PERSONS CONVICTED ON CONFESSION, ETC.

Sec. 82.-Any person indicted for any offence made capital by any statute, shall be liable to the same punishment, whether he be convicted by verdict or confession, and this, as well in the case of accessories as of principals.

This is an ex abundanti cautela enactment, and not calling for any observations.

SECOND CONVICTION FOR FELONY.

Sec. 83.-If any person be convicted of felony not punishable with death, committed after a previous conviction for felony, such person shall, on subsequent conviction, be imprisoned in the penitentiary for life or for any term not less than two years, or be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, unless some other punishment be directed by any statute for the particular offence, in which case the offender shall be liable to the punishment thereby awarded, and not to any other.

This clause is taken from the 7-8 Geo. IV. ch. 28, sec. 11 of the Imperial Statutes. The Imperial Act provides at length for the procedure in such cases, but this is provided for, in Canada, by section 26 (see ante) of the Procedure Act of 1869, under which will be found observations which are entirely applicable to the present clause.

ESCAPE AND FELONIOUS RESCUE.

Sec. 84. Whosoever escapes from or rescues, or aids in rescuing any other person from lawful custody, or makes or causes any breach of prison, if such offence does not amount to felony, is guilty of misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement for any period less than two years; and whosoever is convicted of a felonious rescue, shall in any case where no special punishment is provided by any statute, be liable to be imprisoned in the penitentiary for any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.

Sec. 85.-Whosoever knowingly and unlawfully, under colour of any pretended authority, directs or procures the discharge of any prisoner not entitled to be so discharged, is guilty of misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement for any period less than two years, and the person so discharged shall be held to have escaped.

By the common law, and the 25 Edw. III. ch. 39, if a Justice of the Peace bails a person not bailable by law, he is guilty of a negligent escape, and finable. The first part of section 85 of the Procedure Act is then but a confirmatory enactment of this law, with a new and definite punishment. But the last part of it enacting that a person bailed illegally is guilty of a

negligent escape was never law before, and seems an extraordinary enactment. Of course, if a prisoner finds the doors of his prison opened, he is not allowed to take advantage of it and run away; if he does so, he is guilty of an escape, as will be seen hereafter; but if a Justice of the Peace admits him to bail, surely, if he has obtained the Justice's order without fraud or artifice of any kind, he ought not to be punished for not going voluntarily, without restraint, to the gaoler, and saying to him: "Here I am; you must put me in prison that Justice of the Peace who has let me go free did not know what he was doing." And, in fact, the gaoler would rightly refuse, in this case, to receive him without a warrant, of which the prisoner would certainly not be the bearer. Such an enactment ought to be struck off our statute book.

The above section 84 provides the punishment for escapes and felonious rescues. Though it says what the punishment shall be in escapes as an offence by a prisoner, or prison-breakings, when such are misdemeanors, it does not provide for the punishment when such are felonies, or for escape as an offence by an officer, and is defective in that respect. Felonious rescues only are provided for in the last part of the clause, and escapes as an offence by officers, whether felonious or not, and prison-breakings, when felonious, remain punishable at common law, whilst escapes, as against prisoners, and prison-breakings that are misdemeanors are now, by the said clause, punishable by imprisonment for any period less than two years.

Section 4 of the C. S. U. C., ch. 97, which provided for the punishment of persons guilty of rescuing or attempting to rescue prisoners convicted of murder or committed for murder, is repealed, by the General Repeal Act of 1869. It was taken from the Imperial Statute, 25 Geo. II. ch. 37, sec. 9, which is also repealed in England. Sec. 5 of ch. 148, of the Revised Statutes of New Brunswick, and sec. 5 of ch. 163 of the Revised Statutes of Nova Scotia are also repealed by the General Repeal Act. So that the criminal offences of escape, prison-breaking and rescue fall entirely under the common law and the Imperial Statutes in force in the Dominion, and under sections 84 and 85 of the Procedure Act of 1869, as to the punishment thereof, with the exception of such of these offences as are specially provided for in the “Act repecting Penitentiaries" of 1875, 38 Vic. ch. 44.

It may then be useful to see 1st, what is an escape; 2ndly, when is an escape a felony, and when a misdemeanor; 3rdly, what is a prison-breaking, and when is it a felony or a misdemeanor; 4thly, what is a rescue and when is it a felony or a misdemeanor.

What is an escape.-An escape is where one who is arrested gains his liberty without force before he is delivered by due course of law. The general principle of the law on the subject is that as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it

by any artifice, and elude the vigilance of their keepers, are guilty of an offence of the nature of a misdemeanor. It is also criminal in a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such purpose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence of the gaoler, or if he escape in any other manner, without using any kind of force or violence, he will be guilty of a misdemeanor: Reg. vs. Nugent, 11 Cox, 64. The officer by whose default a prisoner gains his liberty before he is legally discharged is also guilty of the offence of escape, divided in law, then, in two offences, a voluntary escape or a negligent escape. To constitute an escape, there must have been an actual arrest in a criminal matter.

A voluntary escape is where an officer, having the custody of a prisoner, knowingly and intentionally gives him his liberty, or by connivance suffers him to go free, either to save him from his trial or punishment, or to allow him a temporary liberty, on his promising to return, and, in fact, so returning. Though, some of the books go to say that, in this last case, the offence would amount to a negligent escape only.

A negligent escape is where the party arrested or imprisoned escapes against the will of him that arrests or has him in charge, and is not freshly pursued and taken again before he has been lost sight of. And in this case, the law presumes negligence in the officer, till evident proof on his part to the contrary. The Sheriff is as much liable to answer for an escape suffered by his officers, as if he had actually suffered