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Crimes by British subjects.
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
In cases of common assault the Consul is to promote recon- Reconciliation ciliation, and to suffer compensation and amends to be made, assault. and to stay the proceedings (Art. XXV.).
Minutes of all proceedings are to be preserved in the public office of the Consulate (Art. XXVI.).
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 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.
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.).
Probate and administration.
long form of
Japan, O. in
The Consul may grant probate of wills, or letters of administration to the intestate estate of any British subject, or any native of a State or place under British protection, who shall die leaving property in Morocco. If no application is made for probate or letters of administration within thirty days after the death of the deceased, the Consul is to administer the estate, reserving a commission out of the proceeds of 24 per cent. on the account (Art. XXXIV.).
British subjects residing in Morocco are required to be enrolled in a consular register, except such as are borne on the muster-roll of a British ship in port. A subject refusing or neglecting to register, without satisfactory excuse, “shall not be entitled to be recognised or protected as a British subject in respect to any suit, dispute, or difficulty in which he may be engaged or involved" (Art. XXXV.).
The Consul is to exercise all the powers for the regulation of merchant seamen, or of the merchant marine, which are exercised by Justices of the Peace in Her Majesty's dominions (Art. XXXVI.).
Nothing in this Order is to be construed to prevent the Consul in Morocco "from doing or performing any act whatsoever which British Consuls within any other State in amity with Her Majesty are by law, usage, or sufferance, entitled or enabled to do or perform" (Art. XXXVII.).
The limitation of actions against Consuls is provided by Article XXXVIII.
Articles XXXIX., XL., and XLI. are formal.
For an example of the more elaborate form I take the Order relating to China and Japan, dated March 9, 1865, as amended from time to time. This Order was substituted for one promulgated in the short form, January 23, 1860.
After reciting various Acts of Parliament and Orders in Council, certain terms are defined in Section I., " Preliminary." Section II. lays down "general provisions respecting Her Treaties, Vol. Majesty's Jurisdiction." This jurisdiction is declared to be— For the judicial hearing and determination of matters in difference between British subjects, or between foreigners and British subjects: or,
xii. p. 281.]
Definition of the Queen's jurisdiction.
for the administration or control of the property or persons of British subjects: or,
for the repression or punishment of crimes or offences committed by British subjects: or,
for the maintenance of order among British subjects.
The above civil and criminal jurisdiction is, "as far as circum- Application of stances admit," to be "exercised upon and in conformity with the common law, the rules of equity, the statute law, and other law for the time being in force in and for England." It is to be exercised with the same powers as are vested in the Courts of Justice and Justices of the Peace in England; and according to the same course of procedure and practice as obtains in the Courts and before the Justices.
With the exception of offences declared by the Order, or by rules made under it, acts are to be deemed punishable only if they are punishable in England.
Section III. deals with the constitution of the Courts.
Section IV. declares the qualifications of British subjects liable
to serve on juries, and to be summoned as assessors.
Section V. deals with the jurisdiction and authorities of Her Majesty's Courts.
to be auxiliary
It is specially provided that any of the Consular Courts in Consular China and Japan "may execute any writ, order or warrant" Courts to issuing from the Colonial Supreme Court in Hong Kong, and from Colonial accompanied by a request for such execution under the Courts; and seal of the Court. Security may be taken from the person to one named for his appearance at Hong Kong; or he may be another. taken in custody to the Colony. And generally that the several Courts in China and Japan are to be "auxiliary to one another in all particulars relative to the administration of justice, civil or criminal."
Reconciliation in civil matters is to be promoted, and arbitration encouraged.
The Courts are to be Courts of Law and of Equity.
The following special jurisdictions are," as far as circumstances admit," conferred either on the Supreme Court alone, or on all the Courts.
In bankruptcy, the jurisdiction of the English bankruptcy Art. 52. authorities, with respect to British subjects and to their debtors and creditors, being either British subjects or foreigners submitting to the jurisdiction.
All the powers, rights and duties, appertaining to the office of Art. 53. coroner in England, including the right to summon juries, and impose fines for disobedience to the summons.
The jurisdiction of the Vice-Admiralty Courts of the Colonies, Art. 54
In reading this Order, great care must be taken to distinguish the by statute to Consular from the Colonial Courts. The expression "Courts in China and Japan" does not include the Courts in Hong Kong.
Admiralty jurisdiction. cf. p. 75.1
Arts. 64 et seq. Criminal jurisdiction.
"for and within China and Japan, and for vessels or persons coming to or within China or Japan."
In lunacy, the jurisdiction relative to the custody and management of the persons and estates of persons of unsound mind exercised by the Lord Chancellor in England.
In matrimonial causes, all the jurisdiction of the Divorce Court in England, except that relative to dissolution, or nullity, or jactitation of marriage.
In probate, all the jurisdiction of the Court of Probate in England, with respect to the property of British subjects having at the time of their death their fixed places of abode in China or Japan.
Persons having in their possession or under their control papers of a deceased British subject being or purporting to be testamentary, are to deposit such papers in Court within fourteen days after having knowledge of the death of the deceased, subject to a penalty not exceeding 250 dollars.
In the case of intestacy of a British subject, having at the time of his death his fixed place of abode in China or Japan, his personal property is vested in the Judge of the Supreme Court, until administration granted, as it vests in England in the Judge of the Court of Probate.
Dealing with the personalty of any deceased person without obtaining probate or administration within three months after his death is subject to a penalty not exceeding 500 dollars.
On the death of a British subject in China or Japan who had not his fixed place of abode there, the Court may, if the case requires it, take possession of his personal property, or put it under the seal of the Court, and so keep it until it can be dealt with according to law.
In criminal matters, every Court " may cause to be apprehended and brought before it any British subject being within the district of the Court, and charged with having committed a crime or offence in China or Japan." If the offence is triable, or to be tried, in Her Majesty's dominions, the Court may take the preliminary examination, and commit the accused for trial, "and cause or allow him to be taken to the place of intended trial.”
Warrants issued by competent authorities in the dominions for the apprehension of British subjects charged with having committed a crime within the jurisdiction of the authority issuing the warrant, may be backed by the Court, and are then of sufficient authority for the apprehension of the accused, and for his being sent back according to the warrant.