Edw’d Thornton to Hamilton Fish, May 1, 1873
No. 187. Sir Edward Thornton to Mr. Fish.
Sir: In compliance with an instruction which I have received from Lord Granville, I have the honor to transmit herewith, for the information of the Government of the United States, two copies of a dispatch which his lordship has addressed to Her Majesty’s ambassador at Constantinople, on the report of the international commission which was lately convened at Constantinople, on the subject of judicial reform in Egypt, and which shows the conclusion at which Her Majesty’s government has arrived.
I have, &c.,
Remarks in relation to the plan for the reform of consular jurisdiction in Egypt.—(Communicated to Earl Granville by Count d’Harcourt, March 28, 1873.)
The representatives of the various governments at Constantinople have received information concerning the labors of Nubar Pasha in regard to the final regulations of judicial organization which are intended to fix the terms of the understanding established, after long negotiations, between the Khedive and the powers, for the reform of consular jurisdiction in Egypt. The new plan of the Egyptian minister corresponds pretty faithfully to what was agreed upon, either at the time of the examinations jointly made in 1869 and 1870 by all the parties interested, or during the course of the late conferences held at Constantinople. Nevertheless, certain passages in the draught of Nubar Pasha ought to be amended, in order that they may reproduce the exact embodiment of the thought expressed by the various cabinets.
Among the modifications which it would be proper to ask for, there is one which is desirable in view of the importance of the interests at stake. It must be well understood that the new Egyptian courts shall take no part even in the incidental discussion of the various questions which relate to the personal status of foreign residents, and in order to prevent any misunderstanding on this head it would be indispensable again to introduce, in article 9 of the new draught, the express mention which was made in the draught prepared in 1870 at Paris, with the concurrence of Nubar Pasha, and then approved by the majority of the powers. It cannot, in fact, he admitted that, under any pretext, the new jurisdiction to which the powers consent to transfer a part of the prerogatives of consular justice, can at any time decide concerning the nationality, the filiation, the rights as heirs or as married persons, or the civil or commercial political capacity of foreign subjects who may visit Egypt on business. Jurists in the various countries declare, almost unanimously, that questions of this nature should he settled according to the national law of the party interested. Some even deny that a foreign judge can, of right, take cognizance of them. But whatever may be the case as regards the general doctrine, it is certain that, under present circumstances, the governments have no intention of abandoning this class of cases to the Egyptian courts, and the limit of their concessions must be placed beyond all controversy.
The precautions stipulated for by the Egyptian government, with a view to securing, on the part of Europeans, respect for the new magistracy and the executions of its decisions, cannot fail to awaken the concern of the cabinets as regards the reciprocity of guarantees which their citizens are entitled to claim in their turn. This side of the question seems not to have been treated in the work of Nubar Pasha, and yet natives will find in the peculiar conditions of life in the East, were it, for instance, only in the inviolability of harems, so many opportunities of placing their persons and property beyond the reach of judgments rendered against them, that it would by all means be prudent to make provision for the difficulties which the course of justice may meet with, in this way, to the detriment of foreign residents.
At all events, and admitting that the powers are to adhere for the present, excepting a few inconsiderable modifications, to the terms of the last Egyptian draught, the time seems to have arrived for the precise definition of the form in which is to be stated the collective understanding of the powers, and their adhesion to the organic regulations proposed by the Viceroy. In order that the work of reform, to which the powers have lent their co-operation, may assume a serious character, in order that the bearing of the concessions made may be clearly established, and in order that the guarantees which have been furnished in exchange therefor may be placed beyond all controversy, it seems essential that the different points of agreement which have been reached should be determined in such a form as to obligate the Viceroy toward the governments and to maintain among the latter the solidarity which is indicated by the community of their interests. Among the combinations which might be adopted the most simple seems to be to enter, in a collective record, either at Constantinople or at Cairo, the regulations which may be presented by the Egyptian minister, and to secure in the same instrument, which might, if necessary, remain open, the successive or simultaneous adhesion of the different powers.