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
148
I.
The Law
of England prevailsherefsee ton Kong Ordinance 12 of 1846) therefore the "on lis" should be on the other sider the
rest of this Passage & fail to comprehend It appears to have been corrected since the Judgment was delivered for the Chief Jean stated and no doubt was under the impres that. It ad cited the opinion of W/ Chalm himse to instead of that of the two em lawyers. JR
I.
#
vo eminent
It is unnecessary to remath that chitty Bock on
the Prerogative (which Icited me for the Rule referred to at page 291) is no "founded on Chalmers as his authority
(25)
the Lord Lieut. and not by the Attorney in an ex-officio Information by the then General in Ireland.
Attorney General of New York, and in tho But the argument proceeds. It does not trial of Zenger for seditious libels in 1734, follow because the power to institute such aand his acquittal which was called the ceeding as this, may be exercised in Morning Star of the American Revolution." England or even in Ireland, that this func- First then I say, if the passage from tion exists in the A. G. in a Colony, Chalmers proves anything, it proves too
The onus to prove that it ever existed Jay much, viz., that the Attorney General of on the prosecution. From the time when New York could then and there depute the the case came first before me months ago, power to file an information ; to my mind a and repeatedly since, 1 have asked for a reductio ad absurdum. And secondly, Mr precedent of such a proceeding in any Pollard gave me the reference (accidental Colony to be furnished to me. It was on his part) to what the Lord Chancellor as often said that no such precedent of Ireland said in re Pigott & Bar. Rep. could be furnished, but reliance was placed p. 114, in June last. He said, "the pre- ou Chalmers' opinions, page 493-497, as cedents were for a long period those of evidence that in fact the right now in unsettled times (bad times) when a great question was exercised by the Attorney deal was often done according to the parti- General in New York iu or before 1725, cular party which happened for the moment And as nullum tempus occurrit regi, it to be in power." He expressed his unwill- was contended that the statements and opi- iugness in settled times to follow them, and nious in Chalmers were sufficient to sustain he did not follow them. I must adopt the the existence of these Informations as a same language and conduct here, and thus Royal Prerogative in a Colony at that date, dealing with the opinions, for they are only Considering that Mr Chalmers had been a opinions (and ex parte statements in them) zealous Loyalist in that great struggle be-in Chalmers as coming out of bad times; and] gun before 1725, which he throughout called with what Chitty says as to the prerogative", a "rebellion" the success of which "com-in this particular founded on Chalmers aS 'pelled him to sacrifice his professional pro- his authority, I do not recognize them as apects which were very good," and he sought precedents, and 1 find myself without a refuge in England, considering also what in reliable precedent or constitutional autho- bisbitterness he said at page 13 that the most rity satisfying me that au ca officio infor- satisfactory proof existed that from 1688 itmation was ever filed in any Colony by any had been the settled purpose of the revolted Colonial Attorney General at any time. colonies to acquire independence, he is not Principle points to the non-existence of a safe guide as to any legal phase of that such a power. It is the personal right of straggle. But I will assume the facts to be the Sovereign as a remedy for specially as they are represented at page 403. They personal injuries. Are there in a Colony are a recital in an act that Her Majesty's such misdemeanours as peculiarly, I empha- subjects had been then (1725) lately pro- sise the special words, tend to endanger socuted in the Supreme Court of the Colo Her Majesty's Government or to molest or ny of Now York upon informaations filed affront her? Not to insist that I can see against them by the Attorney General and no misdemeanour of this kind in these is deputies though the matters charged had libels, I can conceive of no case for which been trivial and inconsiderable," &c. Now the ordinary Law in the Colonies, in this this statemcut proves too much; it proves, Colony at least, does not provide, or why if it proves anything, that "Deputies" had Her Majesty's suit "truly and properly done what it is admitted the Attorney Ge- her own" should be extended to alleged neral alone could do in England and what wrongs which in no way affect Her Majesty. jeveu his "deputies" could not have done But there is not the same relation be- anywhere. It shows that in this as in al-tween the Queen and a Colonial Attorney Juost every other respect the Crown's Pre- General as between Her Majesty and Her rogatives were then strained and forcibly Attorney General in England. The latter used to oppress the Colonists, not for the is appointed by Letters Patent, the former King's service, but for the benefit of the by warrant not of Her Majesty but of the officers who abused these Prerogatives. As Governor under the Colonial Seal. a key to what appears in Chalmers, I turn the Governor has granted to him full or Bancroft's History of the United States dinary authority as well as some preroga- in Chap. 23, passim, of which I read to what tive powers specified, but I do not see that violence the officers of the King proceeded. he has delogated to him by his commission Beyond doubt there wore then ex-officio the extraordinary authority to commence formations by the Attorney General and and carry on the Queen's own snits, much by his Deputies, which culminated (the less to delegate such powers to the A. G. here. Grand Jury having thrown out the Bill) The affirmative shewing that such powers
Now
No comments yet.
Private notes are available after approval.