'Egypt: The Soudan' [‎12r] (23/36)

14. Though 1 venture to think that the author of the memorandum insists
unduly upon the exclusive authority of the text of the agreement of 1899, I must
agree with him in regretting that English statesmen have on different occasions
given explanations of the bearing of that document, which are difficult to reconcile.
It will be evident from what precedes that in my view its true character is sufficiently
revealed by an analysis of its terms. The analysis of the legal implications of public
documents (especially in regard to such recondite matters as the distribution of
sovereignty in a veiled condominium), is essentially a task for constitutional lawyers;
and the most eminent statesmen may be pardoned if they occasionally falter in the
subsequent interpretation of the acts which they have themselves negotiated and
concluded. Nevertheless it is satisfactory to reflect that the Egyptian Government
and people would scarcely be justified in complaining that the attitude of His
Majesty’s Government in this matter was one the adoption of which they had no
reason to anticipate.
Not only had they before them the decisions of their own tribunals, already
referred to, but they may fairlv be taken to have had notice of a document which,
though unofficial, is of indisputable importance as an expression of the views of
one who for the matter in issue, was among the most authoritative of British
statesmen. I refer to Lord Cromer’s “ Modern Egypt.” In the second volume of that
work, on p. 116, we find: “I proceed to give a brief summary of the contents of
this document (the agreement of 1899). The first and most important point was to
assert a valid title to the exercise of sovereign rights in the boudan by the Queen
of England, in conjunction with the Khedive.” r, a-
15. The author of the memorandum urges the consideration that the Khedive
cannot be supposed to have infringed the prohibition imposed by the firman A Persian word meaning a royal order or decree issued by a sovereign, used notably in the Ottoman Empire (sometimes written ‘phirmaund’). of
1879 upon the alienation of his rights; and argues that had he done so, he would
have been acting ultra vires. This is a somewhat technical plea, and it is difficult to
avoid technicalities in examining it. The term ultra vires is a forcible one, and
does not naturally come to the mind of a lawyer in the presence of a restraint upon
alienation : it suggests that an alienation in breach of the prohibition is absolutely
and irremediably void—a state of things which is not often met with.
A more natural construction is that a prohibition upon alienation inserted in
a grant, vests in the grantor either a right to have a wrongful assignment set aside,
or a right to claim a forfeiture of the grant. This, it is submitted, is the more
reasonable view to take of the present case; it cannot be suggested that the Khedive
was so wholly incapable of ceding his rights that no waiver, condonation, or
ratification by Turkey would have sufficed to remedy his deficiency.
We have therefore to enquire what Turkey did. . , j- >
In the first place we find that she looked on passively at the loss of the Khedive s
provinces- then she apparently acquiesced, again in silence, in the assumption bv a
powerful State of a major share in the exploit of their reconquest a task m which
she took no share; finally when the war was victoriously concluded, and the terms
of settlement between the Allies were published, Turkey appears, it is true, to have
asked for explanations; but she also appears to have acquiesced in highly unsatis-
factorv replies. In any event, doubtless because she could not help it, she permitted
the agreement to stand—“and the only thing which has real authority is the actual
text of the agreement.” It would be highly unreal to argue that Turkey cannot
have acquiesced in any defeasance of her theoretical rights. On the contrary, it
is verv likely In short, I think that we are fully entitled to say that Turkey waived
any right of objection which may have accrued to her. And m any case, the present
controversy is not with Turkey. j ^ • • r
16 It is contended in paragraph 23 of the memorandum that the omission of
any express mention of the Soudan from the proclamations establishing the
protectorate, implies that “for the purposes of international relations the Soudan
must be considered part of Egypt.” It may be remarked in reply that it is at least
questionable whether the protectorate extended to the Soudan There were two
sovereignties in the Soudan, that of Great Britain and that of the Khedive; the
former was clearly not affected by the protectorate; the latter perhaps or even
probably was : but this was a consequence of a proposition which is not disputed,
namely that the Soudan was, in respect of the Khedive’s share in the sovereignty, an
Egyptian dependency. Any instrument whereby the Khedive ceased to be a vassal
ofNurkev extended its effects, without express words, to any place where any part
of the Khedive’s sovereignty was recognised. But by no logical bridge could the
conclusion be reached that ibis implication involved the exclusive subordination of
the Soudan to Egypt.