AND THE EXTRADITION 1873. 1878. Re TERRAZ the practice-namely, that in many cases it is expedient, and indeed lawful, to determine a case of this kind, though not upon ACTS, 1870 AND a motion for a habeas corpus, without waiting for the bringing up of the party charged upon habeas corpus into court; but those are cases in which something has previously taken place which puts the counsel for both parties upon equal terms, and Extradition in which it certainly does not appear, in any of those Bankruptcy. which were cited before us, that such a thing has ever happened, and I do not believe it has ever happened in any court of law in England, that counsel has been called upon to argue upon the validity or invalidity of a warrant or any other instrument upon which the liberty of the subject depended, without having had the opportunity of previously seeing and considering the instrument and preparing himself to argue upon it. In the present case I do not say that anyone is to blame, but no court in England would call upon counsel to argue a case under such circumstances. What would be done, and what would have been done in the present case had it become necessary, would be that the case would be allowed to stand over until a copy of the warrant had been delivered to the prisoner's counsel, and he had time to prepare himself to argue upon it. The question to which Mr. Bowen alluded, and on which he addressed us, might no doubt have arisen, whether that was to be at the instance of the prisoner. It is, however, of no consequence now, because I am quite certain that the Court would never have decided this case upon the validity of this second warrant, until the counsel who alleged that it was informal and insufficient to justify the imprisonment of the accused, had had an opportunity of considering his case fully. My opinion however, is, that the Court would have made no question as to who should make the application, whether it were the one side or the other, but would at once have granted the necessary time. Until a different practice was pointed out and required by the Judicature Act, the old practice that had prevailed from time immemorial in all courts of common law would have obviated any difficulty of this kind. Under that, as a general course, the party opposing the rule would obtain office copies of the affidavits on which it had been granted, so that the counsel who showed cause would know the case he had to meet, and, in order that his opponent might be in an equally advantageous position, he generally handed the affidavits which were to be used in showing cause to the counsel who supported the rule, and then, if the latter required time to meet them, the Court would on application extend the time for that purpose. Such, no doubt, would have been the case here if the Judicature Act had not introduced a different practice. Though that practice does not apply precisely to a case like the present, still it has led to a different mode of proceeding. The counsel who show cause against a rule do not now hand over their affidavits to the counsel who support it, because both sides come equally prepared with affi But Re TERRAZ AND THE EXTRADITION 1873. 1878. davits which have been filed before the motion comes on. in the present case, unfortunately, the warrant, the validity of which might have been in question, and upon which the case ACTS, 1870 AND might have depended, had not been previously shown to the counsel on the other side, and it is unquestionable that the Court never would have decided to imprison a person by virtue of a warrant, the validity of which his counsel had had no proper Extraditionopportunity of impeaching before the Court. As there was Bankruptcy. considerable discussion during the argument upon points which seemed to involve a question as to whether we could properly look at and decide upon the validity of the second warrant, I think it right to say at once that I do not believe that a case involving the liberty of the subject would, or could ever be, determined in this or any other Court in England, unless both parties-the party claiming the discharge of the prisoner and the party opposing it-had both of them the same materials to argue upon, and were upon an equal footing in all that related to the argument and the ultimate decision of the case. Having made these observations, I will merely add that it is quite clear that this rule must be discharged, and the further proceedings before the magistrates will determine whether, when the evidence is completed before him, the extradition of the prisoner shall be ordered, or whether he shall be discharged and set at liberty. HUDDLESTON, B. With regard to the first point I am entirely of the same opinion as my Lord. The question is whether the warrant discloses a good ground for detaining the prisoner. Now it is clear that it is a warrant for the safe custody of the party until the case can be properly inquired into. I make that observation because, throughout the current of authorities there is a distinction made between warrants for apprehension, warrants for safe custody pending the investigation before the proper tribunal, warrants for safe custody where the party is imprisoned for the purposes of state, or for the protection of individuals, and warrants in execution. Warrants in execution are in the nature of convictions, and it has always been held that warrants of that class require considerable strictness, for the reason that when the party is brought up on the habeas corpus, and is held under a warrant in execution, the Court can only judge by what appears in the warrant whether a crime has been committed, and whether the alleged criminal is properly held in custody. But warrants for apprehension are merely instruments not directed to the prisoner, but directed to the officer for his protection, and to enable him to take the person in custody either for the purpose of inquiry, or of holding him in custody while the inquiry is going on, or of keeping him in safe custody for some of the reasons I have mentioned. Now, doubtless the latter class of warrants, namely, where the party is to be held in safe custody during a particular time, would seem to require more particularity than a warrant for apprehension; but there Re TERRAZ AND THE EXTRADITION ACTS, 1870 AND 1873. 1878. are clear authorities to show that warrants for safe custody, even for public purposes, or for the protection of the public or individuals, may be in general terms. There is a case which illustrates this probably better than any other; I mean the case of Rex v. Despard (ubi sup.). A power was given by the 38 Geo. 3, c. 36, for suspending the Habeas Corpus Act, and it was by Extradition that statute enacted that where a person should be imprisoned Bankruptcy for high treason, suspicion of treason or treasonable practices, or by warrant of any of Her Majesty's principal Secretaries of State, for such causes as aforesaid (that is, high treason, suspicion of treason, or treasonable practices), he might be detained in custody until the 12th day of February, 1799, that is to say, his right to be tried was to be suspended, and might be suspended, by a warrant where he was imprisoned for any of the aforesaid causes. In Despard's case the Secretary of State's warrant committed Colonel Despard to custody under that statute, alleging generally "treasonable practices," and he was brought up on a habeas corpus. Mr. Fergusson, who argued for the writ, pointed out that the court could not act upon such an indefinite warrant, from which it could not be said whether it was for high treason, or petty treason, or suspicion of either, or whether it was for being accessory after the fact, or it might be for publishing a seditious libel, or drinking to the health of a traitor, or asserting the Pope's supremacy, or a variety of other acts. The Attorney-General (Sir John Scott), in showing cause, did not rely upon the Act of Geo. 3, as legalising warrants in any other form than was warranted by the common law, but he relied upon the fact that the warrant was perfectly good at common law, and he cited and referred to upwards of fifty precedents for warrants of this kind, and pointed out those in particular that were under the reigns of William III., Queen Anne, George I., George II., and George III., and we shall see the importance of that presently when we come to the judgment of the Court, in which they admitted that those were authorities, and pointed out that, if any had been quoted under the reigns of Charles II. or James II., they would not have attached much importance to them; but, as these warrants were issued at the time when, as Lord Kenyon observed, "the liberties of the subject were well understood and nobly asserted," and many of them too, as he further said, "in the time of Lord Holt, a man above all praise, and who was assisted by other judges, one of whom was Mr. Justice Powell, who fell little short of Lord Holt himself," the Court held them to be authorities showing that at common law a commitment even for safe custody for political purposes, in contravention of the liberty of the subject, was perfectly good in describing the offence charged generally as "treasonable practices," which were the words used in the statute of Geo. 3. In the case of Rex v. Gourlay (ubi sup.), where a person was held under a commitment for safe custody under the Lunacy Act for the protection of the public, and which was AND THE again a commitment very different from, and requiring greater Re TERRAZ strictness than a commitment for investigation merely, a general EXTRADITION form was again admitted, and Lord Tenterden, in delivering ACTS, 1870 AND judgment, said: "It is not a commitment for safe custody, in 1873. order that the party may afterwards be brought to trial, nor is 1878. it a commitment in execution; but it is a commitment for safe custody in order to secure the party and prevent mischief to His ExtraditionBankruptcy. Majesty's subjects. That being the object, I think the warrant ought not to receive the same strict construction as a warrant in execution ;" and he concludes his judgment by saying," Upon the whole, I think that the warrant, not being a warrant of commitment in execution, is sufficiently certain, and that the prisoner must be remanded." Both these cases are authorities to show that, even in warrants for safe custody, a general assertion or a general charge is sufficient. Now the present is a warrant for the apprehension of the party, and issued under the provisions of the Extradition Act, 1870, which mentions "extradition crimes," a well-known term in the Act of Parliament. By the interpretation clause (sect. 26) an "extradition crime" is defined to mean "a crime which, if committed in England, or within English jurisdiction, would be one of the crimes described in the first schedule to this Act." Amongst those crimes is mentioned this, "crimes by bankrupts against bankruptcy law." I concede that, if the description in the first warrant had been "crimes against bankruptcy law," and the first warrant was framed under the Act of 1870, it would be insufficient, because that Act only applies to crimes committed by bankrupts against bankruptcy law; but the Extradition Act, 1873, enlarges that extradition crime to all crimes, i.e., to "any indictable offence under the laws for the time being in force in relation to bankruptcy which is not included in the first schedule to the Act of 1870." Therefore "crimes by bankrupts against bankruptcy law" must now be read as "crimes against bankruptcy law;" that is the general term. What then appears in the first warrant? That this man is charged with crimes against bankruptcy law;" and therefore in following the exact words of what must now be considered the amended schedule of the Act of 1870, it is obvious that all that is necessary has been done; and it is convenient when we come to consider the reason why. The treaty itself between this country and Switzerland, in 1874, in the 10th article provides that the requisition for extradition may be made by means of the post or by telegraph. The magistrate receives information that something has been done which is an extradition crime, and he states that in his warrant in the very terms of the information which he has received, and when the matter is brought before him, and he proceeds to an investigation of the whole case, no doubt it must be shown that the magistrate has jurisdiction to deal with the accused because he has committed an extradition crime, but no habeas corpus would be granted to discharge the prisoner out of custody 66 Re TERRAZ AND THE EXTRADITION 1873. 1878. While that investigation is pending; and the cases referred to by Mr. Greene, of Rex v. Marks and others and Rex v. Krans and ACTS, 1870 AND others, are authorities confirming that view. Every protection is obviously given by the Extradition Act to persons taken up under its provisions. Everything in the nature of a political crime is expressly excluded, and no man can be apprehended Extradition for an extradition crime as a cloak under which he may be Bankruptcy. convicted of a political one (sect. 3, sub-sect. 1). The case of, I think his name was, Dr. Bernard, a few years ago, is a good illustration of this. The Act also provides (sect. 11) that, upon the magistrate's committing the allegation criminal to prison, he shall inform him that he has a right to a habeas corpus, and that the extradition warrant for sending him out of this country to the foreign state will be suspended for fifteen days in order to enable him, if he chooses to do so, to apply for a writ of habeas and have the question decided, when, if it turns out that the crime charged is not within the Treaty or the Act, he will be discharged. It is moreover provided by the 3rd section (subsect. 2), that a fugitive criminal shall not be detained or tried in the foreign state to which he may have been surrendered, for any offence committed prior to his surrender other than the extradition crime upon which the surrender is grounded until he has been restored or had an opportunity of returning to Her Majesty's dominions. Every possible protection, therefore, is given to a prisoner under this statute, and when I consider that, when I look to authority, and when I see what the nature of this warrant is, I feel perfectly satisfied that a warrant for apprehension in the general terms of the present one is a perfectly good and valid warrant, and that the prisoner under it cannot be discharged. But the matter has not rested there in argument, nor, indeed, has it in consequence of what has fallen from my Lord Chief Baron. I would, of course, speak with the very greatest respect of any opinion that may fall from my Lord, whose position in this court, whose great experience and great legal knowledge we all bear most willing testimony to; but a judge sitting with other judges must have the courage to express his own opinions, and if he hears it said that a certain course is a direct violation of the law and constitution of the country, and he differs in opinion from that view, I think he is bound to express his own opinion npon the matter, and in so doing to give his reasons for expressing it. Now I say, and I say it with very great respect, that, as far as I know in practice and on authority, there can be no doubt whatever that a fresh warrant may be lodged, as has been done in the present case. A man is in custody, a writ of habeas corpus is obtained, not directed to the prisoner, though sued out very often by the prisoner or his friends, but to the gaoler, who has to show the causes under which he received and detains the prisoner in custody, and when he comes up before a judge on a habeas corpus he may show the warrant under which he received the man, and he may put |