A.—6.

The Bill prepared in England in 1876, copies of which were sent to this colony, would of course have covered such a case as that of Gleich, and the attention of the Home Government should, I think, be specially called to the need there is for Imperial legislation on a subject of such great importance to the colonies in the Australasian group, including Fiji. Crown Law Office, Wellington, 19th February, 1880. W. S. Eeid.

EEG-INA v. G LETCH. (New Zealand Times, 31st May, 1879.) Chief Justice Prendergast said : In this case the members of the Court differ in opinion, and the judgment which lam about to deliver is that of myself alone. I think the Act of the New Zealand Parliament, "The Foreign Offenders Act, 1863," was, and is, beyond the power of the Legislature of the colony so far as it professes to empower the Governor to give authority to others to take a prisoner out of the colony, The learned counsel for the prisoner argued that the Act was generally repugnant to the Imperial Statutes recited in its preamble. Up">n this point, if it were necessary to give an opinion, I should probably decide that the Act is not repugnant so far as its provisions apply to misdemeanours. But the sole object which the Legislature had in view was to give the Governor authority to remove from this colony prisoners who have committed offences in another colony to that in which the offence was committed. I find no authority or power for the Legislature of this colony so to legislate. The power given by the Constitution Act is to provide for the peace and good government of the colony—that is, within the boundaries of the colony. The true test is, whether the production of the Governor's warrant would be an answer in England to an action brought in England for false imprisonment, or assault, by the prisoner against the constable who had him in charge while on the high seas or within any other territory than this while in course of conveyance. And I think it clear that it would not be an answer. I repeat that the sole object of the Legislature when it passed the Foreign Offenders Act was to provide for the deportation of offenders ; all other provisions of the Act are ancillary to that object. In treaties or Statutes relating to extradition, it is provided that criminals shall not be deported till a preliminary inquiry has been held, and our Act in that respect follows the precedent of Imperial Statutes and treaties. I may say that while considering my judgment I have looked over the correspondence which took place when the Foreign Offenders Act was sent to England, and I find that the Attorney-General then directed the attention of the Home Government to the possibility that the Act might be held to be ultra vires. In forming my opinion I am much influenced by the fact that the Imperial Parliament, in passing the Act 6 and 7 Viet.,, and the amending Act mentioned in the preamble to our Colonial Act, has actually legislated on the subject for all the colonies, and by the further fact that ever since the passing of ihe Foreign Offenders Act doubts have been expressed as to its validity; doubts which were mentioned by my brother Johnston in his book "The New Zealand Justice of the Peace," first published many years ago. I therefore think the warrant is bad, and the rule must be made absolute. Mr. Justice Johnston said: I regret that, when for the first time I am called upon to express an opinion which may seem to derogate, from the powers of the Legislature of this colony, I should not have had more time and better opportunities for a careful consideration of the questions involved; but, this being a matter relating to the liberty of the subject, the prisoner has a right to ask for a speedy judgment. Although I am not able to express so clear and decided an opinion as I should wish, I still feel bound to concur in the judgment which has been delivered by the Chief Justice. On many former occasions, although not in open Court, this question has been mooted, and it was anticipated that long before this the Imperial Parliament, which undoubtedly has the power, would have legislated upon the subject. I think it wellto allude to the principles of the law of extradition for the purpose of arriving at the true status of a person in custody on the high seas. By the comity of nations there has gradually grown up what may be colloquially called a give-and-take arrangement, such an arrangement as must be made to enable the social intercourse of civilized nations to be carried on ; and it is now settled that, while no country pretends to exercise any jurisdiction with respect to offences committed in another country, it is for the common benefit of mankind that treaties should be made enabling a nation, whose laws have been infringed, to vindicate them in a manner which would be impossible if escape gave immunity. For this purpose extradition treaties have been made between different nations, and municipal laws passed by the Legislatures of the contracting countries to carry the treaties into force. Therefore a person extradited by a law passed in pursuance of a treaty cannot say, when on the high seas, that he has reason to complain of the custody in which he finds himself. But such a reasoning does not wholty apply to the case of two or more colonies of the same power. There can be no doubt that the Imperial Parliament may, without treaty, enable all its colonies to have the same powers, inter se, aa exist between foreign Powers by virtue of extradition treaties. Moreover, the Imperial Parliament may empower the Colonial Legislatures to do that which otherwise they could not do —that is, to affect the liberty of British subjects beyond their local jurisdiction. But no such law has been passed. The only foundation upon which such a proceeding as we have now to consider can be based is "The Foreign Offenders Act, 1863." Had that Act enacted only that persons found in this colony, who were charged with offences in another colony, should be detained in custody here, such an enactment, however opposed to the constitutional principles as affecting personal liberty, would probably have been within the powers of the Legislature. But the object of the Act is to deport such persons from this colony, and in this is necessarily implied a transit over the high seas, over which only the special jurisdiction of the Admiralty Court, or the Courts of a colony as specially empowered by Imperial legislation, can extend. If, then, the Colonial Legislature attempts to make legal a detention upon the high seas, that seems to me to be going beyond its powers: it is not a law for the peace, order, and good government of the colony —it is a law which deprives a man of his liberty in a place over which the local Legislature has no local jurisdiction, and such a law our Colonial Parliament is not, I think, entitled to pass within the powers granted to it by the Imperial Legislature. I express this opinion not without hesitation, though ever since the passing of this Act I have felt grave doubts respecting its validity.

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