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Considering that the Government of the Soudan refuses to entertain the competence of the mixed jurisdiction because, in the first place, such jurisdiction does not extend to the territory constituting the Soudan and in the second place the convention of the 19th of January, 1899, has established in the conquered territory of the Soudan a "condominium ” forming in reality a government which, although emanating from the British power as well as from the authority of the Khedive, legislates, administrates and judges in an absolutely independent fashion; has a double flag, distinct from the Egyptian flag which alone has no authority; Considering that, from this defense of the two Governments, which take their arguments from the same source, the two following questions may be raised:

1. What was the territorial extent of the mixed jurisdiction during the period preceding the convention of 1899?

2. What is the situation created by the said convention? Concerning the first question:

Considering that the Egyptian Government and the Government of the Soudan maintain that, by Article 4 of the Supplementary and Transient Provisions for the execution of the Regulation of Judicial Organization and Table II annexed to said Provisions, the territorial bounds of the Tribunal of Cairo include Upper Egypt up to and comprising Assouan, and excluding therefore the parts beyond;

Considering that it may, nevertheless, be remarked that the Decree of the 17th of November, 1881, issued by the Egyptian Government, formally provided that all the laws and decrees promulgated by the Khedival Government are to be executed throughout all the territory of the country and comprised the Soudan and other dependant countries of Egypt;

Considering that it therefore appears incontrovertible that this Decree, which fixes the extent of the territory of Egypt, carries with it the application "ratione loci " to all the Egyptian and foreign administrative and judicial authorities within the limits of the competence vested in them by the laws in force;

Considering that, concerning the Reform Courts, Article I of the Mixed Civil Code provides that: "The laws comprising the present Codes are executable throughout Egyptian territory;"

That, since that time it is needless to say that the Soudan, a dependancy of Egypt and an integral part of it, is subject to the mixed jurisdiction within the limits of its competence, inasmuch as it is regulated by the provisions of Article 9, and in accordance with the Regulation of Judicial Organization.

Considering further that it could not be otherwise without reversing the fundamental principle of the judicial reform which must necessarily be substituted and is in fact substituted as a new jurisdiction over the old throughout the Egyptian territory for the mixed proceedings conducted under the consular jurisdiction and for the others vested in it;

Considering that it is also in this sense that the jurisprudence of the Court of Appeal was given in the decisions of the 10th of January, 1878 and 31st January, 1901;

In the former decision the Court said:

Considering that objection might be made unavailingly that the territorial bounds determining the jurisdiction of the Reform shall be settled by Table II, annexed to the Transitory and Supplementary Provisions, published in the year 1876, after which the territorial extent of the Tribunal of Cairo, extending to Assouan, does not include the city of Khartum, seeing that the provisions of this regulation are merely supplementary to the execution of the Regulation of the Judicial Organization; that consequently the aim of this Regulation was not and could not be to detract from the provisions of the said Regulation but rather to classify the different cities of Egypt within a determined limit.

Considering that since then the city of Khartum, being within a territory forming the prolongation of Upper-Egypt, the affairs of which have been submitted to the Tribunal of Cairo, the Tribunal of Cairo was competent to take cognizance of the litigation.

In the second decision the Court said:

Considering that there is no occasion to ascertain the ownership or administration of the Soudan subsequent to the 19th of January, 1899, it is clear that upon the date when the facts to which objection is made took place that is in. December, 1898, the Soudan was an integral part of Egypt and all its civil or military officials without exception who exercised any authority there whatever were appointed by the Egyptian Government and were entirely dependent upon that Government;

The action has been, therefore, competently taken before the Mixed Tribunal of Cairo.

Considering that it is true that, by the decision of January 10, 1889, the Court decided in another sense, it may be observed that the question submitted to the Court in that case was to ascertain whether a sheriff of the Mixed Tribunal could properly serve a summons at Massaouah upon Aly el Roubi, former general of the Egyptian army residing in the said city, at that time occupied by the military and administrative forces of a foreign power, and that it had responded negatively to the inquiry, basing the reasoning upon Table II without in any way considering the question of the competence of the Mixed Tribunal to pass upon past events in Egyptian Soudan.

Considering, under these circumstances, that this decision does not settle the question under examination, it should not be cited in connection with the two decisions above quoted in favor of the contention of the defense;

Considering that, furthermore, as regards mortgages, the competence of the Mixed Court of Cairo has been recognized as to transfers of property in the Soudan, contracts of sale and mortgages having always been registered and recorded upon request of the interested parties by the registrar's office of the Mixed Tribunal of Cairo, without any difficulty at all up to 1899, and that it is only since the convention of January 19, 1899, that notice was given, through the Egyptian Minister of Justice, to the Court relative to the boundaries recognized by the Government to the mixed jurisdiction debarring Soudan, notice of which the Court has taken cognizance in advising this Tribunal that hereafter the records and registrations shall not be made except at the risk and hazard of the interested parties, one must hold without hesitation that the mixed jurisdiction prior to the convention of January 19, 1899, extended throughout the territory of Egypt and comprised the Soudan.

Concerning the second question:

Considering that the Convention of the 19th January, 1899, provides by Article 8 that the mixed jurisdiction does not extend to the Soudan, and that the supplementary convention of the 10th of July, 1899, applies that provision to the city of Souakim which had been before that reserved;

Considering that it should, nevertheless, be said that one must not detach that provision of the convention, considering it by itself, and setting it aside as contrary to the international treaties which created the reform tribunals;

That, on the contrary, it is necessary to consider the convention in its entirety and, in order to appreciate its value and intent, to review all the facts and causes which preceded it and gave rise to it;

Considering that it is a historic fact that, after the insurrection of the Mahdistes and the coming into power of the Mahdi, the Soudan had to be abandoned in fact by Egypt and that afterwards, in the meeting of the Council of Ministers under date of the 26 April, 1888 (corresponding to the 13 Chanban 1305- see compilation of Official Documents, 1888, p. 425) it was decided that the Mouderieh of the frontier of which the seat is at Assouan should be bounded on the south by the WadiHalfa district;

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Considering that one is then constrained to conclude that Egypt in thus fixing its southern frontier deemed the Provinces of Soudan as temporarily lost and separated from Egypt, without however abandoning them definitely but awaiting a propitious moment to recover them;

Considering that it therefore appears that one must admit as a resultant consequence that by force of circumstances the mixed jurisdiction of the Soudan has been suspended and should revive "ipso juri" at the moment when by reconquest the Soudan should have become once more, as it was previously, an integral part of Egypt.

Considering that since such reconquest did in fact take place ten years later, but not by Egypt alone but by the united military and financial forces of the Khedive and of the British Government, it follows that Great Britain today has a title not only as the Power in occupation of Egypt but over and above that, according to the law of nations, the right acquired by conquest which gives it the same title as Egypt.

Considering that, therefore, it should not be overlooked that the situation of the Soudan vis-a-vis with Egypt is not the same since the reconquest as it was before;

That in fact the Soudan did not revert to Egypt free from all burdens, but was encumbered with the rights of conquest accruing to the conqueror, Great Britain, who assisted in the success in large measure and can claim compensation on its own account;

Considering that this right of conquest has been precisely regulated in international agreements between the conquering powers;

Considering that it is only necessary to read the several articles which comprise the convention in order to see what the agreement provides for the future administration of the Soudan, reconquered and again submissive, and the conditions of such administration;

That an actual "condominium" was agreed upon for the benefit of the conquering states;

That so to speak a new state, distinct and separate from Egypt, has been created, which has the right of administering and legislating and judging;

That Article 2 provides that the British and Egyptian flags shall together float over the Soudan which clearly indicates that the Egyptian flag alone has no authority there;

That a special customs tariff regulating the importation of merchandise not only from foreign countries but even from Egypt has been established; Considering that it is then manifest that the convention under con

sideration is an act of sovereignty emanating not only from the sovereign power of Egypt but also from that of Great Britain;

Considering that the convention therefore comes within the provisions of Article II, paragraph 2 of the Judicial Rules of Organization which read:

Reform tribunals cannot take any cognizance of acts of sovereignty, nor of any measures of the Government in execution and conformity with the laws and regulations of public administration;

Considering that it seems therefore difficult to follow the defendants upon the ground which they have taken in claiming that the Mixed Tribunals can apply, in the exercise of their functions against foreigners, only the laws which have been approved and sanctioned by the powers;

Considering that in fact even if this view-point were correct, in dealing with a modification of the provisions of the codes submitted to and accepted by the powers who have adhered to the reform, it is not a matter to consider in the present case, where the question is purely political and has been regulated between the two powers who united in the reconquest of the Soudan;

Considering that, such being the case, it must be admitted that only the interested powers, whether the powers which have adhered to the reform, or the Sublime Porte as the sovereign state, are qualified to criticize, reject or accept the convention;

Considering that the Tribunals of the Reform are not competent to substitute themselves for the powers in order to do so, when it is taken into account that they exist through the will of the powers and receive their authority from the sovereign of Egypt;

Considering that the judicial authority need not then investigate whether the convention fixing the right of conquest is not legally circumscribed, in a just and equitable way, and it need not concern itself whether the powers have acquiesced in that convention or whether, in the absence of a formal adhesion, the questions dealt with in the convention are, until further orders, suspended so far as concerns the powers interested therein;

Considering that it follows that the judicial authority must respect the convention and the decision, if not before citation of law at least • before a citation of fact, the said convention having actually been put into execution;

It only remains to consider the contents of the convention and to draw therefrom the effect upon the question before us;

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