CO129-137 - Sir MacDonnell - 1869 [4-5] — Page 150

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ings and renders it easy for the parties and field in R. V. D'Eon, 1 W. Blac 514, “In- the Court to define the real issues to be formations ex officio are personally the tried. Why that system has not beca king's prosecutions. No man is there to be considered in the light of a promoter or adopted hore I do not know.

Mr Hayllar directed his efforts mainly private Prosecutor." Not overlooking Le to attacking, which he did in a clear and Erskine's Libel Act, I proceed to remark able argument, the Information before me, that Lord Campbell's Act of 6 or 7 Vic. as being an Information witra vires the 96 (1843) enacts the truth of the matters Acting Attorney General of this Colony, charged to be a good defeuce to any in- and as being though in form an ex-officiu In- dictment or information," iu a case where, formation filed on behalf of Her Majesty, as I have decided in the present case, it is in law no Information at all. His argu- for the public bencht, if true, that they ment carried to its legitimate extent was should be published. that it was a nullity.

It cannot be denied that formerly and to

And here I must complain that notwith- within a short time before the passing of standing the emphatic declaration by the Lord Campbell's Act, (1848) ex officio In- Attorney General in the Letter to the formations by the Attorney General for Crown Solicitor which he read in Court, libels were filed, though they had year by As I have that he would defend the Royal Preroga-rear become more rare.

tive personally, as I think it was his duty before said I have ascertained that after and my right, for my aid in this ex 1843 no Attorney General in England has ordinary argument

ent that he should do, he filed a single ox officio Information for said not one word; he did not even appear Libel. Indeed, so much has the whole in Court in answer to Mr Hayllar in defence practice dropped, that for other grave of the Prerogative, but he left it to Mr offences two Informations only could be Pollard who was not restrained by official found in the Crown Office as having been responsibility from putting forth arguments, carried on since 1843.

perplexing than real.

I cannot complain

all most ably put, some of which were more It was argued for the Defendant that ex of his arguments, being as he was the re-officio Informations for libel must be held to be unconstitutional since Lord Camp- presentative in Court of thres complainants bell's Act was passed, because the Attorney ter whom the Attorney General had given General could not judicially ascertain the the locus stand, and bound as he was to them

to urge every possible argument to the Court. falsity of the libel, and therefore it is sug The Defen- The absence of the Attorney General from gested it should be treated as illegal even the argument has cast a much more difficult in England a fortiori here. burthen on me, and if wanting his assistance dant is entitled to the benefit of this argu- ment which may have weight with some 1 fall into error in ay conclusions his re-minds. It is not necessary for me to do. ticence is the more to be regretted.

1t partakes more of a Ju language Mr Hayllar professed to at-cide this point. tack the prerogative of the Crown; as he had constitutional than of a legal objection.

But the argument proceeds, admitting distinctly informed the Attorney General that he would do. I think it unnecessary and that these, the "Queen's own suits" for therefore improper for me so to treat the personal injuries to the Sovereign, may still subject, and I feel satisfied that what he be originated even for libel by the Attorney meant was rather to attack the unconstitu- General in England, that is so because he is tional exercise, or attempted exerciso, of the the Queen's personal Attorney and recog- prerogative, and not the prerogative itself. nised agent for that particular purpose. Passing from the Royal prerogatives as He is appointed by Letters Patent, the high- they had been expounded by over-loyal est mode of conferring such an office, as is Judges in old times, Mr Justice Blackstone also the Solicitor General, these being the said reore than a century since, "The objects only two officers who in England are au of the sovereign's own prosecutions filed thorized to file this kind of Information. ox officio by his own Attorney General are It was not, I think, shewn by reference to properly such enormous misdemeanours any precedent that ex officio Informations But I presume that they as particularly tend to disturb or endanger exist in Ireland.

his Government or to molest or affront do, and although I assume that the Attor him in the regular discharge of his royal ney General in Ireland is appointed_by functions." On the same page be calls them Letters Patent, I find in Re Pigott 8 Bar. "properly the king's own suits." Question-Rep. 114, that the authority of the Attor ing only in passing whether the libels be-ney General in Ireland is not co-extensive fore me can by any straining of language with that of the Attorney General in Eng- be brought within these terms, I proceed laud, for one function exercised by the At- to the contemporary dictum of Lord Mans-torney General in England is exercised by

H. There is no

th

147

o foundation,

for this attack upon me. I distinctly drew the attention

• of the C.I. in Court on the 10.

# of February bejove the Demurrer was argued to a

all the auitiorities in support of the legality of the Information- Idid not

orre

It argue the Demurrer, because

can be heard and as

only announced in my

official letter to the Crown Solicitor (she app to my Report marked. B. ) I did not propose to ticke part in the Discussion of the Case further than might be necessary to protect the

rights of the Crown-

I submit that it is no cute of the

the Whip

Attorney

part of the

General to assist"

wpecially when he

himself

obstructed by the C.Y. in the exercise of

us Preble Functiers.

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