Obrázky na stránke
PDF
ePub

of the Government consider themselves entitled to take up. While opposed, as we always have been, to violent language, or the advocacy of unjust action against the Canal Company, we feel it justifiable, and even necessary, to protest in the strongest manner against the language used on behalf of the Government and even by members of it, and by the Canal Company and some of its advocates, in regard to the line of conduct of those who held a different opinion to theirs. Dishonesty and robbery are not terms usually applied to those who have the right at least to be deemed acting upon convictions honestly arrived at until the contrary is proved; and to say that the denial of M. de Lesseps' monopoly cannot be set up because it would be a dishonest argument is a course which, if taken by an unofficial speaker, would have been severely censured.

The mot d'ordre seems to have been passed to create a prejudice against those who differed from the proposal of the Government. Time, reflection, and accomplished facts have shown that they were not quite so wrong after all.

This is a business matter which ought to have been and ought to be discussed in a business-like manner, and the first and the principal person who has imported an unbusiness-like tone into the discussion of contentious matter connected with the Canal Company, is the president of the canal himself. The blue books published by order of the House of Commons through a long series of years, teem with extravagant claims expressed in terms unprecedented in matters of business, and equally rare, I should bope, in diplomacy.

It is also necessary to notice another point. In the discussion which took place last summer in the House of Commons, it was almost claimed that the question at issue was a legal one, and that the opinion of the legal advisers of the Crown should be held decisive of the contention. In the first place, no legal authority, however eminent, is infallible. If he is, for what purpose have courts of appeal been constituted? We see every day courts, composed of individuals not more eminent, reversing the decisions of others not less

In the second place, the case does not rest upon British law. It rests upon the language of specific documents; and commercial men, who have made it the study of their lives to learn such language and to study such documents, may claim to speak with just as much authority, where they are specific, as English lawyers, whose acquaintance with them is casual and accidental.

It is a well-understood principle that the rights under a concession are contained within the four corners of the paper upon which it is written, for there is no Case Law to appeal to to prove orthodox in one decade what is rank heresy in another.

Having thus cleared the ground, let us examine the charter of the Canal Company, bearing in mind that, although the ó Monopoly claim’ is the principal point which has formed the subject of recent

SO.

discussions and is our present object, there are others of great importance, whether there be a monopoly or not.

For brevity's sake extraneous matter will be eliminated, and, as full reference will be given to each document, should there be an argument founded on an omission, the writer admits his responsibility in advance.

The first document in the company's title-deeds is :

The act of concession of the Viceroy of Egypt, for the construction and working of the maritime canal of Suez and dependencies, between the Mediterranean and the Red Sea.

Cairo: the 30th of November, 1854.

[ocr errors]

Preamble. Our friend, M. F. de Lesseps. having demonstrated to us the possibility of forming a company of capitalists of all nations .... We have given him by these presents exclusive power to forn and to direct a universal company, for piercing the Isthmus of Suez and working a canal between the two seas. The whole within the limits, and under the conditions and obligations specified in the following articles.

Four things will be seen from the above extract.

1. The Pouvoir Exclusif' was not to M. de Lesseps to make and work a canal, but to form and to direct a company for that purpose.

2. The power was not a general one for piercing the Isthmusthat is, to form indefinite waterways, but was limited at the outset by the title of the Act of the concession to the canal, and, in the terms of the concession, to the working of'a' canal.

3. The making and working the canal was not a general power, but was confined within specified limits.

4. That there is apparently granted to M. de Lesseps power to direct the company without limitation of time.

Then follow the articles controlling and defining the extent of the grant, and the obligations the company is under:

ARTICLE 1. M. de Lesseps shall (not may) form a company for piercing the Isthmus, &c., of which we entrust to him the direction.

Still without apparent limitation.
But Article 2 runs

The director of the company shall always be named by the Egyptian Government, and chosen as much as possible from among the largest shareholders in the enterprise.

There is an apparent inconsistency in these two articles. If M. de Lesseps was already constituted director, without limitation of time, how could the Egyptian Government put in force Article 2 ? and this is a remarkably good instance of the soundness of the principle we first started with, viz., that the rights of the company do not depend upon one document- much less upon one article—and still less upon one or two selected words. This cannot be more clearly stated than in the words of the Sultan's Firman which authorised the construction of the canal in terms of the contract of the 22nd of February 1866, and the acts and contracts therein recited, of which they form an integral part. That is to say all the documents are to be read together. The controlling words of the apparent inconsistency are to be found in a very important document, to which very little attention seems to have been paid.

It is the Deed of the 5th of January 1856, generally termed the 2nd Concession, and the preamble states that

M. F. de Lesseps, having represented to us that for establishing the proposed company under the forms and conditions usually adopted for associations of this nature, it is convenient to stipulate beforehand in detail on one side the liabilities, obligations, and dues (redevanccs) to which it shall be subject, on the other the concessions, immunities, and advantages to which it shall be entitled, as well as the facilities which shall be granted to it for its management.

As regards the latter we ind:

ARTICLE 20. Independently of the time necessary for the execution of the works, (i.e, of the canal) our friend and agent (mandataire) M. F. de Lesseps shall preside over and direct the company as first founder, for ten years from the day when the term of the concession for ninety-nine years shall commence to run.

:

So that the first concession of the 3rd of November, 1854, gave M. de Lesseps pouvoir exclusif to form and direct a universal company for piercing the Isthmus and working a canal, subject to certain limitations and conditions.

The later deed of January 1856, defining more completely and more in detail' these concessions, limited the presidency of M. de Lesseps to the term of ten years from the opening of the canal. We have never heard that M. de Lesseps made any objection to this deed or to the limitation of his directorate. On the contrary, it was acted upon at once as the charter of the company, and the statutes were based upon it and approved simultaneously by the Viceroy. It is now more than ten years since the canal was opened ; the term of office secured to M. de Lesseps by the Viceroy has expired, and his connection with the canal company, in respect of direction in virtue of the concession, has ceased to exist.

Having disposed of this part of the pouvoir exclusif,' more especially personal to M. de Lesseps, which evidently conferred upon him no monopoly of the presidency, we turn to the other point, viz., that part of it which it has been attempted to interpret as a personal concession to M. de Lesseps, and through him to the company, of the monopoly of canal-making on the Isthmus of Suez.

In the first place, it is not possible to claim for the words exclusive power (pouvoir exclusif), to form and to direct, greater force as applied to "form' than they have to direct. We have seen that the pouvoir exclusif for both purposes was subject to limitations, and that as to the latter a limitation was immediately enforced. Eliminating, then, the words to direct ' which have now become superfluous by effluxion of time, those which remain stand thus : exclusive VOL. XV.-No. 83.

С

power to form a company for piercing the Isthmus of Suez, and for working a canal between the two seas.

The Egyptian Government has lately said that there is nothing in these words which contains the idea of a monopoly, and an examination of the conditions of this grant will show that—so far from a monopoly of canals—there was not granted the right to make more than the one particular canal specified.

Firstly: The land to be granted was limited and defined.

ARTICLE 8. To avoid all difficulty in regard to the land given over to the company, a plan drawn up by Linant Bey, our engineer, will indicate the land granted for the (traversée) line and the establishment of the maritime canal.

Under date the 30th of April, 1855, M. de Lesseps submitted to the Viceroy the “Memoir of the engineers Linant Bey and Mougel Bey upon the canalisation of the isthmus.' He stated that, pending publicity being given to this preliminary work,' the said engineers would prepare their definitive project, upon which a commission of English, French, German, and Dutch engineers would give their opinion, and indicate any changes they might think advisable.

The Viceroy is reminded by M. de Lesseps that it had been his will from the outset to circumscribe within certain limits the locality to be surveyed. The cutting might be made east of the course of the Nile, but he had not authorised the company to adopt a line west of the Damietta branch crossing the course of the Nile. That it would only be when the line of the communication between the two seas had been fixed, &c., that capitalists and the public would be called upon to subscribe for the shares ; so that, from the outset, it is clear that the company was formed to make and work a particular canal. For the purpose of carrying out this intention, the second concession of the 5th of January, 1856 (already referred to), describing and defining more completely and in detail the obligations of, and the concessions to, the company, and superseding, where in conflict with, the first concession, was drawn up.

ARTICLE 1. The Company .

shall make at its own risk ... (1.) A (un) canal to be appropriated to maritime navigation.

(3.) The works to be completed in six years, reserving force majeure. ARTICLE 3. The canal to be dug of the depth and width fixed by the international scientific commission, conformably to which it commences at the Port of Suez, makes use of the Bitter Lakes and Lake Timisah, and will (open out) at a point in the Gulf of Pelusium, to be determined from among the definitive projects to be drawn up by the engineers of the company.

Here we have specified the maritime canal, which the company was bound to make, and which on the expiry of the concession the Egyptian Government would become possessed of.

We have pointed out that the object of this deed (5th of January, 1856) was to set out more fully and precisely the obligations and privileges of the company, and to provide for its management, for which purpose the statutes of the company annexed thereto are approved in the following terms :

ARTICLE 21. The annexed statutes of the association, created under the style of the Universal Company of the Maritime Canal of Suez,' are approved. The present approval shall be deemed the authorisation for its constitution in the form of

Sociétés Anonymes,' from the day on which the capital shall have been wholly subscribed.

The statutes of a French company, which this is in form, are essential to its constitution, and it has been decided in France, particularly in the leading case of the Crédit Mobilier in 1875, that in two respects the statutes of a Société Anonyme are unalterable, viz., (1) the objects of the company, (2) the partition of the profits. It is customary to express these objects in the widest terms consistent with the purpose contemplated, because, being unalterable, they cannot be extended, whatever the need may be, without dissolving the existing company and forming a new one. This is in practice rarely possible, as the consent of each individual shareholder would be required.

Article 2 runs omitting the words referring to other purposes apart from this question) :

This association has for its object :

(1.) The construction of a maritime canal for the sea (grande) navigation between the Red Sea and the Diediterranean, from Suez to the Gulf of Pelusium.

(4.) The working of the said canal and the different undertakings connected with it. The whole subject to the terms and conditions of the ordonnances of the 30th of November 1854, and of the 5th of January 1856. The first giving special and exclusire power to M. de Lesseps to form and direct, in his capacity of first founder-president, an association in view of these undertakings; the second conceding the said canals and their dependencies to this association, with all the liabilities and obligations, all the rights and advantages attached to them by the Egyptian Government.

We must point out the somewhat remarkable distinction drawn here between the first and second concessions. We may presume that the authority by whom they were granted was aware what the concessions it had given really were. The first concession is described by it as giving exclusive power to M. de Lesseps to form and to direct, as first founder-president, a company for the enterprises in question ;' the second as a concession of the canals and their dependencies to the company.'

We have seen that M. de Lesseps' right to direct the company was disposed of by granting him a term of ten years, so that any personal rights he may have had in virtue of the concession ceased on the expiry of that period, when he reverted to the position of an ordinary shareholder, while as regards the company his rights ceased on its formation. If from time to time he has continued to act as director or president, it has not been in virtue of the concession, but by the choice of the shareholders or of the Egyptian Government,

« PredošláPokračovať »