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The Mixed Courts of Egypt

ISSUE:  Autumn 1928

When King Fuad Al Awal, the successor of the Pharoahs, declared on November 17, 1927, that Europe now looks with favor upon extending to criminal matters the competence of the Mixed Tribunals of Egypt, His Majesty paid the highest possible tribute to the memory of his distinguished father. The name of Ismail was not mentioned. Nothing was said of the genesis of these International Courts. Yet those who are acquainted with the origin of this judicial body know that the Khedive proposed over fifty years ago what the Occident is now apparently prepared to accept, in principle, as the most practical solution of a tantalizing problem. I do not know just how the jurist of the West will be able to evolve a code of penal laws, which will satisfy the Egyptians, the Continental nations and the Anglo-Saxon world. That phase of the matter, difficult though it may. be, is still in the womb of time. As things now stand a conference of the Capitulatory Powers will shortly be held at Cairo to pay the greatest of tributes to the work of a Moslem sovereign and of his Armenian Minister of Justice, Nubar Pasha.

The fiftieth Anniversary of these Tribunals was celebrated with great solemnity in February, 1926. No one then foresaw that an extension of their attributes would be proposed within less than two years. It was an atrocious murder that brought about this sudden change. One morning in the winter of 1926-1927 Cairo learned, as it sipped its early coffee, that robbers had, during the night, entered the palatial Pyramids-road home of Mr. and Mrs. Solomon Cicurel, chloroformed both husband and wife.

hacked the former to death and made away, with their jewelry. The afternoon papers announced that Mrs. Cic-urel had recognized the murderers and that four men had I been arrested for the crime. One of them was the Italian chauffeur of the victim. His accomplices were an Italian, a Greek, and a local Jew. In a word there was not an Egyptian in the bloodthirsty, quartette.

If this deed had been perpetrated in Europe or America the nationality of these men would have been of no import. They would have been arrested by the local police, tried by the local courts and if convicted, dealt with by the local executive power. But Egypt is a Capitulatory country. This means that it knows nought of “territorial law.” It is ruled by “personal law.” In other words, the principle of extra-territoriality obtains in the Nile Valley. This is another way of saying that in Egypt foreigners are not amenable to the local authorities. They are answerable to their Consuls and to no one else. It, therefore, follows that if an American runs amuck in Cairo he cannot be held under arrest by Egyptian constables. On the contrary, by, a fiction of the law, he is presumed to be in the United States and it is our Consular Court that deals with him. As a result of these conditions the two Italians were turned over to the House of Savoy, and the Greek to those who have displaced King Constantine’s dynasty. The local Jew remained in Egyptian hands, although he did his utmost to attempt to prove that he was a Hellene. The Latin twain were shipped to Ancona, Italy, and tried according to the rules and practices there obtaining. One was found guilty of murder in the first degree and sentenced to solitary confinement for life, the maximum penalty sanctioned by the Quirinale. His fellow countryman got off with a lighter penalty. The Greek played in great luck. His jury gave him an almost insignificant chastisement. The fourth man—who had probably foreseen what was likely to happen to the Venezelist —was condemned to death. It was this inequality that outraged Egypt and that set in motion the movement for judicial reform.

Before the Mixed Courts were created a similar pandemonium reigned as regards civil matters. In those days if a Dutchman had a claim against a Portuguese, or an American against a Dane, suit had to be brought in the first case before the Portuguese Consul and in the latter hypothesis before the Danish authorities. The result was that business was seriously hampered. This does not imply that Lisbon and Copeniiagen would have dealt unfairly with the stranger. Their laws, however, were unknown to the Hollander and to the citizen of the United States. The result was that rather than submit their claims to the arbitrament of statutes and procedure which were closed books to them, credit was never given. This worked out fairly well as long as men from abroad kept out of the Delta. When, however, the opening of the Suez Canal and the wide-awake statesmanship of Ismail, the Magnificent, called the attention of the world to the incomparable fertility of the sun-kissed soil of the Ptolemies, such archaic methods had to go by the boards. And, besides, European diplomacy in those days blackmailed the Khedive to an extent that seems to me to be almost unbelievable. The great object of the adventurers of the sixties and seventies of the last century appeared to be to wiggle a contract out of the Egyptian Government, sit still, do nothing, look around for an opportunity to demand colossal damages for an infringement of the concession, interest a European chancery in backing up the fictitious claim by a threat of bombardment and then grow rich—and respectable—out of the blood money extorted from the Moslem ruler. It is said that on one occasion, when a certain Consul General presented a distinguished visitor to His Highness, the Khedive turned to one of his aides and said: “Have this window closed at once. My guest may catch cold and then every time he sneezes I shall have to pay him a thousand pounds.” These conditions, business anarchy and diplomatic free-booting, caused Nubar Pasha, the able Minister of Justice of the Egyptian sovereign, to look around for a remedy. He elaborated the device now known as the Mixed Courts of Egypt. He proposed that they should be competent not only to try all civil and commercial actions brought by a foreigner against an Egyptian, by an Egyptian against a foreigner, or by, a foreigner against another foreigner of a different nationality, but also that that jurisdiction should extend to claims by foreigners against the Egyptian Government. And he proposed that each of the fourteen Capitulatory Powers and Egypt should be given representation on this bench. This means that he offered billets to England, France, Spain, Portugal, Belgium, Holland, Norway, Sweden, Denmark, Germany, Austria-Hungary, Italy, Russia and the United States. Ismail saw the wisdom of the plan. He did not hesitate to make his state amenable to these Courts. Lie threw into the adoption of the proposition the full force of his magnetic personality. His persistence and his statesmanship carried the day. The judicial system which his courage made possible won the confidence of Pasha and Fellah. And among the earlier cases submitted to it was one against His Highness himself. Judgment went against the Khedive for a fairly stiff sum. Lie had no cash. He had no property—his wealth was gone. He could not pay. Europe said to him. “Here is a certified copy of the decree which has been handed down against you. Pay or abdicate.” He could not fulfil the first alternative. The second followed. And thus it came to pass that Ismail was smitten by the hand in which he had placed transcendent power and which he had almost compelled Europe to recognize.

As things stand today, the Mixed Tribunals remain practically as they were when first created. Their keystone stood the test of time and of contending interests. There is a radical difference between their underlying principle and that which obtains at the Hague. In the Dutch capital some of the judges who may make up the bench have a part to play which I have never been able to understand. In writing these lines I in no sense question the impeccable purity’ of motive of the distinguished jurists who sit on that august body. But just as I was born without a sense for mechanics so have I reached my present age without possessing that special faculty which one should have in order to follow the internal economy of that institution to which Senator Borah and Reed of Missouri have sworn implacable hatred. I shall use two concrete illustrations to point out what is in the back of my mind.

One of the judges who sits in the Carnegie Hall is my former Danish Colleague, Judge Nyholm, who, at the time of his transfer was the President of the Cairo Mixed Tribunal. I follow—or think I do—exactly what his duties are. They are those of a judge, that is to say, to pass upon, with impartiality, such questions as may be within the competence of his great Court. I have another friend, who from time to time, is called upon to fill a seat on this self-same bench. I refer to Megalos Caloyanni, who for many years was a valued member of the Egyptian Native Court of Appeals. Mr. Justice Caloyanni is a Greek. Greece has no “permanent” representative on the World Court, or to be, perhaps, more accurate, there is no Greek who is, like Judge Nyholm, a “permanent” member of the Hague Tribunal. But the constitution of this judicial system provides that whenever a “nonrepresented” national or nation has a case before the League of Nation’s offspring, a “temporary” Judge of the “nonrepresented” people must be “temporarily” elevated to form part of the bench which hears the specific case affecting his flag or fellow citizen. Frankly, I fail to follow the wisdom of this practice. Mr. Justice Caloyanni is a man of moral courage, learning, and industry. He has always done his duty. But i do not fathom what can be his exact office in a Court whose impartiality, enlightenment and assiduity require no extraneous aid to assist it in the performance of its task. We in Egypt know nought of this introduction of a special judge into our council chamber. And therein lies the secret of our survival and of our growing influence.

When the Mixed Tribunals were in their infancy, one of our Presidents sent out to Alexandria a distinguished American who had been a dashing soldier and who was, therefore, presumed to be learned in the law. As soon as our compatriot had paid his official visits upon the Egyptian and foreign ministers and upon his colleagues, he was supposed to be duly inducted into office. But he showed an abiding reluctance to work. Having finished those calls required by the protocol, he spent most of his time making others which were prompted by his thirst. In those days cases were few and far between and no one really cared whether our judge worked or did not. But one morning la grippe struck Egypt’s great seaport and the American was needed to make up a quorum. The President, therefore, ordered that the new man be requested to answer roll call. The clerks knew where to find him. He came. Before putting on his robes of office, however, he asked that the docket be shown him. He ran his eyes over it. He saw Greek, Italian, and French and Egyptian names, but nothing that had an English turn to it. He, therefore, pressed forward to the private office of the Chief Judge and said: “I am here in reply to your summons. There must be a mistake. There is not an American case fixed for today.” When the presiding officer replied that the Mixed Courts knew nothing of “American cases” or “English cases” or “Egyptian cases” and that all judges were competent to hear any “Mixed case” the irate Yankee shouted: “This is a trick. It is done to break the Monroe Doctrine. No, I won’t fall for it. I fought to put down the Rebellion and I’ll fight again to defend the Monroe Doctrine. No, I won’t sit unless and until you have an American case.” And he did not. Court had to adjourn for the day. Needless to say that this ultra-patriotic American was not allowed to remain very long in Egypt.

But he had a World Court slant to his mind. He wore Hague lenses. And the error into which he fell emphasizes the outstanding merit of the Ismail creation. The judges who sit in his land cease to be standard bearers when they bedeck themselves in their official Stambouline, Tarbouche, scarf and medallion. In Cairo our benches are made up of three judges: two foreigners and an Egyptian. I presided over one of these chambers last year. My European colleague was a Dane. We heard several hundred cases. I doubt seriously whether in one tenth of one per cent of these cases there was an American or a Scandinavian interest. Next year, I shall sit with a Frenchman and, of course, with an Egyptian. Here the proportion of Gallic suits will probably run higher. But we shall hear them with utter disregard to the nationality of the parties. Each division has its allotted speciality. The controversies are parceled out according to a prearranged system. We have our own codes, and after fifty-two years of existence, our own jurisprudence. And we have evolved what I may be permitted to call a “Mixed Court” mentality.

We bear, all of us, the imprint of our origin. We have four judicial languages: French, Arabic, English, and Italian. All pleadings are filed in French, all arguments are carried on in French, all deliberations take place in French, and all judgments are handed down in French. And we all speak a “patriotic” version of the tongue of Voltaire. Each man has his own imported accent, idioms, and intellectual mannerisms. But in time, those of us who are not French, Belgian, or Swiss—there are now two Helvetic judges—learn to speak and to write “Mixed Court” French with ease, volubility, and sufficient clearness to drive home our meaning. We become blended, I shall not say into a horizon blue, a forest green, or a dissolving gray, but rather into a composite whole, all pulling together, all striving to be fair and just and all seeking to understand one another—and the cases before us. There is, in the real sense of the word, no impact of conflicting civilizations, no race for supremacy, no fibre-destroying rivalry. There is a judicial calm that is refreshing, stimulating, and hopeful.

And there is no mystery about this phenomenon. We are not “temporary” judges—I am using a term to which the Hague lends glory, but which I do not understand. We are “permanent” judges whose province is to pass upon current litigation of a character which escapes from the turmoil of landgrabbing, treaty-breaking and concession-hunting interests. Those stalwart men who laid the foundation of the greatness of the Mixed Tribunals recognized, years ago, that if any one nationality were to attempt to annex, as it were, the new system, the result would have been chaos. They worked out this idea of a “Mixed Court” point of view. It was their common sense that won the day. As things now stand Sir Maurice Amos, a former Judicial Adviser to the Egyptian Government, was right when he said that “with the sole exception of the Roman Catholic Church the Mixed Tribunals of Egypt constitute the greatest international organism in the world.” This outstanding position has been won by the judicial system as now existing. As to whether it can or cannot safely be extended to cover criminal jurisdiction is a matter upon which the diplomacy of the world will shortly be called upon to give its opinion. But time alone will tell whether a code of penal laws approved by the assembled wisdom of Egypt and of the Occident will, in its practical operation, be able to create a “Mixed Tribunal” criminal-case mentality and steer clear of those difficulties which a purely civil and commercial court has been able to surmount.


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