CO885-(13-15) — Page 136

PUBLIC

RECORD OFFICE

Reference :-

TLC.O.885

لس

13 PUBLIC RECORD OFFICE, LONDON

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

2

The object of the new Act is to enable the surrender of criminals to be made in certain cases to foreign countries in the absence of any Treaty; or, in other cases, for crimes not mentioned in an existing Treaty, but contained in the Schedule to the Act. This raises the important question of principle whether it is proper to surrender persons in extradition without a Treaty containing the safeguards imposed by the Imperial Act of 1870, which are closely adhered to in the principal Canadian Extradition Act of 1886.

The Report of the Royal Commission of Extradition, 1878, clause 2, is in favour of this principle; and, subsequently, in 1884, it was proposed to introduce a new Imperial Act which contemplated extradition under certain circumstances in the absence of Treaties. The Act, however, was not passed.

The two following points appear to require consideration in connexion with the new Canadian Act:-

*

1. Surrender of British subjects. No exception is made in the new Act in this respect. Therefore British subjects would be given up under its operation. Would the principle be acceptable to Her Majesty's Government in the case of all countries? for instance, Mexico, to which Canada proposes at once to apply the new Act? Our Treaty with Mexico permits the facultative surrender of nationals.

No difficulty would probably arise in the case of the United States, as the existing Treaty of 1842 permits the surrender of British subjects; but difficulty might apparently arise in the case of other countries with which we have Treaties either forbidding the surrender of nationals, or making such surrender only facultative.

Take the following case which might occur.

Canada wishes to surrender to Germany, a British subject accused of piracy, an offence comprised in the Schedule to the Canadian Act, but not in the Anglo-German Treaty. Is the surrender to be granted under the Act? or to be refused on the ground that the Treaty forbids the surrender of nationals?

2. Are the safeguards imposed by section 3 of the Imperial Act of 1870 sufficiently provided for in the new Act?

Section 1 of the latter provides that the extradition shall be governed by the provisions of the Extradition Act (Canada). This contains the safeguards mentioned in sub-sections 1, 3, and 4 of section 3 of "The Imperial Act, 1870.' See sections 14, 15, and 16, of "The Canadian Act, 1886."

Subsection 2, section 3, of the Imperial Act containing provision against trial for a second offence, is an important safeguard; otherwise a man might be surrendered for one alleged offence, and afterwards tried for another, even a political offence. This is provided for by section 5 of the new Canadian Act. But it might not be easy in all cases to ascertain what is the law in any particular State as to trial for a second offence, in the absence of a Treaty. Conflicting decisions have, it is believed, been given to this point in the United States.

Also, would an assurance from the demantling Government, if given, control the action of the Law, if opposed to such assurance ?

A new Treaty containing many additional crimes has just been concluded with the United States. If ratified, this would remove most of the difficulties between Canada and the United States; but its ratification is uncertain, and in the meanwhile its signature is to be kept secret.

The practical advantages that would at once be secured by the new Act in the case of Canada and the United States seem to be incontestable, and it appears, there- fore, desirable to assent to it if this can properly be done.

This Canadian Act, however, introduces, for the first time in actual. English legislation, a new principle; and one of considerable gravity, when it is considered that under its operation not only natives of Canada but British subjects in general and foreigners would be surrendered, without guarantees of Treaty.

July 13, 1889.

(Signed)

HG. BERGNE.

N.B. The question now at issue being whether the Royal Assent can properly be given to the new Canadian Act, it does not seem necessary at present to ask the opinion of the Law Officers as to the right of Canada to legislate upon extradition under the terms of the North America Act, which is alluded to in the Report of the Dominion Privy Council.

H. G. B.

20,097.

}

No. 162.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

Law Officer's Department, Royal Courts of Justice, October 12, 1889.

MY LORD,

We were honoured with your Lordship's commands, signified in Sir R. G. W. Herbert's letter of the 20th August last, stating that we might be aware that Her Majesty's Government bad decided to incorporate by charter certain noblemen and gentlemen as a company under the style of the " British South African Company,"

for purposes similar to those which were intended to be promoted by the grants of charters to the North Borneo, the Niger, and the Imperial East African Companies.

That the draft of the charter would shortly be submitted to us by the Privy Council Office in the regular course, but that in the meantime, as the long vacation had commenced, and as the session of Parliament was drawing to an end, your Lordship thought that there might be advantage in communicating copies of the draft charter to us at once, in order that we might acquaint ourselves with its provisions.

That Sir R. G. W. Herbert was therefore to enclose copies, and to observe that the draft had been carefully considered by the Marquis of Salisbury as well as by your Lordship, and had been settled on behalf of the Colonial Office, the Foreign Office. and by Mr. R. S. Wright,

That it was based on the charters given to the other companies above-mentioned, of which copies were enclosed, but that certain additional provisions had been introduced with a view to safeguarding the interests of the Crown and of Her Majesty's Government, which were explained in the memorandum which accompanied the letter.

That your Lordship would be glad to learn that we were satisfied with the draft in its then form.

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

Report

That we have carefully considered the terms of the draft charter proposed to be granted to the British South African Company, and approve the same, subject, to the alterations shown in the copy which was submitted to us by the Privy Council, and which we have returned to that Department.

The Right Hon. Lord Knutsford.

&c.

&c.

&c. Colonial Office.

We have, &c.,

(Signed)

RICHARD E. WEBSTER EDWARD CLARKE,

n 57014.-36. 25.-10/89.

97.

3D,

No. 162.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

Law Officer's Department, Royal Courts of Justice, October 12, 1889.

We were honoured with your Lordship's commands, signified in Sir R. G. W. 's letter of the 20th August last, stating that we might be aware that Her ''s Government bad decided to incorporate by charter certain noblemen and en as a company under the style of the "British South African Company,"

Joses similar to those which were intended to be promoted by the grants of to the North Borneo," the Niger, and the Imperial East African Companies. the draft of the charter would shortly be submitted to us by the Privy Council the regular course, but that in the meantime, as the long vacation had ced, and as the session of Parliament was drawing to an end, your Lordship that there might be advantage in communicating copies of the draft charter once, in order that we might acquaint ourselves with its provisions.

Sir R. G. W. Herbert was therefore to enclose copies, and to observe that the d been carefully considered by the Marquis of Salisbury as well as by your

, and had been settled on behalf of the Colonial Office, the Foreign Office. fr. R. S. Wright.

}

t was based on the charters given to the other companies above-mentioned, copies were enclosed, but that certain additional provisions had been d with a view to safeguarding the interests of the Crown and of Her Government, which were explained in the memorandum which accompanied

our Lordship would be glad to learn that we were satisfied with the draft in lience to your Lordship's commands, we have the honour to

orm.

Report

have carefully considered the terms of the draft charter proposed to be > the British South African Company, and approve the same, subject to the shown in the copy which was submitted to us by the Privy Council, and have returned to that Department.

ht Hon. Lord Knutsford.

&o.

Colonial Office.

&o.

We have, &c.,

(Signed) RICHARD E. WEBSTER

EDWARD CLARKE.

PUBLIC RECORD OFFICE

Reference :-

PEEC.O.885

13 PUBLIC RECORD OFFICE, LONDON

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

-36. 25.-10/89.

I