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power of the nation. (a) This necessity was practically acknowledged at an early date by the making of an extradition treaty between the two governments on the 19th of November, 1794. This treaty was called " 'Jay's treaty," and it related only to murder and felony. It has long since been superseded by the Ashburton treaty, and the statutes passed to give effect thereto, though it continued in force till the outbreak of the American war in 1812. It ceased as soon as war was declared, and from the conclusion of the treaty of peace between Great Britain and the United States until the passing of the 3 Wm. 4, c. 6, in 1833, the extradition of criminals between the two countries rested entirely upon state authority and the general law of nations. (b)

The first case which was decided in this country on the subject of extradition, was Re Fisher, (c) decided in 1827. Jay's treaty was not then in force in Quebec, and the decision proceeded on the general principles of international law. The Court held that the executive government had power to deliver up to a foreign statea fugitive from justice charged with having committed any crime within its jurisdiction. In another case, in 1833, Lord Aylmer, then Governor of Canada, refused to deliver up four prisoners for extradition, saying the Executive could not, in the absence of treaty or legislation on the subject, dispense with the Habeas Corpus Act. But, in the same year, Ontario remedied this defect by passing the 3 Wm. 4, c. 6, Con. Stat., U. C., c. 96.

In relation to foreign powers with whom no treaty or conventional arrangement exists, this latter statute is still in force, and limits any authority or discretion which might otherwise have existed on the principles of the common

(a) Reg. v. Bennet H. Young 9 L. C. J.. 44 per Badgley, J.

(b) See Judgment of Macaulay, C. J. Reg. v. Tubbee, i U. C. P. R. 100-1. (c) S. L. C. A. 245.

law, or international comity, to cases embraced therein, and the mode of proceeding therein pointed out. Some doubt, however, exists as to how far the United States, Quebec, or England would respect this statute, if a fugitive surrendered by Ontario to a foreign power were taken through those countries. (a)

The extradition of criminals is now regulated by the Ashburton Treaty or Treaty of Washington, and the statutes passed to give effect thereto. The Treaty was signed at Washington on the 9th of August, 1842, by Lord Ashburton, on behalf of Great Britain, and Daniel Webster, on behalf of the United States. The ratifications were exchanged at London on the 30th of October following. This Treaty was passed for purely national purposes. (b) It contains the whole law of surrender between Canada and the United States (c); and, in the opinion of Macaulay, C. J., the power of surrender which might otherwise exist on the general principles of international law, is circumscribed and limited by the Treaty and statutes, and no discretion can now be exercised by the Government in the surrender of fugitives in other cases either under the Con. Stat., U. C., c. 96, (which he considered suspended during the continuance of the treaty, so far as the United States are concerned); or by virtue of any common international law prerogative or state authority or comity which might have otherwise prevailed. (d)

Immediately on the ratification of the Treaty, the necessity of legislation for the purpose of carrying its provisions into complete effect, was felt by each of the high contracting parties. The English Legislature, on the

(a) Reg. v. Tubbee, 1 U. C. P. R. 98.

(b) Reg. v. Bennet H. Young, The St. Alban's Raid, 167 per Smith, J. (c) Reg. v. Tubbee, 1 U. C. P. R. 98.

(d) Ib., 102.

22nd of August, 1843, passed the 6 & 7 Vic., c. 76, entitled "an Act for giving effect to a treaty between Her Majesty and the United States of America, for the apprehension of certain offenders." This enactment is not now in force in Canada. It was suspended on the 28th of March, 1850, and the suspension was directed to continue so long as our substituted enactment (then the 12 Vic., c. 19) should remain in force. It has not since been revived by the repeal or consolidation of any of our statutes, and it will continue suspended so long as Canadian legislation exists on the subject of extradition. (a) No local statute for carrying out the provisions of the Treaty has been passed in Nova Scotia or New Brunswick; and, up to the 8th of August, 1868, the 6 & 7 Vic., c. 76 was in force, and regulated the proceedings under the treaty in those Provinces. From the latter date, however, this statute must be regarded as suspended therein under the proclamation of his Excellency the Governor-General, introducing the 31 Vic., c. 94. (b)

The next Imperial enactment affecting this Colony is the 25 Vic., c. 20, which provides that no writ of Habeas Corpus shall issue out of any court in England to any Colony or foreign dominion of the Crown in which any courts exist having power to issue and ensure the due execution of such writs. In the Anderson case, hereinafter referred to, after the Judges of the Queen's Bench in Ontario had refused to discharge the prisoner, an application was made to the Court of Queen's Bench in England for a writ of Habeas Corpus to bring up the body of Anderson, and the writ was granted. (c) This action of the English Courts caused much complaint in Canada, as being an unwarranted interference with our

(a) Reg. v. Bennet H. Young, 9 L. C., J., (b) See the above case.

29.

(c) See Ex parte Anderson, 3 L. T. Reps. N. S. 622, 7 Jur. N. S. 122.

judicial prerogatives, and the above statute was passed to prevent future proceedings of a like kind by the Imperial authorities.

The 5th section of the Imp. statute 6 & 7 Vic., c. 76, gave the Parliament of this country supreme authority to enact laws, and effectually carry out the provisions of the Treaty within the limits of our territory. (a) But Colonial legislative action was allowed only for the purpose of carrying into effect the objects of the Imperial Act within the Colonial jurisdiction, according to the local circumstances and position of each Colony and Dependency.

This delegated power of local legislation was therefore absolute in its nature, but restricted in its purport and extent by the objects of the Imperial Act. These objects once secured by the local law, the procedure, or, in other words, the machinery for obtaining its required purposes, was left to the discretion of the Local Legislature, to be provided for according to the circumstances and position of each Colony; (b) and the procedure under the Treaty may be changed by our Legislature. (c)

In pursuance of the powers thus conferred, provision was afterwards made by our Legislature for giving effect to the Treaty by the enactment of the 12 Vic. c. 19. (d) This statute, after reciting certain inconveniences which had arisen from the English Act, in effect enacted sections 2, 3, and 4 of the latter, with this addition, that section 2 of our Act sanctioned a requisition from the United States, or "any of such States."

No further change was made until the passing of the 23 Vic., c. 41, in 1860. This Statute repealed the Con.

(a) Reg. v. Bennet H. Young, 9 L. C. J. 38, per Smith, J.

(b) Ib. 45, per Badgley, J.

(c) Ib.

(d) Con. Stat. Can., c. 89.

Stats. U. C., c. 96; but the latter is still to some extent in force, as before explained. In 1861, the 24 Vic., c. 6, was passed. This Act did not require the Queen's proclamation, or an order of Her Majesty in Privy Council, to give it effect, but had the force of law here without either. (a) The Statute was passed in consequence of the legal complications arising in Anderson's case. (b) In order to avoid, if possible, the blunders of ignorant and incompetent magistrates, the Act deprived ordinary Justices of the Peace of the power to deal with extradition offences, and vested it only in superior officers of the Courts, such as Judges of the Superior or County Courts, Recorders Police or Stipendiary Magistrates. It repealed the 1st, 2nd, and 3rd sections of the Con. Stat. Can., c. 89, and substituted other provisions in lieu thereof. These substituted sections applied only to the technical procedure of the local law, by giving practical, improved, and additional facilities for carrying out the law, and in this respect were simply verbal amendments in eodem sensu of the previously existing enactments. (c) The Act has omitted the words "any such States," which in the prior Acts were superfluous, and their omission in this Act renders it more perfectly conformable with the terms of the Treaty and of the Imperial Act, and with the delegated power of legislation by the Colonial Legislature: (d) for by the terms of the Treaty and the Imperial Act "jurisdiction" and "territories" are synonymous, and the addition of the words "or of any such States" would be useless, as being, in fact, included in the general aggregate expression "United States of America." (e)

These words are not in the Imperial Act, and it seems

(a) Reg. v. Bennet H. Young, 9 L. C. J. 29.

(b) 20 U. C. Q. B. 124.

(c) Reg. v. Bennet H. Young, 9 L. C. J. 48, per Badgley, J. (d) Ib. 49, per Badgley, J.

(e) Ib. 51, per Badgley, J.

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