(3.) The person convicted shall not be liable to an action for the assault. 68. If, on a trial, the Court is of opinion that the accused attempted to commit the offence with which he is charged, but did not complete it, he shall not be therefore acquitted, but the Court may find him guilty of the attempt, and may adjudge him to be punished as if he had been charged with the attempt. He shall not be liable to be afterwards prosecuted for the offence. 69. If, on the trial of a person charged with robbery, the Court is of opinion that the accused committed an assault with intent to rob, but did not commit robbery, he shall not be therefore acquitted, but the Court may find him guilty of the assault, and may adjudge him to be punished as if he had been charged with the assault. He shall not be liable to be afterwards prosecuted for the assault. 70. If on a trial for any of the following offences, namely, burglary, or stealing in a dwelling-house, or breaking and entering and stealing in a shop, warehouse, or counting-house, or a building within the curtilage of a dwelling-house, or larceny, or feloniously receiving property stolen, embezzled, or otherwise feloniously taken, obtained, or disposed of, the facts proved authorise a conviction for one of those offences, not being the offence charged, the Court may find the accused guilty of that other offence, and may adjudge him to be punished, as if he had been charged with that other offence. He shall not be liable to be afterwards prosecuted for that other offence. 71. If any person procures or endeavours to procure or incites any other person to commit a crime or offence, he shall be punishable on conviction in the same manner as if he were convicted of an attempt to commit that crime or offence. If the crime or offence is actually committed in pursuance of the procurement, or incitement, both persons may be tried and punished for that crime or offence as principal offenders. 72. Sentences of imprisonment passed by a Consular Court shall be carried into effect in such prisons and in such manner as a Secretary of State from time to time directs. If there be no such prison, or if, by reason of the condition of any such prison, or the state of health of the prisoner, or on any other ground, the Consular Court thinks that the sentence ought not to be carried into effect in such prison, the prisoner shall, by warrant under the hand and seal of the Consul, be removed in custody to one of Her Majesty's African possessions, there to undergo his sentence. Any sentence of imprisonment under this Order may be with or without hard labour, as the Court directs. A sentence of death shall be carried into effect in one of Her Majesty's African possessions. When a person is sent to a colony for execution of a sentence of death or imprisonment, the provisions of the 5th section of the Foreign Jurisdiction Act, 1843, shall be observed. 72A. Whenever under this Order a person is to be removed for trial, or for the execution of a sentence of imprisonment or death, to one of Her Majesty's African possessions, he shall be removed to one of the following possessions of Her Majesty, that is to say: Provided Sierra Leone. Gold Coast. Seychelles. Cape Colony. (1.) That a person shall not be so removed to the Cape Colony or Natal without the consent of the Government of the Cape Colony or Natal (as the case may be); (2.) That a person shall not be removed to Mauritius or Seychelles [except from Madagascar or its dependencies or territorial waters], without the consent of a Secretary of State; and (3.) That, subject as aforesaid, in determining to which of the above-mentioned possessions the person is to be removed, regard shall be had to the place of birth or domicile of the person removed, and to any considerations with respect to convenience of trial and the attendance of witnesses, and subject thereto the removal shall be directed to be made to the nearest of the above-mentioned possessions to which the person can be removed. 73. It shall be lawful for a Consular Court, from time to time, by order or warrant under the seal of the Court, to appoint any building or place specified in such order or warrant to be a prison for any purpose of this Order, either generally or in relation to a particular case, or for a limited time, and to appoint such persons as the Court thinks fit to be gaolers, keepers, or officers of any such prison. 74. A Secretary of State may remit or commute, in whole or in part, any sentence of a Consular Court. [In every case of sentence of death the minutes of the trial shall be transmitted to a Secretary of State, and the sentence shall not be carried into effect until confirmed by him.§] When a Consular Court sentences a person to imprisonment *6 & 7 Vict c. 94, now repealed and consolidated with other Acts by the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37). Now incorporated in Natal by Letters Patent of December 1, 1897, printed under the title "Natal." But see note, p. 1. The words in brackets were repealed as to British Protectorates by the Order of 1898, printed at p. 39 below. exceeding twelve months, or fine exceeding 1001, or in any other case, if a Secretary of State by any general or particular instruction so directs, the sentence shall be submitted to the prescribed Court of Appeal for review in the manner hereafter in this Order prescribed. 75. Where a sentence is under this Order submitted for review, the Consular Court shall transmit the minutes of the case, with such observations as the Consul thinks necessary, and the Court of Appeal shall return the minutes, with such instructions as they think fit to give, either as to findings of fact, or as to law, or as to mitigation of sentence, and the Consular Court shall give effect. to such instructions. Pending the review of a sentence, the Consular Court may suspend the execution of the sentence, but is not obliged so to do unless so directed by the Court to whom the case is submitted or by a Secretary of State. In either case the Consular Court may (unless otherwise directed) take such security by way of bail or otherwise, and if necessary by commitment to prison for safe custody, as it thinks necessary for submission to the ultimate sentence. 76. Where a person charged with having committed a crime or offence in the district of one Court escapes or removes from that district, and is found within the district of another Court, the Court within the district of which he is found may proceed in the case to examination, indictment, trial, and punishment, or in a summary way (as the case may require), in the same manner as if the crime or offence had been committed in its own district; or may, on the requisition or with the consent of the Court of the district in which the crime or offence is charged to have been committed, send him in custody to that Court, or require him to give security for his surrender to that Court, there to answer the charge and be dealt with according to law. Where any person, is to be so sent in custody a warrant shall be issued by the Court within the district of which he is found, and such warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named, and to carry him to and deliver him up to the Court of the district within which the crime or offence was committed according to the warrant. 77. Where a warrant or order of arrest is issued by a competent authority in Her Majesty's dominions for the apprehension of a British subject, who is charged with having committed a crime or offence within the jurisdiction of the authority issuing the warrant or order, and who is, or is supposed to be, in the district of a Court, and the warrant or order is produced to the Court, the Court may back the warrant or order; and the same when so backed shall be sufficient authority to any person to whom the warrant or order was originally directed, and also to any constable or other officer of the Court by which it is backed, to apprehend the accused at any place where the Court by which the warrant or order is backed has jurisdiction, and to deliver him on board any ship in African waters into the custody of any person having authority to receive and carry him in custody to Her Majesty's dominions. 78.-(1.) In cases of murder or manslaughter, if either the death or the criminal act which wholly or partly caused the death happened within the jurisdiction of a Court acting under this Order, such Court shall have the like jurisdiction over any British subject who is charged either as the principal offender or as accessory before the fact to murder, or as accessory after the fact to murder or manslaughter, as if both such criminal act and the death had happened within such jurisdiction. (2.) In the case of any crime committed on the high seas, or within the Admiralty jurisdiction, by any British subject on board a British ship, or on board a foreign ship to which he did not belong, a Court acting under this Order shall have jurisdiction as if the crime had been committed within the district of such Court. In cases tried under this provision no different sentence can be passed from the sentence which could be passed in England if the crime were tried there. (3.) The foregoing provisions of this article shall be deemed to be adaptations, for the purposes of this Order and of the Foreign Jurisdiction Act, 1878,* of the following enactments described in the First Schedule to that Act (that is to say) : The Admiralty Offences (Colonial) Act, 1849.† The Merchant Shipping Act, 1867,§ section 11. And the said enactments shall, so far as they are repeated and adapted by this article (but not further or otherwise), extend to all places within the limits of every local jurisdiction constituted under this Order. 79. The Fugitive Offenders Act, 1881,|| shall apply to each local jurisdiction constituted under this Order as if such local jurisdiction were a British possession, subject to the conditions, exceptions, and qualifications following: (1.) The said Act shall apply only in the case of British subjects. (2.) The principal British consular officer for the time being in the jurisdiction, or person acting as such by authority of a Secretary of State, is for the purposes of the said Act substituted for the governor of a British possession, and for a superior Court, or a Judge thereof, in a British possession, and for a magistrate or justice of the peace in a British possession. (3.) So much of the fourth and fifth sections of the said Act as relates to the sending a report of the issue of a warrant, together with the information, or a copy thereof, or to the sending of a certificate of committal and report of a case, *41 & 42 Vict. c. 67, now repealed and consolidated with other Acts by the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37). † 12 & 13 Vict. c. 96. 23 & 24 Vict. c. 122. § 31 & 32 Vict. c. 129, now repealed and consolidated with other Acts by the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60). 44 & 45 Vict. c. 69. or to the information to be given by a magistrate to a fugitive, shall be excepted. (4.) So much of the sixth section of the said Act as relates to habeas corpus, and as requires the expiration of fifteen days before issue of a warrant shall be excepted. (5.) The said consular officer shall not be bound to return a fugitive offender to a British possession unless satisfied that the proceedings to obtain his return are taken with the consent of the governor of that possession. For the purposes of Part II. of the said Act, Madagascar * and Mauritius shall be deemed to be one group of British possessions, and any other local jurisdiction constituted under this Order shall be deemed, together with Her Majesty's African possessions other than Mauritius, to be one group of British possessions. 80. The Colonial Prisoners Removal Act, 1884,† shall apply to each local jurisdiction constituted under this Order as if each local jurisdiction constituted under this Order were a British possession and part of Her Majesty's dominions, subject as follows: The principal consular officer in any district shall, in relation to such district, be substituted for the governor of a British possession. 81. Nothing in this Order shall be deemed to affect Her Majesty's prerogative of pardon. PART VII.-Appeals. 82. In civil matters an appeal shall lie from a Consular Court to the prescribed Court of Appeal by the leave of the Consular Court, or without such leave where leave is given by the Court of Appeal. The appeal shall be brought within such time and in such manner, as regards the form and transmission of the appeal, and as to stay of execution and otherwise, as may be prescribed by any rules of procedure made under this Order, or as in any case by any special leave or Order the said Court of Appeal may direct. A Consular Court may, before deciding any civil matter, state a case in writing for the opinion of the prescribed Court of Appeal, and shall give effect to such opinion, and when a case has been so stated, no appeal shall be brought against the decision of the Consular Court in conformity therewith unless by leave of the same Court of Appeal. As regards matters not provided for by this article, the procedure on appeal in the Court of Appeal may be the same as the ordinary procedure of that Court upon the hearing of any application for a new trial, or upon a case stated or reserved for the opinion of the Court, and the judgment or order of such Court in the appeal shall be certified under its seal to the Consular Court which shall give effect thereto. The decision of a Court of Appeal under this Order shall be *But see note, p. 1. † 47 & 48 Vict. c. 31. |