CO129-410 - Governor Sir May - 1914 [3-5] — Page 63

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pause, to induce the Court to hesitate, to make it desire to

advise with itself, whether after all three may not be some principle of higher constitutional law as yet unrevealed, but waiting for recognition,

Obviously the firet question is whether the Court has

Jurisdiction to entertain the point. I think I shall be ahlo

to show that it has. Undoubtedly it is a question for the

Executive; but I do not think it is exclusively for the Execu-

tives. I submit that like the political question in extradition

it is both for the Court and the Executive.

There is a very good reason why the exemption for the

political offences should be left to both branches of Government

for while the principle of the exemption is admitted to be

fundamental to the law of extradition, the difficulty of deter-

mining with precision its exact scope and meaning has from the

first been recognised. Some offences are clearly political;

others require the acutest legal intellects to determine whether

they come within the meaning of the exomption. And therefore,

wisely as it seems to me, the question has been put within the

jurisdiction of the Court, and it may act on its own initiative

in discharging the fugitive on this ground. Yet even if it

does not the weight of its deliberations must be of assistance

in guiding the Executive in the exercise of its own and inde-

pendent discretion,

So here, in the case of martial law which has been

· necessitated by internal commotion, while the effect it has on

Extradition is manifestly within the discretion of the Executive

to determine it is also, as I hope to show, well within the

jurisdiction of the Court.

It will of course be objected at once that I can show

nothing either in any treaty or in the Act or the local Ordinance

to support my contention I answer, and the answer is complete

neither is there anything in the treaties, or the Act or the

(2).