HC Deb 14 March 1844 vol 73 cc1007-16
Mr. Monckton Milnes

rose pursuant to notice, to call the attention of the House to the present state of Criminal Jurisdiction over British subjects within the dominions of the Porte. Within these dominions a considerable number of British subjects resided; Maltese and Ionians principally, and a few Englishmen. The Maltese being totally dependent on the coasting trade they carried on with the Levant and the opposite coast of Africa, the consequence was that many of them had settled in and formed a large portion of the population, of Smyrna, Beyrout, Constantinople, Tunis, Tripoli, and Alexandria. There were no means of calculating accurately the number of Franks resident in those places; but he believed he was not overstating the fact when he said that in Alexandria alone there were 2,000 Maltese British subjects; 2,000 in Constantinople, and 1,500 in Smyrna; and such was the anomalous state of the law, that murder or any other crime might be committed by any of these people almost with impunity, for there were no means of bringing them to punishment. We had, in fact, thrown this large number of British subjects into the dominions of the Porte without providing any consular code of laws for their government, and for the punishment of crime. It might be supposed they were subject to the laws of the country in which they resided, but that was not the case, and certainly when they remembered that the Turkish law was almost purely ecclesiastical, and regulated by the Koran, it would be most unfair and unjust to commit Christian settlers to its jurisdiction. Accordingly from the time of Charlemagne downwards, in every treaty entered into with the Porte and Christian countries, it had been expressly provided that the Christian subjects of those countries should be independent of the Turkish law; and in all our treaties with the Porte we had insisted on the abstraction of our subjects from the jurisdiction of the Turkish tribunals. But though we had insisted upon this, and on vesting in criminal cases the whole jurisdiction in the Consul of the Christian nation to which the Christian criminal belonged, strange to say we had left our own Consul without the power of taking cognizance of such crimes. On the contrary, when the Consuls had exercised some authority, and imprisoned refractory seamen, they were threatened with proceedings in this country for false imprisonment. And in some instances these Consuls felt it necessary to remain voluntary exiles from their country, fearing the liability which, for having interfered to repress or punish crime in British subjects residing in their respective consulates, they were subject by the law as it now stood. He would state an instance of the defective state of the law. A very atrocious murder had been committed at Smyrna by a Maltese upon a Dutch woman. Application was made to the British Consul to bring the criminal to justice, and he wrote to the Foreign Office for instructions. The case was referred to the Law Officers of the Crown, and they reported that, as the law stood, the only mode of dealing with the culprit was to send him to England to be tried at the Central Criminal Court. To do this, it was necessary not only to bring the guilty party, but several witnesses to substantiate the case against him; and the House would see that to bring that man to trial for his offence, must have cost a very large sum to the country. Again, in the case of any injury being inflicted by an Englishman on a Turkish subject—though, according to the letter of the stipulations of certain treaties, he might be given up to be judged by the Ottoman courts, those stipulations were overruled in practice, and under no circumstances of criminal cases were English subjects submitted to the jurisdiction of the Ottoman courts, at least in the countries immediately under the jurisdiction of the Sultan. For a long period this was the anomalous position of the law; but in the course of the last Session of Parliament a Bill had been passed which gave to the Government full powers of remedying the evil, if they chose. He alluded to the Foreign Jurisdiction Bill. Lord Aberdeen, in writing to the Consuls in the Levant in reference to that Bill, informed them that by it they were relieved from those consequences in this country, on account of acts done by them in imprisoning refractory seamen, to which they had been previously subject; but giving no instructions—no suggestions to govern them as to the future, and providing no remedy for those great evils which he had described. He would mention another case as showing the insufficiency of the powers with which the Consuls were vested, in regard to lesser criminal matters. Mr. Larkin, the Consul at Alexandria, had informed him that on his return to that place, after a short absence, he found that one of his servants, a Maltese, had during his absence sold all his wine and plate. The man had not absconded, and upon being threatened, told Mr. Larkin that he knew very well that he could do no more than get the consul to imprison him for a week or two below in his dining-room. As he had said, the Government, knowing the necessity of the case, obtained a Bill from Parliament last year, and had subsequently issued an Order in Council informing the authorities that that Bill had passed, but they had taken no steps to carry out the objects in view, and had left an evil, which was a disgrace to any Christian country, precisely in the state in which they had found it. Under these circumstances he felt it to be his duty to move an Address to the Crown upon the subject, and he hoped the House would show its sense of the evil, and its conviction that a remedy should be applied without delay, by agreeing to the Motion with which he would now conclude— That an humble Address be presented to Her Majesty representing to Her Majesty the present anomalous state of Criminal Jurisdiction over British subjects within the dominions of the Porte, and praying that Her Majesty will be pleased to establish with as little delay as possible, some such Jurisdiction as shall protect the lives and property of Her Subjects in those countries, and remedy the lawless disorder resulting from the absence of any such Jurisdiction.

Mr. G. W. Hope

said, as he had brought in the Bill to which his hon. Friend had referred, perhaps he should be the best able to reply to his observations. He concurred with his hon. Friend as to the evils which had formerly existed, but those evils the Bill of last year had been brought forward to remedy. His hon. Friend had not noticed the fact that, notwithstanding the complexity of the Maltese law, there was yet a jurisdiction which could take cognizance of criminal acts, known by the name of the Custom of the Levant. That custom had been for a long time in operation in the East; it was known and recognised. The only doubt was as to its legality—and that custom had been legalised by the Bill of last year, and by the Orders in Council which, in consequence of that Act, were issued on the 2nd of October. That Custom in future would be legalised by the Order in Council, so that this branch of the complaint was completely met. The next complaint was, the expense incurred in bringing criminals here, the necessity of obtaining voluntary witnesses, and of paying their expenses; and his hon. Friend, alluding to a particular case, asked why provision had not been made for trying that criminal at Malta? But no such provision could have appeared necessary till the case arose. And when his hon. Friend asked what was legalised, his answer was, that what was legalised was well known, and it might as well be asked of him what was the common law of England. The code of the Levant was a similar code to the common law code of England; and it did not follow that because it could not be strictly defined here, that those who were accustomed to administer it did not understand it. It extended not only to civil but to criminal cases, and came daily before the Consuls abroad. His hon. Friend did not see why this law should not have been codified, and why the full machinery of Government should not have been put into play to carry it out, as soon as the Act to which he had referred passed. But the fact was, that questions of great technical difficulty had arisen—questions which had been referred to the law officers of successive Governments,—and there was the greatest difficulty in reconciling the maintenance of the liberties of British subjects, combined with a due control over their excesses and their crimes in all parts of the world, with the very summary jurisdiction exercised by the Oriental and despotic States, and by some barbarous nations; and the only way occasionally to deal with it appeared to be to place the parties under the absolute control of the Representative of the Crown. The powers of the Consuls and the powers which the House had entrusted to the Government must be exercised with the greatest responsibility. It would be extremely difficult for that House to legislate on the question—it was equally difficult for the Government then to issue Orders in Council which were to stand in the place of legislation; and until Parliament had lately granted very extensive powers to the Crown, it was difficult to take any step at all. After obtaining those powers, before hastily and in ignorance proceeding to legislate, it was requisite to obtain a full statement of the laws and customs prevailing in the various parts of the world which would be affected by that Act. His hon. Friend complained that no legislation had taken place; but he did not, and could not, complain that the materials necessary to found that legislation had not been asked for. The Government had taken the only safe step, by requiring and obtaining full information as to the laws and customs already existing without which they could not draw up any code, or legislate with any effect.

Dr. Bowring

observed, that according to the confession of the hon. Gentleman who had last spoken, the state of things in the Levant at the present time was most unsatisfactory. Nothing could be less defined than the "customary law" which prevailed in the Levant. The customary laws of one locality differed widely from those of another. Those of Smyrna were as different from those of Alexandria as those of Alexandria were from the laws of Aleppo. The administration of these laws in each locality differed more widely still. Some Consuls had doubts as to their powers, were perplexed and embarrassed in the administration of their authority, feared to give due protection, and left the complaints of British subjects entirely without redress; whilst, in other cases, Consuls exercised their power with a most despotic and an almost intolerable authority. What was really wanting was a code, a simple code of laws, and an easily accessible Court of Judicature. He had understood that the Government intended to send out a Commissioner to inquire into the state of the regulations and laws at present subsisting, and he much regretted that they had not put that intention into execution. He thought it would be advisable to carry out that plan in order to obtain the best information, and he again strongly urged that no time should be lost in establishing some sort of judicial jurisdiction.

Sir Robert Peel

apprehended that there was no real difference between his hon. Friend the Member for Pontefract and the Government upon the subject before the House. He considered the state of the law relative to British subjects in the Levant to be most unsatisfactory. But he must say that he believed that one of the chief causes of the difficulty in providing a remedy had been that tenderness which a British Minister must ever feel as to interfering with the forms of our criminal jurisprudence. They were not in this respect dealing with British subjects, in the strictest sense of the word, but with Maltese and Ionians, who had been included in the term, and who were not bound—and this much increased the enormity of the evil—by those moral considerations which generally influenced British subjects, strictly so called. The crimes committed were frequently of the most atrocious character, and cases often occurred in which the severest penalties of the law should have been inflicted. There had, indeed, been crimes committed by British subjects in the ports of the Levant which would have fully justified the infliction of capital punishment. But, to give proper effect to such punishment, it should be inflicted on the spot where the crime had been committed. The trial ought also to take place there; but he thought that a British Government was justified in pausing before they committed to a Consul—to one man—frequently un- acquainted with legal subjects, and without the aid of a Jury, the absolute power of passing sentence of death. That was one of the difficulties which did for a long time, and which did still exist. In the case of a murder committed at Rhodes, where was the use of bringing the criminal to Malta, and trying and executing him there? The execution ought to take place where the crime was committed; it added to the repugnance which they naturally felt at running a man up to the yard-arm, at a place distant from that in which the crime was perpetrated, and long after its commission, when they reflected that the example would not produce that benefit which might, under other circumstances, be expected to arise from it. Let them depend upon it, too, that if any single act of possible injustice should be committed in the name of the law, the example of the Government of England in tolerating such a system would be productive of the most prejudicial effects. It would induce other Governments to act upon the same principle, and to discard those securities for human life which the English law was careful to throw around the prisoner. But he was willing to admit that the subject required consideration, and he could state as a fact that two days after the Bill referred to became law, his noble Friend the Foreign Secretary addressed a despatch to Sir Stratford Canning, enumerating the objects to be considered in the appointment of Assessors to aid the Consuls at different parts in the execution of their duties; stating the various difficulties which presented themselves, and which it was yet necessary to overcome, and requesting him to give his opinion upon various matters connected with the subject. As no answer was for some time received to that despatch a second was sent, and in the course of a few weeks at farthest from the present time he apprehended that they would receive from that most intelligent and competent judge, who had himself frequently represented the unsatisfactory state of the law at present, that answer to the communications made to him which might be most important, as enabling them to decide upon the course the most proper to be adopted. He deprecated undue haste in acting with reference to this matter. Ample consideration would be given by Government to the subject; but it was better to use great deliberation in the formation of a code re- ducing to enactment that which depended on custom and usage. But by acting with too much precipitation, they would be afterwards compelled to make changes in any regulations which might be introduced. He hoped that he had said enough to show that the subject had occupied the attention of Her Majesty's Government. They were deeply sensible of the extent of the evil, and when they could frame such a code as it might be suitable and fitting that this great country should establish, his hon. Friend near him and hon. Gentlemen opposite might depend upon it that no time would be suffered to elapse ere it was put into execution.

Viscount Palmerston

agreed with the right hon. Baronet as to the great importance of the subject, and he could say, in corroboration of the right hon. Baronet, that if no satisfactory arrangement had been made by the late Government, it was not in consequence of the subject not having occupied their most anxious attention. They had referred it to their law-officers, who bestowed upon it their most deliberate consideration, but they were unable to suggest any practical measure which the Government thought it expedient to adopt. When the law-officers were asked to form a code for the guidance of consuls in the Levant, they replied that this would be to codify the laws of England. It was a Herculean task, which, if undertaken at all, should be undertaken for the use of the kingdom at large. The right hon. Baronet had stated one great difficulty incidental to this matter—the impolicy of executing a criminal at a distance from the place where his offence was committed. By so doing all that was advantageous in capital punishment was lost—the very grounds on which its expediency was founded disappeared. The capital sentence of the law was not inflicted so much as a punishment to the individual, as for a warning to deter others. And if a culprit were to be executed at a great distance from the place where he committed his crime, and in another country, almost all the benefit of example would be lost. Well, then, again—there was a great difficulty as respected trial. It was very difficult, in most instances, to establish upon the spot where the offence was committed a Tribunal satisfactory to our notions of justice. A Jury could not always be empannelled, nor could a Judge be found possessed of sufficient legal knowledge. As to the remedy proposed by his hon. Friend the Member for Pontefract—namely, that the trial should be conducted by means of affidavits—a practice adopted in numerous continental countries—that a man should be tried for his life at Malta upon affidavits made by witnesses who were remaining at Smyrna—that was a proceeding so utterly repugnant to the practice and notions of this country, that he was sure the British public would never acquiesce in the infliction of capital punishment in pursuance of a condemnation founded upon such evidence. By such a course of procedure, they would divest the accused person of the security afforded by the viva voce examination and cross-examination of witnesses. Then, again, as to persons having held consular offices, who were stated to be kept out of the country by apprehensions of prosecution for false imprisonment, he must say, although he was only speaking from recollection, that he believed there had been cases in which the powers of consuls had been exerted in a somewhat arbitrary manner, in which imprisonment had been inflicted, when the circumstances had not justified its imposition; and if he was not mistaken, it was the apprehension of legal proceedings for such overstrained exercise of power, that prevented the individuals alluded to from returning to this country; and even if the power of the consuls were to be better defined and legalized, still in any case of an excessive and unjustifiable exercise of such power, the functionary so misconducting himself would be liable to answer for acts before a tribunal of this country. He must admit, that the whole subject was environed by difficulties; but he thought that the Government had taken the right course in relation to them. The power which Parliament had given the Government was the most expedient mode of coming to a good arrangement, and he thought that the steps which they had taken were in the right direction. The House must feel obliged to the hon. Member for introducing the subject to their notice, but he must say, that Government was not justly chargeable with undue delay. It seemed to him, that they had acted with that prudence and circumspection which the importance and the difficulty of the subject required. He hoped that the inquiries which they had instituted would lead to some satisfactory arrangement.

Mr. M. Milnes

replied, that with reference to what had been said as to punishing offenders without all the formalities of the English law, he thought that was better than to allow crime to remain unpunished. Great objections had been made to the system of trial by affidavit, but other nations had adopted it; and if Englishmen did not approve of it, the Maltese had no objection. When he regarded the kind manner in which the right hon. Baronet at the head of the Government had taken the suggestions which he had thrown out, and the satisfactory reasons which he had given for the delay which had taken place in carrying the Bill passed last Session into practice, he would not press the Motion to a division.

Sir R. Peel

remarked, that although they might be entitled to try a Maltese at Malta, according to the laws existing there, yet he would not try a Maltese at Smyrna by a new and different system. He should protest against making any distinction between an English and a Maltese offender. It would be no answer to say that the Maltese had no objection to be hanged on affidavit. He should not consider it worthy of a Government to establish such a distinction, in foreign jurisdiction, between a Maltese and an Englishman.

Motion withdrawn.

Forward to