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The Secretary of State to Messrs. Alexander and Green of New York
Sirs: The receipt is acknowledged of your letter of August 10, 1935.1 in which you ask to be advised “of the official status of the American Consular Court at Cairo with particular reference to its jurisdiction over persons non compos mentis, and its powers relative to the appointment of guardians for such persons”.
The American Consular Court at Cairo is one of the consular courts maintained by the United States in Egypt. The jurisdiction of these courts is derived from (1) a treaty concluded between the United States and the former Ottoman Empire—of which Egypt was formerly a part; (2) custom and usage under the capitulatory régime in Egypt and in the former Ottoman Empire; (3) the laws of the United States enacted to give effect to the treaties of the United States by virtue of which the United States was granted extraterritorial jurisdiction. The substance of these laws is embodied in Sections 4083–4130 of the Revised Statutes of the United States; Title 22, Sections 141–183, U. S. Code.
The treaty basis of American jurisdiction in Egypt is contained in Article IV of the Treaty of Commerce and Navigation concluded between the United States and the former Ottoman Empire on May 7, 1830.2 This article reads as follows:
“Article IV
“If litigations and disputes should arise between subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgment be pronounced unless the American Dragoman be present. Causes in which the sum may exceed five hundred piastres, shall be submitted to the Sublime Porte, to be decided according to the laws of equity and justice. Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offence, shall not be molested; [Page 566] and even when they may have committed some offence they shall not be arrested and put in prison, by the local authorities, but they shall be tried by their Minister or Consul, and punished according to their offence, following, in this respect, the usage observed towards other Franks.”
The capitulatory rights and privileges formerly granted to foreigners in the Ottoman Empire were greatly enlarged by custom and usage in Egypt and capitulatory nationals finally enjoyed complete exemption from local laws and were subject solely to the jurisdiction of their own courts. However, much of the jurisdiction originally exercised by American consular courts in Egypt has been transferred to the Mixed Courts of Egypt which were established in 1875,3 and the jurisdiction of American consular courts is now limited to criminal actions in which American citizens are defendants; to civil suits involving American citizens exclusively and to matters of personal status of American citizens including marriage, divorce, decedents’ estates, guardianship, et cetera.
The transfer to the Mixed Courts of some of the jurisdiction of American consular courts in Egypt was effected by the President’s proclamation of March 27, 1876, (19 Stat. L 662) which was authorized by the Act of Congress approved March 23, 1874 (18 Stat. L 23). That proclamation, however, suspended the judicial functions of American consular officers in Egypt only to the extent that the jurisdiction of the Mixed Courts “… may embrace matters now cognizable by the Ministers, Consuls or other functionaries of the United States in the said dominions …”
That the Mixed Courts never were invested with jurisdiction in personal status cases is evidenced by Article 9 of the Règlement D’Organisation Judiciaire of the Mixed Tribunals of Egypt which expressly withheld personal status matters from the competence of the Mixed Tribunals, and by Article 4 of the Civil Code of the Mixed Courts which reads in translation as follows: “questions relating to the legal status and capacity of persons, and to the law of marriage, to the rights of natural and testamentary succession, and to guardianship shall remain within the jurisdiction of the appropriate court of personal status”, (Code Civil Mixte, Codes Egyptiens[)].
The consular courts have long been recognized as the appropriate courts of personal status of their respective nationals in Egypt, and in conformity with the provisions of Article 4 of the Civil Code of the Mixed Courts, above quoted, consular courts continued to exercise this jurisdiction after the establishment of the Mixed Courts. Accordingly, the President’s proclamation of March 27, 1876, did not [Page 567] affect American consular jurisdiction over matters involving the personal status of citizens of the United States in Egypt and that jurisdiction is still exercised by American consular courts in Egypt.
Very truly yours,
Legal Adviser
- Not printed.↩
- 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.↩
- Règlement d’Organisation Judiciaire pour les Procès Mixtes en Égypte (23 January, 1875), British and Foreign State Papers, vol. lxvi, p. 593.↩