148
I.
The Law of England prevails here (see Hong Kong Ordinance 12 of 1846) therefore the "onus lis" should be on the other side. The rest of this passage & fail to comprehend. It appears to have been corrected since the Judgment was delivered for the Chief Justice stated and no doubt was under the impression that. It had cited the opinion of W. Chalmers himself instead of that of the two eminent lawyers.
I.
vo eminentIt is unnecessary to remark that Chitty Book on the Prerogative (which I cited here for the Rule referred to at page 291) is not founded on Chalmers as his authority (25) the Lord Lieut. and not by the Attorney in an ex-officio Information by the then Attorney General of Ireland. But the argument proceeds. It does not follow because the power to institute such a proceeding as this, may be exercised in England or even in Ireland, that this function exists in the A. G. in a Colony.
First then I say, if the passage from Chalmers proves anything, it proves too much, viz., that the Attorney General of New York could then and there depute the power to file an information; to my mind a reductio ad absurdum. And secondly, Mr. Pollard gave me the reference (accidental on his part) to what the Lord Chancellor of Ireland said in re Pigott & Bar. Rep. p. 114, in June last. He said, "the precedents were for a long period those of unsettled times (bad times) when a great deal was often done according to the particular party which happened for the moment to be in power." He expressed his unwillingness in settled times to follow them, and he did not follow them.
I must adopt the same language and conduct here, and thus dealing with the opinions, for they are only opinions (and ex parte statements in them) in Chalmers as coming out of bad times; and with what Chitty says as to the prerogative in this particular founded on Chalmers as his authority, I do not recognize them as precedents, and I find myself without a reliable precedent or constitutional authority satisfying me that an ex officio information was ever filed in any Colony by any Colonial Attorney General at any time.
Principle points to the non-existence of such a power. It is the personal right of the Sovereign as a remedy for specially personal injuries. Are there in a Colony such misdemeanours as peculiarly, I emphasize the special words, tend to endanger Her Majesty's Government or to molest or affront her? Not to insist that I can see no misdemeanour of this kind in these libels, I can conceive of no case for which the ordinary Law in the Colonies, in this Colony at least, does not provide, or why Her Majesty's suit "truly and properly her own" should be extended to alleged wrongs which in no way affect Her Majesty.
But there is not the same relation between the Queen and a Colonial Attorney General as between Her Majesty and Her Attorney General in England. The latter is appointed by Letters Patent, the former by warrant not of Her Majesty but of the Governor under the Colonial Seal. The Governor has granted to him full ordinary authority as well as some prerogative powers specified, but I do not see that he has delegated to him by his commission the extraordinary authority to commence and carry on the Queen's own suits, much less to delegate such powers to the A. G. here.
The affirmative shewing that such powers exist, the onus to prove that it ever existed lay on the prosecution. From the time when the case came first before me months ago, and repeatedly since, I have asked for a precedent of such a proceeding in any Colony to be furnished to me. It was as often said that no such precedent could be furnished, but reliance was placed on Chalmers' opinions, page 493-497, as evidence that in fact the right now in question was exercised by the Attorney General in New York in or before 1725, and as nullum tempus occurrit regi, it was contended that the statements and opinions in Chalmers were sufficient to sustain the existence of these Informations as a Royal Prerogative in a Colony at that date.
Considering that Mr. Chalmers had been a zealous Loyalist in that great struggle begun before 1725, which he throughout called a "rebellion" the success of which "compelled him to sacrifice his professional prospects which were very good," and he sought refuge in England, considering also what bitterness he said at page 13 that the most satisfactory proof existed that from 1688 it had been the settled purpose of the revolted colonies to acquire independence, he is not a safe guide as to any legal phase of that struggle.
But I will assume the facts to be as they are represented at page 403. They are a recital in an act that Her Majesty's subjects had been then (1725) lately prosecuted in the Supreme Court of the Colony of New York upon informations filed against them by the Attorney General and deputies though the matters charged had been trivial and inconsiderable, &c. Now this statement proves too much; it proves, if it proves anything, that "Deputies" had done what it is admitted the Attorney General alone could do in England and what even his "deputies" could not have done anywhere.
It shows that in this as in almost every other respect the Crown's Prerogatives were then strained and forcibly used to oppress the Colonists, not for the King's service, but for the benefit of the officers who abused these Prerogatives. As a key to what appears in Chalmers, I turn to Bancroft's History of the United States in Chap. 23, passim, of which I read to show what violence the officers of the King proceeded. Beyond doubt there were then ex-officio informations by the Attorney General and by his Deputies, which culminated (the Grand Jury having thrown out the Bill) in the trial of Zenger for seditious libels in 1734, and his acquittal which was called the "Morning Star of the American Revolution."
Now