, and if he owns a house or farm he is exempt from taxes.
This state of affairs, contrary to the letter and spirit of the capitulations, not only hinders the development of the resources of the country, and prevents its produce from contributing to the commerce and manufactures of Europe, but also tends to ruin the prosperity of the country both morally and materially.
As the only remedy for this, your highness proposes the organization of a system of justice which will give to Europe all the security it has a right to demand.
Your highness thinks the foreign element ought to enter into the organization of our courts of justice; this element, so small in Cairo, equals the natives in Alexandria; many Europeans are established in the country as merchants or mechanics, and they are in daily and hourly intercourse with the natives. This element, therefore, ought to be considered in the organization of our courts; ample securities ought to be accorded to it, so as to give it confidence in our people and in our government.
The complete separation of the courts from the government is the principle; justice ought to emanate from the government, but should not be influenced by it, nor should the consuls have any influence in it.
To attain what your highness desires, the powers must be assured that “justice emanates from the government, but does not depend upon it.” The only way to inspire such trust is to have a body of magistrates, or judicial department. A good judge must not only be just and honest, he must know the law, and to know it, he must study. Our present magistrates have a perfect knowledge of the law that was necessary for uniform justice to people who were similar in habits and wants.
New wants demand new laws; Europeans have brought new customs and new habits into the country. A mixed system has begun to be introduced into our laws and codes. New men are needed to apply this new system. Egypt must do for her courts what she has done for her army, her roads, her industry, and her health system. The proper element to effect this is the foreign element, a corrective to the native. What has been done for material order must be done for moral order, that is, justice must be organized.
The necessity of this mixed system is deeply felt; in fact, it has been loudly called for ever since the ambassadors demanded it in Constantinople, where a mixed commercial court is organized for the benefit of foreigners and natives, whether as plaintiffs or defendants.
Now this system should be extended to the civil and criminal courts. The commercial courts at Alexandria and Cairo are not proper tribunals, because they differ from those at Constantinople. They are more properly juries; yet in commercial cases the proceedings are convenient, and ought to be preserved with certain modifications. This jury, first instituted for suits between natives and foreigners, is now given up. Consuls claim the cognizance of suits in which their countrymen are defendants, and exceptions to jurisdiction or competency are often made when natives are defendants. This exception is founded on the incompetency of members composing the tribunal. I will not discuss the accusation made against this tribunal, because I believe it to be without foundation; but I will repeat your highness’s declaration, “Let us give ample security.”
I suggest the keeping of the two mixed courts of commerce at Cairo and Alexandria; but instead of composing them of three members appointed by the consuls from the Europeans, and three natives appointed by the government, to hold sessions in turn, I propose but four members—two named by consuls from among the most noted and worthy merchants, and two by the government, from among the natives who know the Europeans best, and are brought in daily contact with them. These members should sit alternately, as they do now; I would have an Egyptian preside, with a European, vice-president, recommended by the minister of justice. The latter office should be permanent.
Besides these two courts, it would be necessary to have a court of appeals to sit in Alexandria, to be composed of three Egyptian members, appointed by your highness from our young jurists who have studied in Europe, and three other judges from Europe, recommended by their governments. The chief of this court should be an Egyptian [Page 316] . To aid these Commercial courts there should be two civil tribunals, composed of two foreigners and two Egyptians, presided over by a native Egyptian.
The court of appeals in Alexandria should have jurisdiction over decisions of the civil courts.
Disputes of Europeans about land and other property have always been decided by our courts. They have always decided properly; their judges understand their business thoroughly; foreign judges are not needed there. I propose that they be left as they are.
The question of the permanency of the judges has attracted your attention. You rightly think that permanency in office might be inconvenient in new courts, as yet untried; and you propose five years as a term, so that the efficiency of the new system may be thoroughly tested, to the complete satisfaction of both parties.
Criminal trials are more complicated than civil or commercial cases. They might be submitted to the letter and spirit of the capitulations, as was done in Mehemet Ali’s time.
How were criminal cases conducted in the time of the great Viceroy? When a crime or offense was committed by a foreigner, the governor of the citadel of Cairo investigated the case, judged it, and sent the condemned, with the judgment, to his consul, to have sentence executed. As the number of Europeans was not large at that time, and crimes were few, consuls had not much trouble with their countrymen. I do not remember a troublesome case; or if there was mistaken lenity, there was no serious consequence. Those kind of affairs passed off quietly, as all were interested in the maintenance of order, and had the will and power to maintain it.
I must observe, however, that this kind of process did not entirely accord with the capitulations; they did not remove foreigners from the jurisdiction of the country, but subjected their trial to the supreme court, and allowed their interpreters to act for them in their defense; and the judgment was always executed.
Since Mehemet Ali’s time the number of Europeans has increased, and of course crime has increased in proportion; and as consuls began to disregard the judgments of the government, both consuls and interpreters were ordered to be present at the trial. But this mode of proceeding, at first satisfactory, soon began to fall into disrepute. In 1848, the consuls, urged by their countrymen, took justice into their own hands, contrary to law, only having the presence of a local policeman, under pretext that, as the penalty was to be executed in their own country, the trial ought to be conducted according to the laws of that country in order to be valid. Such is the present state of things, not only in criminal cases, but in trials for offenses and misdemeanors. Justice is thus completely given up to individual will, instead of being rendered by the proper institutions. The position of government is no longer tenable, when we reflect that its officials have not the power to prevent the slightest infractions, or enforce the road regulations or coach rules in public places; for, if one consul is disposed to correct a coachman for a violation of regulations, at the request of the police, another will treat the affair as trifling, simply because his colleague thinks it right and important.
The present object of your highness’s government, therefore, is not to do away with the capitulations, but to conform to their letter and spirit, and call for the removal of the abuse of personal power by the representatives of foreign governments. Now what is the intent of the capitulations? It is to protect the foreigner, not to give him unlimited license. This protection is furnished by the courts, with the dragoman’s assistance, and the right of appeal to the supreme court.
The objections to the civil courts have been applied to these; that is, the absence of law, and the want of responsible judges. Desiring to regulate intercourse with foreign powers, and laying aside the inalienable right of every government to make every inhabitant of the territory amenable to the laws, your highness has done well to propose the organization of mixed criminal courts, similar to the civil tribunals of that kind.
The capitulations make the domicile and person of the foreigner inviolable. It is not the intention to abrogate this principle. Your highness wishes to strengthen it; you wish to give the European, accused of crime, greater protection than the capitulations afford him; in place of a silent dragoman, you would give him European judges and a jury of natives and Europeans. If more security is demanded, your highness will grant it; for your intention is to protect the honest citizen, whose safety is endangered by the impunity of criminals. Minor infractions, such as the French law terms offenses or misdemeanors, will be submitted to these mixed tribunals. An appeal is allowable in all cases to the supreme court at Alexandria, with every possible guarantee. Only the penalty of imprisonment shall apply in Egypt; and the imprisonment shall be at the consulate if the consul demands it.
After the courts are organized, attention will be paid to the laws to be observed in them. The French code of commerce, already adopted at Constantinople by the powers, is the legislation that now rules in Egypt. For the civil law, your highness intends to invite a commission of foreign jurists to join our lawyers in arranging the provisions of the code Napoleon, so as to accord with our legislation. That labor is already half [Page 317] accomplished; the conclusion of it will neither be long nor arduous. The commission will also he instructed to make our penal laws harmonize with those of the French penal code.
In conclusion, all that your highness asks is a return to the capitulations, both in civil and criminal matters; and such a return as will give strangers a greater security than was formerly accorded by those capitulations.
The court, as now arranged, is a court of natives, that decides in presence of the dragoman, who is merely a mute witness, without a deliberative vote. Your highness wants a reform, giving foreigners a true court in place of the mute witness, with a revised code, and a mixed jury, in accordance with European penal and civil laws.
This organization, fashioned upon the judiciary system of Algeria, offers all desirable guarantees, in my opinion.
Your highness thinks the powers cannot refuse this reform; for they have always advocated every moral and material development in Egypt. In the present condition of the country, if they refused to support this most valuable social guarantee, they would be offering obstacles to progress and endangering the existence of Egypt.