for the State to provide the proper machinery for doing justice between man and man. It should be left to the interested parties to set that machinery in motion and keep it going till its work is done.

LEX.

IV. THE COURTS OF EGYPT, AND OF THE SUDAN.

THE

HE Musulman law in particular, and divers other elements, are common to Egypt and the Sudan; but, as the Courts of the two countries are entirely independent of one another, they must be treated separately.

THE COURTS OF EGYPT.

We will first review the Courts of Egypt, where the extraordinary complexity of the legal position arises in great part from the fact that it rests upon three several jurisdictions, each asserting in principle its own exclusive competence: these are the jurisdictions repectively exercised by (1) The Consular Courts; (2) The Mixed Tribunals; (3) The Native Tribunals, including for the present purpose the Mekhemehs, being the Musulman Religious Courts.

(1) The Consular Courts.

The Consular Courts, prior to the establishment of the Mixed Tribunals in 1876, exercised a very wide jurisdiction, both civil and criminal, in virtue of a series of treaties, commonly known as the Capitulations, commencing in the 16th century, and made between the Sublime Ottoman Porte and the several countries, whose subjects resided within, or for commerce and other lawful purposes, resorted to the dominions of the Porte.

Such Capitulations asserted, within those dominions, the same principle of privilege in favour of foreigners, as was

conceded also in other oriental countries, whose customs and laws were alien to western usages, and sense of security.

By the Capitulations foreigners were granted the right of exterritoriality, giving them immunity from the jurisdiction of the native tribunals, both civil and criminal, and rendering them subject only to the laws of their respective countries, as administered by their own Consular Courts, set up within the Ottoman dominions.

Japan has already made herself entirely free from the obligations of similar Capitulations, and in Egypt, on the civil side, the Consular jurisdiction has been very materially reduced by transferring to the Mixed Tribunals, as will be seen hereinafter, such civil matters as touch parties who are not all of the same nationality.

Formerly any civil suit between foreigners of different nationalities had to be entered in the forum of the defendant, that is, in his Consular Court; now such a suit is dealt with by the Mixed Tribunals. In criminal matters, except as to certain petty offences, and others specially prescribed in the Statute of Judicial Organisation, and as to offences against the Bankruptcy Laws, which have recently been brought within the jurisdiction of the Mixed Tribunals, foreigners remain triable only by their respective Consular judges.

For the present purpose we will only concern ourselves with the British Consular Courts in Egypt. They are regulated by the Ottoman Order in Council 1899 (and a supplementary Order of 1905), together with the Rules made thereunder.

As regards Egypt the limits of the Order are declared not to extend to any place south of the twenty-second parallel of North latitude, so as to exclude the Sudan. By the said Order there are constituted the Supreme Consular Court, and Provincial and Local Courts: the Supreme Court ordinarily sits at Constantinople, and one of the

judges, as occasion requires, usually about three times a year, holds assizes at Cairo and Alexandria: both in civil and criminal matters an appeal lies from an inferior Court to the Supreme Court, and from the latter to the Privy. Council, but, in a criminal case, only by leave of the Supreme Court.

A "Legal Practitioner " is defined to include barrister-atlaw, advocate, solicitor, writer to the signet, and any person possessing similar qualifications. The Supreme Court may make rules providing, amongst other things, for regulating the mode in which legal practitioners are to be admitted to practise in the Consular Courts, and for withdrawing the right to practise on grounds of misconduct, subject to appeal to His Majesty in Council.

Legal practitioners are generally styled advocates, and combine the work of barrister and solicitor. By the Supplementary Order of 1905 the Secretary of State may, from time to time, appoint a competent person to act as Crown Prosecutor in Egypt, the holder of the office not being precluded from private practice.

Subject to the provisions of the principal Order, the civil and criminal jurisdiction conferred thereby may be compendiously stated to be exerciseable, as far as circumstances admit, on the principles of, and in conformity with, the Common law, the doctrines of equity, and the Statute law, for the time being in force in and for England.

It may be noted, as indicative of the proper intent of the Order, that one express provision of real local importance declares that, if a British subject publicly derides, mocks, or insults any religion established, or observed, within the Ottoman Dominions, he shall be guilty of an offence, and, on conviction thereof, be liable to a fine not exceeding one hundred pounds, or to imprisonment for two years with or without a fine.

Perhaps the most important judgment recently recorded

in the Supreme Consular Court is that given on the 19th April, 1907, in the case of In the goods of William Torrey Grant, deecased. This case raised a point of law, which had from time to time been much discussed, but upon which no direct judicial decision had theretofore been pronounced, the question involved being as to the law applicable to the succession to the real estate, situate in Egypt, of the said deceased, who, having a Scotch domicil, died intestate, without issue, and unmarried.

As to domicil, it will be remembered that the case of Abd-ul-Messih v. Farra (L. R., 13 App. Cas. 431), in effect decided that it is impossible to acquire an Anglo-Egyptian domicil.

The question in the Grant Case arose out of an administration action, which was necessarily brought in the Mixed Tribunals, because under the Statute of Judicial Organisation establishing them, those Tribunals are declared to have jurisdiction in all actions relating to real rights over immoveable property between any persons, even persons belonging to the same nationality; but the Tribunals, following their usual practice, referred the question, so far as it related to personal status, to the determination of the British Consular Court.

It was argued that, by the terms of Art. 77 of the Mixed Civil Code, "Successions are regulated according to the laws of the nation to which the deceased belongs," the land was to be dealt with as if it were land descendible to the heir, to be ascertained according to the Scotch law, and that any other view would lead to a vicious circle, or renvoi of interpretation. The British Court in rejecting this argument, and declining to read into the said Article any words. of qualification, reasserted the well-known principle that, according to the law of England, it is the law of the country, in which land is situate, that regulates succession to it; therefore, as to the real property, the law to be applied, in

the case referred to the British Court, was the Musulman law of inheritance, as enforced in Egypt.

It seems remarkable that, although by the Imperial Rescript of the 18th June, 1867, foreigners were expressly allowed to hold land situate within the Ottoman Dominions (and in fact they had held land there under collusive titles prior to that date), the question decided in the case above mentioned had not come up before for judicial decision; but amongst foreigners (other than British and those of some of the United States), whose laws of succession recognise no difference between realty and personalty, the question would hardly be likely to arise.

(2) The Mixed Tribunals.

The Mixed Tribunals formally commenced their functions on the 1st February, 1876, as the outcome of an International Commission, consisting of delegates of the European Powers and of the United States, treating with the Government of Egypt, contracting autonomously, and for such a purpose free from the control of the Sublime Porte.

The United Kingdom gave its final adhesion by a convention, signed on the 31st July, 1875, by Sir Charles Cookson, H.B.M. Acting Consul-General, and Cherif Pacha, Minister of Justice of the Khedive.

The charter of the authority of the Mixed Tribunals is styled the "Statute of Judicial Organisation for Mixed Suits in Egypt," whereby it was declared that, for the space of five years from the said date of the installation of the Tribunals, that is, the 1st February, 1876, no change might be made in the adopted system. "After that time, if experience has not confirmed the practical usefulness of the judicial reform, it shall be open to the Powers, either to return to the old order of things, or to consider, in conjunction with the Egyptian Government, what other arrangements should be adopted."