'Egypt: The Soudan' [‎11r] (21/36)

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(ii.) To prevent the Capitulations from being applicable in the Soudan.
The agreement was not intended, by its principal author, to
deprive the Khedive of his “legal authority’’ (cf. paragraphs
10-12 below).
(/.) 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 prohibits the Khedive from alienating any part of the
territories conceded to him. A formal resignation by the Khedive o any
part of his authority over the Soudan would have been a breach ot this
firman A Persian word meaning a royal order or decree issued by a sovereign, used notably in the Ottoman Empire (sometimes written ‘phirmaund’). , and therefore ultra vires, and consequently cannot have been
intended by the Egyptian signatory to the agreement ot 1899 ycj.
paragraph 15 below). , ^ c mi/i
(q.) The absence of any mention of the Soudan m the proclamation ot 1914
declaring the protectorate over Egypt must be taken to imply that tor
purposes of international relations the Soudan must be considered par o
Egypt,” since otherwise the suzerainty of Turkey over the Soudan would
have continued \cf. paragraph 16 below).
(h ) The declaration of the 28th February, 1922, reserves the question of the
Soudan from a grant of independence; conse( l uent ]y’ n s n av f, f ^ r
reservation, and subject to the effect of the agreement of 1899, the Soudan
would have passed under the untrammelled control of the new independent
State; consequently it is a part of that State {cf. paragraph 17 below).
9 It will be convenient if, before examining the arguments of the memorandum,
the present writer The lowest of the four classes into which East India Company civil servants were divided. A Writer’s duties originally consisted mostly of copying documents and book-keeping. states the propositions which he conceives to be correct. I hey are
as follows ^ ,
(a) Previouslv to the Mahdist rebellion the Soudan was a dependency ot Egypt,
subject to the sovereignty of the Khedive and to the suzerainty of Turkey.
(b.) The result of the rebellion was that for sixteen years this sovereignty and
this suzeraintv became dormant.
(c ) The Soudan was"reconquered by an Anglo-Egyptian partnership a partner
ship in which, though its operations were carried on under the raison
sociale” of “Egypt,” the predominant partner was the British
{d.) The prize of the war successfully concluded by the partners was the de facto
sovereignty over the Soudan. , „ ^ ^ a a
(e ) In January 1899 articles of partnership were for the first time concluded
each partv made a contribution to the common stock; Egypt contributed
the de jure sovereignty and a share, though a subordinate one, m the
de facto sovereigntv, in which Britain contributed the major share. Ihe
partnership articles vested in each partner an undivided share both in
the de jure and in the de facto sovereignty,* and delegated the exercise ol
sovereign powers to a new Government. .
The new Government thus created in the Soudan to give effect to the
condominium of the partners does not stand in the ordinary relationship
of dependency to either of its overlords; neither Britain nor Egypt can
by any ordinary machinery legislate for the Soudan; neither Britain nor
I>vpt can validly make a treaty on behalf of the Soudan, save with the
consent of the latter, involving 'any obligation to legislate or to take any
executive action in the Soudan; no appeal in judicial matters lies from a
Soudan court to any court in Egypt or England.
The onlv legal means by which the two sovereign Governments can give effect to
their sovereignty and control the high officer who represents them at Khartoum is
either (a) by concurring in his removal or (6) by concurring in a modification in the
terms of the pact from which he derives his powers
10 It will be observed that I see no reason to dissent trom the hist t.iiee
propositions in which I have endeavoured to summarise Mr. Headlam-Morley s
arstuinenf^paragraph 8 (a), (b) and (c)). Our difference arises when we come to
coSsider the effect of the agreement of 1899. I cannot help thinking that
Mr. Headlam-Morley has failed to attach their due constitutional significance to the
two obiects which he concedes it to have been the intention of this agreement to
realise (see paragraph 8 (e)). It appears to me to be indisputable that, whatever
(clause 10). ^ ^
[253 m—lj
(/•)