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limitation to "distinguished" foreigners in that class shows that all foreigners are not included here or in any previous class. The principle of interpretation given in the maxim, "Expressio unius exclusio alterius," appears to apply. The ninth clause of Criminal libels is thus described in 1 Rees on C. and M., 350: "IX.—Upon the ground that malicious and scurrilous reflections upon those possessed of rank and influence in foreign states may tend to involve this Country in disputes and warfare, it has been held that publications tending to degrade and defame persons of considerable situations of power and dignity in foreign countries, may be treated as libels." I consider that this passage is precisely accurate, and that it repeats Lord Ellenborough's dictum.
It appears to be clear that if all foreigners were included in the eighth class, the whole of the ninth class is illogical, because it expresses a minor, a more confined definition; a species as a distinct class when it has been included in an immediately preceding way, or more comprehensive definition as a class. The language in this passage is very remarkable. It is argumentative. It says, "because—only because—reflections on foreigners of distinction may involve this country in war, &c., such libels—not are—but may be treated as libels." I cannot find a passage to parallel it in criminal law in which the crime is strained on behalf of the prerogative.
Applying the rule of expressiveness, &c., to bear on this passage, it is the fear of disturbance to this country by war, exceptional damage to the Sovereign personally, which alone induced the Courts to hold defamation written concerning foreign Sovereigns and their ambassadors and foreigners of the like, the highest distinction, to be criminal, not designating them "libels," but designating them to be offences which may be treated as libels. The language used would seem by the force of the precise definition to exclude defamation of non-resident foreigners, not of distinction, from any class of libels punishable by English Criminal Law.
The cases of D'Eon, Lord George Gordon, Vint and Peltier—a period of 54 years—from 1749 to 1803, are the only four cases; the libel in each case being against a foreigner of the highest distinction—which have been cited to show that libels on any foreigner can be the subject of Criminal procedure. I have repeatedly asked for precedents of conviction for libel on foreigners being private persons. Mr. Pollard could not with his great research furnish me with any such, and I can find none.
Not discussing whether these four precedents, which occurred in a period of our history when the Courts strained the Law in favour of the Crown, not followed for 66 years, are now Law even as to "distinguished" foreigners, I remark that all the four cases were ex-officio Informations by the Attorney-General, all were "personally the King's prosecutions," and the reasoning of Lord Ellenborough in R. v. Peltier was that the offence was politically most grave, and there being no other head under which to class it, his Lordship declared that it might be treated as a libel; he did not say that it was a Criminal Libel.
An information in this Court for a libel on a Portuguese gentleman resident in Macao, signed by myself as the then Attorney-General, to which the present Attorney-General Mr. Pauncefote, for his client, pleaded guilty and on which nothing further was done in July, 184..., has been cited. I was in ill health at the time, and the question of Jurisdiction occurred to neither myself, nor, as I believe, to Mr. Pauncefote. It was not raised. On the present occasion (except that proceeding which is no precedent) this case being without precedent, I am not in a position to make one. The ingenious argument of Mr. Fayllar must prevail, and I cannot uphold the Information.
In the case of R. v. Saint, I was without the benefit of argument by the Attorney-General to support the validity in law of his own information. I am equally deprived, by his never having appeared in this prosecution, of his official arguments. If he thought the information good in law, it is to be lamented that I have had to decide without having heard the arguments of the chief law officer of the Crown here.
In this case the Attorney-General repeatedly stated that he had not interfered, and "that" he would not interfere further, and that this was an information taken upon private grounds by a private person. If this be so, the only ground, that is, the breach of the Queen's peace, on which in the books a libel is treated as an indictable offence, is taken away in this case. The libel is not here treated by the Attorney-General as an offence against the public, and this prosecution is not on behalf of the Queen, but of the individual, Mr. Pereira.
First, then, I so strongly incline to think as that I am constrained to say that in my opinion the public prosecutor for Her Majesty could in no character sustain a Criminal proceeding against this defendant for a libel on Mr. Pereira, a very respectable, but not within the designation of our Law Books, a "distinguished foreigner." Second, that à fortiori, the Attorney-General having retired from what I hold to be the duty of prosecuting, it was not competent for Mr. Pereira, a non-resident foreigner, by his Counsel, to prosecute any criminal proceeding in this Court for any such libel.
The defendant is here bound in a sum of £1,000 to answer this charge. It is in evidence before me that he is bound to prosecute at Macao his charges against Mr. Pereira in sureties to the amount of $12,000, and also to be answerable to Mr. Pereira for all consequences of his charges made against Mr. Pereira. Considering that the libel is in the Portuguese language, that both parties are by nation Portuguese, each now actually subject to the Jurisdiction of Macao, that the libel charges a breach of specified Macaoese law, that the question is now pending before the Macaoese authorities, presided over by the Governor of Macao, whom we all so much respect, I must say that I have the satisfaction to believe that the legal conclusion to which I have come will on this occasion tend to a far more fair and equitable decision on the real merits of the case at Macao than could have been hoped for from the proceedings in this Court, alien as it is in all respects to the parties, their language, customs, and the questions, especially the legal questions, at issue.
There must be no costs against the Crown. It is due to the prosecution that I should add that I think it not improbable that, if I had been Attorney-General, I should have repeated in this information the form I adopted in 1864, as has been done, and that objection when first stated appeared to me untenable.
The Attorney-General here rose and said that he would like to say a word regarding one passage of the judgment. The Chief Justice had remarked that in the case of Regina v. Saint the court was without the benefit of the Attorney-General's argument, now he thought he had argued for at least an hour, besides having cited cases. He had called attention to Chalmers, and remarked at great length with regard to the prerogative.
The Chief Justice said that the Attorney-General certainly left the court before the argument in the case commenced.
The Attorney-General said the judgment also contained another word, viz., "that he withdrew from the present case and left it in the hands of Mr. Pollard." He never appeared in this case beyond signing the information.
The Chief Justice—He would alter the words.