Page:The Green Bag (1889–1914), Volume 17.pdf/684

 THE GREENE— GAYNOR CASE for new writs of habeas corpus. These were issued but do not appear to have been served; they were, at any rate, soon aban doned. This backing and filling was without effect upon Judge Andrews, except possibly to make his pronouncement a little more emphatic. He held that as to ccrliorari, a foreign sovereign or state possessed the right to appear before the Canadian courts as parties to judicial proceedings and conse quently might intervene in such proceed ings, but that the issue of writs of ccrliorari would be useless, as the matters of fact they might elucidate were not open to inquiry on the writs of habeas corpus before him. He held that in view of the comprehensive and peremptory language of the statutes he was entitled to issue the writs of habeas corpus, that he had jurisdiction to do so, and that the writs could issue before the Extradition Commissioner had made an order of surrender. But such writs when so issued before the commissioner's final order were confined to the question of the lawfulness of the custody of the prisoners, and that the warrant being goo ' on its face the writs should be quashed; that the com missioner's record and orders could not be reviewed until after committal for sur render. The petitioners having attacked Judge Lafontaine's jurisdiction on the ground that he could not order the arrest of any one outside of his district at Montreal, Judge Andrews held, that while possibly a hard ship, the commissioner's jurisdiction ex tended over the whole Province. After giving his opinion, Judge Andrews concluded it by stating that he denied the right of any other judge to intervene until he made his final order, and that the peti tioners having applied to him for the writs could not take advantage of any lack of jurisdiction in him, to avoid recommittal. He concluded by a final, formal order, denying the petitions for ccrtiorari, quash ing the writs of habeas corpus, and issued an order of remand and committal.

653

On the motion to adjudge Constable Car penter in contempt, Judge Andrews found that the officer not being in sole custody of the prisoners, being commanded by the commissioner to do one thing and by Judge Andrews to do another, might be excused for exercising some discretion and could not be said to have acted contemptuously. Judge Andrews did express, however, his disapproval of the constables' conduct in making the arrest, saying that while their acts did not disclose an intention to disre gard a writ of habeas corpus if served, they formed part of a scheme to prevent the effective service of such a writ. The day Judge Andrews made known his finding new writs of habeas corpus were obtained from Judge Caron, who also enter tained petitions for writs of ccrtiorari for the purpose as before, of bringing before the court all documents, exhibits, etc., on which the commissioner had remanded the fugitives to await a hearing on the extradition complaint. On August 13, Judge Caron announced his decision in a lengthy opinion, going fully into all the points involved in extradi tion proceedings and in habeas corpus founded thereon. He dwelt at length upon points not apparently material to the issues before him. He held that prior writs of habeas corpus were no bar to subsequent ones provided the petitioners had waived the former writs and so stated in their later petitions, or if new allegations were contained in the subsequent petitions, or they were addressed to a different jailer, or served in a different district. That the writs before Judge Andrews, having been waived by the petitioners, the judge had no jurisdiction to proceed further, that his decision was consequently null and void and his order of recommittal invalid. Judge Caron went further; he decided that Judge Andrew's decision could not constitute the questions involved res judicata because Judge Andrews did not decide the merits of the cause at all but merely ordered the return of the prisoners to Montreal.