person or persons so appealing to pay such costs occasioned by such appeal as to them the said justices shall seem meet, and to enforce payment thereof, according to the course and practice of such Court."

Stat. 2 & 3 W. 4. c. 40. s. 10. Certain officers, to be called "Superintendants," "shall have full power and authority to do, execute, and perform all and every the duties, matters, and things which by any Act or Acts of Parliament now in force any Commissioner of the navy or victualling resident at any naval or victualling yard or establishment, or at any naval hospital, at home or abroad, is authorized or required to do.”

Sect. 11. "The Superintendants so to be appointed shall have and they are hereby invested with full power and authority to administer oaths, and to exercise the duties, powers, and authorities of justices of the peace, in all places whatever, and in all matters relating to His Majesty's naval service, and to the stores, provisions, ammunition, and the accounts thereof, and in all other cases whatever in which any Commissioner of the navy or victualling is empowered to act as a justice by any Act or Acts now in force, in as full a manner to all intents and purposes as if such Superintendants had been named in any such Act or Acts, or in any commission of the peace for any such places" &c.

Collier and H. W. West now shewed cause. First, the Superintendant is empowered in the alternative either to inflict a fine, and if it is not paid, and no goods are found on which a distress can be made, imprison without hard labour; or to imprison with hard labour, without imposing any fine at all. The Admiralty officers say that this is the usual practice, and it is also in accordance with the E. B. & S.

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language of the statute. The 18th section begins by The QUEEN reciting that it is expedient to give power to the Commissioner to "fine or otherwise punish." It then gives power to impose a fine, and after providing that half of the fine shall go to the informer, and making provision for the mode of levying it, adds, " or in lieu of such fine to cause such offender to be imprisoned and kept to hard labour in the house of correction" &c. This construction is confirmed by the 19th and 20th sections; the former clearly referring to cases where a fine is imposed, and the latter making provision to reward the informer where there is imprisonment "in lieu of fine." There is good reason for this. The object of the statute was to prevent the embezzling of the Queen's stores of war, by giving to the Commissioner or justice of the peace a power of summarily convicting. But, as this is an offence the enormity of which varies considerably, being sometimes of great malignity-indeed the benefit of clergy was taken away from it by stat. 22 C. 2. c. 5., recited in the present Act- and sometimes very slight, as where it is not committed with fraudulent intent, it is desirable that the judge by whom the matter is determined should have a discretionary power to consider all the circumstances; and to punish the milder cases by fine &c., and the more serious ones by imprisonment with hard labour.

Secondly, the right of appeal given by this statute extends to those cases only where a fine is imposed. This appears from the language of the 21st section, which gives that right solely on condition of the party entering into recognizances "to the amount of treble the value of such fine." Besides, the recognizance must be given to the satisfaction of the Commissioner or justice before

whom the conviction takes place, whereas here it was taken by another justice from the defendant when in prison. [Cockburn C. J. That last circumstance certainly seems an answer to the defendant on the second point.]

Prentice, contrà. As to the first point: this is a highly penal statute, and ought to be most strictly construed in favorem libertatis. Its effect is to give a power of summary conviction, entailing a sentence of imprisonment with hard labour; and, in the majority of cases, virtually without appeal, as the time of imprisonment would most usually expire before an appeal could be heard. The statute should be construed as vesting in the Commissioner or justice of the peace the power of summarily convicting given to justices of the peace by many statutes, and in later times by the general Act, 11 & 12 Vict. c. 43. ss. 19, 20, 21: the effect of which is to enable them to impose a small fine, and, if the offender can not pay it, to imprison him with or without hard labour. There is no injustice in this, for the fact of a man being unable to pay a small fine proves him a vagrant. In 1 Burn Just. 786, 29th ed., tit. Commitment in Execution, it is said: "If a statute assigns a commitment as a mode of punishment in the first instance, the commitment follows upon and is the legal consequence of the punishment. But where it is assigned merely as a subsidiary to the enforcing a punishment or penalty, the magistrate cannot adopt it till he has ascertained the punishment or penalty cannot be enforced."

As to the second point: the 21st section of this statute gives appeal "if any person shall find himself aggrieved

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by the judgment of the Commissioner" &c. In Rex v. Brooke (a) this Court held that a justice of the peace had no power to bail a person who had appealed against a committal under the Vagrant Act: but the reason was, that in the event of the appeal being decided in favour of the respondents the justice had no power to commit him; a difficulty which has been removed by stat. 11 & 12 Vict. c. 43. s. 27. [Cockburn C. J. In construing this statute we must go by the law as it stood at the time when it was passed. Stat. 11 & 12 Vict. c. 43. was long subsequent. Crompton J. Kendall v. Wilkinson (b), cited in Paley on Convictions, p. 304, 4th ed., is strong authority to shew that the effect of a commitment by a justice of the peace is not suspended by the mere fact of appeal. That case was subsequent to stat. 11 & 12 Vict. c. 43.] It is a great hardship on a party.

COCKBURN C. J. I am of opinion that this rule ought to be discharged. It is certainly no easy task to construe an enactment framed like that before us. Nothing can be more obscure or confused than the language of sect. 18; but, on the whole, the more reasonable construction is to hold that, on proof of the offence, the Commissioner (for whom the Superintendant is now substituted) has power in the alternative; either to inflict a fine not exceeding 107., and in the absence of payment and of goods and chattels to answer the fine, imprison for three months or until it is paid, or, without imposing any fine at all, to sentence the offender to three months imprisonment with hard labour. The introductory part of the 18th section, which (a) 2 T. R. 190. (3) 4 E. & B. 680.

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to fine or otherwise punish, reads as if the Legislature The QUEEN contemplated that he should have power to punish otherwise than by fine. It is true that when we come to the enacting part of the section there is considerable difficulty; for, after enacting that the Commissioner may inflict a fine &c., it empowers him, "in lieu of such fine," to cause the offender to be imprisoned and kept to hard labour. The words "in lieu of such fine,” taken in their ordinary acceptation, seem to support the supposition that the Legislature intended that a fine should be imposed in the first instance, and that, in the event of its not being paid, imprisonment should follow. On the other hand, however, it is difficult to suppose the intention of the Legislature to have been that if a distress warrant issues for the fine, and no goods or chattels are found to satisfy it, imprisonment without hard labour is to follow, while, on the other hand, if the Commissioner thinks it inexpedient to issue a distress warrant, he may, under the same circumstances, and with the same degree of delinquency before him, award imprisonment with hard labour. I therefore think that the true construction of this section, and that which will go farther than any other to reconcile the whole enactment with common sense, is to hold that the Legislature meant that the Commissioner should exercise his judicial discretion in the first instance-either to inflict a fine; in which event he is to have power to issue a distress warrant, and if no effects are found to satisfy it, then with the alternative of imprisonment without hard labour; or to adjudge imprisonment with hard labour, without any alternative at all.

Considerable difficulty also arises on the appeal clause.