PART LXVII.

PUNISHMENTS ABOLISHED.

962. Outlawry in criminal cases is abolished. (New).

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

964. 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.

By the common law, omnia quæ movent ad mortem sunt Deo danda. Hence the word "deodand," which signified a personal chattel which had been the immediate occasion. of the death of any reasonable creature, and which, in consequence, was forfeited to the Crown, to be applied to pious uses, and distributed in alms by the High Almoner. Whether the death were accidental or intended, whether the person whose chattel had caused the death participated in the act or not, was immaterial. The cart, the horse, the sword, or anything which had occasioned the death of a human being, or the value thereof, was forfeited, if the party died within a year and a day from the wound received. And for this object the coroner's jury had to inquire what instrument caused the death, and to establish the value of it. But the jury used to find a nominal value only, and confine the deodand to the very thing or part of the thing itself which caused the death, as, if a waggon, to one of the wheels only: R. v. Rolfe, Fost. 266; 1 Hawk. 74; 1 Blacks. 300. This forfeiture," which seemeth to have been originally founded rather in the superstition of an age of extreme ignorance than in the principles of sound reason and true policy," Fost. 266, was abolished in England on the 1st day of September, 1846, by the 9 & 10 V. c. 62.

ATTAINDER ABOLISHED. (New.)

965. From and after the passing of this Act no confession, verdict, inquest, conviction or judgment of or for any treason 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 & 5. R. S. C. c. 181, ss. 36-37.

By the common law, a man convicted of treason or felony stands attaint. By this attainder, he loses his civil rights and capacities, and becomes dead in law, civiliter mortuus: 1 Stephens' Comm. 141. He forfeits to the King all his lands and tenements, as well as his personal estate, his blood is corrupted, so that nothing can pass by inheritance to, from or through him: 4 Blacks. 380, 387. But the lands or tenements are not vested in the Crown during the life of the offender, without office or office-found which is a finding by a jury of a fact which entitles the Crown to the possession of such lands or tenements: Wharton's Law Lexicon.

PART LXVIII.

PARDONS.

966. 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 & 39.

COMMUTATION.

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

UNDERGOING SENTENCE.

968. 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 conse

quences 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.

See Leyman v. Latimer, 14 Cox, 51.

UNDERGOING PUNISHMENT A BAR TO ANOTHER PROSECUTION.

969. 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 such person, he shall be released from all further or other criminal proceedings for the same cause. R. S. C. c. 181, s. 42.

See s. 866, ante, and 24 & 25 V. c. 100, ss. 44, 45 (Imp.). This enactment applies only to summary convictions, and creates a bar to ulterior criminal, not to civil proceedings. See R. v. Miles, 17 Cox, 9, 24 Q. B. D. 423, Warb. Lead. Cas. 230, and cases there cited.

ROYAL PREROGATIVE.

970. Nothing in this part shall in any manner limit or affect Her Majesty's royal prerogative of mercy. R. S. C. c. 181, s. 43.

CONDITIONAL RELEASE OF FIRST OFFENDERS.

971. In any case in which a person is convicted before any court of any offence punishable with not more than two years' imprisonment, and no previous conviction is proved against him, if it appears to the court before which he is so convicted, that, regard being had to the youth, character, and antecedents of the offender, to the trivial nature of the offence, and to any extenuating circumstances under which the offence was committed, it is expedient that the offender be released on probation of good conduct, the court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a recognizance, with or without sureties, and during such period as the court directs, to appear and receive judgment when called upon, and in the meantime to keep the peace and be of good behaviour.

2. The court may, if it thinks fit, direct that the offender shall pay the costs of the prosecution, or some portion of the same, within such period and by such instalments as the court directs. 52 V. c. 44, s. 2.

972. The court, before directing the release of an offender under the next preceding section, shall be satisfied that the offender or his surety has a fixed place of abode or regular occupation in the county or place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions. 52 V. c. 44, s. 4.

CRIM. LAW-62

973. If a court having power to deal with such offender in respect of his original offence or any justice of the peace is satisfied by information on oath that the offender has failed to observe any of the conditions of his recognizance, such court or justice of the peace may issue a warrant for his apprehension.

2. An offender, when apprehended on any such warrant, shall, if not brought forthwith before the court having power to sentence him, be brought before the justice issuing such warrant or before some other justice in and for the same territorial division, and such justice shall either remand him by warrant until the time at which he was required by his recognizance to appear for judgment, or until the sitting of a court having power to deal with his original offence, or admit him to bail (with a sufficient surety) conditioned on his appearing for judgment.

3. The offender when so remanded may be committed to a prison, either for the county or place in or for which the justice remanding him acts, or for the county or place where he is bound to appear for judgment; and the warrant of remand shall order that he be brought before the court before which he was bound to appear for judgment, or to answer as to his conduct since his release. 52 V. c. 44, s. 3.

974. In the three next preceding sections the expression "court" means and includes any superior court of criminal jurisdiction, any "judge" or court within the meaning of Part LV., and any "magistrate" within the meaning of Part LVI. of this Act. 52 V. c. 44, s. 1.