to the Governor as required by the ordinance although as a matter of fact this was doubtless done. For the decision of this case it is unnecessary to determine whether the provisions of Ord. 2 of 1850 must not be narrowed down so as to be commensurate with the provisions of the 21 sec. of the treaty of Tientsin. By the Treaty requirement there must be due requisition before search, and arrest and surrender. Such a provision following and replacing the very wide one in the Bogus Treaty was probably dictated by abuses that may have arisen under the old treaty, for situated as we are on the confines of China a previous charge and request by the Chinese Government is a proper and necessary guarantee against charges and arrest being made for private and improper purposes. In the Queen v. Wilson 3 Q.B.D. 42 the prisoner was a British subject. By the terms of a convention with Switzerland British subjects, fugitive Criminals, were not to be given up. The act of 1870 was by Order in Council applied to the convention, but there is no provision in the act which says that a British subject may not be given up. The Magistrate refused to notice the Treaty and held himself governed by the act and committed the prisoner. On a writ of habeas corpus the prisoner was discharged. Cockburn C. J. said-" The order in Council must be co-extensive with and limited by the Treaty, for otherwise our municipal legislature might be at variance with the terms which the two countries arranged between themselves proposition absurd upon the very face of it. I must therefore take it that the Order in Council has embodied the terms of the Treaty and that the Act of Parliament is only applicable so far as it can be applied consistently with the terms and conditions therein contained Our Ordinance only applies to one Treaty. It thus differs from the English act, but a difficulty may arise the one day if the law is not altered and it must be determined whether the Ord. can have a scope of greater width than the Treaty which it purports to carry out, in other words whether any action can be taken to detain a Chinese fugitive criminal before his arrest is asked for by the Chinese Government. As to the question of the long detention of the prisoners the Court cannot interfere. The legislature has placed in the hands of the Governor certain powers. The unusual detention of these men can doubtless be answered for but for the Court to discharge the prisoners on the ground of long detention or the unreasonableness of it-would be to legislate, not to administer the law.
Mr. Francis applied for costs.
The Chief Justice said they would reserve the question of costs for future consideration.
535
to the Governor as required by the ordinance although as a matter of fact this was doubt- less done. For the decision of this case it is unuecessary to determine whether the provisions of Ord. 2 of 1850 must not be war- rowed down so as to be commensurate with the provisions of the 21 sec. of the treaty of Tientsin. By the Treaty requirement there must be due requisition before searoh, and arrest and surrender. Such a pre vision following and replacing the very wide one in the Bogus Treaty was probably dictated by abuses that may have arisen under the old treaty, for situated as we are on the confines of Chios a previous charge and request by the Chinese Government is a proper and necessary guarantee against charges and arrest being made for private and improper pur- poses. In the Queen v. Wilson 3 Q.B.D. 42 the prisoner was a British subject. By the terms of a convention with Switzerland British sub- jeats, fagitive Criminals, were not to be givez up. The act of 1870 was by Order in Council applied to the convention, but there is no provi sion in the act which says that a British subject may not be given up. The Magistrate refused to notice the Treaty and held himself governed by the set and committed the prisoner. On a writ of habeas corpus the prisoner was dis- charged. Cockburn C. J. said-" The order in Council must be co-extensive with and limited by the Treaty, for otherwise our municipal legislature might be at variance with the terins which the two countries arranged between them- selves proposition absurd upon the very face of it. I must therefore take it that the Order in Conseil has embodied the terms of the Treaty and that the Act of Parliament is only applicable so far as it can be applied consistently with the terms and conditions therein contaiued Our Ordinance only applies to oue Treaty. It thus differs from the English act, but a difficulty may arise the one day if the law is not altered and it must be determined whether the Ord. can have a scope of groster width than the Treaty which it purports to carry out, in other words whether any action can be taken to detain a Chinese fugitive criminal before his arrest is asked for by the Chinese Government. As to the question of the long detention of the prisoners the Court cannot interfere. The legislature has placed in the hands of the Governor certain powers. The unusual detention of these men can doubtless be answered for but for the Court to discharge the prisoners on the ground of long detention or the nares sonableness of it-would be to legislate, not to administer the law.
Mr. Francis applied for costs.
The Chief Justice said they would reserve the question of costs for future consideration.
535
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