Bail may be granted to extradition prisoners in a proper case, as to other offenders. And where a prisoner was committed for extradition to the United States, as the court would not sit at Montreal before the lapse of seven days from the commitment, his counsel applied to the court at Quebec by habeas corpus for bail, which was granted. (y) If the prisoner is discharged on the hearing of the warrant of arrest, there can be no bail required as a condition of such discharge. (z)

A prisoner charged with forgery in Canada was arrested in the United States and surrendered by the Government of that country under the treaty, upon application for bail, on the ground that there was no evidence of the corpus delicti. It was held that the depositions taken in Canada expressly charging the prisoner with forgery, followed by an application for the prisoner's surrender and his surrender accordingly, taken in connection with the fact that the evidence and proofs on which he was committed for surrender in the States. must be held to be such as, under the treaty, to justify it according to the laws there, were sufficient evidence. (a)

The warrant of the Governor General, requiring the extradition of a prisoner from the United States for forgery, is no proof that he was charged with or extradited for that crime. (b)

In Reg. v. Paxton (c) the question was raised, but not decided, whether a party extradited from the United States for forgery was liable here to be tried for any other offence than the one for which he was surrendered.

The point came up again in Re Rosenbaum, (d) when it was decided that he was so liable, and that section 3 and subsection 2 of the Imperial Extradition Act, 1870, being inconsistent with the subsisting treaty between Great Britain and the United States, was not in force as to any application

(y) Ex parte Foster, 3 R. C. 46, Q. B.

(z) Reg. v. Reno and Anderson, 4 U. C. P. R. 295, per Draper, C. J. (a) Reg. v. Vanaerman, 4 U. C. C. P. 288.

(b) Reg. v. Paxton, 10 L. C. J. 212.

(c) Ibid.

(d) 18 L. C. J. 200, Q. B.

under such treaty. And it has been held in the United States that whether or not a prisoner had been extradited in good faith is a question for the two governments to determine, and not the courts; and the prisoner being, in fact, within the jurisdiction of the court, he must be tried. (e)

The provisions of the treaty for the payment of the expenses of the apprehension and delivery of the fugitive, by the party making the requisition, can be literally carried out by calling on the United States Government to pay such expenses when they make the requisition and receive the fugitive. By making the requisition they assume the responsibility of paying the expenses of apprehending as well as delivering him. (ƒ)

Only one case has arisen in this country under the treaty between Great Britain and France, ratified in 1843. In this case it was held that, under the Imp. Stat. 6 & 7 Vic., c. 75, passed to give effect to the treaty, the Consul-General of France had no authority to demand the rendition of a fugitive criminal, such consul not being an accredited diplomatic agent of the French Government. That an informal translation of an acte de renvoi is not a judicial document equivalent to the warrant of arrest, of which the party applying for extradition is required to be the bearer, according to the statute. That the evidence of criminality to support the demand for extradition must be sufficient to commit for trial according to the laws of the place where the fugitive is arrested, and not according to the law of the place where the offence is alleged to have been committed. (g)

The Chesapeake case is the only one under the Imp. Stat. 6 & 7 Vic., c. 76. It was decided in 1864, before the suspension of the statute in New Brunswick. The many important points involved in this case have been given in the foregoing pages.

(e) Clarke on Extradition, 2nd Ed. p. 75.

(f) Re Burley, 1 U. C. L. J. N. S. 45, per Richards, C. J. (g) Ex parte Lamirande, 10 L. C. J. 280.

It may be observed, in conclusion, that the Imp. Stat. 6 & 7 Vic., c. 34, makes provision for the apprehension and surrender to the authorities of the place where the offence has been committed, of persons who have committed offences either in the United Kingdom of Great Britain and Ireland, or in any part of Her Majesty's dominions, whether or not within the said United Kingdom, and who are found in any place in the United Kingdom, or any other part of Her Majesty's dominions, other than where the offence was committed.

The provisions of this statute as between the United Kingdom and the colonies, are very similar to those of our own statutes in aid of the Ashburton Treaty. The enactment only applies to treason, or some felony, such as justices of the peace in General Sessions have not authority to try in England under the provisions of an Act passed in the sixth year of the reign of Her Majesty, intituled "An Act to define the jurisdiction of Justices in General Sessions of the Peace." (h)

A person cannot under the 6 & 7 Vic., c. 34, be legally arrested or detained here for an offence committed out of Canada, unless upon a warrant issued where the offence was committed, and endorsed by a judge of a superior court in this country. (2) And such warraut must disclose a felony according to the law of this country; and the expression "felony, to wit, larceny," would seem to be insufficient. (j)

(h) See s. 10.

(i) Reg. v. McHolme, 8 U. C. P. R. 452.

(j) Ibid.

CHAPTER I.

CRIMES IN GENERAL.

In the present work it is proposed to treat in the first place of the subject of crimes in general, and the distinctions between a public and a private injury; secondly, of the persons capable of committing crimes, and their several degrees of guilt, as principals or accessories; thirdly, of the several species of crimes recognized by law; after which will follow annotations of the Canadian statutes on criminal law and dissertations on the subjects of evidence, pleading and practice, as developed in our own cases.

A crime is the violation of a right when considered in reference to the evil tendency of such violation as regards the community at large. (a)

Where, therefore, an Act declared that every person having a distilling apparatus in his possession, without making a return thereof as therein provided, should forfeit and pay a penalty of $100, and rendered the apparatus liable to seizure and forfeiture to the Crown, it was held that an infringement of this Act was a crime. (b)

The violation of a statute containing provisions of a public nature, and more particularly so when that violation is spoken of as an offence, and is punishable by fine, or imprisonment as substitutionary for the fine, is a crime in law. (c)

When an offence is made a crime by statute, the proceedings instituted for the punishment thereof are criminal proceedings. (d) An information by the Attorney-General for an

(a) Ste. Bla. Com., Bk. 6, p 94.

(b) Re Lucas & McGlashan, 29 U. C. Q. B. 81 ; and see Reg. v. Boardman, 30 U. C. Q. B. 553.

(c) Ibid. 29 U. C. Q. B. 92, per Wilson, J.

(d) Ibid. 92, per Wilson, J.; Bancroft v. Mitchell, L. R. 2 Q. B. 555, per Blackburn, J.

D

offence against the revenue laws is a criminal proceeding, (e) although offences against the customs and excise laws are not ordinarily treated as criminal but as merely penal in their nature; and the contingent liability to fine and imprisonment does not alter the character of the offence. (f) A proceeding to obtain an order of affiliation under the (N.B.) 1 Rev. Stat., c. 57, is not a criminal proceeding, in which the party charged is punishable on indictment or summary conviction, (g) bastardy not being a crime punishable in this manner. (h)

The doctrine that all crimes concern the public prevails to such an extent, that by the policy of the law if a civil action is instituted, and it appears on the evidence that the facts amount to felony, the judge is bound to stop the proceedings and nonsuit the plaintiff, in order that the public justice may be first vindicated by the prosecution of the offender. (1)

The true ground of this rule is to prevent the criminal justice of the country from being defeated, (j) and the principle on which it rests is, not that the felony appearing constitutes any defence to the action, but that by the rule of law the civil remedy is suspended until the defendant charged with the felony shall have been acquitted or convicted in due course of law. (k) The rule applies, whether the plaintiff be the party upon whose person the alleged felony was committed, or a person who can sustain his cause of action only in virtue of a wrong done to him through another, by an act which, as between the defendant and that other, constitutes felony; (2) and it seems the rule equally applies in an acti›n against third persons. (m) The civil remedy is only suspended

(e) Re Lucas & McGlashan, 89, per Richards, C. J. (f) Ex parte Parks, 3 Allen, 240, per Carter, C. J.

(g) Ex parte Cook, 4 Allen, 506.

(h) Ibid.

(i) Walsh v. Nattrass, 19 U. C. C. P. 453; Brown v. Dalby, 7 U. C. Q. B. 160; Livingstone v. Massey, 23 U. C. Q. B. 156; Williams v. Robinson, 20 U. C. C. P. 255; Pease v. M'Aloon, 1 Kerr, 111.

(j) Crosby v. Leng, 12 Ea. 414, per Grose, J.

(k) Walsh v. Nattrass, 19 U. C. C. P. 454, per Gwynne, J.; Brown v. Dalby, 7 U. C. Q. B. 162, per Robinson, C. J.

(1) Walsh v. Nattrass, supra, 455, per Gwynne, J. (m) Pease v. M‘Aloon, 1 Kerr, 118, per Parker, J.