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prisoners were not guilty of that crime, and consequently there was no evidence of the truth of the charge, but to the CHESAPEAKE Contrary.

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Fourthly. That if he was not wrong in this he wrongfully took a fresh complaint, and wrongfully examined on charges contained in that complaint, and not on the charge in the Governor's warrant, and that the warrant he issued and under which the prisoners are now detained is bad on its face, and not sufficient in law to justify their detention.

The Queen has a right to know why any of her subjects, or persons in her dominions, who are alleged to be wrongfully imprisoned are so restrained of their liberty. The writ of habeas corpus at common law and by statute, and the statute of the general assembly under which I am now acting, are the constitutional means in this province by which all alleged improper imprisonments are inquired into, and Her Majesty's Supreme Court and the judges of that court are bound on proper cause shown to investigate all cases of alleged unlawful arrest, and to relieve therefrom if shown to be contrary to law. The right to grant such relief in this case has not been, and cannot be questioned. Having, then, all the proceedings before me, I have to ascertain and determine whether or not such proceedings are justified by and in conformity with the Treaty and Act. of Parliament. If they are, this application must be dismissed. If they are not, the prisoners must be discharged.

The treaty, under which the delivery up to the United States Government of the prisoners is sought, is a treaty ratified on the 13th of October, 1842-"to settle and define the boundaries between the possessions of Her Britannie Majesty in North America and the Territories of the United States" for the "final suppression of the African slave trade, and for giving up criminals, fugitives from justice, in certain cases.' The recital of it having reference to that portion which bears on the present case is: "Whereas it is found expedient for the better administration of justice and the prevention of crime within the territories and jurisdiction of the two parties respectively that persons committing

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the crimes as hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up." And Article X. contains the stipu- CHESAPEAKE lation agreed on (2).

To enable this treaty to be carried out in the British dominions a statutory enactment was necessary, and the parliament of Great Britain, in the 6th and 7th year of Her Majesty's reign, passed an act for giving effect to the treaty, which, after reciting the 10th article of the treaty, and the 11th with reference to the duration of this portion of it, after reciting that it is expedient that provision should be made for carrying the said agreement into effect, enacts as follows (3):

The authority which this statute gives the officer administering the government of any colony, and all justices of the peace and other magistrates and officers of justice within their several jurisdictions, to act, being a statutory power, they must one and all act strictly in accordance with the authority given, and rigidly pursue that authority. Bearing this in mind, I proceed to the consideration of the first objection. We must look closely to the Act of Parliament, for it is from that, and that alone, the authority to act proceeds, and the very first words of the enacting part of the statute show that the basis of this right is on an event: “In case requisition shall at any time be made by the authority of the United States in pursuance of and according to the said treaty for the delivery of any person charged with certain crimes (including piracy) committed within the jurisdiction of the United States," etc. Thus we see the requisition is not to be a simple bald request for the delivery up of the person named, but it is a requisition which must be by the authority of the United States-it must be in pursuance of and in accordance with the treaty-it must be for the delivery of a person charged with one of the offences mentioned in the treaty, and the offence with which he is charged must have been committed within the jurisdiction of the United States. If a case perfect in all these (3) See ante, p. 210.

(2) See ante, p. 209.

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ingredients is presented, the statute says it shall be lawful for the administrator of the government of any colony or CHESAPEAKE possession by a warrant under his hand and seal, to signify that such a requisition has been made. Deficient in any one of these statutory requirements the governor is power

less to act.

Let us, therefore, examine the documents upon which His Excellency issued his warrant in this case. They all bear date on the same day, and in the absence of any evidence to the contrary, I may assume were laid before His Excellency at the same time, but the letter signed J. Q. Howard, United States Consul, in which the prisoners are named, would appear to have been the first written. It is a communication addressed to the Lieutenant Governor through the Provincial Secretary. The first part of this letter is simply a request that the governor will use his authority under the act of parliament "to the end that certain offenders (not naming them or their crime, or the place or jurisdiction within which committed) may be apprehended and delivered up to justice" (not stating to whom). It then proceeds to desire the Secretary to make known to His Excellency, that as an officer of the United States Government the writer is authorized by the executive department of that government to make a requisition upon him as the officer administering the government of this province, in order that certain persons (not naming them) believed (not charged) to be guilty of the crime of piracy (not stating within what jurisdiction committed, and not stating whether piracy against the law of nations or piracy against the municipal laws of any particular country) may be brought before the proper officers of justice, so that the evidence of their guilt or innocence may be heard and considered; and then he requests that, in accordance with the provisions of the said act of parliament, His Excellency will by warrant signify that a requisition has been made for the apprehension of John C. Braine and others, including the prisoners, and require that all justices of the peace and other magistrates within the jurisdiction of this province shall aid in apprehending the above named persons accused (not

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charged) of the crime of piracy, for the purpose not of having them delivered up, but for the purpose of having them brought to trial. Under the statute we have seen the CHESAPEAKE requisition must be made "by the authority of the United States," that is of the government of the United States. Had Mr. Howard been a public minister of the United States, and so the representative of that government, a requisition by him would doubtless have been good; but I am not aware that as consul he had any such authority unless specially delegated. Perhaps the fair construction of that letter would be that Mr. Howard intended to convey to the governor that he was so specially authorized, but the authority he claims is simply "in order that certain persons believed to be guilty of the crime of piracy may be brought before the proper officers of justice, so that the evidence of their guilt or innocence may be heard and considered." This is all that he puts forward as to the extent of his authority, and upon this, without production of the authority, he proceeds to request that His Excellency will by warrant signify as before stated. No authority from the government of the United States is shown or directly alleged authorizing him to ask for the apprehension of the individual parties he names, or to ask for their apprehension as charged with the crime committed within the jurisdiction of the United States, but simply of parties accused of the crime of piracy, for the purpose not of being delivered up under the treaty, but for the purpose of having them brought to trial. Had His Excellency issued such a warrant as is here asked for, I have no hesitation in saying, for the reasons that will hereafter be given in considering another branch of this case, it would have been bad. Is the matter then helped by the second letter? By this letter the consul transmits affidavits of the captain and second mate, sworn at St. John before H. T. Gilbert, police magistrate, on no charge or complaint, to be presented to His Excellency in case “he requires evidence of the criminality of the persons charged with the crime of piracy before issuing the warrant for having them brought to trial." A sincere hope is then expressed that no obstacle will be thrown in the way of

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bringing those charged with so grave an offence to justice. If there are deficiencies in the first, it can hardly be urged CHESAPEAKE that they are supplied by this letter or by the depositions accompanying it. His Excellency being one of the commissioners named in the Royal Commission for taking information and apprehending and committing for trial persons charged with offences on the high seas, and if brought to trial, one of the judges to try them, this letter, instead of being a requisition under the statute, or in aid of a requisition, if I may use the expression, more resembles an application to His Excellency in that capacity than to him under the 6th & 7th Vic., as an officer administering the government, more particularly as the last paragraph says: "We had believed until this late hour that a requisition before the executive would not have been required in the first instance," which would rather corroborate the view that proceedings were desired, independent of a requisition. As to the depositions, in my opinion, it cannot make the requisition good if not good without it.

It appears to have been sworn before Mr. Gilbert as police magistrate, and was, I think, on his part wholly extra-judicial. No complaint or information appears to have been laid before him to justify his taking the deposition, and if the charge of piracy, which the statements in it unanswered would justify, had been made at that time before him, he had no jurisdiction to entertain it; still less had he jurisdiction if the offence was an alleged crime committed within the jurisdiction of the United States, and therefore amounted to no legal charge, and to no legal evidence of the crime of piracy; but is it not absolutely necessary that the parties should be charged with the commission within the jurisdiction of the United States of one of the crimes mentioned, that is legally charged judicially, or by public process, or in some manner warranted by the laws of the country in which the alleged offence was committed. I think the words of the statute too clear to admit of any reasonable doubt on this point; and the 2nd section of the Act confirms me in this view. This section contemplates it being done by the issuing of a warrant, for in providing that certain evidence

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