uttering forged paper within the jurisdiction of the United States. Lord Derby, however, on behalf of her Majesty's Government, absolutely refused to surrender him unless and until the United States Government gave an assurance that the said Winslow should not, until he had been restored or had an opportunity of returning to her Majesty's dominions, be detained or tried in the United States for any offence committed prior to his surrender other than the extradition crimes proved by the facts on which the surrender would be grounded.*

In the case of Hawes † in 1878 the Court of Appeals of Kentucky took the opposite view to that taken in the cases of Caldwell, Lawrence, and Lagrave. Hawes was surrendered by Canada on charges of forgery, and it was held that he could not, while in the custody of the Court under such surrender, be tried upon an indictment for embezzlement, on the ground that the specification in the treaty of certain crimes as grounds of surrender, negatives by implication the right to try for other crimes the person surrendered. The Texas Court of Appeals in 1881 in the case of Blandford v. State, and the Supreme Court of Ohio in 1883 in State v. Vanderpool, § took a similar view to that adopted in the case of Hawes.

In 1886 the question was raised in the Supreme Court of the United States in the case of William Rauscher, who was surrendered by Great Britain under the treaty

*Parliamentary Papers, N. America, No. 1 (1876), p. 61, No. 130. + Commonwealth v. Hawes, 13 Bush (Ky.), 697; 14 Cox, C. C., 135, 10 Tex. Ct. of App., 627. § 39 Ohio St., 273,

of 1842 upon a charge of murder on the high seas of one Janssen. He was put on his trial before the Circuit Court of the Southern District of New York, not for murder, but upon an indictment (under section 5347 of the U. S. Revised Statutes) which charged him with cruel and unusual punishment of the said Janssen, who was one of the crew of an American vessel of which Rauscher was an officer. The punishment charged consisted of the identical acts proved in the extradition proceedings. The substantial question for the decision of the Supreme Court was whether under the circumstances stated the defendant could be tried upon this indictment, and the majority of the Court (Miller and Gray, JJ.) decided that he could not. Miller, J., held that treaties, being in the United States part of the law of the land, must be judicially construed, and that such a construction of the treaty of 1842 limited the power of the United States Courts to try persons surrendered under it, to the offence for which the surrender was made, and that this view was strengthened by the terms of the provisions made in the Revised Statutes (sec. 5275) for the protection of persons extradited to the United States. Gray, J., based his decision on the words of the Statutes alone. Chief Justice Waite dissented, on the ground that the treaty contained no express limitation of the authority of the Courts to try prisoners, and that, if any exercise of their jurisdiction amounted to a violation of international obligations, the only remedy was by diplomatic action.

In another case which was before the Supreme Court about the same time, the prisoner (Frederick Ker) complained, not that he had been brought into the country under a treaty which limited the powers of the Court to try him so as to exclude the offence for which he was tried, but that he had been brought from Peru by forcible proceedings which were mere kidnapping. The Court held that this gave him no right to their protection, whatever might be his right of suing the person who had wrongfully brought him from Peru, or those of the Peruvian Government of complaining of his unauthorised seizure within their territory.

It has not been thought expedient to set out in full cases of extradition which have occurred between the different States in America. The list given below* may, however, be found useful.

* Malpass r. Caldwell, 70 N. C., 130; Ex parte White, 49 Cal. 434; Ex parte Cubrath, 49 Cal., 436; Morton v. Skinner, 48 Ind., 123; People v. Brady, 56 N. Y., 182; Re Buell, 3 Dill., 116; Matter of Briscoe, 51 How (N. Y.), Pr., 422; Hibler v. State, 43 Tex., 197; Ea parte Rosenblat, 51 Cal., 285; Ex parte Romanes, 1 Utah T., 23; Re Titus, 8 Ben., 411; People v. Pinkerton, 17 Hun. (N. Y.), 199; Leary's case, 6 Abb. (N. Y.), N. Cas., 43; Ham v. State, 4 Tex. App., 645; Work v. Corrington, 34 Ohio St., 64; Sheldon v. McKnight, 34 Ohio St., 316; Ex parte Ammones, 34 Ohio St., 518; Wilcox v. Notze, 34 Ohio St., 520; Hartman v. Aveline, 63 Ind. 344; Re Wahl, 15 Blatch, C. Ct., 334; Jones v. Leonard, 50 Iowa, 106; Re Miles, 52 Vt., 609; Ee parte Sweavingen, 13 S. C., 74; State v. Swope, 72 Mo., 399; Tullis v. Fleming, 69 Ind., 15; Ex parte Leary, 10 Ben., 197; People v. Donohue, 84 N. Y., 438; Re Cannon, 47 Mich., 481; Re Hooper, 52 Wis., 699; Ex parte Lor. raine, 16 Nev., 63.

A Convention amending the extradition clause of the Ashburton Treaty was signed in London on June 25th 1886 by Mr. Phelps and Lord Roseberry. Its most important provisions were those of Article I., which extended that Treaty to the following crimes :-manslaughter; burglary; embezzlement or larceny of the value of fifty dollars or ten pounds and upwards; and malicious injuries to property whereby the life of any person should be endangered, if such injuries constituted a crime according to the law of both countriesArticle V., which provided that a fugitive criminal should not, without having had an opportunity of returning to the State by which he was surrendered, be detained or tried for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender was granted-and Article VI., which provided that extradition should be carried out in the United States and in Her Majesty's dominions respectively, subject to and in conformity with the forms prescribed by the laws regulating extradition for the time being in force in the surrendering State.

This Convention has not, however, up to the present date been ratified.

CHAPTER IV.

HISTORY OF THE LAW IN CANADA.

THE law of Canada, with regard to extradition, has been closely connected with that of the United States, and the Canadian provinces were before the mother country in their recognition of international duty upon this subject. In 1827, Joseph Fisher, an alien, was arrested in Lower Canada, charged with larceny in Vermont, and an order was made by the governor of the province for his rendition to that state, although no treaty existed. A habeas corpus was awarded, and Chief-Justice Reid, before whom the case was heard, after full argument and consideration, refused the discharge. In his judgment he adopted the principles laid down by Chancellor Kent in the decision in Washburn's case,* and enforced them by some weighty comments of his own. He said, "The right of surrender is founded on the principle that he who has caused an injury is bound to repair it, and he who has infringed the laws of any country is liable to the punishment inflicted by those laws. If we screen him from that punishment we become parties to his crime we excite retaliation, we encourage criminals to take * See ante, p. 39.