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Date: 1877
By: Dominion of Canada (Parliament)
Citation: Dominion of Canada, Parliament, “Report The Minister of Justice” in Sessional Papers (1877).
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On a Memorandum dated 26th May, 1876, from the Honorable Mr. Mackenzie submitting that Lord Carnarvon some time ago having expressed to Your Excellency a desire that the Minister of Justice should visit England with a view to have a personal conference upon certain public matters, he, Mr. Mackenzie, recommends that the Honorable Mr. Blake be authorized and requested to proceed to England for that purpose, and that he be also authorized to confer with Her Majesty’s Government regarding the questions of Extradition of Criminals—particularly in reference to cases arising between Canada and the United States—of Maritime Jurisdiction upon the Inland waters, and of the Royal Instructions and Commission to the Governor General, particularly with reference to Prerogative of Pardon.

The Committee submit the foregoing recommendation for Your Excellency’s approval.

The undersigned begs to report his official action under the minute of Council of 29th May, 1876, whereby he was requested to visit England in compliance with Lord Carnarvon’s desire to have a personal conference on certain public matters, and also with the view of conferring with Her Majesty’s Government regarding the questions of Extradition of Criminals particularly in cases arising between Canada and the United States; of Maritime Jurisdiction upon the Inland waters, and of the Royal Instructions and Commission to the Governor General, particularly with reference to the prerogative of Pardon.

It was chiefly on this subject that a conference was desired by Lord Carnarvon, with whom, as also with the Lord Chancellor, the undersigned fully discussed the measure.

Eventually Lord Carnarvon informed the undersigned that Her Majesty’s Government had decided that the Act should be left to its operation.

After some conversation on this subject the undersigned transmitted to Lord Carnarvon a written statement of his views which he inserts here, as giving in a condensed form the propositions he advanced.

MY LORD,—It may be convenient, as a basis for discussion, that I should lay before your Lordship a Memorandum of my present views on the subject of the Royal Commission and Royal Instructions to the Governor General of Canada, with reference to which I am charged to confer with your Lordship.

The existing forms in the case of Canada have been felt for some time to be capable of amendment, for reasons which require that special consideration should be given to her position, and which render unsuitable for her the forms which may be eminently suited to some of the Colonies.

Canada is not merely a Colony or a Province: she is a Dominion composed of an aggregate of seven large provinces federally united under an Imperial Charter, which expressly recites that her constitution is to be similar in principle to that of the United Kingdom. Nay, more, besides the powers with which she is invested over a large part of the affairs of the inhabitants of the several provinces, she enjoys absolute powers of legislation and administration over the people and territories of the northwest, out of which she has already created one province, and is empowered to create others, with representative institutions.

These circumstances, together with the vastness of her area, the numbers of her free population, the character of the representative institutions and of the responsible Government which as citizens of the various provinces and of Canada her people have so long enjoyed, all point to the propriety of dealing with the question in hand in a manner very different from that which might be fitly adopted with reference to a single and comparatively small and young Colony.

Besides the general spread of the principles of constitutional freedom there has been, in reference to the Colonies, a recognised difference between their circumstances, resulting in the application to those in a less advanced condition of a lesser measure of self-government, while others are said to be invested with “the fullest freedom of political government;” and it may be fairly stated that there is no dependency of the British Crown which is entitled to so full an application of the principles of constitutional freedom as the Dominion of Canada.

I feel, however, that I am not on the present occasion charged with the duty of entering into all the considerations involved in this proposition, or of proposing any thing requiring Parliamentary action, but am limited to the suggestion of such interpretations of and changes in the Commission and Instructions as may remove or lessen some of the anomalies which they present.

Before referring to the several clauses which seem to call for remark I may observe that by the 12th clause of the British North America Act, certain powers and authorities, defined only by reference to various statutes, are conferred, some on the Governor, and others on the Governor in Council. It would seem expedient to refer in the Commission to this grant in such terms as to avoid any implication of an attempted restriction of any of these powers.

Commission, Clause 4.—The exercise of the prerogative of pardon with which this clause deals is also dealt with by clause 11 of the Instructions, and they may, perhaps be conveniently treated together.

The subject of pardon being in effect a branch of criminal justice has been rightly assumed to be within the legislative powers of the Parliament of Canada; and various provisions are made on that subject by the 125th and following sections of the Canadian Criminal Procedure Act of 1869, 32 and 33 Vict., cap. 29. Section 129 (preventing any of the clauses from limiting or affecting the Royal prerogative of mercy), while it evidences the adoption of that policy by Parliament is, of course, a reiteration of the competency of Parliament to act in the other direction. In the present state of legislation it may be suggested that the power of pardon would be mostly fitly vested in the Governor General under general words in the Commission empowering him to act in that matter as Her Majesty’s representative in so far an concerns persons amenable to the Canadian criminal laws.

If, however, the more specific language is to be retained it would seem reasonable to extend the power to grant a pardon to accomplices to cases where a crime has been committed without Canada for which the offender may be tried therein. I may observe that it is not intended for the future in any case, save possibly that of a political offender, to advise the Governor to make it a condition of any pardon that the offender should be banished or absent himself from the Dominion.

The principal reasons for this determination are to be found in the correspondence with the Australian Colonies, transmitted for the information of the Government in your Lordship’s despatch of 5th of November, 1875. They are such as to render it impossible to resist your Lordship’s conclusions, since it cannot be denied that it is wrong to thrust upon other communities a criminal deemed unfit to live amongst his own people.

I have, however, to suggest that it may be just and convenient that the restriction should not be applicable to the cases of political criminals, to whose offences as a rule the considerations which make such a condition obnoxious hardly apply, while public convenience and the tranquility of the country may occasionally be best consulted by so disposing of them.

Instructions.—Clause 11 instructs the Governor as to the exercise of the power of pardon in capital cases. By the Statutes of Canada, 1873, 36 Vict., cap. 3, provision is made in such cases for a report from the Judge to the Secretary of State for the information of the Governor in sufficient time for the signification of his pleasure before the arrival of the day fixed for execution. In this state of the law it seems unnecessary to instruct the Governor to call upon the presiding Judge for a report. The mode prescribed by the instructions for the consideration of the report varies from the mode actually observed in this as in other matters, as elsewhere explained. It is, however, the invariable practice to dispose of capital cases in Council, while other cases are, as a rule, disposed of on reports from the Minister of Justice without the intervention of Council of Council, though of course these also may become the subject of action in Council.

These are minor matters.

The main question is upon the instruction given to the Governor, that he is, in capital cases, either to extend or withhold a pardon or a reprieve, according to his own deliberate judgment, whether the members of the Council concur in it, or otherwise. Having regard to the form of the Commission, and to this instruction, the proper inference is that in all cases not capital the action of the Governor by way of pardon or commutation is to be, as is his action in other matters, under advice, and that it is only in the capital cases, which are specially dealt with by the instruction, that he is to set upon his own judgment, even against advice. The distinction thus created was not maintained in the Australian correspondence, and does not appear well-founded. It provides a different rule of action, based simply on the gravity of the sentence, whereas the only tenable distinction that occurs to me is between the cases (whether capital or not) which may involve Imperial interests and those which, not involving such interests, concern solely the internal administration of the affairs of the Dominion.

The cases involving Imperial interests are referred to by your Lordship in your despatch on this subject to Governor Robinson of May 4th, 1875, as cases where “matters of Imperial interest or policy, or the interests of other countries or colonies, are involved.” Your Lordship instances the case of a kidnapper tried and sentenced under an Imperial Act by a Colonial Court, and that of a convict whose sentence was commuted on condition of exile from the Colony. With the latter class I have dealt in my remarks on the fourth clause of the Commission. With the former class may be ranged those of offenders who are subjects of other countries, and of certain political offenders.

It is probable that even in the exceptional cases suggested (which of course involve internal as well as external interests) the action of the Governor, notwithstanding the existing instructions, would generally be in accordance with advice; and no doubt to act against advice would be to incur a very grave responsibility, though not to the Canadian people. It would also seem that in the vast majority of of exceptional cases the exception would be found to be technical, not real, the substantial interests involved being solely Canadian; in which event the Governor would, notwithstanding the instruction, presumably act under advice. These observations, however, only show that the instruction cannot be maintained.

I have freely recognized the possible existence in the excepted classes of Imperial interests; and this possibility furnishes, in my view, the only ground for the application to these classes of a special rule. Having regard, however, to the considerations I am about to urge with reference to the 5th clause of the Instructions, I do not think it possible to formulate any such rule, and I suggest that the best course is not to attempt it, but to leave these rare and exceptional matters to be disposed of, when they arise, by mutual adjustment, in which necessarily due regard must be had to the constitutional powers and relations of the Crown, the Governor General, and the Council.

If my proposals for the omission of both the special rule and the 5th clause of the instructions be not adopted, I have further to suggest that any special rule on this subject may with less inconvenience be embraced in the general language substituted for that of the 5th clause, and that under no circumstances should there be a special rule particularly directed to the pardoning power.

It now becomes my duty to refer briefly to the arguments upon which in the case of the Australian Colonies it has been affirmed that the independent action of the Governor in the exercise of this power should be of a wider range than that which I suggest as proper in the case of Canada.

To the argument for independent action in certain exceptional cases I have already alluded, and I refer to it now only in order to point out that the existence of an exception, if admitted, is not a reason for giving in all cases independent power, but rather the reverse.

It is the exception which proves the rule; all arguments based upon its existence are arguments for exceptional treatment, but they are not reasons for making that treatment general, and they leave applicable to the bulk of the cases the rule which but for the exception, would be of universal application. The other reasons referred to appear to be—

That the high prerogative in question being personally delegated to the Governor, he cannot be in any way relieved from the duty of judging for himself in every case in which that prerogative is to be exercised ; as the responsible Minister of the Crown in a Colony cannot be looked on as occupying the same position in regard to the Queen’s prerogative of pardon as the Home Secretary. I would, in this connection, refer to the views of the Canadian Privy Council on the general question of ministerial powers and responsibilities, as expressed in the Minute of Council of 29th February, 1876, and the Report annexed thereto, thinking it needless to restate in detail the position taken on the general subject, and the arguments advanced against the proposed division of powers and responsibilities.

The prerogative of pardon has been rightly vested by statute in the Sovereign, since all criminal offences are against “her peace,” or “her crown and dignity,” and it is reasonable that the person injured should have the power to forgive; but neither the punishment of these injuries nor their forgiveness (both being matters which affect the people) is arbitrary ; the one can be, and accordingly is, regulated principally by law, though a wide discretion as to the punishment is given in many cases to the Judge ; the other being mainly beyond the province of law, is yet, like the remaining prerogatives of the British Sovereign, held in trust for the welfare of the people, and, so far as it is beyond the province of law, is regulated by the general principle of the constitution.

There may in this, as in other instances, be some difficulty in running out an exact analogy between the position in Canada and in England ; but I venture to suggest that the application to this subject of the fundamental rule of the Constitution, as expounded in the report referred to, affords the true solution of the question, and would furnish the nearest possible analogy between the practice to pursued in each country.

In the United Kingdom, while the British Parliament makes laws for the punishment of crimes committed by the inhabitants, the Sovereign exercises her prerogative of mercy towards such criminals, under the advice of her Minister there, who is chosen as other British Ministers are chosen, and is responsible to the British Parliament for his advice. Therefore, in the United Kingdom, this power is exercised under the same restraints and with the same securities to the other people concerned as the powers of Government.

This, it seems to me, is the practical result which should be obtained in Canada.

There, while the Canadian Parliament makes laws for the punishment of crimes committed by the inhabitants of Canada, the Sovereign should exercise the prerogative of mercy towards such criminals under the advice of her Privy Council for Canada, or of her Minister there, chosen as her other Canadian Ministers are chosen, and responsible to the Canadian Parliament for his advice ; nor having regard to the reasons given in the report already referred to, can it be conceded that the suggested responsibility of the Governor to the Colonial Office for the exercise of this power dependent of, though after, advice, would be a satisfactory substitute for the responsibility to the Canadian people of a Minister charged with the usual powers and duties in this respect.

2. The second argument is that expediency requires that this prerogative should be independently exercised by the Governor, and it is suggested that “the pressure, political as well as social, which would be brought to bear upon the Ministers, if the decision of such questions rested practically with them, would be most embarrassing to them, while the ultimate consequences might be a serious interference with the sentences of the Courts.”

This suggestion, which is supported in the case of one of the Australian Colonies by the views of local authorities, is not applicable, in a general sense, to Canada, where it has been commonly supposed that the decision of this, as of other questions, rests practically with the Ministers; where it is believed that the embarrassments suggested would but rarely occur, and that, at any rate, Ministers would not be relieved of any such embarrassments by the proposed course; and where it is confidently maintained that no improper interference with the sentences of the Courts would result.

No doubt in the exercise of this, as of many other powers of Government, embarrassments and difficulties may from time to time arise; but it is believed that their true solution will depend upon the unflinching application to every question of the Constitutional principle, and that greater difficulties and troubles will arise from the avoidance than from the assumption of the responsibility which I suggest should, by the alteration of the existing instruction, be imposed on ministers even in capital cases.

Commission, Clause 6.—The latter part gives authority to the several Lieutenant-Governors to assemble, prorogue, and dissolve the Legislative bodies of the several provinces. It would seem that any powers which may be thought necessary should have been conferred upon the Lieutenant- Governors by the British North America Act, and it appears to me they must be taken to be expressly or impliedly so conferred.

The provision giving these powers to the Lieutenant-Governors, by the Governor General’s Commission appears somewhat objectionable, and it might perhaps be advisable to leave these matters to be dealt with by those officers under the British North America Act, the 82nd section of which in terms confers on the Lieutenant-Governors of the new Provinces of Ontario and Quebec the power in the Queen’s name to summon the local bodies, a power which no doubt was assumed to be continued to the Governors of the other Provinces.

Commission, Clause 7, appears unsuitable to Canada. All subjects with which it deals, namely, marriage licenses, letters of administration, probates of wills, and the custody and management of lunatics and idiots and their estates, are within the exclusive control of the several provinces, and are dealt with under local legislation, the Governor General and his advisers having no concern with these matters. The only possible application it can have is to the North-West Territories pending the establishment there of local government; and as this is shortly to take place, it would seem proper to omit the clause in the next Commission.

Royal Instructions, Clause 5, purports to authorize the Governor to act under limitations in opposition to advice.

In so far as it may be intended by the clause to vest in the Governor the full constitutional powers which Her Majesty, if she were ruling personally instead of through his agency, could exercise, it is, of course, unobjectionable. The Governor General has an undoubted right to refuse compliance with the advice of his Ministers, whereupon the latter must either adopt and become responsible for his views, or leave their places to be filled by others prepared to take that course.

But the language of the clause (which for the suggested purpose would be unncessary) is wider, and seems to authorize action in opposition to the advice not merely of a particular set of Ministers, but of any Ministers.

But the language the clause (which for the suggested purpose would be unnecessary) is wider, and seems to authorize action in opposition to the advice not merely of a particular set of Ministers, but of any Ministers.

Notwithstanding the generality of the language, there are but few cases which it would be possible to exercise such a power, for as a rule the Governor does and must act through the agency of Ministers, and Ministers must be responsible for such action.

The cases not falling within this limitation may be said for practical purposes to be those in which the line taken by the Governor is purely negative-in which, while dissenting from a action proposed to him by Ministers, he does nothing but dissent. Even in such cases I presume no one would contend that any such power should be exercised under this clause, save upon the argument that there are certain conceivable instances in which, owing to the existence of substantial Imperial as distinguished from Canadian interests, it may bu considered that full freedom Of action is not vested in the Canadian people. It appears to me that any such cases must, pending the solution of the great problem of Imperial Government, be dealt with as they arise. Were the clause retained, though in a limited form, it would be found increasingly difficult to divest the Canadian Ministers even in such cases of full responsibility for the action of the Governor ; and the question in each case of the relative rights and duties of the Governor and the Ministers would probably be more and more earnestly discussed.

It is, so far as I can see, impossible to formulate any limitation. The effort to reconcile by any form of words the responsibility of Ministers under the Canadian constitution with a power to the Governor to take even a negative line independently of advice cannot, I think, succeed. The truth is, that Imperial interests are, under our present system of government to be secured in matters of Canadian executive policy, not by any such clause in a Governor’s instructions (which would be practically inoperative, and if it can be supposed to be operative would be mischievous); but by mutual good feeling, and by proper consideration for Imperial interests on the part of Her Majesty’s Canadian advisers: the Crown necessarily retaining all its constitutional rights and powers, which would be exercisable in any emergency in which the indicated securities might be found to fail.

I have, therefore, for the reasons suggested here and in the former part of this letter, to propose that this clause should be omitted ; the Governor General’s status being determined by our own constitutional Act, that officer remaining, of course, subject to any further instructions, special or general, which the Crown may lawfully give should circumstances render that course desirable.

Clause 6.—It may be proper to observe that the practice for a very great number of years has been that the business of Council is done in the absence of the Governor. On very exceptional occasions the Governor may preside, but these would occur only at intervals of years, and would probably be for the purpose of taking a formal decision on some extraordinary occasion, and not for deliberation.

The mode in which the business is done is by report to the Governor of the recommendations of the Council sitting as a Committee, sent to the Governor for his consideration, discussed where necessary between the Governor and the first Minister and becoming operative upon being marked ” approved” by the Governor. This system is in accordence with constitutional principle, and is found very convenient in practice. It is probable that the language of this clause is not intended to require a different practice, but it has been thought right to point out the actual working of the system under it with a view to any amendment which may be thought necessary.

Clause 7.-In practice the minutes of proceedings of Council are not read over and confirmed. These proceedings are extremely voluminous, a very large part of the public business which is transacted in England by departmental action being managed in Canada through Council. In the majority of cases the minutes have been the interval approved by the Governor and acted on. It might be as well, under circumstances, to omit the words providing for this procedure.

Clause 9 specifies the classes of Bills to be reserved.

It is beyond my province here to discuss the propriety of the clauses of the British North America Act on the subject of the reservation and disallowance of Bills, or to touch on the principles on which the power of disallowance, while retained in the present form, should be exercised. These questions involve another difficult phase of the problem of Imperial Government, but one that is not directly presented for consideration on this occasion, and on which, therefore, I express no opinion.

It appears to me that in all the classes of cases mentioned in the clause referred to, save perhaps class 8, it would be better and more conformable to the spirit of the constitution of Canada, as actually framed, that the legislation should be completed on the advice and responsibility of Her Majesty’s Privy Council for Canada ; and that, as a protection to Imperial interests, the reserved power of disallowance of such completed legislation is sufficient for all possible purposes. This view seems to me to apply With even added strength to certain of the classes, viz., 1, 3, 4, 6, and that part 7 not referring to the prerogative.

I may shortly observe in support of this view that, irrespective of the general powers conferred on the Parliament of Canada, among its express powers are those of legislation on subjects comprised in these classes ; that in practice bills on several of these subjects have been assented to without reservation ; and that this practice would appear to harmonize with the theory of the constitution as it is framed, by distributing the responsibilities and powers of Her Majesty’s Colonial and Imperial Advisers, allowing on the responsibility of the former the completion of Colonial legislation on authorized subjects, while it reserves to be exercised on the responsibility of the latter the Imperial prerogative of disallowance.

Clause 10.—The latter part, which provides for transmission of the journals and minutes of the Legislative bodies of the Dominion to be required from the clerks thereof, I assume applies only to the Senate and House of Commons of Canada.

These journals and minutes being invariably published there is no reason why copies of them should not be transmitted as heretofore ; but it is, of course, understood that such action involves neither invasion nor abandonment of the undoubted privileges of the Canadian Senate and Commons in respect of matters by them debated, but not only by them communicated to the Governor.

Clause 12.—It may be suggested that it would be expedient to alter the language by simply providing that all commissions granted should, unless otherwise provided by law, be during pleasure, without specifying some of the classes of officers referred to in the Clause. The Judges should no longer be named in the Clause since under the law, and in accordance which British constitutional practice, the Judges generally, if not universally, hold their offices during good behaviour. It seems, under these circumstances, inexpedient that this class of officers should continue to be mentioned as a class whose commissions may with propriety be during pleasure, although, of course, the language does not prevent their commissions being couched in proper terms according to law.

This completes the observations which occur to me.

SIR,—I am directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the—instant in which you lay before His Lordship a memorandum of your present views on the subject of the Royal Commission and Instructions to the Governor General of Canada.

Lord Carnarvon is much obliged to you for this expression of your opinions to which His Lordship has already given much consideration, and the suggestions contained in it appear to him to be of much importance, not only with reference to the Dominion but as applicable also to the circumstances of some other Colonies.

If permitted by the state of public business, which at this period of the year is especially heavy in this Department, Lord Carnarvon will be glad to consider with you before you leave England the principal details of the new Drafts which His Lordship would propose to adopt after futher examining your suggested alterations; but in the event of his being unable to do so you may understand that Lord Carnarvon hopes to be in a position at no distant date to inform Lord Dufferin that he will advise an amendment of the Commission and Instructions in general accordance with your representations.

It may be convenient to summarize the course of events bearing on this question in so far as it relates to the United States. The list of crimes contained in the Extradition clauses of the Ashburton Treaty being obviously inadequate, the Canadian Government in December, 1875, requested the British Government to take steps for the negotiation of a new Treaty containing an enlarged list of crimes.

The reply of the British Government shewed that although negotiations had been going on for some years there was no present prospect of the conclusion of a new Treaty.

Thereupon the Canadian Government determined that in case a new Treaty should not be negotiated before the ensuing Session, it would be their duty to consider how far Canada might not advantageously by local legislation deal partially at any rate with the evil.

Meantime arose the complication occasioned by Great Britain demanding from the United States an undertaking that a fugitive criminal should be tried only on the charge on which he might be surrendered.

The diplomatic correspondence on this subject was proceeding for some time after the undersigned reached England, and in the end, the United States declining to accede to this demand, Great Britain declined to surrender certain fugitive criminals, whereon the United States determined not to make or accede to any further requisitions under the Treaty, and its operation was suspended.

The undersigned, without entering into the merits of this controversy (upon which he was unable to adopt the conclusions of the British Government) represented the importance to Canada of avoiding a suspension of action under the existing treaty, and of the speedy negotiation of a new arrangement.

He argued the propriety, especially in so far as Canada and the United States are concerned, of embracing in the new arrangement many crimes not comprised in the Ashburton Treaty or even in the more recent treaties with other powers; and he intimated that the Canadian Government would be ready at any time to discuss the list.

He questioned the necessity of some of the stringent restrictions of the British Extradition Act of 1870, and as it seemed likely that these restrictions might interose obstacles in the way of concluding or acting upon a new treaty, he felt it his duty to bring under the consideration of the Government the question whether that Act should not be amended.

He had the opportunity of discussing this subject with many of the public men during whose tenure of power that Act was passed, and he found so general a disposition to acquiesce in its amendment that he ventured to express the belief that there would be no serious opposition to such a measure.

Although the importance of a speedy settlement of the question was fully admitted no legislation was proposed, whether because of the difficulties obviously besetting any attempt at immediate action or because no amendment was thought desirable, it would be premature to enquire.

When it became apparent that there would be no early legislation the undersigned the propriety of making some temporary arrangement by which, pending the conclusion of a new convention, action might be resumed under the existing treaty.

The representations of the undersigned referred also to the mode of dealing in Canada with cases in which there might be no adequate or effective extradition arrangement with a foreign State, and to the mode of proceeding generally for the execution in Canada of extradition arrangements, a matter which has already been the subject of Parliamentary action, and of correspondence between the two Governments.

The undersigned without entering into further details appends certain official correspondence which, taken in connection with his present statement, shews the nature of his representations and the position of the matter so far as it could be officially stated when he left England.

MY LORD,—Among the subjects on which I am authorized, on the part of the Government of Canada, to confer with Her Majesty’s Government, is that of the extradition of criminals, particularly in reference to cases arising between Canada and the United States.

It may be convenient, with a view to the discussion of the subject, that I should call your Lordship’s attention to the action which has already been taken on it, so far as Canada is concerned, and to the present state of the question.

So long ago as on the 13th February, 1833, at a time when there was no Treaty for extradition between the United Kingdom and the United States, the Legislature of the late Province of Upper Canada passed a statute, 3 Wm. IV, cap. 7, called “An Act to provide for the apprehending of Fugitive Offenders from Foreign Countries, and delivering them up to Justice,” whereby, after reciting that it was “expedient to provide by law for the apprehending and delivering up of felons and other malefactors who, having committed crimes in foreign countries, have sought, or may hereafter seek, an asylum in the Province,” the Governor was empowered, at his discretion, and by the advice of the Council, on requisition made by the Government, or authorized Ministers or officers of any country within the jurisdiction of which the crime should have been charged to have been committed, to deliver up to justice any person who may have fled to, or should seek refuge in, the province, being charged with murder, forgery, larceny, or other crime committed without the jurisdiction of the province, which crimes, if committed within the province, would by the laws thereof be punishable by death or corporal punishment, by pillory, whipping, or by confinement at hard labor, to the end that such persons might be transported out of the province to the place where the crime was charged to have been committed, with a proviso that this should only be done upon such evidence of criminality as, according to the laws of the province, would, in the opinion of the Governor in Council, have warranted the apprehension and commitment for trial of the person charged had the offence been committed within the province.

The Act contains other provisions necessary for its effectual execution. It was probably passed in view of a failure of justice which had occurred shortly before for want of such legislation in the case of a fugitive from the United States; and it is of importance as indicating the felt necessity of some provision even at that early period, and the recognized right of the late province to make such provision.

By virtue of this Act it is presumed that the extradition clauses of the Ashburton Treaty of 9th August, 1842, became effectual in Upper Canada immediately upon its ratification, with reference to crimes which were within both the treaty and the statute.

On the 22nd August, 1843, was passed the Imperial Statute 6 and 7 Vict., cap. 76, for giving effect to the Ashburton Treaty. This Act expressly applies to the Colonies, but it recognizes the view that in this matter Colonial legislation is necessary and desirable, and arranges for the suspension of the Act upon fit provision being made by the Colonial Legislature for carrying on its object.

In 1849 the Legislature of the Province of Canada passed 12 Vict., Cap. 1, by which, after reciting that certain provisions of the Imperial Act had been found inconvenient in practice in the province, and more especially the provision requiring, as preliminary to an arrest, the issue of a warrant by the Governor signifying that a requisition had been made by the United States, local provision was made in great detail in substitution of that made by the Imperial Act.

This Statute was to come into force upon a day to be appointed by proclamation by the Governor promulgating an Order of the Queen in Council suspending the operation of the Imperial Act. The Order in Council was made in March, 1850, and in May, 1850, the Act came into force under Proclamation. In 1 Upper Canada Practice Reports, p. 98, is to be found the case of the Queen v. Tubbee, wherein it was decided that the effect of the Treaty and the Imperial and Provincial Acts was to supersede the Upper Canada Act of 1833, so far as regarded the United States, but that that Act was still in force within Upper Canada in relation to foreign Powers with whom no Convention subsisted.

In 1859, upon the consolidation of the Statutes for Upper Canada, the Act Of 1833 was incorporated as 22 Vict., cap. 96. At the same time, upon the consolidation of the Acts of Canada, the Act of 1849 was put in the schedule of repealed Statutes, but was contemporaneously re-enacted as one of the consolidated Statutes Of Canada, 22 Vict., cap. 89.

On the 19th May, 1860, the Upper Canada Act, 22 Vict., cap. 96, was repealed.

On the 18th May, 1861, was passed the Canadian Statute, 24 Vict., cap. 6, by which certain of the provisions of cap. 89 of the Consolidated Statutes of Canada were repealed, and replaced by other provisions. This Act was sanctioned by the Queen in Council on the 11th October, 1861. A doubt having been raised whether in consequence of the alteration made by this Act in the provisions of the previous provincial Act the operation of the Imperial Statute had been revived, an Order was made by the Queen in Council on the 4th of February, 1865, declaring the Imperial Act suspended so long as the provincial Acts should remain in force.

On the 10th August, 1866, was passed the Imperial Act, 29 and 30 Vict., cap. 121, entitled, ” An Act for the amendment of the Law relating to the Law of Extradition,” whereby certain amendments of detail were made.

On the 20th March, 1867, was passed the British North America Act, under which the Dominion of Canada was constituted, and whereby, amongst the extensive powers otherwise conferred upon its Parliament, it was enacted by the 132nd section that the Parliament and Government of Canada shall have “all powers necessary or proper for performing the obligations of Canada, or of any province thereof, as part of the British Empire, towards foreign countries, arising under Treaties between the Empire and such foreign countries.”

On the 19th June, 1868, the Queen in Council assented to an Act passed by the two Houses of Parliament of Canada on 22nd May, 1868, respecting the Treaty between Her Majesty and the United States of America for the apprehension and surrender of certain offenders. By this Act it was recited that certain provisions of the Imperial Act had been found inconvenient in practice in Canada, and that it was expedient to make provision for carrying the objects of the Treaty into effect in the whole of Canada by the substitution of other enactments in lieu of those of the Imperial Act; and such provision was made.

Upon the 19th June, 1868, the Imperial Act was suspended by Order in Council during the continuance of the Canadian Act just referred to.

The inadequacy of the Extradition Clauses of the Ashburton Treaty having long been painfully apparent, with a view partially to remedy the evils thence arising, on 22nd June, 1869, the Canadian Parliament passed 32 and 33 Vict., cap. 21, which provided that if any person should bring into Canada, or have in his possession therein, any property stolen, embezzled, converted, or obtained by fraud or false pretences in any other country, in such manner that the like stealing, &c., in Canada would by the laws of Canada be a felony or misdemeanor, then the bringing into or having in possession in Canada of the property, knowing it to have been obtained, should be an offence of the same nature, and punishable in like manner as if the stealing, &c., had taken place in Canada, and the person might be tried in any place in Canada where he had the property.

On the 12th May, 1870, was passed the Canadian Statute 33 Vict., cap. 5, amending that of 1868, by limiting the classes of persons authorized to act as Magistrates in extradition cases.

On the 5th July, 1870, the Colonial Secretary sent a circular despatch to the Governor of Canada, inclosing a copy of the Extradition Bill then before Parliament, pointing out that under the 17th section, the Act, when applied by Order in Council to any other State would, unless otherwise provided, extend to every British Possession, and that although not expecting that any Colony would seek to be exempted from its operation, it was desired, before the passing of an Order in Council, to ascertain the views of the Colonies. The circular further stated that it would be in the highest degree inconvenient, if not practically impossible, for Her Majesty’s Government to carry on separate negotiations respecting extradition with each separate Colony, and that the question for consideration, in truth, resolved itself into this, whether the Colony should remain without extradition relations with foreign Powers, or whether it should be included in all the Imperial arrangements upon the subject; and the belief was expressed that the Ministers of the Governor of Canada would concur with the Colonial Secretary in thinking it very desirable that the Colony should not be excluded from the operation of the Act.

I do not find that any action was taken by Canada upon this Circular, and upon the 9th August, 1870, the Imperial Statute to which it referred, being 33 and 34 Vict., cap. 52, was passed.

I do not enter here into any analysis of the provisions of this Act; but I may observe that by the 27th section the former Imperial Statutes for giving effect to certain Extradition Treaties were repealed, and it was provided that the Act, with the exception of anything contained in it inconsistent with the Treaties referred to, should apply in the case of the foreign States with which those Treaties, including the Ashburton Treaty, were made, in the same manner as if an Order in Council referring to the Treaties had been made in pursuance of the Act, and as if such Order had directed that every Law and Ordinance which is in force in every British Possession with respect to such Treaties should have effect as part of the Act.

I may observe further that, while by the 17th section, it was provided by such Act when applied by Order in Council, and unless otherwise provided by such Order, should extend to every British Possession, with certain modifications, it was by the 18th section provided that, if by any law or Ordinance passed by the Legislature of any British Possession, provision is made for carrying into effect within such Possession the surrender of fugitive criminals who are in, or suspected of being within such Possession, Her Majesty may, by Order in Council applying the Act in case of any foreign State, or by any subsequent Order, either suspend the operation, within any such British Possession, of the Act or any part thereof, so far as it relates to such foreign State, and so long as such law or Ordinance continues in force, and no longer, or direct that such law or Ordinance, or any part thereof, shall have effect in such British Possession, with or without modifications and alterations as if it were part of the Act.

On the 17th December, 1872, the Privy Council of Canada passed a Minute approving and recommending the transmission of a Report from the Department of Justice of 3rd December, 1872, upon certain Circular despatches, inclosing copies of Orders in Council to give effect to certain Extradition Treaties made subsequently to the passing of the Act of 1870. The Report referred to points out that it is requisite that the Parliament of Canada should legislate upon the subject, with a view to affording facilities for carrying such Treaties into effect which did not exist in Canada under the General Extradition Act of 1870. It further points out that the Imperial Act for giving effect to the Ashburton Treaty not being in force in Canada, extradition proceedings, as far as regarded the United States, would be continued under the Canadian Act of 1868 as if it was part of the Imperial Act of 1870 ; and it refers to, and details some of the difficulties expected to arise in the practical working in Canada of the Act of 1870, and the Treaties with Germany and Belgium subsequently made ; and it recommends further Canadian legislation upon the subject of extradition.

On the 8th February, 1873, the receipt of these papers was acknowledged, and the Colonial Secretary intimated that lie was not aware of any objection to the proposed legislation, although he was not in a position to express any opinion upon the details of the Bill.

On the 5th August, 1873, was passed the Imperial Act 36 and 37 Vict., cap. 60, amending the Extradition Act of 1870.

Several cases have occurred in Canada in which the question arose as to the true state of the law in extradition cases arising with the United States. Copies of the judgments in these cases have, I believe, been transmitted to your Lordship in connection with the recent discussion arising out of the cases of Lawrence and Winslow. I refer to them now merely for the purpose of pointing out that they sufficiently show the unsatisfactory state of the law as applied to Canada. According to the view taken, it would ” become necessary at each stop to decide what part of the Canadian Statute is not inconsistent with so much of the Imperial Act of 1870 as is consistent with the Treaty ; ” and, as a learned Judge observes, ” this nay become a very involved operation, but there is no other mode of dealing with it.”

I may venture to remark that it is at least questionable whether the effect Of the 27th section of the Imperial Extradition Act of 1870 was not to give or leave full effect to the Canadian Act, applying the Imperial Act only so far as it is consistent with the Canadian Act. It is to be observed that every Law and Ordinance in force in the Possession is to have effect as part of the Imperial Act. It may be fairly argued that to the local law is thus given full, not partial, vitality ; and that, being expressly incorporated, so far as the possession is concerned, with the Imperial Act, its exceptional provisions should be taken to be the law with reference to the locality, leaving applicable to the locality only those provisions of the general Act consistent with, or supplementary to, the exceptional provisions of the local Act.

On the 14th April, 1871, was passed the Canadian Act 34 Vict., cap, 18, whereby the Canadian extradition law was extended to the Province of Manitoba.

On the 23rd May, 1873, was passed the Canadian Act 36 Vic., cap. 40, whereby the Canadian extradition law was extended to Prince Edward Island ; but it may be observed that the criminal law of Canada has not yet been extended to that province.

Upon the 26th May, 1874. was passed the Canadian Act 37 Vict., cap. 49 whereby the Canadian extradition Acts were extended to the Province of British Columbia.

On the proclamation of the North-West Territories Act, 1875, the Canadian extradition Acts will be extended to those territories.

There has, I believe, been no Imperial Order in Council in reference to the Statutes last mentioned.

Upon the 23rd May, 1873, there was reserved for the signification of Her Majesty’s pleasure a Bill passel by both Houses of Parliament of Canada, intituled “An Act to make further provision respecting the extradition of Criminals.” By this Act, after reciting the Imperial Act of 1870, and further reciting that the Canadian Act of 1868, as amended by the Canadian Act of 1873, was in force in Canada, and having been found effective and convenient in practice as respects the Ashburton Treaty, it was convenient that they should continue to apply thereto, but that inasmuch as other arrangements for extradition purposes had been, and might thereafter be, made by Her Majesty with respect to surrender to foreign States, and the Canadian Acts applied only to cases under the Ashburton Treaty, and certain provisions of the Imperial Act would be found inconvenient in practice in Canada, it was expedient to make more convenient substitutionary provision in Canada, it was enacted that the Act should come into force on a day to be appointed by the Governor in a Proclamation whereby he should signify that the Queen in Council had assented to it, and had by Order in Council suspended the operation of the Imperial Act within Canada, and directed that the Act should have effect in Canada subject only to such modifications as might thereafter be made by the Parliament of Canada. The Ashburton Treaty was excepted from the operation of the Act, which in respect to arrangements made or to be made with other Powers, made provision for their execution.

On 30th August, 1873, the Queen in Council made an Order assenting to this Bill which Order was transmitted from the Secretary of State for the Colonies to the Governor General on the 11th December, 1873, in a despatch in which he enclosed a copy of a Report upon the Bill by Sir Thomas Henry. This Report contained some suggestions of minor amendments. On 14th October, 1873, the Governor General proclaimed the assent; but no Order of the Queen in Council suspending the operation of the Imperial Act, and directing that the Act should take effect in Canada, having been made or proclaimed, and no day having been fixed for the coming into force of the Act, it never came into effect. On the 7th February, 1874, a Minute of the Canadian Privy Council was approved, stating these circumstances, and requesting the passing of the necessary Order of the Queen in Council. On the 18th May, 1874, your Lordship, as Colonial Secretary, in reference to this Minute, pointed out certain difficulties suggested by the law Advisers of the Crown, and certain amendments which they proposed to be made in the Act. On the 26th May, 1874, the Governor reserved for the signification of Her Majesty’s pleasure a Bill passed by both Houses of the Canadian Parliament to amend the Act of 1873, the provisions of which Bill were in accordance with the suggestions made in Sir Thomas Henry’s letter. On the 6th June, 1874, the Canadian Privy Council passed a Minute upon the despatch of May 1874, approving a Report from the Department of Justice, pointing out that, while presumably no objection could exist to the Royal Assent of this Bill, et, having regard to the despatch of 18th May, 1874, it might be desirable to take further steps which would render unnecessary the assent to the Bill of 1874, and suggesting that no action should for the present by taken upon that Bill. To this course, by despatch of July 1874, your Lordship assented.

A Bill was prepared with a view to submission to the Canadian Parliament during the Session of 1875, but it was not brought in.

On the 8th December, 1875, the Canadian Privy Council passed a Minute approving of a Report from me, suggesting the inadequacy of the existing Treaty, and that an application should be made to Her Majesty’s Government for the negotiation of an enlarged Treaty, and pointing out that meantime I abstained from making any suggestions as to machinery for carrying extraditions into effect.

On the 21st February, 1876, was received your Lordship’s reply to this minute dated 2nd February, 1876, which showed the then position of the question between the United Kingdom and the United States; and on the 26th February, 1876, the Canadian Privy Council passed a Minute approving of a report from me suggesting that the recent correspondence should be laid before Parliament and that unless before next Session of Parliament there should appear to be reasonable prospect of an enlarged Extradition Treaty, the question should be considered whether it would not be well to provide by legislation of the Canadian Parliament some remedy for so much of the evil resulting from the present state of affairs as would flow from Canada being made a refuge for the criminals of the United States.

From this résumé it will appear that neither of the general measures passed by the Houses of the Canadian Parliament since the Imperial Act of 870 are in force, and that as to countries other than the United States, the Treaties which extend to Canada must be carried into effect at present under the provisions of the Imperial Act of 1870, amended by that of 1873. Upon the assumption that the extradition clauses of the Ashburton Treaty are to be denounced, it is of course immaterial to consider the precise state of the law in Canada as to that Treaty ; but the Acts upon the subject have been already cited in this Memorandum.

I did not think it well to propose any legislation during the Session of the Canadian Parliament pending the receipt of the reply to the Minute of 8th December last; and after its receipt the time and circumstances appeared unfavorable to immediate legislation. But it is obvious that, altogether apart from the position of affairs in the United States, some action must take place in Canada during the approaching Session. The current of legislation to which I have referred indicates that it has been found desirable that the provisions of Extradition Treaties should be carried into effect in Canada by local legislation. This is the course contemplated by the Canadian Constitution, and is theoretically as well as practically, the better plan. It is also obvious that the provisions of the law should be very plain and simple, and suited to the circumstances of the locality to which it is to apply. The law is to be administered, except in certain places, at comparatively rare intervals, and in some parts of its provisions by persons not occupying superior judicial positions. It is to be administered under circumstances frequently of pressure, and even perhaps of haste. The communication by mail in a country of such vast area is frequently slow, and the power of repairing errors and miscarriages, limited though this is, may in some instances, owing to these delays, be entirely taken away. Under these circumstances, it appears to me that the Canadian law should be in itself complete, not taking effect as part of, or in so far as consistent with, the Imperial legislation, but giving (unembarrassed by the difficulties which must, as already pointed out, flow from the other course) within itself a complete exposition of the rights and duties of the parties concerned.

For the same reason it appears to me that, if possible, and subject to any modifications required by Treaty arrangement, the law in Canada should be one and the same for all cases of criminals extradited under Treaty, and that we should avoid, if we can, having one set of provisions for the extradition of fugitives under any Treaty which may be made with the United States, and another set for the extradition of fugitives from other countries. It is true that the cases of extradition from Canada to countries other than the United States are extremely rare; but this very rarity gives fewer opportunities to those called upon to administer the law to become acquainted with its provisions, and therefore imperils its correct administration ; besides it is obviously our duty to make equally satisfactory provision for the discharge of our obligations towards all Powers.

Again, the very fact of there being a double set of machinery, one more commonly applied, the other applicable in a few cases, would add to the confusion ; and any reasons rendering the Imperial Statute inconvenient in its application to extraditions to the United States would be equally applicable in cases with other countries. The true conclusion, I submit, is that the general Canadian Act should be constructed so as to carry into effect the obligations of all Treaties with foreign countries on the subject of extradition, and that the operation of the Imperial Act should be suspended in Canada.

Turning now to the question of extradition with the United States, which is the subject of really pressing importance, the observations I have already made will apply should the Ashburton Treaty be continued or renewed; but if this be not so it is my duty to bring to your Lordship’s attention what occurs to me with reference to the two alternatives which would the namely the negotiation of a new Treaty, or the entire cessation of extradition arrangements between the two Powers.

As to the negotiation of a new Treaty, it appears that discussions upon this subject have been going on between the United Kingdom and the United States for many years, and that the project of a Treaty had been almost agreed to. The Canadian Government has not, I believe, had the opportunity of learning the provisions of the proposed document, and therefore I can only make such general suggestions upon the subject as occur to me. I do not venture to enter into the discussion of the general principles which should regulate extradition, and confine myself to those points which, having regard to the peculiar situation and experience of Canada and the United States, seem to require special attention.

1st. As to the range of extradition crimes. Upon this I have nothing to add to the Minute of the Canadian Privy Council of December last, already before your Lordship, which I think, sufficiently shows that the circumstances of Canada and the United States imperatively require that their extradition arrangements should be of the most liberal character.

2. Upon the question of “Nationals.” It would seem the interest of both countries that the Treaty should be as wide as the present one. Large numbers of emigrants from the United Kingdom and from Canada are residents in the United States; considerable numbers of emigrants from the United States are residents in Canada. This state of things is likely to continue for many years. Difficulties as to the nationality of these persons in case demands are made for their extradition would not unfrequently arise; they would claim to be subjects of the Power within whose dominions they were found after flight, and unsatisfactory results would very probably ensue. Again, the proximity of the two countries, the immense line of boundary across which without the least difficulty the residents of each can pass into the other, and the facilities for the commission of offences in the one country by the inhabitants of the other, show that to provide practically for the immunity of the subjects of each country committing offences in the other would be to propose a premium upon crime, and would result in the systematic plotting of crimes to be carried out in the one country by the people of the other.

3. As to the expenses of extradition, it is not unimportant to continue the existing system by which each country is respectively liable for the payment of the expenses incurred in pursuance of its demand for extradition. The partial return of persons extradited between Canada and the States respectively since 1867, shows the numbers to be twenty-nine from Canada on the demand of the United States as against six from the United States on the demand of Canada.

An enlarged Treaty would probably enormously increase the numbers, but there is no reason to suppose that the proportion would be seriously changed; indeed the proportion as ascertained by population would be in round numbers about ten to one. Any arrangement by which each Government shall bear all the expense connected with extraditing fugitives called for by the other would, therefore, be unjust to Canada. Besides, under our Constitution the administration of criminal justice belonging not to Canada but to the provinces, there is no difficulty in arrangements between Canada and the provinces that each province shall bear the expense of its own applications for extradition, but there would be no means of carrying out such an arrangement upon the other plan, and thus practically local expenditure would be transferred to the federal Government.

4. It would be convenient that the Treaty should contain a clause based upon those embraced in several of the more recent Conventions, providing that special arrangements may be made for carrying out the Treaty by Canadian action.

5. It would be well to settle on the most simple and direct channel for making the mutual requisitions.

6. The practice in Canada has always been to apprehend, examine, and discharge or commit for extradition, without the necessity of a previous requisition from the United States; and this practice answers well.

In the United States and the practice has, as I am informed by a person of experience, been different, and not uniform. The subject was discussed in the case of Kaine, in 14 Howard’s Reports, and various opinions were expressed by the Judges; and I am told that the Commissioners have held in some cases that the authority or notification of the President is necessary to justify even the apprehension, and in many or most cases that this authority is necessary to justify the detention, of the fugitive, and the examination into his case.

The results are unsatisfactory. The Government of Canada is often obliged to make a requisition on imperfect materials, and without full examination and information and needless difficulties have occurred in effecting extraditions ; and I believe in some cases there have been failures of justice. It would be very desirable that in the negotiations for a new Treaty the point should be clearly settled, and the practice assimilated to that of Canada.

I am also told that there is a diversity of practice on the point of taking evidence for the prisoner. It night be well to consider how far this detail could be provided for by the Treaty.

These are all the points which, with my present information, occur to me on this head.

Turning to the other alternative, and assuming that it is found impossible to make an Extradition Treaty with the United States, I have to ask your Lordship’s consideration of the fact that the exceptional circumstances already referred to render it almost impossible to avoid some action to remedy, as far as possible, the local evils which would result in Canada. The state of things even under the Ashburton Treaty was deplorable, but the condition of affairs would, in the absence of any arrangement, be intolerable.

I have already alluded to the Act passed in 1833 by the late Province of Upper Canada, making provision for the surrender of fugitive criminals apart from any Convention or reciprocal arrangement, and I have pointed out that this Act was passed in consequence of the relative situation of Canada and the United States.

The general principle of local ordinance or legislation upon the subject of extradition, in cases where the circumstances of the British Possession appear to require it, has been repeatedly recognized, as, for example, in the case of Antigua, where by local Act in 1849 provision was made for the extradition of fugitive criminals from Venezuela; in St. Christopher, where by Act of 1848 general provision was made for the surrender of criminals; in British Honduras, where by Act of 1852 provision was made for the surrender of fugitive criminals from Guatemala; in Labuan, where by Ordinance of 1867 provision was made for extradition of fugitive criminals from Borneo ; and in Malta, where by Ordinance of 1863 provision was made for the extradition of criminals from Italy. These local provisions all recognized the necessity, in this connection, of making arrangements suitable to the localities, where it was found inconvenient or impossible to make general arrangements for the whole Empire; and founding myself upon the reason of the thing, and this repeated recognition of that reason, I have to submit the conclusion that, should it be found impossible to conclude a general Treaty with the United States, some special arrangement should be made to meet the case of Canada, either by Convention followed by Canadian legislation, or without Convention by Canadian legislation, reciprocal if possible, but if that be not attainable then without reciprocity. The arrangement might, of course, he made terminable upon the conclusion of a Treaty accomplishing the same object.

It may, perhaps, be thought convenient that for the present no suggestion should be publicly made as to the propriety of adopting either of these courses, which the negotiation of a Treaty may render unnecessary, and one of which can, if it becomes necessary, be carried out by Canadian legislation, without any intervention on the part of Her Majesty’s Government; but it has been thought advisable that during my visit the various contingencies should be discussed.

I abstain at present from saying anything on several obvious considerations involved in the adoption of either of these courses, but shall be ready to discuss them as well as the other propositions advanced, at any time convenient to your Lordship.

MY LORD,—The very great anxiety naturally felt in Canada on the subject of our extradition relations with the United States will, I trust, serve as an excuse for my recurring to the subject at so early a date, with the view of pointing out to your Lordship that unless some legislation be had in the Session of the Imperial Parliament now drawing to a close it may be found impossible to bring a new treaty into operation for nearly a year; while the fact that the Canadian Parliament does not sit before February, will disable us from making for many months any local provision on the subject.

I would venture therefore to express the hope that it may be found possible to propose this Session any requisite legislation.

SIR,—I am directed by the Earl of Carnarvon to acknowledge the receipt of your letters of the 27th June and 6th instant relating to Extradition.

Lord Carnarvon desires me to inform you that he is in communication upon the subject with the Secretaries of State for the Home and Foreign Departments, to whom your letters have been referred with a request that the questions which you have raised may meet with the earliest possible consideration.

SIR,—With reference to my letter of the 8th instant I am directed by the Earl of Carnarvon to transmit to you for your information a copy of one from the Foreign Office on the subject of your communications to this Department of the 27th June and 6th July relating to Extradition.

SIR,—I am directed by the Earl of Derby to acknowledge the receipt of your letter of the 8th instant forwarding copies of two letters from Mr. Blake on the subject of extradition, and I am to request you to state to the Earl of Carnarvon that these letters will be considered.

MY LORD,—In illustration of the condition of things which may be expected in default of extradition arrangements between the two countries, as referred to in my former communication, I take the liberty of enclosing three slips from Canadian newspapers received by the last mail, all referring to transactions which have occurred almost contemporaneously and at one point only of the border. One appears to be a plot by citizens of the United States to commit a burglary upon a bank in Toronto. The second is a case in which a salesman at Hamilton stole a large quantity of his employer’s stock which he shipped to Buffalo, following his plunder himself.

The third is a case in which a person practising the crime of procuring abortion escaped from Buffalo, crossing the border to Fort Erie where he is now safe from justice.

From these instances occurring at one time and at one point, some idea may be formed of the state of things which would ensue along our border were extradition arrangements discontinued for any considerable period.

SIR,—I am directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the 14th instant enclosing three cuttings from Canadian newspapers, received by you last mail, in reference to a possible failure of extradition arrangements between Canada and the United States.

Lord Carnarvon desires me to assure you, that he is keenly alive to the gravity of the present situation of affairs, and that, as you are aware, the subject is engaging the most anxious consideration of Her Majesty’s Government.

Lord Carnarvon has forwarded to Lord Derby the extracts which you have sent him.

MY LORD,—I may perhaps be permitted before leaving England to offer for your Lordship’s consideration some suggestions on those restrictions of the Extradition Act of 1870 which seem to be the obstacle to the conclusion of a treaty in which Canada is deeply interested.

Doubtless all reasonable precautions should be taken to prevent extradition from being used as a machine for political prosecutions; and to leave as far as possible to the surrendering State the decision of the question whether a prosecution is political.

But reason and experience show that the political question hardly ever exists, and that there is therefore in the vast bulk of the cases no possibility of danger on this score. Experience also shows that in the few cases in which the political question does arise there is little danger of any attempt to use a surrender for the purpose of a political prosecution; and the general advance of the principles of constitutional freedom is steadily lessening any such danger.

On the other hand the accumulation of personal property and the extension of commercial transactions have developed a great and lamentable increase in certain classes of crimes, while the improvements in transport have largely facilitated the escape of fugitive criminals.

Thus the importance of making extradition arrangements of the simplest, the most liberal and the most effective character is daily increasing, while the risk of their being perverted to political purposes is daily diminishing.

We must take care under these circumstances lest we sacrifice the substance from dread of a shadow.

There are three ways in which the political question may arise. Of these two are specifically provided for by the Act of 1870, which prevents the surrender (1) if it appears that the crime charged is political, or (2) if it appears that the demand is in fact made in order to prosecute for a political crime. With these restrictions I do not suggest any interference. The only remaining way in which the question may arise is where the fugitive has committed or is accused of some political crime for which if he should return to the demanding State he would be liable to be prosecuted or punished, although the demand is not in fact made with that view.

It seems to me that this case would be met if the provision in the Act of 1870 preventing the surrender of a fugitive unless provision is made by law or by arrangement that he shall not unless restored, &c., be tried for any other than the crime for which he was surrendered, were repealed, and replaced by a clause preventing the surrender of any fugitive who shows that he has committed or is charged with a political offence for which he might, if he should return to the demanding State, be prosecuted or punished, unless in such case it also appears that provision is made either by general law or arrangement or by special agreement that he shall not be so prosecuted or punished until after he has been restored or had an opportunity of returning to the surrendering State.

This plan would in this case as is done already in the other cases, impose on the fugitive against whom a prima facie case of criminality is established the reasonable burden of showing that he may if surrendered be prosecuted for a political offence.

Where he fails, as obviously in almost all cases he must fail, to show this, no difficulty is interposed by the law in the way of his surrender.

Where he succeeds in showing this, his surrender is prevented unless provision is made to protect him against the peril, but this provision may be by special agreement in the particular case if there be no general law or arrangement.

Of course in the case of the United States a special agreement could be made by that power in respect of a State crime, only with the consent of the State; but the stipulation would, notwithstanding, be of great value, as answering all practical purposes and increasing largely the elasticity, while it would preserve the securities of the Act of 1870.

Assuming that the plan suggested would give adequate securities in political cases, it does not appear objectionable otherwise.

There seems to be no good reason why the surrendering State should interfere with the trial of the surrendered fugitive for any non-political crimes against the laws of the Country to whose justice he has been surrendered.

It may be right that the asylum of the fugitive should not be disturbed or the machinery of extradition set in motion, save for offences of serious gravity prima facie established, though one part of this position has been weakened by the enormous extension in the range of recognized extradition crimes under the Act of 1873; but it by no means follows that the criminal, once surrendered, and so restored to the foreign jurisdiction, should be protected from prosecution for any non-political crimes. Why should he be so protected?

This query applies with even added force to the case of crimes for which he was liable to surrender.

The inconvenience, expense and possible failures of justice growing out of the restrictions are sufficiently obvious; the advantages are, I venture to think, illusory.

If, however, it be desired to continue the protection of the surrendered criminal against prosecution for other non-political crimes, I would suggest that the protection should be confined to the case of offences not being extradition crimes.

Whatever the range of the protection, it could be effected by including the crimes in the provision which I have proposed as to political offences; and this plan would secure in those cases the advantages incident to its adoption in political cases.

I have further to suggest that the embarrassments following from any restrictions of the right to prosecute for other crimes would be greatly mitigated by the insertion of an alternative provision, allowing the prosecution of the criminal for other crimes with the consent of the surrendering State.

Such a provision while affording to the surrendering State all the securities obtained by the existing restriction, would enable the demanding State, without the risk, expense and delay involved in a restoration and a fresh demand, to accomplish the same result by a simple diplomatic representation.

MY LORD,—Referring to your Lordship’s enquiry made some weeks ago as to the case of Maraine Smith, the Detroit murderer, whose extradition is prevented by the present complication, I have to acquaint your Lordship that Smith’s adjourned application for his discharge has been postponed to the 27th instant.

If before that time it should be possible to hold out the prospect of some early arrangement, such a communication by cable telegram from your Lordship to the Governor general might enable us to procure a further postponement, and so perhaps prevent the escape from justice of an atrocious criminal.

Referring in this connection to my letter of the 6th ultimo, I beg to enclose for your Lordship’s information further extracts from Canadian newspapers received by the last mail, disclosing two more cases of crime, one of forgery and embezzelement, the other of extensive fraud and arson, in both which the criminals have escaped justice by flight from Montreal to the United States.

I fear the carnival of crime is beginning on our border.

MY LORD,—I have the honor to enclose herewith an extract from a Canadian newspaper received by last mail, giving yet another illustration of the grievous consequences of the cessation of extradition arrangements between Canada and the United States.

From this extract your Lordship will observe that a gang of ruffians who had committed a murderous assault on several persons near the United States bank of the St. Lawrence escaped to Brockville on the Canadian bank, where they were followed by the United States officers, and in default of any lawful remedy removed forcibly out of Canada, a transaction which appears to have received the “moral support” of the inhabitants.

I need not point out how critical is the condition of affairs; already a very serious complication has arisen, and even graver results may ensue in case of a repetition of such proceedings as are recounted.

I venture to reiterate the expression of my earnest hope that, pending the conclusion of a new arrangement, some provision may be made for the resumption of action under the existing treaty.

SIR,—As the Earl of Carnarvon understands that your visit to this Country cannot be much further extended, His Lordship thinks it desirable that he should not any longer delay to reply to your communications on the subject of the extradition arrangements between this Country and the United States, and to give you such an intimation as is possible at the stage which the consideration of the question by Her Majesty’s Government has at present reached of the opinion which they are disposed to hold respecting the course proper to be taken with special reference to the circumstances and requirements of Canada.

2. Her Majesty’s Government are much indebted to you for your letters of the 27th June and of the 7th August, as well as for the other verbal and written communications in which you have fully and clearly explained the conditions under which the Dominion Government has to deal with the difficulties arising from the suspension of the Extradition Treaty with the United States, and your suggestions as well upon the whole question as with special reference to Canada, have received much attention.

Lord Carnarvon would have felt sincere pleasure if he had been able before your departure to announce to you any definite conclusions on the very important points noticed in your representations, but the continuance of the negotiations with the United States Government has rendered it impossible for Her Majesty’s Government to deal finally with any of those points.

3. Under these circumstances Lord Carnarvon trusts that you will appreciate his reluctance to attempt on the part of Her Majesty’s Government any detailed examination of the points to which you have more particularly directed attention; anything which His Lordship could now say on those subjects would necessarily be uncertain and incomplete, but Lord Carnarvon trusts that there is now a fair prospect of making satisfactory progress towards the settlement of the whole question of Extradition.

4. Her Majesty’s Government are deeply impressed with the great importance, more especially with regard to Canadian interests, of speedy action in this matter, and as negotiations have commenced from which they hope a satisfactory result may before long be matured, it appears to them preferable at this moment to postpone the discussion of the questions which you have raised, although the consideration of them will at once be proceeded with.

SIR,—I an directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the 15th instant enclosing an extract from a Canadian newspaper giving another illustration of the consequences of the cessation of extradition arrangements between Canada and the United States.

I am to inform you that His Lordship has communicated copy of your letter and its enclosure to the Secretary of State for Foreign Affairs.

SIR,—I have acknowledge the receipt of your letter of the 17th instant referring to my written and verbal representations on the subject of extradition indicating the present position of the matter, and informing me of the circumstances under which it is thought preferable at this moment to postpone discussion of some of the questions.

I am glad to learn that negotiations have commenced with the United States from which Her Majesty’s Government hope a satisfactory result may before long be matured, and I have no doubt that Lord Carnarvon will in due time give the Governor General such information concerning the result as may with propriety be communicated in order to enable the Canadian Government to decide what course they would propose to the Legislature during the ensuing Session.

SIR.—The Earl of Carnarvon referred to the Secretary of State for Foreign Affairs your letter of the 18th instant respecting the case of Maraine Smith, and I am directed by His Lordship to transmit to you for your information a copy of a letter which has been received from the Foreign Office in reply, from which you will perceive that it is considered desirable that the prisoner should be further remanded for a reasonable time.

I am to enclose copy of a telegram which on consequence of the Foreign Office letter Lord Carnarvon has addressed to the Acting Governor of Canada.

SIR,—I am directed by the Earl of Derby to acknowledge the receipt of your letter the 15th instant together with its enclosures, requesting to be informed whether His Lordship is of opinion that it is advisable or not that Maraine Smith, the Detroit murderer, should be detained in Canada, after the date to which the question of his discharge at present stands remanded, on the chance of or in anticipation Of an arrangement being come to with the Government of the United States on the general question of Extradition, and I am to state to you in reply for the information of the Earl of Carnarvon that a Despatch has been addressed to Her Majesty’s Minister at Washington instructing him to make a proposal to the United States Government which if accepted will lead to the immediate resumption of Extradition of Criminals between the two countries under the Ashburton Treaty, and Lord Derby is therefore Of opinion that under these circumstances it would be desirable in the interests of justice that steps should be taken to obtain the further remand for a reasonable time of the prisoner Maraine Smith.

MY LORD,—Among the subjects on which I am requested to confer with Her Majesty’s Government is that of establishing Courts of Maritime jurisdiction on the great lakes and other inland waters of Canada.

As your Lordship is aware, the Canadian Government has come to the conclusion that the proper course is to establish these courts by local legislation.

Under these circumstances it would have been needless to engage in any discussion on such a subject, but having regard to prior correspondence it was thought fitting that before proposing any legislative action this conference should be had.

Some days ago, I was requested by Mr. Herbert to put myself in communication with Mr. Rothery, the Registrar of the Admiralty Court, who has given much attention to the subject for many years, and I have accordingly discussed the matter with that gentleman.

I am glad to say that we are quite agreed as to the course to be pursued. Mr. Rothery entirely concurs with me in the propriety of the establishment by local legislation of such Courts as may be found advisable to meet the wants of the trade on the great lakes and inland waters.

Mr. Rothery suggested that different considerations might apply to a proposal to give to such courts prize jurisdiction, and I informed him that there was no intention of dealing with that subject, and that the jurisdiction proposed to be conferred on the Courts would be substantially the civil jurisdiction exercisable by the Vice-Admiralty Courts.

Although the details of organization and practice would of course not come under consideration here, and indeed have not been finally settled in Canada. yet I was glad to avail myself of Mr. Rothery’s learning and experience on this subject, our discussion of which resulted in a general agreement as to the plan most likely to meet the circumstances of the country.

We also touched upon the question of the establishment by local legislation Of similar Courts on the seaboard of Canada, a point not covered by my instructions and not of immediately pressing importance, but to which attention has been occasionally called for some time back, and which will probably be brought under your Lordship’s consideration at a future day.

Mr. Rothery and I agreed that while such a change would be on many grounds desirable it would on the whole be better to deal separately with the pressing question of the great lakes and inland waters.

In this connection I may inform your Lordship that representations have been made to the Canadian Government that the rules of practice and tariff of fees in force in the Vice-Admiralty Courts are not calculated to promote the interests of suitors, and require amendment.

I called the attention of Mr. Rothery to this point and learned from him that it is proposed to amend the rules with the object of removing the difficulties referred to.

I trust that your Lordship will agree in the views above expressed as to the mode of dealing with the question on which I am to confer with your Lordship.

SIR,—I am directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the 1st instant, giving the result of a conversation which had passed between yourself and Mr. Rothery relating to the establishment of maritime jurisdiction over the great lakes and inland waters of Canada.

Lord Carnarvon is pleased to learn that so much progress has been made in the discussion of this question.

SIR,—I am directed by the Earl of Carnarvon to acquaint you that His Lordship has been in communication with the Board of Admiralty on the subject of your letter of the 1st of July, in which you reported the result of a conference between yourself and Mr. Rothery on the question of the establishment of maritime jurisdiction on the great lakes and inland waters of Canada.

I now enclose a copy of a letter from the Admiralty on the subject with a letter from Mr. Rothery stating his views and I an to state that Lord Carnarvon concurs in the course which it is therein proposed to take in dealing with this matter.

SIR,—I have laid before My Lords Commissioners of the Admiralty your letter of 21st ultimo in which you request that you may be furnished with any remarks which Mr. Rothery may see fit to make on a letter from the Canadian Minister of Justice, Mr. Edward Blake, respecting the establishment of Courts of maritime jurisdiction on the great lakes and inland waters of Canada.

2. My Lords desire me to send you herewith for the information of the Earl of Carnarvon copy of a letter from M. Rothery stating his views on the subject.

Immediate.

SIR.—I have to acknowledge the receipt of your letter (L. M. M.) of yesterday’s date, forwarding Io me two letters from the Colonial Office, dated respectively the 12th 21st instant, in the former of which was enclosed copy of a letter from Mr. Blake, the Canadian Minister of Justice, relative to the question of establishing Courts of Maritime jurisdiction on the Great Lakes and Inland waters of Canada, and you request me to furnish their Lordships with such observations and suggestions, as I may have to offer thereon, for transmission to the Colonial Department.

In reply I beg to acquaint you that this question of establishing Maritime Courts, with a jurisdiction in rem. on the great lakes and inland waters of Canada has from time to time been the subject of much correspondence and discussion.

It is, however, only necessary for me here to say that having been informed by your letter of the 28th March last that Mr. Blake was expected shortly to visit this Country and that it was Lord Carnarvon’s wish that I should hold myself in readiness to confer with him on this question, I called upon him as soon as I heard of his arrival, and in that and in a subsequent interview which I had with him, we discussed the matter at length, and I am happy to say that we quite agreed as to the course which it would be proper to pursue; that course is very clearly stated in Mr. Blake’s letter to Lord Carnarvon, of which you have sent me a copy, and the draft of which Mr. Blake was good enough to show to me before forwarding it to the Colonial Office.

It appeared to me that the distinction between the Admiralty and the ordinary Courts having been recently abolished in this Country by the Judicature Acts of 1873-5, it could hardly be contended that the distinction ought to be maintained in the Colonies, and as it seemed necessary to have Maritime Courts with a jurisdiction upon the existing tribunals rather than to create new Courts for the purpose.

I thought, however, and Mr. Blake entirely agreed with me in that opinion, that the jurisdiction proposed to be conferred should be confined strictly to what is called the Civil Admiralty business, and that it should not include the Prize business, in which questions of Imperial interest would frequently be involved.

I also thought that it would be better that the practice by which these Courts should be governed in dealing with maritime matters, should be left to the Canadian authorities who regulate their practice in all other matters. At the same time I ventured to suggest for Mr. Blake’s consideration whether it would not be better that the Rules and Orders which had been established for the High Court of Admiralty by the Order in Council of the 29th of November, 1859, and which had worked extremely well from the 1st of January 1860, when they came into operation, to the abolition of the Court on the 1st of November, 1875, should be taken as a guide in framing the rules for the Canadian Courts. I stated that it was my intention to prepare as soon as I could find time to do so, Rules for all the Vice-Admiralty Courts in place of their present cumbrous and antiquated procedure, and I proposed to take as a guide the above mentioned Rules of the 29th of November, 1859, and it appeared to me that it would be well that the Courts which exercise jurisdiction in maritime causes on the inland waters of Canada, should have a procedure similar to that of the Courts exercising a similar jurisdiction in other parts of the Dominion. In that opinion Mr. Blake quite concurred and I accordingly gave him a copy of the Rules in question for his information and guidance.

It does not appear to me that the matter under consideration calls for any further remarks from me.

I will only add that the whole question may in my opinion be very safely confided to such able hands as those of Mr. Blake.