1826. The KING บ. BRODERIP. to issue his warrant. It is now submitted, that both objections are well founded: but supposing them to be doubtful, this is not a case in which the Court will compel the justice to do an act which may subject him to an action. First, the conviction could only have been made on oath. By stat. 10 Geo. 2, c. 31, s. 8, it is declared to be unlawful for any waterman to "carry in his boat, on the river Thames, any more than a certain number of passengers at one and the same time; and any person offending herein, and being thereof convicted by the oath of one or more credible witness or witnesses, or by the confession of the party, before the lord mayor of the city of London, or one or more justice or justices of the peace, shall for the first offence forfeit 51." By the stat. 34 Geo. 3, c. 65, s. 5, in case any waterman shall offend against the laws then in force, or thereafter to be made by the lord mayor and aldermen, or by the rulers, auditors, and assistants of the Watermen's Company, it shall be lawful for the mayor, recorder, or any one alderman, and for any justice, and he and they respectively, is and are hereby authorised and required to examine upon oath the complaint, or any witness or witnesses, touching such offence; and if the party or parties accused shall be convicted of any such offence, either by his, her, or their own confession, or by the oath of the complainant, or of one or more credible witness or witnesses, it shall be lawful for such mayor, &c., or any one of them, to impose a fine," &c. Now it is clear, from these statutes, that supposing the jurisdiction to convict, be exclusively confined to the mayor of London, &c., and justices of the peace, the conviction can only be founded on oath of the witnesses, if the party does not confess. By sec. 9, of the last-mentioned statute, power is given to the overseers or rulers of the Watermen's Company, to hear and determine complaints between watermen and watermen, and convict the offender, and impose a fine upon him for his offence, not exceeding the penalty or penalties inflicted by that act, &c. No authority is given to the rulers to hear and determine on oath; but in case the party convicted shall not pay the penalty imposed, it shall be lawful for the mayor, &c., or justices respectively, upon* production to him of such conviction, drawn up in writing, to issue his warrant for apprehending the offender, and to cause the offender to be brought before him; and upon being so brought, if the party convicted shall not forthwith pay the penalty, he shall be committed for any time not exceeding one month, unless the penalty is sooner paid. Now it is a matter of serious doubt, whether the rulers of the Watermen's Company have jurisdiction to commit at all under this act. It is clear they have no jurisdiction to administer an oath. Can, therefore, a conviction be enforced by the justices, which has not been made upon oath? It is a general rule of law, in the administration of justice, that the examination of witnesses must be upon oath, and that no legal conviction can be founded upon any testimony not so taken (a); but as the rulers of the Watermen's Company have no power to administer an oath, can a justice of the peace be compelled to enforce a conviction not founded upon the known and acknowledged principles of justice? It is true that the 9th section of the act referred to, makes it lawful for the justice to enforce a conviction so made; but it is not imperative on him so to do, and therefore the Court will not impose upon him a task, by which he may be subjected to an action: Rex v. Justices of Bucks. (b). Here the justice entertains a reasonable doubt of his jurisdic (a) See Paley on Convictions, 2nd ed., 33, 34. (b) Ante, vol. i., 369. 1826. The KING บ. BRODERIP. 1826. The KING v. BRODERIP. tion, and he cannot be compelled by mandamus to proceed. Bolland, contrà, contended, first, upon the express words of the 9th section of the 34 Geo. 3, c. 65, that the rulers of the Watermen's Company had jurisdiction to convict in this case; and second, that as the only mode of enforcing the conviction was by applying to a justice, it was incumbent upon the latter, as a ministerial officer, to issue his warrant. ABBOTT, C. J.-How can we order a magistrate to do that which may subject him to an action? This may be the only mode of enforcing the conviction made by the rulers of the Watermen's Company, but it does not seem to me to be obligatory on the magistrate to issue his warrant. All that the 9th section of the act says, is, that it shall be lawful for him to do so and so; it does not go on to say, "and he is hereby required." If the conviction itself is not valid in law, for not having been founded on oath, and the magistrate issues his warrant to apprehend the party, he will be liable to an action of trespass; and we cannot compel him to put himself in a situation of so much responsibility. If a justice of the peace criminally forbears to discharge his duty, he is amenable for his conduct by information, as for a public offence; but that is a very different thing from commanding him to do that which may subject him to an action. The other Judges concurring, the rule was discharged. Exparte WILLIAM EDWARDS. THE defendant, William Edwards, had been convicted by two justices, of an offence against the Smuggling Act, 6 Geo. 4, c. 108, s. 80, and being a seafaring man was adjudged to be sent on board one of his Majesty's ships, in order to his serving in the navy for the term of five years, and having been accordingly carried on board H. M. S. Victory, and there refused to be received on account of unfitness, he was brought back before the same justices to be dealt with in the manner directed by sec. 81. By that section, it is enacted "that if any person so convicted as a seaman, and carried on board any of his Majesty's ships of war, shall, on examination by any surgeon of his Majesty's navy, within one week after being so carried on board, be deemed to be unfit, and shall be refused on that account to be received into his Majesty's service, such person shall be conveyed before two justices, and proof that he has been so refused to be received, such justices are authorised and required to call upon the said person to pay the penalty of 1007., without hearing any evidence, other than such proof as last aforesaid, and in default of immediate payment of the same, to commit the said person to prison, there to remain until such penalty shall be paid." Under the authority of this section, the justices committed Edwards to prison until he paid the penalty of 1001. The statute gives no form of commitment in a case circumstanced as this. The justices in the warrant, by which Edwards was so committed, recited the former warrant of commitment, under which he had been sent on board the Victory, and the fact that he had been refused to be Tuesday, 25th April. A warrant of commitment under the Act, 6 G. 4, board a ship of received on for the naval service] until he paid the penalty of 100l., need not shew that he had been examined by a the ground of the refusal to be received surgeon, as into the serupon the commit vice: nor need ment shew, the party had been "called in terms, that the penalty before he was upon to pay committed. 1826. Exparte EDWARDS. received on board that vessel, and concluded with a direction that he should remain in prison until the penalty of 1007. was paid. Platt now moved for a writ of habeas corpus for the purpose of bringing the prisoner Edwards up, in order to be discharged from the commitment, and took two objections to the warrant: 1st, That it did not appear on the face of it, that the prisoner had been examined by a surgeon, in pursuance of s. 81; and 2d, That it did not shew that the prisoner had been called upon to pay the penalty before he was committed. This act, he contended, ought to be construed most strictly in favour of the subject. As to the first objection; s. 81, made it a condition precedent, that the party should be examined by a surgeon before the justices could have jurisdiction to commit him, until he paid the penalty; and, therefore, as the warrant did not shew that such examination had taken place, every intendment must be made against the commitment. Then, secondly, s. 81, in express terms, required that the justices should call upon the party after he was sent back to pay the penalty imposed, and in default of immediate payment, commit him until the penalty should be paid. Now, here there was nothing upon the face of the warrant to shew that the party had been called upon, in the terms of the act, to pay the penalty before he was committed. For these reasons, he submitted that the party was entitled to be discharged. ABBOTT, C. J.-I think neither of these objections is tenable. In the case of a person deemed unfit, and refused on that account to be received into the naval service, proof that he has been so refused to have been received, is all that is requisite to give the justices |