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cases where the civil rights of the Crown are concerned, and the issue is on the defendant, the Attorney-General has the right of reply.
Brougham, for the plaintiff :-"In a cause carried on by the Crown, if the two circumstances concur, of the Crown's being the party on the record and being the substantial prosecutor, it is as if the Attorney-General had' filed an ex officio information, and he has the right of reply whether the defendants call witnesses or not; but here the AttorneyGeneral does not appear on the record.”
Lord Tenterden, C.J. :-“No instance being shown in which the Attorney-General has, in a case like the present, had the reply, we think it safer not to extend the rule, but to allow the cause to take its ordinary course.”'
Yet some twenty years later, in The Marquis of Chandos v. The Commissioners of Inland Revenue (6 Exch., 464, 1851), which was a case stated in the nature of an appeal by the Marquis of Chandos against the determination of the Commissioners as to the stamp duty chargeable on a deed, the majority of the Court held that the appellant ought to begin. The appellant's counsel began, the Solicitor-General argued for the Crown, appellant's counsel replied, and then the Solicitor-General claimed the right to reply generally, and his claim was allowed, Pollock, C.B., saying, “In this Court it has been the universal practice, whether on motion, on pleading, or on argument, that the officer of the Crown has the right to a general reply, in all cases where the Crown is concerned.” Bearing
Bearing in mind that the prerogative in all these cases, whether criminal or fiscal, depends on the same principle, that of the personal interest of the Sovereign, it is—but the law is never, "well, hardly ever," inconsistent-to read the above decisions after-mais c'est drôle to read, &c., cases where the Crown is substantially in the position of a defendant, as in appeals to the House of Lords. Thus it was in Lord Douglas y. The Officers
of State (9 C. & F., 200), declared " That it was not the usage of this House for the Attorney-General to have a general reply on the part of the Crown,” and in O'Connell v. The Queen (11 C. & F., 155), a writ of error on indictment, in which the Crown was a defendant, it was intimated that counsel for the Crown would not necessarily be entitled to the final reply, and, in fact, the Attorney-General, though not abandoning his claims, did not reply. While in The Queen v. Frost (9 Car. & P., 165), in which a point arising on an indictment for high treason was reserved for the consideration of the judges, the counsel for Frost was allowed a general reply to the Attorney-General.
There is obviously a real and appreciable distinction between prosecutions at suit of the Queen as the person aggrieved, and those which, though in name of the Queen, are at the suit of the public. The ex-officio informations, and the solemn and State prosecutions, may very nearly touch the interests of the Crown ; while those at suit of the public only do so in the sense that every prosecution throughout the country does. We have endeavoured to show historically that it was to the former class of cases that the Attorney-General's right of general reply was restricted; but in modern times by a lax, and as we think unwarranted interpretation of the term prosecutions by the Crown, attempts have been made to include cases under them which, if truly embraced therein, must logically extend them to all criminal proceedings, and convert the AttorneyGeneral's privilege into the common inheritance.
The Court say, in The Attorney-General of the Prince of Wales v. Crossman (4 H. & C., 568), “ We are agreed that it is for the officers of the Crown to make out clearly the prerogative in any case where they claim to be on a different footing from the subject, as regards procedure, in litigation.” Now, though some men are doubtless more easily convinced than others in a matter of prerogative, it would
be desirable to have a somewhat uniform course of practice adopted; but in the actual decisions there is a charming variety, which ought to satisfy the most ardent supporter of the 'glorious uncertainty of the law.'
In Rex v. Marsden, Alexander, and Isaacson (M. & M., 439), which was a prosecution instituted by the Duke of Welling. ton against the defendants for a libel on him, as one of Her Majesty's Ministers, published in The Morning Journal, which prosecution had been taken up by the Treasury and conducted by the “ Attorney and Solicitor-Generals, and the usual counsel for the Crown,” the Attorney-General stating that he appeared in his official character: Lord Tenterden, C.J., said : “ There is no doubt of the rule, wherever the King's counsel appears officially, he is entitled . to reply.” But in Rex. v. Bell (M. & M., 440), which was a criminal information for a libel on the Lord Chancellor, published in The Atlas, “the Attorney-General conducted the prosecution, and stated that he appeared as the counsel and private friend of the Lord Chancellor, and no evidence being offered for the defence, he did not reply.”
In prosecutions for offences against the Mint, the SolicitorGeneral, as the representative of the Attorney-General has, on his statement that he appeared officially, been held entitled to the general reply (Reg. v. Toakley, and Reg. v. Barrow, 1o Cox, C. C.) And in cases prosecuted by other Government Departments, such as the Post Office, where on an Indictment for stealing money from a post letter “the property of the Postmaster-General,” the prosecuting counsel claimed the right to reply as the representative of the Attorney-General, Pollock, C.B., said: “If this is a prosecution by the Attorney-General, those who represent him, though not usually Counsel for the Crown, have the right to reply, as in the Mint cases at the Old Bailey (Reg. v. Gardner, 1 C. and K., 628). Fortified by such rulings in their favour, the reader will not be surprised to learn
that attempts have been made by those who are the recipients of such Government patronage as is usually dispensed by the Attorney-General, to make the world believe that they were the official representatives of that officer, and entitled to all his privileges. We have even heard a “provincial” solemnly request a Court of Quarter Sessions to make a special fixture-order the county's business to stand aside in awe--while the Court summoned all its energies for the investigation of the uttering of a bad sixpence, on the ground that “he represented the AttorneyGeneral.” If all those claimants were to succeed it is hard to say were it would end; the Attorney-General appoints a great variety of prosecutors for almost every purpose -even smoke prosecutors—and nothing but their generous forbearance could save us from a deluge of “privilege." Fortunately their success has not been quite commensurate with their courage. In Reg. v. Taylor (1 F. & F., 535), which was a Mint prosecution tried at York assizes, before Mr. Justice Byles, no evidence being offered on behalf of the prisoner, counsel for the prosecution magnanimously announced that he waived his right of reply. But the learned Judge at once rejoined, that he did not admit the existence of any such right on the part of the Crown. The learned editor of “Russell on Crimes," says: “On the Oxford circuit, I never knew the right to reply claimed in a Mint case. I was, myself, counsel for the Mint at Hereford, Monmouth, and Gloucester, for many years, and never claimed, or had it suggested to me, that I should claim, the reply when no evidence was given for the prisoner” (Vol. 3, p. 431 in notes); and yet offences against Her Majesty's current coin, prosecuted by the Treasury Solicitor, seem to affect the royal interests. In Reg. v. Beckwith (7 Cox, C. C., 505), which was a prosecution directed by the Poor Law Board, Bliss, Q.C. (at that time Attorney-General of the County Palatine), stated that he
appeared for the Attorney-General, and claimed the reply. But again, Byles, J., refused. “The right ought to be limited to the Attorney-General when prosecuting in person. I certainly cannot permit it under any other circumstances.”
As with the subject matter of the cases, so with the persons who are entitled to enjoy this prerogative; the oracle is somewhat fickle in its responses. The AttorneyGeneral of England may-so may his representatives, be they the Solicitor-General or any other man," though much depends on the accident of the Judge who has to decide the point. The Attorney-General of the Prince of Wales, as Duke of Cornwall, has the right to proceed ex officio, as held in Sir John St. A ubyn's case (Wightwick, 167); and he has since been held to be in the same situation, in this respect, as the Attorney-General of the Crown (the AttorneyGeneral of Prince of Wales v. Crossman, ut cit.). On the other hand, it has been held by Mr. Baron Martin, and also by Mr. Justice Byles, that the Attorney-General of the County Palatine of Lancaster is not in a similar position, and enjoys no such right (Reg. v. Christie, 1 F. & F., 75), and as the result of the correspondence à propos of Reg. v. Cotton, at Durham Assizes, March, 1873, the same views seem to be entertained as to the position of the Attorney of the Durham Palatinate.
Whether the counsel of the various Government departments are entitled to the “ prerogative” cannot be determined with certainty ; sometimes they are, sometimes not, according to the decisions; though, with nearly every department possessing its own solicitor, and habitually represented by its own counsel, it requires a more than usually strong legal fiction to establish the representation.
It was in the year 1836 that the collective wisdom of the nation allowed an accused person to make his “ full defence by counsel ; ” and that favour having been conceded, the