A Treatise on Criminal Law as Applicable to the Dominion of Canada

words being read as surplusage, or being read as good for the Magistrates having committed the prisoner for want of bail, it would be in the discretion of the Magistrates or Court ordering bail to fix the amount.

"I," in the text of a warrant, may be read as “I and I,” so as to read "given under my and my" hand and seal, etc., it being presumed that both Magistrates use one and the same seal. (a) A warrant of commitment reciting that Thaddeus K. Clarke "was this day charged (not saying upon oath) before us," and without shewing any examination by the Magistrates, upon oath or otherwise, into the nature of the offence, and commanding the constables or peace officers of the County of Welland to take the said Thaddeus K. Clarke into custody, was held sufficient. (b) A warrant committing the prisoner "until discharged by due course of law," sufficiently complies with the Statute, which provides for a committal until delivered by due course of law. A warrant executed by two parties, and concluding “given under our hand and seal," is sufficient. (c) A warrant of commitment, reciting that F. M. was charged, on the oath of J. W., "for that he (F. M.) was this day charged with enlisting men for the United States army, offering them $350 each as bounty," without charging any offence with certainty; without stating that the men enlisted were subjects of Her Majesty, and without shewing that J. W was unauthorized by license of Her Majesty to enlist, was held bad. (d)

The seventh section of this Act, for prevention of enlisting into foreign service, or the fitting out or equipping, in Her Majesty's dominions, vessels for warlike purposes,

(a) Re John Smith, 10 U. C. L. J. 247.

(b) Re Clarke, 10 U. C. L. J. 331.

(d) Re Martin, 3 U. C. P. R. 298.

provides, (1) That such ship or vessel must be acting without leave or license of the Sovereign of this country. (2) That she must be equipped, furnished, fitted out, or armed, or there must be a procuring, or an attempt or endeavour to equip, furnish, fit out, or arm the ship. (3) That such equipment, furnishing, fitting out, or arming, must be done with the intent or in order that the ship or vessel shall be employed in the service of some Foreign Prince, State, or Potentate, or of any Foreign Colony, Province, or part of any Province or People, or of any person or persons exercising, or assuming to exercise, any powers of Government in or over any Foreign State, Colony, Province, or part of any Province or People." (4) That there must be an intent to employ the ship or vessel either as a transport or store ship, or with intent to cruise or commit hostilities against any Prince, State, or Potentate, or against the subjects or citizens of such Prince, etc., or the persons exercising, or assuming to exercise, the powers of Government in any Colony, Province, or part of any Province or Country, or against the inhabitants of any Foreign Colony, Province, or part of any Province or Country. (5) That such Foreign Prince, State, or Potentate, etc., is one with whom Her Majesty should not be at war. The 3rd part of the section is in the alternative, and it is not necessary that the vessel should be acting in the service of "any person or persons exercising, or assuming to exercise, any powers of Government in or over any Foreign State, Colony, Province, or part of any Province or People," if the vessel is " employed in the service of any Foreign State or People, or part of any Province or People." (a) Semble also, it is sufficient if the facts bring the case within either branch of the alternative. (b)

(a) Reg. v. Carlin, "The Salvador," L. R. 3 P. C. App. 218. (b) Ib.

A commitment under the 28 Vic., c. 2, stating the offence as follows:-" For that he on, etc., at, etc., did attempt to procure A. B. to serve in a warlike or military operation, in the service of the Government of the United States of America, omitting the words "as an officer, soldier, sailor, etc.," is bad. (a)

A judgment for too little is as bad as a judgment for too much, and a condemnation to pay $100 and coststhe Statute imposing $200 and costs-is bad. (b) So a commitment for the penalty and costs, not stating, in the body of the commitment, or a recital in it, the amount of costs, is bad. (c) A quære is added to this case, whether the jurisdiction conferred by the 28 Vic., c. 2, is a general or local one. But a warrant of commitment, on a conviction had before a Police Magistrate for the Town of Chatham, in Ontario, under the 28 Vic., c. 2, averring that, on a day named, " at the Town of Chatham, in said county, he, the said Andrew Smith, did attempt to procure A. B. to enlist to serve as a soldier in the army of the United States of America, contrary to the Statute of Canada in such case made and provided," and then proceeding, “and whereas the said Andrew Smith was duly convicted of the said offence before me, the said Police Magistrate, and condemned," sufficiently shews jurisdicdiction. (d) A direction to take the prisoner "to the common gaol at Chatham," the warrant being addressed "to the constables, etc., in the County of Kent, and to the keeper of the common gaol at Chatham, in the said county," is sufficient. (e) A warrant, as above set out, sufficiently contains an adjudication as to the offence, though by way of recital. The words "to enlist to

(a) Re Bright, 1 U. C. L. J. N. S. 240.

(b) Ib.; Lex. v. Solomons, 1 T. R. 249; Whitehead, v. Reg. 7 Q. B. 582.

(d) Re Andrew Smith, 1 U. C. L. J. N. S. 241.

(e) Ib.

serve" do not shew a double offence, so as to make a warrant of commitment bad on that ground. The offence created by the Statute is sufficiently described in a warrant as above set out, and such a warrant is not bad as to duration or nature of imprisonment.

The commitment for the further time beyond six months should be at hard labour. (a) It was also held, in this case, that the amount of costs was sufficiently fixed in the warrant of commitment, being, in addition to $4.50 for costs, all costs and charges of commitment, and conveying him, the said Andrew Smith, to the said common gaol, amounting to the further sum of $1. The Statute inflicts a penalty, "with costs," and in such case the costs of conveying the defendant to prison may be lawfully added. The Statute was intended to allow both fine and imprisonment, or either, and it is not compulsory to award both. So there is power to commit for non-payment of costs. (b)

During the late war between the North German Confederation and France, a Prussian merchant vessel was captured in the English Channel, as prize of war, by a ship in the service of the Government of France. A prize crew, under the command of an officer in the French naval service, was put on board the prize. Afterwards, the prize was driven, by stress of weather, to the Downs; and on the 24th of November, by order of an Admiral in the French naval service, she anchored off Deal, within three marine miles of the shore. On the 26th of November, the Collector of Customs at Deal told the French Consul there that it was time the prize left British waters. The French Consul, having found the Gauntlet, a British steam tug, by accident, at anchor

(a) Re Andrew Smith, 1 U. C. L. J. N. S. 241. (b) Ib.

in the Downs, the steam tug, in pursuance of an agreement made between her master and the officer in command of the prize, and under the direction of such officer, towed the prize to Dunkirk roads, for the ordinary towage remuneration, which was afterwards paid by the French Consul-General in London. At the time the agreement was made, the master, who was one of the owners of the steam tug, had reasonable cause to believe that the prize was a prize of war, captured by the French. In a suit for condemnation of the steam tug, it was held that no offence against the Act had been committed. (a) Semble, the steam tug was not employed in the military or naval service of France. (b)

It would seem that a ship employed in the service of a foreign belligerent State, to lay down a submarine cable, the main object of which is, and is known to be, the subserving the military operations of the belligerent State, is employed in the military or naval service of that State, within the meaning of the Act. (c) When a cause is instituted against a ship in the Admiralty Court, for an offence under this Act, the Court may, with the consent of the Crown, order the ship to be released on bail. (d)

Seducing Soldiers or Sailors to Desert.-The Con. Stat. U. C. C. 100, has been repealed, and the 32 & 33 Vic., c. 25, is now the governing enactment on this subject. The Imp. Mutiny Act did not override the Con. Stat. U. C. c. 100; but the latter was passed in aid of the former, and was in force, notwithstanding the Imp. Mutiny Act. The two Statutes were to be construed as if they had been both Canadian, or both English Acts. (e) The pun

(a) The Gauntlet, L. R. 3 Ad. & Ec. 381. (b) Ib.

(e) Reg. v. Sherman, 17 U. C. C. P. 168, per J. Wilson, J.; 169, per A. Wilson, J.

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