« AnteriorContinuar »
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-poini 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 a 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;
Considering that since it has been shown that the convention excludes the mixed jurisdiction from the Soudan, it should be said that under the present state of affairs, on the one hand the mixed jurisdiction cannot proclaim its competence to judge a mixed process which arises in the Soudan, and, on the other hand, since the Soudan is independent from Egypt, the Egyptian Government has nothing to do with the present litigation, not having treated directly or indirectly with the claimants and it must be considered as having nothing to do with the case;
Considering that the losing party must bear the cost.
It is decided, after hearing both parties (without giving a decision concerning more detailed or contrary conclusions, except to reject them):
The Government of Egypt is out of the case.
And it is decided upon the evidence of the plaintiffs and the Government of Soudan that the Tribunal is incompetent.
The plaintiffs are condemned to the cost.
Decision given at the public session of the Mixed Tribunal of Cairo, reasoning on civil grounds, April 2, 1910.
Present: MM. Herzbruch, President; Rassim Bey, Eeman, Wierdels, Fuad Bey Gress, Judges; Rouchdi, Substitute; Konceqicz, Registrarclerk; Habib, Interpreter.
The President, (Signed) HERZBRUCH.
BOOK REVIEWS 1
A History of Canada, 1763-1812. By Sir Charles Prestwood Lucas. .
Oxford: Clarendon Press. 1909. pp. 360, (8 maps).
This new volume by the present Head of the Dominions Department of the British Colonial Office, who has recently been honored with a title in recognition of his long and meritorious services in the Colonial Office and his excellent literary and historical work, is to be read in connection with his previously published book on The Canadian War of 1812. The period covered by this new volume is that during which the relations of Great Britain, the United States and Canada were settled upon their present basis; Canada being left in such a position as to form a connecting link between Great Britain and the United States.
The author very properly considers the American Revolution as a part of the history of Canada and analyzes the causes which led the American Colonies to declare their independence. The four chapters (two-thirds of the book) which are given up to a consideration of the period from 1763 to 1783, are principally concerned with the Revolution. The last two chapters deal with the questions arising from the presence in Canada of a large French population living under feudal conditions, and predominating, in numbers at least, over a body of native-born British subjects, partly restless adventurers and partly peace-loving loyalists exiled from the United States,
The conclusion of the author regarding the Revolution is, that the American Colonies declared their independence without adequate cause. The Revolution was, in his opinion, simply an expression of their desire for independence, latent in their minds from the earliest times; this desire being increased by Great Britain's lack of system in dealing with them. The Colonies were, in his opinion, able to accomplish their desire because, when the test came, Great Britain, on account of its internal dissensions and the corruption in its administration, was unable to prevent them.
This judgment of the author is reached after an examination of only the social and economic causes of the Revolution. Holding these causes
1 The JOURNAL assumes no responsibility for the views expressed in signed Book Reviews. — J. B. S.
inadequate, he concludes that the case is made out against the Americans and that they revolted simply because they wished to revolt. The political causes of the Revolution he dismisses in the following language (1. 37) :
The constitutional question as to whether the Colonies were subject to the Parliament of the mother country or to the Crown alone may [for the purpose of determining what place the episode of the severance of the British North American colonies holds in the history of colonization] be omitted; for the story of the troubled years abundantly shows that theories would have slept, if certain practical difficulties had not called them into waking existence, and if lawyers had not been so much to the front, holding briefs on either side.
It is too frequently assumed, as the author assumes, that theories of political relationship are of no consequence, provided the actual political relationship existing between the parties is such that under it no severe social or economic oppression of one party by the other in fact exists. This assumption has often been made by states having colonies, and is still made, as the above quotation shows. But more and more it is becoming necessary to realize that the theories of political relationships are important. Less and less are civilised countries willing to recognize themselves as subject to the legally-unlimited will of an external power, however benevolently that absolute will may be exercised. The American Revolution was a great event in history because it was fought to establish a political theory. It is true, as the author says, that American lawyers were at the bottom of the Revolution, but they were great lawyers, and the universal sentiment of America and of the whole western hemisphere has approved their opinion. The following brief statement may perhaps serve to show their conclusions and the process by which they were reached: The attempted taxation of the Colonies by Acts of the British Parliament in 1764 was met by four objections; first, that such taxation was in violation of the fundamental compact, then assumed to exist, according to which Great Britain was obliged to protect the Colonies at its own expense in consideration of their giving Great Britain the right to monopolize their trade through reasonable regulations of trade made by the British Parliament and acquiesced in by the Colonial Legislatures; second, that inasmuch as the Colonies could not be fairly represented in Parliament on account of their distance from Great Britain, such taxation was opposed to the British Constitution; third, that such taxation was contrary to the colonial charters; and fourth, that it was contrary to "the inherent rights and liberties” of the Americans. In 1766,