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on the authorities there cited, was to "pre- vent delays which would be fatal to justice,' that the Acting Attorney General in not bringing on the case was so far from pre- venting that he was creating a delay, and not doing his duty, and that on constitu tional principles whenever so high an officer failed in doing his duty he must be subject to control, and that the only legal control in this case lay in this Court."
1 agree with Mr Hayllar that the propo- sition and argument of the Acting Attorney General go to this length: that the subject has no legal remedy where an Attorney General, as in this case, files an Ex-officio Informatiou, and refuses to proceed with it; and that practically this Defendant and his witnesses may be kept here by an Attorney General for a very long, if not an indefinite, time awaiting trial contrary to Magna Charta, "nulli differemus justitiam antiquis."
These arguments have had much weight with me, but I am on the whole most influenced-I am overpowered-by the argument of the Acting Attorney General, to the effect that if the Court should order the cause to be proceeded with, the order would not be obeyed by the Acting Attor ney General, and could not be enforced against him.
(ttere the Acting Attorney General in terposed, and disavowed having used the wor is attributed to him. The words he had used were words uttered with the utmost respect to the Court.)
I admit that fully; but will the learned Acting Attorney General now consent to obey an order of the Court, directing the cause to be set down?
(The Acting Attorney General said he would rather not answer that question.)
That means you will not: the answer cor roborates what I have said, that the Court could not enforce an order.
I shrink from the possibility of an un- seonly collision. I am so far from being cer- tain that this Court has the power attribut- ed to it by the Defendant, but earnestly denied by the Acting Attorney General to be inherent in it, that I must on the whole, although with the greatest reluctance, and admitting that the Defendant is in the re- ault subjected to a very grave injustice, decline to make the rule absolute.
The Acting Attorney General may now assume that he has succeeded in his conten- tion before this Court. He is now free from all legal pressure. I must now again appeal to his sense of justice, not as being or to be used as a precedent, but to his personal sense of what is honorable, nay but barely fair, to comply with the urgent request of the Defendunt, for the scaut justice that
he may be tried without delay, so that he may not be deprived of such evidence a he swears he has, and that he is in daily danger of losing, evidence to substantiate his justification, and to entitle him to a ver- diet of not guilty.
I must notice a suggestion made by the Acting Attorney General, that all informa tions in this Colony are Ex Officio Info ma- tious. I entirely differ from this proposition. Ordinary Informations are by Section 5 of Ordinance No. 3 of 1865, substituted for Indictuents; all such are statutory and not Ex Officio. They are in the name of the Attorney General, and of him only, and are` to be signed by him, or by some person nominated for that purpose by the Gover- nor, a provision utterly inconsistent with the official and personal right of the Attor- ney General alone to file Ex Officio Infor- mationa. Ordinary Luformations must be in a specified form and in to other form; they are brought before the Criminal Ses- sions and not elsewhere; they are filed on depositions made to a magistrate, there is a prescribed form of notice and procodare, and other nice tinutiæ applicable to them alone, and all entirely inapplicable and in fact in this case not applied to Ex Officio Informations.
The trials of Ex Officio Informations are at Nisi Prius or at Bar, but not at the Criminal Sessions; moreover, costs
as between the Crown and the Defendant are given by ordinance in this procedure, which are never given in ordinary cases of informations tried at the Criminal Sessions.
If the Acting Attorney General will not, and if this Court cannot, fix a time for bring- ing this cause on for trial, there has occur- rei a ataud-still in the administration of Justice. But this being a prosecution in which the prosecutor represents the Crown,
is there not in the Crown itself in some way a power to control and regulate these proceedings ?
It is not for me to answer this question. I now come to a matter very small indeed as compared with the questions I have re- ferred to: the question of costs.
The Court usually indicates its opinion in the way in which it directa costs to be paid; I do so in this case. The defendant fails in his application, but I direct that in no event shall the Acting Attorney General be entitled to his costs of this application from him; as to the defendant's own costs,
I reserve the consideration of these costs until after the trial, but in the case of a nolle prosequi being entered, or of the in- formation not coming on for trial, I give these costs to the defendant as part of his general costs,