The Sun.
London, England, 1829-07-09 00:00:00

THE KING V. JOHN FISHER AND OTHERS.

Mr. DENMAN said he had to make an application
to the Court on the part of Mr. Alexander, one of
the defendants in this case. Their Lordships would
recollect that the Attorney-General on the first day
of term obtained a rule for leave to file a criminal in-
formation against the defendants for a supposed libel
published in the Morning Journal newspaper. That
rule had been argued a few (lays ago, and the Court
had ordered it to be made absolute ; notwithstand-
ing which, the parties had yesterday been served
with a notice apprizing them that an information ex
officio had been filed against them, and they were
required to give bail. The ex yficio information was
for the same matter as that for which the Court had
granted the criminal information.
Mr. Justice BAYLEY---At whose instance is the
ex officio information ?

Nir. DENMAN said it was filed by the Attorney-
General on account of the matter published respect-
ing the Lord Chancellor. In the case of the" King
v. Sparrow and another," in two Term Reports,
whereby a party had applied for leave to file a cri-
minal information, it was held that he had waved
his right to bring an action, and the same principle
he (Mr. Denman) submitted would apply in this
case. If at the time the rule for the criminal infor-
mation came on to be argued, the Court had been
apprized that an ex officio information was filed, or
intended to be filed, for the same matter, they would
certainly have paused before they had made the rule
absolute ; and as the Learned Attorney-General, as
Counsel for the Lord High Chancellor, would, under
such circumstances, have been called on to wave his
right to file an ex officio information, so BOW he (Mr.
Denman) submitted he ought to be restrained from
proceeding upon more than one of these informations.
Mr. Justice JAMES PARKE—What, then, is your
motion ?

Mr. DENMAN said that his motion would be either
that the ex officio information should be ordered to
be taken off the file, or that the rule for the crimi-
nal information should be dealt with in the same
manner as it would have been had the Court been
previously apprized that it was intended to file the
ex officio information. It was repugnant to every
principle of justice that a party should be allowed
to proceed by two modes at the same time for the
same offence. Considerable advantage might be
gained by a prosecutor first applying for a criminal
information, and afterwards resorting to another
mode of proceeding, because something might pro-
bably be disclosed by the defendant's affidavits as to
the line of defence intended to be adopted; or
other circumstances might be disclosed which it
might be material for the prosecutor to be put in
possession of before he proceeded to trial. This
Was a new case, but the principle seemed to be
precisely the same as that on which the Court had
decided in the case of " the King V. Sparrow." It
was only yesterday that the proceeding by ex officio
had been notified to tne defendants, who there-

fore had come to the Court as soon as they pos-
sibly could.
The ATTORNEY-GENERAL said, that his Learned
Friend, Mr. Denman, having been candid enough to
apprize him of his intention to make a motion in a
case in which his (the Attorney-General's) name
would be involved, he had waited to hear his
Learned Friend's application. He (the Attorney-
General) now felt himself bound to declare pub-
licly, that neither at the time when he had moved
for leave to file the criminal information, nor after-
wards, when he applied to have the rule made ab-
solute, had he any intention, nor did he ever con-
template, filing an ex officio information ; hut since
the rule had been made absolute, circumstances had
come to his knowledge which made him feel it his
duty to adopt that mode of proceeding. He had,
however, no intention to proceed with the criminal
information; and he begged to state to their Lord-
ships, that notwithstanding the rule had been made
absolute, there had not been any criminal infor-
mation filed, nor was it, he repeated, intended to
file any.
Mr. DENMAN said his client would of course be
satisfied if he received an assurance that no criminal
information had been filed, or was intended to be
filed.

Lord TENTERDEN—The Attorney-General says
that he does net intend to take any proceedings
upon the rule for the criminal information; if he
does take any such proceedings, the defendants may
then apply to the Court to stay them, but we can't
now restrain the Attorney-General from adopting
that mode of proceeding which he may think proper.
Mr. DENMAN suggested that the Court might
deal with its own rule by which the criminal infor-
mation had been granted.
Mr. Justice BAYLEY—What can we do ? The
rule was properly granted at the time.
Mr. DENMAN submitted, that if at the time the
rule was granted, the Court had been apprized of
the intention to file an ex officio information, they
could have imposed it as a term on the Attorney-
General, that the rule should be made absolute only
in the event of his not exercising his right to file the
ex officio.
Mr. Justice BAILEY—CouId we have imposed
such a condition ?

Mr. DENMAN—I think so, undoubtedly, my Lord.
Mr. Justice BAYLEY—I should say undoubtedly
not.

Mr. DENMAN was aware that the Court could not
impose any condition on the Learned Attorney-
General with regard to proceedings in his official
capacity, but in his other character, that of counsel
for his client, the Lord High Chancellor, if he had
informed the Court that he intended to file an in-
formation ex officio, their Lordships would probably
not have granted even the rule nisi for the criminal
information. That rule having been obtained, the
defendant (Mr. Alexander) had been called upon to
state, on oath, the nature of his defence, and if the
fact which the Court was now apprized of had been
stated at the time cause was shown, it was possible
that the rule would have been made absolute only on
condition that no information ea: officio should be
filed for the same libel. The Attorney-General had
new stated, that it was not his intention to proceed
with the two informations, but it should be remem-
bered that the Learned Gentleman might be pro-
moted, or other events might take place which would
put it out of his power to act upon his pledge, and
therefore he (Mr. Denman) hoped that the Court
would think it only reasonable that his clients should
be at once relieved from the peril of this double pro-
ceeding, and that their Lordships would now dis-
charge the rule for the criminal information.
The ATTORNEY-GENERAL would at once show
cause against this application. He was, of course,
ignorant of what their Lordships might think it ne-
cessary to do in this case, if they thought it neces-
sary to do any thing; but as this motion was made
on the last day of term, probably for the purpose of
furnishing an article for the defendant's newspaper
to-morrow, he thought it his duty to state, that he
should have considered that he had been guilty of
acting disrespectfully to their Lordships, if he had
applied for the rule for the criminal information
while contemplating the other mode of proceeding.
He begged to assure their Lordships that when
he applied for the rule, and when he moved to have
it made absolute, he never contemplated filing an
ex officio information; nay, it was not until the day
after the rule had been made absolute that it ever
entered his mind to adopt the latter course of pro-
ceeding, which he did not determine on without
very deliberate consideration, and under circum-
stances of a very imperative nature, after taking into
consideration the question whether or not the de-
fendants would be prejudiced by it. He had satis-
fied himself that no prejudice would arise to them.
If he had thought it would, he would have waved
every possible advantage rather than have had re-
course to such a proceeding. He had, however, in
adopting the present course, foregone the advantage
which he possessed of brimging the defendants to trial
after the term, they being under terms. It would
have been a great advantage to him to have been
able to proceed directly, and he hoped that credit
would be given to him for having acted deliberately
and with due moderation. A public officer in his
situation was placed in circumstances of some diffi-
culty on occasions like the present. He could not
publish a newspaper every day, and therein explain
his conduct ; but the defendant might, if he thought
proper, make the proceedings which took place in
this Court the subject of comment in his paper day
after day. At present he could not disclose the
circumstances under which he had acted, but he
hoped that the Court would give him credit for
having acted with justice and moderation.
Mr. DENMAN had no intention to impute to his
Learned Friend that he had not acted with justice
and moderation. An Attorney-General had some
privileges and advantages, and an Editor of a News-
paper had also some privileges and advantages which
he had a right to exercise, and if he exercised them
improperly he must answer for them. He (Mr.
Denman) had only to hope that what had occurred
in this case would not tend to prejudice the de-
fendants. He had stated on the occasion of show-
ing cause against the rule, that it would have been
more proper in the Government, and more conso-
nant with the ordinary course of law and justice, if,
in this case the Attorney-General had been allowed
in the first instance to take upon himself to file an
ex officio information, and not to have brought the
defendants into so unequal a contest as that in which
they were now engaged with the Lord High Chan-
cellor; and he still thought that it was the very case
in which his Learned Friend ought to have exer-
cised the power with which he was invested, in-
stead of first calling on the defendant to answer on
oath, and then discrediting that oath. He (Mr.
Denman) was willing to give his Learned Friend
credit for having now adopted the proceeding by
ex °Pio, in consequence of circumstances which had
come to his knowledge since the rule for a criminal
information had been made absolute; but he sub-
mitted that upon the principle laid down in the case to
which he had before adverted, as well as upon every
principle of justice, the Court ought to take care that
the defendants should not be subjected to the peril
of a double proceeding for the same supposed offence.
Their Lordships were aware that by the former pro-
ceeding the defendants had been put to considerable
expense in showing cause against the rule, and pro-
bably some prejudice to their case had arisen; and
he would ask their Lordships whether, if it had oc-
curred to them as probable that an ex officio infor-
mation would be filed, they would have entered into
the details of the defendant's affidavits, or whether
they would not at once have declined to interfere
and take upon themselves the invidious and uncom-
fortable task of
.deciding upon such an application ?
His Learned Friend had said, that the object in
coming to the Court on the last day of Term, was
to make an article in the newspaper to-morrow ; but
the defendants having received notice of the new
proceeding only yesterday, he would ask how it
was possible for them to have applied earlier? It
was only last night that they had been apprised of
the proceeding by ex Viejo, and required to give

bail for the very same libel for which the criminal
information had been granted.
The ATTORNEY-GENERAL said, that if the Court
thought it expedient to discharge the rule for the
criminal information, he did not wish to oppose it,
and he had told his Learned Friend so.

Lord TENTERDEN, after distinguishing the case of
" the King v. Sparrow " from the present, observed,
that in this case the Court had made the rule for a
criminal information absolute, and the Attorney-
General had since thought fit to file an information
ex officio. He might, however, think proper to
abandon the latter proceeding; but in order that no
hardship might arise to the defendants, the Court
would now order that no proceedings should be
taken upon the rule for the criminal information
without the leave of the Court first obtained.
The ATTORNEY-GENERAL had told his Learned
Friend (Mr. Denman) that he was ready to agree to
abandon all proceedings upon the rule.