The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-12-15

order that the charges lstd against him should,
through the proper ordeal be Investigated previous
10 Ills Icing given up 10 the governments
OF the United states or discharged under the
operations OF the statute Of the Dominion
OF Canada. 81 Wet. chap. ". reserved Tor the signt
ncatioh VI her Maesy's pleasure thereon on the "a
OF May 1865 to winch the royal assent was given by
her Majesty In council tho 18th Of June. 1868 and
the proclamation thereof was made ~ his Excel
lency the Governor Gsnelni on the stu OF August.
1865 The Judge then rccapitua ed charges pre-
Ierrcd against Caldwell, the manner Of ms arrest
aud remand by Judge ConrsJl. and the points relied
on for mis- re ease by hi- counsel and after declaring
tnat the af,dayit on warrant arrest was
issued does distinctly characterize an OFFENCE, and
perhaps even more SO man is required IN an lndct-
ment under the present. seln III tue courts, Judge
Mondeiet contlEued-
THE EFEEor 10 LIE GIVEN TO TIE STATUTE IN
DER THE TgEArY--iniOEfANFJ JUDICIAL coNSTRUc-
rae first objection Is that which the present case
turns For more than one reason " should be ap-
proacncd with lnucn care, conside alton ana pru-
dence. The statute winch Is To he our rule IN deternn
ing the Important question: us TO tue Juf.s lctlon q
Quebec over parsS III the position OF the prisoner,
~ one wnich may be ter.ied an imperial measure
that is statute reserved and assented to
by tho Queen Tor the purpose OF giving
eject TO q treaty between her Majesty ana
tne unled states OF America for the apprehension
ana SUR enuer Of certain offenders IL IS broad
measure, one OF great importance, and, what Is
remal kahle one W VI the dlicaltie5 heretofore
sprnging IRON former legislation rendered necei-
sary for Lac accom- iliment vi the object which the
hish contracting partles we're deslrous OF carrying
out IL Is, therefore the duty OF Judges and all
Others who are empowered by law to cooperate IN
the luiiment OF the object winch both govern
ments, IN Tue Interest vi pubic Justice have.
10 give il elect extensively the word
ing thereof reveals the intention Of the
In statute. IL sulces to consider for moment
the preampe OF the statute "a VIC, CHAP. a. above
referred To- To anprenead the correctness OF the pre-
ceding 0bsers ations. But ina much as we nave to
be governed Nv tue enacng part Of the statute, and
that tne preamble can he referred 10, merely to have
an insight mo the intentions oi the nigh contracting
parties and the Legislature. 1t Is necessary tEat Wo
snosld closely ana most carefully consider the sec
ton oi wnich il 70 our rule, and which
the Ircanbe ol the nighr ASSIST Us IN case OF
ambiguity and doubt, II anJ, to interpret the
wording VI section one Is as lJilUWS;-
J. Upon complaint made under oath affirmation On
cases where n,rmn.ons van esay DO taken Instead Of
oatas sarsn any person ionaa wha me im,s OF Can.
Unea states America, Of the crimes enumerated or
judge any MAjesiys superior Courts in Can.
a4A ar any Judge Of eoaay court in canada, ..
magistrate s.ipendary magistrate in Canada, or any
Vuscss or any nspscor ana saperinendens Of police
v a., as Of S n % s 1 o.
the Governor unier the ea sea which appointment the
Governor Is HEREBY authorized % maze and unier which
commission s shall or the purpose Of the
aa avs an s ss s o. Of s
son 50 charse that hc may oc pous before such judge
brought him shall be lawful for
a ~, or onca ,s sna o. sch chsrS"
and upon such evlacnce according to the laws OF
iry apprehension trial Of Inc person
- 4
committed therein It saa DC awiu for such judge, commits
soaer other ofcef 70 issue mis- warrant for the commitment
unl Surrendered according to Stipulation OF the SAID
eomnissionsr or otter Snieer sl. lereupon forthwith
transmit deser 70 tue Governor copy OF nj tho tes
reqason of the une States for tine surrender Of such
person. pursaant TO tue said treaty.
Before expressing my Oplnion on the above section
OF the statue II Is proper should Ut once adMlt,
Lecause 1T IS Fundamental principle whicn neither
can nor should De gainsayed mat nothing should DO
u III.
less IL he SO expressly enacted III the law. In Eng
lana sucn ~ the rule, ana M tns country such -
the lnvaIlaDie rue. IL remains therefore to be
shown That tue section Vi the statute ABOVE cx-
racted from coaies UPON tie Judges Of the Sessions
Of tAe Peace OF tne frovlco 81 quebec Inc Jurlsdic-
ton which Juc &c Coussol mas exercised Now, upon
altenI.yey examining. The said irst section OF the
stat ute any one alter due reflection Will, appre-
henu, see no caase 70 d0uOt as to the ex-
lenL OF the jurisdiction VI Judge C0urs0l.
Why Because Judge Lourso as Judge OF the
Sessions OF TIE Peace IS not hnted 10 the exercise
vi MS judicial authority wltnin the Province OF Que
Dec, Dut nc and Le other Cicers ana Judges IN that
section mentioned are authorized TO Issue respec
lively their Warrants Tor the apprehension OF tne
person 81 chafgei'
Afer some further reasoning IN favor OF this con.
strucIion TINS s.atute Inc Juage remarked that ne
nad no hesitation N declaring mat IL Is my opinion
mat tue Judge OF session, Judge Courso has not
outsteppea the limit Vi MS jurisdiction In issuing his
warrant 10 arrest tue PRISONER whose arrest III Pres
a,i satisied tnat tue warrant was su.iicent prop
efly issue and legally executed, the prisoner prop
cry conmttec, nov properly ue ned, not entltled
to obtain the conclusions OF his petition be liber
ated aud he shouia " RENAMED 10 abiae the due
course oil tie law.n The prisoner was thereupOn
remanded accordingly
TIE SANE QUESTIONS BEFORE JUDGE COURSOI.
Immediately aiter TINS adverse decision by Judge
MondeeI. Caldwei.'s counsel shifted the scene Of
their actlvity the Court vi Sessions and there
before Judge CoursO applied Tor the discharge OF
their cheat upon substantially The same grounds in.
sisted on In tie OIner court. But It was commended
bI the attorneys Tor the United States That Judge
MonueietS decision on tile points raised was q
precedent against The present application, and was
even authority, aud Llat the Coust 0 Sessions could
not rule adversely. Judge Courso took tho matter
under aovSement TILL last Monday wiien he decided
against HE application Ior u scnarge and ordered
the examination on the charges against Caldwell to
proceed Ola the day following.