The Origins of the Mixed Courts of Egypt Author(s): Mark S. W.

Hoyle Reviewed work(s): Source: Arab Law Quarterly, Vol. 1, No. 2 (Feb., 1986), pp. 220-230 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381481 . Accessed: 17/04/2012 21:46
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THE ORIGINS OF THE MIXED COURTS OF EGYPT

MarkS W Hayle
BA (Hons) PhD Barrister

INTRODUCTION

This ariicledealswiththe periodbeforethe MixedCourts began.It is concerned with showinghow the variousaspectsof Turkishsovereignty andforeigntreaties affected Egypt'slegal system, and with considering how the circumstances of Egypt before 1875gave rise to the need for the MixedCourts.The latterpart looks at progress towards reformof the old system,and the inauguration of the new courts. Egyptwas, from 1517to 1914)underthe legalsovereignty of the Ottoman Empire. Althoughthis sovereigntywas often nominal,especiallytowardsthe end of the nineteenth centuryafterthe BritishOccupation of 1882,it had a considerable effect on Egypt. It led to the extensionto Egypt of treaties,known as Capitulations,' between the OttomanEmpire and foreign Christianstates, and forced Egypt's leaders,in theirnegotationswith foreigncountries,to keep withinlits permitted by the Ottoman rulersin Constantinople. It alsogaveriseto the enforcement of some Turkish-based lawsin Egypt. We therefore startwith a descripiion of the Capitulaiions, leadingon to Turkish hrmans and laws. Then followsa look at the Laws and jurisdiction for commerce before1875, leadingto the necessityfor the MixedCourts,progress to reform,and the inauguration. The Capitulations It is convenient to considerthe Capitulaiions in two ways,fromthe Islamicand the commerclavlewpomts:
. . .

(a) TheIslamicuiewpoint; From the point of view of the Muslim, Islam was, and is, a way of life for the community of the faithfuln and non-Muslims, whetherforeigners or subjects,were allowedto follow their own laws in internalmatterssuch as personalstatus. Laws were viewedas essentially religious,and thus religionwas to determine which laws generallyappliedto adherentsof that faith.ZIt can also be said that non-Muslim
i Capitulations werenotone sidedagreements forced on an unwilling ruler.The worditselfstemsfrom the use of chapters (capitula) to set out terms,andis not used in the modernsenseof surrender. These treaties werebilateral md freelynegotiatedusually withtheaimof expanding tradebetween the Ortoman Empire and the European countries to the mutualbenefitof all signatory powers 2 Holt (ed.)) Political andSocial Charzge in ModonEgSypt (Anderson, Law reformin Egypt), 1968 London,OUP, p. 211.

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known as dhimmi,or, if Jews and Chnstians,ahl al-kitab(people of the subjects, weretreatedas partof the statebut allowedtheirown internallaws. Extending book), to set out theirsimilar it was practical who wereChristian, to foreigners principle this treaties.3 formal in rights of is thatin Muslimlegalsystemsthe ideaof the personality consideration A further or religious nationality, origin, the of nrtue by applied was Law important. thelawis ratherthan the jus civile. This may be of a person4;the jus gentium affiliation tribal There was tends towardsterritoriality. which approach Western the with contrasted to have foreigners allowing in Muslim a to objectionable or strange nothing therefore country. Muslim a in laws own to their recourse viewpoint: (b) Thecommercial point of view the Ottomanssaw tradeas essentialto economic Froma commercial progress, and reasoned that trading with foreign nations was desirable and werereluctant,however,to resideand workin the Foreignmerchants advantageous. that they would come to no harm. Empire1lnlessthey were given some guarantees formally.S beganas a meansto set out these guarantees The Capitulaiions generallyprovidedfor: In Turkeyitself the Capitulations l. Freedomof residenceand trade; 2. Freedomof religion; taxation; 3. Immunityfrom arbitrary in 4. Attendanceby the consul of the accused or the consul's representative courts; Ottomancrirziinal 5. Advice to the consul from the authorities before searching a foreigner's domicile. In Egypt, by markedcontrastto points 3 to 5 above, these privilegeswere: l. Freedomof residenceand trade; 2. Freedomof religion; 3. Immunityfrom all direct tax; over crimes by their nationals,and consularjurisdiction 4. Consularjurisdiction over civil cases where their nationalwas a defendant; 5. Freedomfrom domiciliarysearchunless the consulwas present. as custom,andonce in Egypthad beenallowedto developgradually The extensions of precedent,and basis the on entrenched became theserightshad been allowedthey babel. led to completejudicialchaos and
and LieSesny(eds.), Law in the MiddleEast, Vol. I, 1955, Washington,Middle East 3 Khadduri Institute,pp. 361-362. (ed.), Op. Cit., p. 309. 4 Khadduri cite the 1535 writers Various Capitulations. of the firstdatesfor modern reports 5 Thereareconflicting of Egypl, 1968, Yale, YUP, p. 3; Maakad, treatywith FrancisI of France Brinton, TheMixedCourts Courtof Appeal,p. 2. The latter 1922,Alexandria, surlesuridictionsMixtesdXEgypte, Notions Generales wereenteredintowithotherpowers18 iimesup to 1861.At the iime of the writerstatedthatCapitulaiions (1756),France(1740),Greece (1675),Belgium(1838),Denmark lasttreatythe Powerswere:GreatBritain (1855), Italy (1861) (with Sardinia,Tuscanyand Naples much earlier),Holland (1860), Norwayand (1761), Austris (1830), Russia(1783),Germany (1843), Spain(1782), America Sweden(1737),Portugal Law (BYIL), 1937,Vol. 18, p. 79. (1718Asee Bntsh YearBookof International Hungary

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forumrei meantthat any case, criminalor civil, was The principleactorsequitur fromtax law. Freedom to the defendant's consulaccording by the defendant's judged many of reluctance the of search(because andvirtualimmunityfrom domiciliary privileges foreigners gave to be presentwhen requestedby the authorities) consuls It must also be by the originalpartiesto the Capitulations. nevercontemplated soughtconsular readily who were often crmiinals that these foreigners remembered authorities.6 againstthe Egyptian proteciion and causedbitterresentment dangerous was economically Freedomfromtaxation could be made without the unanimous amongstEgypiians,but no irnprovement Powers,and this was difficultto obtain.Any one of of the Capitulatory agreement livedin Egypt.7 even if only a few of theirnationals themcouldveto a tax proposal, of proportion to taxa wealthy thusfounditselfpowerless government The Egyptian and its residents,unableto enforcecriminallaws againsta whole sectionof society, unableto securea just solutionto its own citizens'disputeswith foreigners. and laws firmans8 Turkish becamewiderin Egyptthanin Turkey, At the sametime as the rightsof foreigners Egypt'srulersa greater to permitting gradually the Ottomanrulerswereproceeding This was not a selilessexerciseof discretion.Egypt paid degreeof independence. Ali, in the firstof a and Mohamed tributefor these concessions heavilyin illcreased an Egyptian expand on his ambitionto had to acceptrestrictions seriesof firmans, Prussiaand Austria, by GreatBritain, empire.This was in 1841, afterintervention Russiato help the OttomanSultankeep his empireintact. to a solely Ali was restricted of 15 July 1840,Mohamed In the LondonConvention allowed was Egyptiansphere of influence.By the Treaty of London in 1841 he Following wereabolished. freedomwithinEgypt, but his statemonopolies financial dated 13 February 1841 firmans granted was he agreements international these of Egyptunderthe TurkishSultan,and the goverrunent him the hereditary allowing and Senaafor life.9 of Nubia, Kordofar rightto rule the provinces lawsof Turkeyshouldbe applied organic the that stated 1841 June 1 dated Afinnan localityand the principlesof the of requirements the with accordance in Egypt "in by the Empire,guaranteed the within place Egypt's define to seen was justice".This Russia.' and Prussia Austria, Britain, Great powers: fourinterventionist
in Egypt,1894,London,Ed. Arnold,pp. 4K50. England Midner, Vol. II, Egypt, Modern p. 59. Also,Cromer, 1921,London,Macmillan, Problem, Chirol,TheEgyptian 1974,London,AndreDeutsch, theEgyptians, Spoiling p. 427, andMarlowe, 1908,London,Macmillan, andthe British of taxingforeigners, wasin favour timesthatBritain statesseveral Ch. 10, whereMarlowe fromall directtaxes. for foreigners did not meanfreedom viewwas that the Capitulations government of a The recipient andEgypt'srulers. Sultan the Ottoman between charters werecontractual 8 Firrnans In 1879this led tO wascancelled. its terms,andif he failedto do so theJb7nlln wasboundto observe an see note 9 below. by the Sultan; deposition Ismail's (7CL), new Legislation of Comparanve ffournal of a Protectorate, The Declaration 9 See McIlwraith, of London:"If to the Convention the Memorandum senes, 1917,Vol. 17, pp. 238 et seq. Note especially of government on whichthe hereditary theconditions shouldinfringe Ali or anyof his successors Mohamed office". his of deprived be may on him, he Egyptis conferred p. 92. Francebecamea guarantor 1904,Paris,Calmann-Levy, d'Egypte, ' de Freycinet,La Quesnon thus with an armywhenrequired; Empire to assistthe Ottoman later.Note that Egypthadan obligation cit., p. 94. op. Freycinet, 1877-de Russia, in and 1854, Crimea, the in were troops Egyptian
6 7

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Clearlynot all Turkishlaws weresliitablefor Egypt, and over cheyearsmanywere not adopted,such as the OttomanLandCodes 1839and 1858;OttomanPenalCode 1840; ie OttomanCivil Code (Majella -1-Ahtam al-CAdlia) 187W1877.1l On the other hand cheOttomanLaw of Mines, 1869 was enforced,but this was one of the only laws to be directly accepted. Others were modifiedand used, and these are discussedbelow;for the momentit is usefulto considerthe effectof Turkishreforms. Egypt escapedthe implementation of these reforms,stg with the Tanzimat of Sultan Abdel Majedin 1839, but it cannot have escaped the generalmoderIiisiDg trend. The reasonsexpressedin the HattiSherif of Gulllane)1839, for encourapg Europeanculture, science and capital)as well as the need to strengthencentral government andbringthe law mto accordwith naiionalfeelingwereconsidered valid in Egyptalso. It was important to bothcollntriesto showthat theywereeachcapable of providing a safehavenfor foreigners andforeigncapital)anda slow progress began towardsreformin the laws.12 This progress was hampered m Egyptfor two reasons: the necessityto respectTurkishsovereignty and ffius not negoiiateopealy with the Capitulatory Powers)and the need to havethe llnanimous agreement of thosePowers for any reform. Egypt was helped by the Decree of Toleraiiotl, Hata Humayoun, of 1856. Paragraph 18 of this decree confirmedthe traditonal privilegesof non-Muslims in personal statusmatters,allowmgtheseto be sent for judgment to the religious leaders, heads of conllTunity) or consuIsof the relevantcommllniiies.l3 Withoutexpressly utilisingthe Decreen Egypt'srulersallowedthe senents statedin it to be echoedin Egypt. This was, of course,no morethanthe principlealready mentioned above,that non-Muslims were, logically,not subjectto Muslimlawin certaincases.In matters of personalstatusit was clearlylogicalthat a Muslimwas judgedby Muslimlaw, anda Christian or a Jew by his own laws. However,in mattersof commerce,loFc did not suggestthata MuslimmerchantXs affairsshouldbe judgedby a different lawfroma ChristiaD merchant's. In Turkeythe Sultanrealisedthat few foreigners would be contentto rely on the discretionof the Sultanto ensure justice, despite such safeguards as the Capitulatonsght appear to give. As a responseto this foreign reluctance,and to growinginternalpressurefor a fundamental reform in commerce, a Western-inspiredCommercialCode was promulgated for Turkeyin 1850(AH 1266). 14This lawwas designedto be appliedin commerce generally, regardless of natonalityor religion.It wasnot expressly adopted in Egypt. Severalother Turkishcodes followed:a Code of Commercial Procedure, 1861 (AH 1278), inspiredby the FrenchCodesand repealedm 1880 (AH 1297);a ManiimeCode, (AH 1280),inspiredby the Sarflinian, Sicilianand FrenchMariiime Codes;a Codeof CivilProcedurea 1880(AH 1297),whichwas Frenchinspired; anda Code of Crirninal Procedure,1879(AH 1296). None of these was adoptedin Egypt,
t1 Ziadeh,PropertLaw in theArabWorld, 1979,London,Graham & Trounan,p. 6; see Hooper,The Civil Law of Palesiine,1938, London,Sweet& Maxwell,Vol. I, for the Majellu. 12 See gen. Khadduri) op. cit., p. 284 (MardiIl). 13 Maakad, Op. Ctt., p. 3; see also Note, Lazv Quarterly Rew (LQR), 1929,Vol. 45, p. 501,on thesame point. The treatyitseis m Young,Cts & t On, 1w5, ord, Ciendon Press,Vol. II, p. 3. 14 Khadduri, Op. Ctt. pp. 28K289 (M=^): it is imphi tEs cie was Frenchbased.

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codes could be used in a all must have had the effect of shog how Western but objecton or difficulty. societywithoutfundamental Muslim for daily life was it Why, when the Shana is supposedto pronde a framework the excepeonof the to use Westerncodes?Two reasonsstandout. With necessary Code,l5Islc Civil the Ottoman of partsof the Shariain theMajells, codiScation Ratherthan ideas. were not seen at the iime as consistentwith modern pnnciples on the uniform was opinionin Turkey religious conservauve with theSharia, tamper saw Turks wasthatmodern-thinking codes.16 The secondreason of Western adopeon inspiring by capital codes as both a means to attractforeign trade and Western courtsandother in Turkeyin consular and, as judgedby theiroperaiion confidence framework. legal a clearmeansof settlingdisputeswithin as a reasonably setiings, society Muslim of an entryinto the oppoty had thus provided Capitulatons The Westernlaw and ideas.l7 of was thata few Ottomanlawsotherthan The resultso far as Egyptwas concerned rulesallowing Lawof Mines,mentonedabove,wereapplied.The 1867 Ottoman the of urbanland concentraiion some to of landwereaccepted,andled ownership foreign in Egyptm use for moded was PenalCodeof 1851 inforeignhands.The Ottoman Code. Penal and in 1863Egyptadoptedthe 1858Ottoman 1854, with the example use of Westernlawwhich,together indirect This meanta greater was to lead to an impetusin Egypthad of consularcourts applyingforeignlaw, basis. Foreignlawwasa toolof legalreformon a Western Egyptian towards progress of theforain whichit wasapplied, anddiversity It wasthe complexity modernisaiion. with that most Egypiiansdisagreed for jurisdiction, couns competing withconsular chaotic the pciples of law themselves.The and wantedto change, rather4{han from the diversityof natureof dispute settlementwas rightly seen as stemming junsdictlon. He wasfinallyachieved. Underthe ruleof Ismail,186>1879, thisdesireforreform make to and empire, Afncan an his country,to forge to modernise was deteed that to do all these thingshe had to providea realised He Europe. of Egypta part and naiivesinvolved. for the foreigners stableand just legal systemas protection Porte for a firman, Sublime Ismail'sfirst majormove was to negotiatewith the the basis of male on Egypt grantedon 27 May 1866, to allow the right to rule
of thescheme,rejected Pasha,in charge in civil confilsion legal for reason the that grounds the on Code of using de FrenchCivil suggestions for unsliitable were they because not out, set clearly were not was becauseHanafiteprinciples matters 1926; in repealed only was and 1877, and in 16partsbetween1870 waspublished TheMajelZa application. as Hooper,op. cit., see note 11above. Englishtranslaiion see Khaddun,Op. Cit., pp. 292-295(Onar); in of theSharia 149:this inapplicability p. EUPn Edinburgh, of Isl0tttC Law, 1964, Histo1y 16 Coulson, (Tr l Dereloprnent Petroleam In awards. arbitration in of discussion hasfoImai the subject manymatters d}e rejected no. 37, p. 144LordAsqliith,the arbitrator, Coast)LJd.v. ShaiAhof Ahs Dhabi (1951)18 ILR In Ruler of Qat4r instrument. commercial modern a regulating of capable not lawof Abu Dhabias Islamic statedthathe foundffielawcontained MarineOil Co. Ltd.( 1953)20 ILR 534thearbitrator v. Intnal in Saudi Arabia v. ArabianAmensan and queston, in the contract for interprenng principles insufficient and refereeheld that the conceptof oil arbitrators tYVO the 117 ILR 27 (1958) SA Oil Co. (Ara?nco) withworld together in theoil industry, custom lawandworld-wide in Islamic wasundeveloped concessions as settledtoday. means no by is view This decision. of means caselawanddoctrine,was the appropnate op. cit.> pp. 15a15 1. 17 Coulson,
15

pnnciples.Cevdet of Hanafite The Majelb wasa compilation

ORIGINS OF MIXED COURTS OF EGYPT

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primogeniture, ratherthan male seniorityin the familyas had been grantedin 1841. This cost a greatdeal of money, but allowedhim to consolidate his position.l8The firman alsoallowedIsmailto increasehis arrny,and awardmost statedecorations and titles himself.Taxes were still raisedin the OttomanSultan'sname, and the coinage was still Turkish, but for practicalpurposesIsmailhad actualcontrolof Egypt.l9 Negotiationsfor judicialreformwith the Capitulatory Powersbegan at once. In 1867 Ismailreceivedthe title of Khedive(Khedewi Misr)fromthe Sultan,and Egypt moved from a Pashalikto a Khediviate.He was remindedhoweverthat the 1841 firman appliedthe organiclaws of Turkey to Egypt, and that this meant he should bearin mind the generalprinciples of the HattiShenfof Gulhane,1839,guaranteeing life, propertyand honour to residentsof the Empire. There is nothing in fact to suggestthat he plannedto do otherwise,and this reminder seems to be a gestureof continued Turkishsovereignty. Nevertheless,Egypthadachieved internal autonomy. SomeEuropean powers,however,did not considerthatIsmailhadany authority to negotiatewith themoverjudicialreform.Whetherthis wasto delayhis reforms,or as a safeguard againstOttomandisapproval at a laterstage, is not clear, but to remove these objectionsNubar Pasha, his Minister,arranged for a firman to be issued on 8 June 1873 giving Egypt the explicit right to independent civil and fiIlancial administration, and the freedomto negotiatewith foreignpowersover commerce, customsand police matters. The resultof these negotiations, describedbrieflylater,wasto be nothingless tElan the inauguration of the Mixed Courtsin 1875, with the firstcasesheardin 1876. Egypt'srelations with Turkeyplayeda vitalpartin the originsof the MixedCourts. It was not only a question of the exampleof Turkish reforlils,but also of seeing Westernlawsin operation in the consular courts,and beingboundby the constraints of long-standing Ottomantreaiiesand usage.It is by viewingthe MixedCourtsin the contextof theiroriginsthat the full importance of theirlaterrole can be appreciated. The next stage of their origins is in the commercialcourts of Turkey and Egypt pre-1875 . Laws and jurisdictionfor commerce before 1875 What framework and law existed for the judgrnent of commercial disputes?Most commercewas in the hands of foreigners,20 and thus most commercialdisputes involved foreignersand their consuls. The latter consequentlydecided most of Egypt'scommercial litigation. If a foreignerwas a defendanthe had to be sued in his consularcourt, wherehis consulappliedhis country'slawto judgechedispute.Consulanddefendant wereseen by Egypiians,rightlyor wrongly,as being in collusion.If the consul'sdecisionwas appealedagainst,there was a new hearingwhich took placeoutside Egypt, e.g., to Constantinople for Great Britain, to Aix for France, to Anconafor Italy, and to
8 The Egyptiantribute to Turkey is said to have increasedfrom 400,000p.a. to 750,000 p.a.; Vatikiotis,History of Egypt, 1980,Weidenfeld & Nicolson,p. 75. 19 See gen. McIlwraith, JCL, 1917,Vol. 17, pp. 238 et seq. 20 In 1836 there were severalthousandforeigners in Egypt. By 1876 this figurewas 100,000 de Freycinet,op.cit.,p. 142.

Of course, the "Greeks" were the worse in exhibiting bias in consular jurisdiction (!!). Classic British targeting of the illegitimate Europeans, the upstarts intruding in the cozy family of superior peoples. Abysmal malevolence whose LAW QUARTERLY 226 consequences we live today. ARAB
lostin the consular meantthatevenif the foreigner This procedure forGreece. Athens at least outside (or country he could appealto anothercourt in his home court, courtin consular the in won staffedby his fellownationals.If the foreigner Egypt), a disas acted which appeal, the Egyptianpartywas faced with an overseas Egyp-t to sue at all. incentive for systemwas even moredisadvantageous workingthe consular In its day-to-day prejudice for reputation a thoseof Greece,had Manyconsuls,especially Egyptian. the It was jurisdictions.22 consular 15 separate with faced were bias2l andEgyptians and one from property to transfer nationaliiies of different forforeigndefendants common a in necessary was action meanta new anotherbecauseeachchangeof possession to court. consular new it againsta foreigner, judgment of getiinga favourable Addedto these difficulties could who people to executesuch a decisionbecausethe only almostimpossible was by any to upsettheirnationals as reluctant so werethe consuls,whoweregenerally do naiionals their against as theywereto give judgments of legaljudgments enforcement the firstplace. in Muslim or of consular protection led to Ottoman subjects, The adlrantages therefore and subjects, with consulsto be treatedas protected arranging Christian, consular whole The to clann the same privilegesthat foreignersenjoyed. eniitled Times The that and trade,so muchso was stiflingcommerce jurisdiction patchwork a with in pannership in 1870, on 12 February,"thatno wise Egyptianis declared nor acceptshis surety'. foreigner, of the rulerin auffiority intendedas a delegated originally jurisdiction, Consular in a foreignmonopoly statusmatters,had becomeso abusedthatit resulted personal that the system was equally overEgypean commerce.It should also be noted who sued anotherof a differentnationality. for a foreigner disadvantageous had whena foreigner Whathappened Suchwasthe schemefor foreigndefendants. vast of the This wasquitecommon,because government? adisputewith the Egyptian would court Egypiian no Esseniially, plansstartedby Egypt'srulers. modernisaton clauns, up took consuls the Thus Khedive. or the government the Egyptian condemn put them officiallyand with the force of their and dishonest, or absurd however for many out sCindemniiies positionto the Egyptianrulers.In this way Egyptpaid Ismailis merits.23 their on tested claims projects,and was unableto have worthless if a foreignconcession to havestatedbitterlythatit wouldcost hfin10,000 supposed fraud,andan deliberate of huntercaughta cold. Behindthis ironywas an indication of an award example the by of the validityof mostsuchclaimsis provided indication in placeof 1)000 of them, to of the MixedCourts,whentheseclaimsweretransferred a claimfor 30 millionfrancs.24 not thereforeexist in any Egypean jurisdiciionover commercialaffairs did was and diplomacy sense. Foreignlawswere appliedby foreignconsuls, reco3nised unsuccessful, some, were used to settle governmentdisputes. Despite this there
21 22 23 24

fairest. Milner,Op. Cit., pp. 49-50; the Bniish werethoughtthe Brinton,Op. cit., p. 6. p. 89. Egypt,1906,London,Heinemann, Ne2u de Guerville, Milner, Op Cit-, pP- 5F55

It's f**ing exactly so today.

ORIGINS OF MIXED COURTS OF EGYPT

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efforts to provide a courtforcommercial casesbetween foreigners andlocalsubjects. In Turkey "mixed" cases,between foreigners andnatives, weretriedeither in the ordinary Turkishcourtswith a consularrepresentative present,or by special commercial tribunals staffed by Turkish andforeign judges.25 Thisappears to have started in 1740,whenFrenchmen in dispute withnon-Frenchmen wereallowed, at theparties' option, to haveeither anOttoman judge ortheFrench ambassador decide thecase.26 Other"niixed" courtswereestablished in Turkey in 1820,by verbal agreement between France, England, Austna andRussia, forcasesbetween foreigners of these different Ilationalities. The defendant's consulcould choosetwo judgesand the plaintiffXs consulwouldchoosea third.The courts endedin 1864whenthe French court at Aixdeclared thattheywerenotobligatory forFrenchmen.27 It hasbeensaid thatthis typeof courtwasuselessbecause evidence wasgenerally ignored, lawyers werenot allowed andcasesfrequently adjourned formanyyears.28 Theobservation mayin facthaveapplied to allsuchcourts. Certainly, in 1847-1848 theTurkish court wasreorgaliised anda tribunal of 14 merchants, sevenTurkish andsevenforeign, underthe Presidency of the Turkish Minister of Commerce, wasset up. Thiswas reorganised in 1856and attempts made,underthe charter of HattiHumayounX to extend it to Egypt. Although the opposition of Said,the Egyptian Pasha, prevented the adoption of thisparticular framework, newplans wereproposed forEgypt in 1860to cover claims against the Egyptian ruler.Theywerenotwellreceived by theCapitulatory Powers, bothbecause French codesweresuggested fortheiruseandbecause theAppeal Court wasto beatConstantinople. It is notclear whether thesecourts wereactually setupor not29 butin 1861a newsystem of "mixed" courts wasarranged forEgypt.In Cairo andAlexandria a panelof leading foreign citizens wasto electjudges eachyear.The court wasto havefivejudges, twoforeign andtwonative, withanEgyptian President. Appeals fromCairowereto Alexandria, and vice versa,with the addition of four assessors to the fivejudges. Thelawsto be usedwerea rIiixture of theOttoman Codeof Commerce, customs of the country,a specialcode of procedure, and the FrenchCivilCodeif all else produced no answer.The courtswere not a success.Consular jurisdiction over foreignerswas paramount, and thus Egyptiansusually found themselvesas defendants in the new courts.Foreigners however hadno confiderlce in the courts because thejudges weregenerally notlegally qualified. It is alsothought thatanother planforcornmercial casesinvolved decisions by thePresident of theCustoms House, butthistoo wasnot a success.30 Thustherewasno uniform lawor junsdiciion in Egypt.Depending on theforum thelawmightbe anyof theconsular courts' law,although usually French, English, Greek or Italian etc., or a mLxture of custom andOttoman law.More oftenthannot
25 26 27 28 29 30

Brinton, op.cit.,p. 4, butno dates aregivenforthesecourts. Khadduri, Op. cit,,pp. 32F325. Brinton, op.cit.,p. 6. Elgood, Transit of Egypt, 1928,London, Ed.Arnold, p. 120. Brinton, op.cit.,p. 7. Ibid.,p. 8; Scott, LawAffecting Foreigners inEgypt, 19089 Ednburgh, W. Green & Sons,p. 203.

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was mostly futile. legal principlesand enforcement judgesdid not understand the was badly providedgreat benefitsto persistentclaimants,and reform Diplomacy needed. for the Mixed Courts Necessity thatfeelingin Egyptwaspoisedfor it is not surprising the abovebackground Against was obvious,but it wouldbe usefulat this chaosof the country The judicial reform. by the need for the new courts.The abuseof the Capitulations to sllmmarise stage and economic prevent to need the togetherwith privilegeand jurisdiction, consular aimsof the two in threeminimum resulted jurisdicton, that from stagnation financial Pasha.3lThey Nubar Minister reformers-the Khedive Ismail and his principal to ensure: wished ... what about governrnent; 1. Justicein claimsagainstthe Egyptian the all-suffering 2. Justicebetweenlitigantsof a differentnationality; localsactions. then?? government fromthe risk of arbitrary for foreigners 3. Protection to Reform Progress for Ismail, had to Pasha, in chargeof the Reform, as it becameknown, Nubar of a change.It is acceptance Powersto ensure with eachof the Capitulatory negotiate from 1867 to negotiations the scope of this study to considerin detail the beyond the support explain to useful he madeis of the progress but a briefconsideration 1873, of, the new courts. for,and laterorganisation Powerswere Austria,Belgium, The Capitulatory involved? were Whatcountries Holland, Italy, Norway, Denmark, France, Gerrnany,Great Britain, Greece, were whosesubjects The countries Russia,Spain,Swedenandthe USA.32 Portugal, were citizens their and in EgyptwereGreece,FranceandItaly,33 themostnumerous
connaitremon opinion sur la justice Nubar wrote, on 4 Sept. 1868, as follows: "Voulez-vous de Grece, justicedu Ciel. Le consulat la que Elle est aussijusteet aussiequitable en Egypte? consulaire par le tribunal Michelest represente L'archange Gabriel. l'archange de cour la Egypte, en represente, et saintPierre,ses clefsa la main, d'Angleterre au consulat est descendu d'Italie.SaintPaulen personne, en consulaire avoirde la justice peut-on idee haute plus Quelle de France. au consulat tientun lit de justice sa loi, sa a saints ces de et archanges ces de a toutcela;c'estque chacun Maisil y a un draw-back Egypte? pasqui le jugera, ne connait affaire, une entreprend qui diable, pauvre un comme Or, de proceder. maziere a saint avoiraffaire croyait se mettreen regle;il est appeledevantsaintPierre,lorsqu'il a tousles diables"; il ne peut jamais van see saintement envoye est il cela, et, malgre il a raison confondu: Paul;il est trouble, the of part describing 143, p. Perrin, Acad. Lib. Vol. II, (dateunknown), d'Egypte denBosch,VingtAnnees AbdinPalacearchives.
31

1926,p. 66: in 1874the figureswere: Livred'Or,Alexandria, GeImany 34,600 Greece Holland 17,000 France Spain 13,906 Italy Russia 6,300 Austria Belgium 6,000 England a totalof 40. and Switzerland Sweden,Denmark,USA, Portugal
33

32 Maakad,

op.

Cil.,

8-

1,100 220 150 127 110

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verymuchagainst the ideaof reform.34 The Greeks werevociferously opposed and wroteto theUnitedStates goverent to askits support in preveniing change. The British governrnent however wasrerymuchin favour, andthe American approach became oneof general support forchange. Despite theapproval of Great Britain andtheUnited States theFrench government wasadamant in its opposition. Indeed, it is dueto France thateveryscheme forthe newcourts wasrejected, rewritten anddiscussed again,ulltileventually Nubarand Ismail felt confident enough to go ahead without complete French approval. There wassomesupport in France fromthe Emperor Napoleon III, andfromde Lesseps whoknewEgyptwell. The German government wasenthusiasucally in favour) and thesmaller powers werewonoverby theprospect of having theirnaiionals chosen as judges. AftermoreFrenchdelayIsmailwentahead andinaugurated the courts on 28 June 1875,in the absenceof the French.Facedwith this movethe French Parliament, albeitreluctantly, agreed to the Reform. Before final acceptance by the countriesconcerned, the new courts, their jurisdiction and laws, had to be discussed and agreed.On 28 October1869an International Cossion was arranged in Cairo,underNubar's presidency, with delegates fromAustria, Germany, Great Britain) Italy,Russiav France andAmerica. It hadninemeetings to 5 January 1870,andconsidered m detail Nubar's planfor reformh Thisplanwasfarreaching andproposed widejurisdiciion overallcommercial and crnal matters.This wouldhave left only personal statusmatters for the consular courts andtheforeign commumties in Egypt ediately opposed theplans. Asa result theFrench wereableto havetheoriginal scheme withdrawn anda newset of proposals hadto be considered. There wasthena delayof twoyears during theFranco-Prussian war,andthisgave theTurkish Sultan timeto oppose theindependent linetaken by Egypt. Nubar thus hadto diverthis attention to aITanging the 1873 firman fromthe Ottoman Sultan) whichgave Egyptgreatercontrolover negoiiaiions. Discussions, to placatethe Sultan, wereresumed in Constantinople rather thanCairo. During thesenewdiscussions theproposed cal ju isdiction of thecourts was gradually wittled away to negligible points,andwideamendments weremadeto the civilandcommercial proposals. A secondinternaiional coission sat at Cairo in January 1873to consider the newer scheme, andin February 1873 a framework andsetof lawswereapproved byit forforwarding to theCapitulatory Powers. It is hard to overemphasise thedifficuliies thatNubar andIsmail faced,especially against theentrenched opposiiion of France and mostforeignresidents. The latterviewedthe Reform as a lessening of their power, rather thangoodprogress, andNubar alsohadto allay Turkish fears.Nevertheless he succeeded andthee between 1873andJlme1875wasspentmostly in arranging praciical matters suchas thesigning of treaiies) appointment of judges and staff)andthe selection of sliitable buildings. Theeventual jurisdiciion of thecourts, andtheirlawsandorganisationn is dealtwithin a Iater ariicle.
34 This is based on the records described by the 1926Procureur-General, Baron von den Bosch,in Livre d>Or, opt cit., pp. 481495; also see ibid. an ariicleby Brinton,pp. 73 82

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mauguration The at to Sir HenryElliott, HM Ambassador wrote Pasha Ismail 1871 September 24 On as follows: Constanople, great service, to
examplenand render judicial reixlll in Egypt, I give an introducing By populaiion.35 interested in the well beiIlg of the those all a very

accepted The idea of the courts had been Thisspirit pervadedthe Reform. inauguraiion to the of Egyptwerelookingforward andby 1875observers a gradually, by all accounts was It Alexandria.36 el-Tinin The thenew courtsat the Palaceof Ras of courts. workingof the dignified daynand set the scenefor the later magnificent madea shortspeech: Khedive
inauguratethe of the Powers) I have been able to the aid of the Sultan, and the support eniinent and With many I rejoiee to see around me so jusiice. reform and install the new tribunals. judieial administering of confidence, the task judges to whom I reniit, with every obtain thus honourable will decisions your perfeet seeurity, and wisdom your in find will as the interests All will be marked in Egyptian history and respeet. This day, gentlemen, of our future obedienee the us I am persuadedthat of a new era of civilisation. God aiding eommeneement work is assured.37 great

of Justice, opened the courts then ister In January1876 Riaz Pasha, the 1876. The reform had been and cases were heard on 1 February the moneyspenton arrangsg themselves, but at a greatcost. It has been saidthat accomplished, This was in fact the Egypiian gold francs.38 the refoul came to over 2,500 million the the MixedCourtsdid prove to be at the time.39Expensiveas they were, debt deposed been had who for Egypt,andin 1880Ismail, baseof futureprosperity sound wroteto the Sultan: witha firtnan, Sultanin 1879for non-compliance the Ottoman by
sa Reforme chez elle, apres de longues resistances, jusiice dans Sousmon regne l'Egypte a inaugure bonne d'une les moyens d'etablir l'harmonie l'avenir, pour prepare7 a qlii Judiciaire l'Onent et de l'Occident.40 contactndes deus Civilisaiions de le

of the his assessment in his statementsn he was perhapsa little premature Though was to be provedcorrect. future

(Austrian), Trans.,see Lisred'Or,p. 7. judgesis givenon thatdatLapenna 22 June1875;a list of Courtof AppealScott(Bnesh). 36 TheTirnes, (Italy),Koumsni(Russian), (USA),Giacone Bger 29 June 1875. p. 473, and TheTimes Livred'Or, 37 Trans.,officialproces-uerbal, Pangalo). Leon by in d'Or,p. 71 (review38 Livre some in bnbes to variouspeople went to the OttomanSultan, and8,000in Consols to Crabites, according 39 Most of this money received ambassador, e RussiaD to Gen.Ignatiev, Constantinople. and the samesourcedetailsotherpayments Khedive,1933, London,Routledge,and in Europe.Crabites, ill the MiJced judge a IsmsiltheMaligned there capital,and to newspapers in the Ottoman officials Archisesat the AbdinPalace,Cairo. Royal the from figures these Courts,obtained La Refonne,p. 215. 1945,Alexandria, la Reforme, duffournsl d2Or 40 Livre
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