The Sun.
London, England, 1865-01-04 00:00:00

SPIRIT OF THE PUBLIC JOURNALS

TIMES.—We are now in possession of those papers
papers which mankind must form their judgment
as to the true nature and bearing of those transac-

tions in Canada which have so greatly irritated the

press and the people of the United States. For
once we feel very much inclined to sympathise with
them in the first outburst of their indignation. The

outrage which had been inflicted upon them by per-
sons taking their departure from the neutral terri-
tory of Canada was of the foulest description. It
had nothing in it of the nature of war, but was
really robbery and murder striving to shelter itself
under that all-atoning name. The success of a hun-
dred such outrages as the St. Alban's raid could not
by any possibility have influenced in the slightest
degree the result of the American civil war. It
is not by plundering banks and murdering clerks
that the destinies of great nations struggling for

existence or independence are to be decided, and,
for our part we shall heartily rejoice if the perpe-
trators shall be at last given up, to be dealt with
not as honourable enemies, but as criminals exposed
to the just vengeance of offended law. We have
purposely abstained in a matter of so much import-
ance from offering any opinion on the rights of this
question until we had before us the arguments of
counsel and the decision of the judge ; the point
at issue is one of some intricacy, but we hope we
may make it clear enough to enable our readers
to judge of the question for themselves. By one
of the clauses of the Treaty of 1842, of which we
have recently had the benefit in the case of Mul-
ler, provision is made for the extradition of cri-
minals taking refuge in the territories of the two
contracting parties. This Treaty required an Act of
Parliament to give effect to its clauses, and by that
Act of Parliament (the 12th of Victoria), it was
provided that such fugitives might be arrested by a
warrant under the hand of the Secretary of State
or of the Governor of any province, and that if it
appeared that there was sufficient evidence against
him he was to be given up to those who made the
requisition. But it being thought likely that in
some cases it might be found more expedient to
leave the regulation of the details of the execution
of the treaty to be settled by local legislatures, it
was provided by the fifth section of the Imperial
Act that in case a local legislature should make pro-
vision for carrying the treary into effect by substi-
tuting some other enactment, the Queen in Council
might suspend the operation of the Imperial Act
within the limits of the colony the Legislature of
which had made such provision. The Legislature
of Canada did make this provision by an act passed
in the 12th year of the present Queen, and the Queen
in 1850, by order in Council, suspended the Impe-
rial Act so long as the Canadian Act of the 12th
Victoria should be in force, and no longer. Had
matters remained here the thing would have been
perfectly. clear. By the Imperial Act the fugitive
must be arrested by a warrant signed either by the
Secretary of State or the Governor of the colony.
Under the Colonial Act a warrant signed by a judge
of one of the courts was sufficient. By the joint
efficacy of the Colonial Act and of the order in
Council, the Colonial was substituted for the Im-
perial Act, and it was not necessary to obtain the
signature of the Governor-General. But the mat-
ter did not stop here. The Canadian Legislature
consolidated its acts ten years afterwards, and the
manner in which the consolidation was effected was
by repealing existing acts and re-enacting them,
with or without alteration. The 12th of Victoria
was thus repealed and re-enacted. From the mo-
ment of its repeal, as it seems to us, the suspending
efficacy of the order in Council was gone for want
of something to act upon, and the Imperial Act,
which had been held in abeyance for ten years, re-
vived. But the matter did not stop even here.
Two years after the act which had been re-enacted
in the Consolidated Acts was materially varied in
its leading provisions, so that not only had
this specific Act to which the order in Council
applied ceased to exist, but its provisions; which
were at first preserved by the consolidating Act,
had ceased to exist also. The St. Alban's raiders
were arrested under a warrant issued by a Judge,
which was valid if the Colonial Act was in force, but
invalid if the Imperial Act had revived. The Judge
held the Colonial Act which had been re-enacted and
varied was not in force, and for our part we cannot
conceive how he could have possibly held otherwise.
A Colonial Act can have no force of itself as against
an Act of the Imperial Legislature. That force was
in this instance imparted under the special authority
of an Order in Council. When that Order in Council
ceased to apply the Imperial Act must clearly prevail.
So far, therefore, we thing that America has no cause
of complaint agalBist us. The Judge appears to have
decided according to well recognised principles of law,
and though the point was highly technical it appears
to have been clear enough. The fault was not in him,
but, in the first place, in the blunder of the Colonial
Legislature, and, in the next place, in the oversight
of the legal advisers of the Canadian Executive.
But, admitting that the Judge was right in his law,
was it clear that the Judge was bound to treat the
matter in the summary manner that he did ? Was
he bound to discharge the prisoner before him ?
And if so, was he bound to discharge all the other
prisoners whose cases he had not heard ? Of course
we speak on this point with hesitation and diffi-
dence. The Judge assumed that it was a question
of jurisdiction. To us it would seem rather a
question of the process by which the fugitives were
brought before the Court than of the jurisdiction
of the Court. The application, as we understand
it, was not on a writ of Habeas Corpus. The
prisoners were brought up on the warrant of the
Judge, the evidence against them was gone into,
and the case was remanded to hear the other side.
Is it quite clear that after the merits of the case had
been entered upon at large it was competent to
the prisoners to take this highly technical objection
to the validity of the process which brought them
there ? Even supposing this view to be incor-
rect, was it incumbent on the Judge to give such
effect to an objection so highly technical and so
easily remediable as to discharge six prisoners
accused of such heavy offences, without even hearing
what could be said in any case except one, and with
the certainty that by so doing he was entirely
defeating the ends of justice ? He took time to
consider his decision on a point which he stated
himself to be one of intricacy and nicety. Would
he have done wrong if he had taken for the consi-
deration of a question so knotty and so important a
period long enough to obtain the signature of the
Governor-General, and thus to have cured effectu-
ally this purely technical slip, if it should really
have been found to exist? We are not impugning
the integrity or the ability of the Judge, of whose
antecedents we know nothing, but we certainly
think that there was some want of discretion in the