sanction the use of depositions, and to avoid the necessity of bringing the deponents here; and the referring to or connecting the depositions with the warrant in this section was for the purpose of ensuring that they should be such depositions as would be taken before competent authority, and in relation to the particular crime and the offence specified in the foreign warrant. (a)

In this case, it was held that certified copies of depositions, on which the warrant issued in the United States, after proceedings had been initiated in Canada, and after the arrest in Canada, were admissible in evidence before the Magistrate. (b) But under the third section of this Statute, (c) the depositions that may be received as evidence of the criminality of the prisoner must be those upon which the original warrant was granted in the United States, certified under the hand of the person issuing it, and not depositions taken subsequently to the issue of the warrant, and not in any way connected therewith. (d) And as the Statute permits depositions taken in a foreign court to be used in lieu of oral testimony, when the case depends wholly upon such depositions, we must be strict in seeing that they are depositions coming clearly within the meaning and provisions of the section. (e)

These depositions may be used when the warrant for arrest actually issues in the United States. (f) An affidavit sworn before a Justice of the Peace in the United States, not being a copy of any original deposition, properly certified, is not admissible as evidence, nor is the objection cured by the consent of the prisoner's counsel. (g) The

(a) Ex parte G. H. Martin, 4 C. L. J. N. S. 200, per Morrison, J. (b) Ib. 198; see also Reg. v. Morton, 19 U. C. C. P. 9.

(c) 31 Vic., с. 94.

(d) Reg. v. Robinson, 6 C. L. J. N. S. 98, 5 U. C. P. R. 189.

(e) Ib. 99 per Morrison, J.

(f) Reg. v. Morton, 19 U. C. C. P. 18, per Hagarty, J.

(9) Re Anderson, 20 U. C. Q. B. 183, per McLean, J.

evidence of a professional gentleman as to the law of the United States is properly admissible before the Magistrate. (a)

In the St. Alban's Raid case, the examination of the witnesses for the prosecution was conducted in the manner prescribed by the 32 & 33 Vic., c. 30, s. 29 et seq., as to offences committed here. The prisoner was allowed to cross-examine the witnesses, and the depositions certified that he had the opportunity of doing

SO.

The voluntary statement of the prisoner was taken, as by s. 31 of this Statute, at the request of the Crown counsel. The Judge, however, declined to express an opinion as to its legality. (b)

The sufficiency of the evidence of criminality to justify the apprehension and committal for trial of the person accused is to be determined by the Judge or Magistrate, upon his view of the transaction, as described in the testimony, taken in connection with the law of the foreign State where it occurred, as regards the offence in question, and also with reference to the law which governs our own Courts in regard to the sufficiency of evidence -that is, its sufficiency in point of legal character, and its adequacy to support the charge of the offence against the law of the foreign country. (c)

The functions of the Magistrate are not simply ministerial in this respect. He must hear the evidence, and exercise a proper judicial discretion as to whether the facts establish a case for the rendition of the prisoner. (d) It is very important to determine the extent to which evidence in defence may be properly received before the Magistrate on behalf of the prisoner. It is submitted

(a) Ib. 172, per Robinson, C. J.

(b) See, also, the Chesapeake case, on these points.

(c) Re Anderson, 20 U. C. Q. B. 124, Robinson, C. J.

(d) Reg. v. Bennet H. Young; the St. Alban's Raid, 197, per Smith, J.; the Chesapeake case, 46.

there is ample authority for the position that such evidence is admissible to establish that the offence does not come within the Treaty. (a) But whether it is admissible to the full extent, and in the same manner, as on preliminary investigations before Magistrates of offences arising here remains as yet to be decided.

In Young's case, Judge Coursol granted a delay of thirty days to the prisoners, to enable them to prepare evidence in defence, to shew that the acts with which they were charged were committed as belligerents, under the authority of the Government of the Confederate States. He declared his opinion that, in admitting such evidence, he would not be assuming the functions of the American Courts, or virtually trying the accused, as the Statute required the Magistrate to be perfectly satisfied of the criminality of the act, according to our law. (b) When the case came before Mr. Justice Smith, he granted thirty days' further delay, for a similar purpose. The Justice considered that, although he could not try the prisoners, yet he was bound to see whether their crime came within the Treaty, and that, if they shewed they were belligerents, then possibly there might be an end of the matter. He said, "I admit evidence not, technically speaking, for the defence, because there is no such thing as a trial before an examining magistrate; but evidence as a coroner might admit it, who must receive whatever is calculated to have a bearing on the inquiry to fully develop the facts respecting the offence charged." And he held that the evidence was clearly admissible. (c) Although the Burley case turned principally on the power of the Magistrate to try

(a) Reg. v. Bennet H. Young; the St. Alban's Raid; the Chesapeake case;

Re Burley, 1 U. C. L. J. N. S. 34.

(b) Ib. 115.

(c) Ib. 449.

the prisoner, it is certainly not inconsistent with the right to adduce for the defence such evidence as was given in Young's case. In the former, it was assumed by counsel, and by the court, that if it were clearly established the prisoner acted only as a belligerent, duly commissioned by the Government of the Confederate States, he could not be committed for extradition. The evidence was offered, to shew this authority from the Confederate Government, but it was not sufficient to establish it conclusively. The acts charged were admitted, but their criminality was denied. The Court declared that, under the circumstances, a Magistrate could not do otherwise than commit for trial by a jury, if it were an offence arising within our own jurisdiction, and they in effect said :-" A prima facie case is made out against the prisoners, and the evidence in defence does not clearly disprove it. Granting that his individual responsibility would cease if the acts were of a belligerent character; on this evidence, we cannot determine whether they are or are not endued with this quality. The prisoners' acts are equivocal, and may or may not be acts of lawful war. His intent, the good faith of the enterprise, and the credibility of witnesses, are important, and properly ascertainable by a jury. We have no power to try the case, and thus assume the functions of a jury in the United States."

The difference between this and Young's case would seem to be, that in the latter the evidence was such as to satisfy the Magistrate, without the intervention of a jury, that the prisoner had the authority he set up, and was therefore entitled to be exonerated from individual liability. The actual decision in Burley's case was as to the power of the Magistrate to try the accused. The point as to the admissibility of the evidence was fully argued, but none of the Judges, except Richards, C. J., expressed an opinion as to its admissibility. The latter was clearly of opinion that the evidence was admissible, in the same manner as on the investigation of an ordinary offence arising in our own country. The opinion of this learned Judge is certainly entitled to very great weight. In the Chesapeake case, evidence of a precisely similar character was offered for the same purpose as in the other two, and received without objection. And in this case it was also held that the evidence was not such as the Magistrate could adjudicate upon, but called for the intervention of a jury in the tribunals of the United States.

In Re R. B. Caldwell, (a) the court held that the evidence of an accomplice was sufficient to establish the charge for the purpose of extradition, and that magistrates holding preliminary examinations might undoubtedly act on the evidence of an accomplice, as the matter in investigation is merely whether the accused shall be put upon his trial or not; and when all questions as to how far the accomplice is entitled to credit will be duly considered at the proper time. Semble also, the evidence of a slave may be received. (b)

If the prisoner is committed for surrender on insufficient evidence, a judge in chambers will, on writs of Habeas Corpus and certiorari, order his discharge. (c) The following case is important in regard to the sufficiency of the evidence.

The express car of a railway train, on one of the roads in the United States of America, was broken into, and plundered by five or more men, two or three of whom fired at the conductor, who was endeavouring to stop

(a) 6 C. L. J. N. S. 227, 5 U. C. P. R. 217.

(b) Re Anderson, 20 U. C. Q. B. 182, per McLean, J. c Re Kermott, 1 Chr. Rep. 253.