654
THE GREEN BAG
He then decided that it was a needless •waste of time to await the commissioner's final order if it could be shown that the petitioners had not committed an extra ditable offense or were not liable to extra dition. For that purpose anciliary certiorari might issue. He was not confined merely to the question of whether or not the return showed a lawful custody, but could review the entire cause. He held, with elaborate reasoning, that the treaty was not retroactive (the treaty expressly so states), that a con spiracy is not an offense within the treaty, and held that as the indictment for conspir acy was so framed that acts of larceny were charged as overt acts of the conspiracy, the United States could not treat them as dis tinct acts of larceny; that as the order of remand did not contain the date of the alleged commission of the crime, it might have been committed before the treaty was made, and so an attempt might be made to give the treaty a retroactive effect. Con sequently, Mr. Justice Caron granted the writs of habeas corpus and liberated the prisoners. There was no appeal in Canada from the decision of Judge Caron, but the United States obtained leave to appeal to the Privy Council from the judgment of the Colonial Court. The hearing took place on the i6th and 1 7th of December, 1904, and a decision was rendered by the Judicial Committee of the Privy Council on February 8, 1905. This decision, delivered by the Lord Chancellor, was terse, to the point, and (between the lines), scathing in its references to Judge Caron . The Privy Council found that the only question to be decided was whether the accused were in lawful custody at the time of the issue of the writ; that it was difficult to understand of what the supposed unlaw fulness of the custody consisted; that Judge Andrews was quite accurate in what he did after having heard the parties. "Then the somewhat extraordinary inter
vention of Mr. Justice Caron took place." He "first gets rid of the adjudication by Mr. Justice Andrews by a singular, mis apprehension of that learned judge's lan guage . . . Though it is common enough to speak of a learned judge's judgment in referring to the reasons by which that judgment is supported, it is somewhat singular to find a learned judge himself confusing the two things." They further held that an accusation of theft, on information, was enough for the claim to arrest and detain. Whether the accusation was well-founded or whether there was enough to justify the commis sioner in committing for surrender, was a question which would have been regularly brought before him and determined at the proper time if the due course of justice had not been interfered with by the inter position of the learned judge. And then on committal by the commissioner for surrender the accused have fifteen days allowed them to bring the legality of the surrender before a court of justice. This decision brought the matter back to the Extradition Commissioner, but Messrs. Gaynor and Greene immediately applied to Mr. Justice Davidson of the Supreme Court for a writ of prohibition. to prevent Judge Lafontaine from proceeding further, on the ground that the Dominion Parliament was incompetent to create Extradition Com missioners and that Judge Lafontaine had no authority to act upon the application for extradition. Judge Davidson decided, March 22, 1905, that Parliament did have authority to create such officers, and to confer such office upon such judicial officers as Judge Lafontaine, and denied the peti tion for the writ. He held moreover, that quo warranto, and not a writ of prohibition, was the proper form of proceeding by which to determine the title of a de facto judicial officer. The petitioners then appealed to the Court of Kings Bench. Pending the appeal they applied to that court for an order
