Such particulars as the Board of Trade may require are to be endorsed upon the agreement of the ship. If the prisoner is not in the custody of any person, the master. is to hand him over to a constable on arrival in port. An escaped prisoner may be retaken in the consular jurisdiction Escape of prisoner from custody. of China, if he escapes out of the custody of a person acting under [s. 28] a warrant issued or endorsed under the Act, in the same manner as he may be retaken if he had originally been taken into custody there. The offences of escaping or attempting to escape, or of aiding or attempting to aid an escape, by breach of prison or otherwise, may be tried by the Consular Court— if the prisoner is being removed to or from the consular jurisdiction: or, if he escapes or is found within the consular jurisdiction. Depositions may for the purposes of the Act, be taken in the Depositions to be evidence. [s. 29] absence of a person accused of an offence: and may, if duly authenticated, be received in evidence in proceedings under the Act. But they are not to be used in evidence upon his trial for an offence. The jurisdiction to hear a case and commit a fugitive to prison Jurisdiction of Courts. [s. 30] to await his return is to be exercised in China by the Supreme or Provincial Consular Courts: or by such other Court or Judge as may be from time to time provided by Order in Council.† The King may by Order in Council Power to make define the offences committed in China to which the Act or [s. 32] any part of it is to apply: determine the Court, Judge, officer or person by whom, and the manner in which any jurisdiction or power under this Act is to be exercised in China: regulate the payment of costs incurred in carrying the applied Act into execution: give general directions for carrying the Act into execution in China; "Order in Council" is inserted in both s. 30 and s. 32, in lieu of "Ordinance passed by the Legislature of a British possession" in virtue of s. 5 (2) cf. p. 55. of the Principal Act, which makes the King in Council equivalent to the Legislature of a British possession in the matter of extending the Acts in the schedule to foreign jurisdiction countries. Application of Act to offences at sea or triable in more than one colony. [5.33] cf. p. 102. cf. p. 103. Trial may be ordered in place of arrest, if it can be held : or in some other can be held: [s.35] and further, the King may by Order in Council direct that such first Order in Council or any part thereof, shall, with or without modifications or alterations, be recognised and given effect to throughout the dominions, or on the high seas, as if it were part of the Act. By s. 33, in the case of offences committed at sea, or which are triable in more than one part of the dominions, the necessary warrant may be issued from any part of the dominions in which the accused can be tried if he happen to be there, and the fugitive is to be returned there, although there is jurisdiction to try him in the place where he is apprehended. By the application of this section, China and Corea are treated, as in sections 20 and 21, as parts of the dominions so as to bring them within its meaning. But it is doubtful whether the section can be given a larger extension so as to include all countries in which foreign jurisdiction is exercised. A Secretary of State in the United Kingdom, the Governor of a British possession, or the Minister in the foreign country, according to where the fugitive is apprehended, if he is satisfied that under all the circumstances of the case, it would be more conducive to the interests of justice for the fugitive to be tried where he is apprehended, if, by law, he can be tried there, may so order: and the warrant shall not then be executed. And conversely, if, in such cases, the accused is in custody, a colony where it Superior Court, and also the authorities mentioned above, according to where he may be in custody, may direct the removal of the prisoner to some other part of Her Majesty's dominions, or to China or Corea, where the offence is also triable, if it would. be more conducive to the interests of justice that the prisoner should be tried there. The warrant for removal is to be in all things treated as if it were a warrant for the return of a fugitive. The Act applies generally to escaped convicts. Escaped convicts. [s.34] Past offences. [s.38] The Act applies also to offences committed before the application of the Act. 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 between Forign 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 not to apply extend to subject to any penalty any person who enters into to persons entering 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. * The Official Secrets Act, [52 & 53 Vict., c. 52] should also have been included in this list. It is considered on p. 161. See also note on p. 76. [Imp. Stats,, Vol. I, p. 200.] cf. p. 98. 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 1st schedule of the Principal Act, and is, therefore, included in the first group of enactments in this Section. [Imp. Stats., Vol. I, p. 46.] Removal of pri- 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. Where a prisoner is undergoing sentence of imprisonment in China for any offence, he may be removed to any British 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 (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. China. The converse case of removal under similar circumstances of Removal of prisoners undergoing sentence in a British possession to the prisoners to 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 "Sentence of imprisonment" means any sentence involving Meaning of confinement in a prison, whether combined or not with labour, imprisonment." 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. |