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THE MIXED COURTS OF EGYPT

BY JASPER Y. BRINTON

Justice of the Court of Appeals, Mixed Courts of Egypt

"I have often taken occasion to remark that next to the Church, the Mixed Courts are the most successful international institution in history." (Farewell address of Sir Maurice Amos, Judicial Adviser to the Egyptian Government, Alexandria, March 25, 1925, trans.)

"The Mixed Courts and their bar are to be numbered among those institutions which do the highest honor to humanity. The Courts, through their jurisprudence, and the Bar through its erudition and its eloquence, enjoy a world-wide reputation which has long been familiar to me." (Address of Professor Leon Duguit, Dean of the Law School of the University of Bordeaux, and (1925–6) Dean of the Law School of the University of Egypt, Cairo, February 12, 1926.)

Amid a scene of fitting dignity and in the presence of a gathering that represented all that was most distinguished in the Egyptian world, the Mixed Courts of Egypt, assembled in their Palace of Justice at Alexandria, celebrated their fiftieth anniversary on the twenty-seventh day of February last.

To a few of those there present-Egypt's elder statesmen-the scene naturally recalled those ceremonies of equal dignity, and indeed of royal pomp, held a half century before at the beautiful palace of Ras-el-Tin, on the Mediterranean, a few miles distant, when the ruling monarch of Egypt, the Khedive Ismail, inaugurated in person the régime of the Mixed Courts. Seldom, indeed, have royal prophecies been more happily fulfilled than that in which the Khedive, as he inaugurated the new régime, expressed his belief that the event would mark the beginning of a new era in the civilization of Egypt. During the half century that has intervened between these two occasions, the Mixed Courts have grown from a modest output of judicial labor and a highly unstable tenure of existence, into an institution which has stood like a rock at the foundation of the prosperity of Modern Egypt, an institution which, with a personnel of sixty-five judges, recruited in no small part from among the leading jurists of Europe, and fifteen hundred employees, renders annually some thirty thousand written opinions, maintains a great land-registry system, is responsible for an annual net revenue to the government of a million pounds, and exercises legislative functions of a unique and most important character.

Two aspects suggest themselves, from which this institution may be viewed: The one is that of a going judicial concern. It is the aspect of the worker toiling to keep the wheels of justice grinding evenly; of the servant of the law, lost in the task of keeping abreast of an ever-increasing flood of litigation and totally unconcerned with considerations of national or inter

national character. It is this aspect which invites us to a survey of a judicial organization of uncommon interest, embodying in the main the traditional features of the historic Latin system, but replete with incidents, analogies, and peculiarities of procedure that cannot fail to arrest the attention of any student of comparative legal institutions. The other aspect is the international, that of an institution organized by international concert to meet an international problem, and which functions under the protection of the Powers from whom it draws much of its vitality.

Of these two aspects, it is the second which doubtless presents the greater interest to readers of this JOURNAL and which, for lack of space to cover any larger field, will be specially dwelt on in this article. It is important, however, in order not to lose the proportions of our subject, to keep the other aspect well in mind, for it is, after all, on the quality of the performance day by day, of its purely judicial labors, labors which, despite many differences in detail, are essentially similar in kind to those which fall to the lot of all other modern judicial systems, that the success of the Mixed Courts has been founded.

And first, and very briefly, as to the international contacts involved in the founding of the courts. Our inquiry here may well begin with a question that comes naturally to the mind of any one who has followed recent history in the Near East: How comes it about that Turkey and her former vassal state of Egypt, having started with the indentical régime of capitulations, have worked out the same problem to such widely different results? How is it that at a time when Egypt is resounding with tributes to the half-century's labor of the Mixed Courts, Turkey is proudly exhibiting a completely nationalized and reorganized judicial system, which constitutes certainly one of the most encouraging achievements of the builders of her new régime? 2 The answer to these questions points us to the real origin of the Mixed Courts. They are the offspring, not of the classic system of capitulations, as those ancient privileges had become consecrated in Turkey in a series of treaties familiar to all students of international law, but of a system of completely distorted capitulations which, as developed in Egypt, threatened to throttle the whole commercial life of the country.

Without undertaking to review, even briefly, the capitulatory system as it existed in Turkey in the nineteenth century, it will be sufficient to recall that under the Ottoman capitulations the Ottoman tribunals had original jurisdiction over all civil and commercial cases involving foreigners and

1 The writer hopes to be able to publish during the coming winter a small volume covering the judicial as well as other features of the Mixed Courts.

2 This last observation is based upon personal investigations made of the Turkish judicial system, by the writer, first in 1919, as a member of the Harbord Mission, and later in 1924 and in 1925, as a friendly and unofficial visitor, interested in the development of judicial institutions in the Near East.

The phrase "civil and commercial," it is perhaps needless to say, merely indicates the fundamental distinction, running through the entire Latin system, between litigation in

Ottoman subjects, as well as criminal jurisdiction over foreigners (except in the case of citizens of the United States, Belgium and Portugal, which latter countries asserted, with varying degrees of success, a right to exercise criminal jurisdiction over their subjects by virtue of treaties whose text and whose interpretation had been the subject of interminable diplomatic dispute1). The limitations under which this Ottoman jurisdiction was exercised, both as to the assistance of consular dragomen and, as to the special composition of the so-called commercial tribunals, specially created for that class of cases, need not detain us in this brief sketch. The one important point is that, normally, the Turkish system should have been strictly followed in Egypt, and that practically it was departed from in the most radical manner. In Turkey, ever jealous of foreign encroachment, the system was kept pretty closely to the limits set by treaty, and its operation became a source of continual diplomatic controversy. It worked badly to the end, so badly that at the time of its disappearance there was nothing to be said in its favor except a doubt as to the ability of Turkey to assure reasonable guarantee of justice to foreigners in the Turkish courts.

In Egypt, however, a far different attitude on the part of her local rulers led to far different results. The creator of modern Egypt, the Albanian adventurer Mehemet Ali, born in the same year as Napoleon and by 1807 master of Egypt by right of conquest, had different views as to the value of European civilization, and appreciated justly the necessity of European coöperation in the completion of his many imposing projects for the internal development of his country. He encouraged Europeans to come as travelers to Egypt, invited French savants to join his sons in their expedition to the Sudan, and made it his settled policy to attract European enterprise by every means in his power, and to afford the stranger in the land the amplest measure of protection. But protection naturally enough spelled privilege, and the appetite for privilege grew with what it fed on. Little by little the consuls enlarged their jurisdiction; little by little the Egyptian authorities, lulled into indifference, perhaps, by their master's example, admitted the new pretentions. Before long, the consuls, applying liberally the maxim actor sequitur forum rei, had asserted and secured to themselves jurisdiction in all cases, civil, commercial, and criminal, where their subjects were involved as parties defendant. This was an altogether novel

volving merchants and commercial affairs, and litigation not so characterized. The distinction is not merely reflected in different modes of procedure and of proof, and in the confining of bankruptcy to the case of merchants, but is responsible for the separate organization of commercial as distinguished from civil chambers in all courts which follow the Latin system.

See Brown, Foreigners in Turkey, p. 76; Moore's Digest, II, p. 701.

See the admirable doctoral thesis submitted in 1912 to the Law Faculty of the University of Montpellier by the writer's Egyptian colleague of today in the Court of Appeals, M. Bahi Ed Dine Barakat, under the title Des Privileges et Immunites dont Jouissent les Etrangers en Egypt vis-à-vis des Autorités Locales and bearing dedication to Saad Zaghloul Pacha (p. 163).

expansion of consular jurisdiction, unsupported by the capitulations and based purely on usage, a usage, however, which soon acquired the force of law. But this development was accompanied by another consequence of radical and far reaching character. The consul's jurisdiction was necessarily confined to the enforcement of the laws of his own country, except in so far as those laws expressly called for the application, in special cases, of the foreign law. Therefore, foreigners were subject only to their own laws, as such laws were interpreted by their own consuls. Thus the laws of the country where they resided, being unenforceable in any forum against them, became for them practically non-existent, and the consequence was none other than the establishment of a complete immunity both of jurisdiction and of legislation. The evils which resulted from the existence of such a system can be readily imagined. The administration of justice in Egypt fell into what was aptly termed a state of judicial chaos. When parties contracted, they did not know before what jurisdiction they might be called upon to plead. Whenever a possibility of litigation arose it was always the object of one party to get his hands on whatever property there might be involved so as to provoke the suit before his own consul. Suit had to be brought in as many forums as there were defendants. A foreigner of different nationality could not be brought into the principal cause. Appeals from consular decisions were generally not heard in Egypt. The situation was intolerable. Well might the American consular representative report to the State Department that consular courts "were choked with thousands of cases which, owing to disputed jurisdiction, unjust decisions, lack of executive power, etc., can never be settled until some reform is introduced.” 6

Such was the condition of affairs when the greatest statesman that modern Egypt has produced, the Armenian, Nubar Pasha, Prime Minister under the Khedive Ismail, opened a campaign which, judged alike by the sustained generalship and resource with which it was conducted, by the heavy odds by which it was opposed, by the success which finally crowned it, and by the witness which fifty years of the enjoyment of its fruits bears to the almost prophetic wisdom of its leader, is entitled to be ranked among the foremost diplomatic achievements of modern history. To quote Lord Milner, it has earned for Nubar a claim "to the lasting gratitude of Egypt as well as to the respect of the civilized world." The opening gun in Nubar's campaign took the form of a report made in 1867 to his sovereign, the Khedive, in which he vigorously exposed and denounced the evils of the existing system and submitted his project for a reform. Space forbids

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• The evils of the system had been but little tempered by the extension into Egypt in 1861 of the Turkish system of Mixed Commercial Courts which had proved themselves incompetent and in every way inadequate.

"Milner, England in Egypt, Chapter IV.

The following passage from this report is typical of Nubar's forceful manner of expression and contains a concise summary of the grievances at which his attack was aimed:

us to follow the highly eventful history of the negotiations of the ensuing eight years. It is a chapter of engrossing diplomatic interest, replete with historic sidelights and human touches, punctuated and materially influenced by the opening of the Suez Canal, interrupted by the Franco-Prussian War, and with the stage moving in turn from Cairo to Constantinople, from Constantinople to Paris, from Paris to London, and so on throughout the capitals of Europe, until the final stage was set at the Palace of Ras-el-Tin, Alexandria, on June 25, 1875, on the occasion to which reference was made at the beginning of this article."

Nubar's original plan contemplated the establishment of a system of Mixed Courts whose judges should be evenly divided between Egyptians and Europeans and which should exercise jurisdiction in all civil and commercial cases arising between foreigners and natives, as well as general criminal jurisdiction over foreigners. Later he extended the scope of his project so as to include in the jurisdiction of the new courts all commercial suits between Egyptians themselves, all civil litigation between Egyptians which the parties might agree to submit to the new courts, and all crimes, misdemeanors and police offenses committed in Egypt either by Egyptians or by foreigners. The chief difficulty with these projects was that they were ahead of the times. A generation later they might well have hoped for success. As it was, they were vigorously opposed by many and varied foreign interests and encountered the very special hostility of France, the approval of whose parliament was only finally secured by the bold stroke of the Khedive in inaugurating the new courts in advance of French acceptance, thus creating a fait accompli to which the French parliament promptly bowed.

"The jurisdiction which determines the relations between Europeans and the Government of Egypt and the inhabitants of the country," he complains, "is no longer based on the Capitulations. The Capitulations exist only in name. They have been replaced by an arbitrary law of custom, varying with the character of each new diplomatic chief,—a law based upon precedents frequently abusive, which has been permitted to take root in Egypt through force of circumstances and constant pressure and a desire to make easy the lot of the foreigner. It leaves the Government powerless in its relation to such foreigners and the people without guarantee of even justice. Such a state of affairs violates the letter and violates the spirit of the Capitulations; it impedes the country in the development of its resources; it prevents it from putting its true riches at the service of European enterprise and capital; it destroys its progress and brings moral and material ruin in its train."

See, for an English translation of this report, Diplomatic Correspondence, Department of State, 1868, Pt. II, p. 151.

• New interest has been given to this chapter through the act of King Fouad in placing at the public disposal the personal correspondence of his father, the Khedive Ismail, with Nubar Pasha during the latter's travels in Europe in search of European support for the proposed reforms. This correspondence has been summarized in a lively manner by the Attorney General (Procureur-General) of the Mixed Courts, Firmin van den Bosch, a Belgian jurist well known also as an essayist, in his address at the Semi-Centennial celebration, published in the memorial volume of the occasion known as the Livre d'Or, or Golden Book.

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