as if for forgery:" Re Windsor, 6 Best & Smith, 530. See Anderson's Case, cited in Dana's note (75) to Wheaton, p. 117, where a slave who had killed a white citizen of Missouri, who tried to arrest him while he was making his escape from that State, and who, having fled to Canada, was demanded by the American authorities, under the treaty, as a person "charged with murder." The Court of Queen's Bench in Canada upheld the requisition, but the Court of Common Pleas thought that the act did not come within the meaning of the treaty, and discharged the prisoner.

In that case the following Opinion was given by the Attorney and Solicitor General, Sir Richard Bethell and Sir William Atherton, on the 28th of March, 1861: "Upon the assumption that the act proved to have been committed by the fugitive slave Anderson, in the State of Missouri, in killing Digges under the circumstances stated, amounted to murder by the law of Missouri, but would not have amounted to murder if it had been committed in Canada, we are of opinion that the Canadian Government is not bound by the 10th Article of the treaty of Washington (9th of August, 1842) to surrender Anderson, though demanded by the American Government with all due formalities, under the provisions of the treaty. The plain meaning of the article appears to us to be, that the facts proved in support of the particular charge, whatever its nature, must be such facts as, if they had occurred in the harbouring State, would, by the law of that State, have warranted the apprehension and commitment of the perpetrator to take his trial on such charge:" see Re Anderson, 30 L. J. (Q.B.) 129.

Under the statute 6 & 7 Vict. c. 75, for giving effect to the extradition treaty with France, it was held that a warrant to detain a party accused of the crime of fraudulent bankruptcy committed in France, "until he be discharged by due course of law," on the requisition of an agent of the King of the French, was insufficient, and the person imprisoned under it was entitled to his discharge on habeas corpus. Lord Denman, C.J., there said: "We are asked to remand the prisoner on our own authority as charged with a crime; but we have nothing of the crime, unless as it is brought before us by the warrant; or, I should rather say, we have no authority of the kind in such a case. If we could act in the manner suggested, the statute would have been unnecessary. The prisoner must be discharged:" Ex parte Besset, 6 Q. B. 481, 485. Wightman, J., said in that case: "Where a man is committed for any crime, at common law or by statute, for which he is punishable by indictment, he is to be committed till discharged by due course of law; but when it is in pursuance of a special authority, the terms of the commitment must be special, and exactly pursue that authority" see Mash's Case, 2 W. Bl. 805.

In a case submitted to the Queen's Advocate (Dr. Twiss), and myself, in 1867, on the question whether a British subject who had committed an offence (alleged to come within the scope of the extradition treaty between Her Majesty and the United States in 1842, and the statute

6 & 7 Vict. c. 76) on board an American ship on the high seas, and who had landed in Calcutta, ought to be given up on a demand of the consul of the United States, we were of opinion that, as a British court of justice would take cognizance of the offence by reason of the nationality of the offender, the case was not within the scope of the treaty or the Act. See Statute 30 & 31 Vict. c. 124, s. 11, which provides that "if any British subject commits any crime or offence on board any British ship, or on board any foreign ship to which he does not belong, any court of justice in Her Majesty's dominions which would have had cognizance of such a crime or offence, if committed on board a British ship within the limits of the ordinary jurisdiction of such court, shall have jurisdiction to hear and determine the case as if the said crime or offence had been committed as last aforesaid."

By the treaty with China of the 8th of October, 1843, it is provided that Chinese criminals flying to any of the five ports thrown open to British trade shall be handed over to the Chinese authorities, and that British subjects flying into Chinese territory shall be handed over to the nearest British consular officer.

See on the subject of this note, Clarke's Law of Extradition (London, 1867).

375

CHAPTER XI.

ON APPEALS FROM THE COLONIES.

(1.) CASE and OPINION of the Attorney General, SIR EDWARD NORTHEY, on the right of Appeal from the Colonial Courts. 1713.

SIR,- By order of the Lords Commissioners for Trade and Plantations, I send you the enclosed extract of a letter from Mr. Lowther, Governor of Barbadoes, upon consideration whereof their Lordships desire your opinion, as soon as may be, upon this following quære, viz. :

Quære. Whether an appeal can, or ought to be brought, from the Court of Exchequer in Barbadoes to the Governor and Council there, as a Court of Chancery?

WM. POPPLE.

Opinion. I am of opinion the Governor, by virtue of his instructions, is to admit appeals as well from the Court of Exchequer as from other Courts in the island of Barbadoes to the Governor and Council there, and this plainly was the intent of the Governor's instructions, no appeal being directed to be allowed from any Court to her Majesty but from the Court of Chancery, which would have been provided for, to have been from the Court of Exchequer to her Majesty, if an appeal had not been intended to be first in the Chancery.

February 16, 1713.

EDW. NORTHEY.

(2.) OPINION of the same Lawyer, on a question of Appeal. 1717.

To the Right Honourable the Lords Commissioners for Trade and

Plantations.

MY LORDS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have considered of the petition of William

Cockburn, Esq., whereby he represents to your Lordships that he, being appointed by the Lord Archibald Hamilton, late Governor of Jamaica, to exercise the office of Secretary and Clerk of the Enrolment there (Mr. Page, who was the deputy of Mr. Congreve, who had those offices by patent, voluntarily absenting himself from that island), did execute the same from the 9th of March till the 6th of August, 1716, when he was removed by Mr. Haywood, the succeeding Governor of the said plantation; and thereupon a bill was brought against the petitioner by Mr. Beckford, who was appointed by the said Mr. Congreve to be his deputy, upon the death or absence of the said Mr. Page, and a decree was given against him in Jamaica for more money, as the profits of the said office, than he received during the time that he executed the same, without making any allowance to him for the execution of the said offices; against which decree the Governor cannot, by his instructions, allow an appeal, the demand being under the value of five hundred pounds sterling: humbly praying that his Majesty would be pleased, for the relief of the petitioner, to give directions for re-hearing of his cause, and the doing therein what to justice shall appertain.

And I do most humbly certify your Lordships, that the petition is unadvisedly framed, for that his Majesty cannot, by law, give a direction to any Court to re-hear any cause depending therein; but re-hearings are granted, or denied, by Courts of Equity, on petition of the parties grieved, to such Court as shall be judged proper.

And as to the instructions given to the Governor mentioned in the petition, whereby he is restrained from allowing an appeal in any case under the value of £500 sterling, that does restrain the Governor only from granting of appeals under that value, notwithstanding which, it is in his Majesty's power, upon a petition, to allow an appeal in cases of any value where he shall think fit, and such appeals have been often allowed by his Majesty; but I think the reference to your Lordships in that matter is improper, for petitions for appeal from decrees given in the Plantations have been always referred to a Committee of the Council for hearing the causes of the Plantations, and on their report that it is proper to allow the appeal prayed for, his Majesty in Council has usually allowed the same, and not in any other manner. I have perused

the decree, and think the petitioner has great hardship therein, and that upon a proper application he may obtain an appeal in that cause.

December 19, 1717.

EDW. NORTHEY.

(3.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on appeals from the Admiralty Courts in the Colonies. 1704. To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have considered of the annexed petition of Peter Van Ball, praying the liberty of appeal to Her Majesty in Council from a sentence pronounced in the Admiralty Court of Nevis, and am of opinion, if that Court was held under the late King's commission for governing the Leeward Islands, as the petitioner takes it to be, alleging that the President and Council had power only to appoint, but not to sit themselves as a Court of Admiralty; or if the sentence was given by the President and Council of Nevis, as the Council there in both cases, the appeal ought to be to her Majesty in Council; but if the President and Council held a Court of Admiralty, by authority derived from the Admiralty of England, the appeal is to be to the Court of Admiralty in England; and so it was lately determined by her Majesty in Council.

May 23, 1704.

EDW. NORTHEY.

(4.) OPINION of the King's Advocate, SIR NATHANIEL LLOYD, on the same subject. 1715.

MY LORDS,-In further obedience about the Eagle brigantine, condemned at New York, and appealed upon hither: I find that the appellants have thought fit to drop such appeal, and they proceed no further; so the condemnation stands. Not but that the appellants might have re-heard the cause here, had they thought fit.

For by law appeals do lie from the Admiralty Courts in the Plantations to the Lord High Admiral of Great Britain, in the High Court of Admiralty in England, in common maritime causes,