1869-03-13 — Page 5

Page

MARCH-13, 1868.

ME COURT. ch 12, 1868, NA V. SAINT,

2 ON AMABADELLE tice took his seat at 10 reviously announced that deliver his judgment in ho case of Regina v. Saint, entatives of the parties as also several others in- proceedings) His Lordship

er judgment.

is an follows:--

the Acting Attorney.Ge- special plea whereby the

I the Libel in respect ut cio information bad besu beeu, as is usual, set down Gauerul, was by the De set down for argument on the Demurrer occupied 10th, 12th, and 18th days

egravest nature were of the Attorney General ndant questions far too or properly disposed of lony, this little Ultida ero are neither the bookk proper for the decision have from the Grat entreated, that in loyalty forbearsnou towards my- ne should not be raised. that the questions arising rer, and which I am un- i to consider, invalve con-

y great difiunlty, partly tutional, ranging one into ael did not saver, and I separate, these considera- mixed web of intricacy oper that I should have

o remarkable proceedings

eted ignorance in me

a fact that for years past

where

as it is

Puur is als

in the tropica, where la- benevolently intended Le- ht of the British Parlia mance of this Colony, re ions under which it might soulies, vader contract to umber of years, to coun China contracts, I fear, ible agains, not by the igration has been carried y sometimes properly, but the regulations bave been mple having been shown Portugal authorized Emi- under somewhat similar 5 regulations have not o far evaded as that tho has become the subject egociation, as welljus of vation in our own Logie- fioial papers and in dit Fish Parliament, Let us

ely

history that all this,

the cruelties, no sorme m--of the Macao coolie nation and barror in the

mble aud sensitive per men of rank and estima traffic nothing wrong , or encouraged, or did History repeats herself. not passed away since erforce and Buxton stood men of the highest rank ad the African slave i

prade

ican slavery.

aro in the East, the Chi- distinguish between the ties of Europeans, We

by the condnot of cach en of each individual. I that the doc and tem- by the press of the con- rnments and people of tugal, and the pointing ошка, or. Ruppused errora proceedings in roference their emigration, in the the public benefit,

he proposition that dis-

eat of the alleged libel, benefit.

I hold to be its indis-

if with moderation, per-

bted duty, the polic

y has criticised the pro- and elsewhere along tho eference to the whole of gration" Traffic, Thete the time no newspaper 30 save the Government

tiina

has been for NOS

proprietor of the China spaper published in this

e appeared in that news-

May last, and another cation of the Ste of that

articles dieencuin

a both

d

odces:

ri at Afacan-Carions bating about respecting ction taken by the Par

ent-regarding the récent coolie trade, It is as- ho have good means of calor Amaral, who.en- representing the coolia ringueso parliament, has eat the thorough venti

recently commenced gislation likely to přeju- Fof the pig-dealers Aud

777

She Government has

inal up the whole

us respept for the repre

onorable, humans, and nstituency, we venture

doubt of the success of

fforts to ahield his friends.

ady food their way to

for

purposes which

1 it

larly gratify either the

ute to have exposed, hub

scarcely outweigh years

racy and fraud upon un-

id, peasants. We wish

háral joy of his attempt

er, and are sorry to add distinguished list of ba- Masad

18

o have earned for

e from our Macac cor-

that you

waid the

aiher

heading of Suppressio

trug

unately quite that Viscount de Praya ont most positive in

itute proceedings against The Chief Interpreter, Boosed to carry out the ould have had to do

inity bad remained in Chuchseiro Doputado cano Minister for the was right that he should

tendent,

*There i

THE CHINA MAIL.

5

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.

irall my heart, that what the Echo do Povo been as severely, as vehemently, of course tesy to the Bench, though doubtless no such law that an innuendo cannot introduca a practice dropped, that for other have ever voated in the Attorney General

#ner

est mode

in

At

that to be Attor

"ports, Portugal is not sufficiently vividuct of Ollicery con nature, Colsider it in whatever terms expressed ab 83-know mouey is used, it may be lawfully, it It was at that ox officio Informations dence, and I soe no words in the Charter ·

ແ

1 cart

exist in Ireland. But I presume that they of the Colony which authorizes the Gover do, and although I assume that the Attorner to do more than provide for the ordi- ney General in Ireland is appointed by naty due and impartial administration of Letters Patent, I find in Re Pigott 8 Har justies and for putting the laws into exe Rep. 114, that the authority of the Attoroution." I have also read the form of ney General in Ireland is not co-extensive commission a former Governor. with that of the Attorney General in Eng- find nothing which delegates to the Gover land, for one function exercised by the Anor or to His Excellency in Council any torney General in England is exeraised by right to authorize, still less to delegate, the the Lord Jient and not by the Attorney power to institute this proceeding, which is General i Troland.

extraordinary and is But the argument proceeds. It does not Queen's prosecution;" and if such pot

if such power folloir because the power to institute such a were vested in the Governor or in the proceeding as this, may be exercised in acutive I nowhere so, there being sn England or sven in Ireland, that this functornoy. General, how it could have bean tion exists in the A. G. in a Colony. taken out of the Attorney General and have been given to Mr Ball who had vested in him only some (it seems to me only the ordinary). functions of the office; nor do I see how authority to exercise so high

At

No 1799-March 13, 1869.]

ststructions camo, or at least they od, and said that there had been a mistake, I believe that the communication to the plea than to attack the information, which i Erskine's Libel Act, I proceed to remark Arrived here, when Govornor Horta was and he admitted in the most explicit terms Court by the Acting Attorney General in be insisted was bad, for that, taken by that. Lord Campbell's Act of 6 or 7 Vic. absens; I doubt of course whether that the Defendant had the right to plead that letter of the course which he stated tho themselves, the two articles were simply 96 (1843) enacts the truth of the matters show gratitude to his friends abil consti- a justification, and he stated that the terms Executive had decided to adopt was entire fair comment on the public condust of charged to be a good defence to any in- "Iments. No sooner "did he join the Mi- of the rale had been agreed on. Under ly without precedent. The Executive in public men in reference to matters of the dictment or information," in

nistry, but he sent counter orders, that the rule the Defendant had one month's England never made such a communication greatest public interest, and still more by as I have decided in the present caan, it is tween the Quean, and a Colonial Attorney

case where,

But there is not the same relation be is, to nuspend the proceedings against the further time to plead, and he was at liberty to the Court of Queen's Bench. If not "three above-mentioned individuals, and to justify hinder Lord Campbell's Act The done in England, how much more ought the iungendoes was such as the language should be published.

reason that the meaning put on the libel by for the public benefit, if true, that they General as between Her Majesty and Her that within a month of his ratry into the plea was by arrangement to apply to all such a course to be abstained from here, would not and could not bear, and conso-

Attorney General in England. The latter "Ministry; but he coufrued his afflhado three informations.

before this Court; weak as it is with one quently that I must deride against it."

It cannot be denied that formerly and to is appointed by Letters Patent, the former Marques Pereira in the uffice of Proopti And here I must take occasion to express Judge only, considering the undue in

within a short time before the passing of by warant not of Her Majesty but of the der, and last mail benight out orders in my entire discut from Mr Pollard's propofluence on bis judgment which such a

I must say, I strongly incline to think Lord Camphell's Act, (1848) ex officio In- Governor under the Colonial Soal Now put a stop to the proceedings about the sition, and my assent to what I at the time communication, that the case ought to go deed they are so framed as to be two counts, libots were filed, though they had year by diary authority as well as some proroga that both counts of the information (if informations by the Attorney General for the Governor has granted to him full or Anamite kiduapping affair. Such cunaur designated the constitutional exposition of to a Jory, tended to produce. The indian to which I give no opinion) are bad, and year become more rare. "able indifference to right doing should be the law as to Defendant's right to plead a rectness of the communication by the At

As have tive powers specilied, but I do not see that the Attorney General is bound by the before said I have ascertained that after ho has dolagated to him by his commission exposed by all well-conducted organs of justification, by the Acting Attorney Geno torney General to the Court in reading a meaning he puts on the alleged libel by the 1843 no Attorney Gerioral in England bas the extraordinary authority to commence publio opinion. As a friend of the Maral Ball

letter to his own Attorney in the matter, as intendoes new; to use the words of the filed a single ex officio Information for and carry on the Queen's own suits, much Cistas I can truly assert that I wish with Buyond question my public conduct has the medium of information, was a discour Chief Justice Tindal, "It is a clear rulo of Label. Indeed, as much has the whole less to delegate such powers to the A. G. here. #said or hinted in its last nuinhor, when I think unjustly, criticised by the press discourtesy was intended. With reference meaning broader than that which the words offouces. two Informations only could be

The affirmative showing that such) NOW Gr writing about the gunboats building at repeatedly, and I may add by this Defend to the statements which the Attorney Genaturally bear, unless connected with pro- found in the Crown Ofica as having been lies on him, and he has not satisfied me that

ntain, may be realized. The Chinese ant, as that of any public man anywhere; neral made in that letter, as he had not per introductory averments. The well-carried on since 1843. are a set of fools for allowing the Quinas but I will not allow Mr Pollard's proposi been present he could write only from in known case of Hawkes . Hawkey, 8 Bast

such authority has been granted or dele- Portugtezas to emtious Bying at Macao. tion to pass for law without remark. If a formation given to him, and as to which I 427, is the best illustration of this cule," officio Informations for libel must be held He has not satisfied me as a fact that any It was arguod for the Defendant that ex gated to, or is vested in the Governor.. It is the easiest thing possible for them to mau be libelled in his private character it think he has been misinformed, particular Alexander u. Angle in Error 1, Crompton to be unconstitutional sinco Lord Camp-ex officio Criminal Information has ever staks the place, or as are babe fa for rooted, brit it is

what Mr

link that the men horeca Cola brai There are neither forces cannot be for the publio good, and it is not ly when he treated as a favour to his, that and Jervis 143 and aes 8 East 467-469 1 boll's Act was passed, because the Attorney been rightfully filed by any Attorney munitions the officers,..with the oxception perhaps Pollard called this, a public libel. When a Plan of Justification, whereas the Acting throughout introduce meanings broader falsity of the libel, and therefore it is sug- has not in fact been filed in this Colony

It any Colony cartainly Sr. Horta and Commandant Cunha se publié tan is libelled in respect of his Attorney General had expressly admitted than the words bear." It is unnecessary for gusted it should be treated as illegal even It has not been shewn strat the A. G. 3 wars artillerymen, the rest uiust yet be taught publie sondnut it may be justified, for to it to be the Defendent's right so to plead to consider whether any averments in England a fortiori here The Defun- rant confers any such authority on him. the Tactica Elementar. A smaller force expose misconduct in public offices is for And as to costa, they on more than one could have cured this defect.

dant is entitled to the benefit of this argu than that which Ward or Burgevine com- the public good. It is true, and happy occasion were admitted in both sides to me

1 do not decide that be has no stich #manded at Shanghai would take the "for us it is that it is true, that every man to necessarily follow the ovent by force of leged libel are incapable of the meaning as winds. It is not necessary for me to de-shown to me to exist in him, and I cannot It seems to me that the words of the alment which may have weight with some authority, but only that it has not hear whole place, forts and all, in less than six has a right to discuss matters of public Ordinace No. 4 of 1857. How with Lord sabed to them in the innoondoos in the infor- cide this point. It 4 hours. Neither England, Fraich, or other interest, & Clergyinan with bis flock, Mansfield's dictumn (Sir W. Bige 514) before nation. In several reaporta aid in particular constitutional than of garbake more of a in the absence of precedent infer that it

nations would interfere; and as for the an Admiral with his foot, a General with him he could as in that lotter he said he dressing myself to what has been called

a legal objection. does so exist Macaistas, they ought to cbant a Tobie army, and a Judge with his jury, we should do, and as he did, give a loma stand the sting of the Libel, there is not a word that those, the Queen's own suits" for torney General in this Colony can file such

But the argument proceeds, admitting But the argument proceeda. If the. Deum, when such an avent takes place. are all of me, the subjects of public dis to the counsel of any private prosecutor a high could convey to the mind of any one personal injuries to the Sovereign, may still an information, does he cease to be Attor With

Macao as Chinese territory the "cussion." This is what Bramwell B complainant I am at a loss to conceive. On a notion that any portion of the £2,000 be originated even for libel by the Attorney y Creword-when he is absent from the Macaistas will sbare better in China, and said in Kelly Sherlock, 1, L. R. Q. B. my doolining to hear him otherwise read alleged to have found its way to Lisbon had General in England, that is so because he is Colony 1 incline to think fie dous art * Portuguese subjects, be much better 689, as Cockburn, CJ, at p. 701 affirmed the letter he appeared pro formd and only reached the hands of Serthor Amaral as a the Queen's personal Attorney and recordinance No. 3 of 1865, § 5, in giving the form

represented than they are now. Portu" with the most perfect propriety." The pro found in the prosecution.

ribo or money gift to him.

The tenor of nised agent for that particulat, Boo high. he continues for some purpeaes gal would necessarily have to soud out language of Mr Baron Bramwell is more

of the ordinary Information, assumes I feel that the reading this letter in Court the whole is indeed that his gratitude to He is appointed by Letters Patent, the a good man-lo be their Consul General pointed, but in sexss it is only a repetition was unconstitutional and that it has great varda, his zeel for, his constituente, nat and Judge to resido at Macao, and the of this language of Mr Justice Coleridge inly increased my dificulties. It is the ex- any money bribe, had incited him, and that also the Solicitor General, these being the ner General is appointed by the Governor of conferring such an office, as is noy General here. Now the Acting Attor Macaistas would govern themselves with Gathercole v Miall, 15 M. & W 382, who pression of the views of the Attorney Ge- money was used, not to stimulate his zaal, unly two odteers who in England are nu- on his own authority, and for aught that a Municipal Council, which would no said, "I think it quite right that all matters neral, and of him alone, and I will not con- but to further and aid his efforts as we thorized to file this kind of Informistion. appears to me it is an appointment by

It doubt be established at other Chinese "that are entirely of a

I think, abewn by reference to col of which the Gazette is the only ext- of Ministers, pressing any opinion much less decision by may be illegally, to carry elections or poli lized to be allowed to have a Colony so conduct of Judges, the proceedings of all the Exocutive, who ought not constitution- tical measures or railway or canal under

any precedent near An English Colony sa Macao is to persons who are responsible to the publically to have been mixed up by the Attorney takings in England. Again, at the end of the "Hongkong."

"at large, are deemed to be public pro- General in the question before me. The alleged Libel, in what is called the second Mr Souza, the Proprietor of the Echo doperty, and that all bona fide and honest Attorngy General, and he only, is respon-count, occurs this innuendo ("meaning as is Pace, a weekly newspaper in the Portuguese remarks upon such persons and their cou-sible for the coudnet or discontinuance of herein before alleged of and concerning the Janguage in Hongkong, also published an duct may be made with perfect freedom every ex officio Information, for it is he who false malicious and defauntory libel firstly achole in that paper on the Coolie Trade and without being questioned too nicely prosecutes and he alone, ought to appear or bereinbefore set forth), words which import The articles appear to have given offence either for truth ur justice" This is the can be recognized by this Court in it. The all the innuendoes or it may be only the last to the persons then constituting the Goy laws of England as explained by living Attorney General having read his letter long innuendo to the pavionsly set out arti- erment of Maono. His Excellency the then Judges. Wason. Walter, decided on the retired from all active conduct of the pro- cle. I might further exemplify the grounds Governor Ponta e Horta, maile no commu 25th of last November, brings it down no readings, having given, as he said he should for this view as to the innuendous, but it is nication to the Government-of this Colony loss emphatically to the present time. It do, a locus standi to the Counsel of the com- enough for me to say that on the whole I ca the pubject, but he communicated to the is certainly not less the law in this Crown plainants; but the prosecution businued to think the information bad by reason of the Consul, who is merely a commercial agont Colony, where there is not and cannot pro he his, and however conducted, it was upon innuendoes going beyond a mere videlicet, here, with directions to take the legal steps. perly be a representative Assembly, and his offieint responsibility. Mr. Pollard, as and that the judgment of the Court ought That Consul applied to his Attorney, Mr where the press is the only organ of indo-anch Counsel, conducted the case with very to be against the information on that ground. Caldwell, who consulted Mr Pollard; they pendent thought. I am at a loss to reconeile great ability and with zeal such as he night. This objection, though technical, is still went to the office of the Acting Attorney the theory of the Attorney General, Mr well be expected to display, but with greater applicable to this, which is a Criminal pro- General, who sent for the Crown Solicitor Pauncefofe, in the letter to which I shall real, especially in working out refinements secution: If the proceedings against this to his Chambers, and on the 18th of May refer hereafter, that the truth cannot be in argument, than I think the Attorney Defendant had been an action for the libel last, ten days after the date of the 2nd ar plondus justification to an ex ufficio General would or should have thought pro- by Senhor Amaral the objection would not

prerogative could os delegated by the ticle in the China Mail, and without any information consistently with the enact-

parol of the Governor-eing the lang opportunity given for apology or explana units in Lord Campbell's Act, or with the per as representing the Queen in person, the hold, because the €. L Proc. Act provides

parens patrice

a remedy for such an error iu ploading as often said that no such precedent uage of old real property lawyers, personal tion, three several informatious were filed language of these eminent Judges. Subse offlow by the then Acting Attorney Gequently the Acting Attorney General elect

abjection applied Now the scccssity for ou Chalmers' opinions, page 493 497, as there be any such prerogatire) functions Even in a civil action before that set this could be furnished, bat reliance was placed privity is

The wanting. extraordinary (if neral Ball againat Saint, without aufluority ed to proceed on the information in refer-

the disuse applicable to civil procedure con- svilence that in fact the right now in still remained in the absent Attorney froui and without the knowledge of the Exence to the alleged libel on Senbor Amaral,

firms the rule as to Criminal proceedings question was oxorcised by the Attorney Geieral. At least it seems to me that ecutive. A similar information was filed leaving the two other informations stil

and shows that the Legislature whilst General in New York in or before 172 they were not granted to 3ir Ball. I am under like circumstances against Souza, on

hanging over the Defendant,

altering the rule as to civil causes, intended and as unluce tempus occurrit regi,

thereforn of opinion that if en no other the lab July last, for an article in Liche

the

Notwithstanding what I understood the

to continue the strict technical rule in

was contended that this statements and opt decision, this Information is bad as being than on this, the narrowest ground of Attorney General to Bay in Court on the

Oriminal prosentions for libel.

nions in Chahners were suficient to enstain professedly filed by the Hon'ble. H. J. Fall It seems to me that the parties have been the existence of theso Informations as a entered as to these two informationa

Attorney General in reference to his in- Considering that Mr Chalmers had been a m the now Queen,

stondoos and the Defendant na to the par-zealous Loyalist in that great struggle be-Ble it vested in him as much.

whan no power to steps taken by the Crown and by the Do. the dontrine, with curious illustrations ticularity of his plea, nail especially by gun before 1726, which ho throughout enfien each step of the argument on this demurrer On all or on some or one of the points in auch information has ever been filod fendant on this information. The proceel- Stark on Libel 230, is according to the Brenvidge . Latinier and days have beonellen in to sacrifice bis professional pro. it will be open for the parties to

"rebelion" the muccess of which "com- inge, diagging their slow length along, hava. Cases applicable (if still applicable)

ble) wasted in argument when any conİON been so numerous that I cannot well trace only whure by the libel an indictablo sense procedure could and would have easily spesis which wore very good," and he anglit or object to my decision, which is that this support them without this Manoraudum. I will offence is charged. And that it cannot defined nobody doubted the ron issue refugo in England, considering also what in particular information is bad on several therefore refer to it. After ineffectual 1 must remark that the Acting Attorney communications between the Attorneys the such an offence nor oven then when precision. The English pleading procedere satisfactory proof existed that from 1688 it to the main one being that it is filed by a apply where the libel does not impate between the parties with certainty and his bitternesslie said at page 13 that the most grounds, some only of which I bave referred General was not wanting in energy in the two pleas of not guilty and, of justification, the Queen and not the party libelled prose has been abandoned everywhere under had been the settled purpose of the revolted person who is not show to have had, and course ho took. He meant what was right, in the form in which they now stand, with cutes. It would be absurd in the absence British Rate in Asia except in this Colony. colonies to acquire independence, he is not in whom I can find no authority to file it Lut the tendency of filing thran informa two lines struck out by agreement, for judg of the libelled person to try whether for in In, India another system prevails, and for a safe guide as to any legal phase of that

It is satisfactory to come to this on- tions in one day against one man, for two ment before me, wore Bled on the 10th stance he had committed a murder. In my the Consular Courts of China and Japan struggle. But 1 will assume the facts to be clusion without entering on a consideration articles on the same subject, to the same July. A summons taken out under the C. opinion the libel before me inputes no such the Foreign Oftica has wisely prescribed as they are represented at page 483. They of the constitutional limits Her Majesty' рикроп

tended unduly to depress the De. L. 1. Act to strike out ur amend the 2nd offence. Again he shewed where bo const system of admirable rules as to procedure are a recital in an act that Her Majesty's undoubted prerogative to file informatione fendant, and by a sort of mental torture to plen was on the 24th July Just cryed in cured the plea to be bad for want of parti- which, simplies the preliminary proceed; subjects had been then (1735) lutely pro-ox officio, personally is of own prosecn- indues him to niske the most object spology Chambers, and was dismissed by me.

tions. are matters bigh proroga- Thatcularity, but then particularity is relative inger and renders it easy for the parties and secuted in the Supreme Court of the whether what he had said was capable of Act does not apply to Criminal procedure. and must be more or less

3 precisa socorried.

the Court to define the real issues to touy of New York upon informations filed tive which the parties have tried to foren being proved to be true or not, especially "On the 4th of August the Acting Attor to the nature of the trissactions

Why that system has not been against them by the Attorney General and on my decision, I do not question the in this Colony where, as I believe, the costs doy General applied for leave to examine It appears to me that the rule of justifica adopted lave 1 do not know.

his deputies though the mattor charged had right of Her Majesty to institute such

pro- of litigation exceed the like oosts elsewhere H H Senhor Horts, the Governor of Mation is that it must be as reasonably certain Mr Hayllar directed his efforts mainly been trivial and inconsiderable," c. Now seedings in the Colonies by any person the British dominions or in the world, cao, who was abant in leave for Europe, as the nature of the case will admit, and to attacking, which he did in a clear and this statement proves too much; it proves, thaly and adequately authorised in that be Eron, success in three suck suits may be de bene esse, to which the Defenunt, in the reading the plea in a plain common sanssable argument, the Information before me, it proves anything that "Deputien had half. That question does not, as it appears ruins to a inau If he be not vick. Any apo. expressed hope, as I understood, on the way, I think that in an ordinary cuss and as being an Information sultive vires the done what it is admited the Attorney Ge to me, ariso. That in fact they will not logy under much oireistance coull not understanding that it would expedite the under ordinary circumstances the Attorney Acting Attorney General of this Colony, nered alone could do in England and what hereafter be instituted here by the Attorney have been satisfactory to any party: trial, consented. Un that occasion the General as a prosecutor would, if exercising and as being thongh in form ex-officle I even his "deputies" could not have done General I iufer from what he has said.

These informations were all professedly Acting Attorney General said the cases bad his own unbiased judgment, not have deformation filed on behalf of Her Majesty, anywhere. It shews that in this as in al- What I have considered has been (not framed in the precedent which Peltier's taken such a turn that he would withdraw murred, but that he would have felt that in law no Information at all. His arguinost every other respect the Crown's Fra questioning that such Prerogativa vesta Case in 1808 furnished. Mir Haylar, very then after & pause he added ho should the case set out by the Defendant was suffmeet carried to its legitimate extent was rogatives wore then strained and foray has been clearly vested in Mir Ball who ha

th Her Majesty) whether the exercise of it Rptly remarked that the decision In Pel consult the Portuguese Consul,& strange ficiently precise on which to tako issue, that it was a nullity.

oppress the Colonists. Not for the tiere case and that in Wasan v. Walter, procedure as to the Queen's own suit. Un-having regard to the nature of the charges And here I must complain that notwith- King's service, but for the benefit of the boso appointed, there decided in Nov. last, with an interval of fortunately for all parties in this case second and the very great difficulty if not impos- standing the emphatic declaration by the oficers who abused these Prerogatives. As General, in the way he has been appointed being an Attorney over of years between them, belonged to thoughts, out the best, inducal the conti- aibility to be more preciso. Reading them Attorney General in the Letter to the key to what appears in Chalmers, I turn Acting Attorney General only. My desi two different worlds of thought. The difmitance of these proceedings. During the as a whole, the charges and facts appear to Crown Solicitor which he read in Court, to Beneroft's History of the United States sion mainly rests on the narrowest possible ference well illustrates that admirable elas earlier stages the Acting Attorney General ane to be intelligible, and I am surprised at that he would defend the Royal Preroga in Chap. 23, passim, of which I read to what ground. By Ordinance No. 4 of 1857, ticity, to which Chief Justice Cockburn has expressed himself sa inpatient to go to any digitdination to meet them by shy tive persounlly, as i think it was his duty violence the officers of the King proceeded, costs are made payable by or to the Crowt referred, with which the Law of England trist, and the Defendant appeared equally body, Then Mr Pollard out up the plea into and my right, for any aid in this extra- Beyond doubt there were then ex-officio as by or from private parties. If this had

itself to the yauging conditions of rendy

alost infinitesimal parts, into pre than erlinary argument that he should do, he Informations by the Attorney General and sen a Criminal Information the prosecutor Ou the 20th of August the Defendant's 20 sections. And when he had finished, said not ona word; he did not even appear by his Deputies, which culminated (the would have had to pay the costs, and this Fortunately it la sol necessary for une to Counsel applied for leave to set down this the words of, I think, Cosper recurred to in Court in answer to Mr. Hayilar in durvace firand Jury having thrown out the Bill) Ordinance nasimilates the valo, as the Acting express an opinion whether Poitier a case is information for trial, when the Acting ine. We murder to dissect, I had thought of the Prerogative, but he left it to Mr in an ex-officio Information by the thea AG, and Me Hayllar both admitted. still kw. If it be law now, I am surprised Attorney General made this statement, Lbar understood the plea na mening some Pollard who was not restrained by official Attorney General of New York, and in tho Confining myself to

to the consideration of that the Attorney General in England is decline, on my own authority, to set down thing as a whole; thus dissected, it was responsibility from putting forth argumo trial of Zenger for editions libsis in 1734, the legal questions before an I I give Judg. hot daily induced to Ele,ex officio Informa: this case, as I am only locum tenens, and dead body without sense or meaning. But all most ably put, aue of which were and his aunaitial which was called the ment on the Demurrer for the Defendant tions against this press for attacks, not on ledline to establish any precedent in the Mr Pollard's most serious attack on this perplexing than real. I cannot complain Morning Star of the American Revolution. and under the Ordinateu just cited I add Ministers of Foreign States only, but ou

bence of the Attorney General," He plen was this, that whereas is apparent to of his arguments, being as he was the re First then I say, if the passage from that this Judgment must be with coste nearly overy Crowned Head in Europe, also declined to do so as a matter of grace rufen to be a denial of the use of the presentative in Court of thre complainants Chalmers proves anything, it proves too of all the proceedings, to bo taxed and But if the English Government cau say to and favour to the Defendant. He claimed words with the weaning imputed to bleus to worst dad, and bound as he was to them New York could then and thore depute the adopted in the Judgment against the Crown them, whom the Attorney General had given muovia, that the Attorney General of paid to the Defendant. Perhaps the form complainants, "Peltier's care is no

and a justification of doogar, law, non pussymits, that, and that

natural sense with that sense explained by to urge every posibleargument to the Court power to file an information; to my mind a in the ex officio Information in the Praga only, is a sufficient explanation why there

the Defondant's own inquendos, according

Mrease tony be adopted as to this case. has not been one ex officio

accidental

du Poen

on the whole record is open to my decision. It was admitted that every point patent Mir Pollard then opened the Demurrer. Having enumerated a number of preposi- tions, and having cited cases from the ear liest lines to the present, he objected among other points to the second plea as being too general Be cited cases in which a

libel, and he con tended that the specific made as if the libelled person were on his trial for the offence. It seeras to me that

The ones 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, 1 have asked for precedent of such a proceeding in any It was Colony to be furnished to me.

I have taken the trouble to ascertain from 10th of February, no alle prosequi has been crime was charged in charge must be perplexed by rules of pleading, the Acting Royal Prerogative in a Colouy at that data. squire Acting Attorney General of our

the Crown Office in England that since 1843

three

ex officio informations by the Attorney General have been filed, and int one for libely in England.

No

in this Colony until theas four informations, which were filed three on one day and the fourth within less than seven weeks after

warda

theloty.

all

Å memorandum signed by the Attorneys on each side is now befors me, shewing the

the benefit of the rule that no foches can

be hapted to the Orown, and asked how the Court could enforce its under if it or

a

·

if

used to

ad absurdum. And gave me the reference

;

$.89

I have escaped from a consideration of

The absence of the Attorney General from to what the Lord Chancellor the constitutional questious in reference to

bel in England since 1843, ation for dered the Acting Attorney General to But to the forth set out in Bull & Loake 2nd | the argument has cast a much more difficulti

ค

of Island said in ro. Pigott & Dar. Rep. ex offivio Informations, some of which were

the cause down. He in fact stood on the edit. (1862) page 613, Mr Pollard was the burthen on me, and if wanting lus assistance Mr Haint, either not braving had an op prerogative that lie was beyond the juris fortunate possessor of the only copy of a fall into error in my conclusions his re- portunity to explain or declining to explain diction of this Court, and it came to this, third edition of the same work (188) just ar- licence is the more to be regretted. p.. 114, in June last. He said, "the pro- pressed on me op both sides. If the pro- on such compulsion, appeared on the 20th that the Acting Attorney Goueral, not sugrived, in which that form is abandoned in a

In language

Mr Hayllar professed to at- ocdunts were for a long period those of ceedings bare been unconstitutional, as was of May last to all three informations.

He

-was served with rules to plead, and testing that there was any impediment to ples to an action for damages up the autho-tack the prerogative of the Crown, as he had unsettled times (bad timos) when a great repeatedly urged on mo by the Defendant'a

and

· Land (the Acttug. Attorney General, not ap-ovidonos in support of hia. second plea by whether this plea is good to rolaark prerogative, and not the prerogative itself, dealing with the opinions, for they are only but if beyond the purely legal aspect of

stitutional in their inception or by reason of their having been unduly protracted, and that he has been oppressed as has been strongly urged at the Bat, be bas have a remedy

a trial, abaclutely refused to set the canserity of a case Brenridge Latimer report distinctly informed thu Attorney General deal was often done according to the parti- Counsel, this is not the tribunal to decide apon be obtained a rule niat for a month's down for trial, and that this Court could, ed in 12 W. 1, 878 (1803) ful not to be that he would do. I think it únucoessary and cular party which happened for the moment

aneta questiona, if they can be as

they have time to plead

for learo to doinur and At least that it would, not order it to be found elsewhere, these reports not getting therefore improper for me so to treat the to be in power." He expressed his unwill boon here climinated from the legal ques plead a justification, or as he should be ad- done, notwithstanding the Defondant de-into the ordinary Digests. As I din not subject, and I feel satisfied that what he ingress in cattled times to follow them, and tion. My decision on the purely ingal vised. The rule was opposed by Mr Pol-posed that he was in paril of losing the think it necessary to decide absolutely meant was rather to attack the unconstitu- he did not follow then. I must adopt the questions is subject to review hy the Indicial bad in form tional exercise, or attempted exorcise, of the same language and conduct here, and this Cominiites of Her Majesty's Privy Council; fearing) on the 5th of June, and Mr Pol- delay

or substance, 1 bave only ard insisted that it was the universal prac The proceedings remained thus at the that that case was in a Coution Law Passing from the Royal prorogatives as opinions (and ex parte statements in them) this case the Defendant considers that ha lis put to allow a justification to be plead mercy of the Acting Attorney General an prosesding in an action for damages and they had baon, expounded by over-logal in Chalmers as coming out of bad times; and has been the subject of proceedings uncon ted to what he called & public libel, which he til the 14th of December, when the Acting that that decision appears to have turned Judges in old tunes, Mr Justice Blackstone with what Chitty saya na to the prerogative this was, and that unless the prosecu Attorney General deinurred, after an in on the power of Judge at Chambers or of aid more than a century since, "Theobjects in this particular founded on Chalmera as chose to go'inte proof of the falsehood terval of five months, to the second plea the Court under the C. L. Act alone, to of the sovereign's own prosecutions filed his authority, I do not recognise them of the libel, and not otherwise, the Defen- Bled on the 10th of July, and on the 1Bih striks out or amend, also that the decision ex officle by his own Attorney General are precedents, and 1 and myself without a dant could not give proof of its truth, The of December the Defendant joined it was not on a demurrer I must add that properly such enormous misdemeanours reliable precedent or couetitutional aut Court was overwhelmed with a number of Demurrer.

the rules rented under the C. L. P. Agt as particularly tend to disturb or endangorrity satisfying me that an ex officio inter capes chiefty sated from befors Elizabeth The Attorney General, Mr. Paincefote, are confhied to civil and do not extand to his Government or to molest or affrontmation was ever filed in any Colony by any downwards to times preceding Lord Camp Whose early return was on the 14th of Desiminal pleadings, and therefore I am far him in the regular discharge of his royal Colonial Attorney General at any time. bull's Act of 1848. I confess I was as ceiber expected, arrived in the Colony on from being persuaded that the form in functions." On the same page he calls them. Principle points to the non-existence of tional as distinguished from legal wrongs: puuded at the law this propounded and the 31st of that month, but no step was takBill and Leake 2 edit, of 186% is not still, properly the king's own auits." Questions such a power. It is the personal right of I have in conclusion to express my great the able the marvellously "Ingenious arguen by him in the matter, and the demurrer god pleading in criminal pleading, thoughing only in passing whether the libels be the Savorelu as a remedy for specially regret that inability from indisposition to Tents gainst the Defendant only strength to the second plea was adversely set down it was in this case citer in effect disallowed, fore me can by any straining of language prisonal injuries. Are there in a Colonypple, with any continuity of thought, ened my astonishment.

for argument by the Defendant, and the under the . L. P. Act. M Faylady for be brought within these terms, 1 proceed such taisdenteanors as peculiarly, I empha with the great difficulties of this case, I adjourned the argument to ascertain demurrer came on for argument before me. the Defendant, ridiculed the dissection of to the contemporary dictum of Lord Mana sise the special words, tend to endanger should have delayed my decision. The frag- Whether Mr Pollard had the sanction of the On the cause having been called on, the his plea by Mr Pollard and submitted that field in R. V. D'Eon, 1 W. Blac 514, In Her Majesty's Government or to molest or mentary way in which from the same cause Acting Attorney General in his official Attorney General, contrary to my repeated taken as a whole it was a full answer to the formatious ex officio are personally the affront her Not to insist that I can see I have been obliged to take up the subject Responsibility for the doctrines he pro-and urgent suggestion that it should not be information, which he contented consisted king's prosecutions. No man is there to be no misdemeanour of this kind in these at intervals, aluue raises any doubt in my pounded,

done, read a letter addrossed by himself to in form and in stance of one count only, considered in the light of a promoter or libels, I can conceive of no case for which mind as to the correctness of the conclusion Of the 10th of June, that oficer appear the Crown Solicitor.

But he was less careful to sustain his own private Proscontos." Noticing only Lord the ordinary Law in the Colouise, in this to which I have, after most anxious, most

patofni thought, come,

i.

1

1

no ready bero, but he may upon petition to the Governor in Council tion points out for the remedy of constitu ik by such other meme as the constitu-