APP. VI. 3. I hold it to be indispensable that one or more legal assessors should be provided for the assistance of the ambassadors and consuls. Of these, one should reside at Constantinople, and assist at all criminal trials and appeals in civil suits. He should also make circuits or occasional expeditions for the purpose of trying the more serious offences elsewhere. From the extent of the jurisdiction, it would appear desirable that a similar officer should reside in Egypt; but provision for that country, and for the Barbary States, might perhaps be made by periodical visits of the Law Officers of the Crown from Malta or Gibraltar. Unless these officers could receive some consular character, they should not possess any nominal jurisdiction, lest they should be thought to trench upon the authority of the ambassadors and consuls, which is that recognized by the treaties and usage; but their concurrence should in all cases be necessary to the validity of a sentence. 4. The civil jurisdiction should for the present be provisionally established according to the existing usage, both as to the application of laws and the forms of proceeding and appeala power of enforcing process by fine and imprisonment being given. It might be well, however, at once to divide the appellate jurisdiction, so as to vest a portion of it in the Consul-General for Egypt. When the Consul-General decides in the first instance, the legal assessor might assume one or more of the magistrates afternamed to form a Court of Appeal. The respective Courts of Appeal might, with the advice of their legal assessor, be empowered to make rules of practice for all the courts within their limits. 5. The criminal jurisdiction should be divided into Courts of Magistracy and of Assize1, the former having the same kind of jurisdiction as magistrates have in England; the latter, the cognizance of more serious offences. The former, in cases which one or more magistrates can decide summarily at home, should be held by the consul alone. When the case is one which would go before quarter sessions at home, some of the principal residents should be associated with the consul, and should for that purpose receive commissions from the Crown, or the ambassador. The Courts of Assize should be presided over by the consul, or consul-general, with the assistance of the legal assessor, and 1 The Courts of Magistracy might be defined by an Order in Council. A regular commission to the assistants, however, seems to me preferable to the system of assessorship there proposed. The office would probably be more valued, and its duties better performed, while the power of appointment might strengthen the influence of the Crown. though trial by jury might often be impracticable, and as a formal system is, perhaps, not to be desired under the circumstances, a certain number of the magistrates might be called in to assist, and might have votes as to matters of fact. The directions issued in the first instance to the legal assessors and consuls should be to decide criminal cases as nearly as may be according to the law of England'. Power to make rules of practice should be vested in the same hands as in civil cases. The ambassadors should have power to pardon and to commute sentences. Banishment from within the jurisdiction should be prescribed in certain cases. Short imprisonments might be provided for on the spot. Those of a longer duration, in Malta, and for the Ionians, in the Ionian Islands. Transportation to the penal settlements might also be provided. Capital sentences should, if possible, be carried into effect on the spot 2. These suggestions, however, I must observe are intended merely for provisional purposes, and that only in a general sense. All permanent arrangements should, I think, be referred for consideration to the legal assessors, who, upon consultation with parties on the spot, and after some practical experience of the working of the system, might be required to furnish reports upon which ulterior legislation should proceed. The employment of these officers, as I have already said, appears to me absolutely indispensable, and I would humbly submit that the first step which Her Majesty's Government should take is to select some lawyer, if possible one who has had experience of practice in Gibraltar or Malta, for the office of assessor at Constantinople. 1 See the Order in Council for Canton (Hertslet, vol. iv. p. 84). 2 It is of course very difficult to say how this should be effected. I have already hinted at executions on board of vessels of war, but, except in cases of great necessity, I should be loth to recommend the imposition of so disagreeable a duty upon the navy. The Porte would probably give assistance through its officers, and perhaps by virtue of one of the Articles of the French Capitulations we are entitled to demand it. At Macao the Portuguese execute delinquents. * The delay of practical measures until a formal code should be provided would be, in effect, an abandonment of the subject in despair. The course which I have recommended with regard to the appointment of legal assessors under provisional instructions, besides meeting the immediate necessity of the case, appears to me to furnish the most likely means of eventually establishing a system of jurisprudence practically adapted to the nature of the jurisdiction. It seems, moreover, to be sanctioned by the usage generally pursued in new colonies. APP. VI. APP. VI. By putting into the hands of such a person the various consular reports and the Levantine codes, &c., of foreign Powers, and by requiring him to point out the regulations which he may consider immediately necessary for his own guidance and protection, more would probably be effected towards a good commencement of the system than could be hoped for in any other way. His position, no doubt, would be at first a difficult one, but not more so, perhaps, than that of many judges who have had the first regulation of tribunals in conquered colonies; and a reference to the charters and instructions, under which such tribunals have been established, would afford him very considerable assistance. 6. It will be observed that I have made no recommendations as to the jurisdiction when exercised jointly with the Turkish magistrates; perhaps it may hereafter assume a shape which may require specific instructions, but at present I do not see how any can be given. There are many other points which have occurred to me in preparing these observations which are not noticed in them, and, doubtless, many more which ought to have been considered, but have escaped me. My report, however, has already run to such a length, and there are such pressing reasons for a decision of the question to which it relates, that I have preferred offering it in its present form to suffering any further delay to occur. I shall, therefore, only add that no one can be more sensible than myself of the extent and difficulty of the question referred to me, or of the imperfectness of the manner in which I have treated it. Indeed, nothing could reconcile me to allowing this paper to pass into other hands but the knowledge that it is intended only for the private use of those who are amply competent to supply its deficiencies, and to correct the errors, whether relating to facts or to principles, which are to be found in it. APPENDIX VII FOREIGN JURISDICTION ACT, 1890, Section. 53 & 54 VICT. c. 37 Arrangement of Sections. 1. Exercise of jurisdiction in foreign country. 2. Exercise of jurisdiction over British subjects in countries without regular governments. 3. Validity of acts done in pursuance of jurisdiction. 4. Evidence as to existence or extent of jurisdiction in foreign country. 5. Power to extend enactments in First Schedule. 6. Power to send persons charged with offences for trial to a British possession. 7. Provision as to place of punishment of person's convicted. 8. Validity of acts done under Order in Council. 9. Power to assign jurisdiction to British courts in cases within Foreign Jurisdiction Act. 10. Power to amend Orders in Council. 11. Laying before Parliament, and effect of Orders in Council. 14. Jurisdiction over ships in certain Eastern seas. 15. Provision as to subjects of Indian princes. 16. Definitions. 17. Power to repeal or vary Acts in Second Schedule. 18. Repeal. 19. Short title. SCHEDULES. An Act to consolidate the Foreign Jurisdiction Acts1. [4th August 1890.] WHEREAS by treaty, capitulation, grant, usage, sufferance, This repealed and consolidated with later Acts the original Act of 1843 (6 & 7 Vict. c. 94), which was passed in accordance with the recommendations of Mr. Hope Scott's Memorandum, printed above in App. VI. APP. VII. 53 & 54 Vict. C. 37. APP. VII. and other lawful means, Her Majesty the Queen has jurisdiction within divers foreign countries, and it is expedient to consolidate the Acts relating to the exercise of Her Majesty's jurisdiction out of Her dominions : Exercise of jurisdiction in foreign country. Exercise of jurisdiction Over British subjects in countries without Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. It is and shall be lawful for Her Majesty the Queen to hold, exercise, and enjoy any jurisdiction which Her Majesty now has or may at any time hereafter have within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory. 2. Where a foreign country is not subject to any government from whom Her Majesty the Queen might obtain jurisdiction in the manner recited by this Act, Her Majesty shall by virtue of this Act have jurisdiction over Her Majesty's subjects for the governments. time being resident in or resorting to that country, and that jurisdiction shall be jurisdiction of Her Majesty in a foreign country within the meaning of the other provisions of this Act. regular Validity of acts done in pursuance of 3. Every act and thing done in pursuance of any jurisdiction of Her Majesty in a foreign country shall be as valid as if it jurisdiction. had been done according to the local law then in force in that country. Evidence as to existence jurisdiction in foreign country. 4. If in any proceeding, civil or criminal, in a court in Her or extent of Majesty's dominions or held under the authority of Her Majesty any question arises as to the existence or extent of any jurisdiction of Her Majesty in a foreign country, a Secretary of State shall, on the application of the court, send to the court within a reasonable time his decision on the question, and his decision shall for the purposes of the proceeding be final. Power to extend enactments in First Schedule. (2) The court shall send to the Secretary of State, in a document under the seal of the court, or signed by a judge of the court, questions framed so as properly to raise the question, and sufficient answers to those questions shall be returned by the Secretary of State to the court, and those answers shall, on production thereof, be conclusive evidence of the matters therein contained. 5.-(1) It shall be lawful for Her Majesty the Queen in Council, if She thinks fit, by Order to direct that all or any of the enactments described in the First Schedule to this Act, or any enactments for the time being in force amending or substituted for the same, shall extend, with or without any exceptions, adaptations, or modifications in the Order mentioned, to any foreign country in which for the time being Her Majesty has jurisdiction. |