Ex parte Bouvier. (27 Law Times, 844.)

Habeas corpus.—Prisoner convicted in France. Surrender to authorities under extradition act, 1870, (33 and 34 Vict., c. 52.)

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By sec. 27, 6 and 7 Vict., c. 75, among other acts is repealed, “and this act (with the exception of anything contained in it which is inconsistent with the treaties referred to in the acts so repealed) shall apply, (as regards crimes committed either before or after the passing of this act,) in the case of the foreign states with which those treaties are made, in the same manner as if an order in council referring to such treaties had been made in pursuance of this act, and as if such order had directed that every law and ordinance which is in force in any British possession with respect to such treaties should have effect as part of this act.” Affidavits concerning the French law were produced by both sides.

Cockburn, C. J.: I am of opinion that this rule should be discharged. I rather hesitate to express any decided opinion as to the construction to be put upon the 27th section, although I see plainly what was the intention of the legislature; that is to say, it was intended, while getting rid of the statutes by which the treaties were confirmed, to save the existing treaties in their full integrity and force. This has been probably effected, but is certainly not very clearly expressed. Nothing-would have been more simple than to enact that, although it was expedient to repeal the statutes, yet that the treaties should still have full force and effect; instead of which this complicated and obscure language has been adopted. If it were necessary in the present case to decide that point, I should have been prepared to do so, and to declare that the object had been accomplished, though at the same time I should be disposed to advise the government to make the matter safe by amending the act, in case any question might hereafter arise upon it. Upon the second ground, upon which we are asked to discharge the rule, I think there can be no real doubt. By section 3, subsection 2, the statute is to have full force where provision is made by the law of the state demanding the extradition of the criminal, or by arrangement, that the fugitive criminal shall not, until he has been restored, or had an opportunity of returning to Her Majesty’s dominions, be detained or tried in the foreign state for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded. I consider that the requirements of this provision are satisfied. We are now clearly informed of the practical working of the French law by the affidavit of M. Moreau, referring to the circular which is binding upon the courts of that country. It expressly provides that the criminal who is surrendered in respect of one offense will not be tried for another until he has [Page 616] been restored or has had an opportunity of returning to Her Majesty’s dominions. This view of the French law is confirmed by M. Felix, M. Blondel, and other authors of the highest possible authority. I am satisfied that we must discharge the rule.

Blackburn, J.: I have no doubt that it was intended that the old treaties should still have force and effect, and that they should be enforced by the machinery provided under the extradition act 1870. It was not intended to abrogate the old treaties, but I have very serious doubts whether the legislature have effected, by the twenty-seventh section, what was intended. If it was necessary to decide that point, I should desire to take time to consider, but I content myself with saying that it seems desirable that there should be some further legislation upon the subject. But upon the other point I am of opinion that the requirements of section 2, subsection 3, are complied with. The French law does provide that the fugitive criminal shall not be tried for an offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded. When we read the affidavit of M. Moreau and the textbooks, this is made clear. The criminal ought, therefore, to be surrendered.

Mellor, J.: I am inclined to agree with the construction of section 27 suggested by the attorney-general; but I feel some doubt, and it would be advisable to set all doubt at rest by further legislation. Upon the other point I entirely agree with the judgments of my lord and toy brother Blackburn.