assault, the jurisdiction of the Justices was ousted; for under 14 & 15 Vict. c. 100. (Lord Campbell'sCriminal Law Amendment Act), that is an indictable offence, and so the Magistrates cannot convict summarily.

[CHANNELL, B.-I doubt that.]

The

An assault of that kind is a substantive indictable offence not within the Aggravated Assaults Act at all, the scope of which is the same as that of the 9 Geo. 4. c. 31. to which it refers, and the purview of that act was violent, not indecent, assaults; i. e. assaults accompanied by battery. In truth, it is what was popularly called the Wife Beating Act, and has no connexion with assaults of an indecent nature, associated with an intention to violate the person of a female. Here there can be no doubt the case was rape, or nothing. It clearly was opened as rape, for the jurisdiction was objected to on that ground; and as to the alleged consent, the common maxim applies, that consent cannot give jurisdiction. truth is, that the man was tried for rape, convicted and punished for an attempt to commit a rape, without the intervention of a jury. The most monstrous abuses may result from such a perversion of jurisdiction. The Magistrates may, nominally, on a charge of assault, really try a person for a felony, and punish him for what they fancy he has been really guilty of, i. e. a felony, or an attempt to commit one; but the form of the conviction being only for an assault. If in such cases the jurisdiction cannot be inquired into, there is no remedy. But an abuse of jurisdiction is always to be remedied. Besides, though, no doubt, the Magistrates may have jurisdiction to inquire into facts on which their jurisdiction may depend, their decision is reviewable on that question - The Queen v. Bolton (5), Thompson v. Ingham (6), Ex parte Jacklin (7).

the question of jurisdiction, supposing the charge on which they convicted the prisoner was beyond their jurisdiction. When a charge of felony was once made they had only jurisdiction to commit for trial, not to convict for that or any lesser offence. By such a system the greatest offenders may by collusion escape; or, on the other hand, innocent men may suffer without remedy on false evidence, without the benefit of trial by jury. Considering the sentence, no one can doubt the Magistrates really convicted for an attempt to commit a rape, if not for rape. That was not a charge within their jurisdiction. It matters nothing what the form of the charge is, even assuming that it does not amount technically to a charge of rape. The question is, what was the substance of the charge made, as understood by the parties and by the Magistrates-Hunt v. the South Staffordshire Railway Company (8), and the truth upon this question can be shewn by affidavit (9).

Cur. adv. vult.

The Judges being divided in opinion, now delivered their judgments serialim, as follows:

POLLOCK, C.B. The Court being equally divided, the rule will be discharged and the writ will not issue; but I will shortly state the grounds on which it appears to me that the writ ought to have issued. The conviction and commitment were under the 16 & 17 Vict. c. 30. s. 1, by which Magistrates are empowered, if they think an assault has been committed of such an aggravated character that it cannot be sufficiently punished under the 9 Geo. 4. c. 31, to extend the punishment which may be inflicted under that statute, and to award a sentence of imprisonment for six months, with or without hard labour. The objection to the conviction, and to the warrant founded upon it, was, that the Magistrates had exceeded their jurisdiction. Now their jurisdiction is founded upon the statute 9 Geo. 4. c. 31. s. 27, under which if complaint be made of a common assault-not "an assault" merely, but "a common assault"

(8) 26 Law J. Rep. (N.s.) Exch. 174.

(9) Ex parte Baker, 26 Law J. Rep. (N.s.) M.C.

155.

-the Magistrates have a power to deal with it summarily, and to inflict upon the party found guilty of a common assault a fine of 5l., and, in default, to sentence him to a term of imprisonment not exceeding two months. It may be material to consider what is the meaning of the expression "common assault." It appears to me that it means an assault not accompanied by any such aggravated circumstances as would give to the assault the character of a distinct offence recognized by the law as something more than an assault. The assault may be accompanied with violence from which death ensues, and then the offence would be manslaughter or murder, or the assault may be accompanied with violation of the person of a woman against her will, and then it would be rape, or, although the purpose may not have been effected, the assault may have been accompanied with such circumstances as to leave no doubt of an intention to commit a rape, and it would then be an assault with in

tent to commit a rape. Thus, an assault may either be a capital felony, or a felony, or nothing but a misdemeanour ; but in my judgment an assault with intent to commit a rape is as distinct an offence from a common assault as a murder is distinct from rape, and in all these cases the circumstance that the crime is accompanied with an assault does not make the two identical or make them of the same class of offence. Then the statute 9 Geo. 4. limited the summary jurisdiction of the Magistrates to charges of common assault, and in my judgment the 16 & 17 Vict., although it does not repeat the expression "common assault," but uses merely the word "assault," must be taken to mean common assault, but of a more aggravated character, for it refers back to the power of punishment given under the 9 Geo. 4, and provides that if in the Justices' opinion the assault, though a common assault, is of so aggravated a nature that they think that punishment not sufficient, they shall not be limited to two months, but may award imprisonment for a period not exceeding six months, with or without hard labour. It appears to me, that under these statutes, the Magistrates have no authority except to inquire into charges of common assault, and that when it appears that

the charge of assault really involves an offence of a distinct character-one distinguished by the law, and marked out for a wholly different mode of punishment, that they ought not, if there be any ground. for the charge, to determine it, but ought to send the case for trial at the Quarter Sessions or at the assizes.

Then the question is, what in point of fact, with reference to these proceedings, was the charge really made before the Magistrates? If it was a charge of common assault, they had jurisdiction. If it was a charge of an offence involving an assault, but an offence of an entirely different character, they had no jurisdiction. The case of The Queen v. Bolton contains a very able summary of the law upon this subject, and it points out with remarkable precision, in my judgment, the occasions on which the decision of the Justices is conclusive. Where the jurisdiction depends upon certain facts being proved or not proved, if the Magistrates have dealt with the facts as being proved, and have exercised a jurisdiction accordingly, their decision is conclusive, and no Court can inquire into their jurisdiction. But when the nature of the charge is doubtful, and it turns out that it is not one which gives them jurisdiction, then it appears to me neither The Queen v. Bolton nor any other authority prevents the superior Courts from examining the evidence and entertaining the question of jurisdiction. Then what was the charge which was really made on the present occasion ? The information states the charge thus: that the defendant assaulted and abused a certain woman. The complaint, then, upon the face of that information, is for something more than a mere assault. The information was in writing, and the very expression "abused " appears to me to import an assault, and something more; and when the evidence is looked at, it seems to me that every possible doubt must be removed, and I think the Court of Queen's Bench, before whom this matter was first brought, and who did not grant a rule to shew cause upon this point, were not in the position in which we are in this respect, for we have had, in addition to the affidavit filed in support of the application, affidavits filed on the part of those who

support the conviction and the warrant, so that we have a distinct statement of all that took place before the Magistrates, and thereon it appears that the information being for assaulting and "abusing," the complainant gave evidence which shewed a complete case of absolute violation of her person against her will. It appears to me, without entering into any very nice inquiry as to what is the meaning of the word "abuse," that there are very strong grounds for thinking that the word "abuse," as applied to a woman, is not ordinarily used, except with reference to sexual intercourse-certainly it has, in more than one act of parliament, had that meaning applied to it and that the term "abuse usually imports something of that nature. Then we have two facts: the information is for assaulting and abusing, and the evidence disclosed facts which constituted a complete case of violation of the complainant's person against her will. Can any one say that that was a charge of a common assault"? In my judgment it clearly was not. If there was no charge of a common assault made, and if there was no evidence of a common assault (that is, merely a common assault), in my opinion the Magistrates had no jurisdiction.

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It is, however, suggested that this was a decision of Magistrates in quest of fact, and was, therefore, conclusive. I admit it would be so if the question was merely as to the truth or falsehood of the complainant's statement; but that is not so here. It is said that the Justices may have believed the woman as to the mere assault, but may have disbelieved every other part of her story, and so disbelieved that there was either an actual rape or an attempt to commit it. But it appears to me that to yield to this suggestion would only be trifling with what it is our duty to take care of; namely, that the Magistrates do not exceed their jurisdiction, and exercise a power of sending one of Her Majesty's subjects for six months to prison, and possibly with hard labour, the effect of which would be to prevent all further inquiry about the rape, which the Magistrates had no right to deal with. The Magistrates in substance pardoned it, or acquitted the prisoner of it, by treating it as a common assault. In my judgment, the moment it came out that the charge of

assault was accompanied by the charge of rape, it was the duty of the Magistrates to decline to determine it, and to send the case for trial. No consent of the defendant or complainant could give themjurisdiction. They had no right to deal with the matter at all, and they should have stayed their hands, and sent the party to take his trial at the assizes. Instead of that, the Magistrates sentenced the party to six months' imprisonment. If they believed the woman, it is difficult to say that they ought not to have done so ; but it is a very unintelligible view that they should have believed the woman as to the assault, and utterly disbelieved her with respect to the rape, or any attempt at rape; and that, therefore, they cut the charge down to one of mere common assault, and so had jurisdiction to deal with that offence under the statute. I own I cannot bring my mind to believe that the Magistrates acted under any such notion of their duty, or their powers, or that they acted as they did, because they believed the woman as to the assault, and disbelieved her as to the rape. If they disbelieved her in that which was the very essence of her charge, and they thought she was swearing falsely as to that, I think they would have dismissed the matter altogether, and not have sentenced the man without a trial by a jury to an imprisonment for six calendar months. Thinking, therefore, as I do, that there was no charge of assault (i. e., of a common assault), that the charge really was of a distinct, substantive, different offence, namely, a charge of rape, or at least an assault with intent to commit a rape, and thinking that the Magistrates had no right, when that charge was made to give themselves jurisdiction by believing a part of the case and disbelieving the remainder, in my opinion the writ of habeas corpus ought to go; at all events, we ought to have the man here, and have it fully argued before us whether the conviction, and the warrant of commitment, can be sustained in law.

BRAMWELL, B.-I regret that there should be a difference of opinion upon this matter, and that my opinion should be adverse to that of my Lord. I think this rule should be discharged. A preliminary

objection was taken, which I advert to only to shew that it has not been passed over; and it is not to be supposed that we take it to be ill founded: but the matter having been discussed upon another point, and I being prepared to express an opinion upon that point unfavourable to the rule, it is not necessary, as far as I am concerned, to entertain that preliminary objection, or to determine whether it is well founded or not; and it is not to be supposed that I say it is not. Now, assuming that the documents before us are sufficient, upon the face of them, to warrant the detention of the prisoner, inasmuch as he would, upon their being returned, have to be remanded, unless he could shew a want of jurisdiction, the question whether this rule should be made absolute seems to me to be a question of whether or not it is shewn that the Magistrates had no jurisdiction. I go entirely along with my Lord in his reasoning for the purpose of shewing what was the jurisdiction of the Magistrates. I think they had no power to convict this man in the way they have done, except upon a charge of the offence of which they have convicted him. No doubt, cases may occur where, a particular charge being brought against a man, and it turning out he is not guilty, the Magistrates have jurisdiction to entertain the one of which he is guilty, it not being necessary-as it was not necessary in this case-that the charge should be made by an informa tion in writing. The Magistrates, no doubt, instead of going through the form of solemnly discussing the charge, and asking the parties to go into a new charge, and make their statements over again, might say "The offence is not proved; we dismiss it, and such another charge is preferred, and we convict on that." That might possibly be done; but in point of form they ought to dismiss any charge brought before them, if not well founded, and separately entertain another. In this case the question, to my mind, is, whether a charge was brought before them of an assault?-because if it was competent for them, and they were bound to hear it, to entertain and to determine it, and if they did determine it, and determine that it was made out, it seems we have no power to investigate the propriety of their proceedings. NEW SERIES, XXX.-MAG. CAS.

Therefore, to my mind, the question is, whether a charge was brought before them of a character of which they could convict the defendant ? And I go along with my Lord in his reasoning, that if it had been a charge of rape they ought not to have convicted him of this offence, and ought to have dismissed the charge. So also, I am inclined to think, if it had been a charge of any of the assaults which my Lord has referred to, which are not common assaults, they ought to have dismissed the charge. Again I say, therefore, the question, to my mind, is, whether the charge was a charge of the offence of which they have convicted him? And I think it was.

Now, the written complaint was, that the prisoner had assaulted and abused the female who made the complaint. To my mind, the word "abuse " has no especial meaning; it is not a word of art; it is not a technical word, except in a different sense to that which has generally been imputed to it in popular language: it may mean either to call names or abuse by words; perhaps, correctly speaking, it means any misuse of an office, or a man abusing his powers; and, as an instance, it might be said, it is very possible that the Magistrates may abuse their powers where cases of this description are brought before them; that is, misuse their powers. The only way in which I find it used as a term of art is in a way which, to my mind, shews it does not mean ravish; because I find the 18th section of the 9 Geo. 4. c. 31. says, "Whereas on trials for the crimes of rape and of carnally abusing girls under the respective ages herein before mentioned," that is to say, on charges of rape, and on charges which are not charges of rape, but carnally abusing young females. There, to my mind, the word "abuse" is manifestly used as different from the word "rape"; it may include rape, no doubt, or may not, yet the statutes, particularly the 9 Geo. 4. c. 31. s. 17, enact, "if any person shall unlawfully carnally know and abuse," that is, unlawfully carnally abuse; so that there may be an abusing, although no rape. To my mind, therefore, this word, without the concomitant and proper concomitants," did carnally know," and "unlawfully and carnally," really has no meaning at all. And in point

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