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Foreign Enlistment Act, 1870.-33 & 34 Vict. c. 90.
To regulate the conduct of Her Majesty's subjects during the [imp. Stats.,
existence of hostilities beturen F'orign States with which Vol. I, p. 211.)
Her Majesty is at peace. The section in this Act applicable to foreign jurisdiction is negative, and must therefore be noted in this group. It is provided by s. 33, that
" nothing in this Act contained shall extend or be construed to Act nou to apply extend to subject to any penalty any person who enters into !o persons enter
ing into military the military service of any Prince, State, or Potentate in Asia, service in Asia. with such leave or license as is for the time being required by law in the case of subjects of Her Majesty entering into the
military service of Princes, States, or Potentates in Asia." The Act itself is, however, incorporated both as to Protectorates and to foreign jurisdiction in the Neutrality Orders in Council of 1894, which will be considered in Section VIII.
See also note
on p. 70. * The Official Secrets Act, [52 & 53 l'ict., c. 52) should also have been included in this list. It is considered on p. 161.
[Imp. Stats., Pol. I, p. 200.]
Fugitive Offenders Act, 1881.-44 & 45 Vict. c. 69.
This Act may be applied to foreign jurisdiction by s. 36: but it is also one of the Acts mentioned in the ist schedule of the Principal Act, and is, therefore, included in the first group of enactments in this Section.
cf. p. 98.
[imp. Stats., Vol. I, p. 46.]
Colonial Prisoners Removal Act, 1884.-47 & 48 Vict. c. 31.
To make further provision respecting the removal of prisoners
and criminal lunatics from Her Majesty's possessions out of the United Kingdom
[applied by art. 88, China Order, under s. 15.]
Provisions of the Order in Council.
The Act is to apply as if China were a British possession and part of the dominions, with the following substitutions
The British Minister for the Governor or Government of a British possession:
The Supreme Court for a Superior Court of a British possession :
The Supreme Court and each Provincial Court for a Magistrate of any part of the dominions.
Operation of the Act as applied.
The following paraphrase of the Act is limited as far as possible to the procedure consequent on its application to the consular
jurisdiction of China. Removal of pri- Where a prisoner is undergoing sentence of imprisonment in soners from China China for any offence, he may be removed to any British in certain cases. (s. 1.)
possession or to the United Kingdom to undergo the sentence or the residue thereof, if it appears to the removing authority
(a) That it is likely that the life of the prisoner will be endangered or his health premanently injured by further imprisonment in the foreign country; or
(b) That the prisoner belonged, at the time of committing the offence, to the Royal Navy or to Her Majesty's regular military forces; or
(c) That the offence was committed wholly or partly beyond the limits of China; or
" sentence of
(d) That by reason of there being no British prisons in the consular jurisdiction in which the prisoner can properly undergo his sentence, or otherwise, the removal of the prisoner is expedient for his safer custody or for more efficiently carrying his sentence into effect; or
(e) That the prisoner belongs to a class of persons who, under the law administered by the Consular Court in China are subject to removal under this Act.
The converse case of removal under similar circumstances of Removal of prisoners undergoing sentence in a British possession to the prisoners to
China consular jurisdiction in China, also falls within the application of the Act. The question of principle involved in this will be considered in Section X.
"Sentence of imprisonment” means any sentence involving Meaning of confinement in a prison, whether combined or not with labour, imprisor ment.” and whether known as penal servitude, imprisonment with hard [s 18) labour, rigorous imprisonment, imprisonment or otherwise, and includes a sentence awarded by way of commutation as well as an original sentence passed by the Court.
A Secretary of State, or the Government of the possession to Return of which a prisoner has been removed, may order him to be returned removed prisoner.
[s. 3] to China for the purpose of undergoing the residue of his sentence, or for the purpose of being discharged. In other cases, when discharged at the expiration of his sentence, the prisoner is entitled to be sent to China free of cost, except in case (b) above.
The converse case of the return of prisoners from the consular jurisdiction in China, also falls within this section as applied, the necessary orders being made by the British Minister.
The King in Council may make regulations for the removal, Regulations as to return, and discharge of prisoners under the Act. They may
removal. (s. 4] provide for varying the conditions of a sentence of imprisonment passed in a possession, where they differ from the conditions of a sentence in the possession to which the prisoner is removed, with a view to bringing the sentence more into conformity with those conditions ; but a prisoner is not to undergo an imprisonment of longer duration than his actual sentence. And if the conditions of a sentence would become more severe in consequence of the removal, a Secretary of State may remit a portion of the imprisonment so as to equalize the conditions.
This section must apply to prisoners removed from or to the consular jurisdiction in China; the word “China” being substituted for “possession ", when first or secondly used, as the case
requires. The "removing The removing authority” for the purposes of the Act is a authority." (s. 5]
Secretary of State "acting with the concurrence of the Government of every British possession concerned :” and in the case of
China, with the concurrence of the British Minister. Evidence of act The concurrence of, and any requisition by, the Government of of Government of colony: (s.6(1) a British possession, as well as the officer whose duty it is to
signify the same by writing, are to be governed by the law of the possession.
If this Act had been included in the schedule of “Applied Acts” to the Foreign Jurisdiction Act, the King in Council would be substituted for the Legislature of a colony, and Orders in Council for “the law of the possession " in this section, in virtue of s. 5. The necessary regulations in this case may, however, be made by Order in Council, under s. 15 of this Act, which allows Orders to be made “to provide for carrying into effect” the application of the Act to foreign jurisdiction.
Any writing purporting to give such concurrence or make such requisition, and to be signed by the proper officer, is to be conclusive evidence that the concurrence or requisition has been duly
given or made according to law. And a writing purporting to and of Secretary be under the hand of the Secretary of State ordering the removal of State. [s012)]
of a prisoner under the Act, is to be conclusive evidence that the order has been duly given, and is to be admissible in evidence in
the Consular Courts without further proof. Warrant for Where a prisoner is ordered to be removed or returned under removal of pri
the Act, the Minister by warrant may give the necessary soner. (s. 7]
directions as to custody and conveyance by sea or otherwise of the prisoner. The warrant is to be received in evidence in all
Courts without further proof. Dealing with A removed prisoner is to be dealt with in China, or in the removed prisoner. possession to which he is removed, as if his conviction had taken [s. 8]
place and his sentence had been pronounced there. But the sentence may be questioned, and remitted, and an order that the prisoner be discharged may be made, in China or in the possession from which he has been removed.
The officer in charge of any prison is to receive and detain the prisoner for the purpose of the proper execution of the warrant,
on request of the person having the custody of the prisoner under the warrant, and on payment or tender of a reasonable amount for expenses.
If a prisoner in custody under this Act escapes out of custody, Escape of prisoner he may be retaken in the same way as prisoners may be retaken from custody.
9] by the law of the country to which he escapes.
The offences of escaping or attempting to escape, and aiding or attempting to aid a prisoner to escape, may be tried in the possession to or from which the prisoner is being removed or returned, in which he escapes, or in which he is found; and in the application of the Act, in China in the like circumstances. The offence is to be deemed an offence according to the law administered by the Court where the offence is tried, and he may be punished in accordance with the Courts (Colonial) Jurisdiction Act, 1874, which must be deemed to be extended to 37 & 38 Vict.c.27. the Consular Courts, pro hac vice.
The provisions of the Act are to apply to a person in custody Application of as a criminal lunatic in like manner, so far as is consistent with Aci to removal of
criminal its tenor, as they apply to a prisoner undergoing sentence of (s. 10] imprisonment. Separate regulations may be made by Order in Council in relation to criminal lunatics: and subject thereto, the laws in force in China with regard to British subjects who are criminal lunatics shall apply to criminal lunatics removed or returned to the consular jurisdiction, as if they had become criminal lunatics within that jurisdiction.
Where a person who is a criminal lunatic by reason of being unfit to be tried for an offence, is removed under the Act to or from the consular jurisdiction, and a Secretary of State or the British Minister considers that such person has become sufficiently sane to be tried for the offence, and requires him to be returned for trial to the consular jurisdiction, he shall be returned thereto in custody in like manner as if he had been arrested under a warrant on a charge for the said offence. The expression “criminal lunatic” means a person detained Meaning of
"criminal in custody by reason of his having been charged with an offence,
lunatic." and either found to have been insane at the time of such offence, [s. 18] or found, or certified, or otherwise lawfully proved to be unfit on the ground of his insanity to be tried for the same, and includes a person convicted of an offence and afterwards certified or otherwise lawfully proved to be insąne,