The New York herald., 1864-12-16

stAtces attending this aiLir was resumed TINS morning,
| pursuant &c I'D Gufnment.
I hessrs. r. johnson, Q. C.. Hon John Roso. 7. w.
Euenie and neyn we're present for tho rosecution,
aud tho Hon. Mr. Anh u. Q. Co. aud hessrs Lalainme.
| Q. g.. and Kerr Tor the dcfence
Mr. Kerr said that before entering upon the evidence
for the efencc had serious objection 70 make
anec.ing his Iopors Jnfisdieon and he WAS about 10
| proceed with ms arsnmer, when
nevp nd the counsel tor the prosecution deemed
their TO cali his nors attention 10 the fact that
he gaze prisoners coasse an opporunity Of making
preliminary objections at ihe time they Gsked for the
delay aad the postponed until ins morning
allow the r,isorers time 70 produce any evidence which
they cr1d 10. GeeoCe. The Court for
the purpose hearing my argument, but to hear
dencc. i BIS learned friend attached much npor
tance he appeared 10 do to this objection he wish
to make be would doubt have opportunity cf bring
ing bs argument before the Court at the proper time bnt
to was To take an advantage of the prosecution
Alter the defence bad been favored with a delay OF
month TO Obtain their evidence, the prosecution
called upon 10 answer n legal argnment which he must
out OF place at this stage OF the proceedings and
he respectfully prayed that his Honor direct The
pr coed IN regular manner and that the defence be
| tered INTO.
Mr.. Kerr said the 'act his objection TO the
iursdc ion OF rho Court II the Court had jurisdiction
| evidence co Id not be taken.
I Mr. Dcvin prayed Tor opinion from his Honor TO
| the regu lst+sy OF this proceeding.
Mr. Justice tourso SAID, that as no understood the
Counsel for the Defence the objection was to his (Ar
| Justice Coursol's) sitting there ut all
Mr. Kerr Ia too
Mr. st!ce Couso snid that an objection or this kind
having been made thero was no doubt he mnet hear it,
Mr. Kerr then went N to say that by the Union act
s provided that The Canadian Parliament shall have
make laws not that act such
\ Parliament tO
made. ana not taereoy repealed which docs or SHALL by
cpactmeat or BY necessary ntendment extend
to the r.yinre q Upper ana Lower canada or to either
o. m or 10 the Province of Canada. and all such laws
pissed ard aseeued TO by her Majesty 10 her Maes-
ty's name by the Governor &C., shall be valid and bind
! ing, &c, within the Provinces of Canada.
tte condition precedent ben to the fact OF statutes
being valid nd birding that tney not repugnant
any imperial act. which either expressly implicitly
tends tho Province OF Canada to which her Ma.
csty has en- her assent after reservation subject
| TO the operation OF the condition precedent.
BY the treaty OF 1872 Qu0ad eXtradilOn ft
yded that upon mutual requslon by the two stat
cottactIog their minister's officers SC made it was
sgreed United States ard Great Britain should
deliver up to ousce all parsons charged with the crimes
&C tied in tue sa treaty com miited within tie nris.
dict on OF the hiah contracting parties,
should seek 40 asylum should be found within the
territories OF the other his should onfy be dooe upon
evidence and proceeded that reepec
tive judges AID other magistrates the two governments
should have power and nority 70 issue warrant &c
By this treaty the contracting parties pledged them
selve 10 vcs p all their judges and other mag strates
power and rty T. take coanizance Of ana exercise
Jurisdiction over such crimes neither judges maRs-
traes having Il tae time any law statutory
power q take corni2,uce Of such offences.
lhe imperial act ami VIC chap 70 then passed
by the Parliament Great Britain for the purpose OF
giving eAec to the said treaty, ara it therein
vIded that prevlcus ~ the arrest Of olesder
shall hand the Secretary 10 Gre Il
Britain or OF the eson administering the government
o the province. sieoiiyin1 that requison had been
by authority tie United States for the dc
livery of the offender and requiring all Justices OF the
peace &c 70 govern themselves accordingly aid
IN apireoerdng the persoUs accused.
1t IS efecy clear from The principles Of the common
law and also from the wording OF the act 10 que ton
tna II the magistrates other officers
previous to the passage OF that act with 70
take cnYnizsnce Of offences committed foreign so
tue act ~ question was passed to give them those
powers, ind II IS TO be remarked that tho or the
statute carry into effect the treaty.
This Statute OF course extended s operations all
the mi long of Great Britain, and passed
assented to became law in Canada.
ny the tn section It was, however, provided that 81"
by any law ordinance thereafter made by the
Legislature OF any British clouy or possession, broad
provision shal, mase carrying into complete effect
act by the substitution OF some other enactment IN lieu
thereof then her Majesty might with the advice Of ber
Privy Counc ( to hsr Majesty IN Council IL seems meet
but not otherwise) suspend within any such colony
possession the operation or the said act OF the imperial
Parliament, long such substituted enactment
times 10 force there. and no onger.'
1he 18th VIC, &C l9 passed by tho Parliament OF
Cannda such substituted enactment reserved for
her assent .hr. assent given and on tho
nation, suspended the operation Of the Imperial act so
long as The 18th Vic, 49, should be in force, and no
Tue Court-was tho 18th yio sanctioneas
Mr. kerr-lt was a reserved act.
Ga zttte, page 8, 1885, May. 1850.
Thereupoo the imperial act was suspended n Canada
during the continuance IN force Of the 18Th vc chap IT,
By The act respecting the Consolidated Statutes OF
Clnada' a2d Vic, chap. % G. e. c., page 36) the 5th
section Il provided that from the day mentioned in
the proclamation provided for by section S the enact
10 the several acts ard parts Of acts in such
amended schedule A, mentioned as repealed sha stand
and be repealed BY the 9th section Il is enacted that
II the provisions OF the Consolidated Statutes
those Of the repealed acts. quoad TRANSACTIONS
the Consolidated statutes shall prevail
n schedule &c. G.. page ,2os), appears a. re
Upon PROCLAMATION by Governor General OF the
Cosoidated Stiutes there appeared at chap SO OF the
22d Vc Gan act respecting The treaty between her Ma
esty United OF America for the appreen
SION and surrender OF certain oGenders.n
ny the 24'n VIC chap. . inc nfst' second ana ihra
absolutely and for the said sections were
substituted three other sections.
by the first section substituted jurisdiction taken
away rom OF the peace throughout the pro
vince and 10 certa, unctionarles alone givon the
power TO take complaint and issue warrant.
Uadcr the 18th Wet chap - and Cap. SO Of the Con-
dlted Satuts or Canada the evidence. In the opin
lon the Judge Justice of the peace, should be sum
cent to the charge uuder the 24th Wet chap 6
IL is only esaary 10 be such as would justify his appre
hension and conmittai for trial.
Here then are grave cbsnges from the provisions Of
the i2h vic chap 10 wo have moreover the absolute
repeal OF that statute by % Wet, chap 20. IL
trre that substantially enacted BY the soth
chap CT tho Consolidated statutes OF Canaan, but from
viyed and reained force this country until gnsw
proclamation OF the Queen in Council had been published
its operation during the Continuance in forre
OF the chap. OF the Consolidated Statutes Canada
But % make assurance douby suro, tho 24ih Wet,
chap absolutely repealed all the three first clauses
OF the s9th chap. q. s. c.. aud substituted In their
pieces three clauses which had been submitted
the consideration OF her Majesty in Couuciiclauses
moreover, which cannot be looked upon giving com.
pee effect 10 the treaty as thereby some Of the officers
expsessy named IN The treaty those 70 whom power
TO act hereunder should be 9vsn have been Oused Of
their jurisdiction
Ii must be taken Tor granted that the proclamation
having the elect Of putting NE into any ACT OF Para
ent sed BY Legislature must be posterior n date
thereto 10 fsct, Is nothing than requiring that,
previous 10 tho coming ino force o; the substituted act
her Majestys assent thereto should only be given
through = proclamation from her Majesty in Council.
The power TO repeal act OF our Legislature belongs
TO legislature restriction ts by the imperial act
imposed the repeal OF the substituted enactment, ond
other body, our Legislature, would repesl
acts Consequo the repeal OF the three clauses
chapter So OF the Consolidated Statutes o. Canada Ia
valid but the clauses sought TO be substituted have as
yet, no lie In them. They but nauimate bodies
the breath OF lilo from the proclamation VI her
Majesty IN her privy council.
TIE state OF the law then H. that in lieu OF our pro
vincai statutes any o. them being in force, lhe i'm
pera act empo ary suspended quodd this province by
tho Queens proclamation OF the 2Sth Of March, 1850,
since the repeal OF the 18th Vic. chap 10 whether
by the Consolidated Statutes or by the "a VIC CHIP g.
Is indiferent, regulates all proceedings TOR extra
don, aid previous to OF the officers therein named
a d,uiih