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mere circumstance that the exception is within or without the enacting clause; but upon the question whether the
exception modifies the offence itself; so that if it be in a separate clause, the offence is created not by the enacting clause alone, but by the two taken together. That is the case here ; and in all such cases the exception must be negatived. It is otherwise with regard to an exemption of particular persons, as of passengers in the fiftieth section of this very Act, who are bound to bring themselves within the exemption. In Fletcher v. Calthrop (6 Q. B. 880 ; 1 New Mag. Cas. 223), Lord Denman, C.J., in delivering the judgment of the Court said (pp. 890, 891),
66 Where a certain act is made punishable by summary conviction, which act may be lawful, if performed under certain circumstances, these circumstances ought to be negatived in the conviction. None of us doubt that where the proof must negative such circumstances, the allegation in the instrument of conviction ought to do the same ;” and R. v. Baines (2 Ld. Raym. 1265, 1269), and R. v. Corden (4 Burr. 2279, 2282) were cited. In the case of Re Turner (15 L.J. M. C. 140; 1 New Mag. Cas. 574), this Court also held that a conviction under 4 Geo. 4, c. 34, s. 3, for absenting from service is bad, if it omit to state that the absence was without lawful excuse. These cases are distinct authorities for the position that the conviction must state an offence within the true meaning of the Act of Parliament; and the merely being on board a vessel, which was within a league of the coast and had tobacco-stalks on board, is not the offence prohibited by this statute. Secondly, the detention of the prisoner was illegal from the 21st of August, because the justices, instead of ordering him to be detained by the officer of customs, committed him to the borough gaol; and that commitment ought to have been by warrant in writing ; but at all events it was illegal after the 31st; as on that day the justices were bound to enter upon the investigation of the case, according to the directions of s. 58. That section gives them a power, which at common law they would not have, of detaining the parties charged for a reasonable time; but when they have exercised that power and fixed the time at which the matter is to be heard, they have no longer any authority to detain the party, unless upon the hearing of the case they see reason to remand. They cannot capriciously keep parties in custody from time to time until they choose to hear the charge. [ERLE, J.I do not agree with you that the 58th section gives the justices any power which they would not have at common law. I think it rather unfortunate that that section should have been inserted; because I take it to be quite clear that at common law the magistrates would have a general authority to detain so long as they should consider necessary for the purposes of justice.] Throughout this Act, with the exception of s. 58, the only persons who have authority to detain offenders are the officers of customs and of the preventive service, who are also the persons required by the Act to bring offenders before magistrates. In cases in which the parties are not liable to be detained, the proceedings are by summons (sec. 83). The magistrates therefore have only a special power under s. 58, and they have not pursued it. The consequence is, that on the 1st of September, when the defendant was brought up and convicted, he was in illegal custody, and the Crown cannot make an illegal custody the foundation for legal process. (Attorney-General v. Dorkings, 11 Price, 156.) (a) Lord Denman, C.J.-My two learned brothers who heard this case argued, are of opinion that the prisoner ought to be remanded, and they will state their reasons for entertaining that opinion. It is a very short time, I understand, that the prisoner has to remain in custody under the conviction, but I own I entertain the greatest doubts whether the conviction is a good conviction. He is convicted and sent to prison for having violated the Act of the 8 & 9 Vict. c. 87, in that, being a foreigner, he has been found on board a foreign ship, having tobacco-stalks on board, within a league of the English coast; and the contention on the part of the prisoner was, that though these words follow the Act of Parliament (and they do), yet they do not state any offence; and I certainly feel great doubts whether that is not so, because it seems to me that the mere fact of being on board a ship within a certain distance not only may be a perfectly innocent act, but that circumstances are contemplated by the Act of Parliament itself, which shew that by that Act it may be innocent. In the 3rd section the exception is introduced into the clause itself, “not being driven thereto by stress of weather ;” that is introduced as an exclusion from the offence, so that in that case, apparently, it ought to be negatived. In the 2nd section, the one in question, it is made an offence for a foreign vessel having certain goods on board to be within one league of the coast of the United Kingdom ; but the 4th section says that nothing in the Act contained shall extend to a variety of cases which are therein mentioned, and all those cases, therefore, would amount to an exemption of the party's liability to be convicted for being on board the ship. Now I confess it seems to me, that, upon general principles, the statement of the offence should be made complete, and that there is no offence stated where the act is in itself perfectly indifferent, and where the law declares that, under particular circumstances, the party doing the act shall be entirely excluded. I am aware that where the offence is created in one section, and an exception is introduced into another, there it is not necessary to negative the exception, but that prima facie the party must be taken to have offended, and that the matter of excuse can come out on his part by way of defence; but where it is an act that may be perfectly innocent, I do not think that the offence is created unless the excuse is negatived. I am quite aware that the intention of the legislature may have been to make the mere fact of being on board an offence, and to make the excuse come by way defence, and I am quite aware too of the inconvenience of requiring the conviction to negative a great many different modes of excuse ; but I cannot from that draw what I call a legal and reasonable implication that it is not necessary so to state it. I cannot help
Cur. adv. vult. The Court being divided, the judges now delivered their judgments seriatim. (a) In that case the original arrest was made issued out of the Exchequer, upon an information without any legal authority, and from the time of filed against him by the Attorney-General, and a that arrest to the time of the application for dis
The Court nevertheless held charge, the defendant had been in one continued him entitled to be discharged. imprisonment; but in the interval a capias had
thinking that these Acts ought all to be very specially watched, and that summary convictions ought to be carried into effect according to the very words of the Act, particularly in the case of revenue provisions. It is very necessary that very large powers should be given, and I think it is equally necessary that the Court should see that those large powers are not exceeded. There are certainly some provisions in this Act which put one on one's guard, and which require the most vigilant attention to see that the law is very strictly followed; such as this : that a person is to be punished as an offender if he is found or discovered to be, or to have been, on board a vessel, which vessel may have, or may have had at any period, on board certain particular prohibited goods. It is a very alarming sort of provision, and the more so as rewards are given to officers who seize, and, I believe, who bring persons into custody. (a) That is only a mode of general reasoning, but it has been acted upon by this Court on various occasions, requiring, as I think, the very utmost strictness in the construction of laws. I merely state this as my
(a) Secs. 71 and 73.
doubt, not as a final opinion, but as leaving the question so far open as it can be left after my learned brothers have given their opinion that this party ought to be remanded, in case the same question shall again arise.
COLERIDGE, J.-I quite agree with my lord, that this is a doubtful matter upon which to give an opinion, and I regret that, since the case was argued yesterday, I have not had more time thoroughly to examine the Act of Parliament; but, giving the best opinion that I can under the circumstances, I certainly am of opinion that the prisoner ought to be remanded. This is a commitment under the 50th section of the 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, and within a certain distance from the coast. She becomes thereby liable to forfeiture under the 2nd section. The exceptions in question apply to her. They are not referred to by the enacting section (sec. 2), 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 that 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, relied upon, 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 him, it was argued that the general rule did not apply where the excepting clause did not go to create personal exemptions, but introduced limitations or modifications into the definition of the offence, and that it was essential for the conviction or commitment fully to state all the 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. The case of Re Turner (15 Law Journal, Magistrates' Cases, 140), was cited, and in that case several cases bearing upon the subject will be found. In my opinion, that case and this are distinguishable. Supposing that there was no such clause in the present Act as the 4th clause, it certainly might seem a strange thing for the legislature to have passed such an enactment as that in the 2nd, but it could not have been contended in a court of English justice that a prisoner brought within its terms was not also within its penalty, and that the person in the vessel had not committed the offence. It seems to me, therefore, that prima facie it must be considered that an offence is stated. But an observation arises upon the enacting section, the 2nd section, in this case, which seems to me to furnish a strong argument against the prisoner, viz. that in the body of that section several exceptions are in terms introduced which it clearly would be necessary to negative. When we find these thus separated from those which are included in the 4th section, it seems to follow that it is intended to leave the latter as matter of defence, and that the exclusion of them in the first instance is not necessary to constitute the offence. It is to be remembered further, that the offence upon which the prisoner is convicted is under the 50th section, and that speaks of a vessel & liable to forfeiture,” not generally “under this Act,” but “ for any of the causes last aforesaid.” Now these are the causes specifically mentioned in the earlier part of that section, which are complete in themselves and do not at all include or refer to the modifications or exceptions in the 4th section. It seems to me that there is no practical hardship hereby cast upon the prisoner. He must know better than any one the particular excusing circumstances, if
under which his vessel, or he himself, was found within the prohibited distance; whereas, if the prosecutor, the informant, is bound to negative one, he must negative all the exceptions in the 4th section, and of course he must offer some, if slight, evidence of the truth of the allegation. This would extend to many circumstances wholly irrelevant, of which, too, none perhaps might be likely to be within his cognizance at all. There was another objection taken, which we think received a satisfactory answer at the bar. The objection was founded on the notion that the justices had all their power to hear the complaint under the 58th section, and that, therefore, this was a special power, and had not been regularly acted on. I think that clause does not give the jurisdiction, but merely, and perhaps ex abundanti cautelů, gives a power of detainer for the particular purpose there mentioned of obtaining the order of prosecution from the Commissioners of Customs. The jurisdiction of the justices is given to them, as such, under the 50th section. Whether there has been an illegal detainer, or whether the magistrates properly or improperly remanded the prisoner from the 31st of August, is immaterial to this conviction, and upon these questions I beg to say nothing at all. The justices still had their jurisdiction to hear and determine the offence when they did. Therefore, I think the prisoner ought to be remanded.
Lord DENMAN, C. J.--I have no doubt of the jurisdiction. ERLE, J.-I agree entirely with my brother Coleridge in the judgment which he has delivered. I have read that judgment, and it expresses the opinion I had formed. I will only state that it appears to me extremely important, where the offence is defined by one section, and the exception to that offence is specified in a subsequent section, that it should be the rule that the party prosecuting for that offence is not bound to negative the exception. I do not say that it is a rule which is universally applicable, but it is a very general rule; it appears to me to be of great importance to abide by it, and it applies to the present case.
Prisoner remanded. B.
COURT OF QUEEN'S BENCH.
Michaelmas Term.- November 18, 1846.
Grounds of appeal-Office settlement.
which the requisite ingredients for the settlement appear by necessary intendment. A ground of appeal stated that the said paupers were legally sellled in parish A. "by reason of the
said pauper, J. R., the father, having for many years, to wit, the years 1832, 1833, and 1834, and afterwards, served the offices of assessor and collector of the land-tax, and also of the assessed taxes, in parish A., and to which said offices he was legally and duly appointed, and during which
years he was an inhabitant and resident in the said parish.” Held, a sufficient statement of a settlement by serving an office, as the Court would take judicial
notice that the said offices were annual, (a) and it sufficiently appearing by the said ground of appeal that the pauper served the office for himself and on his own account, and that he had resided forty days in the parish. N appeal, the Sessions for the county of Dorset confirmed an order for the removal of James Furber, Mary his wife, and Frederick their child,
(a) See 38 Geo. 3, c. 5, and 43 Geo. 3, c. 99.
from the parish of Lytchet Minster to the parish of Anderson, in the said county, subject to the following
Case. The sixth and material ground of appeal was as follows :—“ That the said paupers were, at the time of granting the said order, and are now, legally settled in the parish of Chaldron Herring, in the said county of Dorset, by reason that the pauper, the said J. Furber, having for many years, to wit, the years 1832, 1893, and 1834, and afterwards, served the offices of assessor and collector of the land-tax, and also of the assessed taxes, in the tithing of Chaldron West, in the parish of Chaldron Herring, and to which said offices he was duly and legally appointed, and during which years he was an inhabitant and resident in the said parish of Chaldron Herring, and for some time afterwards.” At the trial the respondents called the pauper, James Furber, and proved a settlement in the appellant parish, by renting a tenement from the year 1816 to 1823. The appellants then proposed to examine the said pauper, with a view to a proof of a subsequent settlement, obtained by him in the parish of Chaldron Herring, by serving the offices of collector of land-tax during the years 1832, 1833, and 1834, in the said parish of Chaldron Herring, as alleged in the said sixth ground of appeal.
Whereupon it was objected by the counsel for the respondents, that the appellants were precluded from giving any evidence of such settlement, by reason of the insufficiency of the statement in the said sixth ground of appeal, inasmuch as it did not set forth that it was a public annual office which the pauper had served, or that he had served it for himself and on his own account, and inasmuch as it did not appear therefrom that he had resided for the space of forty days in said parish of Chaldron Herring during the time of his serving such office in the said parish.
After hearing arguments by the counsel on both sides, the Court held the objection good, but permitted the appellants to prove, and they did in fact prove, that the said pauper, subsequently to his obtaining a settlement in the said parish of Chaldron Herring, by serving the office of collector of land-tax therein during the years in the said sixth ground mentioned, and that the said office was a public annual office, to which he was duly and legally appointed, and that he served it for himself and on his own account, and that he resided in the said parish of Chaldron Herring throughout the period of his said service. This proof having been gone through, the Court confirmed the order, subject to the opinion of the Court of Queen's Bench.
The question for the opinion of the Court is, whether the sixth ground of appeal was sufficient to let the appellants in to proof of the settlement alleged therein.
If the Court should be of opinion that it was sufficient, the order of Sessions and the order of removal are to be quashed; and if not, the order of Sessions is to be confirmed.
Lucerna and W. Ffooks, in support of the order.-It is needless to cite cases to shew that the same particularity is necessary in grounds of appeal as in examinations; and as office settlement is distinctly given by statute, all the requisites of the statute should be clearly set forth. Reg. v. Sherborne (2 Q. B. 545, n.); Reg. v. Wymondham (2 Q. B. 541); Reg. v. St. Anne's, Westminster (2 New Sess. Cas. 389; 1 New Mag. Cas. 578), are instances of the exactness which this Court has enforced. The words of the 3 W. & M.c. 11, are, “If any person who shall come to inhabit in any town or parish shall, for himself and on his own account, execute any public annual office or charge in the said town or parish