mission of the acts described in the depositions, but also that they come within the definition of one of the crimes named in the Act under which proceedings are taken. It is equally well established that if on examination the magistrate finds that the acts are not disputed, but that a justification is established, antecedent to, and independent of, the acts themselves, he must discharge the prisoner. This is seen in the various cases previously cited where murder or robbery has been charged on account of acts committed as belligerents." If the belligerent character, or any similar justification (such, for instance, in a case of forgery, as the authority to sign†), be established, the magistrate cannot commit the prisoner. In the case of the Roanoke at Bermuda, the prisoners were charged with piracy. They produced a commission from Jefferson Davis, the President of the Confederate States, and were immediately released; and upon complaint by the Government of the Northern States, the English Government upheld the decision of the magistrate.

There can be no doubt that the magistrate is bound to afford the prisoner a reasonable opportunity of producing this class of evidence. But it will be observed that this rule applies only to evidence as to the quality of the act charged; removing it altogether from the class of crimes by the operation of a rule of law, by showing that it had an antecedent justification. It is otherwise when it is

* See ante, pp. 101, 109.

See Reg. v. Gould, 20 Upp. Can. C. P. (N.S. 6), 154; ante,

p. 117.

desired by evidence as to the acts themselves to show a justification arising out of the circumstances, or to reduce the amount of guilt which is involved.

This question will arise most frequently upon charges of murder. In this case it is necessary to have primá facie evidence of a wilful killing. It may be that an antecedent justification may be shown of the class just noticed, and then the prisoner will be entitled to his release. But if not, the question upon the facts of the case whether the act charged is really murder, manslaughter, or homicide justified by the circumstances of the case, depends upon evidence of fact which is proper for the consideration of a jury, and upon which, therefore, the magistrate is not entitled to decide. If the prisoner be charged upon the foreign warrant with murder, and the evidence for the prosecution shows a prima facie case of wilful killing, it is not for the magistrate to decide how far provocation, terror, or accident affected the guilt of the act.

*

At the same time, it would only be reasonable, considering that the deportation to another country for trial is in itself a severe penalty, that the magistrate should allow anything to appear upon the depositions which the prisoner's advisers might believe would be useful to him in an appeal to a higher Court against the commitment.

This view of the limits of the duty of the committing magistrate was acted upon by Commr. C. W. Newton, of the Southern District of New York, in the case of John C. Bennett, 11 L. T. (N.S.), 489. See also Story on the Const. of the U. S., § 1812.

CHAPTER VIII.

CONCLUSION.

ALTHOUGH thirteen years have passed since the last edition of this book was published, I regret that the law still remains in the unsatisfactory state which I then described. The defects which I pointed out still exist, but fortunately they have not been productive of serious inconvenience. Many treaties have been made and several very important cases have been decided in the English Courts, and these will be found recorded in former chapters, but no legislative amendments have been made in our law.

In the year 1877 a Royal Commission was appointed to consider the working and effect of the existing law and treaties with respect to extradition. It was one of the strongest Commissions ever appointed, there being amongst its members the late Lord Chief Justice Cockburn, Lords Selborne, Blackburn, and Esher, Lords Justices Baggallay and Thesiger, Mr. Justice Stephen, and Mr. Russell Gurney. They suggested that, in future, extradition treaties should not be held to be indispensable, but that statutory power should be given to the proper authorities to deliver up fugitive criminals whose surrender should be asked, irrespective of the existence of any treaty between this

country and the state against whose law the offence had been committed, and that the Act should extend to those foreign states to which it might from time to time by Order in Council be directed to apply. They further expressed the opinion that the stipulation, that a fugitive criminal should not be surrendered if he was a subject of the state in which he was found, was unnecessary and inexpedient, and should be omitted in future treaties. This recommendation has been acted upon by the British Government in several of the treaties made since the date of the Report, notably those with Spain (1878), Luxemburg (1880), and Switzerland (1880). Several valuable suggestions were made by the Commission for the amendment of procedure in extradition cases, with a view to remove technical difficulties which under the present law often prevent the punishment of crime; but the most important point with which they dealt in their Report was the question how far the political character of a crime should exempt the offender from surrender. This is a matter of very great importance, and one which may at any time cause serious international difficulties. Commission advised that the suggestion of a political motive should not be recognized as a ground on which a magistrate or a judge should refuse a demand for the surrender of a person accused of what, in the absence of such motive, would be an ordinary crime, unless the act to which a political character was sought to be ascribed occurred during a time of civil war or open insurrection but they considered that a discretionary power in favour

The

of the prisoner should be reserved for the Government to refuse to deliver up a person so accused. This exactly corresponds with the opinion expressed in the first edition of this work, which is quoted in the Appendix to the present edition.

It will be observed that, in considering how far a state was entitled, or should bind itself, to deliver up its own subjects for trial in a foreign country whose laws they were accused of having broken, the Commission made no reference to the question of the right of a state to imprison for offences against a foreign law, and to surrender for trial in a foreign state, persons not subjects of that state, but of a third state. This, however, is not an unimportant question, and it has become the more interesting from a decision lately given in our Courts. Before examining that decision it may be well to examine the principle upon which all extradition rests. That principle is, that a state, against whose laws a person subject to their obligation has committed an offence, is entitled to ask, as a matter of international courtesy, that the authorities of the place in which he has taken refuge shall assist in his being brought to justice, by surrendering him to the Executive of the country whose tribunals are entitled to punish the offence committed. If he be a subject of the power claiming his surrender, there is no difficulty. If he be a subject of the power upon which the request for his extradition is made, that power may or may not surrender him. It is quite entitled to take either course, but the comity of nations founded upon the general interests of mankind would