The New York herald., 1864-12-16

'omaiNes were completed, the provisions OF tie treaty
YOU'D 10 rendered nugatory. Under tho amc ded act
ns ii"nor mad power 20 act without any executive
Mr. hnson c., said his learned lrierd on the other
sac stated that tn 18th Vic, chap. 49, bad been re-
pesed No snoh ihng lie cited from The Schedule bet
tnst act ouly repe for the purpose soua
tion That had ntr TO give eject the
hshourton tresy, aud only the Grst, second aud third
sections had been repeaied by the Gath yIc chap g. Ii
would 70 secn from tue Consolidated Statues OF Canada
page 81. secuou g. that "the said Cons idated Statutes
bnal no. DO hed 10 operate as new laws. but shall be
~ deelaratory OF the law as contaiGed In the
said acts and parts OF acts repesiod. aud Tor
WHEN the SAID Consolidated Statutes substituted"
The Consolidated Statutes reproduced the acts qucs
uon which were In iorce as well as the amendmeni OF
Jurisdiction. without any warrant or any executive
thcrty. The simple complaint IN writing sufficient
Tor the magistrate TO proceed in the matter
Mr.. Kerr briefly replied, maintaining that while bis
tonor was not required TO SET aside any act he was
bound to act IN accordance with the provisions OF tho
Imperial act. lie (r Kerr) pssted upon the necessity
Tor tbs executive warrant Tire learned counsel the
crown declared that the 18th VIC. had been re-
ressd the cniy three clauses having re- erence 10
the arrest OF persons had heen repeated.
mr. Justice Courso said that in a matter OF much
importance he would like some time to deliberate and
would therefore de or giving his judgment until two
O'CLOCK in the afternoon.
JUDGMESr or rns COURT
MR.. JUSTICE couRs0L DKcInEs
PRISONERS, SINGH ARRESTED IN ACCORD.
ANcs WITH THE PROVISIONS
FfFEcr TO THE Ash1UKToN rREATY-THHY ARE coNsk.
ousSTIY DISCHARGED.
His Honor Mr.. Justice Courso having taken his seat
on 'hc bench at about quarter TO three in the after
noon proceeded to give Judgment on the ont raised in
the morning The court crowded. and great interest
was manifested as to the nature OF the decision to be
given.
The point am now called upon to decide Is 0s very
great importance, nasmuch my Jurisdiction and my
authority to act IN this has been pnt IN question
and is now for the first time dn Getty IL. red.
IL is contended on behalf OF the prisoners that the
treaty beug anaiipa act ihe 'mpefs enactment must
oe regatdcd rs the supreme law and colonial ieEis
a'ures as subordinate 10 u. And tha The effect OF her
MHJesiy's royal proclamation snsending the imperial
enrichment ~ give elect 10 twelfth Vic. long
such substituted pIuvsioAs Of that art renamed in
force and no longer necessarily received the provisions
OF tho imperial sc the moment our local Legislature
repealed be substituted enactment and provisions Of our
provnc ai Leg Stature.
It is that the new provisions enacted BY
the 24h VIC chatg ged materially those OF the 18TH Vic
approved bv her Maosty with the advice OF her prvy
council end that TIE same approval was again necessary
10 gve eject ~ these rev rdvions aDd tha the arrest
OF the parties charged could only made upon
warrant signed by rho Sovernor General person nd
the imperial act.
On tho othor side the part OF the defence. 1t is
arsued that the gath Vic. has been sanctioned by the
Governor General, and not having beer disalowed by
her Majesty within two years. which period passed
ng bcoro the arrest Of tho accused that it has power
Of law. Also that hive power to declare the cath
Vic. unconstitutional or void.
This rEument would be conclusive If the act related to
local matter within the ordinary Jurisdiction OF our
Legislature, and interpreting the clauses quoted Of the
Union act as do now hold that this provision to the
saIlo oi passed by our Legislature can
only have reference TO such measures Legis
Iaiure can originate.
In this case il is different The subject matter is ma.
tona one. II hes erence to treaty between Great
Britain an foreign naticn, and the imperial
DO regarded as the law which governs the That
in the absence OF any sanction or formal ap-
provai given by the Queen to the 2lth VIC,
act. such given tho 18th Vic i OF opinion
thst by repeating tho clauses Of that concrring
jurisdiction, the imperial snac.ments revived am not
called to declare tho 24th Vic
void but simply to state hat law Is in force and feel
that am bound 70 obey the imperial authority in q
matter OF national cOucern aud without which the treaty
would never have been put 10 operation.
Atsr giving 20 these dinerent objections my most de-
berae attention have cnsne to the following concu.
]. That the imperial act passed give effect to the
treaty is to be regarded as the supreme and
authority and 10 De taken sole guide in this case,
and that the Canadian enactment could take effect only,
so long ss the permissvs power granted TO local
sanction Of her Majesty IN council and order Of
Maesty's privy council susrending the imperial enact.
q That the 18th yictoria passed by our legislature
with the view TO substitute provisions to those
tanned IN tho mreral act, did not become tho law OF
this province without the royal sanction first being given
tue u ss yo. q p he, her
the imperial act the Suspension not absolute but
limited to such time as the l2n Victoria should remain
s. ina, the subst,tu.ed provsioss OF tho 18th VIC,
having been repealed by ths 24tn vc 49, the pro.
visions Of the Imperial revived which provisions
to confer Jurisdiction require the issuing OF warrant
the first place. BY tho Governor General the person
administering the government OF Canada.
That while admitting, as contended by the learned
and able gentlemen representing Tho prosecution that
under the Union act in all matters relating local gov.
ernment tho sanction Of the Governor General behalf
OF her Majesty tho Queen, 10 sufficient make law
operative, still tho subject matter 10 this case
being treaty between two nations requiring imperial
Legislation 10 give II effect tho Ia exceptional In
its character that am compelled to look o.tho imperial
act TO decide hat are the OF our local legislature
10 that respect Giving therefore, to tho hth sectin OF
the imperial act broad and liberal interpretation,
not arrive At any other conclusion than that any subs
tnted enactment 10 that act Of our legislature must
only be proved by her Majesty her Prvy Council
but also that order OF suspension must expressly be
msde TO give II effect.
That the new provision contained 10 the cath Vic
changed very materially the provisions of the 2tn vlc
approved by her Majesty by royal procamaons issued
with the advice OF her Maesty's Prvy Council, by
moving from all OF her Majcetys Justices Of the Pesco
jurisdiction these matters which by the OF the
treaty ITSELF conferred upon them giving powers
% the Judges OF Superior Courts aud 10 local
officers not designated In the 12th Nc, and thus n my
humble opinion provisions OF the 2s,h vcroris
arc ssbjec, TO the following objectlon.:-fhaI being
"A colonial measure. it not within the power
OF our Legislature to change the jurisdiction established
by the treaty without the express sanction OF her
Majesty, with the advice Of her Privy Council. in tho
same form and In the same dono = give
csy Euspending by ber Majesys pleasure the Imperial
enactments 30 long the euactments in the
12ih Vic should remain in force. and longer
1be 2fih VIC, cap 10, is entisied to amend
chap SO OF the Consoda Statutes Of Canada the same
as the a2,h Vciors) and has In most positive words
peaef the lst ID aud Sd sections OF the said Pr0vn
ca act and substituted certain enactmens already
mentioned This act having been passed aud sanctioned
the repeating part good therefore che suspended psrs
OF the imperial act are revived by such repeal sud
again IN operation.
thus the suspended provisions OF the imperial act be-
Ing revived the only law which govern this in
the revived imperial provision 10 far jurisdiction 10
copcerued and the manner OF proceeding obtain tho
and extradion of fueitves The only unrepeaed
OF tho 18th Victoria namely the fourth section,
re,es only TO the remedy given 70 parties committed
who are not ertradited within two moths after he date
OF their nual committal but The provision OF the fourth
section cannot be regarded uosttuts rovisop
as merely reenacts similar provision to he found IN
IN imperial act. Consequently the repeal msy be con-
sdered complete 10 80 far the substitute ons are
concerned
deem my duty, 10 giving this Judgment to explain
that ttc part have taken in this in ordering the
arrest OF the accused, was prompted by desire 10 do
my duty the moment proper Information was laid before
me that an outrage was committed, and acted upon
law which s to be found In the statutes OF ns province
The objection having been raised for the rst tme at
this late stage Of the proceedings felt hst had no
alternative than 20 decide t
could have reserved the point for the decsion OF