CO129-149 - Lieut Governor Whitfield - 1871 [1-4] — Page 37

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Report of the Attorney General upon "The Hongkong and Macao Extradition Ordinance." (No. 13 of 1870.)

The original Draft of this Ordinance, which is one of much local importance, was transmitted to the Colonial Office by Governor SIR RICHARD GRAVES MACDONNELL, in a Despatch to the Secretary of State dated 21st July, 1869, (No. 758.)

The Draft met with approval subject to certain Amendments directed to be made in it by Earl GRANVILLE in his Lordship's Despatch No. 25 of the 16th of February, 1870. It was amended in accordance with the instructions contained in that Despatch, and laid before the Legislative Council. Before the second Reading, however, I received most opportunely a copy of the Imperial Extradition Act of last Session (33 & 34 Vic. c. 32), which proved of great service, especially in revising the Schedule of Crimes.

The Ordinance was finally passed on the 2nd of September last, and the following explanatory Notes upon its several Sections will show in what respect it differs from the original Draft submitted to the Secretary of State.

In order to facilitate reference to the Amendments, I enclose a copy of the original Draft as well as of the Ordinance as passed, in which the material words or passages omitted in the former, and substituted or added in the latter, are under- lined in red ink.

N.B.-The Sections at the head

of each Note refer to the

SECTION II.

"And shall include the High Seas." These words are inserted in order to Sections of the Ordinance as include Piracy "jure gentium," it having been held in the case of Reg. v.

passed.

Ternan (9. Cox's C. C. 522) that in the Extradition Treaty with the United States, the word "Jurisdiction" means "exclusive" Jurisdiction and therefore that "Piracy jure gentium" is not within its Terms.

SECTION III.

In accordance with the directions of Earl GRANVILLE, the words "not being a natural born or naturalized British Subject" have been struck out, as also the words "after the commencement of this Ordinance," and the words "if he shall in his Discretion think fit” have been introduced.

SECTION V.

Sub-Sections V and VI of the original Section have been transposed. In Sub-Section V, the words "and his Authority to take Cognizance of the Crime or Offence charged," though not found in the Act for the Amendment of the Law relating to Treaties of Extradition (29 and 30 Vic. c. 121), are inserted to meet expressly the requirements of Sub-Section I.

In Sub-Section VI instead of the word "surrendered," the words "committed to Gaol, &c.,” have been introduced, as the Magistrate's functions are now limited to either committing the Fugitive to Gaol, or not. His surrender is a matter of discretion for the Governor (see Section X.)