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[30 June, 1890.]
and punished in the country or place in England in which such stroke, poisoning, or hurt should happen, in the same manner in all respects as if such offence had been wholly committed in that country or place."
The Act gives power to the Legislatures of the Colonies to make a similar provision; but its application to a country where the Queen has only jurisdiction by Treaty is a little difficult. For the words "the Legislature of any of Her Majesty's possessions abroad," we may have to read, "Her Majesty's representative in any foreign country in which Her Majesty has jurisdiction, where such representative has had any legislative powers conferred upon him"; and in the majority of cases he has power to make rules for the peace, order, and good government of the Queen's subjects. On the other hand, by the second subsection of section 5 of the principal Act, Her Majesty in Council is to be considered, for the purposes of the applied statutes, as the Legislature of the country. The application of the statute 23 & 24 Vict. c. 122, would, if this be the true reading, only give Her Majesty power to "legislate" in respect of the offences with which the statute deals. Special legislation in the Order in Council would therefore be necessary to give the Consular Courts jurisdiction in respect of them.
This course is the one which is adopted in the Orders in Council. In Article 56, for example, of the Brunei Order, special provision is made both for the case contemplated by this statute, and also for those dealt with by the Act of 1849, and the Merchant Shipping Act, 1867, sec. II.
The article concludes in the following way:
"(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, 1890, of the following enactments described in the First Schedule to that Act (that is to say) :"The Admiralty Offences (Colonial) Act, 1849. "The Admiralty Offences (Colonial) Act, 1860. "The Merchant Shipping Act, 1867, sec. II.
"And the said enactments shall, so far as they are repeated and adopted by this article (but not further or otherwise), extend to Brunei."
VIII. 24 & 25 Vict. c. 11. An Act to afford facilities for the better ascertainment of the law of foreign countries when pleaded in Courts within Her Majesty's dominions.
By the application of this Act the Consular Courts may, in Consular any action in which it is necessary, remit a case for the opinion request of a Court in any foreign State with which Her Majesty may opinion of have made a convention for that purpose, in order to ascertain foreign Court the law of that State as to the facts in question. When the of foreign opinion of the foreign Court has been received, the Consular Court is to apply it to the facts of the case as if it had been pronounced by such Court upon a case reserved for its opinion: or it may be submitted to the jury with the other facts of the case as conclusive evidence of the foreign law therein stated.
And, vice versa, a Consular Court may be requested by a Court in any foreign country with which such a convention exists, to give an opinion on a case submitted to it as to the law administered by such Consular Court on the facts set out in the question the questions being argued before the Consular Court by the parties or their counsel.
No conventions on the subject have been concluded up to the present time.
IX. 30 & 31 Vict. c. 124, sec. II.
The Merchant Shipping
By the application of this section, British subjects committing Offences by any crime or offence on board any British ship, or on board any subjects on foreign ship to which they do not belong, are to be tried by the board ship. Consular Court "which would have had cognizance of such crime
or offence if committed on board a British ship within the limits of the ordinary jurisdiction of such Court."
X. 37 & 38 Vict. c. 94, sec. 51. The Conveyancing and Land
Transfer Act, Scotland, 1874.
By the application of this section, the production to any Production of Consular notary public of the probate of the will or other testamentary probate in settlement of a person deceased, issued by any Consular Court lieu of will. which has probate jurisdiction, or an exemplification of such probate, is "for the purpose of expeding a notarial instrument, or otherwise completing a title to any estate in land or to any heritable security" to be held as equivalent to the production of the will or settlement itself.
XI. 44 & 45 Vict. c. 69. An Act to amend the law with respect to fugitive offenders in Her Majesty's dominions, and for other purposes connected with the trial of offenders.
By the application of this Act, where a person accused of having committed an offence in one part of Her Majesty's dominions, or in a foreign country in which Her Majesty has jurisdiction, is found in another part of her dominions or in a foreign country in which she has jurisdiction, he may be apprehended under a warrant and returned to the country from which he is a fugitive.
The warrant, where the offender has escaped from the foreign country, is to be issued by the Judge of the Consular Court.
The warrant, where the offender has escaped to the foreign warrant (s. 3). country, is to be endorsed by the Judge of the Consular Court and such power of apprehending offenders as the Court has been invested with may be put in force on this endorsed warrant, by the persons to whom the warrant is addressed, or by the persons named in the endorsement.
The Judge may also issue a provisional warrant "for the warrant (s. 4). apprehension of a fugitive who is or is suspected of being in or on his way to" the country in which the Court is established, if the information is such that he would be justified in issuing a warrant if the offence had been committed within that country.
fugitive when apprehended (s. 5).
Her Majesty's representative in the foreign country probably has the power conferred on the Governor of a British possession of discharging the person apprehended under the provisional warrant, notice of its issue being sent to him by the Judge.
When the fugitive is apprehended he is to be tried as if he were charged with an offence committed in the foreign country. The endorsed warrant being duly authenticated, if the evidence raises "a strong or probable presumption that the fugitive committed the offence mentioned in the warrant," the Judge is to commit him to prison to await his return, and to send a certificate of committal to Her Majesty's representative.
The fugitive is to be informed that he will not be surrendered until after the expiration of fifteen days, "and that he has a right to apply for a writ of habeas corpus, or other like process."
A fugitive apprehended on a provisional warrant may be remanded from time to time, for not longer than seven days at one time, as under the circumstances seems requisite for the production of an endorsed warrant." On the expiration of
fifteen days after the fugitive has been committed to prison (or, Return of when a writ of habeas corpus has been issued by a superior Court), warrant (s. 6). fugitive by Her Majesty's representative may, if he thinks just, by warrant under his hand order the fugitive to be held in custody by the person to whom the warrant is addressed, and to be conveyed to the country from which he is a fugitive, "to be dealt with there in due course of law as if he had been there apprehended."
"The governor or other chief officer of any prison" shall, on payment of expenses, receive and detain the fugitive for a reasonable time at the request of the person to whom the warrant is addressed, for the purpose of the proper execution of it.
in one month
If a fugitive has been committed to prison by a Consular Discharge if Judge, and is not conveyed out of the foreign country within a not returned month after his committal, "a superior Court" may on the (s. 7). fugitive's application order him to be discharged, unless sufficient cause is shewn to the contrary. Notice of the intention to apply for the discharge is to be given to Her Majesty's representative. Where the person accused of an offence and returned to Persons returned if the country in which the Consular Court exists, either is not prosecuted there within six months after his arrival, or is cuted to be acquitted, Her Majesty's representative may cause him to be sent back sent back free of cost, and with as little delay as possible, to the country in or on his way to which he was apprehended.
applies (s. 9).
The offences to which the Act applies are treason, piracy, and Offences to every offence which is punishable in the part of Her Majesty's which the Act dominions in which it was committed, of according to the law administered by the Consular Court established in the country in which it was committed, "by imprisonment with hard labour for a term of twelve months or more, or by any greater punishment." The question whether the act is an offence or not is to be judged solely by this law, and not in any way by the law of the country, or by the law administered in the country, where the fugitive is apprehended. Where it appears to a superior Discharge of Court that the case is trivial, or that the application for the return fugitive when of the fugitive is not made in good faith, and that it would, or return having regard to the distance, to the facilities for communication, unjust (s. 10). and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all, or until the expiration of a certain period, the Court may discharge him either absolutely or on bail, or may order that he shall not be returned until after the expiration of a certain period, or may make any other order that may seem to it just.
Sending back prisoner not prosecuted (s. 18).
The second part of the Act providing a simpler procedure applies only to those groups of British possessions, or foreign countries in which Consular Courts have been established, or of British possessions and foreign countries combined, “to which, by reason of their contiguity or otherwise, it may seem expedient to Her Majesty to apply the same." The application is to be made by Order in Council, and certain offences may be excepted from the application, or it may be otherwise limited, as may be deemed expedient.
In the countries or Colonies included in the group, a magistrate is empowered to back a warrant issued for the apprehension of a fugitive offender by the proper authority in any other country or Colony in the group, and may order his return in custody. He is also empowered to issue provisional warrants. In the same way, witnesses who are required to give evidence on a trial for any offence in one of the countries or Colonies in the group, and who are, or are suspected of being, in or on their way to any other country or Colony in the group, may be summoned as if they were within the jurisdiction of the Court before which the trial is taking place, and the summons may be endorsed by a magistrate in any other country or Colony in the group. The witness, on service of the endorsed summons, and payment or tender of a reasonable sum for expenses, must obey the summons; in default he is liable to be tried and punished either in the country or Colony in which he was served, or in which the summons was issued, according to the law enforced by the Court before which he is tried.
A magistrate may, in the group, order the fugitive to be discharged out of custody if he is not conveyed out of the country or Colony within one month after the date of the warrant ordering his return. Notice of the application is to be given to the person holding the warrant, and to the chief of the police where the fugitive is in custody. A refusal to grant the order is subject to appeal to a superior Court.
The power to order the free return of a prisoner accused of an offence for which he is not prosecuted within six months, or of which he is acquitted, remains with the Governor of the Colony, or Her Majesty's representative in the foreign country.
The power to refuse the fugitive's return where the offence return (s. 19). is trivial, and in the other cases already mentioned, is vested in the magistrate or in a superior Court.
Where two Colonies, or two foreign countries in which Consular jurisdiction exists, or a Colony and such a foreign