under friendly relationship, or under treaty, unless, in the latter case, the treaty expressly includes them. (a)

The Treaty, in express terms, includes seven different offences-namely, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, and the utterance of forged paper. These offences are not political, but social, though the Governments of Great Britain and the United States have made national laws for each respectively, thereby giving them a municipal legal character. (b) The stipulations of the Treaty, with regard to the definitions of the crimes covered by it, are to be carried out in conformity with the municipal laws of both countries, in so far as they agree. (c)

The Governments of these two countries, in making the Treaty, were dealing with each other upon the footing that each had at that time recognised laws applicable to the offences enumerated, and that these laws would not, in all cases, be the same in both countries. The agreement to surrender to each other criminals of certain classes was based upon the fact of the persons being criminals by the laws of the country from which they came, provided the evidence of criminality, according to the laws of the place where the fugitive so charged should be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed; (d) and in this case it was held that, as slavery was tolerated in the United States, and the apprehension of a fugitive slave was authorised by law, such slave could not lawfully resist apprehension in order to gain his freedom, though our law conferred it upon every man, and, consequently, that a slave, so resisting, might be guilty

(a) Reg. v. Bennet H. Young; the St. Alban's Raid, 470, per Smith, J. (b) Reg. v. Bennet H. Young, 9 L. C. J., 44, per Badgley, J.

(c) The St. Alban's Raid, 469, per Smith, J.

(d) Re Anderson, 20, U. C. Q. B. 190, per Burns, J.

of murder, and not necessarily of manslaughter, on the ground that his resistance was lawful. (a)

So far as we in Canada are concerned, the Treaty and Statutes are to be construed according to our laws in regard to the offences comprised within their provisions. In other words, the offence must be one of those enumerated according to our law, and the notions we entertain as to the ingredients necessary to constitute it. (b)

But our law is not absolutely to govern as to the particular offence in all its ingredients, and in relation to whatever circumstances may have influenced the party in committing it. Before this rule could prevail, there should be a similarity between the law of the State from which the person has fled and that of our country, in all the features and attributes of the particular crime. To some extent it might be reasonable to hold that the law of the two countries should be found to correspond. For example, if it were the law of a State that every intentional killing by a slave of his master, however sudden, should be held to be murder, without regard to any circumstances of provocation, or of any necessity of selfdefence against mortal or cruel injury, then a fugitive slave who, according to the evidence, could not be found guilty of murder without applying such a principle to the case, could not legally be surrendered by the Treaty. It cannot, however, be held that, because a man could not, in the nature of things, be killed in this country while he was pursuing a slave, because there are not, and by law cannot be, any slaves here, therefore a slave who has fled from a slave State into this conntry, cannot be given up to justice because he murdered a man in that State who was at the time attempting to arrest him,

(a) Re Anderson, 20 U. C. Q. B. 190, per Burns, J. (b) Re Trueman B. Smith, 4 U. C. P. R. 215.

under the authority of the law, in order to take him before a Magistrate, with a view to his being sent back to his master.

Under such circumstances, reference should be had to the positive law of the slave State, to the conduct of the party pursuing and the party pursued, to the knowledge of the latter that the purpose for which it was desired to arrest him was not contrary to the law of the country, or to the fact (if it should be so) that there was no apparent necessity to inflict death in order to escape. (a)

There are several decisions in our own courts as to the particular offences covered by the Treaty. Among the earliest and most important of these is Anderson's case (b). In that case, A., being a slave in the State of Missouri, belonging to one M., had left his owner's house with the intention of escaping. Being about 30 miles from his home, he met with D., a planter, working in the field with his negroes, who told A. that as he had not a pass he could not allow him to proceed; but that he must remain until after dinner, when he, D., would go with him to the adjoining plantation, where A. had told him that he was going. As they were walking towards D.'s house, A. ran off, and D. ordered his slaves, four in number, to take him. During the pursuit, D., who had only a small stick in his hand, met A., and was about to take hold of him, when A. stabbed him with a knife, and as D. turned and fell, he stabbed him again. D. soon afterwards died of his wounds. By the law of Missouri, any person may apprehend a negro suspected of being a runaway slave, and take him before a justice of the peace. Any slave found more than 20 miles from his

(a) Re Anderson, 20, U. C. Q. B. 170-1, per Robinson, C. J. (b) 20 U. C. Q. B. 124.

home is declared a runaway, and a reward is given to whosoever shall apprehend and return him to his master. A. having made his escape to this country, was arrested here upon a charge of murder; and the justice before whom he appeared having committed him, he was brought up in the Court of Queen's Bench upon a Habeas Corpus, and the evidence returned upon a certiorari. It was contended that as A. acted only in defence of his liberty, and upon a desire to gain his freedom, there was no evidence upon which to found a charge of murder, if the alleged offence had been committed here, and that he could not be demanded by the Treaty-Held that under the Treaty and our statute Con. Stat. Can., c. 89, the prisoner was liable to be surrendered.

In Re Beebe, (a) the Court held that burglary is not an offence within the meaning of the Treaty, or the statutes passed to give effect to the Treaty.

In another case, a prisoner was arrested in Ontario for having committed in the United States the crime of forgery, by forging, coining, counterfeiting, and making spurious silver coin, etc. :-Held that the offence as above charged does not constitute the crime of forgery within the meaning of the Treaty or Act, for it was not forgery according to our law. (b) In ex parte E. S. Lamirande, (c) the Court held that the making of false entries in the books of a bank does not constitute the crime of forgery according to the law of England or Canada, and the prisoner, therefore, was not liable to be extradited on the requisition of the French authorities under the Imp. Statute 6 & 7 Vic., c. 75.

In Reg. v. Gould, (d) Hagarty, J., at page 162, says,

"The term 'forgery,' in the extradition treaty, means that which by universal acceptation it is understood to mean, namely, the making or altering a writing so as to make the writing or alteration purport to be the act of some other person which it is not."

It seems piracy, as used in the Treaty, was intended, to apply to piracy in its municipal acceptation, cognizable only by tribunals having jurisdiction either territorially or over the person of the offender. If, however, it signify piracy in its primary and general sense, as an offence against the law of na tions, it can only come within the operation of the Treaty when a pirate, having gone into one or other of the countries, and so made himself amenable to its courts and after having been there legally charged with the offence, has fled or been subsequently found within the territory of the other (a).

When an act assumes an international character, and is sanctioned by the aggregate power and will of a nation claiming to exercise belligerent rights, all private jurisdiction over it, as regards individual responsibility, ceases, and it is beyond the reach of the Treaty or the Statutes. In such case, reference can only be had to the arbitrament of the sword. And an offence cannot be divested of its international character, by selecting from an act-referable for its approval or censure only to the law of nations-a portion of, or an incident in, such act, and then attempting to subject such portion or such incident to trial by a municipal tribunal, for the whole of the details and incidents which in the aggregate constitute a national or hostile act, must be taken together. (b) In accordance with these principles, it was

(a) The Chesapeake case, 44-5.

(b) Reg. v. Bennet H. Young; the St. Alban's Raid, 454, per Smith, J.