Act an

Treaty.

when we come to deal with criminals escaping from one part of the dominions to another. There is no necessity for those provisions and limitations which are introduced into extradition Treaties as safeguards to what is sometimes called the "right of asylum." But the mere statement of the question seems to throw a doubt on the propriety of including this Act in the schedule of " Acts to be applied by Order in Council" to the Foreign Jurisdiction Act. A foreign country which has granted exterritorial privileges does not thereby become a Colony. Application of Although in the construction of the terms in which the privileges infringement of Sovereign have been granted usage or sufferance may possibly be appealed rights if not to to support an interpretation which perhaps the words do not warranted by bear on the face of them, it seems to me impossible to claim by usage the surrender of a sovereign right of which no mention is made in the Treaty. And the sovereign right which is possessed by a civilized and uncivilized, a Christian and Mahommedan State alike, is to protect all who come within its borders. There is a right to refuse to surrender, as well as a right to surrender, criminals to their own Governments, and this right reposes in the Sovereign. He may bind himself by Treaty to surrender criminals; but just as it is not possible for a civilized State to allow another State to enter its territory armed for the purpose of exacting punishment, without its express sanction, so is it not possible for an uncivilized State to allow it; and so again is it not possible for it to allow the officers of another State, whose executive and judicial actions it sanctions for some purposes, to add to those actions another, which is not only not sanctioned, but which is a violation of its own sovereignty.

One other point may be mentioned which depends on precisely the same principles, but which it is unnecessary to argue at any length-the appeal in civil cases from the Court of the Consul in a Treaty Port to the Supreme Court of an adjacent Colony.

To this extent the exercise of the Queen's foreign jurisdiction is, I venture to think, deserving of criticism, both as it affects the foreign Sovereign and the British subject.

[Hertslet's Treaties, Vol. x. p. 923.]

Authority of Consuls to enforce Treaty and make rules.

XI.

General Scheme of the Orders in Council.

WE are now in a position to examine the general principles of the Orders in Council, of which there are two forms; the first is short, the second is much more elaborate, and is now replacing the short form in almost all cases. It will be convenient to give an abstract of the principles on which both classes are based.

For an example of the short form I have taken the Order relating to Morocco, dated August 27, 1857.*

After reciting the Foreign Jurisdiction Act, and the fact that Her Majesty hath power and jurisdiction in the dominions of His Majesty the Sultan of Morocco, the Order makes the following provisions "for the due and effectual exercise of such power and jurisdiction."

The appointment of Consuls with "full power and authority to carry into effect, and to enforce by the means and in the manner hereinafter mentioned and provided, the observance of the stipulations of any Treaty or Convention, or of any regulations appended to any Treaty or Convention now existing, or which may hereafter be made" between the Queen and the Sultan ;

And to make and enforce, by fine or imprisonment, or both, rules and regulations for the observance of the stipulations of any such Treaty or Convention,

and for the peace, order, and good government of Her Majesty's subjects being within the dominions of the Sultan of Morocco (Art. I.).

The rules made by the Consul are to be affixed and exhibited in some conspicuous place in the Consulate; and copies are to be on sale. A printed copy certified under the hand of the Consul is to be conclusive evidence of the rules. Penal rules are to be sanctioned by the Secretary of State for Foreign Affairs (Art. II.).

This Order has now been replaced by one in the longer form, dated November 29, 1889.

rules.

Jurisdiction is given to the Consul to try and punish British Violation of subjects for violations of the stipulations in the Treaty, or of the Treaty and of regulations appended thereto, or of the rules made for its observance (Art. III.).

Jurisdiction is also given to the Consul in respect of the breach of other regulations: with assessors where the penalty exceeds 200 dollars, or one month's imprisonment. The assessors have no authority to decide on the guilt or innocence of the party charged, or on his punishment; but in case of their dissent, the Consul is to take security for the appearance of the person convicted at a future time in order to undergo the sentence, or receive his discharge; in default of security he is to be detained. The decision is then to be reported to Her Majesty's Chargé d'Affaires and Consul-General, who has authority to confirm, or vary, or reverse the decision (Art. IV.).

Decisions of subordinate consular officers are to be revised by the superior consular officer of the district (Art. V.).

An appeal from all decisions of the Consuls lies to the Chargé d'Affaires (Art. VI.).

Persons who escape from one consular district to another are to be tried in the one in which they are found (Art. VII.).

Jurisdiction is given to the Consul to hear and determine Civil suits by natives against civil suits brought by Moorish subjects against British subjects, British arising within any part of the Sultan's dominions, the Moorish subjects. Governor of the town, or some other officer, being present. If the plaintiff is dissatisfied, he has a right of appeal to the Moorish Commissioner for Foreign Affairs; and the defendant to Her Majesty's Chargé d'Affaires and Consul-General. In either case the decision on the appeal is to be "final and conclusive to all intents and purposes" (Art. VIII.).

against

In like manner civil suits arising in Morocco brought by By British British against Moorish subjects are to be tried by the Moorish subjects authority, the Consul being present, if he thinks fit, during the natives. trial. And as in the last article, either party may appeal to his national authority, the decision on appeal being final (Art. IX.).

British

All civil suits arising between British subjects within the Between Sultan's dominions are to be tried by the Consul, with an appeal subjects. to the Supreme Court of Gibraltar (Art. X.). The procedure on appeal is regulated by this Article.

The Consul may summon assessors in civil suits. They are not to take part in the decision; but if they dissent, the grounds of their dissent are to be transmitted to the Supreme Court at Gibraltar if an appeal is brought against the decision (Art. XI.).

Execution.

Witnesses.

Perjury.

Reconciliation.

Crimes by British subjects.

Deportation.

Security for good behaviour.

The Consul may enforce his decision by distress, sale, or imprisonment, in the same way as a decision is enforced in Mauritius (Art. XII.).

Further evidence may be admitted on appeal on terms (Art. XIII.).

The Consul may examine witnesses on oath, and may issue compulsory orders for the attendance of British subjects as witnesses (Art. XIV.).

British subjects giving false evidence, either before the Consul or the Moorish authorities, are to be convicted and punished for perjury (Art. XV.).

The Consul is to promote reconciliation; and, with consent of the parties, may refer disputes to arbitration; the award being taken to be a judgment of the Consul (Art. XVI.).

The Consul may cause to be apprehended and brought before him any British subject who may be charged with having committed any crime or offence in Morocco. If the punishment to be awarded exceeds imprisonment for one month, or a fine of 200 dollars, the trial is to be conducted with assessors. The punishment in such case is not to exceed imprisonment for twelve months, or a fine of 1000 dollars. The assessors take no part in the judgment; but if they dissent, a report of the trial is to be sent to the Chargé d'Affaires, who has power to confirm, vary, or remit the sentence and punishment (Arts. XVII. & XVIII.).

"And in order more effectually to repress crimes and offences on the part of British subjects" in Morocco, the Consul may cause a British subject to be sent out of Morocco, who, after having been twice convicted and punished, is unable to find security for his future good behaviour. The deportation shall be to Gibraltar, and on board a British vessel (Art. XIX.).

Deportation, in addition to punishment, is allowed for first offences in the case of arson, housebreaking, cutting and maiming, stabbing or wounding, any assault endangering life, or of wilful or corrupt perjury (Art. XX.).

On information laid by one or more credible witnesses, that there is reasonable ground to apprehend that any British subject is about to commit a breach of the public peace, the Consul may require him to give security for good behaviour. And after conviction and punishment for a breach of the peace, he may also require security for good behaviour. And in either case, if the security is not given, the British subject may be sent out of Morocco (Art. XXI.).

All cases of deportation are to be reported to the Chargé

d'Affaires (Art. XXII.).

Jurisdiction is given to the Consul in cases of smuggling (Art. XXIII.).

Sentences passed by the subordinate consular officers are to Revision of be reported to the superior officer of the district, who may revise sentences. them if he thinks fit. Where the case has been tried with assessors, and the assessors have dissented, the case is to be reported direct to the Chargé d'Affaires (Art. XXIV.).

In cases of common assault the Consul is to promote recon- Reconciliation ciliation, and to suffer compensation and amends to be made, and to stay the proceedings (Art. XXV.).

Minutes of all proceedings are to be preserved in the public office of the Consulate (Art. XXVI.).

assault.

English law.

Save and except offences against the stipulations of the Crimes to be Treaty, or against the regulations for the observance of the judged by Treaty, or against the regulations for the peace, order, and good government of British subjects, acts committed by them in Morocco are to be deemed punishable only, if they are punishable by the law of England.

Crimes which it is expedient shall be tried and punished Deportation in Her Majesty's dominions shall be tried at Gibraltar, the for trial. Consul having authority to send the case for trial there (Art. XXVII.).

Regulations for deportation, and the observance of the deportation sections of the Foreign Jurisdiction Act, are provided in Arts. XXVIII. & XXIX.

Colonial

The Supreme Court of Gibraltar is to have concurrent Concurrent jurisdiction with the Consul in all civil suits arising between jurisdiction of British subjects in Morocco. The proceedings before the Court. Consul may be stayed by certiorari or otherwise by the Court

at Gibraltar (Art. XXX.).

Fines and penalties may be levied by distress and seizure, and sale of ships, and of goods and chattels. No bill of sale, mortgage, or transfer of property, made after apprehension, or with a view of securing the owner against the consequences of a crime, shall avail to defeat this provision (Art. XXXI.).

The Consul may establish rules of practice, scale of fees, &c. The scale of fees is to be exhibited in the public office (Art. XXXII.).

All fees, penalties, &c., except those payable by the Treaty to the Sultan (unless they are declined), are to be paid into the public account, and to be applied in diminution of the expenses. of the Consulate (Art. XXXIII.).