10
11
183
[2]
e. Lord Geo.Gortlon, 17874′′ Rex . Vint, 1501; flex n
1,03803; The Government
England in 1852. (See
= D'Eon. 1764; Rex
Peltier, temp. Najolcom
First.--Those which are truly and properly "the Sovereign's own suits" and are filed by his own humediate officer, the Attorney General. The objects of this kind of information are properly such enormous misdemeanours as peculiarly tend to disturb or endanger the Government. There are but few instances of this kind Prees Prosecution in of process among which may be mentioned the information (by command of Crown) for a libel against the French Ambassador (Rex v. D'Eon, in the 1764, and the other cases cited in the margin.)
Liberty, c.23 The last- mentioned prosecutions
were probably not Initialed by tnformation, for it appears from private enquiries made at the Crown Office in
oficio information by for defamatory iibel has passing of Lord Camp- bell's Act (24th August, 181.) See also the
the note to Mills Essay on
year were abandoned and
London that no er
Secondly-Informations in which though the Crown is the nominal prose- cutor, yet it is at the relation of some private person and they are filed by the the Attorney Generat Queen's Coroner and Attorney in the Queen's Bench usually called the "Master of the Crown Office," who is for this purpose the standing officer of the public.
en filed since the
12th chapter of Cooke on Defamation, which is
to this subject.
It contended by some persons that this latter kind of remedy so common in spally devoted England in cases of libel and generally known as a "Criminal Information for Libel” cannot be resorted to in this Colony, because no "Master of the Crown Office" has been eo nomine designated by the Ordinance or appointed by the Governor; but it appears to me that inasmuch as the office of the Supreme Court is the "Crown Office" of the Colony, its chief officer, the Registrar, may by implication and analogy discharge the functions of "Master of the Crown Office.”
The Supreme Court itself acted upon this impression in 1859, when a rule absolute for a criminal information for libel against Mr. TARRANT, the Editor of Reg. r. Tarrant. the Friend of China, was obtained, and the information was in the form of infor- mation by the Master of the Crown Office in England, and was filed and signed by the Registrar. The records of the Court shew also that in the same year a rule nisi for a criminal information for libel against another Newspaper Editor, eg, v. Murrow, Mr. MURROW (of the Daily Press), was obtained, though it was subsequently abandoned.
N.B.-The Defendant ajmlogized.
been dealt with under Ordinance No. 3 of 1865 (see Sectious relating to private prosecu- tors.)
This being then the state of the Law in the Colony, as I view it, it was com- petent to the Macao Authorities either to apply to the Supreme Court for a rule for a criminal information against Mr. SAINT, or at all events to prosecute the Defendant under the provisions of Ordinance No. 3 of 1865; but instead of so doing they procured informations to be filed not in the statutory form provided by Ordinance No. 3 of 1865, but in the ancient form of "ex officio informations by the Attorney General," the gist of the offence as laid in them being that the libels complained of tend to create discord between Great Britain and Portugal. The following complication, therefore, arises, that while the proceedings are thus clothed with the form and character of State prosecutions, they have not been instituted by command of the Crown (as might be supposed where it is suggested that the peace and safety of the Realm are menaced) but at the relation of third parties, whose object is to redress a private wrong and who have been allowed to M.-- It might have be represented by their own Attorney and Counsel in the "Sovereign's own suit." This is quite irregular for as Lord Mansfield says in the case of Rex ». D'Eon (1 Wm. Blackstone, 514) "Informations en officio are personally the King's prose- *cutions. No man is there to be considered in the light of a promoter or private "prosecutor." There is a further irregularity in this respect that, according to my opinion, such an information as the one in question, on the principle laid down in the case cited in the margin, does not come within the operation of Lord Be Campbell's Act, and that the Defendant cannot legally plead a justification and recover his costs if successful, but it appears that the Macao Government, through their Counsel and with the sauction of the Court, have consented to a plea of sette pros justification being filed in answer to this information, and they have also given guarantees for the payment of costs if defeated, a state of things which, though highly creditable to the Macao Government as manifesting their sense of justice and fair play, is nevertheless quite incompatible with the nature of the proceeding instituted, and touches the constitutional rights of the Crown.
Ca. p. 42.
». Duffy, 2 Cos. Cr. disc a
extended to this Colony hy Ordinance No. 3 of
only to private prosecu- tions.
No. 2 of 1865.
}
3 ]
The ordinary form of information under the Ordinance may be seen by refer- ence to Section 5, and I transmit herewith a copy of the ear officio information
1 and that this record filed against Mr. SAINT, and also a copy of the information in 1859 against
is missing. I annex a correspondence on the subject.
NB-The Attorney
General may put
off the trial of an
+ oficio infor-
mation for 12 months.
Governor Da Ponte e Horta.
C. S. O. No. 280.
Mr. TARRANT by the Registrar as Master of the Crown Office.
The information was filed on the 1st of May last; the pleas were put in on the 11th of July, and after a long delay insisted on by the prosecution and of which the Defendant complaius as harrassing, a demurrer to the plea of justifica- tion was filed on the 14th of December.
Considerable expense has been already incurred on both sides, and a de bene esse examination has been held of the late Governor of Macao, who has now returned to Europe.
I have used my utmost endeavours to bring about an amicable settlement of the whole affair, but I regret to say that my efforts have been unsuccessful, and I am now compelled to take some definite step and either with the permission of the Governor to enter a nolle prosequi, or follow such other course as His Excellency may think desirable.
I have the honor to be,
Sir,
Your most obedicut Servant,
JULIAN PAUNCEFOTE,
Attorney General.
Minute of His Excellency the Governor on the above Letter.
I reserve my decision individually till Mr. PAUNCEFOTE gives his advice in his capacity of Member of Executive Council, and as it will no doubt in such a case have special influence with the Members, I think this paper had better go to
him first.
20th January, 1869.
Minute of the Attorney General.
R. G. M. D.
I am inclined to think that this question should, if possible, be settled in a way which would give fair play to both sides without compromising the rights of the Crown. The difficulty is one of form-for in the proceeding instituted by the Acting Attorney General, the prosecution must be by the Crown alone and cannot be at the relation of a third party;--no plea of justification should be allowed as This, however, is a harsh mode of right, and no costs should be given or taken. of dealing with the Defendant and would no doubt have been discountenanced by the Government if they had been consulted in the beginning. In order to mitigate this procedure, the Acting Attorney General consented to a plea of justification and obtained from the Macao Authorities an indemnity as to costs which he seems to have assumed would be payable by the Crown, under Section 3 of Ordinance No. 4 of 1857 in case the prosecution failed. The Defendant was thus placed in the same position practically as if a criminal information by the Master of the Crown Office had been filed..
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