Unfortunately the creation of the Mixed Courts did not completely solve the problem of the capitulations in Egypt. Two important evils were left untouched. First, the complete legislative immunity of foreigners, which made it necessary to secure the approval of the Powers to any laws intended to affect their subjects; and second, the continued jurisdictional immunity of foreigners in matters of criminal law. The Consular Courts still functioned in cases of crime, other than police offenses, and the result was the impotency of the Egyptian Government to enforce the criminal laws of the country against many classes of dangerous criminals, whose activities and example were highly subversive of public morals.22 Throughout almost the entire history of the Mixed Courts these two evils have been the subject of projects of reform involving, in some measure, the coöperation or reorganization of the Mixed Courts.

The most vigorous of these campaigns was that conducted by Lord Cromer who, throughout his long and illustrious pro-consulate in Egypt, was tireless in his efforts to put an end to both these evils. His indignation was particularly aroused by the vicious features of what he termed "legislation by diplomacy," and his principal efforts were centered on the creation of an international Legislative Council with power to legislate for foreigners. Lord Cromer's project also included "as a detail, albeit a very important detail," the transfer of the consular jurisdiction, not to the Mixed Courts but to a new system of courts to be established by the Council. His opposition to the transfer of the consular jurisdiction to the Mixed Courts was based upon his belief that such an extension of what he termed "the international principle" (a principle to which he appears to have been constitutionally opposed) did not harmonize with Great Britain's position of political predominance in Egypt, and that the progress of the country could be "guided far more efficiently by one than by several Powers." Despite, however, his monumental achievements in the solution of other problems of Egyptian administration, in this particular field Lord Cromer's efforts were unsuccessful. But his administration records one step forward, which, while regarded as of minor importance at the time, has since proved both important and significant. It leads us

1898. The long series of able and exhaustive reports which record the work of these two officials bear testimony to a loyal and effective devotion to the interests of the Mixed Courts. In 1916 Sir Malcolm McIlwraith was succeeded by Sir William Brunyate who, in turn was succeeded, in 1919, by Mr. (later Sir) M. Sheldon Amos, one of the most brilliant figures that England has ever contributed to the Egyptian Civil Service. His retirement in the spring of 1925 was the subject of flattering testimonials of regard from the Mixed Courts. The present holder of the office, the Hon. John H. Percival, is a jurist of long experience in the native courts, and one of the most respected figures in the Egyptian judicial world.

22 "Its paralysing effects are chiefly felt in the sphere of criminal law, where it has hampered for generations the repressive powers of the government and the law courts, throughout the whole gamut of crime, from murder down to the infringement of the liquor regulations." Sir Malcolm McIlwraith, former Judicial Adviser (Egyptian Gazette, Dec. 1918).

to a consideration of those unique legislative functions of the Mixed Courts to which reference has already been made.

The jurisdiction of the Mixed Courts over the trial of police offenses has already been referred to. The list of such offenses was defined in the Penal Code adopted at the time of the founding of the Courts. Sufficiently complete at the time, this list soon became out of date and inadequate, and the attempts of the Egyptian Government to enlarge it without securing the consent of the Powers were defeated by decisions of the Court of Appeals. Diplomatic negotiations ensued and in 1889, to quote Lord Cromer, "after vast travail the diplomatic mountain did at last bring forth a small but not altogether ridiculous mouse." The "mouse," which later proved to be a creature of somewhat more formidable proportions, took the form of an agreement conferring on the Court of Appeals on behalf of the Powers the authority to approve police regulations proposed by the Egyptian Government, thereupon rendering offenses under such regulations triable in the Mixed Courts. The scope of this approval is quasilegislative and quasi-judicial. In its examination of new projects the Court of Appeals is to confine itself to ascertaining that the proposed regulations are "common without distinction to all the inhabitants of the territory"; that they contain no provision contrary to the text of any treaties or conventions (i.e., including the privileges guaranteed by the capitulations); and finally that they carry no penalties in excess of those properly applicable to police offenses ("contraventions"), viz., a week's imprisonment and the fine of a pound.

The exercise of the new powers was followed by the most happy results. The phrase "police regulation" contains wide possibilities, which have been generously explored, and the fact that to the penalties above indicated may be, and frequently are, added the severe sanctions of forfeiture of property and the closing of unlawful establishments has gone far to put teeth into what might otherwise prove to be inadequate measures. Such laws, moreover, are often of a highly comprehensive character, according to the police and other officials effective powers of administrative action. The relief afforded by the agreement of 1889 was, however, but partial. The obnoxious system of legislation by diplomacy still obtained as to all changes in the Mixed Codes, which frequently demanded revision, as well as to all questions of taxation which did not fall within the scope of the codes. New diplomatic conferences ensued and a second agreement was finally reached between Egypt and the Powers in 1911, creating a special legislative assembly in the Mixed Courts with power to approve modifications and additions to the "mixed law" or legislation mixte, a phrase which, while primarily directed to the mixed codes, is sufficiently broad to include legislation of a general character intended to be applied to foreigners, excepting measures involving the imposition of new taxes.

The convening of the Special Legislative Assembly established by this

second measure is a more formal proceeding than the simpler system just referred to, provided in the case of police measures. In the Legislative Assembly representation is provided for every capitulatory Power, certain members of the lower courts thus joining their colleagues of the upper court on these important occasions. The deliberations of the Assembly are preceded by elaborate investigations and reports, and experience has shown that the system is calculated to give full protection to the foreign interests which it is designed to protect. Up to date it has been responsible for the approval of a number of important changes in the codes and of several general laws of large public importance. The system, of course, is open to the objection that it confides legislative powers to a judicial body. The answer is the purely practical one that the necessities of the case offered no practicable alternative. As Lord Cromer puts it, and his long and unsuccessful efforts to devise such an alternative give peculiar force to his observation, "In Egypt, legislators have to be caught where they can be found. As a legislative machinery composed of judges was ready to hand, that machinery had to be utilized in default of anything better." 23

The opening of the war suspended further projects for the reform of the capitulatory régime in Egypt. Martial law was proclaimed on November 2, 1914, but on the same date a proclamation was issued stating that the powers exercised by the military authorities "were intended to supplement and not to supersede the civil administration." The Mixed Courts accordingly continued to function undisturbed during the entire period of the war, conceding however the force of law to the series of military orders issued under authority of the régime of martial law and covering the successive declarations of moratoria, the legal rights of enemy subjects and a variety of topics more or less related to military activities.

It may be recalled that shortly after the opening of the war (December 18) Egypt was declared a British protectorate. On the following day the Khedive Abbas was deposed and the Khedivate conferred upon Prince Hussein Kamel with the title of Sultan. In a letter addressed to the new ruler, the British Government reminded the Sultan of its frequent declarations that the system of the capitulations was no longer in harmony with the development of his country, but declared that in its opinion "the revision of these treaties may most conveniently be postponed until the end of the present war." 24 As the war drew to its close, however, it was

23 Cromer, Modern Egypt, p. 435.

24 From an address delivered in England shortly before the end of the war by Sir Malcolm McIlwraith and republished in the Egyptian Gazette, Alexandria, December, 1918, it appears that prior to the issuing of this declaration the British Government had considered the advisability of taking the position "that the declaration of the protectorate had ipso facto terminated" the capitulations (the suggestion of course did not contemplate the suppression of the Mixed Courts), but that "partly for political reasons, and largely because the Egyptian Government was not yet ready with the requisite machinery and technical staffs required for superseding the existing arrangements, it was decided to make no change during

decided to renew the attack on the ancient problem, and, in 1917, a commission was appointed by the Egyptian Government to study the reforms that would be necessitated or rendered possible by the anticipated abolition of the capitulations at the end of the war. The labors of this commission included plans for a complete reorganization of the Mixed Courts. Although the commission issued no report, its labors being prematurely terminated by political events, a general impression prevailed "that it contemplated the supersession of the Mixed Tribunals by new courts in which the English language and British legal procedure would predominate, a measure which would entail disabilities on the native bar and paralyse the foreign advocates who had hitherto used the French language." 25 The storm of protest which followed the discovery of this intention constitutes one of the most spirited incidents in the history of the Mixed Courts, and effectively demonstrated the futility of any plan of reform involving a break with the traditional Latin system.

A new attempt at reform involving the Mixed Courts was made by the Milner Mission, which visited Egypt in 1919, and in the negotiations which took place in London in the fall of the following year with the Egyptian representatives the question of an adaptation of the Courts to a new capitulatory program was discussed. A tentative solution was then sketched under which, inter alia, Egypt was to recognize Great Britain as the protector of the foreign privileges guaranteed under the capitulations (which were to be reduced to reasonable proportions) and Great Britain on her part was to endeavor to secure from the several Powers a transfer to her, as trustee, of their capitulatory rights. These agreements with the Powers were to provide for the closing of the foreign Consular Courts so as to render possible the reorganization and extension of the jurisdiction of the Mixed Courts, and the application to all foreigners in Egypt of the legislation (including legislation imposing taxation) enacted by the Egyptian Legislature with the approval of the British Government. Concurrently with the discussion of these projects, which, needless to remark, failed to result in any agreement between the two Powers directly involved, Great

the war." The observation recalls a significant footnote inserted by Lord Cromer in his report for 1904 (p. 7) referring, without comment, to the opinion of a French jurist (Gabriel Jaray) that the recognition of a protectorate would justify the suppression of capitulations, if the reorganization of the country in question was sufficiently advanced to afford proper guarantees of good administration.

25 Report of Milner Mission, London, 1921, p. 13. In a lecture delivered at Cambridge University in August, 1924, Sir Malcolm McIlwraith, a former Judicial Adviser, strongly deprecates this movement, which, he states, he had always opposed during his long term of office, and adds that his views on the subject were shared by both Lord Cromer and Lord Kitchener. See Egyptian Gazette, Alexandria, Sept. 13, 1924. It may be added that proceedings in the Mixed Courts are conducted entirely in French, and with the exception of an occasional opinion in Italian, all opinions and decisions are rendered in the French language.

Britain undertook the projected negotiations with the Powers and secured the consent of several of the smaller capitulatory nations. The consent of most of the larger Powers, however, had not been received at the time when changed political relations between Great Britain and Egypt entered into the new phase leading to the Declaration of Independence of February 28, 1922, and the promulgation of the present Constitution on April 19, 1923.

By the former of these documents the question of "the protection of foreign interests in Egypt" was included among the four points reserved for future discussion and "friendly accommodation." By the second document, all foreign rights existing under the capitulatory régime, including the régime of the Mixed Courts, were specifically guaranteed. The problem of the reform of so much as remains of the abuses of the system of the capitulations in Egypt became thus once more relegated to the indefinite future awaiting for its solution the energy and ingenuity of some worthy successor to Nubar, for the task will not be an easy one.

As already indicated, the two points at which reforms must be directed are the suppression of the Consular Courts and the devising of a plan to free Fgypt from the existing restrictions upon legislation for foreigners in matters of taxation. Neither of these involve impairment of the existing structure of the Mixed Courts. As to the consular jurisdiction, criminal or civil or both, this could conceivably be transferred to some other tribunal specially organized for the purpose, and in such case the Mixed Courts would be in no manner involved. Presumably, however, the effort will be to transfer such jurisdiction to the Mixed Courts, in which case additional equipment in the shape of increased judicial personnel must be provided, and certain additional guarantees covering the conduct of prosecutions will doubtless be demanded by the Powers.

The situation, as far as the Mixed Courts are concerned, is somewhat similar to the case of the legislative problem. The aid of the Mixed Courts may or may not be invoked in devising a method to liberate Egypt from her present legislative disabilities. Obviously it would be possible to enlarge the powers of the Legislative Assembly of the Mixed Courts to cover the remaining legislative field. Such an extension would at least have the merit of simplicity and was foreshadowed during the war by the memoir submitted to the Powers by the Egyptian National Delegation. "For all that concerns legislation and the imposition of taxes," reads the memoir, "foreigners can be assured every guarantee in the existence of an international organization already functioning in the country and whose approval will be required to all laws and taxes which are to be applied to foreigners.

26 "L'application de la présente Constitution ne peut avoir pour effet de porter atteinte aux obligations de l'Egypte envers les Etats Etrangers, ni aux droits que les Etrangers auraient acquis en Egypte en vertu des lois, des traités, ou des usages reconnus." Egyptian Constitution, Article 154.