The Capitulations In Egypt

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Title:     The Capitulations In Egypt
Author: Evelyn Baring [More Titles by Baring]

_"The Nineteenth Century and After," July 1913_

During the six years which have elapsed since I left Cairo I have, for various reasons on which it is unnecessary to dwell, carefully abstained from taking any part in whatever discussions have arisen on current Egyptian affairs. If I now depart from the reticence which I have hitherto observed it is because there appears at all events some slight prospect that the main reform which is required to render the government and administration of Egypt efficient will be seriously considered. As so frequently happens in political affairs, a casual incident has directed public attention to the need of reform. A short time ago a Russian subject was, at the request of the Consular authorities, arrested by the Egyptian police and handed over to them for deportation to Russia. I am not familiar with the details of the case, neither, for the purposes of my present argument, is any knowledge of those details required. The nature of the offence of which this man, Adamovitch by name, was accused, as also the question of whether he was guilty or innocent of that offence, are altogether beside the point. The legal obligation of the Egyptian Government to comply with the request that the man should be handed over to the Russian Consular authorities would have been precisely the same if he had been accused of no offence at all. The result, however, has been to touch one of the most tender points in the English political conscience. It has become clear that a country which is not, indeed, British territory, but which is held by a British garrison, and in which British influence is predominant, affords no safe asylum for a political refugee. Without in any way wishing to underrate the importance of this consideration, I think it necessary to point out that this is only one out of the many anomalies which might be indicated in the working of that most perplexing political creation entitled the Egyptian Government and administration. Many instances might, in fact, be cited which, albeit they are less calculated to attract public attention in this country, afford even stronger ground for holding that the time has come for reforming the system hitherto known as that of the Capitulations.

Before attempting to deal with this question I may perhaps be pardoned if, at the risk of appearing egotistical, I indulge in a very short chapter of autobiography. My own action in Egypt has formed the subject of frequent comment in this country; neither, assuredly, in spite of occasional blame, have I any reason to complain of the measure of praise--often, I fear, somewhat unmerited praise--which has been accorded to me. But I may perhaps be allowed to say what, in my own opinion, are the main objects achieved during my twenty-four-years' tenure of office. Those achievements are four in number, and let me add that they were not the results of a hand-to-mouth conduct of affairs in which the direction afforded to political events was constantly shifted, but of a deliberate plan persistently pursued with only such temporary deviations and delays as the circumstances of the time rendered inevitable.

In the first place, the tension with the French Government, which lasted for twenty-one years and which might at any moment have become very serious, was never allowed to go beyond a certain point. In spite of a good deal of provocation, a policy of conciliation was persistently adopted, with the result that the conclusion of the Anglo-French Agreement of 1904 became eventually possible. It is on this particular feature of my Egyptian career that personally I look back with far greater pride and pleasure than any other, all the more so because, although it has, comparatively speaking, attracted little public attention, it was, in reality, by far the most difficult and responsible part of my task.

In the second place, bankruptcy was averted and the finances of the country placed on a sound footing.

In the third place, by the relief of taxation and other reforms which remedied any really substantial grievances, the ground was cut away from under the feet of the demagogues whom it was easy to foresee would spring into existence as education advanced.

In the fourth place, the Soudan, which had to be abandoned in 1884-85, was eventually recovered.

These, I say, are the things which were done. Let me now state what was not done. Although, of course, the number of Egyptians employed in the service of the Government was largely increased, and although the charges which have occasionally been made that education was unduly neglected admit of easy refutation, it is none the less true that little, if any, progress was made in the direction of conferring autonomy on Egypt. The reasons why so little progress was made in this direction were twofold.

In the first place, it would have been premature even to think of the question until the long struggle against bankruptcy had been fought and won, and also until, by the conclusion of the Anglo-French Agreement in 1904, the acute international tension which heretofore existed had been relaxed.

In the second place, the idea of what constituted autonomy entertained by those Egyptians who were most in a position to make their voices heard, as also by some of their English sympathisers, differed widely from that entertained by myself and others who were well acquainted with the circumstances of the country, and on whom the responsibility of devising and executing any plan for granting autonomy would naturally devolve. We were, in fact, the poles asunder. The Egyptian idea was that the native Egyptians should rule Egypt. They therefore urged that greatly increased powers should be given to the Legislative Council and Assembly originally instituted by Lord Dufferin. The counter-idea was not based on any alleged incapacity of the Egyptians to govern themselves--a point which, for the purposes of my present argument, it is unnecessary to discuss. Neither was it based on any disinclination gradually to extend the powers of Egyptians in dealing with purely native Egyptian questions.[68] I, and others who shared my views, considered that those who cried "Egypt for the Egyptians" on the house-tops had gone off on an entirely wrong scent because, even had they attained their ends, nothing approaching to Egyptian autonomy would have been realised. The Capitulations would still have barred the way to all important legislation and to the removal of those defects in the administration of which the Egyptians most complained. When the prominent part played by resident Europeans in the political and social life of Egypt is considered, it is indeed little short of ridiculous to speak of Egyptian autonomy if at the same time a system is preserved under which no important law can be made applicable to an Englishman, a Frenchman, or a German, without its detailed provisions having received the consent, not only of the King of England, the President of the French Republic, and the German Emperor, but also that of the President of the United States, the King of Denmark, and every other ruling Potentate in Europe. We therefore held that the only possible method by which the evils of extreme personal government could be averted, and by which the country could be provided with a workable legislative machine, was to include in the term "Egyptians" all the dwellers in Egypt, and to devise some plan by which the European and Egyptian elements of society would be fused together to such an extent at all events as to render them capable of cooperating in legislative effort. It may perhaps be hoped that by taking a first step in this direction some more thorough fusion may possibly follow in the future.

As I have already mentioned, it would have been premature to deal with this question prior to 1904, for any serious modification of the régime of the Capitulations could not be considered as within the domain of practical politics so long as all the Powers, and more especially France and England, were pulling different ways. But directly that agreement was signed I resolved to take the question up, all the more so because what was then known as the Secret Agreement, but which has since that time been published, contained the following very important clause:

In the event of their (His Britannic Majesty's Government) considering it desirable to introduce in Egypt reforms tending to assimilate the Egyptian legislative system to that in force in other civilised countries, the Government of the French Republic will not refuse to entertain any such proposals, on the understanding that His Britannic Majesty's Government will agree to entertain the suggestions that the Government of the French Republic may have to make to them with a view of introducing similar reforms in Morocco.

I was under no delusion as to the formidable nature of the obstacles which stood in the way of reform. Moreover, I held very strongly that even if it had been possible, by diplomatic negotiations with the other Powers, to come to some arrangement which would be binding on the Europeans resident in Egypt, and to force it on them without their consent being obtained, it was most undesirable to adopt anything approaching to this procedure. The European colonists in Egypt, although of course numerically far inferior to the native population, represent a large portion of the wealth, and a still larger portion of the intelligence and energy in the country. Moreover, although the word "privilege" always rather grates on the ear in this democratic age, it is none the less true that in the past the misgovernment of Egypt has afforded excellent reasons why even those Europeans who are most favourably disposed towards native aspirations should demur to any sacrifice of their capitulary rights. My view, therefore, was that the Europeans should not be coerced but persuaded. It had to be proved to them that, under the changed condition of affairs, the Capitulations were not only unnecessary but absolutely detrimental to their own interests. Personally, I was very fully convinced of the truth of this statement, neither was it difficult to convince those who, being behind the scenes of government, were in a position to judge of the extent to which the Capitulations clogged progress in many very important directions. But it was more difficult to convince the general public, many of whom entertained very erroneous ideas as to the extent and nature of the proposed reforms, and could see nothing but the fact that it was intended to deprive them of certain privileges which they then possessed. It cannot be too distinctly understood that there never was--neither do I suppose there is now--the smallest intention of "abolishing the Capitulations," if by that term is meant a complete abrogation of all those safeguards against arbitrary proceedings on the part of the Government which the Capitulations are intended to prevent. Capitulations or no Capitulations, the European charged with a criminal offence must be tried either by European judges or an European jury. All matters connected with the personal status of any European must be judged by the laws in force in his own country. Adequate safeguards must be contrived to guard against any abuse of power on the part of the police. Whatever reforms are introduced into the Mixed Tribunals must be confined to comparatively minor points, and must not touch fundamental principles. In fact, the Capitulations have not to be abolished, but to be modified. An eminent French jurist, M. Gabriel Louis Jaray, in discussing the Egyptian situation a few years ago, wrote:

On peut considérer comme admis qu'une simple occupation ou un protectorat de fait, reconnu par les Puissances Européennes, suffit pour mettre à néant les Capitulations, quand la réorganisation du pays est suffisante pour donner aux Européens pleine garantie de bonne juridiction.

I contend that the reorganisation of Egypt is now sufficiently advanced to admit of the guarantees for the good administration of justice, which M. Jaray very rightly claimed, being afforded to all Europeans without having recourse to the clumsy methods of the Capitulations in their present form.

In the last two reports which I wrote before I left Egypt I developed these and some cognate arguments at considerable length. But from the first moment of taking up the question I never thought that it would fall to my lot to bring the campaign against the Capitulations to a conclusion. The question was eminently one as to which it was undesirable to force the pace. Time was required in order to let public opinion mature. I therefore contented myself with indicating the defects of the present system and the general direction which reform should take, leaving it to those younger than myself to carry on the work when advancing years obliged me to retire. I may add that the manner in which my proposals were received and discussed by the European public in Egypt afforded good reason for supposing that the obstacles to be overcome before any serious reforms could be effected, though formidable, were by no means insuperable. After my departure in 1907, events occurred which rendered it impossible that the subject should at once come under the consideration of the Government, but in 1911 Lord Kitchener was able to report that the legislative powers of the Court of Appeal sitting at Alexandria had been somewhat increased. Sir Malcolm M'Ilwraith, the Judicial Adviser of the Egyptian Government, in commenting on this change, says:

The new scheme, while assuredly a progressive step, and in notable advance of the previous state of affairs ... can hardly be regarded, in its ensemble, as more than a temporary makeshift, and a more or less satisfactory palliative of the legislative impotence under which the Government has suffered for so long.

It is most earnestly to be hoped that the question will now be taken up seriously with a view to more drastic reform than any which has as yet been effected.

There is one, and only one, method by which the evils of the existing system can be made to disappear. The British Government should request the other Powers of Europe to vest in them the legislative power which each now exercises separately. Simultaneously with this request, a legislative Chamber should be created in Egypt for enacting laws to which Europeans will be amenable.

There is, of course, one essential preliminary to the execution of this programme. It is that the Powers of Europe, as also the European residents in Egypt, should have thorough confidence in the intentions of the British Government, by which I mean confidence in the duration of the occupation, and also confidence in the manner in which the affairs of the country will be administered.

As regards the first point, there is certainly no cause for doubt. Under the Anglo-French Agreement of 1904 the French Government specifically declared that "they will not obstruct the action of government in Egypt by asking that a limit of time be fixed for the British occupation, or in any other manner." Moreover, one of the last acts that I performed before I left Egypt in 1907 was to communicate to the British Chamber of Commerce at Alexandria a letter from Sir Edward Grey in which I was authorised to state that His Majesty's Government "recognise that the maintenance and development of such reforms as have hitherto been effected in Egypt depend upon the British occupation. This consideration will apply with equal strength to any changes effected in the régime of the Capitulations. His Majesty's Government, therefore, wish it to be understood that there is no reason for allowing the prospect of any modifications in that régime to be prejudiced by the existence of any doubt as to the continuance of the British occupation of the country." It is, of course, conceivable that in some remote future the British garrison may be withdrawn from Egypt. If any fear is entertained on this ground it may easily be calmed by an arrangement with the Powers that in the event of the British Government wishing to withdraw their troops, they would previously enter into communications with the various Powers of Europe with a view to re-establishing whatever safeguards they might think necessary in the interests of their countrymen.

As regards the second point, that is to say, confidence in the manner in which the administration of the country is conducted, I need only say that, so far as I am able to judge, Lord Kitchener's administration, although one of his measures--the Five Feddan law--has, not unnaturally, been subjected to a good deal of hostile criticism, has inspired the fullest confidence in the minds of the whole of the population of Egypt, whether European or native. I cannot doubt that, when the time arrives for Lord Kitchener, in his turn, to retire, no brusque or radical change will be allowed to take place in the general principles under which he is now administering the country.

The rights and duties of any such Chamber as that which I propose, its composition, its mode of election or nomination, the degree of control to be exercised over it by the Egyptian or British Governments, are, of course, all points which require very careful consideration, and which admit of solution in a great variety of ways. In my report for the year 1906 I put forward certain suggestions in connection with each of these subjects, but I do not doubt that, as the result of further consideration and discussion, my proposals admit of improvement. I need not now dwell on these details, important though they be. I wish, however, to allude to one point which involves a question of principle. I trust that no endeavour will for the present be made to create one Chamber, composed of both Europeans and Egyptians, with power to legislate for all the inhabitants of Egypt. I am strongly convinced that, under the present condition of society in Egypt, any such attempt must end in complete failure. It is, I believe, quite impossible to devise any plan for an united Chamber which would satisfy the very natural aspirations of the Egyptians, and at the same time provide for the Europeans adequate guarantees that their own legitimate rights would be properly safeguarded. I am fully aware of the theoretical objections which may be urged against trying the novel experiment of creating two Chambers in the same country, each of which would deal with separate classes of the community, but I submit that, in the special circumstances of the case, those objections must be set aside, and that one more anomaly should, for the time being at all events, be added to the many strange institutions which exist in the "Land of Paradox." Whether at some probably remote future period it will be possible to create a Chamber in which Europeans and Egyptians will sit side by side will depend very largely on the conduct of the Egyptians themselves. If they follow the advice of those who do not flatter them, but who, however little they may recognise the fact, are in reality their best friends--if, in a word, they act in such a manner as to inspire the European residents of Egypt with confidence in their judgment and absence of class or religious prejudice, it may be that this consummation will eventually be reached. If, on the other hand, they allow themselves to be guided by the class of men who have of late years occasionally posed as their representatives, the prospect of any complete legislative amalgamation will become not merely gloomy but practically hopeless. The true Egyptian patriot is not the man who by his conduct and language stimulates racial animosity in the pursuit of an ideal which can never be realised, but rather one who recognises the true facts of the political situation. Now, the dominating fact of that situation is that Egypt can never become autonomous in the sense in which that word is understood by the Egyptian nationalists. It is, and will always remain, a cosmopolitan country. The real future of Egypt, therefore, lies not in the direction of a narrow nationalism, which will only embrace native Egyptians, nor in that of any endeavour to convert Egypt into a British possession on the model of India or Ceylon, but rather in that of an enlarged cosmopolitanism, which, whilst discarding all the obstructive fetters of the cumbersome old international system, will tend to amalgamate all the inhabitants of the Nile Valley and enable them all alike to share in the government of their native or adopted country.

For the rest, the various points of detail to which I have alluded above present difficulties which are by no means insuperable, if--as I trust may be the case--the various parties concerned approach the subject with a real desire to arrive at some practical solutions. The same may be said as regards almost all the points to which Europeans resident in Egypt attach special importance, such, for instance, as the composition of criminal courts for trying Europeans, the regulation of domiciliary visits by the police, and cognate issues. In all these cases it is by no means difficult to devise methods for preserving all that is really worth keeping in the present system, and at the same time discarding those portions which seriously hinder the progress of the country. There is, however, one important point of detail which, I must admit, presents considerable practical difficulties. It is certain that the services of some of the European judges of the Mixed Tribunals might be utilised in constituting the new Chamber. Their presence would be of great use, and it is highly probable that they will in practice become the real working men of any Chamber which may be created. But apart from the objection in principle to confiding the making as also the administration of the law wholly to the same individuals, it is to be observed that, in order to create a really representative body, it would be essential that other Europeans--merchants, bankers, landowners, and professional men--should be seated in the Chamber. Almost all the Europeans resident in Europe are busy men, and the question will arise whether those whose assistance would, on general grounds, be of special value, are prepared to sacrifice the time required for paying adequate attention to their legislative duties. I can only say that I hope that sufficient public spirit is to be found amongst the many highly qualified European residents in Egypt of divers nationalities to enable this question to be answered in the affirmative.

It is, of course, impossible within the space allotted to me to deal fully on the present occasion with all the aspects of this very difficult and complicated question. I can only attempt to direct attention to the main issue, and that issue, I repeat, is how to devise some plan which shall take the place of the present Egyptian system of legislation by diplomacy. The late Lord Salisbury once epigrammatically described that system to me by saying that it was like the _liberum veto_ of the old Polish Diet, "without being able to have recourse to the alternative of striking off the head of any recalcitrant voter." It is high time that such a system should be swept away and some other adopted which will be more in harmony with the actual facts of the Egyptian situation. If, as I trust may be the case, Lord Kitchener is able to devise and to carry into execution some plan which will rescue Egypt from its present legislative Slough of Despond, he will have deserved well, not only of his country, but also of all those Egyptian interests, whether native or European, which are committed to his charge.

[Footnote 68: It is believed that a proposal to reform the constitution of the Egyptian Legislative Council and to extend somewhat its powers is now under consideration. Any reasonable proposals of this nature should be welcomed, but they will do little or nothing towards granting autonomy to Egypt in the sense in which I understand that word.]

[The end]
Evelyn Baring's essay: The Capitulations In Egypt

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