meanor may, in addition to or in lieu of any punishment otherwise authorized, be required to enter into his own recognizances, and to find sureties, both or either, for keeping the peace and being of good behavior: but a person must not be imprisoned for not finding sureties under this provision, for any term exceeding one year.

1

1 Whenever any person who has been required to enter into a recognizance with sureties to keep the peace and be of good behavior has, on account of his default therein, remained imprisoned for two weeks, the sheriff, gaoler or warden shall give notice, in writing, 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, and such judge 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 bound, and the length of time for which such person may be bound.

1 R.S.C. c. 181, s. 32 as enacted in 51 Vict. (D) c. 47, s. 2.

CHAPTER III.

CLASSIFICATION OF CRIMES AND GENERAL PROVISIONS AS TO THEIR PUNISHMENT-PARDONS &c.

2ARTICLE 14.

TREASON, FELONY, AND MISDEMEANOR.

[EVERY crime is either treason, felony, or misdemeanor. Every crime which amounts to treason or felony is so denominated in the definitions of crimes hereinafter contained. All crimes not so denominated are misdemeanors.]

ARTICLE 15.

CONSEQUENCES OF A CONVICTION OF TREASON OR FELONY IN CERTAIN PROVINCES.

The consequences among others of a conviction of treason or felony, and of such conviction followed by sentence, are in the Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island and British Columbia, as follows:

3(a) On attainder for treason the offender forfeits forever

[2 Hist. Cr. Law, Ch. xx, pp. 192-6.]

2S.D. Art. 15.

34 Steph. Com. (6th ed) 514: 2 Hawk. c. 49. Doe d. Griffith v. Pritchard (5 B. & Ad. 765). Eastwood v. McKenzie (5 U.C. O.S. 708). Attainder imports that extinction of civil rights and capacities which takes place whenever an offender receives judgment of death or outlawry for a capital offence. It is the immediate inseparable consequence (not of the conviction) but of such judgment (1 Steph. Com. (6th ed.) 456; 4 Steph. Com. 543, 551; Wharton's Law Lexicon Verb. attainder.) At common law, lands so forfeited were not vested in the actual possession of the Crown during the life of the offender without an office (2 Hawk. c. 49, s. 2); but by 33 Hen. 8, c. 20, s. 3 it was provided that in cases of high treason the king should be deemed and adjudged in actual and real possession of the lands, tenements. hereditaments, uses, goods, chattels and all other things of the person attainted that the king ought lawfully to have, and the offender to forfeit, without any office or inquisition; (2 Hawk. c. 49, ss. 18-32; Doe d. Gillespie v. Wixon, 5 U. C. Q. B. 132; Doe d. Sheldon v. Ramsay, 9 U. C. Q. B. 105).

to the crown all his lands and tenements of inheritance of freehold tenure whether fee simple or fee tail and all his rights of entry on lands and tenements of such tenure, which he had at the time of the offence committed, or at any time afterwards, to be forever vested in the crown; and also the profits of all lands and tenements of such tenure which he had in own right for life or years so long as such interest shall subsist.

The forfeiture relates backward to the time of the treason committed, so as to avoid all intermediate sales and incumbrances, but not those before the fact.

1(b) On attainder for murder the offender forfeits to the crown not only the profits of his freehold estates during life, but also (in the case of lands held by him in fee simple, though not in the case of those held in tail) the lands themselves for a year and a day, with power to the crown of committing upon them what waste it pleases.

2(c) On a conviction of treason or any felony the offender forfeits to the crown his personal estate, but not such as he has as executor or administrator.

3(d) On attainder for treason the blood of the offender

14 Steph. Com. (6th ed.) 548; 2 Hawk. c. 49, s. 8; R. v Bridges 1 M. & W. 149. 22 Hawk. c. 49, ss. 9-13; 4 Stepb. Com. (6th ed.) 550 Bullock v Dodds, 2 B. & Ald. 258. See also as to forfeiture of goods and chattels upon a fugam fecit and in other cases, 2 Hawk. c. 49, ss. 14-17. But in modern times it became unusual for the jury to find the flight, forfeiture being looked upon, since the vast increase of personal property, as too large a penalty for an offence to which a man is prompted by the natural love of liberty; and by the statute of the United Kingdom 7 & 8, Geo. 4, c. 28, s. 5 it was provided that where any person should be indicted for any treason or felony, the jury empanelled on his trial should not be charged to inquire whether he fled for such treason or felony (4 Steph. Com. 6th ed. 550, 551.)

By R.S. C., c. 174, s. 187, it is provided that the jury empanelled to try any person for treason or felony, shall not be charged to inquire concerning his lands, tenements or goods, nor whether he fled for such treason or felony.

No forfeiture accrues upon a summary conviction (4 Steph. Com., 6th ed. 550).

It was once the practice for the grand jury, on indictments for homicide, to find the value and description of the instrument of death, to enable the crown or its grantee to claim the deodand (2 Steph. Com. 6th ed. 586); but it is now the law that there shall, in respect of such death, be no forfeiture of any chattel which has moved to or caused the death of any human being; (R. S. C., c. 181, s. 35; 9 & 10 Vict. c. 62.)

3 4 Steph. Com. (6th ed.) 550; 2 Hawk. c. 49, s. 47, et seq. By the common law the offender's blood was corrupted by attainder of treason or felony. By 7 Anne. c. 21, s. 10

is corrupted both upwards and downwards so that he can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir, but the same escheat.'

(1708), it was enacted that after the death of the Pretender and his sons no attainder for treason should operate to the prejudice of any other than the offender himself; but this provision (the operation of which was postponed by 17 Geo. 2, c. 39, s. 3 (1744), it is said was repealed by 39 & 40 Geo. 3, c. 93 (1800), (1 Steph. Com. 6th ed. 460 note (m). Mr. Wicksteed, Q.C., formerly Law Clerk to the House of Commons, thinks, however, that such was not the effect of the latter statute (Tasch. Can. Crim. Acts, 1071). But whether it was or not would not be material in any case arising in any Province of Canada other than British Columbia; Art. 2 (e).

It is also doubtful whether, in the other Provinces mentioned in this Article, the law is as stated in clause (d). Tasch. Can. Crim. Acts, 1069-1074; 2 Hawk. 649 note (1). What on this subject is the law of England that by virtue of statutes, or the rules governing the application of that law to colonies (Art. 2 (a) (b) and (c)) is to be applied to the Provinces mentioned? Is it the common law, as represented in the text and recognized as existing by 7 Anne, c. 21, or the law as therein declared, namely, that after a date indefinite, but certain of determination, and since determined (1807), corruption of blood for treason should be abolished?

There are, I think, no decisions, but the Parliament of Canada, following the Parliament of the United Kingdom, has in its legislation assumed that the common law on this subject is in force in Canada. By R. S. C., c. 181, ss. 36 and 37 (32 & 33 Vict. (D.) c. 29, ss. 55 and 56; 54 Geo. 3, c. 145), it is provided that

44

"36. Except in cases of treason, or of abetting, procuring or counselling the same, no attainder shall extend to the disinheriting of any heir, or to the prejudice of the right or title of any person, other than the right or title of the offender during his natural life only."

"37. Every one to whom, after the death of any such offender, the right or interest to "or in any lands, tenements or hereditaments should or would have appertained if no such attainder had taken place, may, after the death of such offender, enter into the same."

Referring to these provisions and to Articles 32-36 of the Civil Code of Quebec, Mr. Justice Taschereau suggests a question as to the legislative authority of the Parliament of Canada in respect of the consequences of attainder; (Tasch. Can. Crim. Acts, 1073). It is not doubted, however, that the Parliament of Canada may deprive an offender of life or liberty, or impose on him any fine or forfeiture that to it seems meet. That is constantly done without question, and it is submitted that to legislate in respect of other consequences of crime, and to abolish or restore corruption of blood theretor, is equally legislating in respect of the criminal law, as in the cases mentioned, and no greater interference with property or civil rights in the Province than in such cases.

In the statute 54 Geo. 3, c. 145, attainder for murder was also excepted. See also 3 & 4 Wm. 4 c. 106, s. 10.

1 Escheat should be carefully distinguished from forfeiture to the crown, as the consequences, by reason of their similitude in such cases, and because the crown is frequently the immediate lord of the fee and therefore entitled to both, have often been confounded together; (1 Steph. Com., 6th ed. 457).

1 ARTICLE 16.

CONSEQUENCES OF A CONVICTION OF TREASON OR FELONY IN MANITOBA AND THE NORTH-WEST TERRITORIES.

The consequences, among others, of a conviction of treason or felony in the Province of Manitoba and the North-West Territories are, so far as such provisions are applicable thereto, as follows:

[(a.) Every person convicted of treason or felony may be condemned to the payment of the whole or any part of the costs and expenses incurred in and about his prosecution and conviction.

(b.) 3 Immediately upon the conviction of any person for felony, the court before which he is convicted may award any sum of money not exceeeding £100, by way of satisfaction or compensation for any loss of property suffered by any person through or by means of such felony, upon the application of such person. Such sum is to be deemed to be a judgment debt due to the person entitled to receive the same from the person so convicted.

4

(c.) Every person sentenced to death, to penal servitude, or to any term of imprisonment with hard labor, or exceeding twelve months:

(i.) Becomes incapable of holding any military or naval office, or any civil office under the crown, or other public employment, or any ecclesiastical benefice, 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 whatever in England, Wales, or Ireland.

1 S. D. Art. 16.

[33 & 34 Vict. c. 23, s. 3. The section contains various subsidiary provisions as to costs, which do not bear on the punishment of the offence. See 1 Hist. Cr. Law, 487-9.]

This Act came into force on the 4th of July 1870. See Art. 2 (d.) It does not affect the law of forfeiture consequent upon outlawry which in Manitoba and the North-West Territories is as indicated in the article next preceding.

[33 & 34 Vict. c. 23, s. 4. 33 & 34 Vict. c. 23 s. 2.]