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

No. 460.
Mr. Boker to Mr. Fish.

Legation of the United States,
Constantinople, April 21, 1873. (Received May 12.)

No. 98.]

Sir: I have the honor herewith to transmit a copy of the regulations for the organization of the new courts of law proposed to be established in Egypt, as settled by the commission lately in session at Constantinople, together with a translation of the same.

I have, &c.,

GEORGE H. BOKER.

Title I.

Jurisdiction in civil and commercial matters.

Chapter I.

Tribunal of first instance and court of appeal.

Section I.—Institution and composition.

Article I. There will he instituted three tribunals of first instance, at Alexandria, at Cairo, and at Zagazig.

Article II. Each of these tribunals shall be composed of seven judges, four foreigners and three natives. Judgments shall be given by five judges, three foreigners and two natives. One of the foreign judges shall preside, with the title of vice-president, and shall be designated by the absolute majority of the foreign and native members of the tribunals. In commercial affairs the tribunal shall add two mercantile assessors, one native and one foreigner, having a deliberative vote, to be chosen by election.

Article III. There shall be at Alexandria a court of appeal, composed of eleven judges, four natives and seven foreigners. One of the foreign judges shall preside, with the title of vice-president, and shall be chosen in the same way as the vice-president of the tribunals. The decisions of the court of appeal may be made by eight merchants, five foreigners and three natives.

Article IV. The number of the judges of the court of appeal and of the tribunals shall be increased, if in the opinion of the court the necessity of the service requires it, without altering the fixed proportion between the native and the foreign judges. Meanwhile, in case of absence or impediment on the part of several judges at once from the court of appeal, or of the same tribunal, the president of the court may supply the deficiency; if they are foreigners, by their colleagues from the other tribunals, or by the foreign judges of the court of appeal. When one of the judges of the court shall be so designated to intervene in the audiences of one of the tribunals, he shall have the presidency.

Article V. The nomination and the choice of the judges will belong to the Egyptian government, but, in order to be sure of the guarantees which may be presented by the persons whom it may select, it will apply officiously to the ministers of justice abroad, and will engage only those who are furnished by the consent and the authorization of their respective governments.

Article VI. There shall be in the court of appeal and in every tribunal, a greffier and several sworn assistant greffiers, who may act in the gretrier’s absence.

Article VII. There shall be also in each court and tribunal sworn interpreters in sufficient numbers, and the necessary body of officers, who will be charged with the conduct of the trials, of the signification of the writings, and of the execution of the udg ments.

Article VIII. The greffiers, officers, and interpreters will be at first nominated by the government, and as to the greffiers they shall be chosen for the first time abroad, among the ministerial officers who perform or have performed, or among the persons able to perform the same functions abroad.

Section II.—Competence.

Article IX. These tribunals will judge alone all contentions in civil and commercial matters between natives and foreigners of different nationality, as well as all questions of real estates between any person, even if they belong to the same nationality.

Article X. The government, the administrations, the dairas of His Highness the Khedive, and the members of his family, will be triable before these tribunals in processes with foreign subjects.

Article XI. These tribunals, without being able to decide on the property of the public dominions, or interpret, nor hinder the execution of an administrative measure, may judge, in the cases provided by the civil law, the prejudices which are caused to the rights of a foreigner by any administrative act.

Article XII. There shall not be submitted to these tribunals the demands of foreigners against religious establishments regarding claims of real estate possessed by these establishments; but they shall be competent to judge on claims made on the question of legal possession, no matter who the claimant or the defendant may be.

Article XIII. The sole fact that the real estate has been given as security for debt to a foreigner shall empower these tribunals to decide on all the consequences of the hypothecation existing, so far and including the forced sale of the property and the distribution of the prices.

Article XIV. The tribunals shall delegate one of the judges, who, acting as a judge of peace, shall endeavor to conciliate parties, and to decide on affairs of such importance as may be fixed by the law of procedure.

Section III.—Audiences.

Article XV. The trials shall be public, except cases in which the tribunal, by a decision explaining the reasons, shall order the huis-clos in the interests of morality and public order, the defense shall be free.

Article XVI. The judiciary languages employed before the tribunals for the pleadings, and of the acts and the sentences, shall be the languages of the country, the Italian and the French.

Article XVII. Only persons having the diploma of lawyer will be admitted to defend the parties before the court of appeals.

Section IV.—Execution of judgments.

Article XVIII.—The execution of judgments shall take place without any administrative, consular, or other action, and on the order of the tribunal. It shall be effected by the officers of the tribunals, with the assistance of the local authority, if this assistance becomes necessary; but always without any administrative interference.

But the officer of justice charged with the execution of sentences by the tribunals shall be obliged to inform the consulate 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 will proceed.

Section V.—Irremovability of the judges.—Promotion.—Incompatibility. —Discipline.

Article XIX. The magistrates who will compose the court of appeal and the tribunals shall not be removable. This non-removability shall last only during five years. Magistrates shall not be definitively admitted until the term of probation is passed.

Article XX. The promotion of the magistrates, on their passage from one tribunal to another, shall take place only by their consent, and on the proposal of the court of appeal, which will take the advice of the interested tribunals.

Article XXI. The functions of magistrates, greffiers, assistant greffiers, interpreters, and officers shall be incompatible with any other salaried office and with the business of the merchant.

Article XXII. The magistrates shall receive no honorary or material distinction from the Egyptian government.

Article XXIII. All the judges of the same category shall receive the same salary. The acceptance of any remuneration besides their salary, of an increase of salaries, valuable gifts, or of any other material advantages, will involve for the judges the forfeiture of the employment and of the salary, without any right to indemnity.

Article XXIV. The discipline of the magistrates, officers of justice, and the lawyers is reserved to the court of appeals. The disciplinary penalty applicable to the magistrates for facts compromising their honesty as magistrates, or the independence of their vote, shall be the revocation and the loss of their salary, without any right to indemnity.

The penalty applicable to the lawyers compromising their honesty shall be the exclusion from the list of lawyers admitted to plead before the court, and the judgment shall be given by the court in general meeting by a majority of the three-quarters of the judges.

Article XXV. Any complaint presented to the government by one of the members of the consular body against the judges for disciplinary reasons shall be referred to the court, which will be bound to examine the question.

Chapter II.

Section VI.—Parquet, (bar.)

Article XXVI.—A parquet shall he instituted, at the head of which shall he an attorney-general.

Article XXVII. The attorney-general shall have under his direction, at the court of appeals and at the tribunals, substitutes in sufficient number for the conduct of trials and the judiciary police.

Article XXVIII. The attorney-general will be permitted to be present at all the sessions of the court and the tribunals, at all the criminal courts, and at all the general assemblies of the courts and the tribunals.

Article XXIX. The attorney-general and his substitutes will be removable and they shall be appointed by His Highness the Khedive.

Section VI.—Special and transitory dispositions.

Article XXX. The right of peremptory challenge of the magistrates and of the interpreters and the written translations shall be reserved for all the parties.

Article XXXI. There will be in every record-office of the tribunal of first instance a clerk of the mehkemé, (Turkish court,) who will assist the greffier in the conveyancy acts of real estate, and of the creation of rights and privileges concerning real estate, and he will draw up the act and transmit it to the mehkemé.

Article XXXII. There will be also at the mehkemé clerks delegated by the greffier of the tribunal of first instance, who shall transmit to him, in order to be recorded in the office of the recorder of mortgages, the acts of conveyance of real property, and of the creation of mortgage upon real estate. These transmissions shall be made under the penalty of damages and interest, and of disciplinary prosecution. The omission shall not involve nullity.

Article XXXIII. The conventions, donations, and the acts constituting mortgage or conveyance of real property received by the greffier of the tribunal of first instance will be considered authentic acts, and their original shall be deposited in the archives of the record-office.

Article XXXIV. The new tribunals in the exercise of their jurisdiction in civil and commercial matters, and in the limits conceded to them in penal matters, shall apply to laws presented by Egypt to the powers; and in case of silence, insufficiency, and obscurity of the law, the judge shall conform to the principles of natural rights and to the rights of equity.

Article XXXV. The government will cause the laws to be published a month before the new tribunals assemble, an example of which, in each of the judicial languages, shall be deposited in each mudirich, at every consulate, and at each record-office of the court of appeals, and of the tribunals, which will always keep a copy of them.

Article XXXVI. It will likewise publish the law relating to the personal statutes of the natives, a tariff of the judicial fees, the regulation as to land-dikes and canals.

Article XXXVII. The court will propose the general judicial regulations as to the police of the trials, the discipline of the tribunals, of the officers of justice, of the lawyers, and the duties of the attorneys representing the parties at the trials, the admission of indigent persons to the judiciary assistance-office, the exercise of the right of peremptory challenge and the manner of proceeding in case of equal division in the judgments of the court of appeals. The projet of regulations so prepared shall be transmitted to the tribunals of first instance for their observations, and after a new deliberation which shall be final, shall be put in execution by decree of the minister of justice.

Article XXXVIII. The tribunals in civil and commercial matters shall not have cognizance of mixed cases until one month after their establishment.

Article XXXIX. The foreign consulate shall finally decide the cases already commenced before them at the establishment of the tribunals. Nevertheless, at the request of the parties and with the consent of all the interested parties, they can be referred to the new tribunals.

TITLE II.

Jurisdiction in penal matters in what concerns foreigners accused.

Chapter I.

Tribunals of offenses of correctional police and court of assizes.

Section I.—Composition.

Article I. The judge of the offenses charged against foreigners shall be one of the foreign members of the tribunals.

Article II. The court for the trial of offenses, as well as of criminal matters, shall be composed of three judges, one native and two foreigners, and of four foreign assessors.

Article III. The correctional tribunal shall be composed in the same way.

Article IV. The court of assizes shall be composed of three counselors, one native and two foreigners. The twelve jurors shall be foreigners. In this last case the half of the assessors and of the jury shall be of the nationality of the accused if he ask for it. In case the list of the jury and the assessors of the nationality of the accused shall be insufficient, he will designate the nationality to which they shall belong in order to complete the number required.

Article V. When there are several accused, each of them will have the right to ask for an equal number of assessors or of jurors, provided no increase in the number of assessors and jurors shall be made, and provided the accused who, by reason of the number cannot exercise their rights, shall be determined by lot.

Section II.—Competence.

Article VI. Prosecution for simple police offenses and accusations made against the authors and accomplices of the following crimes and offenses, shall be submitted to the jurisdiction of the Egyptian tribunals, viz:

Article VII. Crimes and offenses committed directly against the magistrates, the jury, and the officers of justice, in the performance or on the occasion of the performance of their duties:

a. Outrages by gestures, words, or threats.

b. Slanders, abuses, provided they have been proffered as well in the presence of the magistrate, the jury, or of the officer of justice, as in the presence of the tribunal, or published by placards, writings, prints, engravings, or emblems.

c. Acts against their person, including blows, wounds, homicide, with or without premeditation.

d. Acts performed against them, or threats made to them, in order to obtain an unjust or illegal act, or the abstaining from a just and legal act.

e. Attempts at corruption exercised directly against them.

f. Abuse by a public functionary of his authority against them for the same end.

g. Recommendation made to a judge by a public functionary in favor of one of the parties.

Article VIII. Crimes and offenses committed directly against the execution of the judgments and decrees of justice, viz:

a. Attacks and resistance with violence or assault against the magistrates in the performance of their duties, or of officers of justice, in the legal execution of the judgments or decrees of justice, or against the guardian or agents charged with giving assistance in such execution.

b. Abuse of authority of a public functionary in order to prevent the execution.

c. Larceny of judicial documents for the same end.

d. Breaking of seals affixed by judicial authority; destroying goods seized by virtue of an ordinance or a judgment.

e. Escape of prisoners detained by virtue of a decree or a judgment, and acts which directly procured the escape.

f. Counseling prisoners escaped in the same circumstances.

g. The charges, while they concern directly the bankrupt, for facts characteristic of the fraudulent bankruptcy made by him, after the signification or the notice of the declaratory judgment of the failure, by embezzling or concealing apart of his effects to the prejudice of the mass of creditors, by concealing or destroying his books with the intention to make the embezzlement or that concealment of the effects, or by constituting him, or causing himself to be recognized, for the same purpose as a debtor of amounts which he did not actually owe.

Article IX. The crimes and offenses imputed to the judges, jurors, and officers of justice, when they may be charged to have done them while in the performance of their duties, or by an abuse of their powers, viz:

Besides the common crimes and offenses which can be imputed to them in those circumstances, the special crimes and offenses are:

a. Unjust judgment given by favor or enmity.

b. Corruption.

c. Concealing attempts at corruption.

d. Denial of justice.

e. Violence used against private individuals.

f. Violation of the residence without the legal formalities.

g. Extortions.

h. Embezzlement of the public funds.

i. Illegal arrests.

j. Faults in the judgments and decrees.

Article X. In the preceding dispositions the clerks, the sworn assistant clerks, the interpreters attached to the tribunals, and the titulary huissiers (tipstaff officers) are comprised under the designation of officers of justice; but not the persons accidentally in charge, by delegation of the tribunal of a signification, or of an act of the tipstaff.

Chatter II.

Modification of the criminal code for the trial of offenses, crimes, and misdemeanors, on complaint of foreigners.

Section I.—Prosecution.

Article XI. When a member of the consular body shall give information of a delinquent act against a magistrate or an officer of justice, the government shall give to the public ministry the necessary orders, who will be bound to act upon the information.

Article XII. All prosecutions for crimes and offenses will form the object of an instruction, which will be submitted to the chamber of the council.

Article XIII. The consul of the accused shall, without delay, be informed of any prosecution for crimes and offenses commenced against his subject.

Section II.—Instruction.—Hearing.

Article XIV. The hearing as well as the pleadings shall be in the judiciary language with which the accused is acquainted.

Article XV. Every hearing against a foreigner, as well as the direction of the pleadings at the trial, shall belong to a foreign magistrate as much in simple police-matters as in criminal and correctional ones.

Article XVI. If the person accused of a crime or offense has no advocate one shall be appointed by the court the moment of arraignment, under pain of nullity.

Article XVII. Until it is ascertained that there are sufficient jails in Egypt, the accused who has been arrested shall be delivered to the consul immediately after the arraignment and within twenty-four hours after his arrest, unless the consul authorizes the detention in the government-prison.

Article XVIII. The witness who shall refuse to answer to the judge of instruction or before a judicial tribunal can be condemned to imprisonment, which will vary from one week to one month in cases of offense, and which can be extended to three months in cases of crime, or in any case to a fine of from 100 to 4,000 Egyptian piasters.

Article XIX. The only witnesses that can be challenged are the parents, descendants, and the brothers and sisters of the accused or his kindred to the same degree, and husband and wife even divorced, and such testimony shall be excluded even if neither the prosecuting officer nor the civil party nor the accused shall object.

Article XX. When in the course of a trial it shall be found necessary to make a domiciliary visit, the consul of the accused will be informed.

An official report of the information given to the consul will be drawn up; a copy of that report will be left at the consulate at the time of the visit.

Article XXI. Except the case of flagrant offense or a call for help from the interior, no domicile can be entered during the night except in the presence of the consul or of his delegate, if he did not authorize such visit without his presence.

Section III.—Regulation of competence in conflicts of jurisdiction.

Article XXII. Three days before the meeting of the chamber of the council the communication of the papers of the trial will be made to the record-office, to the consul, or to his delegate.

Legal documents of which the consul demands copies must be delivered to him under penalty of nullity.

Article XXIII. If on the communication of the papers the consul insists that the affair belongs to his jurisdiction, and that it should be referred to his tribunal, the question of competency, if disputed by the Egyptian government, shall be submitted to the arbitration of a council composed of two councilors or judges selected by the president of the court and of two consuls chosen by the consul of the accused.

Article XXIV. When the judge of instruction and the consul shall adjudicate at the same time on the same case, if one of them does not think proper to admit his incompetency, the council of conflicts must meet in order to settle the difference on the demand of one of them.

It is well understood that the conflict cannot be raised by the judge of trial on the occasion of an ordinary crime or offense, the more the crime or the offense which he may insist on having been committed shall be qualified by the bill of indictment before him in conformity to the aforesaid categories of acts referred to the new tribunals. Finally, if the magistrate or officer of justice has brought his complaint before the consular tribunal, that tribunal shall decide upon the complaint without any possibility of conflict.

Article XXV. The tribunal which, after the aforesaid formalities have been performed, will remain in charge of the affair, shall have final jurisdiction in the case.

Section IV.—Pleadings before the court of assizes.

Article XXVI. Before the court of assizes, when the pleadings shall be closed and the questions to be asked from the judges fixed, the president shall resume the affair and the principal proofs for or against the accused.

Section V.—Of the appeal and of the review against the judgments in cases of offenses.

Article XXVII. The appeal when allowed in matters of offenses against the judgments of the tribunal of simple police will be brought before the correctional tribunal.

Article XXVIII. Appeals, in case they are authorized by the code of criminal instruction against the condemnatory judgments in penal matters, shall be brought before the court composed as in civil matters.

The judges having seats in the court of assizes cannot hear appeals from the decrees of the court.

Section VI.—Selection of jurors and choice of assessors.

Article XXIX. The list of the judges of foreign nationality will be made annually by the consular body.

To that effect every consul will furnish the dean of the consular body the list of his countrymen having the conditions required for jurors. Each juror must be 30 years old and have resided at least one year in Egypt.

Article XXX. The final list will be made by the consular body from the aforesaid partial lists after elimination until the total required number is obtained, not exceeding two hundred and fifty.

Article XXXI. The number of jurors of each nationality shall be thirty and the minimum eighteen, provided that in this last case the composition of the nationality permits it.

Article XXXII. The correctional assessors shall be chosen by the consular body from the jury-list.

Article XXXIII. The minimum of the assessors of each nationality shall be six and the maximum twelve.

Article XXXIV. When a correctional offense is to be judged in one town where there is not a sufficient number of foreign assessors, the court will summon the assessors from the neighboring tribunal.

Article XXXV. The assessors or jurors who refuse to appear to perform their duties, shall be condemned by the tribunal or the court, as the case may be, to a fine from 200 to 4,000 Egyptian piasters, unless they have lawful reasons for their absence.

Section VII.—Execution.

Article XXXVI. Until it is ascertained that sufficient jails really exist in Egypt, the persons condemned to imprisonment shall be detained in the consular prison if the consuls so request.

Article XXXVII. The consul whose subject undergoes his punishment in the establishments of the Egyptian government shall have the right to visit the jails and satisfy himself as to their condition.

Article XXXVIII. In case of a condemnation to capital punishment, the representatives of the powers will have the right to claim their subject. To that effect a sufficient delay must intervene between the sentence and its execution in order to give to the representatives time to express their intentions in the case.

TITLE III.

Section I.—Special dispositions.

Article XXXIX. There will be established at the new tribunals a sufficient number of agents, chosen by the tribunals themselves, to be able, when there will be no risk of delay, to assist, if necessary, the magistrates and the officers of justice in their duties.

Section II.—Final disposition.

Article XL. During the period of five years no change shall take place in the adopted system. After this period, if experience has not confirmed the practical utility of the judicial reform, the powers will have the right to return to the old order of things, or to treat with the Egyptian government for other combinations.