COURT OF QUEEN'S BENCH.

Michaelmas Term.-November 25, 1846.

Re VAN BOVEN.

Conviction under the Smuggling Act, 8 & 9 Vict. c. 87-Negativing exceptions—Jurisdiction 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, &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 4th section enacts, "that nothing herein contained shall extend" to 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.

A 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, parts of Lindsey, County Lincoln, to wit. the county of Lincoln.

To James Watt, an officer of customs, and to John Joseph Brian, the gaoler or keeper of the house of correction at Louth, in the parts of Lindsey, in

"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, forthwith 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 autho rize 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.

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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), (b) and this conviction does so. By the terms of the 103rd section no

(a) Sec. 101. "And be it enacted, that no writ of certiorari shall issue to remove any proceedings before any justice or justices of the peace under this or any Act relating to the customs, nor shall any writ of habeas corpus issue to bring up the body of any person who shall have been convicted before any justice or justices of the peace under any such Act, unless the party against whom such proceeding shall have been directed, or who shall have been so convicted, or his attorney or agent, shall state in an affidavit in writing, to be

duly sworn, the grounds of objection to such proceedings or conviction; and that upon the return to such writ of certiorari or habeas corpus, no objection shall be taken or considered, other than such as shall have been stated in such affidavit; and that it shall be lawful for any justice or justices of the peace, and they are hereby required, to amend any information, conviction, or warrant of commitment for any offence under any such Act, at any time, whether before or after conviction."

(b) Sec. 103. "And 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, penalty, or forfeiture, for any offence committed against this or any Act or Acts relating to the customs, and every conviction or warrant of commitment for any such offence, shall be deemed valid and sufficient, in which the offence for which such punishment or penalty shall have been inflicted, or the cause of such forfeiture, is set forth in the words of the Act or Acts by which such punishment or penalty has been inflicted, or under which such forfeiture has been incurred; 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 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."

(a) Sec. 102. "And be it enacted, that no such writ (of certiorari or habeas corpus) shall issue without notice in writing of the issuing thereof to the solicitor for the Customs, and that no return to any such writ shall be considered by any of her Majesty's Courts at Westminster, Dublin, or Edinburgh, or by any of her Majesty's judges of any of the said courts, unless there shall be produced to such Court or judge an affidavit in writing, duly sworn, stating that notice of the issuing of such writ was given to the solicitor for the Customs, or left at his office, four clear days before the return of such writ; and that with respect to all such writs, there shall be an interval of four clear days at least between the day on which they issue and the day on which they are returnable, and any such writ issuing without such notice, and not being in conformity to the directions herein contained, shall be void to all intents and purposes whatsoever."

(b) Sec. 50. "And be it enacted, 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 having had 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 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, nor greater than nine calendar months; and for the second of such offences, for any term not less than nine, nor greater than twelve calendar months; and for the third, or any subsequent offence, for twelve calendar months; and it shall be lawful for any officer or officers of the army, navy, or marines, being duly employed for the prevention of smuggling and on full pay, or any officer or officers of customs or excise, or other person acting in his or their aid or assistance, or duly employed for the prevention of smuggling, and he and they is and are hereby authorized, empowered, and required to detain every such person, and to take such person before any justice of the peace in the United Kingdom or in the Isle of Man, to be dealt with as hereinafter directed: provided always, that any such person proving to the satisfaction of any justice or justices before whom he may be brought that he was only a passenger in such vessel or boat, and had no interest whatever either in the vessel or boat, or in the cargo or any goods on board the same, shall be forthwith discharged by such justice or justices."

(c) Sec. 2. "And be it enacted, that if any vessel not being square-rigged, or any boat, either belonging in the whole or part to her Majesty's subjects, or having half the persons on board subjects of her Majesty, shall be found or discovered to have been within one hundred leagues of the coast of the United Kingdom; or if any vessel either belonging in the whole or in part to her Majesty's subjects, or having half the persons on board subjects of her 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. (Burn's 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 one or more subjects of her Majesty, shall be found or discovered to have been within four leagues of that part of the United Kingdom which is between the North Foreland on the coast of Kent and Beachy Head on the coast of Sussex, or within eight leagues of any other part of the coast of the United Kingdom; 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; or if any vessel or boat shall be found or discovered to have been within one league of the islands of Guernsey, Jersey, Alderney, Sark, or Man respectively, or within any bay, harbour, river, or creek of or belonging to any one of the said islands, any such vessel or boat so found or discovered, having on board or in any manner attached thereto, or having had on board or in any manner attached thereto, or conveying or having conveyed in any manner any spirits, not being in a cask or other vessel capable of containing liquids of the size or content of twenty gallons at the least; or any tea, exceeding six lbs. weight in the whole; or any tobacco or snuff, not being in a cask or package containing 300 lbs. weight of tobacco or snuff at least, or being separated or divided in any manner within any cask or package; or any tobacco-stalks; or any cordage or other articles adapted and prepared for slinging or sinking small casks, or any casks or other vessels whatsoever, of less size or content than twenty gallons, of the description used for the smuggling of spirits; then, and in every such case, the said spirits, tea, tobacco, or snuff and tobaccostalks, together with the casks or packages containing the same, and the cordage or other articles, casks and other vessels of the description aforesaid, and also the vessel or boat, shall be forfeited."

(a) Sec. 4. "And be it enacted, that nothing

herein contained shall extend to render any vessel of the burden of 120 tons or upwards liable to forfeiture on account of any tobacco or snuff, coming direct from the East Indies, and being in packages, each containing 100 lbs. weight of tobacco or snuff at least; or on account of any cigars, being in packages, each containing 100 lbs. weight of cigars at least; or on account of any tobacco, the produce of Mexico, Columbia, the continent of South America, or of the islands of St. Domingo or Cuba, coming direct from those places respectively, or from the warehouse in any British possession in America, in packages each containing eighty lbs. weight of tobacco at least; or on account of any negrohead tobacco, the produce of and coming direct from the United States of America, in packages each containing of such tobacco 160 pounds weight at least; or on account of any tobacco of the dominions of the Turkish empire which may be separated or divided in any manner within the outward package, such outward package being a hogshead, cask, chest, or case, containing of such tobacco 300 pounds weight at least; nor to render any vessel of 60 tons burden or upwards liable to forfeiture on account of any tea, or of any spirits in glass bottles or in stone bottles, not exceeding the size of quart bottles, such tobacco, snuff, cigars, tea, and spirits being really part of the cargo of such vessel, and included in the manifest or other papers of such vessel, enumerating or describing the cargo thereof; 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."

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.] (b) 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 time should be allowed to obtain the order of the Commissioners of Customs or Excise, as hereafter directed, and also to prepare informations, convictions, and warrants of commitment; be it enacted, that when any person or persons shall have been detained by any officer or officers of the army, navy, or marines, being duly employed for the prevention of smuggling and on full pay, or by any officer of customs or excise, or any person or persons acting in his or their aid or assistance, or duly employed for the prevention of smuggling, for any offence

against this or any other Act or Acts relating to the customs, and shall have been taken before any justice of the peace; if it shall appear to such justice that there is reasonable cause to detain such person or persons, such justice may, and is hereby authorised and required to order such person or persons 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."

(b) Lawton v. Hickman, 7 L. T. 430.