MR. PENNINGTON (for Mr. HOPWOOD)asked Mr. Attorney General, Whether he is aware that another summons was, on the 19th instant, issued against Joseph Abel, Faringdon, for the vaccination of his child Frederick Joseph Abel under 30 and 31 Vic. c. 84, s. 31; and, whether it is discretionary with the justice, under the words "he may if he see fit," to refuse to make the order to vaccinate?
THE ATTORNEY GENERALI am not in possession of any information with respect to the case of Joseph Abel's child, and therefore I am unable to inform my hon. and learned Friend whether another summons has been issued. With regard to the legal point upon which I am interrogated, I beg to state that in my view a magistrate who acts under the 31st section of the Vaccination Act, 1867, acts judicially, and may make an order or not as he pleases. In this sense he has a discretion; but I consider that a magistrate who, after it has been clearly proved before him that a child has not been vaccinated, and that there is no reason why the operation should not be performed, should exercise his discretion by declining to make an order for vaccination would disregard his duty, just as much as another magistrate would disregard his who, after the commission of an offence had been clearly established by evidence, should exercise his discretion by declining to convict the offender. In conclusion, I beg to refer my hon. and learned Friend to an authority bearing on this question— 406 namely, "Morisse v. the Royal British Bank," reported in the 26th volume of The Law Journal.