The Chief Justice
Justice having condemned the Crown in Costs on the first Information (as I had reason to anticipate he would do from his own remarks shortly after return) the other Informations remain on the file until that point is settled on 17th instant on appeal.
B. A month was lost partly in vain efforts to obtain an apology from the Defendant and partly by reason of the death of his Attorney then articled Clerk to Mr Gaskell who had taken charge of the beginning the Proceedings to enable him to qualify himself as a Solicitor of the Supreme Court and thus enable him to retain the Case in his hand.
"...that are entirely of a public nature, conduct of Officers, conduct of Ministers, conduct of Judges, the proceedings of all second persons who are responsible to the public at large, are deemed to be public property, and that all bona fide and honest remarks upon such persons and their conduct may be made with perfect freedom and without being questioned either for truth or justice." This is the law of England as expounded by living Judges. Wason v. Walter, decided on the 25th of last November, brings it down no less emphatically to the present time. It is certainly not less the law in this Crown Colony, where there is not and cannot properly be a representative Assembly, and where the press is the only organ of independent thought.
On the 20th of August the Defendant's Counsel applied for leave to set down this information for trial, when the Acting Attorney General made this statement, "I decline, on my own authority, to set down this case, as I am only locum tenens, and I decline to establish any precedent in the absence of the Attorney General.” He also declined to do so as a matter of grace and favour to the Defendant. He claimed the benefit of the rule that no lashes can be imputed to the Crown, and asked how the Court could enforce its order if it ordered the Acting Attorney General to set the cause down, consistently with the enactments in Lord Campbell's Act, or with the prerogative that he was beyond the jurisdiction of this Court, and it came to this, that the Acting Attorney General, not suggesting that there was any impediment to a trial, absolutely refused to set the cause down for trial, and that this Court could, at least that it would, not order it to be done, notwithstanding the Defendant deposed that he was in peril of losing the evidence in support of his second plea by delay.
Notwithstanding what I understood the Attorney General to say in Court on the 10th of February, no nolle prosequi has been entered as to these two informations.
The proceedings remained thus at the mercy of the Acting Attorney General until the 14th of December, when the Acting Attorney General demurred, after an interval of five months, to the second plea filed on the 10th of July, and on the 18th of December the Defendant joined in Demurrer.
The Attorney General, Mr Pauncefote, whose early return was on the 14th of December expected, arrived in the Colony on the 21st of that month, but no stop was taken by him in the matter, and the demurrer to the second plea was adversely set down for argument by the Defendant, and the demurrer came on for argument before me.
On the cause having been called on, the Attorney General, contrary to my repeated and urgent suggestion that it should not be done, read a letter addressed by himself to the Crown Solicitor.
I believe that the communication to the Court by the Attorney General Mr Pauncefote in that letter of the course which he stated the Executive had decided to adopt was entirely without precedent. The Executive in England never made such a communication to the Court of Queen's Bench. If not done in England, how much more ought such a course to be abstained from here,
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A memorandum signed by the Attorneys on each side is now before me, showing the steps taken by the Crown and by the Defendant on this information. The proceedings, dragging their slow length along, have been so numerous that I cannot well trace them without this Memorandum. I will therefore refer to it. After ineffectual communications between the Attorneys the two pleas of not guilty and of justification, in the form in which they now stand, with two lines struck out by agreement, for judgment before me, were filed on the 10th July. A summons taken out under the C. L. P. Act to strike out or amend the 2nd plea was on the 24th July last argued in Chambers, and was dismissed by me. That Act does not apply to Criminal procedure.
On the 4th of August the Acting Attorney General applied for leave to examine H. E. Senhor Horta, the Governor of Macao, who was about to leave for Europe, de bene esse; to which the Defendant, in the expressed hope, as I understood, on the understanding that it would expedite the trial, consented. On that occasion the Acting Attorney General said the cases had taken such a turn that he would withdraw them; after a pause he added he should proceed on the information in reference to the alleged libel on Senhor Amaral, leaving the two other informations still hanging over the Defendant.