CO885-(11-13) — Page 530

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PUBLIC

RECORD

OFFICE

CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

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time of peace; but because this was not a cession to any Foreign Power; but was a mere renunciation of sovereignty. We thought that, as it was a principle of law that no man could divest himself of his allegiance, so he could not be absolved from it, or lose his recognised right to the protection of British law, by the mere will of the Sovereign: that, having been once a British subject, he could not become homo nullius, of no country, and a subject of no government. I do not stop to consider what a citizen force there may have been in this view, because (as I have said) it was practically over-ruled, and Great Britain is now bound, as a nation, by the transactions which over-ruled it.

7. The Act to enable George III. to make peace with the revolted American Colonies (22 Geo. 3, cap. 46) was rendered necessary by a wholly different state of circumstances. Many Acts of Parliament relating directly and expressly to those Colonies had been passed; and not a few (of which 16 Geo. 3, cap. 5 may be taken as a sample), were passed during the war of Independence, and expressly with reference to it. No peace could be made with the revolted Colonies (still less a peace recog- nising their independence), while these Acts of Parliament continued in force. it was that the statute in question enabled the King to conclude a peace or truce, Therefore any law, Act or Acts of Parliament, &c., to the contrary in any wise notwithstanding"; and not only so, but also by Letters Patent "to repeal, annul, and make void, or to suspend, the operation and effect of any Act or Acts of Parliament relating to the said Colonies."

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8. I do not think it necessary to enter into the question of the power of the Crown, in time of peace, to cede British territory to a Foreign State without the consent of Parliament. There are several precedents (chiefly Indian and African), of the exercise of this power. The question was very fully discussed (though there was, in the result, no occasion to decide it) before the Judicial Committee of the Privy Council, in 1875, in an Indian case (Danodharfordhar v. Deeram Kanji), which will be found reported in the Law Reports (Appeal cases, vol. 1, pp. 333-383). The Court in India had decided adversely to the right of cession; but the Judicial Committee (on which both Lord Cairns and I sat) was by no means disposed to concur in that view. In the report of the argu- ments of Sir W. Harcourt and Sir James Fitzjames Stephen, for the Appeal (pp. 349-363), a concise account of the instances of cession on which they relied to establish the general power of the Crown will be found, and will repay perusal.

May 6, 1881.

SELBORNE.

8378.

No. 252.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Mr. Herbert's letter of the 29th ultimo, stating that he was directed by your Lordship to transmit

Temple, 10th May 1881. to us the following documents relating to an application made to the Governor-General of Canada by the Consul General of Belgium at Quebec for the extradition of a fugitive, viz. :—

A letter from the Belgian Minister in London remonstrating against the action of the Colonial Government in the case.

A report from the Canadian Minister of Justice containing a full statement of the facts of the case and of the position taken by the Colonial Government.

A letter from the Foreign Office commenting on the explanations contained in that Report.

Enclosure of 2nd Bnclosure

Foto Co

P.O, to C.O.. 29 July 1880.

to Gov.-Gen.,. No. 88, 8 Feb. 1881.

31 March 1881.

Belgium, 1876.

1888, c. 94.

That Mr. Herbert was also to enclose for reference copies of the Extradition Treaty Treaty with, with Belgium of the 20th May 1876, and of the Canadian Act, chapter 94 of 1868, Canada Act, referred to in the above-mentioned report, and a report of the Law Officers of the Rep. of Law Crown in December 1876 on the subject of the powers and duties of Governors of offers. British Colonies under the Extradition Act of 1870.

That he (Mr. Herbert) was to request that we would take those papers into our consideration and that we would favour your Lordship with our opinion, whether, having regard to the provisions of the Treaty with Belgium and of the Extradition Act of 1870, the Canadian Government were right in their contention that the proceedings for the arrest and committal of the fugitive should have been taken by those seeking his extradition, and that until he was committed by competent authority to await extradition it did not devolve on the Colonial Government to take action upon the request of the Belgian Consul, or whether the Dominion authorities could and ought to have proceeded in either of the ways indicated in the letter from the Foreign Office to set the law in motion and effect the arrest of the fugitive upon receiving such request, which might for the purposes of the present reference be assumed to have been supported by documents sufficient to justify the issue of a warrant of arrest.

In obedience to your Lordship's commands we have the honour to

That we are of opinion that

Report

be made by the Belgian Consul to the Governor-General of Canada, in accordance with the terms of Article 14 of the Treaty of May 20th 1876, there is power in the Governor- General to comply with the request and to effect the extradition. Of course no power proceeds from the Treaty, and the question arises whether under the Extradition Act of 1878 sufficient powers are conferred on the Governor-General to enable the obligations of the Treaty to be fulfilled.

We much doubt whether for

a requisition for the surrender of a fugitive criminal

that Act "a Colonial magistrate" can be substituted. Although the definition clause the police magistrate" mentioned in section 7 ̧of is subject to the qualification created by the words "unless the context otherwise require," we think that those words cannot be read as substituting a different tribunal according to that which might be required not by "the context" but in order to meet the necessities of different localities.

But it appears to us that section 17 of the Act expressly recognises that a requisition for the surrender of a fugitive criminal may be made to the Governor of a Colony, and proceeds to provide the equivalent for the procedure in the United Kingdom.

We agree with the Canadian Minister of Justice that the Governor has no power without statutory authority to order the issue of a warrant of arrest for extradition purposes, but we differ from the opinion expressed by him that the statute does not confer that authority.

When power is given to the Governor of a British possession to do all that can be done under the Act by the police magistrate (ie., a metropolitan police magistrate)

▲ 12915.-235. 23.--12,81.

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