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COURT OF QUEEN'S BENCH.
Michaelmas Term.-- November 25, 1846.

Re Van Boven.
Conviction under the Smuggling Act, 8 & 9 Vict. c. 87-Negativing erceptionsJurisdiction of

justices. The stat. 8 & 9 Vict. c. 87, s. 2, forfeits any foreign vessel found within one league of the coast of the

United Kingdom," and having on board any tobacco-stalks, g'c. By s. 50, every person, not being a subject of her Majesty who shall be found on board any vessel liable to forfeiture," for being found within the prohibited distance, having on board such goods as subject her to forfeiture, shall

, upon being convicted of the said offence before any two justices, be sentenced to imprisonment. The 4ih section enacts, that nothing herein contained shall extendto render vessels liable to forfeiture under the

various particular circumstances therein mentioned. Held, by Coleridge, J., and Erle, J. (dubitante Lord Denman, C. J.), that in a conviction under the

50th section it is not necessary to negative the exceptions specified in the 4th. By s. 58, power is given to any justice, before whom persons detained by officers of customs for any offence under the Act may be brought, to order the detention of such persons for a reasonable time, at the expiration of which they are to be brought before any two justices, who are thereby authorized and required finally to hear and determine the matter. Held, that the jurisdiction of the justices was not by this section limited to a hearing at the expiration of the period of detention ; and that if the defendants were brought up pursuant to the first order of detention, and the matter was not then heard, but another. order made for their detention to a future day, the justices would still have jurisdiction to hear and determine the matter on that future day.

WRIT of habeas corpus had issued, directed to the keeper of the house

of correction at Louth, in the county of Lincoln, to bring up the body of James Van Boven, to which writ the said keeper had returned the following warrant of commitment :Borough of Grimsby, To James Watt, an officer of customs, and to

parts of Lindsey, John Joseph Brian, the gaoler or keeper of the house County Lincoln, to wit. ) of correction at Louth, in the parts of Lindsey, in the county of Lincoln.

“Whereas James Van Boven has this day been duly convicted before us, William Brookes, Esq., mayor, Thomas Bell, and Charles Perceval Loft, Esqs., 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, A.D. 1846, he, the said James Van Boven, not being a subject of her Majesty, and being liable to be detained for the offence therein mentioned, was found on 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 A.D. 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, A.D. 1846, found on the high seas aforesaid, within one league of the coast, &c., the said vessel then and there having on board, whilst the said vessel was within the said space of one league from the said coast, and whilst the said James Van Boven was on board thereof, divers, to wit, 2,688 pounds weight of tobacco-stalks, contra formam, &c. 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, &c. 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 James Watt, forth with to take, carry, and convey the said J. Van Boven to the said house of correction at Louth, in the said parts of Lindsey, &c., and to deliver him into the custody of the gaoler or keeper of the said house of correction ; and we, the said justices, do hereby authorize and require you, J. J. 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 said term of six calendar months, to hard labour. Given under our hands and seals, at Great Grimsby, &c., this 1st day of September, A.D. 1846.”

By the affidavits upon which the writ had issued, it appeared that the prisoner, with two other

persons, had been arrested by officers of customs, on board the Unternemung, a Dutch vessel, off the coast of Lincolnshire, on the 19th of August, 1846, pursuant to the provisions of 8 & 9 Vict. c. 87, s. 50; that on the 21st they were taken before two magistrates of the borough of Great Grimsby, who ordered them to be detained in the borough gaol until Monday, the 31st of August; that on that day they were brought before the three magistrates who signed the above warrant, and the case of one of the prisoners was heard and decided ; that one of the magistrates, it being then about one o'clock, stated that he had another engagement, and that the case of Van Boven and the other prisoner must be postponed to the following day; that the attorney for the prisoners objected to that postponement, in which, however, the magistrates persisted, and the prisoners were detained until the next day in custody; that on Tuesday, the 1st of September, Van Boven and the other prisoner were brought before the same magistrates ; that their attorney then objected that the magistrates had no jurisdiction, and the prisoners, acting upon his advice, handed in a written refusal to plead upon that ground; but that the justices proceeded to hear the case, and sentenced Van Boven to six months'imprisonment. The affidavit of the attorney, stating the grounds of objection to the conviction, as required by stat. 8 & 9 Vict. c. 87, s. 101, (a) stated in substance that the commitment set forth no offence under the Act; that the magistrates had given to the gaoler no warrant or authority in writing for the detention of the prisoner from the 21st to the 31st of August; and lastly, that the justices lost their jurisdiction by not proceeding to hear the case on the 31st.

Lush, on Tuesday, November 24, moved that the prisoner be discharged.

Jervis, Attorney-General, Dundas, Solicitor-General, and Lawes, opposed the discharge. —The first ground of application is, that the conviction, as set out in the warrant, states no offence; but it is enough to follow the words of the Act (s. 103), (6) and this conviction does so. By the terms of the 103rd section no

(a) Sec. 101. “ And be it enacted, that no writ duly sworn, the grounds of objection to such proof certiorari shall issue to remove any proceedings ceedings or conviction ; and that upon the return before any justice or justices of the peace under to such writ of certiorari or habeas corpus, no obthis or any Act relating to the customs, nor jection shall be taken cr considered, other than shall any writ of habeas corpus issue to bring up such as shall have been stated in such affidavit ; the body of any person who shall have been con- and that it shall be lawful for any justice or jusvicted before any justice or justices of the peace tices of the peace, and they are hereby required, to under any such Act, unless the party against whom amend any information, conviction, or warrant of such proceeding shall have been directed, or who commitment for any offence under any such Act, at shall bave been so convicted, or his attorney or any time, whether before or after conviction." agent, shall state in an affidavit in writing, to be (6) Sec. 103. “ Aod be it enacted, that every warrant is to be held void for any defect of form, if it shall appear to the Court that in substance the party has been properly convicted. When, therefore, a party applies to be discharged, he ought to bring up the depositions by certiorari, to shew that the conviction is substantially erroneous. (LORD DENMAN, C. J.-Does it not rather lie upon you to shew a conviction upon proper grounds, as an answer to objections upon the face of the warrant ?] We cannot obtain a certiorari for the purpose, for the Act requires notice of application for a certiorari or habeas corpus to be given to the solicitor of customs (s. 102). (a) Further, upon habeas corpus, the gaoler is the only person who appears before the Court to support the imprisonment, and he cannot bring the depositions. It is reasonable that those who apply should produce all the materials necessary to a decision ; but if the Court should think that we are bound to do so, we are prepared to produce the depositions, verified by the affidavit of the clerk to the magistrates. [Lush objected to their production, unless regularly brought before the Court by writ of certiorari.] The prisoner is convicted under the 50th section (b) of the Smuggling Act (8 & 9 Vict. c. 87), for being on board a vessel liable to forfeiture under the 2nd section (c) of that Act; and the objection to the warrant is, that it does information preferred to enforce any punishment, having conveyed in any manner such goods or things penalty, or forfeiture, for any offence committed as subject such vessel or boat to forfeiture, or who against this or any Act or Acts relating to the shall be found or discovered to have been within customs, and every conviction or warrant of com- any such distances as aforesaid on board any vessel mitment for any such offence, shall be deemed or boat from which any part of the cargo or lading valid avd sufficient, in which the offence for which of such vessel or boat shall have been thrown oversuch punishment or penalty shall have been inflicted, board or staved, or destroyed, to prevent seizure ; or the cause of such forfeiture, is set forth in the and every person, not being a subject of her Majesty, words of the Act or Acts by which such punishment who shall be found or discovered to have been on or penalty has been inflicted, or under which such board any vessel or boat liable to forfeiture for any forfeiture has been incurred; and that no warrant of the causes last aforesaid within one league of the of commitment for any such offence shall be held coast of the United Kingdom or of the Isle of Man, void by reason of any defect in such warrant, nor shall, upon being duly convicted of any of the said sball any party be entitled to be discharged out of offences before any two justices of the peace, be custody on account of any such defect; provided adjudged by such justices, for the first of such it be alleged in such warrant that the said party has offences, to be imprisoned in any house of correcbeen convicted of such offence, and provided it shall tion, and there kept to hard labour, for any term appear to the Court or judge before whom such not less than six, nor greater than nine calendar warrant is returned that such conviction proceeded months; and for the second of such offences, for upon good and valid grounds."

any term not less than pine, nor greater than twelve (a) Sec. 102. And be it enacted, that no such calendar months; and for the third, or any subsewrit (of certiorari or habeas corpus) shall issue quent offence, for twelve calendar months; and it without notice in writing of the issuing thereof to shall be lawful for any officer or officers of the army, the solicitor for the Customs, and that no return to navy, or marines, being duly employed for the preany such writ shall be considered by any of her vention of smuggling and on full pay, or any officer Majesty's Courts at Westminster, Dublin, or Edin- or officers of customs or excise, or other person burgh, or by any of her Majesty's judges of any acting in his or their aid or assistance, or duly emof the said courts, unless there shall be produced to ployed for the prevention of smuggling, and he and such Court or judge an affidavit in writing, duly they is and are hereby authorized, empowered, and sworn, stating that notice of the issuing of such required to detain every such person, and to take writ was given to the solicitor for the Customs, or such person before any justice of the peace in the left at his office, four clear days before the return United Kingdom or in the Isle of Man, to be dealt of such writ; and that with respect to all such with as hereinafter directed: provided always, that writs, there shall be an interval of four clear days any such person proving to the satisfaction of any at least between the day on which they issue and justice or justices before whom he may be brought the day on which they are returnable, and any such that he was only a passenger in such vessel or boat, writ issuing without such notice, and not being and had no interest whatever either in the vessel or in conformity to the directions herein contained, boat, or in the cargo or any goods on board the shall be void to all intents and purposes whatso- same, shall be forth with discharged by such justice ever."

or justices." (6) Sec. 50. " And be it enacted, that every

(C) Sec. 2.

“ And be it enacted, that if any vessel person, being a subject of her Majesty, who shall not being square-rigged, or any boat, either bebe found or discovered to have been on board any longing in the wbole or part to her Majesty's subvessel or boat liable to forfeiture under this or any jects, or baving half the persons on board subjects Act relating to the customs, for being found or dis- of her Majesty, shall be found or discovered to have covered to have been within any of the distances in been within one hundred leagues of the coast of the this Act mentioned from the United Kingdom or United Kingdom; or if any vessel either belonging from the Isle of Man, having on board, or in any in the whole or in part to her Majesty's subjects, manner attached thereto, or having had on board or or having half the persons on board subjects of her in any manner attached thereto, or conveying or Majesty; or if any foreign vessel, not being square not negative certain exceptions in a different clause (s. 4), (a) as, amongst others, that the vessel was not really bound from one foreign port to another ; but the first answer is, that that is quite unnecessary, those exceptions being proper matters of defence, which ought to come from the other side. (Burns Justice, by Chetwynd, tit. “ Conviction," p. 594, citing 2 Hawk. c. 25, s. 113.) In Thibault v. Gibson (12 M. & W. 88, 95), Parke, B. quotes the following passage from 1 Wms. Saund. 262, a, with approval :-"Wherever a statute inflicts a penalty for an offence created by it, upon conviction before one or more justices of the peace; but there is an exception in the enacting clause of persons under particular circumstances; it is necessary to state in the information that the defendant is not within any of the exceptions. And it seems immaterial whether the exception be in the same section or in a preceding Act of Parliament referred to by the enacting clause; but where the exception is contained in a proviso in a subsequent section or Act of Parliament, it is matter of defence, and therefore it is not necessary to state in the conviction that the defendant is not within such proviso." This case falls within the latter class, because the exceptions in the 4th section are by way of proviso upon the second, and there is no reference to these exceptions in the 50th section. The second answer is afforded by the depositions, which shew this objection to be one of form only, and negative any notion that the vessel was proceeding on a foreign voyage. [COLERIDGE, J.-I do not see how the depositions shew this objection to be one of form.] They shew that it has no foundation in fact, and the affidavits upon which the writ issued state nothing to lead to a contrary inference. The second objection is, that the detention was illegal from the 21st of August. The capture took place on the 19th ; on the 21st the defendant was taken before two justices at Grimsby, who rigged, or any foreign boat, in which there shall be herein contained shall extend to render any vessel of one or more subjects of her Majesty, shall be found the burden of 120 tons or upwards liable to foror discovered to have been within four leagues of feiture on account of any tobacco or snuff, coming that part of the United Kingdom which is between direct from the East Indies, and being in packages, the North Foreland on the coast of Kept and each containiog 100 lbs. weight of tobacco or snuff Beacby Head on the coast of Sussex, or within at least; or on account of any cigars, being in packeight leagues of any other part of the coast of the ages, each containing 100 lbs. weight of cigars at United Kingdom ; or if any foreign vessel or boat least; or on account of any tobacco, the produce of shall be found or discovered to have been within one Mexico, Columbia, the continent of South America, league of the coast of the United Kingdom; or if or of the islands of St. Domingo or Cuba, coming any vessel or boat shall be found or discovered direct from those places respectively, or from the to have been within one league of the islands warehouse in any British possession in America, of Guernsey, Jersey, Alderney, Sark, or Man in packages each containing eighty lbs, weight of respectively, or within any bay, harbour, river, tobacco at least; or on account of any negrohead or creek of or belonging to any one of the said tobacco, the produce of and coming direct from the islands, any such vessel or boat so found or dis. United States of America, in packages each concovered, having on board or in any manner attached taining of such tobacco 160 pounds weight at least; thereto, or having had on board or in any manner or on account of any tobacco of the dominions of the attached thereto, or conveying or having conveyed Turkish empire which may be separated or divided in any manner any spirits, not being in a cask or in any manner within the outward package, such other vessel capable of containing liquids of the size outward package being a bogshead, cask, chest, or or content of twenty gallons at the least; or any case, containing of such tobacco 300 pounds weight tea, exceeding six lbs. weight in the whole ; or any at least; nor to render any vessel of 60 tons burden tobacco or snuff, not being in a cask or package or upwards liable to forfeiture on account of any tea, containing 300 lbs. weight of tobacco or snuff at or of any spirits in glass bottles or in stone bottles, least, or being separated or divided in any manner not exceeding the size of quart bottles, such towithin any cask or package ; or any tobacco-stalks ; bacco, snuff, cigars, tea, and spirits being really or any cordage or other articles adapted and prepared part of the cargo of such vessel, and included in the for slinging or sinking small casks, or any casks or manifest or other papers of such vessel, enumerating other vessels whatsoever, of less size or content or describing the cargo thereof; nor to render any than twenty gallons, of the description used for the vessel liable to forfeiture on account of any spirits, smuggling of spirits ; then, and in every such case, tea, or tobacco really intended for the consumption the said spirits, tea, tobacco, or snuff and tobacco- of the seamen and passengers on board during their stalks, together with the casks or packages con- voyage, and not being more in quantity than is taining the same, and the cordage or other articles, necessary for that purpose; nor to render any vessel casks and other vessels of the description aforesaid, liable to forfeiture if really bound from one foreign and also the vessel or boat, shall be forfeited." port to another foreign port, and pursuing such

(a) Sec. 4. " And be it enacted, that nothing voyage, wind and weather permitting."

ordered him to be detained until the 31st, and committed him to the town prison without any written warrant. On Saturday, the 31st, he was again brought up; but there being other business which occupied the magistrates until the middle of the day, he was again remanded until the Monday following, when he was brought up and convicted, and sentenced to six months. imprisonment. Now the Act of Parliament (s. 58) (a) expressly provides that parties arrested under it may be detained in custody a reasonable time before the charge is investigated ; and even assuming that the magistrates ought to have proceeded with the case on the 31st, and that they detained an unreasonable time, that might perhaps render them liable in trespass, but it does not affect the jurisdiction given to them as justices to deal with the case; but, in truth, what the magistrates did was merely a continuation of the original custody, and the Act of Parliament requires no warrant in writing.

Lush, in support of the discharge.—This commitment is not aided by s. 103 of the Smuggling Act, because it contains no statement that the party has been convicted of any offence under that Act. That clause will cure defects of form, if the warrant states a conviction for an offence under the Act; but it would not be enough to say that the prisoner had been convicted without adding of what. (R. v. King, 1 D. & L. 721, 723, per Patteson, J.) Nor can this warrant be aided by the conviction or depositions, because they have not been regularly returned to a writ of certiorari, and the Court therefore cannot look at them. R. v. Chaney (6 Dowl. 281); where Patteson, J. said (p. 289), “ It is true that on the part of the Crown it was offered, in the course of the argument, to produce the conviction, but I cannot look at it, because it ought to be brought here regularly by writ.” Does, then, the warrant state any offence? This is not like the ordinary case of an exception in a distinct clause; for here the 4th clause in terms overrides all the others, and enacts that nothing in that Act contained shall be construed to extend to any vessels, &c., particularizing the cases to which the Act does not apply. So that the general words of the second section (upon which the offence in the fiftieth section depends) only create an offence sub modo; they are qualified by the fourth section ; and where that is the case the offence is not described unless the exceptions are negatived. [Lord DENMAN, C. J.-In a case depending upon the Joint Stock Companies Registration Act we recently held that words of exception in one clause overrode all the other clauses.] (6) The passage cited from Burn's Justice supports this view, for it is said, "Where the enacting clause of a statute constitutes an act to be an offence under certain circumstances and not under others, there, as the act is an offence only sub modo, the particular exceptions must be expressly specified and negatived.” So per Lord Mansfield, C. J., in Spieres v. Parker (1 T. R. 141, 144). {ERLE, J.-Does it not amount to this; all foreign vessels within a league of the shore, having tobacco-stalks on board are forfeited; exemption, vessels really proceeding on a foreign voyage ?] No; the first is no offence at all ; and that points out the true distinction, which does not depend upon the

(a) Sec. 58. " And whereas it is expedient that against this or any other Act or Acts relating to the time should be allowed to obtain the order of the customs, and shall have been taken before any Commissioners of Customs or Excise, as hereafter justice of the peace; if it shall appear to such directed, and also to prepare informations, convic. justice that there is reasonable cause to detain such tions, and warrants of commitment; be it enacted, person or persons, such justice may, and is hereby that when any person or persons shall bave been authorised and required to order such person or detained by any officer or officers of the army, navy, persons to be detained a reasonable time, and at the or marines, being duly employed for the prevention expiration of such time to be brought before any two of smuggling and on full pay, or by any officer of justices of the peace, who are hereby authorized customs or excise, or any person or persons acting and required finally to hear and determine the in his or their aid or assistance, or duly employed matter." for the prevention of smuggling, for any offence (6) Lawton v. Hickman, 7 L. T. 430.

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