THE RIEL-SCOTT AFFAIR.

QUESTION. Had the Dominion Government the power, or has it now the power, to take any legal steps to secure the punishment of Riel for the murder of Scott?

It is unnecessary to observe that except under the provisions. of treaties or for certain offences on the high seas-Canada could have no power to arrest or punish for crimes committed beyond her territorial limits: but it is alleged that under certain Imperial statutes passed for this particular purpose, jurisdiction was given to her, with reference to offences committed in the North West Territories beyond her limits—and that at the time of Scott's murder she had that power. It will be best, therefore,

to see

1st. What that power was, to whom given, and where to be exercised.

2nd. Was such power transferred by the British North America Act of 1867, to the Dominion?

3rd. Could it have been executed before the occupation of and establishment of the Government of Manitoba ?

4th. Since such occupation and establishment, constitutionally could it have been exercised in Manitoba ?

5th. Under the Extradition Treaty with the United States, could or can Riel be demanded by the Dominion Government?

1st. In August, 1803, an Act was passed by the Imperial Parliament, known as 43 Geo. 3, c. 138, "for extending the jurisdiction of the Courts of Justice in the Provinces of Lower and Upper Canada, to the trial and punishment of persons guilty of crimes and offences within certain parts of North America adjoining to the said Provinces '

It recites that "whereas crimes and offences have been committed in the Indian Territories and other parts of America not within the limits of the Provinces of Lower and Upper Canada, or either of them, or of the Jurisdiction of any of the Courts established in these Provinces, or within the limits of any Civil Government of the United States of America-and are, therefore, not cognizable by any jurisdiction whatever-and by reason

thereof great crimes and offences have gone, and may hereafter go unpunished, and greatly increase." For remedy thereof it is enacted "That from and after the passing of that Act, all offences committed within any of the Indian Territories or part of America not within the limits of Upper and Lower Canada, or any Civil Government of the United States of America-shall be— and be deemed to be offences of the same nature, and shall be tried in the same manner and subject to the same punishment as if the same had been committed within the Provinces of Lower and Upper Canada."

The 2nd section then authorises the persons administering the Government of Lower Canada by commission, to empower any person or persons, wherever resident or being at the time, to act as Civil Magistrates and J. P's. for any of the Indian Territories or parts of America not within the limits of either of the said Provinces, or any Civil Government of the United States, as well as within the limits of either of the said Provinces, either upon information given within the said Provinces or out of them in any part of the Indian Territories or parts of America as aforesaid, for the purpose only of hearing crimes and offences-and committing any person or persons guilty of any crime or offence to safe custody in order to his being conveyed to Lower Canada to be dealt with according to law. And it is further provided that it shall be lawful for any person to apprehend such criminal and take him before the Commissioners, or to safely convey him to Lower Canada, there to be dealt with according to law.

The 3rd section provides that the party shall be tried in Lower Canada, as if the crime had been committed within the limits of that Province (or if the person administering the Government there thinks that in furtherance of justice, the party could be. better tried in Upper Canada, he is authorised under the great seal of the Province of Lower Canada, to declare the same, and the party shall be tried in Upper Canada.) And similar power is given to issue subpoenas and other processes for enforcing attendance of witnesses in such Indian territories, as if the offence had been within the limits of the jurisdiction of the courts of Lower or Upper Canada.

The 4th and 5th sections have reference to foreigners, and do not bear upon this point.

In July, 1821, another Act was passed by the Imperial Parliament known as 1st and 2nd Geo. 4th, c. 66, "for regulating

the Fur trade and establishing a criminal and civil jurisdiction within certain parts of America."

The first four sections have no bearing. The fifth section extends the 43rd Geo. 3rd, c. 138, (just quoted) in its full extent. to the Hudson's Bay Territories.

The 6th and 7th sections give the same jurisdiction, in civil matters, in the Indian territories to the Courts of Upper Canada, that the Courts of Lower or Upper Canada had within the limits of their respective Provinces.

The 8th section authorises the acting Governor of Lower Canada for the time being, by Commission, to authorise the persons who might be appointed J. P's. under that Act (1 and 2, Geo. 4, c. 66), in the Indian territories, etc., or who might be specially named in such Commission, to act as Commissioners to enforce in the Indian territories the orders of the Courts of Upper Canada, and in case of disobedience or resistance to such orders to commit the party disobeying, &c., to custody to be transmitted to Upper Canada, &c., there to be dealt with according to law.

The 9th section is in support of the 8th.

The 10th authorises the Queen to issue commissions to persons to act as J. P.'s in the Territories; and the Courts of Upper Canada may direct commissions to such J. P.'s so appointed to take evidence or try issues, or hold Courts, with like power and authority as are vested in the Courts of Upper Canada.

Down to this point the statute has reference to civil proceedings.

The 11th and 12th sections have reference to criminal matters. It is better to quote them in full:

"11th. And be it further enacted that it shall be lawful for "His Majesty, notwithstanding anything contained in this Act "or in any Charter granted to the said Governor and Company "of Merchant Adventurers of England trading to Hudson's Bay, from time to time, by any Commission under the Great "Seal, to authorise and empower any such persons so appointed "Justices of the Peace, as aforesaid, to sit and hold Courts of "Record for the trial of criminal offences and misdemeanors and "also of civil cases, and it shall be lawful for His Majesty to "order, direct and authorise the appointment of proper officers "to act in aid of such Courts and Justices within the jurisdiction assigned to such Courts and Justices in any such Commission,

anything in this Act or in any Charter of the Governor and "Company of Merchant Adventurers of England trading to "Hudson's Bay to the contrary notwithstanding."

"Section 12-Provided always, and be it further enacted, that "such Courts shall be constituted as to the number of Justices "to preside therein, and as to such places within said Territories "of the said Company, or any Indian territories, or other parts "of North America as aforesaid, and the times and manner of "holding the same, as His Majesty shall from time to time order "and direct; but shall not try any offender upon any charge or "indictment for any felony made the subject of capital punish"ment, or for any offence or passing sentence affecting the life of any offender, or adjudge, or cause any offender to suffer capital punishment or transportation, or take cognizance of or try any "civil action or suit, in which the cause of such suit or action "shall exceed in value the amount or sum of £200, and in every "case of any offence subjecting the person committing the same "to capital punishment or transportation the Court or any Judge "of any such Court, or any Justice or Justices of the Peace, "before whom any such offender shall be brought, shall commit "such offender to safe custody, and cause such offender to be "sent into such custody for trial in the Court of the Province of "Upper Canada."

It will thus be seen that under these two Acts, the power given was to arrest the murderer to be sent to Canada for trial. Under the first Act through the instrumentality of Justices of the Peace specially appointed by the Government of Lower Canada, and further under the 2nd Act through the instrumentality of local officers appointed by the Imperial Government. That the jurisdiction created is of a limited and exceptional character, and the legislation being of a criminal nature must be construed strictly. That the proceedings must be initiated by information before such J. P.'s or officers in the usual way, and to be in the same manner in every respect as if the offence had been committed within the jurisdiction of the Court of Lower or Upper Canada trying the

same.

The next point is to see whether this power was by the British North America Act of 1867, transferred to the Dominion.

It will be borne in mind that the powers created by the two. foregoing Acts were extra territorial powers given to Lower and Upper Canada separately to be exercised in relation to the Indian

Territories, the Hudson's Bay Territories, and certain parts of North America "adjoining to the said Provinces," a right not incidental to or necessary for their Government, or vesting in the said Provinces any interests in those Territories, but to be exercised solely for the benefit of those Territories themselves.

It becomes important now to see how this matter was disposed of by the Act of Union of 1841, and whether in the subsequent Act of 1867 any difference is made. The 3 and 4 Vic. c. 36, passed by the Imperial Parliament in 1840, intituled "An Act to reunite the Provinces of Upper and Lower Canada, and for the Government of Canada" declares by section 45 that all powers, authorities and functions which by the said Act (refering to George 3rd, c. 31, A.D. 1791,) or by any other Act of Parliament, or by any Act of the Legislature of the Provinces of Upper and Lower Canada respectively, are vested in, or are authorized, or required to be exercised by the respective Governors of the said Provinces shall, in so far as the

same are not repugnant to or inconsistent with the provisions of this Act, be exercised by the Government of the Province of Canada."

Section 46. "That all laws, statutes and provisions which at the time of the union of the Provinces of Upper and Lower Canada shall be in force within the said Provinces or either of them, shall remain and continue to be of the same force, authority and effect, &c., &c."

Section 47. "That all the Courts of Civil and Criminal jurisdiction in either of the Provinces of Upper and Lower Canada at the time of the union of the said Provinces and all legal commissions, powers and authorities, &c., shall continue to subsist, &c."

Now, in these sections there are no words of qualification as to the subject matter relative to which those powers are to be exercised. They were left as broad and as comprehensive as before the Act was passed, in no way curtailed or restricted, only the powers to be exercised were to be by United Canada instead of Upper and Lower Canada separately. But how is it when the same subject is referred to in the British North America Act of 1867 and the corresponding sections are examined. By the 12th Section of the British North America Act of 1867-under which Act alone the Dominion Government exists-the powers and authorities, and functions, which under any Imperial Acts or any VOL. VI.

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No. 1.