stringent the proof to bring any person within that ordinance required by the magistrate, the more constitutional will the course of justice be in this colony.

No charge of murder against the prisoner. The prisoner was thus irregularly charged at the magistracy for an offense as to which no evidence was tendered. I do not, on looking through the proceedings before the magistrate, find that this prisoner was charged with anything as the subject-matter of complaint to which he had to or could plead or answer, beyond the uusnstained charge of being a "suspicious character and a dangerous person." The evidence goes to prove acts of violence and of killing the captain and eight of the crew in the ship, and the observations of Mr. Francis, addressed to the magistrate, were in reference to such evidence, but from beginning to end I see on the proceedings no "charge" of murder or of robbery, properly called a charge, against the prisoner, to which he could plead.

Absence of regular authority to initiate proceedings.—Again, attached to the depositions is a letter from the colonial secretary dated the 3d of February, 1871, addressed to Mr. May, but there is no note on the proceedings referring to it or showing that it was ever taken judicial notice of by Mr. May, or that the prisoner or Mr. Francis, his attorney, even knew that such a letter had ever been received by Mr. May, much less that it was to be treated as the foundation of Mr. May's authority to act.

The argument on claim of prisoner's discharge.—Mr. Francis's argument before me occupied some days of February last. He reduced to writing the heads of his arguments. The honorable and learned attorney general, who appeared for the Crown, and opposed the prisoner's discharge, answered the points raised by Mr. Francis, and furnished me with a printed copy of his arguments. Mr. Francis replied, and he furnished to me a written copy of that reply. I have seldom heard arguments more clear than those by which the contention on each side was sustained. Having been carefully epitomized, these arguments speak for themselves. The points were divided into seven by Mr. Francis. The attorney general has followed that division, and for the sake of convenience I will consider the case in the same order.

FIRST POINT.-Right of rendition to China is the only question.—Mr. Francis says that he made this point merely to clear the matter of all grounds of charge against the prisoner other than those arising out of ordinance No. 2 of 1850, which provides for the rendition of Chinese offenders. The attorney general did not suggest that the prisoner could be detained on any ground other than No. 2 of 1850. I am, as I have before said, of opinion that there is no other charge against him capable of being argued.

SECOND POINT.-Was No. 2 of 1850 ultra vires the legislative council.-The second point taken for the prisoner, viz: That ordinance No. 2 of 1850 is null and void, as being ultra vires of the colonial legislature, is very difficult to be disposed of. It is not denied by Mr. Francis that this ordinance has been acted on from 1850 to the present time, a period of more than 20 years. But he showed that no length of use will give validity to a local enactment if originally ultra vires; and if, in the opinion of the supreme judicial authority within the locality, the ordinance appears to have been originally ultra vires, it is bound so to decide. This proposition follows from Chalmers' Cases and Opinions, p. 402, and is ably sustained in Mr. Anstey's pamphlet on the competency of colonial legislatures, 1869, at pp. 2-25. It is my duty, therefore, to consider this objection. It at first seemed to me that on constitutional principle the Imperial Parliament alone has authority to give effect to treaties within the empire. This view seems confirmed by Mr. Forsyth, (Cases and Opinions, p. 269.) I thought it followed that it was not within the powers of a Hong-Kong legislature, which consists wholly of nominees of the Crown, to give such sanction, even within its own limits, without such previous imperial legislative sanction of the treaty, and also that such an ordinance was not, reading the charter strictly, required for either "the peace," or the "order," or the "good government of this colony;" which I read as meaning "within, and only within, this colony." If this had been the only colony in which such an ordinance had been passed, this view of the case would have weighed very strongly with me. The research of the attorney general, however, shows that the ordinance No. 2 of 1850 is but one of a number of colonial extradition enactments, and although the terms of the charter of each colony cannot be ascertained, I cannot refuse my assent to this, that some of them, at least, are similar to the Hong-Kong charter, and I cannot take upon myself to decide that so very general a practice is contrary to law, especially considering the contention of the attorney general, that the fact of there being valid colonial enactments as to extradition is recognized, if not in terms, by the strongest implication, in 28 and 29 Vic., c. 63, sec. 18.

THIRD POINT.-Treaty of 1843 abrogated, therefore No. 2 of 1850 void.-Mr. Francis's third contention is that the ordnance No. 2 of 1850 has become inoperative by reason that one of the two treaties, that of Nanking, made in August, 1812, and that of the Bogue, made in October, 1813, that is to say, the latter treaty, was "abrogated" by the second article of the treaty of Tien-tsin, of 25th June, 1-58, while the first treaty, i, e., of Nanking, was "renewed." It is a fact of which I must take judicial notice, that there was after the treaty of the Bogue of 1813, war between Great Britain and China,

extending over a considerable time, and that such war of itself suspended these two treaties in force at the date of ordinance No. 2 of 1850, so that for a long time, and up to the treaty of Tien-tsin of 1858, there was in effect no treaty between Great Britain and China to which the ordinance No. 2 of 1850 did, or could, apply. It cannot be contended that during that period the ordinance No. 2 of 1850 was or could be operative, or that when the treaty of the Bogue of 1843 was afterward, by mutual cousent and by express compact, "abrogated" which confirmed its previous suspension by war, that it was ever "renewed," which means not a resuscitation, but a beginning de novo. I read somewhere in the parliamentary paper 393, (1868,) report on extradition, an opinion of one of the witnesses that each extradition enactment ceased with the treaties in reference to which it was enacted, but I cannot now find the reference to the passage. It is clear to me that such must have been the general opinion entertained as the proper view, for it is embodied in the extradition act of 1870, sec. 2., par. 2, that every order which is to be in place of an enactment to be made under that act shall not remain in force for any longer period than the arrangement with the foreign state. It is clearly now intended that on a treaty ceasing to be in force the provisions for rendition under it are to cease. It seems to me that there must always have been the like intendment in English law, and that this construction must be adopted as to the ordinance No. 2 of 1850, and that its operation ceased when the treaty of the Bogue was first suspended and then absolutely abrogated, and that it required a new ordinance to carry the entirely new arrangement of 1858 (which differed very much in detail from the Bogue treaty) into effect. I think I must here assume that the maxim cessante ratione cessat ipsa lex, Broomes L. M., 160, applies to this ordinance-this law. The argument of the attorney general assumes there was only one treaty in existence in 1850. I am of opinion that there were then in fact two treaties. The first of these treaties was signed in 1842, for China, by four commissioners, and the second treaty was signed a year afterward by one Chinese commissioner only. R. v. Wideman, on the French treaty, 3 Bar Rep., 719, (1866.) cited by the attorney general, differs in this, that there one party, France, gave a notice to England with a view to terminating an existing treaty at a defined time, and that by agreement that notice was actually withdrawn and was extended, and, beyond question, the identical treaty was in force, and therefore the act of Parliament continued to give effect to it. But Lord Chancellor Cranworth, in his judgment, appears to me by his line of argument to admit that if the ultimate time of notice for determining the treaty had expired, and if the treaty had terminated, the act to put that treaty in force in reference to any future treaty could not have been revived except by re-enactment. Lord Cranworth appears to have thought a new act of Parliament would have been required to work it out, but in the present case a reference to aud comparison of Article 9 of the Bogue treaty of 1843, and with Article 21 of the Tien-tsin treaty of 1858, shows a difference of detail, not merely abrogation and reenactment, even which alone Lord Cranworth appears to have thought enough to require a new act of Parliament. The attorney general suggested that No. 7 of 1854, par. 84, impliedly declares No. 2 of 1850 to be still in force, being contained in a new edition of the ordinances stamped with the seal of the colony. The words are, the copies so stamped shall in all courts and upon all occasions whatsoever be taken, deemed, and held to be the only lawful ordinances of Hong-Kong, as they existed at the date of the passing of the last ordinance inserted therein." I read these words as merely excluding all necessity of reference to ordinances not inserted, and as in no way a re-enactment of all the inserted ordinances, and it certainly does not affect to give the included ordinances a force which they had not immediately before the date of the enactment in 1864. I do not say that even this limited construction should be adopted, because it might possibly lead to very alarming consequences, to which it is unnecessary for me here further to allude. I cannot adopt this suggestion as a ground for upholding No. 2 of 1850. It is clear to me that the principles and provisions of the extradition act of last sessions are such that if the treaty of 1858 were now for the first time to be carried into effect by order in council under that act, the provisions would be very different from those of No. 2 of 1850.

FOURTH POINT.-No rendition, because crime charged is piracy and justiciable here.-Mr. Francis contends that the offense for which the prisoner stands committed is piracy on the high seas, and that such piracy is not within the treaty or the ordinance No. 2 of 1850, because it is justiciable here. The arguments by which Mr. Francis justifies this point appear to me to be convincing so far as they go. But the attorney general with great ingenuity subdivides this point into three, and Mr. Francis has answered these distinctions. I leave the arguments as I find them; it would lead me into far too great length to criticise them. I shall merely state that my conclusion is that the opinious of Sirs J. Harding, F. Thesiger, and Fitzroy Kelly were manifestly come to in reference to a case in which the Chinese charged with murders were designated "emigrants"free emigrants-not containing any suggested element of compulsion or original coercion of them, which distinguishes that case from the present, and further that it appears to me the decision in re Ternan, 9 Cox, C. C., 522, and 33 Law J. M., C. 201, and

the observations of the judges in that case, are inconsistent with that opinion. I must follow the decision in re Ternan, especially as the principle appears to have been approved of in America-see re J. C. Bennett, 11 L. Times, 483-and say in this case as was said in that, the crime, “if anything," is piracy, and being justiciable here if there be any crime, there is no ground for giving up the man. It is beyond doubt that political criminals are not to be given up, though within the letter of the treaty, neither is a Chinese subject to be given up if justiciable here, e. g., for piracy. Again, a culprit, to adopt the line of argument used by Shee, J., 33 L. J. M., C. 216, cannot be said to come within the terms of the treaty or of the ordinance in which the preamble confines the enactment to such as have "taken refuge" here; he being justiciable here, he cannot be said "to take refuge" in a place which is no "refuge" to him, and he is not, therefore, within the treaty of Tien-tsin, the only existing treaty, even if that treaty is provided for by No. 2 of 1850. I shall subsequently consider fully whether this man's act was a crime at all. In Naylor v. Palmer, 10 Ex. Rep., 338, S. C. 22, L. J. Ex., 329, the case of seizure by 360 coolies of the Victoria, on her voyage from Macao to Callao in Peru, and another case, Kleinworth v. Sheppard, 28 L. J. Q. B., 147, the case of seizure by 350 coolies of the Henriette Marie on a voyage from Macao to Havana, each case turning on the construction of marine insurance policies, the courts held between insurer and insured, that the acts of revolt and taking the ships by Chinese emigrants constituted piraey.

FIFTH POINT.-Nothing authorizing the magistrate to act.-This point is that there was nothing to give the magistrate jurisdiction. The attorney general contends that a requisition of rendition might be verbal merely. But section 1 of No. 2 of 1850 requires the information of the Chinese officers to be made or forwarded to the magistrate or court. This may possibly, but not probably, mean that the Chinese officer is at liberty without writing in person to prefer the information to the court acting magisterially in the matter, but I am of opinion that if he does not do that, it means that the information must be "forwarded," which is consistent only with the sending on of some material thing which here is a written information. I conclude that the information must be, if the officer does not attend in person, by a writing by himself, and that the identical writing must be forwarded in such way as that it should reach the court exercising jurisdiction in the case, which is the magistrate only. Now this condition was not complied with; it does not appear that any Chinese officer ever made any requisition at all, much less that any one such officer did so in writing, so that it could be forwarded. The colonial secretary, in his letter of February 3, states that the British consul at Canton did what he had no authority to do, what the Chinese officer alone had authority to do. Therefore the whole proceeding before Mr. May was unauthorized and of no force in law. The attorney general refers to a dispatch from the colonial office in 1865, which states that a British consul should either be the medium of or sanction all applications by the Chinese officials making it, but that dispatch does not substitute the British consul, still less the colonial secretary, for that Chinese official. The dispatch did not, and could not, alter any enactment. As a lawyer, I thought the letter of the colonial secretary of the 3d of February last, even if that were the proper document to initiate Mr. May's proceeding, too meager, as the only statement of the charge giving jurisdiction to the magistrate to proceed against this man, and as the foundation of a proceeding in which in the words of the treaty, "upon proof of guilt," (proof only in this colony,) this man was to be given up. I desired to obtain out of the colonial office for several purposes the proceedings on former renditions, but for reasons thought sufficient in that office the production was declined. I had thought that the form employed by the colonial secretary might have been justified by precedent. The colonial secretary might, not being a lawyer, have reasonably thought the terms of his letter sufficient, especially if it were according to precedent; and if I could have found in the precedents that such form had been usually adopted, it might possibly have justified its adoption in this case. I stated in court my inability to obtain these important precedents from the government office, whereupon Mr. Francis produced to me the parliamentary paper, House of Commons papers, (1865,) No. 120, relating to the rendition and execution of Mo-Wang. On perusing these papers I see at p. 7 that the precedent there was an information against Mo-Wang by the acting Chinese governor of the Two Kwang provinces, in form equal to, if not exceeding in length and particularity of times, place, crime, and circumstances, an indictment in an English court of justice, addressed to the acting governor of Hong-Kong, accompanied by a long letter of requisition addressed to the British consul at Canton, both being duly forwarded by the same British consul to the then acting governor here, whereon the police magistrate acted. This precedent confirms, so far as the only precedent I can obtain can do so, my conviction that the absence of such particularity by a Chinese official is fatal to Mr. May's jurisdiction in this case. This conclusion is confirmed by authority. In the case of Geêk, a German woman, whose rendition was claimed for murder, the honorable C. Cushing, the Attorney General for the United States, took a like objection to the requisition in that case, as insufficient for vagueness. Forsyth, C. & O., 354. Having in February last after argument reserved my decision, which

was delayed for the reasons I have stated, I, on the 22d and 28th of March instant, heard a summons issued at the instance of the prosecution, whereby the prisoner was required to show cause why the warrant of committal and return to the writ of habeas corpus should not be amended upon an affidavit filed by Mr. May, by inserting therein the words "forwarded to me" in the place of "received." "On the hearing of this summons, I said I thought it right that a statement made to me on a previous hearing by Mr. May should appear upon the proceedings, and on behalf of the prisoner Mr. Francis filed an affidavit, made in consequence of that suggestion, by Mr. May, to the effect that the paragraph containing the charge of murder, &c., at the commencement of the proceedings next after the statement of the names of the parties, to which I have before referred, was not written on the depositions until after the committal had been signed by him. I am of opinion that I ought not to entertain this application, because it comes too late, and moreover, because if it had been made earlier, it appears from Mr. May's affidavit of the 28th of March that there was nothing in the proceedings on which the commitment could be corrected. Moreover, I am of opinion that the letter of Mr. Robertson is not a due requisition by the Chinese authorities under the treaty, nor a complaint by a Chinese official duly "made or forwarded" within the ordinance No. 2 of 1850. However, the application to amend is before me, and the prosecution may have from another tribunal a decision differing from that to which I have come on this point. Mr. Francis objects that section 4 of No. 2 of 1850 rendered a warrant from the governor to the magistrate necessary, to give jurisdiction to the latter. I am of opinion that if due requisition had been forwarded to Mr. May, no such warrant would have been necessary. This fifth point being directed to the jurisdiction of the magistrate, I think I may more conveniently than under any other head here allude to a point of practice in the exercise of his jurisdiction which

occurs to me.

I. Evidence must be sufficient to justify a "true bill.”—A point arises out of an extract from a dispatch, No. 40, of 11th April, 1863, from his grace the then colonial secretary, which was handed to me by the attorney general, in which, on the assumption that there was some competent jurisdiction here to carry out the treaty of 1858, his grace says, in an extract from a dispatch, (I asked for, but I did not get the whole dispatch, as explanatory by the context of the extract.) "It is at the same time quite clear, on the letter of the Tien-tsin treaty, that it is only on proof of their guilt that Chinese criminals can be demanded;" and adding, "on this head I have to instruct you that as a general rule reasonable evidence ought to be accepted as sufficient," (none other is required on trial for murder in any British court,) "such for example as would lead a grand jury in this country to find a true bill, where the evidence is ex parte only." Now, I stop here because in this case the evidence was ex parte only. Adopting as our guide these instruction from the colonial office, Mr. May's finding is, that "there is cause to believe that the said defendant is a subject of China, and that he has committed the said crime against the laws of China." This finding does not even express what Mr. May actually believed, it is not equivalent to a "true bill" by a grand jury, which, according to the high authority of his grace, the then colonial secretary, it ought to be to bring this man within the rendition treaty. Now, here the man was charged with murder, and with murder only, in the only document before Mr. May, the letter of the colonial secretary of 3d of February, 1871, (if it can be said to have been before him,) it was not competent for Mr. May, the magistrate, assuming this letter to be a sufficient charge as to murder to inquire or to commit for larceny, as not being within the alleged claim of rendition confined to the charge of murder, the magistrate does not find that the man is guilty of murder, as the conviction in his mind as a grand juror, or that the charge of murder is true, which is the meaning of a "true bill." According to Chitty, (1 Criminal Law, 317,) "the grand jury ought not to find a true bill, unless they are convinced of the guilt of the defendant." For this he cites abundant authority and references to considerations of humanity, far more cogent, as applied to Chinese subjects resident in this colony, than to English-accused persons in England. Now, here Mr. May does not, and he could not upon the evidence before him, express a finding equivalent to a "true bill," he ought therefore to have discharged this prisoner. Moreover, a grand jury could find a "true bill" only for the crime charged, that is murder, and not for any less or other crime, (Ib., p. 325.)

II. Special reason for term in treaty of "upon proof of guilt."-I cannot but think that his grace, the then colonial secretary, if his consideration had been directed to the special reasons for the terms of the treaty, "upon proof of guilt," (an expression which, as it was admitted by the attorney general, is not to be found in any other treaty,) would have seen a conclusive reason why this country assumed, as to alleged Chinese fugitives from justice here, the right to ascertain the absolute guilt of such fugitives as fully as this country, in fact, assumed that China could not be trusted as a nation to do justice within her own territories. It was assumed by Great Britain that it was necessary for her to deny the common international right of exclusive sovereignty to the Emperor of China to judge foreigners, being English subjects within his own territory, and we so far superseded, for our protection, his

imperial rights, even in China. I hold that, not trusting China to administer justice, even in China, but creating a (British) imperium in (a Chinese) imperio in China, the intent and meaning of the clause "upon proof of guilt," a clause which the attorney general could not find in any other treaty, in the treaty of 1858, had emphatically this special meaning, that we were not to render up a Chinese subject, to whom on his sojourn here Great Britain owed protection, per Turner L. J., in Low vs. Routledge, L. R., (1 Chan. App., p. 42,) without our having ourselves judicially ascertained the guilt of the man accused, and demanded as fully as upon a trial by a jury, which tribanal convicts on evidence, which amounts to "on proof of guilt," and on no higher evidence than these words import the guilt so ascertained can only be of the identical crime charged, and of no other.

III. Was No. 2 of 1850 defective?-I must as shortly as possible allude to another difficulty, which occurs to me as to the jurisdiction of the magistrate in this case. The ninth article of the "abrogated" treaty of the Bogue of 1813, contained in two branches, two conditions on which a Chinese subject was to be given up. The second branch provided for rendition in case of a Chinese demanded "on proof of guilt." It would seem that the draughtsman of No. 2 of 1850 overlooked and made no provision for this clause, but that he gave his whole attention to and provided only for the most prominent, the first branch in the clause in the treaty, and he then adopted provisions for a form of procedure applicable only to treaties between European nations, such, for instance, as in 6 and 7 Vic., cap. 75 and 76, where provision is made for rendition on merely a prima facie case, and not "upon proof of guilt." Now the first branch of article nine of the abrogated treaty of 1843 not having been included in the substituted article in the treaty of Tien-tsin, the clause in the ordinance appears to be inapplicable to that new treaty, because it does not, after providing for the mere preliminary inquiry before the magistrate, provide a tribunal for the actual trial, either in the supreme court or by constituting the executive council a court for the purpose, where there may be "a proof of guilt" against the accused. I hope that the intended revision of our treaty with China as to rendition, and a consequent legislation will, not destroying due protection to Chinese in Hong-Kong, provide better for the objects contemplated, as we are led to hope from Mr. Holland's evidence in Par. Papers, H. of C., No. 393, (1868.)

SIXTH POINT. Is the offense as it is charged, if proved, an offense against the laws of China?-This point suggests that the offense charged is not an offense against the laws of China. The offense, if any charge, is murder. I am clearly of opinion that the crime, if any, charge being murder, the prisoner, if an Englishman, would by English statute law in force in this colony have been triable here, according to the case of R. vs. Azzopardi, 2 Moore C. C., 283, (see 1 Russell on Crimes, p. 730,) cited by the attorney general, and as I must for all purposes on this hearing (that the contrary not being proved) hold that the laws of China are the same as the laws here, I must hold that this objection would fail if the charge had been properly preferred, which I think it has not been, therefore Mr. Francis fails on this point.

Right to rendition is confined to crimes committed within the country demanding it.-Involved, however, in this point, is the fact proved beyond question that the crime "charged" was an act committed on the high seas, and also on board what is said to be a French ship. This opens another objection to this demand of rendition by China. I readily follow the very high English, the highest individual anthority in England, which lays down broadly that "the country demanding the criminal must be the country in which the crime is committed." 1 Pail. Inter. Law, p. 403. If this be good law, as I must hold it to be, and if the opinion given in Alsop's case, Forsyth C. & O., 368, and if the opinion of Cushing, attorney general, was properly adopted and acted on in the United States in David's case, ib. 334, then China cannot have in this case the right to demand rendition, because the crime, murder, for which rendition is said to be claimed, was committed at sea and not in China. Assume what is not, (but which ought to be proved, R. rs. Bjarnsen, 10 Cox, c. c. 74,) that this was a French ship, should a claim for the rendition of this man, by France, be acceded to? The same very high authority would say "No, the usual course is to refuse the request of both applicants." 1 Phil. I. L., p. 414.

SEVENTH POINT.― The depositions disclose no offense whatever.-Mr. Francis contends that the depositions disclose no offense whatever, assuming for this purpose that, on all his other points he has failed. He wisely left it for the attorney general to prove the affirmative, to show what offense if any this man had committed, that onus being on the accuser. The attorney general selected portions of the depositions, which if true clearly showed that the prisoner was active in the China cooly rising, and that he took part in the fight in which the captain and eight of the crew were killed. This fact is, as I assume, not denied by Mr. Francis, but he adopts very pertinently the wellknown rule of evidence in criminal cases that the hypothesis of delinquency must be consistent with all the facts proved. He suggests that the inference from the evidence, all tainted more or less by coercion on the Chinese witnesses (one manifestly with the sword suspended over his neck) by animosity in the French seamen, is that all these