PUBLIC RECORD OFFICE
ர்ய
CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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desirable that British subjects should be exempted from extradition to Turkey, as they would, when so surrendered, have the protection of the Capitulations, and that your Lordship proposed that Clauses la, 2a and 28 of the draft Order in Council should be altered accordingly.
That the difficulty which was raised by Sir J. Pauncefote as to complying with the conditions of clause 2 in the case of a foreigner who had committed a crime in Turkey against another foreigner, and was exempted by the Capitulations from the jurisdiction of the Ottoman Courts, would, as it appeared to your Lordship, be obviated by substituting, in that clause, for the words "judge or magistrate of the country from which the person whose extradition is sought is alleged to be a fugitive," the words "judge or magistrate exercising jurisdiction in the country, &c.," so as to cover the case of a warrant issued by a consular court having jurisdiction in Turkey, under the Capitulations.
That we should observe that in the Foreign Office memorandum reference was made to an opinion expressed by the late Lord Chancellor, that the Order in Council should (not) be made retrospective, but that your Lordship was not disposed, as at present advised, to concur in that opinion; but that your Lordship would be glad to receive our opinión upon that point.
That your Lordship concurred in the objections to section 31, expressed in the Foreign Office memorandum, and that your Lordship proposed it should be struck out. That Mr. Herbert was to add that it was proposed to add to the draft a schedule of forms adopted from those in the 2nd schedule of the Extradition Act of 1870.
That Mr. Herbert was to request that we would advise your Lordship whether the draft Order in Council, with the proposed alterations above indicated, might properly be submitted to Her Majesty in Council.
In obedience to your Lordship's commands we have the honour to
Report
That, in our opinion, Her Majesty has the power under the Convention of dealing with Ottoman subjects who may be in Cyprus as fugitive criminals, and of surrendering them to foreign countries.
With reference to the surrender of British subjects, we see no reason why they should not be given up; and the principle, which has been sometimes acted upon, of surrendering a criminal the subject of the State in which he may be found, adopted.
We therefore consider that clauses 1(a) and 2(a) and 28, may properly be altered as suggested by your Lordship.
In clause 2, for the words "judge or magistrate," the words “judge, magistrate, or other person lawfully exercising jurisdiction in the country" may, in our opinion, be properly substituted.
The words" or not being a British subject " in clause 2(s) should (if the alterations be made in clauses 1(a) and 2(a) and 28) be omitted.
We are not aware of the reasons expressed by the late Lord Chancellor against the Order in Council being retrospective; but, inasmuch as the Order only provides a procedure for securing the punishment of offenders against existing laws, we concur with your Lordship in thinking that the Order may properly be made to apply to crimes committed before the making of the Order.
We concur in the opinion that it is desirable to omit clause 31.
Subject to the proposed alterations, we think that the Order in Council may properly be submitted to Her Majesty.
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
We have, &c.. (Signed) HENRY JAMES.
FARRER HERSCHELL. J. PARKER DEANE.
9668.
MY LORD,
No. 256.
(CEYLON.)
LAW OFFICERS to COLONIAL OFFICE.
We were honoured with your Lordship's commands signified in Mr. Herbert's
Temple, 1st June 1881. letter of the 13th May last, stating that he was directed to transmit to us a copy of a despatch from the Lieutenant-Governor of Ceylon enclosing a memorial addressed to your Lordship, and a petition addressed to the Legislative Council of the island by the Consistory of the Reformed Dutch Presbyterian Church at Wolfendahl, in Columbo; and to request that we would advise your Lordship as to the validity of the claim preferred by that Church.
2. That it had been determined that at the expiration of five years, dating from the 1st of January last, all the ecclesiastical subsidies at present paid in Ceylon from Government funds should be discontinued; but the petitioners protested against such a course in their case, relying mainly, as set forth in their petition, on Article 18 of the Capitulation Treaty of 1796, in which it was stated that "the clergy and other eccle- "siastical servants shall continue in their functions, and receive the same pay and emoluments as they had from the Company," and upon a letter from the Colonial Secretary quoted in the fourth paragraph of the petition.
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3. That your Lordship requested to be informed whether in the circumstances detailed in those papers the memorialists had, in our opinion, established a good claim to be exempted from the operation of the general measure of disendowment which was
to be applied to other communions hitherto receiving State aid.
In obedience to your Lordship's commands we have the honour to
Report
That we are of opinion that the 18th Article of the Capitulation could not be deemed binding upon the British Government for all time and in all circumstances, even if the state of things which existed at the time of the Capitulation had continued.
But it appears that the Dutch clergy in 1806 voluntarily left Ceylon, and so dis- continued the functions in consideration of which they had received and were to receive pay and emoluments.
The grant thereupon made under the minute of Sir T. Maitland was in our opinion outside the Capitulation, and capable of revocation at any time, subject only to the same consideration for existing vested interests as it may be deemed just to observe on the withdrawal of the grants from other religious communions.
We therefore advise your Lordship that the memorialists have not established a good claim to be exempted from the general measure of disendowment which is to be applied to other communions.
We have, &c.,
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
(Signed)
HENRY JAMES. FARRER HERSCHELL. J. PARKER DEANE.
A 129:6--239. 25.--12/84
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