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at suit of the King, of Thomas Harrison, for words spoken against Mr. Justice Hutton, in 1638, after the prisoner had made his defence, the Attorney-General replied. Again, on the impeachment of the Earl of Wintoun, in I7I6, though no evidence was offered on behalf of the prisoner, the managers for the House of Commons were requested to make their reply. And on the impeachment of Lord Lovat by the Commons, in 1746, no evidence being adduced for the defence, the Lord High Steward informed the prisoner that “the Commons, by the constant rules of proceeding in cases of this kind, are entitled to the last word.”
The same rule of procedure was followed with even less
‘varying certainty in all ex oflicio informations. Once only
do we find an Attorney-General manifesting any hesitation as to the privileges of his high office, and basing his claim to the reply on no higher grounds than those of an ordinary mortal. On the trial of Woodfall for libel in publishing Junius's “ Letter to the King,” in 1770, the AttorneyGeneral (De Grey) ventured to believe that he had a right to reply because of the defendants having stated points of law “ which he did not allow.” But his doubts were soon dispelled by Lord Mansfield, who told him “ that as Attorney-General he might reply, notwithstanding the defendant had not examined witnesses ; that the SolicitorGeneral, indeed, or any other counsel, could not, but that the Attorney-General might ” (20 State Trials, 900).
On the trial of Home Tooke, on a criminal information for libel, in 1777 (20 State Trials, 652), the unfairness of the Attorney-General’s rigl1t of reply was strongly urged, but to no purpose. “The established practice and approved rules
the motion to have the rule set down, &c., it was moved by the King’s Serjeant, and we advised thereupon; when this had been thus delivered, by way of answer, Bacon, the King's Solicitor, offered to reply, but after the judge had spoken in the name of all his brethren, the Lords would not suffer him to speak after the Judge."
of the Court are so,” urged Horne, “ only because they are reason, and reason approved by long experience; and they obtain as rules and practice only for that cause." . . . “The established practice and approved rule of the Court in trials of this kind (when the Attorney-General does not prosecute) was, that if the evidence brought for the prosecution is not controverted by any other evidence on the part of the defendant, but the fact, as far as it depends upon testimony, taken as the prosecutor’s evidence left it; that then the defendant’s answer closes the pleading, and that, my Lord, has obtained and been established as the approved rule and practice of the Court, because it is supposed the method best calculated for the obtaining of justice; that is, for the conviction of the guilty and the acquittal of the innocent, for both are to be regarded; and when that is done, then only, I suppose, is justice done.” “It must be supposed the best method of obtaining justice.” It is the King’s interest to obtain impartial justice. “ But this claim of Mr. Attorney-General, my Lord, absurdly supposes the contrary, and that the King has an interest in their being convicted, and that therefore easier and readier means, and greater means, are to be allowed to the King for obtaining a conviction than are allowed to any other person, my equal or my inferior.” To all this, however, Lord Mansfield replied, “I am most clear that the Attorney-General has a right to reply, if he thinks fit, and that I cannot deprive him of it." “ There is not a State Trial where the Solicitor-General or the Attorney-General has not replied.”
Lord Mansfield, in charging the Jury in Horne’s case, with regard to the Attorney-General’s right of reply, says: “Now, I will tell you what I take to be the practice with regard to that matter. The nature of a reply is the j>lainti_fl”s answer to new matter advanced by the defendant. The plaintiff knows his own case; he knows his own witnesses; he opens it; he observes upon his witnesses; and he draws such conclusions from them as he thinks proper to persuade a Jury to increase the damages. The defendant, if he only makes observations upon the same evidence, and only draws conclusions from the same evidence to the Jury to lessen the damages, why, then, there is nothing new, there is no new matter at all ; and by the practice for the expedition of business in civil cases, and in prosecutions in the name of the King, with common informers, the practice is that they don't reply when that is the case. But notwithstanding that, if the defendant was to start a point of law, the other must be heard. If he was to throw out to the Jury, to catch and to surprise them, allegations of fact which he called no witnesses to prove, then the counsel for the plaintiff may set the Jury right, and lay them out of the cause, and show that they are absolutely irrelevant and immaterial. But in solemn trials, in State Prosecutions, where the Attorney-General attends, I never knew it denied but that he had a right to reply. I was many years SolicitorGeneral; I was Attorney-General; I have known it often, where nothing has been said for the defendant that they thought called for a reply. I never knew it denied to the Attorney-General when he insisted upon being heard in reply; and I believe the present Attorney-General has replied several times. This is so much the law of the land, that (if my memory does not fail me) in the most solemn cases (and, as I speak from memory only, if there should be any slip in it, I hope I shall be excused), and, to the best of my memory, in the trial of my Lord Byron—(if any gentleman can correct me I shall be very glad to be corrected—I dare say there are some here that were of counsel in that cause)——in the trial of Lord Byron, who called no witnesses, no evidence, the AttorneyGeneral replied. The House of Commons, as the public prosecutor for the nation, insist upon it as an absolute right,
that they are to reply. It is a great while ago, but if my memory does not fail me, I think I replied for the House of Commons upon the trial of Lord Lovat, though he called no evidence. I speak from memory; it is many years back; and therefore, if I am mistaken, I do it with that reserve and qualification to be set right. This has nothing at all to do with the cause; but it at least explains, to those who want to understand it,the light in which I see that matter, and the ground upon which I determine it” (20 StateTrials, 762-3).
With the foregoing exposition of the nature of a reply no one could quarrel, and were it applied to solemn and state prosecutions the Attorney-General’s prerogative would not now be left to us for discussion. His Lordship’s memory, however, does seem to have been at fault in the case of some of his illustrations. When Lord Byron was tried for murder in 1765, before the Court of the Lord High Steward, the Solicitor-General (as second counsel) summed up his case at the close of the prosecution, and then the Lord High Steward: “ My Lord Byron, the Counsel for the Crown have done; now is the time for your Lordship to make your defence; and if you have any witnesses to examine, now is your time to call them.” He called no witnesses; he read his defence ; their Lordships adjourned to the Chamber of Parliament and gave their opinions “ upon their honour.”
On the trial of Weston for the murder of Sir Thomas Overbury, the Attorney-General, with others, prosecuted. At the close of the case for the prosecution, Mr. Warr, the junior counsel, “ craved leave of the Court to speak,” and this done, “ VVeston was demanded what he could say for himself," and “so the Court referred him to the Jury.” And the same course was pursued on the trial of Sir Jervis Elwes on the same charge.
At a meeting of twelve of the Judges for the purpose of choosing the Spring Circuits in 1837, a discussion took place as to some points which were likely to occur at the Assizes, in consequence of the recent Act allowing prisoners indicted for felony to make full defence by counsel (6 & 7 Will. IV. c. I14), and the following was one of the rules which they adopted :—
V. “ In cases of public prosecutions for felony, instituted by the Crown, the law officers of the Crown, and those who represent them, are, in strictness, entitled to the reply, although no evidence is produced on the part of the prisoner ” (7 C. and P., 676).
Upon the same ground of his being prosecutor for the King it is that the right of a general reply is accorded the Attorney-General in prosecutions in the Queen's Bench, and on Informations in the Exchequer. But the right is strictly confined to cases at suit of the Queen; and though attempts have been made to extend it to cases in which the Queen was substantially a defendant (which technically she cannot be), the Court has usually resisted such overtures though, in some instances, it has given way.
Rowe v. Brenton (3 Manning and Ry., 133), in the King’s Bench in 1828, was an action of Trover for copper ore raised
from an estate in Cornwall. The title of the Duke of.
Cornwall being materially implicated, the officers of the Duchy, on the application of the defendant, took upon themselves the defence of the action, and an application was
-made by the Attorney-General to have a trial at Bar,
he officially informing the Court that the Crown was interested in the actions. At the trial, after the plaintiff ’s evidence had been given, and the defendant’s (z'.e., substantially the Crown’s) evidence in reply closed, Lord Tenterden, C.j., called upon the Attorney-General to go on. But he contended that, representing the Crown, he had a right to the general reply after the plaintiff's counsel should have been heard ; that this was a proceeding in the nature of an Information in the Exchequer, and substantially the same as if the King were a party on the record ; and that, in