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.

³ 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 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.

⁴ See Brown, Foreigners in Turkey, p. 76; Moores Digest, II, p. 701

⁵ 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-A-vis des Autorites Locales and bearing dedication to Saad Zaghloul Pacha (p. 163).

⁶ 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.

⁷ Milner, England in Egypt, Chapter IV.

⁸ The following passage from this report is typical of Nubars forceful manner of expression and contains a concise summary of the grievances at which his attack was aimed:“ 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 They have been replaced by an arbitrary law of custom, varying with the character of each new diplomatic chief,”a law based upon precedents frequently abusive, which has been permitted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.

⁹ 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 dOr, or Golden Book.

¹⁰ See article by the writer of this article in the IAvre dOr (supra), under the title “ The American Participation in the Founding of the Mixed Courts.”

¹¹ For an English translation, see Messages and Documents, Department of State, 18731874,Part 2, p. 1112, as communicated by the American Minister to the Ottoman Porte, to Secretary of State Fish, April 21, 1873.

¹² The Rbglement provides that all judges of the same class shall receive the same salaries.These were fixed by a schedule attached to the Reglement and, of course, are under the same protection as the other international obligations contained in that instrument. They are paid by the Egyptian Government and may not be reduced without the consent of the Powers. They have, however, recently been slightly increased. Salaries in the Trial Courts now range from 1400 to 1800 Egyptian pounds; those in the Court of Appeals from 1800 to 2200, according to length of service, the maximum being reached in eight years. The Egyptian pound slightly exceeds in value the pound sterling. Retirement on pension is provided for after fifteen years service if a judge is 55 years of age. The compulsory retirement age is 65 in the Trial Courts and 70 in the Court of Appeals.

¹³ The war has since eliminated Germany, Austria, and, temporarily at least, Russia, from their right to representation in the Mixed Courts, although the Russian representative in the Trial Courts, who happens to be one of its most experienced and able members, still retains his seat. The German and Austrian members, however, were obliged to leave Egypt at the opening of the war. Today, in addition to the four remaining great Powers, the Court of Appeals includes judges chosen at will by the Egyptian Government, from Spain, Norway and Belgium, as also a representative of Greece, which, in recognition of the size of her colony in Egypt and the commercial importance of her interests, has been conceded a seat in the upper court. England, as a result of appointments made during the regime of martial law, at a time when a plan was being projected for the radical reform of the Mixed Courts under British trusteeship, has at present three judges on the Court of Appeals.

¹⁴ As an example of this jurisdiction may be mentioned the recent decision of the Court of Appeals in the case of the Turkish Tribute Bonds, involving an amount generally estimated at some eighteen million pounds. Immediately upon the handing down of this decision the Egyptian cabinet took the necessary measures to comply with the judgment.

¹⁵ The establishment of the Mixed Courts did not affect the continuance of such privileges under the existing system of capitulations as were not necessarily supplanted by the new regime. These privileges consisted in immunity from personal taxation without the assent of their governments, inviolability of domicile and protection from arbitrary arrest, and a right to continue to invoke the jurisdiction of the consular courts except as to matters falling within the new jurisdiction of the Mixed Courts. (See infra.)

¹⁶ See Hertzlet's Commercial Treaties, Vol. XII, p. 303.

¹⁷ See Act of Congress, March 23,1874 (18 U. S. Statutes at Large, p. 23) and Presidential proclamation, March 27, 1876(Ibid., Vol. 19, p.662). Also see Fifth Annual Message of President Grant, Dec. 1,1873,Vol. VII, Messages and Papers of the Presidents, ed.1898, p. 238.

¹⁸ The first American member of the Court of Appeals, the Hon. Victor Barringer, a former Attorney General of North Carolina, was commissioned June 24,1875. The first American member of the Trial Courts, Hon. George S. Batcheller, was commissioned November 10, 1875. The present American members of the Trial Courts are Hon. Pierre Crabites, commissioned June 8,1911, and Hon. Robert L. Henry, D.C.L., Oxford, commissioned November 10, 1924.

¹⁹ Referring to the question of the right of Egypt to withdraw from the regime, Lord Cromer, in his report for 1897, refers to the view of the Egyptian Government“ which is supported by many eminent jurists in England and elsewhere, that Egypt has a right to withdraw at will from the Mixed Tribunals.”See also the interesting contribution to the Livre d'Or, under the title Du Retard ApporU par Certaines Puissances d leur Adhesion au Renouvellement des Pouvoirs des Tribunaux Mixtes, by the French representative on the Court of Appeals, Hon. Bernard Favenc.

²⁰ In referring to the powers of the first Judicial Adviser, Lord Cromer observed that it was understood that the Minister of Justice “ will take no important step without previous consultation and agreement.”It is interesting to recall that the maintenance of this post was exacted as one of the conditions of the abandonment of the occupation of the Alexandria. Customs House, seized by the British military authorities after the murder of the Sirdar in 1924.

²¹ The first British Judicial Adviser was Sir John Scott, whose labors effected invaluable reforms in the administration of native justice. At the opening of the war this post was occupied by Sir Malcolm Mcllwraith, who had held office since Sir John Scott's retirement ia>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 Mcllwraith 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 Mcllwraith, former Judicial Adviser (Egyptian Gazette, Dec. 1918).

²³ Cromer, Modern Egypt, p. 435.

²⁴ From an address delivered in England shortly before the end of the war by Sir Malcolm Mcllwraith 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 duringthe 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 Mcllwraith, 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.

²⁶ “Lapplication de la prsente Constitution ne peut avoir pour effet de porter atteinte aux obligations de lEgypte envers les Etats Etrangers, ni aux droits que les Etrangers auraient acquis en Egypte en vertu des lois, des trait6a, ou des usages reconnus.” Egyptian Constitution, Article 154.

²⁷ Bey, Soubhi Ghali Article in Revue de Droit International et de Legislation Comparie, Paris, 1908, Vol. X. Republished in the Livre d'Or of the Semi-Centennial of the Mixed Courts, Alexandria, 1926, p. 431 et seq.Google Scholar

²⁸ “ The Court will always be an Egyptian Court. If our governments accept the project, it is that they are consenting to submit their subjects to the jurisdiction of an Egyptian tribunal, in view of the sufficiency of the guarantees that have been offered”(Statement of the American representative, Mr. Charles Hale, before the Commission of 1869 [28 Dec.].) “ The Tribunals, though established with the concurrence of the Powers, were intended to be Egyptian Tribunals; and it is probable that they would never have come to be regarded as International Tribunals in the sense now current, if their establishment had not almost exactly synchronized with the utter collapse of autonomous Egyptian government.”(Mr, [later Sir] Wm. Brunyate, note to Lord Cromer's Report for 1904, p. 93.)

²⁹ Ragheb Bey Ghali, Judge of the Alexandria Mixed Trial Courts. Article “ Du CaractSre National des Tribunaux Mixtes,” Livre dOr, p. 253.