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ever practicable, every whipping shall take place not less than ten days before the expiration of any term of imprisonment to which the offender is sentenced for the offence.

2. Whipping shall not be inflicted on any female. R.S.C., c. 181, s. 30.

PART XLV.

SURETIES FOR KEEPING THE PEACE, AND FINES.

958. Persons convicted may be fined and bound over to keep the peace. (As amended by 56 Vict., c. 32.) Every Court of criminal jurisdiction and every Magistrate under Part LV. before whom any person shall be convicted of an offence and shall not be sentenced to death, shall have power in addition to any sentence imposed upon such person, to require him forthwith to enter into his own recognizances, or to give security to keep the peace, and be of good hehaviour for any term not exceeding two years, and that such person in default shall be imprisoned for not more than one year after the expiry of his imprisonment under his sentence, or until such recognizances are sooner entered into or such security sooner given, and any person convicted of an indictable offence punishable with imprisonment for five years or less may be fined in addition to or in lieu of any punishment otherwise authorized; in which case the sentence may direct that in default of payment of his fine the person so convicted shall be imprisoned until such fine is paid or for a period not exceeding five years to commence at the end of the term of imprisonment awarded by the sentence or forthwith as the case may require. R.S.C., c. 181, s. 31.

959. Recognizance to keep the Peace.-(As Amended by 56 Vict.; c. 32.) Whenever any person is charged before a Justice with an offence triable under Part LVIII which, in the opinion of such Justice, is directly against the peace, and the Justice after hearing the case is satisfied of the guilt of the accused, and that the offence was committed under circumstances which render it probable that the person convicted will be again guilty of the same or some other offence against the peace unless he is bound over to good behaviour, such Justice may, in addition to, or in lieu of, any other sentence which may be imposed upon the accused, require him forthwith to enter into his own. recognizances, or to give security to keep the peace and be of good behaviour for any term not exceeding twelve months.

2. Upon complaint by or on behalf of any person that on account of threats made by some other person or on any other account, he, the complainant, is afraid that such other person will do him, his wife or child some personal injury, or will burn or set fire to his

property, the Justice before whom such complaint is made, may, if he is satisfied that the complainant has reasonable grounds for his fears, require such other person to enter into his own recognizances, or to give security, to keep the peace, and to be of good behaviour, for a term not exceeding twelve months.

3. The provisions of Part LVIII shall apply so far as the same are applicable to proceedings under this section, and the complainant and defendant and witnesses may be called and examined, and crossexamined, and the complainant and defendant shall be subject to costs as in the case of any other complaint.

4. If any person so required to enter into his own recognizances or give security as aforesaid, refuses or neglects so to do, the same or any other Justice may order him to be imprisoned for any term not exceeding twelve months.

5. The forms WWW, XXX and YYY, with such variations and additions as the circumstances may require, may be used in proceedings under this section. (1)

960. Proceedings for not finding sureties to keep the peace.— Whenever any person who has been required to enter into a recognizance with sureties to keep the peace and be of good behaviour has, on account of his default therein, remained imprisoned for two weeks, the Sheriff, Gaoler or Warden shall give notice, in writing, of the facts to a Judge of a Superior Court, or to a Judge of the County Court of the county or district in which such gaol or prison is situate, and in the cities of Montreal and Quebec to a Judge of the Sessions of the Peace for the district, or, in the North-west Territories to a Stipendiary Magistrate,-and such Judge or Magistrate may order the discharge of such person, thereupon or at a subsequent time, upon notice to the complainant or otherwise, or may make such other order as he sees fit, respecting the number of sureties, the sum in which they are to be bound and the length of time for which such person may be bound. R.S.C., c. 181, s. 32; 51 V., c. 47, s. 2.

PART LXVI.

DISABILITIES.

961. Consequence of conviction of public official.-If any person hereafter convicted of treason or any indictable offence for which he is sentenced to death, or imprisonment for a term exceeding five years, holds at the time of such conviction any office under the Crown or other public employment, or is entitled to any pension or superannuation allowance payable by the public, or out of any public

(1) For forms WWW, XXX and YYY, see pp. 773, and 774, post.

fund, such office or employment shall forthwith become vacant, and such pension or superannuation allowance or emolument shall forthwith determine and cease to be payable, unless such person receives a free pardon from Her Majesty, within two months after such conviction, or before the filling up of such office or employment, if given at a later period; and such person shall become, and (until he suffers the punishment to which he is sentenced, or such other punishment as by competent authority is substituted for the same, or receives a free pardon from Her Majesty) shall continue thenceforth incapable of holding any office under the Crown, or other public employment, or of being elected, or sitting, or voting, as a member of either House of Parliament, or of exercising any right of suffrage or other parliamentary or municipal franchise. 33-34 V. (U. K.) c. 23, s. 2.

2. The setting aside of a conviction by competent authority shall remove the disability herein imposed.

PART LXVII.

PUNISHMENTS ABOLISHED.

962. Outlawry.-Outlawry in criminal cases is abolished.

See comments on this subject at p. 610 ante, and also the remarks,—there set out, of the Royal Commissioners. And see also the Extradition Act at the end of Extra Appendix, post.

963. Solitary Confinement.—Pillory. The punishment of solitary confinement or of the pillory shall not be awarded by any Court. R.S.C., c. 181, s. 34.

964. Deodand.-There shall be no forfeiture of any chattels, which have moved to or caused the death of any human being, in respect of such death. R.S.C., c. 181, s. 35.

Under the old common law of England a deodand was any personal chattel, -such as a cart, a horse, a wheel, a sword, etc.,-which was the immediate cause of the death of any human being; and all the owner's property in the unhappy instrument," as Hawkins terms it, was forfeited to the Crown to be applied to pious uses by the High Almoner. (1) By the laws of the ancient Saxons, "If one in hewing a tree happened to kill a man, the relations were entitled to the tree, provided they took it within 30 days. This was in the nature and might perhaps be the origin of deodanda.” (2) A deodand was not a forfeiture for felony or treason; but was allowed only where the killing was by misadventure, or accidental, not felonious. (3)

965. Attainder. From and after the passing of this Act no confession verdict, inquest, conviction or judgment of or for any treason

(1) 1 Hawk, P. C. ss. 3, 6, p. 74: 1 Bl. Com. 300.

(2) 1 Reeves Hist. Eng. Law, 3 Ed. 17.

(3) R. v. Polwart, 1 Gale & D. 211; 1 Q. B. 818.

or indictable offence or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat; Provided that nothing in this section shall affect any fine or penalty imposed on any person by virtue of his sentence, or any forfeiture in relation to which special provision is made by any Act of the Parliament of Canada. 33-34 V. (U.K.) c. 23, ss. 1, 6 and 5.

In the primary sense of the word, ATTAINDER was the status, or, according to the old law, the taint, or stain, or corruption of blood of one condemned, by the judgment of the Court, for treason or felony; in the secondary sense, it was the judgment itself. The judgment must have been final, and rendered either after conviction or outlawry: and then the offender was said to be attaint or attainted (1)

The consequences of attainder were by the ancient common law wide and sweeping. All the property real and personal of one attainted was forfeited, his blood was corrupted, so that nothing could pass by inheritance to. from, or through him; he could not sue in a Court of Justice; and his wife, children and collateral relations suffered with him, so that the tree, falling, came down with all its branches (2)

LXVIII.

PARDONS.

966. Pardon by the Crown.-The Crown may extend the Royal Mercy to any person sentenced to imprisonment by virtue of any Statute, although such person is imprisoned for non-payment of money to some person other than the Crown.

2. Whenever the Crown is pleased to extend the Royal Mercy to any offender convicted of an indictable offence punishable with death or otherwise, and grants to such offender either a free or a conditional pardon, by warrant under the Royal sign manual, countersigned by one of the principal Secretaries of State, or by warrant under the hand and seal-at-arms of the Governor-General, the discharge of such offender out of custody, in case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon of such offender, under the great seal, as to the offence for which such pardon has been granted; but no free pardon, nor any discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof, in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any offence other than that for which the pardon was granted. R.S.C., c. 181, ss. 38 and 39.

967. Commutation of sentence.-The Crown may commute the sentence of death passed upon any person convicted of a capital

(1) R. v. Earbery, Fort. 37; 4 Bl Com. 380, 381; 2 Inst. 212.

(2) Co. Lit. 392, 130a; Coombes v. Queen's Proctor, 16 Jur. 820; 24 Eng. L. & Eq. 598.

offence to imprisonment in the penitentiary for life, or for any term of years not less than two years, or to imprisonment in any gaol or other place of confinement for any period less than two years, with or without hard labour; and an instrument under the hand and sealat-arms of the Governor-General, declaring such commutation of sentence, or a letter or other instrument under the hand of the Secretary of State or of the Under Secretary of State, shall be sufficient authority to any Judge or Justice, having jurisdiction in such case, or to any Sheriff or Officer to whom such letter or instrument is addressed, to give effect to such commutation, and to do all such things and to make such orders, and to give such directions, as are requisite for the change of custody of such convict, and for his conduct to and delivery at such gaol or place of confinement or penitentiary, and his detention therein, according to the terms on which his sentence has been commuted. R.S.C., c. 181, s. 40.

As to the powers of the Lieutenant Governors of the provinces to commute and remit sentences, etc. for offences against provincial laws, the question is now before the Supreme Court of Canada, in a case involving the legality or illegality of an Ontario statute,-51 Vic., c 5,-which declares that, in matters within the jurisdiction of the legislature of Ontario, all powers, etc., which were vested in or exerciseable by the Governors or Lieutenant-Governors of the several provinces before Confederation, shall he vested in and exerciseable by the LieutenantGovernor of the province of Ontario. In the Chancery Division of the High Court of Justice of Ontario, and in the Court of Appeal of that province it has been declared that, that Act is valid, and that the power of commuting and remitting sentences for offences against the laws of the province or offences over which the legislative authority of the province extends, which power is, by the terms of the Act, included in the powers above mentioned, does not affect offences against the criminal laws which are the subject of Dominion legislation, but refers only to offences within the Jurisdiction of the provincial legislature. (I)

968. Undergoing sentence equivalent to a pardon.—When any offender has been convicted of an offence not punishable with death, and has endured the punishment to which such offender was adjudged, or if such offence is punishable with death and the sentence has been commuted, then if such offender has endured the punishment to which his sentence was commuted, the punishment so endured shall, as to the offence whereof the offender was so convicted, have the like effect and consequences as a pardon under the great seal; but nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any other offence. R.S.C., c. 181, s. 41.

969. Satisfying Judgment.—When any person convicted of any offence has paid the sum adjudged to be paid, together with costs, if any, under such conviction or has received a remission thereof from the Crown, or has suffered the imprisonment awarded for non-payment thereof, or the imprisonment awarded in the first instance, or has been discharged from his conviction by the Justice of the Peace in any case in which such Justice of the Peace may discharge

(1) Atty. Gen. for Can. v. Atty Gen. of Ont., 20 Ont. Rep. 222: 19 Ontario App. Cas. 31.

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