2.
It is true that at the time of the passing of that Act penal servitude was not known as a punishment. It was first introduced as a substitute for transportation in 1853, but is now inflicted as a punishment eo nomine, and in the instance under consideration the prisoner has been convicted and sentenced under the 24 & 25 Vict. cap. 96. sec. 70., which imposes the punishment of penal servitude, not by way of substitution for transportation, but as an independent punishment. “detention" and "compulsory labour," (the Queen v. Mount, 6 L. R. P. C., 303–4,) That punishment implies which also constitute imprisonment with hard labour.
We, therefore, think that there is power under the Foreign Jurisdiction Act to direct that the prisoner shall be removed to Malta.
But, as at the present time there is a distinction recognised between penal servitude and imprisonment, we think it may be well that the Order in Council should include penal servitude by name-describing it as a form of imprisonment, to effect which a new Order in Council should be issued in substitution of that of November 6th 1883.
The Right Hon. the Earl of Derby,
&c.
&c.
&c.
We have, &c.,
(Signed)
HENRY JAMES. FARRER HERSCHELL.
PUBLIC RECORD OFFICE
Reference :-
TICO. 885
12 PUBLIC RECORD OFFICE, LONDON
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