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the powers agreed to its application, any provision or declaration to which can be ascribed the effect of depriving a Power of the right of preferring against Egypt the kinds of diplomatic reclamations which under international law they are entitled to make against any other Nation. British and Foreign State Papers, 1874-1875, Vol. LXVI, pp. 106-112, 592. I think it may be assumed that, had the Powers desired to enter into stipulations creating such an unusual legal situation, explicit language would have been used for such a purpose.
It is interesting and pertinent to take note of the conditions under which the United States accepted the jurisdiction of the Mixed Courts. It was done pursuant to an Act of Congress of March 23, 1874, 18 Stat., 23. The law authorized the suspension of extraterritorial jurisdiction by the President whenever he might "receive satisfactory information that the Ottoman government, or that of Egypt" had organized "other tribunals" on a basis likely to secure to citizens of the United States the impartial justice administered by the extraterritorial courts. (Italics inserted). The Government of the United States did not by action taken conformably to this law participate in the creation of tribunals having the peculiar characteristics attributed to them by my associates. I fail to perceive how it can properly be said that any other Government did any such thing.
In construing provisions of a Treaty between Spain and the United States, Mr. Justice Story, of the Supreme Court of the United States, in the case of The Amiable Isabella, 6 Wheaton (U.S.) 1, 71-72, said:
"In the first place, this court does not possess any treaty-making power. That power belongs by the constitution to another department of the government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty.
"In the next place, this court is bound to give effect to the stipulations of the treaty in the manner and to the extent which the parties have declared, and not otherwise."
In the British Counter Case in the Alaskan Boundary Arbitration under the Treaty of January 24, 1903, between the United States and Great Britain, it was said:
"It is respectfully submitted on behalf of Great Britain that the function of the Tribunal is to interpret the Articles of the Convention by ascertaining the intention and meaning thereof, and not to re-cast it." Published in the American print, Vol. IV, p. 6.
In Lake County v. Rollins, 130 U.S. 662, 670, the Supreme Court of the United States, in dealing with the interpretation of provisions of the constitution of one of the states of the Union, said:
"We are unable to adopt the constructive interpolations ingeniously offered by counsel for defendant in error.'
I am of the opinion that what I have referred to as a judicial rewriting of international covenants is contrary to established principles of interpretation.
I think that the following passage from Judge Brinton's book bears interestingly on the point whether the Mixed Courts may be considered to be international tribunals:
It was an Egyptian statesman, supported by an Egyptian ruler, who called them into being. They form an integral part of the Egyptian judicial system. They are maintained by the national treasury. Their writs run in the name of the Egyptian Sovereign. It is he who appoints their judges. While a majority of these judges must be selected from among foreign nations they are none the less officials of the Egyptian State. The little army of employees who serve the courts are in the main composed of Egyptian subjects. The courts are indeed Egyptian Courts and a national Egyptian institution." Pp. 349-350.
Other passages may be briefly cited to the same effect:
"The Mixed Courts are national courts, . . . they represent the national sovereignty. They are not in the proper
sense 'international courts' and no such characterization would have been accepted by Nubar nor insisted upon by the Powers with whom he was negotiating. "The courts are Egyptian courts. Op. cit., pp. 18-19, 43.
To the same effect I may quote from an address delivered by an Egyptian member of the Mixed Courts, Ragheb Bey Ghali, Judge of the Mixed Court of Alexandria, on the occasion of the fiftieth anniversary of the establishment of the Courts. A portion was read during the oral argument before the Tribunal. He said:
'And it is thus that the Egyptian Government, in according to foreigners administration of justice adequate for their interests, in the interests of Egypt, subjected them to an Egyptian jurisdiction to be in accord with the principles of the constitutional law. For it must be well remembered that the mixed jurisdiction, notwithstanding its name, its mode of functioning, and the extraneous character of some of its magistrates, is none the less an Egyptian jurisdiction which depends, as other Egyptian jurisdictions, upon the judicial power of the Egyptian State, to the exclusion of everything else. This follows in an evident manner from the letter and the spirit of the Royal Rescript which established the constitutional regime in Egypt."
These descriptions of the Courts seem to me to show a concept very different from that of courts functioning in Egypt as international tribunals, with an absence of responsibility for their acts such as is imposed by the law on Nations for the acts of their judiciaries.
DETENTION OF THE CLAIMANT'S DEED OF JANUARY 26, 1917
The Government of the United States contended that the Egyptian Government is liable for damages occasioned by a protracted, arbitrary detention of the claimant's deed, such detention having prevented Salem from selling his properties at a large profit.
I do not concur in the reasons given in the majority opinion for the conclusion that there is no liability for the withholding of this document. I consider that, to deprive the
claimant of his property the return of which was so urgently insisted upon by himself, by his attorney and by the American Diplomatic Agency was unjustifiable.
I am constrained to regard as unsatisfactory the excuse for the withholding which was advanced by the Agent and by counsel for Egypt in the present proceedings and which is sustained in the majority opinion, namely, that the deed was needed to prosecute persons who were co-defendants with Salem. The prosecution of these persons was begun in 1918. The manner in which it was conducted-or perhaps it might better be said the manner in which the authorities failed to proceed with it-has been briefly discussed. Up to the present time those proceedings have not been carried forward. For these reasons alone I am unable to consider to be well grounded explanations that the deed was withheld in order that the co-defendants might be prosecuted.
It would seem to me to be a plausible assumption that the authorities did not proceed with the prosecution because of the belief that they would be unable to obtain convictions. It may be noted, among other things, that several eye-witnesses, who seem never to have been discredited, testified at the preliminary hearing before Mohamed Zaki el Ibrashy Bey with regard to the manner in which the deed was made, their testimony going to prove effectively that forgery was not committed.
A so-called protocol, drawn at the deathbed of the claimant's uncle, is referred to in the majority opinion as the basis of prosecution. But after that document was formulated the prosecution was not even instituted by Egyptian authorities, until some months subsequent to the formulation of the protocol a Persian consular officer took the initiative. He, of course, had no interest in the administration of criminal jurisprudence in Egypt. And when he accomplished the purpose of obtaining certain taxes which he insisted were due under Persian law on the uncle's estate he dropped out of the prosecution. I do not, therefore, perceive the relevancy of the conclusion in the ma
jority opinion that the Egyptian authorities "counted on a speedy settlement of the criminal proceedings against the co-accused of Salem".
It is observed in the majority opinion that, when a certain communication was sent by the American Diplomatic Agency to the Egyptian Foreign Office requesting the deed for use in the prosecution of Salem before the American extraterritorial court, the deed was delivered. But I am unable to perceive that this prosecution could in any way affect Salem's right to his own possession of his property.
It is said in the opinion that the Tribunal would agree to the contention of the United States with respect to the obligation of the Egyptian authorities to return the documents received from Salem at least as soon as the question of his citizenship was cleared "if the retention of the documents had been in itself an infringement of the capitulatory rights of the United States". But it is further observed that "the native authorities had the right to seize the documents in 1917". Regarding this point, I have not the feeling of certainty expressed by my associates. There is evidence in the record bearing on the construction of pertinent international arrangements which seems to suggest a contrary interpretation. There are recorded precedents from which it appears that Egyptian authorities at times applied to foreign diplomatic or consular officers to have them cause their nationals to appear to give testimony or to produce documents in the manner provided for by the domestic law process of a subpoena duces tecum. American case, pp. 132–133; Annex E to the Memorial of the Egyptian Government, Exhibit 12 (B).
However, I do not consider this point to be conclusive with respect to the merits of the complaint regarding the detention of the deed. I think that the action of depriving the claimant of his document at a time when the use of it was of great importance to him was in the nature of a confiscation. And I assume that it is generally recognized that confiscation of the property of an alien is violative of international law, just as it is generally forbidden