Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 2, 1878

No. 522.
Mr. Farman to Mr. Evarts.

Agency and Consulate-General of the United States in Egypt,
Cairo, April 5, 1878. (Received May 1.)

No. 222.]

Sir: I have the honor to inclose herewith a copy of a dispatch of Cherif Pasha, dated March 19, 1878, and its translation. It relates to the text of article 9 of Title II of the “Réglement d’Organisation Judiciaire” of Egypt. This article gives to the new tribunal jurisdiction in eases of crimes and misdemeanors committed by the judges, jurors, and officers of justice in the exercise or abuse of their official duties, and mentions certain special crimes and offenses which may be imputed to them, but the members of the parquet are not mentioned in the article, and are not included in the different classes of persons designated as officers of justice.

His excellency Cherif Pasha says, in substance, that it is evident from the “procès-verbaux” and the report of the commissioners who met at Constantinople in 1873 to examine the propositions made by the Egyptian Government in relation to judicial reform in criminal cases, that the delegates of the powers, in accord with the Egyptian minister, intended to include under the title of magistrates the members of the public ministry as well as the judges, and to give to the new tribunals jurisdiction in cases of crimes and offenses imputed to magistrates in general in the exercise of their functions.

As a proof of this he cites the fact that the members of the parquet, who constitute the ministry of justice, are especially mentioned in § 3 of the draught of law unanimously accepted by the commission and the Egyptian Government, of which said article 9 is almost a literal reproduction. He attributes the omission to mention the members of the parquet to an inadvertence on the part of the compiler, or to a typographical error. He says that the court of appeals, after a careful examination of the subject, asks that the omission be provided for, and proposes, as the simplest and most rational means, the substitution of the integral text of § 3 of the said draught of law for said article 9 of Title II; and thinking that this means would be the most appropriate, his excellency brings it to my attention, as he says, in the conviction that the Government of the United States will be pleased to receive it as such, and consider, in accord with the Government of the Khedive, that this substitution will attain the result wished for by re-establishing in its right terms the understanding formulated at Constantinople.

The Government of the United States has never proposed any person for member of the parquet, and I do not see that this question has for it any special importance, except so far as it relates to the general question of the desirability of having all the members of the court subject to its jurisdiction in matters of misconduct in their official duties, and except as it may bear upon the question of the construction to be given to article 7 of Title II, hereinafter mentioned.

The jurisdiction of the new tribunals in criminal matters is well defined in the “Règlement d’Organisation Judiciaire” (articles 6, 7, 8, and 9 of § 2, Title II), and is restricted to three classes of cases:

1st. Crimes and misdemeanors committed against the magistrates, jurors, and officers of justice in the exercise of their functions, or “à l’occasion de” (on account of or in consequence of) the exercise of these functions.

2d. Crimes and misdemeanors committed against the execution of the judgments, processes, and orders of the court.

3d. Crimes and misdemeanors committed by the judges, jurors, and officers of justice in the exercise or abuse of their functions.

All other criminal matters remain as formerly within the jurisdiction of the consular courts.

Each of the foreign powers continues its criminal courts the same as previous to the organization of the new tribunals.

Extraterritorial rights are admitted and enjoyed in Egypt to their fullest extent. Foreigners are sometimes arrested, by the local authorities, but they are immediately delivered to the consuls of their respective countries.

The number of criminal cases brought before the consular courts is very large. I was informed a few days since by an official of the Italian consulate that within eight months they had examined fifty-two criminal cases and sent forty-two accused persons to Italy for judgment. These were cases in which the punishment might be imprisonment at hard labor for a term of years; cases of misdemeanor, in which the punishment might be a fine, or a fine and a short term of imprisonment, being tried and disposed of in Egypt. On the other hand, the new tribunals of first instance at Cairo last week tried and convicted the governor of Cairo and the prefect of police on a charge of having neglected to furnish, as required by the sheriff of the new tribunal, a force to aid in the execution of a civil process, and sentenced each of them to pay a fine of 4,000 piasters tarif ($200).

A conflict of jurisdiction has lately arisen between the new tribunals at Alexandria and the Italian consular court, in the case of an assault and battery committed upon a member of the parquet, as to what classes of persons are intended to be designated by the word “magistrates” in article 7 of Title II of the “Règlement d’Organisation Judiciare.”

The offense was committed in consequence of certain official acts of the member of the parquet, and said article 9 above mentioned has been relied upon to show that the word “magistrates” was not intended to include members of the parquet, though by the ordinary signification of the word they would be included.

This case has undoubtedly given rise to the examination of the subject, and resulted in the conclusions of the court of appeals mentioned in the dispatch of Cherif Pasha.

The modification of this article in the manner proposed, whatever may have been the intention of the commission at Constantinople, would undoubtedly extend the jurisdiction of the new tribunals; and in any event no change whatever can be made without the consent of the powers interested, according to article 40, § 2 of title III of the “Règlement d’Organisation Judiciaire.”

From the instruction that I have heretofore received from the Department, I conclude that it will make no objection to the proposed changes, though it involves the question as to whether, under the act of Congress of March 23, 1874, any one on the part of the Government of the United States can now do anything further without an enabling act of Congress to abridge the jurisdiction of the consular court of Egypt or to extend that of the new tribunals. I say it will involve this question; for, as the “Règlement d’Organisation Judiciaire” now reads, if an American citizen should be accused of violence committed against a member of the parquet under any of the circumstances mentioned in said article 7, he could not be tried by the new tribunals. He could only be tried, if at all, by the consular court. If, however, the proposed change of article 9 should have the effect anticipated in giving construction to article 7, then, after such change, such a case as that supposed would be within the jurisdiction of the new tribunals.

Referring you to my dispatch No. 144 of June 9, 1877, and your reply No. 74 of July 13,

I have, & c.,

E. E. FARMAN.

[Inclosure in No. 222.—Translation.]

Dispatch of Cherif Pasha.

Ministry of Foreign Affairs,
Cairo, March 19, 1878.

No. 51.]

Sir: By reading the minutes and report of the commission, instituted in 1873, near the Sublime Porte, for the examination of the propositions made by the Egyptian Government, in relation to the judiciary reform in penal matters, it becomes evident that the delegates of the powers, in accord with the Egyptian minister, agree to include, under the title of magistrates, the members of the public ministry, as well as the judges themselves, and to reserve for the new tribunals the judgment of crimes and offenses imputed to magistrates in general in the exercise of their functions.

The spirit as well as the letter of these minutes and report seems to leave no doubt in this respect. § 3 of the draught of law, unanimously accepted by the commission and by the Egyptian Government, expressly mentions, while distinguishing them in a sufficiently precise manner, the special crimes and offenses of which the following classes of functionaries may be accused, to wit: 1, the judges only; 2, the judges and the parquet; 3, the officers of justice; 4, the judges, the parquet, and the officers of justice.

This enumeration, so clear and categorical, is the best proof of the understanding established between the commission and the Egyptian Government.

Article 9 of title II of the “Règlement d’Organisation Judiciaire” is an almost literal reproduction of the whole of said $ 3 of the draft above mentioned which was sanctioned by both the commission and the Egyptian Government.

Nevertheless, that article makes mention of the judges, juries, and officers of justice only, without mentioning the members of the parquet.

Is it to be concluded, from this failure to mention them, that the members of the parquet are not subject to the new tribunals for the crimes and offenses specified in article 9?

Such an interpretation seems impossible from every point of view. Firstly, it would be contrary to the intention of the parties signing the international treaty of reform, who thought they ought to provide tor the cases, however rare they might be, of crimes and offenses imputed to the members of the parquet, and subject them to the judgment of the new tribunals as well as the judges and officers of justice. In the second place, such an interpretation would form a most inexplicable anomaly; for the juries, the assessors, the clerks and assistant clerks, the interpreters, and the sheriff’s come, like judges themselves, within the jurisdiction of the new tribunals, and nothing would be more abnormal than an exception created exclusively in respect to the parquet which fulfills so important a mission, and is intrusted in penal matters with proposing the most important measures of the process of investigation, and in civil matters with settling questions of order and public interest. Finally, in the third place, such an interpretation would greatly affect the dignity of the magistracy, and might lead to conflicts of the gravest kinds; because, supposing for example a case where a judge, properly speaking, that is to say a magistrate intrusted with pronouncing a decision, and a member of the public ministry, that is to say a magistrate intrusted with the prosecution, were accused of punishable acts, committed in common in the exercise of their functions, could it be admitted that the former was under the jurisdiction of the tribunals of reform, and the latter under the tribunal of his consulate, and that the consular judge might condemn, whilst the tribunal of reform might acquit, or vice versa ?

Would there not be in such a case a very lamentable conflict of such a nature as to compromise a high interest, namely, the dignity, honor, and prestige of the magistrate, who would not even have the right of appealing to a higher authority competent to dispose of the question?

In view of these considerations it seems impossible, I repeat, to interpret the silence of articled in the sense that the members of the parquet are the only ones kept free from the jurisdiction of the new tribunals.

Be this silence the result of inadvertency on the part of the compiler or be it, typographical error, it is in any case an omission, a lacuna, which might give rise to most unpleasant difficulties, to remedy which is all the more important, seeing that it is, as has been shown above, entirely contrary to the understanding come to at Constantinople.

The court of appeals itself conscious of the importance of the ease, and after a careful examination of the minutes, report, and draft above alluded to, asks of the ministry of justice that this omission be provided for as soon as possible; and the court proposes as the most simple and rational means, to substitute for the incomplete text of article 9, of title II, of the “Règlement d’Organization Judiciaire,” the integral text of $ 3 of the said draught.

Thinking, with the court, that this means would indeed be the most appropriate to the state of the case, I have the honor to bring it before your attention, Mr. Agent and Consul-General, in the conviction that the Government of the United States will be pleased to receive it as snch, and consider, in accord with the government of the Khedive, that the substitution mentioned above will entirely attain the aim wished for, by re-establishing in its right terms the understanding formulated at Constantinople in $ 3 of the aforesaid draught.

Please to accept, & c.

CHERIF.