R. v. WILSON,
Switzerland,
2nd November, 1877.
Page 10
QUEEN'S BENCH: COCKBURN, L.C.J., MELLOR and FIELD, JJ.
L.R. 3 Q.B.D. 42; 48 L.J.M.C. 37; 13 Cox C.C. 630; 37 L.T. (N.S.) 544.
W., a British subject, had been committed by the Magistrate for surrender for larceny in Switzerland. By the Swiss treaty of 1874, no subject of the United Kingdom shall be delivered up by the Government thereof to Switzerland. The Magistrate was of opinion that he was not entitled to consider the terms of the treaty, but only the Extradition Acts.
BOWEN, in support of the commitment, contended:
The Order in Council does not limit the operation of the Extradition Acts; it merely recites the treaty.
Held: The Act can only have application so far as it is consistent with the treaty. The Order in Council must be co-extensive with, and limited by the treaty.
(See Article I. of the Treaty with Switzerland, of 26th November, 1880, as to "NATIONALS.")
(See also In re Galwey, L.R. Q.B.D. 1896 (1) 230; 65 L.J.M.C. 38; 18 Cox C.C. 213; 60 J.P. 87.)
COMMONWEALTH v. HAWES.
United States of America.
17th April, 1878.
COURT OF APPEALS OF KENTUCKY.
14 Cox C.C. 135.
Hawes was surrendered to the U.S.A. by Canada to answer three charges of forgery. He was tried on two indictments for forgery, and acquitted. He was held in custody, however, to answer a charge of embezzlement; and he moved, on affidavit, to be released from custody. The Court ordered the case for embezzlement to be continued, and prisoner released from custody. The Commonwealth appealed.
Held: The precise purpose for which the fugitive is to be surrendered is set out in exact and apt language, and the Act negatives, by necessary implication, the right here claimed, that the person surrendered may be tried for an offence different from that for which he was extradited, and one for which his surrender could not have been demanded.
(The French Minister of Justice, in his circular of 15 April, 1841, said: "The extradition declares the offence which leads to it, and this offence alone ought to be inquired into." The rule, as stated by the German author Heffter, is that: "The individual, whose extradition has been granted, cannot be prosecuted nor tried for any crime except that for which the extradition has been obtained. To act in any other way, and to cause him to be tried for other crimes or misdemeanors, would be to violate the mutual principle of asylum, and the silent clause contained by implication in every extradition.")
(See also United States v. Rauscher, quoted in In re Alice Woodall, 57 L.J.M.C. 72; 16 Cox C.C. 478.) (And see now Article III. of the Convention with the U.S.A. of 12th July, 1889.)
EX PARTE TERRAZ.
Switzerland.
Dec., 1878.
EXCHEQUER DIVISION: KELLY, C.B., and Huddleston, B.
L.R. 4 Ex. D. 63; 48 L.J. Ex. 214; 14 Cox C.C. 153; 39 L.T. (N.S.) 502; 27 W.R. 170.
Terraz was arrested on a warrant for "crimes against bankruptcy law," issued upon an information by the Chancellor of the Swiss Consulate General on 12th November, 1878, and twice remanded. While under remand a rule nisi was obtained on the ground that the warrant (i.e., the first warrant) did not sufficiently set forth the nature of the offence, &c. Before the case was argued a second warrant was issued, upon the Secretary of State's Order, describing the offence more fully.
Argued, by ATHERLEY JONES, for the accused, that the first warrant does not describe a specific offence; and that the second warrant could not be set up in answer to the rule.
Held: KELLY, C.B., entertained no doubt that the description of the offence charged against the prisoner was sufficient; and that the Magistrate was entitled to remand the prisoner on the warrant with a view to further enquiry.
HUDDLESTON, B., agreed, this being a warrant for safe custody of the party until the case can be properly enquired into, and the authorities show that in such warrants a general assertion or a general charge is sufficient.
Page 11
(The Judges differed as to whether the second warrant lodged in this case could be a valid answer to the rule, KELLY, C.B., saying: "If the case had turned upon, or it had been necessary to refer to, or to rely at all upon, the second warrant, I should have thought it a direct violation of the first principles of the law and constitution of this country to deal with that warrant in any way unless the counsel for the accused had had an opportunity previously of seeing it and preparing himself to argue upon it." HUDDLESTON, B., saying: "As far as I know, in practice and on authority, there can be no doubt whatever that a fresh warrant may be lodged; there may be one, two, three or other warrants substituted for the original one; but if, when the matter is before the Judge, there is a good warrant, that is sufficient to detain the prisoner.")
(“Abus de confiance" in French warrant, and “fraud by an agent" in English commitment held to be sufficient description of the offence; see ex parte Piot, 15 Cox C.C. 208; 47 J.P. 247; 48 L.T. (N.S.) 120.
See also R. v. Jacobi and Hiller; 46 L.T. (N.S.) 595, footnote; and In re Arton, L.R. Q.B.D. 1896 (1) 509; 65 L.J.M.C. 50; 18 Cox C.C. 277; 60 J.P. 132.)
Page 10529
B 2
512
R. v. WILSON,
Switzerland,
2nd November, 1877.
10
QUEEN'S BENCH: COCKBURN, L.C.J., MELLOR and FIELD, JJ.
L.R. 3 Q.B.D. 42; 48 L.J.M.C. 37; 13 Cox C.C. 630; 37 L.T. (N.S.) 544.
W., a British subject, had been committed by the Magistrate for surrender for larceny in Switzerland. By the Swiss treaty of 1874, no subject of the United Kingdom shall be delivered up by the Government thereof to Switzer- land. The Magistrate was of opinion that he was not entitled to consider the terms of the treaty, but only the Extradition Acts.
BOWEN, in support of the commitment, contended:
The Order in Council does not limit the operation of the Extradition Acts; it merely recites the treaty.
Held: The Act can only have application so far as it is consistent with the treaty. The Order in Council must be co-extensive with, and limited by the treaty.
(See Article I. of the Treaty with Switzerland, of 26th November, 1880, as to
"NATIONALS.")
(See also In re Galwey, L.R. Q.B.D. 1896 (1) 230; 65 L.J.M.C. 38; 18 Cox C.0.
213; 60 J.P. 87.)
COMMONWEALTH v. HAWES.
United States of America.
17th April, 1878.
COURT OF APPEALS OF KENTUCKY.
14 Cox C.C. 135.
Hawes was surrendered to the U.S.A. by Canada to answer three charges of forgery. He was tried on two indictments for forgery, and acquitted. He was held in custody, however, to answer a charge of embezzlement; and he moved, on affidavit, to be released from custody. The Court ordered the case for embezzlement to be continued, and prisoner released from custody. The Commonwealth appealed.
Held: The precise purpose for which the fugitive is to be surrendered is set out in exact and apt language, and the Act negatives, by necessary implication, the right here claimed, that the person surrendered may be tried for an offence different from that for which he was extradited, and one for which his surrender could not have been demanded.
(The French Minister of Justice, in his circular of 15 April, 1841, said: "The extradition declares the offence which leads to it, and this offence alone ought to be inquired into." The rule, as stated by the German author Heffier, is that: "The individual, whose extradition has been granted, cannot be prosecuted nor tried for any crime except that for which the extradition has
11
been obtained. To act in any other way, and to cause him to be tried for other crines or misdemeanors, would be to violate the mutual principle of asylum, and the silent clause contained by implication in every extradition.")
(See also United States V. Rauscher, quoted in In re Alice Woodall,
57 L.J.M.C. 72; 16 Cox 0.0, 478.) (And see now Article III. of the Convention with the U.S.A. of 12th July, 1889.)
EX PARTE TERRAZ.
Switzerland.
Dec., 1878.
EXCHEQUER DIVISION: KELLY, C.B., aud Hroblestos, B.
L.R. 4 Ex. D. 63; 48 L.J. Ex. 214; 14 Cox C.C. 153; 39 L.T. (N.S.) 502 ; 27 W.R. 170.
Terraz was arrested on a warrant for "crimes against bankruptcy law," issued upon au information by the Chancellor of the Swiss Consulate General on 12th November, 1878, and twice remanded. While under remand a rule uisi was obtained on the ground that the warrant (.e., the first warrant) did not sufficiently set forth the nature of the offence, &c. Before the case was argued a second warrant was issued. upon the secretary of State's Order, describing the offence more fully.
Argued, by ATHERLEY JONES, for the accused, that the first warrant does not describe a specific offence; and that the second warrant could not be set up in answer to the rule.
Held: KELLY, C.B., entertained no doubt that the description of the offence charged against the prisoner was sufficient; and that the Magistrate was entitled to remand the prisoner on the warrant with a view to further enquiry.
HUDDLESTON, B., agreed, this being a warrant for safe custody of the party until the case can be properly enquired into, and the authorities show that in such warrants a general assertion or a general charge is sufficient.
way
(The Judges differed as to whether the second warrant lodged in this case could be a valid answer to the rule, KELLY, C.B., saying: "If the case had turned upon, or it had been necessary to refer to, or to rely at all upon, the second warrant, I should have thought it a direct violation of the first principles of the law and constitution of this country to deal with that warrant in any unless the counsel for the accused had had an opportunity previously of seeing it and preparing himself to argue upon it HUDDLESTON, B., saying: "As far as I know, in practice and on authority, there can be no doubt whatever that a fresh warrant may be lodged; there may be one, two, three or other warrants substituted for the original one; but if, when the matter is before the Judge, there is a good warrant, that is sufficient to detain the prisoner.")
and
(“Abus de confiance" in French warrant, and “fraud by an agent" in English commitment held to be sufficient description of the offence; see ex parte Piot, 15 Cox C.C. 208; 47 J.P. 247 ; 48 L.Ť. (N.S.) 120.
See also R. v. Jacobi and Hiller; 46 L.T. (N.S.) 595, footnote; and
In re Arton, L.R. Q.B.D. 1896 (1) 509; 65 L.J.M.C. 50; 18 Cox C.C. 277;
60 J.P. 132.)
10529
B 2
512
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