person, a duly authenticated foreign warrant authorising the arrest of the criminal must be produced (§ 10). It must purport to be signed by a judge, magistrate, or officer of the foreign State where the same was issued, and it must be authenticated by the oath of some witness, or by being sealed with the official seal of the Minister of Justice or some other Minister of State (§ 15). The foreign warrant need not set out the offence so as to strictly satisfy the English definition of some extradition crime, but it must appear that it has been issued by some competent authority, and that it is, in fact, an official document for the arrest of the prisoner.* In R. v. Ganz† the document produced before the magistrate as the foreign warrant was sealed with the seal of the Department of Justice at The Hague, but was headed "Copy." It was contended that § 10 of the Act of 1870 required the production of an original warrant, and that this document was insufficient as being a copy. It was also objected that it was not in form a warrant of arrest. The Court, however, held that what is required is the production, not of a warrant of a foreign State according to the technical meaning of the term “warrant" in English law, but of a document within the interpretation clause (§ 26), which provides that "the term 'warrant' in the case of any foreign State includes any judicial document authorising the arrest of a person accused or convicted of crime," and that the document

* R. v. Jacobi and Hiller, 46 L. T. (N.S.), 595 n.

† 9 Q. B. D., 93; 51 L. J. Q. B., 419; 46 L. T. (N.S.), 592.

*

in question was a judicial document authorising the arrest of the prisoner and was "duly authenticated " within § 5. In other cases, "fraud," and "suspected of fraud," † have respectively been held to be sufficient descriptions of the offence in a foreign warrant. Evidence must of course be given of the identity of the prisoner with the person named in such warrant.

If, in addition to this, such evidence is produced as (subject to the provisions of the Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been. committed in England, the police magistrate is required to commit him to the Middlesex House of Detention, or to some other prison in Middlesex, there to await the warrant of a Secretary of State for his surrender, and must forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit (§ 10). To justify a magistrate in committing there must be some evidence that the accused committed the crime within the jurisdiction of the country seeking his extradition ; but if there is any evidence before the magistrate the Queen's Bench Division will not review his decision on the ground that it is against the weight of evidence.§ At the time of the committal the police magistrate must inform the criminal that he will not be surrendered until after the expiration * Ex parte Piot, 48 L. T. (N.S.), 120; 15 Cox, C. C., 208; 47 J. P., † R. v. Jacobi and Hiller, 46 L. T. (N.S.), 595 n. R. v. Lavaudier, 15 Cox, C. C., 329.

247.

§ R. v. Maurer, ante, p. 170.

of fifteen days, and that be has a right to apply for a writ of habeas corpus (§ 11).

Application for a writ of habeas corpus on a warrant of extradition may be made to the court, or a judge, but may not during the sittings be made to a judge at chambers.* The present practice is for the argument to take place on the rule nisi for a habeas, and it seems that a further argument on the return to the writ will not be allowed in future. The following note is appended to R. v. Ganz (1882) in the Law Reports†:-"In point of fact, a rule absolute in the first instance for a writ of habeas corpus had been granted, and the writ issued. The prisoner was brought up in custody on the return, but the Attorney-General (Sir H. James), at the commencement of the argument, pointed out that the practice in matters of this sort had since 1873 been to obtain a rule nisi for a habeas corpus, and argue the case on the rule, and that such practice was far more convenient. He also stated that the points on which the prisoner's counsel wished to rely would not be available to him on the return to the writ, which was on the face of it perfectly good. It was therefore agreed that the matter should be argued as if the prisoner's counsel were now moving for a rule nisi on affidavits, and the Crown showing cause against such rule. It is reported accordingly." In 1885 in R. v. De Portugal, after an argument on the rule nisi by Sir J. Gorst, S.G. (with him Sir R. E. Webster,

* Crown Office Rules, 1886: 235-238. + 34 W. R., 42.

+ 9 Q. B. D., 93.

Mr.

A.G., and Messrs. R. S. Wright and Danckwerts) for the Crown, and Mr. Tickell for the prisoner, the Court (Mathew and A. L. Smith, JJ.) gave judgment in favour of the prisoner, and made the rule absolute for a writ of habeas corpus. On the return to the writ on the following day, Sir J. Gorst, S.G., opposed the discharge. Tickell, for the prisoner, objected that the case had already been argued, and referred to the above-quoted note to R. v. Ganz. Day, J. (the Court on this occasion consisted of Day and A. L. Smith, JJ.), said: “No doubt this is a departure from the ordinary practice, and it is, I think, most inconvenient, but there is nothing that I know of to prevent the Crown from showing cause against the discharge of the prisoner." The question whether the prisoner was entitled to be discharged was then re-argued by Sir J. Gorst, S.G., and Mr. R. S. Wright, for the Crown, and Mr. Tickell for the prisoner. In giving judgment, Day, J., made the following reference to the question of practice:-"I regret that I was not a member of the Court which gave judgment in this case yesterday, but I am now in entire possession of the grounds on which it was delivered. That Court heard a full argument from both sides. Now, on the application that the prisoner be discharged, further arguments have been addressed to us. I cannot help thinking that such a course is a matter of great public inconvenience. would be very inconvenient if double arguments on the same question came to be allowed. The question raised here, if it was not raised in the former discussion, ought

It

most certainly to have been raised then.

For myself, I shall in future never allow an argument on the issuing of a habeas corpus unless there be an undertaking that there is to be no further argument. The former practice was for the argument to take place on bringing the prisoner up for discharge, but at the instance of a former Attorney-General that course was changed, and the argument now takes place on the application for the writ of habeas corpus. I shall, however, take care that this inconvenience does not occur again." The Crown Office Rules of 1886 provide* that upon the argument of a rule nisi for a writ of habeas corpus the Court may in its discretion direct an order to be drawn up for the prisoner's discharge, instead of waiting for the return of the writ, which order shall be a sufficient warrant to any gaoler or constable or other person for his discharge.

An appeal from the refusal of a Divisional Court to grant a habeas was made to the Court of Appeal in R. v. Weilt in 1882, but it did not become necessary for that Court to decide whether or not they had jurisdiction to entertain such an appeal, as in the case in question they thought that there was no ground for the exercise of their jurisdiction if they possessed any, and therefore they expressly refrained from expressing any opinion as to its existence. In the previous case of Wideman after the decision of the Queen's Bench against the prisoner, appli

*Rule 244.

+ 9 Q. B. D., 701; 53 L. J. M. C., 74; 47 L. T. (N.S.), 630; 31 W. R., 60; 15 Cox, C. C., 189. ‡ Ante, p. 152.