charged,' and continued,-"Without this evidence it would have been impossible for the magistrate to have any competent knowledge upon the subject; for, as Lord Brougham said in The Sussex Peerage Case (11 Cl. and Fin. 115), 'The judge has not organs to know and to deal with the text of the foreign law, and therefore requires the assistance of a lawyer who knows how to interpret it.' But, having this assistance, and being referred by M. Rasul to the Code Napoléon, we may venture to look into the text and to the Article 476 of the Code d'Instruction Criminelle, upon which he founds his opinion, which is in these terms: Si l'accusé se constitue prisonnier ou s'il est arrêté avant que la peine soit éteinte par prescription, le jugement rendu par contumace et les procédures faites contre lui depuis l'ordonnance de prise de corps ou de se représenter, seront anéantis de plein droit et il sera procédé à son égard dans la forme ordinaire.' It will be observed that the article commences by calling the alleged offender, after a judgment par contumace, the accused and not the condemned. And as upon his appearance or upon his apprehension judgment against him is annulled, and he is to be put upon his trial for the offence, I do not see how he can be described otherwise than as an accused person."

"But it is said that the judgment par contumace places the party who afterwards surrenders himself, or is apprehended and brought before the court, in a less favourable position upon the trial which ensues, and Articles 518 and 519 of the Code d'Instruction Criminelle were referred to to establish this assertion. I ought, perhaps, to refuse to

look at these articles without a skilled interpreter, but I am so anxious that the case should be thoroughly investigated, that I am disposed to permit this further irregularity in the proceedings."

"It appears to me that the object and effect of these articles have been entirely misunderstood. The title of the chapter under which they are merged is, "De la Reconnoissance de l'Identité d'un individu condamné évadé et repris; and Article 18 is to this effect:-'La reconnoissance de l'identité d'un individu condamné évadé et repris sera faite par la cour qui aura prononcé sa condamnation.' It merely provides for establishing the identity of the party before he is sent to his trial. And in a note to this article in the edition of the Code which I have, it is said, 'Au reste, cette identité reconnue comme l'arrêt de condamnation se trouve anéanti de plein droit, l'accusé devrait être soumis à de nouveaux débats devant les jurés.' The 519th Article merely provides that all the judgments with regard to the identification of an accused party shall be without the assistance of a jury. It does not appear, therefore, that the trial of a person condemned par contumace differs at all from that of a party who is put upon his trial without any previous condemnation."

"But in order that no part of the argument for the prisoner may be disregarded, I will assume that it has been established that the judgment par contumace does work some prejudice to the party upon the trial, either by reducing the amount of necessary proof, or by changing its character, or by making him liable to costs; but how could

that possibly take him out of the category of accused persons? He has ceased to be a person condemned, because his condemnation is annulled upon his appearance, and he is to take his trial for offences with which he stands charged. What better, I ought rather to say what other, description of him could be given than that of a person accused?"*

In the year 1868, a Committee of the House of Commons, very strongly constituted, was appointed to consider the whole matter of Extradition Law. It held many meetings, and examined a number of witnesses who had practical experience of the working of the existing treaties, and of the faults and defects which had so seriously impaired their usefulness; and the result of the recommendations of the Committee was the passing in 1870 of the Extradition Act (33 & 34 Vict. c. 52), for which the country is indebted chiefly to the ability of Sir Thomas Henry, and which is in itself a comprehensive and ably drawn code of law upon this subject. The principal defect of the law before 1870 was that, while requiring formalities before the arrest, which often gave warning to the criminal, and enabled him to escape, it did not secure to him, when actually arrested, any opportunity of testing before one of the superior courts of law the legality of the arrest and surrender. In the great majority of cases in which the British Government had consented to grant extradition, the police-officers, when actually armed with the warrant of arrest, had been unable to find the fugitive; and, on the

* L. R. 2 Ch. App. 47; 36 L. J. Ch. 80; 12 Jur. (N.S.) 867; 15 L. T. (N.S.) 165.

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hand, the danger existed that, as in Lamirande's case,* another person might be given up who was not guilty of any offence within the treaties. There were other and serious defects.

Neither the then existing treaties nor the Acts of Parliament by which they had been put in force, contained any exception as to political offenders, or any provision preventing the trial of a fugitive when once surrendered for offences other than that for which his rendition had been claimed. And very great difficulty was found in negotiating fresh treaties with foreign powers, in consequence of the necessity of obtaining from the British Parliament, after each treaty was signed, an Act of Parliament embodying and enforcing its provisions. This requirement was strongly objected to by foreign states, and had prevented the conclusion of several treaties with regard to which negotiations had commenced; while it had prevented the treaty actually made with Prussia in 1864 from being put in force. These defects were pointed out in the first edition of this work, and the remedies there suggested were all contained in the Extradition Act of 1870. The practice under that Act will be fully dealt with in a later chapter, but the general principles of the statute may be shortly stated. It laid down a complete system of Extradition Law, defining the persons who might be the subjects of extradition, and the crimes for which surrender might be granted; dispensed with formalities antecedent to the arrest, but required every magistrate, on committing a prisoner for he purpose of surrender, to * Vide p. 113, ante.

tell him that he would not be given up for fifteen days, and that during that time he could apply for a writ of habeas corpus in order to test the validity of the commitment. It made provision for the non-surrender of political offenders, and for the insertion in the treaties, whenever necessary, of a stipulation that the person whose surrender should be granted should only be tried for the offence for which he had been claimed. And subject to the limitations contained in the statute, power was given to the Executive Government to make fresh treaties, and to put them in force by an Order in Council instead of a special Act of Parliament.

The first case which came before the English courts under this Act was that of a man named Bouvier, who was in September 1872 claimed by the French Government as having been convicted, par contumace, of the offences of abus de confiance, fraudulent bankruptcy, and forgery. He was arrested in Jersey, and the warrant by which he was there committed to prison with a view to his surrender made mention of all three offences. A writ of habeas corpus was obtained, and the case argued before the Court of Queen's Bench; the important question being raised whether the effect of the Extradition Act, 1870, had not been to render the treaty with France entirely inoperative.

That treaty was originally put in force in Great Britain by the Act 6 & 7 Vict., c. 75, but that statute was repealed by the Extradition Act, 1870, and the obligation of the treaty has since depended on the terms of Section 27