REG. v. privilege, by an attorney, that he ought not to be compelled to J. MITCHEL. answer in any other manner whatsoever, except by bill, to be exhibited against him, as an attorney of the court, and concluded, "wherefore he apprehends that the court here will not, and ought not, to take further cognizance of the action aforesaid, depending against him." Seditious Libel. Sir Colman O'Loghlen's argument. An And the Court said, "it was not to be considered a plea to the jurisdiction, it only objected to the court's taking cognizance of the action against one of its attorneys, in this form." That is exactly the plea which is filed here: we do not deny the jurisdiction of the court here, to take cognizance of the offence in another form. That case fully establishes that this is a plea in abatement, but the joinder in demurrer being in bar, it is a discontinuance. It must be either a plea to the jurisdiction, or in abatement; in either case the crown is wrong, for the court cannot give judgment of respondeat ouster. But if the joinder in demurrer is good, still the plea here is good. An Attorney-General cannot file an ex officio information after proceeding by indictment. The King has two modes of proceeding-first, by indictment; secondly, by information. indictment is an accusation or declaration at the suit of the King for some offence, found by a proper jury of twelve men" (Com. Dig., tit. Indictment, A.) "An information is a declaration of the charge or offence against any one at the suit of the King" (Com. Dig., tit. Information, A. 1). The two proceedings are not perfectly the same. The King can proceed by indictment for any offence; by information he can only proceed for misdemeanor; and in all cases the proceeding by indictment is more constitutional. In 2 Hale's P. C. c. 20, p. 157, it is said, that "In all criminal proceedings the most regular way and most consonant to the statutes of Magna Charta, is by presentment or indictment of twelve sworn men." In misdemeanor cases the crown has it always at its option to proceed by indictment or information, and the position we contend for is, that when once it has exercised its election and adopted the "more regular and safer way," it cannot fall back and adopt the other alternative at its caprice; or if it be allowable at all to do so, it is at least only in the excepted case to prevent the failure of justice by the contumaciousness of a grand jury. There is no precedent to be found in any book of an AttorneyGeneral proceeding as here by an ex officio information after entering a nolle prosequi on a good and valid indictment; and that very fact is a strong argument against it. Lord Coke, in his Commentary on Littleton, s. 108, speaking of a passage in the Statute of Merton, says, "Note.-It hath been a question how these words shall be understood, as it seemeth to some that no action can be brought upon this statute, insomuch as it was never seen or heard that any such action was brought; and if any action might have been brought for such matter, it shall be intended that at some time it would have been put in use." The doctrine of election is very much favoured by our law. At common law a grantee of an annuity could not distrain and have a writ of annuity. He could elect to proceed either way; but once having elected v. by matter of record, he was bound by that election. (Co. Litt. REG. 145, a. 1 Thomas's edit. of Co. Litt. 450.) So says Lord Coke, J. MITCHEL. 8. 6, "If a wife be endowed ex assensu patris, and the husband dieth, Seditious Libel. This argument. at the husband's death, the wife hath election either to have her dower at the common law or er assensu patris; but if she bring a Sir Colman writ of dower at the common law, and count, albeit she recover not, O'Loghlen's yet she shall never after claim her dower ex assensu patris." principle of election is equally applicable to criminal proceedings. If a party may be either prosecuted under a statute or at common law, if the prosecutor adopts one course, he thereby determines his election, and cannot prosecute under the other; Anonymous (12 Mod. 446). So here, the Attorney-General had two modes of proceeding, and by adopting one he has determined his election, and cannot resort to the other. The court refused to allow a party to file an information on a penal statute, enabling the party damnified to proceed upon an information or indictment when he had proceeded by indictment, and the indictment was afterwards quashed; Anonymous (8 Mod. 187). Though this case is not an exact authority, as the party could only file an information by leave of the court, it is illustrative of the principle that a party, after electing to proceed by one course, cannot proceed by the other, as here, where the Attorney-General has capriciously entered a nolle prosequi. The court ought to show no favour to ex officio informations, and should not extend the privilege beyond those limits for which precedents can be shown. There are only two cases on record in which the Attorney-General has proceeded by ex officio information after indictment. The one is The Bottle case, where Lord Plunket proceeded by ex officio after the grand jury had thrown out the bill; (a) the other was the case of Rex v. Dudley Moore. In the first the grand jury ignored the bill, and there might have been a failure of justice. In the latter case the circumstances were very peculiar. The particulars of it are to be found in the 2nd vol. of the Irish Commons Journals, App. 275, 276. It is the report of the committee appointed to inspect and inquire what proceedings were taken in that case. In November, 1713, a riot occurred in the theatre in relation to the play of Tamerlane, in which Mr. Moore was concerned; he was bound over to appear at the ensuing term, and a bill was sent up against him; the bill was returned on the last day of term, with billa vera on it. After the bill had been recorded, and the Attorney-General left court, Alderman Gore, the foreman of the grand jury, came into court and stated that the bill had been ignored, but by mistake was marked billa vera. The court refused to alter the record, the grand jury having been discharged. The entire grand jury then made application to the court, but the court still refused, and Mr. Moore was bound over to appear in Hilary Term. In Hilary Term he appeared, and then, the report states, "That upon Mr. Attorney-General's motion, on the 27th January, 1714, there was a rule for trial on the Thursday following, and the traversers (a) See Green's Report of the case of Rex v. Forbes and others (Hil. T. 3rd Geo. 4th), commonly known as The Bottle case. REG. v. Seditious Libel. Sir Colman O'Loghlen's argument. were ordered to prepare; that the rule for trial was vacated on the 4th J. MITCHEL. of February, upon Mr. Attorney-General's motion, though opposed by the counsel for the traversers, who pressed for and insisted on their trial coming on on the day appointed for it;" that upon the next day, the 5th of February, there was a rule entered as by consent of the Attorney-General, "though not moved for or consented to by the counsel for the traversers, that the indictment should be quashed, and all the gentlemen, and particularly the said Dudley Moore, should be discharged; that before the essoign-day of Easter Term there was an information filed by the Attorney-General for the same matter, against Dudley Moore, Esq., upon which process issued to the sheriff of the city of Dublin; and Mr. Tisdall and Mr. Callwell (deputy clerk of the crown) being asked if they ever knew, after a bill of indictment had been quashed, of an information having been filed for the same matter, answered, they never did." The report then goes on to detail the several proceedings that afterwards took place, and then concludes: "Upon the whole matter, the committee, conceiving the proceedings in this cause to be very extraordinary and of great consequence, are unwilling to come to any resolution, but humbly submit the consideration thereof to the House." The proceedings against Mr. Moore, upon the information, were subsequently abandoned. What authority, then, is that case for the proposition that, where there is a good indictment, an Attorney-General can of his own capricious humour enter a nolle prosequi, and proceed by information? As to the manuscript cases which have been cited on behalf of the crown, the only case of an ex officio information having been filed, after an indictment, was West's case, which was a prosecution for perjury in 1801. The other cases were cases of informations being filed after informations. West's case was analogous to the case of Dudley Moore. It was not a perfectly good indictment. The note, as we have it, is in inverted commas:-"Nolle prosequi entered because the court and justices thereof, where the same is found, had not jurisdiction." But assume those cases were authorities, they are only three solitary instances in either country, and they are cases in which everything passed sub silentio. On these grounds, therefore, we submit, we are entitled to judgment. To our plea in abatement, there is a demurrer in bar, and therefore, we submit, there is a discontinuance, and that the crown are out of court. But if the court should be against the defendant upon that point, we submit the plea raises a sound principle of law; and the Attorney-General having elected to take proceedings by indictment, he ought not now to be allowed to exercise, what is called by Lord Holt, "an odious prerogative." R. Holmes, on the same side." There is clearly a discontinuance; the plea is in abatement, or in the nature of one, if it be to the jurisdiction; the only judgment against the defendant which could be given, is respondeat ouster. That the plea here is in abatement, Davis v. Carter (Carth. 187); Anonymous (1 Wilson, 302); Bisse v. Harcourt (1 Show. 155). The Attorney-General, in the conclusion of his demurrer, prays "judgment, and that the REG. 0. J. MITCHEL. said John Mitchel may be convicted of the premises charged upon him in and by the said information," that is, that he be sentenced as if he had been found guilty, the court here cannot pronounce any other judgment against the defendant on this plea, than Seditious Libel. respondeat ouster; but here the Attorney-General insists that the court is to decide that he is guilty. Bowen v. Shapcott (1 E. 542). If the court here, as prayed by the Attorney-General, should give judgment that John Mitchel is guilty, it would be error on the record. General's reply. The Attorney-General (Monahan), in reply.-The demurrer in The Attorneythis case is in the common form of demurrers to pleas in abatement. It is a little remarkable that no crown case has been cited to show that it is incorrect in form. It is new doctrine that the mode of praying judgment alters the nature of a demurrer, for whatever be the prayer of judgment the court will give a right judgment. Carter v. Davis (1 Show. 255, 1 Salk. 218, S. C.) is not in point, even if the analogy did exist between civil and criminal cases. In that case the plaintiff's demurrer is, that the plea is not sufficient in law to prevent him from maintaining his aforesaid action. It certainly is very difficult to ascertain what Mr. Mitchel means by his plea. It is not that the court ought not to take notice of what is charged in this information, but that the court ought not to take cognizance of the offence at all, because the Attorney-General has entered a nolle prosequi upon the indictment. He does not state what the act of the court was, whether the indictment is pending, or what has become of it (read the plea). In a latter part of it he says, that the court ought not to take cognizance of the information itself. The demurrer in this case is framed according to the precedents; what it states is, that the matters contained in the plea are not sufficient in law to preclude the court from proceeding upon the information. But what is the plea? In part, that the court are not to have jurisdiction of the offence at all; in another part, that the court are not to have jurisdiction of this information; 1st Wentworth, Pl. 24, Plea in Abatements; (1 Chitty, Cr. L. 448.) The precedent of a demurrer is precisely as here. În Reg. v. O'Connell (1 Cox's C. C. 365, and Arm. & Trevor Rep. 62), where the plea was that the indictment ought to be quashed, the demurrer of the Attorney-General was in that case, in the very form of the present, that the matters therein contained are not sufficient in law to preclude the court from proceeding on this indictment, and prays judgment, and that the said Daniel O'Connell be convicted of the premises. I admit that the court in that case decided, that in a clear case of a plea in abatement, the judgment, where it is against the prisoner, is respondeat ouster. I submit, therefore, that on technical grounds there is no valid objection to this demurrer. As to the remaining objection, that because an Attorney-General enters a nolle prosequi upon an indictment, he is precluded proceeding by information for the same offence, I admit that it may be doubted, as it appears it was by Holt, C. J., in Goddard v. Smith, 1st Salkeld, 21, whether the entry of a nolle prosequi has the effect of a stet processus; but I maintain that it cannot go further than a nonsuit in a REG. v. Seditious Libel. The Attorney civil case, which is no bar to fresh proceedings (Coke Litt. 139, a). J. MITCHEL. The case of Turner v. Gallilee, in Hardres's Rep., is to the same effect. In Goddard v. Smith (6 Mod. 261, 262), the principle is laid down very clearly. Until the present case, nobody, I believe, ever doubted that the law officer of the crown has the power to enter a nolle prosequi, and institute fresh proceedings. It does not amount to a pardon, nor to an acquittal; at most, it amounts only to a nonsuit, but in the plea there is no allegation that a nolle prosequi actually was entered, but merely that the Attorney-General informed the court that he would not further prosecute the said John Mitchel on the said indictment, and that the said John Mitchel should go thereof without day, as by the records and proceedings thereof, remaining in the said court of our said lady the Queen, before the Queen herself, more fully appears. If the fact of the entry of a nolle prosequi be doubted, it would have been open to the defendant's counsel to have come to the court and asked them to quash the information, but he must know that it was entered, because he said in his plea, that the indictment ought to be quashed, because it was found by a grand jury, one of whom was a person who ought not to have been upon it,-a circumstance over which I had no control. Plea. says, To the second information in this case, the defendant filed the following plea:-" And now at this day, that is to say, on the first day of May, in the eleventh year of the reign of our lady the Queen, comes the said John Mitchel, in his own proper person, into the court of our said lady the Queen before the Queen herself, and prays judgment of the said information, and that he may not be compelled to answer the same, because, he that heretofore, to wit, on the fifteenth day of April, in this same term, and in the said eleventh year of the reign of our said lady the Queen, in the said court of our said lady the Queen, before the Queen herself, at Dublin, in the county of the city of Dublin, upon the oaths of twelve good and lawful men of the body of the county of the city of Dublin, then and there sworn and charged to inquire for our said lady the Queen, and for the body of the said county of the city of Dublin, it was presented that John Mitchel, late of Ontario Terrace, in the parish of Saint Peter, and county of Dublin, gentleman (here an indictment against the defendant for seditious publications was set out), as by the record thereof, remaining in the said court of our said lady the Queen, before the Queen herself, to wit, at Dublin, in the county of the city of Dublin, more fully and at large appears. And the said John Mitchel, in fact, saith, that he the said John Mitchel, and the said John Mitchel so indicted as last aforesaid, are one and the same person, and not other and different persons; and that the said several supposed offences in the said several counts of the said indictment mentioned and specified respectively, of which he the said John Mitchel was indicted as aforesaid, and the said several supposed offences in the said several counts of the said information above-mentioned and specified, are the same offences, and not other and different offences, to wit, at Dublin, in |