22.
[16]
A.
[17]
23
183
C. S. O. No. 2134.
(Received for record, 12th August. )
REG. v. SAINT.
Letter from the Honorable J. Smale, Chief Justice, to His Excellency the Governor.
*
*
EXTRACT.
Thus much appearing as to the past I submit that, however improper the initiation of these proceedings may have been, the plea of justification necessitates that one case at least should
go
to trial.
"For the sake of the persons said to be libelled sure no evidence can be so con- demnatory as a stay of proceedings would be to the partics affected. For the sake of the Defendant who has a moral claim on the Crown to allow him the opportu
Above all in the nity of proving that he is not the offender he is charged to be. interests of the Coolie Emigration question because the zeal with which charges will be deposed to and sifted pro and contra will render the enquiry more searching and its results more useful than any enquiry by a Commission.
"It seems to me that neither party can with honor now withdraw the question from a jury, but from the few words uttered by Mr. Ball a few days since, I fear he will enter a nolle prosequi, but in this matter he is but the servant of the Governor and I venture respectfully to suggest that it is in your power disap- proving of the initiation to enforce the proceedings being carried on to the end. I could suggest other reasons why justice demands that these ex-officio informations having once been filed should go on to their proper end.”
To His Excellency
SIR R. G. MACDONNELL, C.B.,
3. That course was certainly never contemplated for a moment either by this Government or that of Macao.
4. Nevertheless, if it were intended to carry on the trial of this information in its integrity, the Defendant might reasonably complain that he was dealt with in a mode quite out of character with the spirit of the times and the intention of the Complainants themselves, for according to strict Law, the Defendant could not, in my opinion, plead a justification, whilst the Crown in such cases neither takes nor gives costs.
5. For the purpose, however, of mitigating what under the circumstances would seem harsh, while protecting at the same time the prerogatives of the Crown,
a plea of justification has been filed by consent and the Complainants have agreed to be answerable to Mr. Saint for his costs in the event of the result being in his favor.
6. He is thus placed in the same situation practically as if an ordinary cri- minal information for libel were pending against him.
7. For the purpose of carrying on the proceedings upon this equitable footing, a locus standi will be given by the Crown to the Counsel of the Complainants, so that I may not be called on in my official capacity to take any part in the discussion of the case, although should the prorogatives of the Crown be called in question, I shall be at once prepared to defend them.
8. The sole object of the Complainants is to vindicate the honor of Ex- Governor Amaral, and as Mr. Saint declines to retract certain allegations which they consider derogatory to that officer's character, it is but fair to let both parties take the opinion of a jury on the point without any further delay.
9. You will be good enough, therefore, to furnish Mr. Saint's Attorney with a copy of this letter.
I am, &c.,
JULIAN PAUNCEFOTE,
$'c.,
fc.,
ge.
* Words in Italics are those which were underlined in the original letter.
B.
J. P.
To F. I. HAZELAND, ESQ.,
Crown Solicitor.
C.
Attorney General,
SIR,
Official letter from the Attorney General to the Crown Solicitor.
ATTORNEY GENERAL'S OFFICE,
Hongkong, 6th February, 1869.
1. I think it desirable to communicate to you in writing the course which has been decided on in reference to the first of the ex-officio informations for libel filed by the Honorable Henry John Ball (while Acting Attorney General) against Mr. Saint the Editor of the China Mail,
2. The proceeding is now so far advanced that evidence de bene esse (which would not be available in a fresh prosecution) has been taken and a demurrer is pending for argument. It might, therefore, seem harassing both to the Complainants and to the Defendant if this prosecution were stopped merely to be commenced again in another form and solely on the ground that the ex-officio form of the information gives it the color of a State prosecution.
Letter from the Chief Justice to the Attorney General. *
My Dear Attorney General,
February 8th, 1869.
Being at tiffin when your note of to-day reached me, I take the first spare moment I have to answer it. I regret the course which you propose to take in reference to the libel cases.
Without precedent as the case admittedly is since Peltier's case, the course you purpose to take makes it anomalous. Mr. Ball, as Acting Attorney General, ad- mitted to the Court on the 10th June that to an ex-officio information, a justification could be pleaded, and the case has proceeded on that inevitable admission, and I thought the upon a rule then consented to by the Acting Attorney General. Acting Attorney General was right in making this admission: if, indeed, a deta- matory libel could constitutionally be now the subject of an ex-officio information here, or even in England.
* This letter was read publicly in Court, during the proceedings, by the Chief Justice himself on the 10th of February.
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