Canada should first issue his warrant requiring magistrates to aid in the arrest of the fugitives. (a) The foregoing cases are directly contrary to the Chesapeake case on the above points. The latter, however, being under the Imp. Stat. 6 & 7 Vic., c. 76, which is different from the 31 Vic., c. 94, does not shake the authority of the others. In fact, Young's case directly overruled the Chesapeake on these points. In Young's case it was held that the Imp. Stat. 6 & 7 Vic., c. 76, not being in force in this country, (b) therefore the provision in this Statute that, before the arrest of any fugitive offender, a warrant shall issue under the hand and seal of the Governor-General, signifying that an application had been made by the United States for the delivery of such offender, and requiring all magistrates to govern themselves accordingly, does not apply here; and that without such warrant, and in virtue of our own legislation on the subject, a Judge of the Superior Court for Quebec has jurisdiction over the several classes of offences enumerated in the Treaty. (c) Our statute was intended expressly to render the warrant of the Governor unnecessary for the above purposes; and if the requisition of the United States were necessary before arresting a person who had committed a crime, he might escape entirely. The delay would be so great, that the prisoner could in the meantime fly beyond the reach of our laws, though there was clear and indisputable evidence of his guilt. (d) The magistrate need not consider in what part of the United States the offence was committed, so long as it appears to have been committed within the jurisdiction of their Government. These extradition offences do not fall within the estab

(a) Re B. G. Burley, 1 U. C. L. J. N. S. 34; Reg. v. Bennet H. Young, 9 L. C. J. 29.

(b) Ante p. 26.

(c) 9 L. C. J. 29

(d) Re B. G. Burley, 1 U. C. L. J. N. S. 45, per Richards, J.

lished rule and practice that every offence against our law must be enquired of, tried, and determined within the County or place wherein it was committed. (a)

The Judge or Magistrate issuing the warrant for the apprehension of the offender, is the person before whom the evidence in support of the charge must afterwards be heard, and he must determine upon its sufficiency; (b) but his decision is not binding on the Governor, and the latter may, notwithstanding, order the prisoner's discharge: (c) for the magistrate must send or deliver to the Governor a copy of all testimony taken before him, that a warrant may issue upon the requisition of the United States for the surrender of the prisoner pursuant to the Treaty. (d) Nor is the opinion of the committing magistrate conclusive on the prisoner; for, if adverse to the latter, he may still apply to the Governor, whose decision may possibly be influenced by considerations which a court could not entertain. (e) And a quare is added to this case whether it was not the intention of the 31 Vic., c. 94, to transfer to the Governor exclusively the consideration of all the evidence, that he might determine whether the prisoner should be delivered up.

It may be observed here, that the surrender of persons for imputed crimes can only be made by the supreme executive authority of independent nations. (f) By the British North America Act, 1867, s. 132, the Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada, or of any Province thereof, as part of the British

(a) Reg. v. Reno and Anderson, 4 U. C. P. R. 292, per Draper, C. J. (b) The Chesapeake case, 46; Re Anderson, 20 U. C. Q. B. 165-9, per Robinson, C. J. (c) Ib. 189, per Burns, J.; Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J.

d) Re B. G. Burley, 1 U. C. L. J. N. S. 45 per Richards, C. J.; Re Anderson, 20 U. C. Q. B. 165-189; see 31 Vic. c. 94, s. 1.

(e) Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J. (f) Reg. v. Bennet H. Young; the St. Alban's Raid, 167, per Smith, J.

Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries. No doubt, the Ashburton Treaty is covered by this clause, and that under it the Governor-General has power to deal with extradition cases to the exclusion of the Lieutenant-Governors of the several Provinces.

The surrender, also, must be by the Governor-General, as representing the Government. (a) But, although he is thus the only authority in Canada for the extradition therefrom of fugitive criminals from the United States of America, yet his power to act at all is derived solely from the local law substituted for the Imperial act, by his Imperial Constituent, Her Majesty; and therefore his power is necessarily confined within the letter of the local law. Hence the Governor is powerless to act against such fugitives charged with the commission of any other of the formidable list of social offences not enumerated in the Treaty, because these are not contained within the local law. And he is still more completely without power against fugitives for political offences, not only because of their non-inclusion amongst the offences enumerated in the local and imperial laws, and in the Treaty stipulations, but because the right of territorial asylum for such fugitives is within the protection and safeguard of the Imperial authority, and may not be violated by the self-action of the administrator of the Colony. It is manifest, therefore, that the power of extradition and its exercise in Canada, resides in the Governor, as the representative of Her Majesty, and of the Imperial power as settled by local law, and not as the mere colonial executive. (b) It seems that the Courts may, to some extent, control or direct the action of the Executive; for

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

(b) Reg. v. Bennet H. Young, 9 L. C. J. 46 per Badgley, J.

when a party is committed under a magistrate's warrant, he may apply to any of the superior courts or judges for a Habeas Corpus, and the court in term, or the judges in vacation may determine whether the case be within the Treaty, and, if not, whether a legal power to surrender the prisoner is, nevertheless, reposed in the executive Government; and, if so, then whether a case was made out which entitled the Government to grant such surrender. (a) The Governor is not authorized to surrender the prisoner until the expiration of seven days after his commitment. (b) This is a new provision, and was probably inserted in the statute to give the prisoner an opportunity of having the magistrate's decision reviewed on Habeas Corpus and certiorari.

The fact that the person is charged with piracy committed in the foreign country ought not to prevent the Governor from surrendering him on the charge made and proved in this country. But if the charge in this country is robbery, and the requisition on behalf of the Government of the foreign country be for his extradition for the crime of piracy, he could not be surrendered under a warrant of commitment for robbery. And if his surrender is demanded for any other offence than the one for which he has been committed, it must be refused. (c)

Looking at the statute, we find that the commitment of the prisoner is to be made upon such evidence as, according to the laws of the Province in which he has been apprehended, would justify his apprehension and committal for trial, if the crime of which he is accused had been committed therein. This seems to impose on the magistrate the same duties as devolve upon justices of the

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

(b) 31 Vic. c. 94, s. 3.

(c) Re B. G. Burley, 1 U. C. L. J. N. S. 45-6, per Richards, C. J.

peace, on charges of indictable offences committed within our own jurisdiction; and when he would commit for trial under a similar state of facts arising in this country, he is bound to commit for trial under the Treaty, and our statutes passed to carry it out. (a) The authority of the magistrate does not extend beyond the enquiry indicated by the statute; (b) but he is bound to see that the commitment for extradition is warranted by the statute, and that the offence is sustained by evidence which in our own courts would prima facie establish the crime charged. (c) When such prima facie case is made out, and the evidence in defence is not clear and conclusive, a jury is the only constitutional tribunal which can determine whether evidence offered to displace the impression which the prima facie case is calculated to make, does or does not satisfactorily displace it; and all questions of intent, or of fact or inference, should be submitted to them. (d) The magistrate, therefore, should not go beyond a bare enquiry as to the prima facie criminality of the accused, and should not enquire into matters of defence which do not affect such criminality; such, for instance, as whether the prosecution of the offender is barred by a statute of limitations in the foreign country, or whether there is a probability of the ultimate conviction of the prisoner therein. (e) Conflicting or unsatisfactory evidence in answer to a strong prima facie case, though perhaps properly receivable, would not justify the magistrate in discharging the prisoner:(ƒ) for it is to be observed that he cannot try the case here, nor weigh conflicting evidence, nor assume the functions of a

(a) Re B. G. Burley, 1 U. C. L. J. N. S. 48, per Richards, C. J.

(b) Reg. v. Reno and Anderson, 4 U. C. P. R. 281.

(c) Reg. v. Morton, 19, U. C. C. P. 25, per Wilson, J.

(d) Reg. v. Gould 20 U. C. C. P. 159, per Gwynne, J.; the Chesapeake case 48. (e) Ex parte G. H. Martin, 4 C. L. J. N. S. 200, per Morrison, J.

(f) Reg. v. Reno and Anderson, 4 U. C. P. R. 281.