Page:The Green Bag (1889–1914), Volume 17.pdf/686

 THE GREENE — GAYNOR CASE •directing the commissioner to stay the pro ceedings before him pending the appeal, for a writ of habeas corpus for the purpose of being admitted to bail by that court, and to be admitted to bail, the Commissioner having refused it on the ground that he had no power. These three applications were all refused on May 3, 1905, on the ground that it would require very serious reasons to induce the court to stay proceedings by a person who is, •de jacto, an extradition commissioner, and who performs the functions of his office with an authority equal to that of the judges •of the court, that the application for habeas •corpus was made in the wrong district; that the court would not put restraint on the commissioner by admitting to bail after his refusal. On May 19, the Court of Kings Bench decided the appeal from Judge Davidson's decision adversely to the appellants. It held that an appeal would lie, that it saw no necessity in determining whether quo •warranta or prohibition was the proper remedy, as the members of the court pre ferred to bas.e their decision on the construc tion of the statutes affecting the creation and appointment of extradition commis sioners. That such a commissioner sitting as a court was not an inferior tribunal, that the Superior Court could not control a federal court such as' the commissioner. That Parliament had the authority, and it was necessary, to create a special court, or appoint persons to apply the extradition laws. That the Imperial Act, naming the magistrates who should hear extradition proceedings did not apply to Canada, that Colony's statute having been accepted by an order of the King in Council. The appellants claimed that the Colonial Act having been amended and not subse quently reaccepted by order - in - Council, the Imperial Act had regained its original force and effect, but the court held that the orders-in-Council had been renewed. In the meantime the commissioner had

655

proceeded and on June 6, he found that the fugitives should be extradited and com mitted them for surrender. He found that the conspiracy and the acts of the accused were such, and that they had so far partici pated in the overt acts of Oberlin M. Carter both as to fraud and embezzlement as to be subject to extradition for fraud and embezzlement (theft in Canada and Eng land), and also for knowingly having re ceived stolen property (the money of the United States); that there was no necessity for a prior requisition; copies of depositions were properly in evidence before him though the originals had not been signed by the deponents; that the commissioner cannot discharge the accused on the ground of a reasonable doubt. The next step was to obtain leave to ap peal to the Supreme Court of Canada from the decision of the Court of Kings Bench re fusing the writ of prohibition. Leave to appeal was granted by Judge .Hall on the ground that the application for such a writ was not a criminal proceeding, and conse quently the Court of Kings Bench was not the Court of last resort as it is in all criminal matters. On June 19, Judge Ouimet issued a writ of habeas corpus (returnable before himself in chambers), to review Commissioner Lafontaine's proceedings. Ten days later he decided that this writ was properly return able before him in chambers, and on July 7, he denied the prisoners' application to be admitted to bail since no exceptional cir cumstances were shown, and intimated that he feared the prisoners might escape. Counsel for the fugitives had now practically exhausted their resources for delay, and nothing remained but the technical appeal for the writ of prohibition and the final hearing on habeas corpus. These were either decided adversely to the petitioners or abandoned by them, and the prisoners are now once more in Georgia, awaiting trail. BOSTON, MASS., October, 1905.