was carried in the progress of his extradition, to test the authority by which he was held; and we can see in the mere fact that the papers under which he was taken into custody in California were prepared and ready for him on his arrival from Peru, no sufficient reason for an abatement of the indictment against him in Cook county, or why he should be discharged from custody without a trial.

"But the main proposition insisted on, now, is that by virtue of the treaty of extradition with Peru the defendant acquired by his residence in that country a right of asylum, a right to be free from molestation for the crime committed in Illinois, a positive right in him that he should only be forcibly removed from Peru to the State of Illinois in accordance with the provisions of the treaty, and that this right is one which he can assert in the courts of the United States in all cases, whether the removal took place under proceedings sanctioned by the treaty, or under proceedings which were in total disregard of that treaty, amounting to an unlawful and unauthorised kidnapping.

"This view is presented in various forms and repeated in various shapes in the argument of Counsel. The fact that this question was raised in the Supreme Court of Illinois may be said to confer jurisdiction on this court, because, in making this claim, the defendant asserted a right under a treaty of the United States, and, whether the assertion was well founded or not, this court has jurisdiction to decide it; and we proceed to inquire into it.

"There is no language in this treaty, or in any other extradition treaty made by this country, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. If this could be done, what becomes of his right of asylum?

"Nor can it be doubted that the government of Peru could of its own accord, without any demand from the United States, have surrendered Ker to an agent of the State of Illinois, and that such surrender would have been valid within the dominions of Peru. It is idle, therefore, to claim that, either by express terms or by implication, there is given to a fugitive from the justice of one of these countries any right to remain and reside in the other; and if the right of asylum means anything, it must mean this. The right of the government of Peru voluntarily to give a party in Ker's condition an asylum in that country, is quite a different thing from the right in him to demand and insist upon security in such an asylum. The treaty so far as it regulates the right of asylum at all, is intended to limit this right in the case of one proved to be a criminal fleeing from justice, so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country in which the crime was committed. And to this extent alone, the treaty regulates or imposes a restriction upon the right of the government of the country of the asylum to protect the criminal from removal therefrom.

"

In the case before us the plea shews that although Julian went to Peru with the necessary papers to procure the extradition of Ker under the treaty, those papers remained in his pocket and were never brought to light in Peru; that no steps were taken under them, and that Julian, in seizing upon the person of Ker and carrying him out of the territory of Peru into the United States, did not act nor profess to act, under the treaty. In fact, that treaty was not called into operation, was not relied upon, was not made the pretext for arrest, and the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretence of authority under the treaty or from the government of the United States.

"In the case of United States v. Rauscher, (1) just decided, and considered with this, the effect of extradition proceedings under a treaty was very fully considered, and it was there held that when a party was duly surrendered by proper proceedings, under the treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and

(1) United States v. Rauscher, 11 Cr. L. Mag. 178.

the true construction of the treaty gave him. One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was that he should be tried for no other offence than the one for which he was delivered under the extradition proceedings. If Ker had been brought to this country by proceedings under the treaty of 1870-1874 with Peru, it seems probable, from the statement of the case in the record, that he might have successfully pleaded that he was extradited for larceny, and convicted, by the verdict of a jury, of embezzlement; for the statement in the plea is that the demand made by the president of the United States, if it had been put in operation, was for an extradition for larceny, although some forms of embezzlement are mentioned in the treaty as subjects of extradition. But it is quite a different case when the plaintiff in error comes to this country in the manner in which he was brought here, clothed with no rights which a proceeding under the treaty could have given him, and no duty which this country owes to Peru or to him under the treaty.

"We think it very clear, therefore, that in invoking the jurisdiction of this court upon the ground that the prisoner was denied a right conferred upon him by a treaty of the United States, he has failed to establish the existence of any such right.

"The question of how far his forcible seizure in another country, and transfer by violence, force, or fraud, to this country. could be made available to resist trial in the state court, for the offence now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the constitution, or laws, or treaties, of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence. and presents no valid objection to his trial in such court. (1)

"However this may be, the decision of that question is as much within the province of the state court, as a question of common law, or of the law of nations, of which that court is bound to take notice, as it is of the courts of the United States. And though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.

"It must be remembered that this view of the subject does not leave the prisoner or the government of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides, for the extradition of persons charged with kidnapping, and on demand from Peru, Julian, the party who is guilty of it, could be surrendered and tried in its courts for this violation of its laws The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment, and the facts set out in the plea would without doubt sustain the action. Whether he could recover a sum sufficient to justify the action would probably depend upon moral aspects of the case, which we cannot here consider.

"We must, therefore, hold that so far as any question in which this court can revise the judgment of the Supreme Court of the State of Illinois is presented to us, the judgment must be affirmed." (2)

265. Common Assaults.-Every one who commits a common assault is guilty of an indictable offence and liable, if convicted upon an indictment, to one year's imprisonment, or to a fine not exceeding one hundred dollars, and on summary conviction to a fine not exceeding twenty dollars and costs, or to two months' imprisonment with or without hard labour. R.S.C., c. 162, s. 36.

(1) The learned judge here cites the following authorities: Er parte Scott, 9 Barn. & C. 446 (1829); Lopez & Sattler's Case, 1 Dears. & B. C. C. 525; State v. Smith, Bail. (S. C.) L. 283 (1829); S. C., 19 Am. Dec. 679; State v. Brewster, 7 Vt. 118 (1835); Dow's Case, 18 Pa. St. 37 (1851); State v. Ross and Mann, 21 Iowa 467 (1866); Ship Richmond v. United States (The Richmond), 9 Cranch (U. S.) 102.

(2) Ker v. State of Ill., 9 Cr. L. Mag, 201.

"See comments under article 258, ante.

Under the provisions of part LV, post, (Articles 782-802), magistrates are empowered, under certain circumstances, and under certain conditions, to try, summarily, persons charged with certain indictable offences,-the consent of the accused being required in some cases, and, in some cases, not. Amongst the indictable offences thus subject, under part LV, to summary trial, are included cases of aggravated assault, indecent assaults, etc., as will be seen by article 783, which provides, amongst other things, that,

**

Whenever any person is charged before a magistrate with having committed an aggravated assault by unlawfully and maliciously inflicting upon any other person, either with or without a weapon or instrument, any grievous bodily harm, or by unlawfully and maliciously wounding any other person; or

With having committed an assault upon any female whatsoever, or upon any male child whose age does not, in the opinion of the magistrate, exceed fourteen years, such assault being of a nature which cannot, in the opinion of the magistrate, be sufficiently punished by a summary conviction before him under any other part of this Act, and such assault, if upon a female, not amounting, in his opinion, to an assault with intent to commit a rape; or

"With having assaulted, obstructed, molested or hindered any peace officer or public officer in the lawful performance of his duty, or with intent to prevent the performance thereof:

44

The magistrate may, subject to the provisions hereinafter made, hear and determine the charge in a summary way."

By articles 797, 798 and 799, it is provided, in reference to these summary trials of indictable offences, that, "whenever the magistrate finds the offence not proved, he shall dismiss the charge, and make out and deliver to the person charged a certificate under his hand stating the fact of such dismissal;" that "every conviction under this part shall have the same effect as a conviction upon indictment for the same offence; and that "every person who obtains a certificate of dismissal or is convicted under the provisions of this part, shall be released from all further or other criminal proceedings for the same cause."

Provisions similar to these are contained in the Imperial Statute, 42-43 Vict., c. 49, (The summary jurisdiction Act 1879.)

Provision is also made by article 864, post, that a charge of assault and battery may be tried summarily in any case where neither of the parties objects: but, if either party objects it cannot be so tried; and even in cases where the parties do not object the justice may, if he thinks the assault or battery complained of a fit subject for prosecution by indictment, deal with it as such.

Subsection 8 of article 842, post, enacts that no justice shall hear and determine any case of assault and battery in which any title to or interest in lands or real property arises.

""

By articles 865 and 867, (which are similar, in effect, to sections 44 and 45 of the English Statute 24-25 Vict., c. 100,) it is enacted that; If the justice, upon the hearing of any case of assault or battery upon the merits where the complaint is preferred by or on behalf of the person aggrieved, under the next preceding section, deems the offence not to be proved, or finds the assault or battery to have been justified. or so trifling as not to merit any punishment, an accordingly dismisses the complaint, he shall forthwith make out a certificate under his hand stating the fact of such dismissal, and shall deliver such certificate to the person against whom the complaint was preferred ; and that "If the person against whom any such complaint has been preferred, by or on the behalf of the person aggrieved, obtains such certificate, or, having been convicted, pays the whole amount adjudged to be paid, or suffers the imprisonment, or imprisonment with hard labour, awarded, he shall be released from all further or other proceedings, civil or criminal, for the same cause.

33

The certificate of dismissal can only be granted when there has been a full hearing upon the merits. If the certificate is granted on a withdrawal of the

charge, before hearing, it will be no bar to subsequent proceedings for the same assault. (1)

The effect of the certificate of dismissal, when granted, on an acquittal, or, of payment of the penalty or suffering the punishment imposed, on a conviction, as the case may be, is to release the defendant from all other proceedings for the

same cause.

It has been held, in England, that the meaning and intent of the enactments above mentioned, in connection with summary trials, is that when a case so summarily dealt with has been dismissed by the magistrate or justice, on its merits, the defendant has the right, ex debito justitiæ, to receive from the magistrate or justice, the certificate of dismissal, and that the clause which refers to the making out of the certificate, and which contains the word forthwith, means that such certificate is to be made out forthwith on the defendant making application for it. (2)

A summary conviction for assault has, accordingly, been held to be a bar to a subsequent indictment for a felonious stabbing based on the same transaction: (3) and it has been held a bar to an indictment for unlawful wounding and an assault occasioning actual bodily harm, arising out of the same circumstances. (4)

A summary conviction for assault has, however, been held not to be a bar to a subsequent indictment for manslaughter, in a case where the man, who was assaulted, afterwards died in consequence of the assault. (5)

It appears that the production of the certificate of dismissal is of itself sufficient evidence of such dismissal, without proof of the signature of the magistrate or justice; (6) and if the defendant appeared before the magistrate or justice, the recital, in the certificate, of the fact of a complaint having been made and of a summons having been issued, is sufficient evidence of these facts without producing the complaint or summons. (7)

As already seen the consent of the accused is required in order to give a magistrate jurisdiction to summarily dispose of some of the indictable offences mentioned in Article 783. But with regard to some others of such offences,e. g. charges against persons for being keepers or inmates or habitual frequenters of disorderly houses, the magistrate's summary jurisdiction is by article 784, post, made absolute and independent of the consent of the accused.

Article 784, sub-section 2, also makes the magistrate's summary jurisdiction absolute and independent of any consent, in regard to all the offences mentioned in article 783, in cases in which" any person who being a seafaring person and only transiently in Canada, and having no permanent domicile therein, is charged, either within the city of Quebec as limited for the purpose of the police ordinance, or within the city of Montreal as so limited, or in any other seaport city or town in Canada where there is such magistrate, with the commission therein of any of the offences hereinbefore mentioned, (8) and also in the case of any other person charged with any such offence on the complaint of any such seafaring person whose testimony is essential to the proof of the offence."

(1) Reed v. Nutt, 24 Q. B. D. 669.

(2) Hancock v. Somes, 1 E. & E. 795; 28 L. J. (M. C.) 196; Costar v. Hetherington, 1 E & E. 802; 28 L. J. (M. C.) 198.

(3) R. v. Stanton, 5 Cox, 324; R. v. Walker, 2 M. & Rob. 446.

(4) R. v. Elrington, 1 B. & S. 688; 31 L. J. (M. C.) 14; R. v. Miles, 24 Q. B. D. 423; 59 L. J. (M. C.) 56.

(5) R. v. Morris, L. R., 1 C. C. R. 90; 36 L. J. (M. C) 84.

(6) See, The Canada Evidence Act 1893. sec. 10, post.

(7) R. v. Westley, 11 Cox, 139: Arch. Cr. Pl. & Év. 21 Ed. 155.

(8) The offences, here referred to, include,- -as already shown, ante, p. 183, -aggravated assaults, wounding, indecent assaults, &c. But see full list of these offences in article 783, itself, post.

Subsection 3 of article 784, moreover, provides that, "the jurisdiction of a stipendiary magistrate in the province of Prince Edward Island, and of a magistrate in the district of Keewatin, under this part, is absolute without the consent of the person charged."

PART XXI.

RAPE AND PROCURING ABORTION.

RAPE.

266. Definition.-Rape is the act of a man having carnal knowledge of a woman, who is not his wife, without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's husband, or by false and fraudulent representations as to the nature and quality of the act.

2. No one under the age of fourteen years can commit this offence.

"3. Carnal knowledge is complete upon penetration to any, even the slightest degree, and even without the emission of seed."

Paragraph 3 has been transferred by the Amending Act of 1893, to Part 1, ante

267. Punishment.-Every one who commits rape is guilty of an indictable offence and liable to suffer death, or to imprisonment for life. R.S.C., c. 162, s. 37.

46

With reference to rape committed by personating a woman's husband, section 4 of the English Criminal law amendment act, 1885, (48-49 Vict., c. 69,) is as follows:

Whereas doubts have been entertained whether a man who induces a married woman to permit him to have connexion with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shall be deemed to be guilty of rape."

It seems to have always been the law, as stated now in subsection 2 of the above article 266, that no one under the age of fourteen years can commit a rape. The law presumes a boy under the age of fourteen years of age to be incapable of committing a rape; (1) and no evidence can be admitted against him to shew that he has, in fact, attained the full state of puberty and was capable of committing the crime. (2)

A husband, too, is legally incapable of committing a rape upon his wife ; (3) but a husband may be punished for being present and aiding in the commission of a rape upon his wife, (4) and so may a boy under fourteen be punished for being present and aiding in the commission of the offence. (5)

(1) 1 Hale 631; R. v. Groombridge, 7 C. & P. 532; R. v. Brimilow, 9 C. & P. 366; 2 Moo. C. C. 122.

(2) R. v. Philips, 8 C. & P. 736; R. v. Jordan, 9 C. & P. 118.

(3) 1 Hale 629.

(4) R. v. Andley, St. Tr. 393

(5) 1 Hale, 620, 639; R. v. Eldershaw, 3 C. & P. 396; R. v. Allen, I Den., 364.