Page:Harvard Law Review Volume 9.djvu/451

NOTES. 423 vogue. The third and last division of the report gives in outh'ne the history of civil procedure in New York. According to the Commis- sioners' computation twenty-five hundred code amendments and statutes relating to practice, enacted since the organization of the State govern- ment, besides hundreds of special, local and temporary acts, represent the tortuous evolution of the present unsatisfactory code. The sugges- tions thrown out as to the general lines along which reform should be made, indicate an inclination on the part of the Commissioners to revise and expand the present code, rather than create a new one. The proposition, however, to extend the scope of the code so as to include as procedure " whatever requires the attention of a court in enforcing or protecting the rights of citizens " — however remote its application — cannot escape much adverse criticism. The test of inclusion is too indefinite. Simplicity and uniformity of procedure are not associated with a miscellaneous code. The report has, on the whole, broken the ground well for the work to follow ; and for this the Commissioners are deserving of praise. But the report has done little more than this, and the crucial task of revision yet remains. Despite the care which characterizes the present report, it still seems better to put the task of revision on free shoulders ; not to add it to the burden of revising the General Statutes, which is already imposed upon the Commissioners. Extradition Proceedings — What Law determines Criminality OF Act? — If the United States demands of Canada the extradition of a fugitive from justice, must it be proved before the Canadian tribunal that the act charged is a crime according to both United States and Canadian law? If not, which law is to be considered? The Extradition Act of Canada, following the usual language of treaties, provides that a prisoner shall be surrendered only upon such evidence of criminality as would, under Canadian law, justify his committal for trial if the crime had been committed in Canada. At first glance it would appear that Canadian law should determine merely this question of the amount of evidence necessary, and that, as the crime, if any, has been committed against the laws of the United States, those laws alone should determine substantively whether or not there has been a crime. And that is the opinion expressed by Armour, J., in RePhipps, i Ont. R. 586, 609-610, and by the majority of the court in In the Matter of John A?iderso?i, 20 U. C. Q. B. 124. But such treaty or statutory provisions have generally been interpreted as pro- viding that the laws of the surrendering country must be considered, not only on points of evidence, but also on the ultimate question of whether the act alleged constitutes one of the extradition crimes. (See In re Wirid- sor, 6 B. & S. 522.) And the weight of Canadian authority is to that effect. /// re Smith, 4 U. C. P. R. 215 ; Moore on Extradition, § 429, and cases cited. The further question, as to whether the act must also be shown to be a crime according to the laws of the demanding country, was raised in the recent case of /// re Murphy, 22 A. R. 386 (as abstracted in 31 Canada Law Journal, 594), and the Court of Appeals of Ontario was evenly divided in its answer. The language of the Extradition Act seems to be equally susceptible of either interpretation, so that the question is left to be decided on general principles. The opinion expressed by the