Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 451.
Mr. Boker to Mr. Fish.

[Extract.]

Legation of the United States,
Constantinople, October 1, 1872. (Received October 24.)

No. 55.]

Sir: At the request of the Egyptian government I have the honor to present to the consideration of the Department of State a scheme of law intended to be introduced into Egypt if the consent of the great powers to the project can be obtained. I also inclose an explanatory circular letter from the Egyptian government.

It seems to be unjust that there should be any hesitation to permit the Egyptians to take that first step towards self-government which will be the result of an independent judiciary—an institution which forms the basis of human freedom in all civilized countries, and which assures to the citizens liberty and equality in precise proportion to the perfection of their legal systems.

Though all the foreign ministers at Constantinople are in favor of permitting the Egyptians to try their judicial experiment under the inspection of the great powers, and with the reservation that it shall not be persevered in if, at the end of five years, it be found to fail on our own verdict, nevertheless the French government is at present the chief obstacle in the way of the attempt. * * * My opinion, however, is that, sooner or later, all the great powers will agree to permit the Egyptian government to put its legal project into practice, to the great future benefit of a thriving and friendly country, which has so long been restrained in its just political aspirations by the irresistible external pressure of foreign nations. Egypt is in a way to be coddled to death, or to lose everything like national character by the over-solicitous nursing of her two affectionate friends. The Suez Canal has become another bond of closer union and of increased care, and the great powers vie with one another, and amicably wrangle over their protegé, in order to induce her to adopt every policy that may be imposed rather than one which she may evolve from her own consciousness of her political and her domestic needs.

It should be a source of sincere satisfaction to us if the Government of the United States may be the first to recognize the justice of the Egyptian project, and to sanction so far as we may the trial of the system on the terms laid down in the inclosed protocol. Our example would have great influence in bringing about a successful issue to the negotiations with the other great powers. As the matter now stands it is promised that Italy will shortly agree to the proposition; England is favorable, but awaits the action of the other powers; Russia will give in her adhesion as soon as she is satisfied as to what the others will do; Germany and Austria will follow the lead of Russia; France will probably hang back until the last; and as to the opinions or the actions of the smaller powers, they are of no importance, as the system will go into operation as soon as the consent of the great powers can be settled.

At the meeting of the diplomatic representatives of all the powers, at which the Egyptian minister of foreign affairs produced the protocol, human ingenuity was exhausted in objections, observations, and proposed amendments to the document. All of these, Nubar Pacha explained, embodied and accepted as the protocol will show. When nothing further could be imagined and Nubar Pacha had agreed to everything, he was told that the meeting must receive the protocol, as thus altered to suit itself, with reserve, and that he must await the instructions of the various governments represented. The Egyptian government has been at work upon this purpose for five years, seeking advice and negotiating with every court in Europe. Having perfected the plan according to European ideas, it seems hard that it should fall to the ground because of the indifference, the inaction, or the jealousy of the powers whose advice has been had at every step of the proceeding, but whose accredited representatives seem never ready to speak in the name of their several governments. I therefore recommend that the Government of the United States should be the first to do simple justice toward our ancient ally.

I have, &c.,

GEORGE H. BOKER.

[Inclosure 1.—Translation.]

The commission assembled in Cairo, in 1869, has been of the opinion that the reform of civil justice and the reform of penal justice should be introduced at the same time, and that penal jurisdiction should go into effect after one year of experience by the tribunals in civil and commercial matters.

The government, without concealing from itself the great conflicts which would inevitably arise between two kinds of jurisdictions of different characters, agrees in opinion with the British commissioners, from whom the proposition emanated, that a fixed and short interval should be settled upon, at the expiration of which the new tribunals should enter on their duties in civil matters.

However, it insists that the criminal jurisdiction be immediately exercised for the repression of all crimes and offenses which necessarily belong to the functions of the new tribunals, because the impunity or the punishment of such crimes by a foreign authority would evidently endanger the fair administration of justice by these tribunals.

So it is not admissible that other tribunals be called on to pursue and repress the offenses committed on the occasion of the execution of judgments, or against the officers of such tribunals acting in the exercise of their functions.

How could the tribunals assure the execution of their judgments if they were disarmed toward those who might oppose violence to these executions, or embezzle the property attached in virtue of these judgments?

How shall justice be respected, how shall its action be usefully secured, if, on the occasion of these offenses, another authority be called on to judge of the validity of the acts of execution and the scope of the judgments themselves?

It can be said with as much, with perhaps more reason, of offenses committed in court toward the magistrates, or beyond the court toward officers performing their duties.

What respect would the judges inspire if it were necessary that another jurisdiction should examine and determine the gravity of the offense which they received; and without wishing to criticise the consular justice, it is certain that there cannot be imagined a more painful situation than that of a tribunal insulted in its very court, that finds itself powerless to repress the outrage.

It is evident also that there must immediately be conceded to the new jurisdiction the cognizance of the crimes and offenses imputed to the magistrates themselves, and to the officers of justice, where it is charged that these crimes and offenses have been committed by them in their characters of magistrates or officers of justice.

What idea would parties to a suit have of the dignity of the tribunal, and what idea would the tribunal have of itself, if the acts of each of its members could be denounced on the complaint of any one to a repressive and foreign jurisdiction with power, even on appeal, to transfer the trial to a foreign country?

In short, it is of absolute necessity for the perfect operation of the new tribunals, and for the security of the rights which are committed to them, that a foreign authority shall never be called upon to interpose in their acts, and that they shall find within themselves the means to secure their liberty, their dignity, and the execution of their decisions.

The government thinks then that it should insist, even while postponing for a year the jurisdiction of the tribunals in criminal offenses, that it shall be agreed that the new tribunals shall be competent to decide not only, as is intended, in mere civil cases, but also on crimes and offenses committed on the occasion of the execution of judgments and orders of court, or against the officers of the tribunals enforcing these executions.

They should also have jurisdiction over all crimes and offenses which may be committed at the trial of a case, or against the magistrates and the officers or the agents of the tribunal exercising their functions on the occasion, as well as over those crimes and offenses which may be imputed to the magistrates and officers in their official capacity.

[Inclosure 2.—Translation.]

Project of judiciary organization for the mixed processes in Egypt.—Observations made by their excellencies the embassadors and chief of legations, at the meeting of the 7th August, 1872, and accepted by Nubar Pacha. Text of the project elaborated by the international commission, amended and approved by the Sublime Porte.

• I. There shall be instituted three tribunals of first instance, at Alexandria, at Cairo, at Zagozig or at Ismalia.
• II. These tribunals shall hear all disputes in civil and commercial matters between natives and foreigners, and between foreigners of different nationalities.
• III. The government, the administration, the dairas of His Highness the Khedive, and of the members of his family, shall be judicable by these tribunals, in processes with foreign subjects.
• IV. These tribunals, without being able to decide on the property of the public domain, nor interpret or hinder the execution of an administrative measure, may judge in the cases provided by the civil code, touching the rights of foreigners which may be infringed upon by any administrative act.
• V. There shall not be submitted to these tribunals the demands of foreigners against religious establishments, regarding claims on the real estate possessed by these establishments.
• VI. The sole fact that real estate has been given as security for debt to a foreigner shall empower these tribunals to decide on all consequences of the hypothecation, extending so far and including the forced sale of the property and the distribution of the proceeds.
• Observations.—The magistrate who de facto will direct the pleadings shall be designated by the absolute majority of the European and native members of the tribunal.
• VII. Text.—Each of these tribunals shall be composed of five judges, three Europeans and two natives; one of the European judges shall preside, with the title of vice-president. In commercial affairs, the tribunals shall add two mercantile assessors, one native and one foreign, to be chosen by election.
• VIII. There shall be at Alexandria a court of appeals, and a court of revision, the latter having power to revise the decisions of the former, touching a reversal of a judgment made by a court of first instance. Pending this revision, judgment shall be suspended.
• IX. Each of these courts shall be composed of seven judges, four Europeans and three natives; and one of the European judges shall preside with the title of vice-president.
• Observations.—The court of appeals shall be composed of eleven magistrates, four natives and seven foreigners; but decisions of the court of appeals may be made by eight magistrates, including the president, five foreigners and three natives.
• Additional articles.—The right of peremptory challenge of the magistrates, of the interpreters, and the written translations shall be reserved for all the parties.
• The tribunals shall delegate one of the magistrates who, acting as a judge of peace, shall endeavor to conciliate parties, and to decide on affairs of such importance as maybe fixed by the court of procedure.
• Text.—X. The trials shall be public and the pleadings free. Persons having the diplomas of lawyers will be admitted to represent and defend the parties before the courts and tribunals.
• XI. The nomination and the choice of the judges will belong to the Egyptian government, but in order to insure itself of the guarantees which may be presented by the persons whom it may select, it will address itself to the ministers of justice in Europe, and will engage only those who have received the consent and authority of their respective governments.
• XII. The promotion of the magistrates, and their transfer from one tribunal to another, shall take place on the proposal of the body of magistrates.
• XIII. The magistrates who shall compose these courts and tribunals shall not be removable.
• Observations.—This non-removability shall last but during five years. The magistrates shall not be definitively admitted until the term of probation be passed.
• XIV. Text.—The code of procedure will declare whether offending magistrates shall be submitted to a jury or to the tribunals for the investigation of facts implicating their delicacy and probity.
• XV. The magistrates shall receive no honorary distinctions from the Egyptian government.
• XVI. There shall be in every tribunal a clerk and several sworn assistant clerks, who may act in the clerk’s absence.
• XVII. There shall be also in each court and each tribunal sworn interpreters in sufficient number, and the necessary body of officers, who shall have charge of the conduct of the trials, of the signification of the writings, and of the execution of the judgments.
• XVIII. The clerks, officers, and interpreters shall be at first nominated by the government, but their commissions may be revoked by the tribunals to which they are attached.
• XIX. The functions of magistrates, clerks of courts, assistant clerks, interpreters, and officers shall be incompatible with any other salaried office and with the business of merchants.
• XX. A parquet (bar) shall be instituted, at the head of which shall be an attorney-general. The attorney-general shall have under his direction, at the courts and tribunals, substitutes in sufficient number for the conduct of trials, and the judiciary police. The procureur-general shall sit at all the criminal courts, and at all general assemblies of the courts and tribunals. The procureur-general and his substitutes shall be removable, and they shall be nominated by the Khedive.
• XXI. The execution of judgment shall take place without any consular or other administrative action, and on the order of the tribunals. They shall be executed by the officers of the tribunals, with the assistance of the local authority, if this assistance shall become necessary, but always without any administrative interference. But the officers of justice who are charged with the execution by the tribunals shall be obliged to inform the consulates of the day and hour of the execution, and that under pain of the annulling of the execution and damages against the officers. The consul so informed may be present at the execution, but in case of his absence the execution shall proceed.
• XXII. The aforesaid courts and tribunals shall have also correctional and criminal jurisdiction over offenses committed by foreigners, over crimes and offenses committed by foreigners against the state, against natives, and against foreigners of different nationalities.
• XXIII. This jurisdiction shall be exercised in conformity with the provisions of the code of criminal examinations and the penal code which will be published.

Additional articles.

Tribunals in civil matters shall not begin their cognizance of mixed cases until one month after their establishment.

The cases already commenced before the foreign consulates at the establishment of the tribunals shall be continued before the consulates until their final settlement.

In penal matters, the new tribunals shall take cognizance of simple police offenses, as well as of crimes and offenses committed against magistrates and officers of justice in the performance of their duties, and of those which may be imputed to them in their quality of magistrates or officers of justice.

Eighteen months after their establishment, and for the remainder of the current time of the provisory period, the tribunals shall have penal jurisdiction over all crimes and offenses committed by foreigners against natives, by natives against foreigners, or by one foreigner against another foreigner of different nationality, as well as over all crimes or offenses committed against the public security and good morals.

The hearings in penal matters shall take place without any sort of administrative, consular, or governmental interference.

If the hearing should end in a prosecution, the papers of the hearing shall be communicated to the consul of the accused, on his demand.

In mixed cases, when the case shall be a civil suit, the jury shall be composed of equal numbers of Europeans and natives, and selected by ballot from a list which shall be prepared beforehand.

The penalties shall be inflicted in Alexandria or Cairo. Until it shall be proved that sufficient places of detention have been established in Egypt, the accused shall be confined in the consular jails.

In case of condemnation to capital punishment, the embassies shall have the privilege of claiming their citizens, so as to transfer him to his country for the infliction of the penalty. To accomplish which, a sufficient delay shall intervene between the day of the judgment and the execution of the sentence, in order to give the embassies and the legations time to make their claims.

During the period of eighteen months, fixed heretofore, the government shall make public any observations which it may desire to make on the code of criminal jurisdiction.

During the period of five years, no change shall take place in the established system. After this period, if experience have not confirmed the practical usefulness of the reform of the judiciary, it shall be allowable to the foreign powers either to go back again to the former order of things, or to come to an understanding with the Egyptian government for other arrangements.