held that the statute 5 Eliz., c. 4, is not in force in Ontario, but the statute 20 Geo. 2, c. 19, is, though both statutes are of a date long anterior to the introduction of the English law in this Province. In giving judgment in this case the learned Chief Justice Robinson says, in reference to the 5 Eliz. c. 4, that "it cannot possibly admit of doubt that its provisions are inapplicable to any state of things that ever existed here. A clause here and there might be carried into effect in this colony, or anywhere, from the general nature, of their provisions, but that is not sufficient to make such a statute part of our law, when the main object and tenor of it is wholly foreign to the nature of our institutions, and is therefore incapable of being carried substantially and as a whole into execution. (a)

The 28 Geo. 3, c. 49, s. 1, as to perjury, is local in its character, and therefore is not in force here. (b)

In Reg. v. Mercer, (c) it was held that the 5 & 6 Edw. 6, c. 16, against buying and selling offices, is in force in this country, under the 40 Geo. 3, c. 1, as part of the criminal law of England. The 49 Geo. 3, c. 126, applies here and expressly extends the 5 & 6 Edw. 6, c. 16, to the colonies, or at least such of its provisions as are in their nature applicable. (d) Semble, the 3 Edw. 1, c. 26, is in force here. (e)

The 1 W. & M. c. 18, s. 18, is in force here, notwithstanding the Con. Stats. Can. c. 92, s. 18, and a person offending against the former statute may be punished. (f)

The 32 Geo. 3, c. 1, introducing the law of England as to property and civil rights into the Province of Ontario,

(a) Ib. 221.

(b) Reg. v. Row, 14 U. C. C. P. 307.

(c) 17 U. C. Q. B. 602.

(d) Ib.; see also Reg. v. Moodie, 20 U. C. Q. B. 389; Foot v. Bullock, 4 U. C. Q. B. 480.

(e) Askin v. London District Council, 1 U. C. Q. B. 292.
(f) Reid v. Inglis. 12 U. C. C. P. 195; per Draper, C. J.

included the law generally which related to marriage, that is, the common and statute law of England applicable to the state of things existing in this colony at the time the Act was passed. The stat. 26 Geo, 2, c. 33, being in force in England when our stat. 32 Geo. 3, c. 1, became law, was adopted, as well as other statutes, so far as it consisted with our civil institutions, being part of the law of England at that time "relating to civil rights." It would seem, however, that the 11th clause of 26 Geo. 2, c. 33, is not in force in this country. (a)

The 8 Henry 6, c. 9, 6 Henry 8, c. 9, and 8 Henry 4, c. 9, and 21 James 1, c. 15, as to forcible entry, are in force here (b): so the 8 & 9 Wm. 3, c. 27 (c): so the 33 Henry 8, c. 20 (d): so the Mutiny Act, 25 Vic. c. 5, s. 72 (e): so by the 14 Geo. 3, c. 83, the 9 Geo. 1, c. 19, and 6 Geo. 2, c. 35, which impose certain penalties on persons selling foreign lottery tickets, have been made to form part of the law of Quebec. (ƒ)

(a) Reg. v. Roblin, 21 U. C. Q. B. 352-5; Hodgins v. McNeil, 9 Grant, 305; 9 U. C. L. J. 125; Reg, v. Secker, 14 U. C. Q. B. 604; but see Reg. v. Bell, 15 U. U. C. Q. B. 287.

(b) Boulton v. Fitzgerald, 1 U. C. Q. B. 343; Rex. v. McGreary, 5 U. C. Q. B. O. S. 620.

(c) Wragg v. Jarvis, 4 U. C. Q. B. O. S. 317.

(d) Doe dem. Gillespie v. Wixon, 5 U. C. Q. B. 132.

(e) Reg. v. Dawes, 22 U. C. Q. B. 333.

(f) Ex parte Rousse, S. L. C. A. 321.

See further on the general subject Hesketh v. Ward, 17 U. C. C. P. 667; Mercer v. Hewston, 9 U. C. C. P. 349; Heartly v. Hearns, 6 U. C. Q. B. O. S. 452; Torrance v. Smith, 3 U. C. C. P. 411; James v. McLean, 3 Allen, 164; Marks v. Gilmour, 3 Allen, 170-217; ex parte Bustin, 2 Allen, 211; Fish v. Doyle Draper, 340; Purdy q, t. v. Ryder Taylor, 236; Reg. v. Street, 1 Kerr, 373; doe dem Allen v. Murray, 2 Kerr, 359; Milner v. Gilbert, 3 Kerr, 617; Morrison v. McAlpine, 2 Kerr, 36; ex parte Ritchie, 2 Kerr, 75; Reg. v. McCormick, 18 U. C. Q. B. 131; Pringle v. Allan, 18 U. C. Q. B. 578; Warner v. Tyson, 2 L. C. J. 105; Reg. v. Beveridge, 1 Kerr, 58; Reg. v. Street, 1 Kerr, 373; Atty. General v. Warner, 7 U. C. Q. B. 397.

EXTRADITION.

FOR the purposes of this chapter, it may be said that where, upon a requisition by the Government of Canada or the United States, a person found within the territories of either nation, charged with murder, assault, with intent to commit murder, piracy, arson, robbery, the utterance of forged paper, or forgery committed within the jurisdiction of the other, is delivered up to justice, pursuant to the Ashburton Treaty, and the statutes passed to give effect thereto, the surrender under such circumstances is called extradition.

Jurists are not unanimous on the question whether in the absence of treaty stipulations there is any obligation recognized between nations to make such surrender. But the better opinion seems to be that, in an international point of view, the extradition of criminals is a matter of comity, and not of right, except in cases specially provided for by treaty. (a) The law of England does not recognize it as an international duty in the absence of treaty stipulations, and the Habeas Corpus Act, 31 Car. 2, c. 2, s. 12, in effect prohibits it in the case of subjects, except fugitives from one part of Her Majesty's dominions to another. (b)

Both Great Britain and the United States maintain, upon principles of international law, irrespective of treaty, that the surrender of foreign criminals cannot be demanded. Hence the necessity for a treaty on the subject, which can only be made by the treaty-making

(a) Re Anderson, 11 U. C. C. P., 61 per Richards, J. Reg. v. Bennet H. Young. 9 L. C. J., 44 per Badgley, J.

(b) Reg. v. Tubbee, 1-U. C. P. R., 102-3, per Macaulay, C. J.

power of the nation. (a) This necessity was practically acknowledged at an early date by the making of an extradition treaty between the two governments on the 19th of November, 1794. This treaty was called "Jay's treaty," and it related only to murder and felony. It has long since been superseded by the Ashburton treaty, and the statutes passed to give effect thereto, though it continued in force till the outbreak of the American war in 1812. It ceased as soon as war was declared, and from the conclusion of the treaty of peace between Great Britain and the United States until the passing of the 3 Wm. 4, c. 6, in 1833, the extradition of criminals between the two countries rested entirely upon state authority and the general law of nations. (b)

The first case which was decided in this country on the subject of extradition, was Re Fisher, (c) decided in 1827. Jay's treaty was not then in force in Quebec, and the decision proceeded on the general principles of international law. The Court held that the executive government had power to deliver up to a foreign statea fugitive from justice charged with having committed any crime within its jurisdiction. In another case, in 1833, Lord Aylmer, then Governor of Canada, refused to deliver up four prisoners for extradition, saying the Executive could not, in the absence of treaty or legislation on the subject, dispense with the Habeas Corpus Act. But, in the same year, Ontario remedied this defect by passing the 3 Wm. 4, c. 6, Con. Stat., U. C., c. 96.

In relation to foreign powers with whom no treaty or conventional arrangement exists, this latter statute is still in force, and limits any authority or discretion which might otherwise have existed on the principles of the common

(a) Reg. v. Bennet H. Young 9 L. C. J.. 44 per Badgley, J.

(b) See Judgment of Macaulay, C. J. Reg. v. Tubbee, I U. C. P. R. 100-1. (c) S. L. C. A. 245.

law, or international comity, to cases embraced therein, and the mode of proceeding therein pointed out. Some doubt, however, exists as to how far the United States, Quebec, or England would respect this statute, if a fugitive surrendered by Ontario to a foreign power were taken through those countries. (a)

The extradition of criminals is now regulated by the Ashburton Treaty or Treaty of Washington, and the statutes passed to give effect thereto. The Treaty was signed at Washington on the 9th of August, 1842, by Lord Ashburton, on behalf of Great Britain, and Daniel Webster, on behalf of the United States. The ratifications were exchanged at London on the 30th of October following. This Treaty was passed for purely national purposes. (b) It contains the whole law of surrender between Canada and the United States (c); and, in the opinion of Macaulay, C. J., the power of surrender which might otherwise exist on the general principles of international law, is circumscribed and limited by the Treaty and statutes, and no discretion can now be exercised by the Government in the surrender of fugitives in other cases either under the Con. Stat., U. C., c. 96, (which he considered suspended during the continuance of the treaty, so far as the United States are concerned); or by virtue of any common international law prerogative or state authority or comity which might have otherwise prevailed. (d)

Immediately on the ratification of the Treaty, the necessity of legislation for the purpose of carrying its provisions into complete effect, was felt by each of the high contracting parties. The English Legislature, on the

(a) Reg. v. Tubbee, 1 U. C. P. R. 98.

(b) Reg. v. Bennet H. Young, The St. Alban's Raid, 167 per Sm th, J. (c) Rey. v. Tubbee, 1 U. C. P. R. 98.

(d) Ib., 102.