The King against the Justices of Surrey
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1788 |
| Date | 03 May 1788 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 271
IN THE COURT OF KING'S BENCH
Approved, R. v. Otto Monsted, Limited [1906], 2 K. B. 466.
the king against the justices of surrey. Saturday, May 3d, 1788. No appeal lies to the sessions from a conviction of two justices for an offence under 25 G. 3, c. 72, s. 9, notwithstanding it contains a general clause of reference to all former Excise laws, some of which give such appeal, and incorporates all the powers, &c. provided by 12 Car. 2, c. 24, or by any other law, relating to the Excise or inland duties under the management of the Commissioners of Excise, for managing, mitigating, or adjudging, the duties, or penalties, granted by this Act. [Approved, E. v. Otto Monsted, Limited [1906], 2 K. B. 466.] A rule having been obtained to shew cause why a mandamus should not issue, 272 THE KING V. THE JUSTICES OF SURREY 2 T. R. 5M. directed to the justices of Surrey at their sessions, to compel them to hear and determine an appeal made by Hannah Pleck, who had been convicted on 25 Geo. 3, c. 72, s. 9, for printing cotton before it was measured and marked by the proper office of Excise, according to the directions of the Act. The Solicitor General, Wood, and Shepherd, now shewed cause. There is a difference between a certiorari and an appeal; the former must be taken away by express words, because it is a common law right; but the latter does not lie, unless expressly given, for the same reason, because it is not a common law right. This conviction is founded on the 9th section of the 25th Geo. 3, c. 72, and if any appeal lies in this ease, it is given by the 33d section : but on considering the legal effect of that clause, no such power will be found to be thereby given. It enacts that all powers, authorities, rules, penalties, forfeitures, clauses, matters, and things, which in and by the 12 Car. 2, c. 24, or by any other law now in force relating to the revenue of Excise, or inland duties under the management of the Commissioners of Excise, are provided or established, for securing, enforcing, managing, &c., mitigating, or recovering, adjudging, or ascertaining the duties, or penalties, thereby granted, shall be exercised, applied, and put in execution in and for the managing, mitigating, adjudging, ascertaining, recovering, and paying, the several duties hereby granted, as fully and effectually as if all and every the said powers, &c. were particularly repeated, and again enacted in this Act. This clause, which makes a specific allusion to the 12 Car. 2, c. 24, and all other Acts relating to the Excise, must mean all other Acts founded on the same principle ; and the 12 Car. 2 is only put by way of example. Now the 45th section of that Act declares, that all offences committed against that Act, within [505] the limits of the Excise office in London, shall be heard and determined before the commissioners, &c. And that all offences in the country shall be heard and determined by two justices of the peace; and in case of their neglect or refusal, a power is given to the sub-commissioners to hear, &c. the same ; and if the party finds himself aggrieved by the judgment of the sub-commissioners, he may appeal to the justices at the next Quarter Sessions, whose judgment therein shall be final. So that a reliance is placed in the justices of the peace, which is not placed in the Sub-Commissioners of Excise ; for an appeal to the Quarter Sessions is given from the judgment of the sub-commissioners, but not from that of the justices ; and it is only in case of their neglect or refusal that the sub-commissioners have a power to hear and determine the matter at all. The pervading principle of that Act was never to trust to the judgment of those persons who are employed in collecting the duties, but to make the decision of the magistrates final in whatever stage of the business it came before them. There was no jealousy that the justices would be too ready to convict; and therefore the same precaution was not necessary in giving an appeal from their judgment as from that of the sub-commissioners. Thus it stands clearly on the 12 Car. 2, c. 24, taken by itaelf; but the Legislature have themselves given an exposition which establishes this...
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