82

H.—l3

And yet, if the interpretation of the other side is to be accepted, an Executive who found fault with the decision of the Supreme Court Bench would have ample power under the wide general words of the Act to appoint Judges without any salary at all. Before the Court is driven to accept such an interpretation, it will have, I submit, to look at the statute very carefully, and will have also, I submit, to read into it the constitutional law—not merely the conventions of the constitutional law, but the law of the Constitution recognised by all British and, I may add, American authorities. I wish now to refer to one or two other cases bearing on the interpretation of the statute before I come to the statute itself. Maxwell on Statutes, at page 27, lays down this canon of construction.. He says, "To arrive at the real meaning it is always necessary to take a broad general view of the Act, so as to get an exact conception of its aim, scope, and object. It is necessary, according to Lord Coke, to consider what was the law before the Act was passed," and so on ; and he also points out that it is necessary to consider usage in interpreting an Act; and that, if such-and-such a thing has been the habit of the Legislature in reference to the subject-matter, they will not be bound by the exact words of the Act. This has been decided in various cases. I shall cite two or three dealing with this. The first case I shall cite was a case in Law Reports, 4, Queen's Bench, 394. This was a case of Leverson v. The Queen :— " A verdict and judgment having been given against the defendant on an indictment in the Central Criminal Court, error was brought on the following grounds : 1. That, two Commissioners being necessary under 4 and 5 Will. IV., c. 36, to constitute the Central Criminal Court a Court for the trial of an indictment, an Alderman sat for this purpose with the Judge of the Sheriff's Court, who tried the indictment, and, the trial having lasted several days, a different Alderman was substituted in the course of the trial, whereas the Court should have consisted of the same two Commissioners throughout the trial. 2. That the trial took place in a second Court, while the general sessions were being held before other Justices in their ordinary place of sitting; whereas by 4 and 5 Will. IV., c. 36, a single Court only is established and authorised to be held. 3. That, in consequence of the changes which had been made by different statutes in the jurisdiction of the Sheriff's Court, the Judge of that Court, who presided at the trial as Judge, had ceased to be a Commissioner under 4 and 5 Will. IV., c. 36, and was therefore incompetent to act as a Judge under the Commission of Oyer and Terminer in the trial of this indictment. Held, that none of the gounds of error were tenable." The judgment delivered by Lord Cockburn, which is at the bottom of page 401, deals with the point : — " The first of these grounds of error is the only one of throe which really presents any difficulty, and it was upon this alone that we thought it necessary to take time to consider our judgment. Upon further consideration, however, we are of opinion that this ground of error is untenable. It is true that the 4th and sth Will. IV., c. 36, after establishing and constituting the Central Criminal Court, and authorising the Crown to cause Commissions to be issued to try offences before it, goes on to enact that it shall be lawful for the Judges of the Central Criminal Court, ' or any two or more of them, to inquire, hear, determine, and adjudge' the offences specified ;?and there can be no doubt that, if this enactment is to be construed to mean that two Judges are required to sit on the trial of an indictment, a very serious question would arise whether the provisions of the statute had been complied with, on the trial of the defendant. But we are of opinion that such is not the effect of the Act in question. It is to be observed that the Commissions to be issued under the Act are Commissions of Oyer and Terminer, and that the language of the Act and, of course, that of the Commissions under it is the same as that of the Commissions of Oyer and Terminer, under which justice in criminal cases has been administered for centuries. The Act must therefore, we think, be read"—and this, your Honours, is the point —" the Act must therefore be read by the light of the procedure of the other superior Courts of criminal judicature of the realm held under such Commission. Notwithstanding the explicit general words of the Act we feel warranted in assuming that the Legislature, in establishing the Central Criminal Court to exercise jurisdiction in criminal matters not only over the area of the City of London, but also over a large district taken from the adjoining counties, intended that the administration of justice should be conducted in the Court thus established according to the universal practice of all other Courts of Oyer and Terminer." What is the inference, I ask the Court, to draw from these cases ? It is this : that the Court, in interpreting the words of an Act which were apparently plain and unequivocal, will import into this Act, to aid in its interpretation, the practice of the other Courts in dealing with the same subject-matter; that they will take in what cannot be called written law, but the usage of the Court, to explain the precise words of the Act. I submit that the Court, in interpreting this Act, will take in the practice on the appointment of the Supreme Court Judges, and not attribute to the Legislature that these wide words of section 5 were to mean or could be used for such an absurdity as I submit the defence would have to prove if they wish to uphold this Commission. I have to cite one or two more cases to show that in construing an Act the Court will look at a custom to limit the general words. The other case I will mention is the case of Queen v. Cutbush and another (Law Reports, 2 Q.B. cases, p. 379). The passage of the judgment I refer to is at page 382. The judgment is a considered judgment by Chief Justice Cockburn, Mr. Justice Blackburn, and Mr. Justice Lush :— '' Now, inasmuch as that appears to have been for so long a series of years the practice of the Judges of the Central Criminal Court and upon the circuits, we must take it as affording a contemporaneous exposition of the effect of the 10th section of 7 and 8 Geo. IV., c. 28 ; and, inasmuch as the 25th section oi 11 and 12 Viet., c. 43, is, although it varies somewhat in its language, substantially the same as that of the former Act, and, no doubt, was intended to give Justices the same power to make the sentence of imprisonment given upon a summary conviction for a second offence com-