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resided forty days in the appellant parish, to which she is removed upon a birth settlement, raises a question, which was settled from the moment of the passing of the statute 13 & 14 Car. 2. c. 12. The preamble to that statute recites, that "whereas, by reason of some defects in the law, poor people are not restrained from going from one parish to another, and therefore do endeavour to settle themselves in those parishes where there is the most stock," &c., and then gives power to any Justice," within forty days after any such person coming to settle as aforesaid.... ... by their warrant to remove such person to such parish where he was last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days at the least," &c. The statute seems to me to recite and infer that the legal settlement may be as a native. The state of the law at the time the statute of Charles passed is important, for it must have been understood and contemplated by those who framed that statute; and all the previous statutes on the subject direct poor persons to go to the place where they were born. Birth has, of itself, conferred a settlement both before and after the statute of Charles; and no necessity ever was dreamt of, for appending to the acquirement of such a settlement, a residence of forty days in the parish. The traditionary view of the case is fully warranted by the language of the statute. The third objection, raised by the third and fourth grounds of appeal, is, that the examinations shew no settlement of the husband in the appellant parish, and no proof that it is unknown. We decided, in The Queen v. the Churchwardens of Birmingham, the authority of which is not questioned, that it is not necessary to inquire into the settlement of the husband, before removing a woman to her maiden settlement. Mr. Pashley raises an ingenious argument, that as Maria Lewis is described as the widow of James Lewis, the order of removal is some evidence of the husband's settlement. Perhaps such an argument may be met by an answer equally refined: that if it be evidence of the husband's settlement, it raises the presumption that he was settled in the appellant parish; for, if not, both parties would be equally interested in ascertaining his settlement elsewhere, and 'it would not have been worth while for the appellants to dispute the pre
sent order, for the purpose of shewing that the husband's settlement was in their parish. But, without resorting to any such answer, it is sufficient to say, that the inference suggested cannot be drawn from the mere circumstance that she is described as a widow, and removed to Watford. There is no evidence of the husband's settlement; none was necessary: the wife's was ascertained without contradiction, and that was sufficient to justify her removal to it. The last objection is, that the complaint was not made by parish officers having authority. Now the act says, that the complaint may be made "by the churchwardens or overseers." It is quite clear either one or the other may do it; and we need not therefore make inquiry, whether the overseers, who did make it, had the authority of the churchwardens or not.
COLERIDGE, J. and WIGHTMAN, J. con
Conviction-Negativing Exceptions in Statute-8 & 9 Vict. c. 87.-Smuggling.
Stat. 8 & 9 Vict. c. 87. s. 2. enacts, that if any foreign vessel shall be found to have been within one league of the coast of the United Kingdom, having on board certain articles, the said articles and the vessel shall be forfeited. Sect. 4. enacts, that “nothing herein contained shall extend to render any vessel liable to forfeiture, if really bound from one foreign port to another, and pursuing such voyage, wind and weather permitting." By section 50, every person, not being a subject of her Majesty, who shall be found on board any vessel liable to forfeiture within one league of the coast of the United Kingdom, is made liable to summary conviction and imprisonment :- Held, by Coleridge, J. and Erle, J. (Lord Denman, C.J. dubitante) that a commitment under the 50th
section describing the offence in the words of the 2nd section, was sufficient, without negativing the exception in the 4th section.
Held, also, that a conviction in other respects sufficient is not vitiated by the detainer of the defendant for an unreasonable time before the hearing of the information against him.
A writ of habeas corpus had issued from this Court, directed to the gaoler of the house of correction at Louth, to bring up the body of James Van Boven, who was detained in the custody of the said gaoler under the following warrant of commitment, dated September 1, 1845:
"Borough of Grimsby. Parts of Lindsey, county of Lincoln.-To James Watt, an officer of customs, and to John Joseph Brian, the gaoler of the house of correction at Louth, at &c. Whereas James Van Boven has this day been duly convicted before us William Brooks, Esq. Mayor, Thomas Bell and Charles Percival Loft, Esqrs., three of her Majesty's Justices of the Peace in and for the said borough of Grimsby, in the said parts of Lindsey and county of Lincoln, upon the information of Samuel Mayor, Esq., an officer of customs, who was directed by the Commissioners of her Majesty's Customs to prefer the same, for that within six months now last past, that is to say, on the 19th day of August, in the year of our Lord 1846, he, the said J. Van Boven not being a subject of her Majesty, and being liable to be detained for the offence therein mentioned, was found upon the high seas within one league of the coast of the United Kingdom, to wit, within one league of the coast of the county of Lincoln, on board a certain vessel, then and there liable to forfeiture under the provisions of a certain act relating to the customs made and passed in the year of our Lord 1845, intituled 'An act for the prevention of smuggling,' for that the said vessel, being a foreign vessel, was on the said 19th day of August in the said year of our Lord 1846, found on the high seas aforesaid, within one league of the coast of the United Kingdom, to wit, within one league of the coast of the county of Lincoln, the said vessel then and there having on board, whilst the said vessel was within the space of one league from the said
coast, and whilst the said J. Van Boven was on board thereof, divers, to wit, 2688 pounds weight of tobacco stalks, contrary to the provisions of the statute in that case made and provided. And, whereas, the said J. Van Boven was, on the day and year last aforesaid, for the offence aforesaid, detained by one James Watt, being then and there an officer of customs, and by him taken, brought and carried into a certain place on land, in the United Kingdom, to wit, into the parish of Great Grimsby, in the said borough of Grimsby, in the said parts of Lindsey, in the said county of Lincoln. And whereas we, the said Justices, did adjudge that the said J. Van Boven should for his said offence be imprisoned in the house of correction at Louth, in the parts and county aforesaid, and be there kept to hard labour for the term of six calendar months; these are, therefore, to require you, the said J. Watt, forthwith to take, carry, and convey the said J. Van Boven to the house of correction at Louth, in the said parts of Lindsey, in the said county of Lincoln, and to deliver him into the hands of the gaoler or keeper of the said house of correction; and we, the said Justices, do hereby authorize and require you, the said John Joseph Brian, the gaoler or keeper of the said house of correction, to receive and take the said J. Van Boven into your custody, and to keep the said J. Van Boven for the term of six calendar months to hard labour."
The statute 8 & 9 Vict. c. 87, upon which the conviction, authorizing the commitment, proceeded, contains the following provisions. By section 2, it is enacted" that if any vessel not being square-rigged, &c. ... or if any foreign vessel or boat, shall be found or discovered to have been within one league of the coast of the United Kingdom, &c., any such vessel or boat so found or discovered, having on board, or in any manner attached thereto, or conveying any spirits.... or any tobacco stalks, then and in every such case the said .... tobacco stalks .... and also the vessel or boat shall be forfeited." Section 4. provides, "that nothing herein contained shall extend to render any vessel of the burden of a hundred and twenty tons or upwards, liable to forfeiture on account of any tobacco or snuff coming direct from the East Indies, &c. &c. ... nor to render any vessel liable to
forfeiture, on account of any spirits, tea, or tobacco, really intended for the consumption of the seamen and passengers on board during their voyage, and not being more in quantity than is necessary for that purpose, nor to render any vessel liable to forfeiture if really bound from one foreign port to another foreign port, and pursuing such voyage, wind and weather permitting."
Section 50. enacts, "That every person being a subject of her Majesty who shall be found or discovered to have been on board any vessel or boat liable to forfeiture under this or any act relating to the customs, for being found or discovered to have been within any of the distances in this act mentioned, from the United Kingdom, or from the Isle of Man, having on board, or in any manner attached thereto, or conveying or having conveyed in any manner such goods or things as subject such vessel or boat to forfeiture, or who shall be found or discovered to have been within any such distances as aforesaid, on board any vessel or boat from which any part of the cargo or lading of such vessel or boat shall have been thrown overboard, or staved, or destroyed, to prevent seizure, and every person not being a subject of her Majesty, who shall be found or discovered to have been on board any vessel or boat liable to forfeiture for any of the causes last aforesaid, and within one league of the coast of the United Kingdom, or of the Isle of Man, shall, upon being duly convicted of any of the said offences before any two Justices of the Peace, be adjudged by such Justices for the first of such offences, to be imprisoned in any house of correction, and there kept to hard labour for any term not less than six months; and it shall be lawful for any officer of customs, and he is hereby authorized to detain every such person, and to take such person before any Justice of the Peace in the United Kingdom, to be dealt with as hereinafter directed."
Section 58, which recites that it is expedient that time should be allowed to obtain the order of the Commissioners of Customs or Excise, and also to prepare informations, convictions, and warrants of commitment, enacts, "That when any person shall have been detained by any officer of Customs for any offence against the act, and shall have been taken before any Jus
tice of the Peace, if it shall appear to such Justice that there is reasonable cause to detain such person, such Justice may order such person to be detained a reasonable time, and at the expiration of such time to be brought before any two Justices of the Peace, who are hereby authorized and required finally to hear and determine the matter."
Section 103. enacts, "That every information, conviction, or warrant of commitment, for any offence committed against the act, shall be deemed valid and sufficient, in which the offence for the punishment shall have been inflicted is set forth in the words of the act; . . . . and that no warrant of commitment for any such offence shall be held void by reason of any defect in such warrant; nor shall any party be entitled to be discharged out of custody, on account of any such defect, provided it be alleged in such warrant that the said party has been convicted of such an offence, and provided it shall appear to the Court or Judge before whom such warrant is returned that such conviction proceeded upon good and valid grounds."
Section 107. gives a general form (as set out in the schedule) for all warrants of commitment founded upon such convictions, and directs that in such form the offence shall be stated.
Lush, in moving for the rule, urged, first, that the warrant of commitment was bad on the face of it, in not shewing any offence committed by the prisoner, inasmuch as it did not negative the fact, which, by the 4th section, would exempt the vessel from forfeiture-viz., that she was "bound from one foreign port to another foreign port, and pursuing such voyage, wind and weather permitting." He relied, also, upon affidavits which disclosed the following facts: -The prisoner, with two other persons, Gram and Corwelyn, was taken into custody on board the vessel in question by an officer of the Customs, on the 19th of August. They were brought before certain Magistrates of the borough of Great Grimsby on the 21st of August, and by them remanded until the 31st of August. On that day they were brought up for examination, and the evidence in support of the charge against Gram having been gone into, he was convicted. Immediately after Gram's conviction, about half-past
one in the day, and before the other prisoners had pleaded to the informations, the Magistrates, upon the ground that one of their number had an engagement elsewhere, postponed the hearing of the charges against Van Boven and Corwelyn until the following day, after protest on behalf of the prisoners against such a postponement. On the following day (September 1st) the same Magistrates heard and adjudicated on the case of Van Boven. This detention, it was now contended, was illegal, not being warranted by the 58th section and, consequently, that no good conviction or commitment could be grounded upon it.
Sir J. Jervis (Attorney General), Sir D. Dundas (Solicitor General), and E. Lawes, shewed cause (November 24).First, the conviction upon which this warrant of commitment was founded describes the offence in the same terms as the warrant, and follows the words of the statute; and further, the depositions (verified by affidavit), taken before the Magistrates at the hearing of this charge, shew that there is no pretence, in fact, for the suggestion that the vessel in question was within the exemption mentioned in the 4th section, the prisoner having been taken, in the vessel close to the shore, in the act of smuggling. The provisions of the 103rd section, therefore, furnish an answer to this application. Secondly, it was not necessary that the information, the conviction, or the warrant of commitment should negative the exceptions contained. in the 4th section. The offence is complete if described in the words of the 2nd section. The 4th section contains altogether independent and substantive provisions, which it was for the defendant to have pleaded, and availed himself of, if possible. The general rule on this subject is correctly stated in Burn's Justice, tit. Conviction." It has been said, 'that a conviction on a penal statute ought expressly to shew that the defendant is not within any of its provisions; for, since no plea can be admitted to such a conviction, and the defendant can have no remedy against it, but from an exception to some defect appearing on the face of it, and all the proceedings. are in a summary manner, it is but reasonable that such a conviction should have the highest certainty, and satisfy the Court that
the defendant had no such matter in his favour as the statute itself allows him to plead'-2 Hawk. c. 25. s. 113. But this is to be understood with the following limitation, that where the enacting clause of a statute constitutes an act to be an offence under certain circumstances, and not under others, then, as the act is an offence only sub modo, the particular exceptions must be expressly specified and negatived; but where a statute constitutes an act to be an offence generally, and in a subsequent clause makes a proviso or exception in favour of particular cases, or in the same clause, but not in the enacting part of it, by words of reference or otherwise, makes such proviso or exception, there the proviso is a matter of defence or excuse, which could not be noticed in the information" (1)—Thibault v. Gibson (2). Lastly, the alleged detention for an unreasonable time may possibly make the Magistrates trespassers, but it cannot operate so as to take away their jurisdiction and invalidate their proceedings.
Lush, contrà.-First, neither the conviction nor the depositions can be looked at by the Court, for the purpose of supporting this commitment, under which alone the prisoner is detained-The Queen v. Chaney (3). And the 103rd section does not aid the prosecutors, because, secondly, the commitment itself does not state an offence-The Queen v. King (4). The 4th section is not in the nature of a proviso, but must be incorporated and read with the 2nd section. If there be in a statute inflicting a penalty, a proviso exempting certain persons, a defendant relying on such exemption must plead and prove it; but where the statute says, that under certain circumstances, the act done shall not constitute an offence, a conviction must negative such circumstances, or it shews no offence-Spieres v. Parker (5), Fletcher v. Calthorp (6), In re Turner (7).
Lastly, assuming that the detention from the 19th to the 31st of August was lawful under the 58th section, for the purposes mentioned in the preamble to that section, the remand from the 31st of August to the 1st of September was illegal, and no proceeding could be engrafted on it-The Attorney General v. Dorkings (8).
[ERLE, J.-That was a case where a party was illegally arrested, and while in custody civil process was served upon him. You assume that the whole power of the Justices here is under the 8 & 9 Vict. c. 89; but they needed no statutory power to justify his detention or remand; the common law gives them the power, if it be necessary.]
Cur. adv. vult.
On the following day (Nov. 25) their Lordships delivered their opinions seriatim.
LORD DENMAN, C.J.-My Brothers are of opinion, that the prisoner should be remanded; but I ought to mention that I entertain great doubts as to the goodness of the warrant - [His Lordship stated the warrant.] The contention on the part of the prisoner was, that although the words of the commitment follow the very words of the statute (which they do), yet they disclose no offence; and on this point I certainly entertain considerable doubt, the circumstance of a foreigner being on board a vessel within a certain distance from the shore being an act innocent in itself. There might be circumstances, such as stress of weather, as well as those enumerated in the 4th section of the act under which it would have been no offence at all to have been found where the prisoner was; and I think, on general principles, that where an act done is in itself indifferent, the statement of circumstances making it an offence should be complete. I admit that in general, where an exception is contained in a different section from that which imposes the penalty, the party charged must shew that he is within the exception, but I doubt whether this rule applies where the act is innocent in itself. I am aware that it may have been the intention of the legislature to make the act the guilty act, and to put it
(8) 11 Price, 156.
upon the party charged to shew the excuse, and I am also aware that it is very inconvenient to load a conviction with numerous exceptions. At the same time, I cannot but think it necessary that we should see that the large powers given by this statute, accompanied, as they are, by rewards to officers acting under them, should not be exceeded. In saying this I merely state a doubt, and do not wish to be understood as giving a final opinion.
COLERIDGE, J.-This is a commitment under the 50th section of 8 & 9 Vict. c. 87; and the first question is, whether the exceptions to the operation of the act, which are contained in the 4th section, ought to have been negatived. The prisoner is found on board a foreign vessel, having tobacco stalks on board: she becomes thereby liable to forfeiture under the 2nd section. The exceptions in question are not referred to by the enacting section; but the section containing them is in the nature of a limitation upon it, declaring that nothing therein contained shall extend to vessels under the circumstances, which it goes on to specify. The general rule respecting the framing of commitments and convictions in this respect is well known, and was not questioned in the argument; and I think no distinction arises to take this case out of its operation, from the particular wording of the 4th section. It is in substance a distinct and independent clause of exceptions; and, therefore, it would properly be for the prisoner to bring himself within it by way of defence. But, for the prisoner, it was argued that the general rule did not apply, where the excepting clause did not create personal exemptions, but introduced limitations or modifications into the definition of the offence: that it was essential for the conviction or commitment fully to state all circumstances constituting an offence; and that here no offence was stated, because it could not be contended that, merely for being within a league of our coast, with tobacco stalks on board, every foreign vessel was liable to forfeiture. In re Turner, and the cases there cited, were relied on. This case, however, as it seems to me, is distinguishable. Supposing that there was no such clause in the act as the 4th section, it might seem a strong thing for the legislature to have passed