CO129-410 - Governor Sir May - 1914 [3-5] — Page 64

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looal Ordinace, to support, the proposition that an Extradition Treaty la suspended during war between England and the other Contracting Power; and yet, for it is an admitted principle of constitutional law, if we can imagine the question arising before

the Court it is unquestionable that the Court would act on it

and discharge the prisoner. I believe that I can show that

the principle I am contending for, though up to now in graemio, yet as potently exists as a companion principle, and has awaited this occasion to come forth from the judicial bosom.

I shall of course be told that it is barely possibly for such a question to come up before the Court, that in practice

the Executive alone is likely to have to deal with it. The

criticism is ineffective. We know that extradition proceedings

sometimes are very lengthy. We know that war sometimes CONOS

up from the sea with the swiftness of the Destroying Angel, and

it may well be that war should break out while the case was

before the Court on the argument on habeas corpus.

Let us ace first what is the true scope of the prin-

oiple that treaties are suspended during war between the

Contracting Powers in its applications to extradition treaties.

We shall find I think that even that principle, admittedly

universal as it is, has not as yet received its full development.

It is agreed that in the even of war between France

and England, the extradition treaty would be suspended, and that

no surrenders from either country to the other would be made.

Let us go one step further. It is fundamental to extradition

that it is not limited to the subjects of the requesting State.

Thua France can demand the surrender from England of a Spaniard

who having committed a crime in France has fled to England, and

in law Spain would have no voice in the matter. But suppos.

a war between France and Spain, would such a Spaniard legitima.

tely be surrendered? Is there any constitutional principle

on which the Courts could act and discharge the prisoner? I think.

(3).