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Secondly, as to the deportation of offenders for trial or pun- Deportati on. ishment to an adjacent British possession. The examination of the soundness of the position taken up on this point by Parliament takes us back again to first principles. The course followed is this: The offender, being within the jurisdiction of the British authorities, is brought before the Consular Court. But, under certain circumstances, the jurisdiction is not exercised, and the accused in one case, or the prisoner in the other, is transferred to another jurisdiction. What these circumstances are is found expressed in the various Orders in Council; at the present time only the general aspect of the case is being considered. Now it is obvious from the nature of the case that this law contains within itself a condition which prevents its being applied to all cases. This condition is that the jurisdiction over British offenders is vested exclusively in the British authorities. In one class of exterritorial Treaty, as we have seen, the jurisdiction is shared by the national authorities. In some the native Government is entitled to watch the proceedings, and to protest against them; in others the native official himself forms part of the tribunal. In these cases there can, on the face of the Cases in which it could Treaties, be no question as to deportation: at least of accused not be persons. But even in the case of convicted prisoners in these applied. cases, and of both accused and convicted persons where the jurisdiction is not shared by the national authorities, there appears to me to be grave doubt whether both the trial and punishment ought not to take place within the country where the offence has occurred. It seems to me to be a very wide construction of the usual words "British authorities," or "other [f. Japanese Treaty with public functionary authorized thereto," which occur in the Italy, ante, p. Treaties, to say that they mean British authorities or function- 55.] aries anywhere. The whole idea of Consular jurisdiction seems to be opposed to it. The peace broken must be, as I have endeavoured to show, the peace of the Sovereign of the country: ante, p. 20. the Queen's law is allowed to determine whether or no any act in question amounts to a breach of that peace, and therefore becomes for British subjects, to all intents and purposes, the law of the country: the Queen's Courts are allowed to examine into the question and pronounce judgment, and therefore become for
[Foreign Jurisdiction Act, 1890, s. 3.]
British subjects, to all intents and purposes, the Courts of the country; for every act and thing done in pursuance of the Queen's foreign jurisdiction is to be as valid as if it had been done according to the local law of that country: but the whole end of punishment is lost sight of if the trial, at least, does not take place in the country where the offence was committed.
The principle seems indeed to be expressly admitted in the Agreement with China of 1876, which explained the 16th Article post, p. 235. of the Treaty of Tientsin. There, although in the Treaty no right of attending proceedings is reserved to the officials of either nation, "it is understood" in the Agreement "that the case is tried by the official of the defendant's nationality," and that "the official of the plaintiff's nationality attends to watch the proceedings in the interests of justice."
Punishment of deportation.
It will be observed, too, that the provisions of the section do not limit the power of deportation to cases in which British subjects alone are concerned; they do not exclude cases in which the prosecutor is a national or a foreigner.
Deportation as a punishment may probably be rested on a sounder footing. It is sometimes to be found expressly sanctioned in a Treaty, as in the case of Madagascar; but it is very frequently, if not invariably, introduced in the Orders in Council, in the case of incorrigible offenders, as a further security for the peace of the country. We shall see presently that a certain amount of legislative power seems to flow from the nature of the grant of jurisdiction. Where this power is unfettered, the introduction of this novel form of punishment seems to be warranted. But the doubt as to whether the introduction of the term "British law" in the grant does not limit this legislative power extends to this question also. The warrant for deportation as a punishment does not seem to extend, however, to deportation either for trial or for punishment.
Thirdly, as to the application of the Fugitive Offenders Act to Oriental countries.
Consider for a moment what the Fugitive Offenders Act is. It is extradition applied to our Colonial Empire. The conditions of sovereignty enable the net to be cast with much wider sweep
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 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.]
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.
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.).
In like manner civil suits arising in Morocco brought by By British British against Moorish subjects are to be tried by the Moorish subjects against 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.). 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.).