1844.

Ex parte The Duke of

MARL

BOROUGH.

Duke of Marlborough himself convicted Harris, and sent him to gaol."

There were several other passages set out in the affidavits, reflecting on the character and conduct of the Duke, but had not reference to his conduct as a magistrate.

The affidavits on which the rule was moved denied the truth of all the statements in the passages above referred to. And, with reference to the case of Harris, stated, that he was not a tenant to the Duke at the time alleged; that Slingo was not the hayward of the Duke, but a person appointed by the surveyor of the highways; and that no magistrate ever refused to convict Harris. He was convicted by four magistrates, the Duke being one, at a petty sessions, held on that occasion at a place called "The Kennel Farm," and fined, the fine, being reduced, at the Duke's suggestion, to one shilling; and upon Harris refusing to pay the fine and the costs, he was committed to prison.

Lord DENMAN, C. J.-This is an application to the Court, in the exercise of its extraordinary jurisdiction, to issue a criminal information in respect of words uttered concerning the Duke of Marlborough. These words are certainly words of grievous imputation-most grievous in the charges which they convey; and I do not wonder that the Duke of Marlborough takes the earliest opportunity of taking that course of proceeding which the law allows, and coming here to deny those charges, and to ask for that interposition of the authority of this Court, in the way sometimes granted to subjects of this realm, where such a course has been deemed necessary for their protection. The question here is, whether these words are so injurious to the character of the Duke, in his capacity of a magistrate, that we ought to direct a criminal information to issue. With respect to the three last statements which form the subject of complaint, it is clear, on all the authorities, that these statements, being

merely words spoken, are not the proper subject of a criminal information, unless they can be converted into an offence of another description, a matter of misdemeanour, as an endeavour to provoke a breach of the peace, either by the threat of immediate personal violence, or by provoking a man to send a challenge.

The words on which we have felt some doubt, whether this rule ought not to be granted, are those with respect to the charges against the Duke of Marlborough in the exercise of his office as a magistrate. The denial of these charges is complete; but we do not find that there is any instance of this Court interfering for the purpose of granting a criminal information in such a case. There are many cases in which this Court has said distinctly, that, in the case of words spoken, unless the words are spoken of a magistrate at the time that he is engaged in the performance of his duty, the Court will not interfere; and, I take it that we do interfere on such an occasion as that which I have referred to, because words so uttered are a direct obstruction to the course of justice; and because the uttering of them under such circumstances is an offence which may indeed be visited by the magistrate himself at the moment, as an offence against his Court, but which it is more expedient should not be so visited, but should be made the subject of an application for the interposition of this Court. But there is no case which says directly, that where by words spoken a charge is made against a magistrate of acting corruptly in the discharge of his duties as a magistrate, this Court will interfere to protect him. Mr. Starkie, in his work on libel, published in 1830, uses an expression which seems to indicate his opinion that in such cases this Court would interfere. He says (a)-"The case might fall under a very different consideration if the magistrate were to

(a) Vol. 2, p. 199.

1844.

Ex parte

The Duke of

MARLBOROUGH.

1844.

Ex parte

MARLBOROUGH.

be charged with some specific act of oppression or corruption in his judicial capacity." Such is the charge The Duke of made here; but the expression of Mr. Starkie is not more than the statement of a doubtful opinion, and he does not cite any case as an authority for that expression. I own that I expected to be furnished with cases in which this Court had stopped short of interference, and which would have been commented on by the Solicitor-General, to shew that they could not apply to this case; and the only reason why they were not so presented to us is, that there have not been any opinions expressed or even dicta uttered by the Court that could furnish authority for granting this application.

It is, therefore, clear that we cannot grant it without creating a precedent. That would be highly improper where the practice of the Court has been known for a long series of years. We cannot now set an example of a new mode of proceeding, without being satisfied that we are fully justified in so doing by the law of the land. Independently of any other grounds, in the absence of authority, and in the belief that it is unwise to make mere words uttered on any occasion amount to a crime, from the difficulties that may exist in the proof of the words, and from the fact that so many circumstances may exist which afford an opportunity for explaining the words, I think that we cannot direct this information to be filed. The words by themselves may convey an imputation, but they must be taken together with the circumstances in which they were uttered, and connected with other expressions used at the same time, which may explain and qualify them. The Court cannot act by way of criminal information on that which must depend entirely on oral evidence. For these reasons, and without referring to others to which I might have adverted, I am of opinion that we cannot interfere in this case without setting an example which in itself would be much to

1844.

Ex parte

be deprecated, and which might as a consequence lead to a long inquiry, which would be most inconvenient and unsatisfactory in its results both as to truth and justice. The Duke of On that ground, and on that only, I am of opinion that this application ought to be refused.

PATTESON, WILLIAMS, and WIGHTMAN, Js., concurred.

Rule refused,

MARLBOROUGH.

Ex parte ANDRews.

MILLER applied for a rule to shew cause why Richard Andrews, charged on the coroner's warrant with the murder of his daughter, should not be admitted to bail before a magistrate in the country. A bill for murder was found by the grand jury at the last assizes for the county of Warwick; but, in consequence of the illness of two material witnesses, upon application made on behalf of the prosecution, the trial was postponed. Application was then made to Gurney, B., to admit the prisoner to bail, but was refused. The depositions taken before the coroner shewed that the evidence in support of the charge of murder was not very strong. [He cited the cases noticed in the judgment.]

Cur. adv. vult.

WIGHTMAN, J.-No instance of an application similar precisely to the present in its circumstances was brought before me when this motion was made, but Mr. Miller. relied upon the practice of this Court, of holding to bail after the coroner's inquisition, as an authority in his favour. He also cited the case of Regina v. Scaife and Wife (a), but that is distinguishable, inasmuch as the charge there made against the prisoners was for having (a) 9 Dowl. 553.

May 7th.

The Court will bail a prisoner committed on a charge of mur

not admit to

der, after a bill

of indictment

has been found against him by

the grand jury.

1844.

Ex parte ANDREWS.

coining moulds in their possession, which was not like the present, a capital felony. With respect to the practice of bailing, where a party is committed upon the coroner's inquisition, I think that stands on a very different footing from the present case. The Court there can have before it the depositions on which the charge is founded, and can see what are the grounds upon which the conclusion of the jury has been come to, and form a judgment as to its correctness. But where a true bill has been found by a grand jury, that cannot be done, for we cannot discover upon what evidence they acted. The case of Lord Mohun (a) is directly in point. The Court there said, "If a man be found guilty of murder by the coroner's inquest, we sometimes bail him, because the coroner proceeds upon depositions taken in writing, which we may look into; otherwise, if a man be found guilty of murder by a grand jury; because the Court cannot take notice of their evidence, which they, by their oath, are bound to conceal." There are other cases on the subject, but I observe that all the decisions are uniforın against this application; for in Bacon's Abridgment, "Bail in Criminal Cases," D., there is another in these words: "Nor will they bail after a bill for murder found, though the fact was plainly manslaughter," Case of Kirk and Case. Regina v. Chapman (b) and Regina v. Guttridge (c) are later cases where applications similar to the present have been refused on the ground that a true bill had been returned by the grand jury. These authorities appear to me conclusive, but I may add, that, in this very case, an application to the same effect was made to Gurney, B., at the assizes at Warwick, who refused to grant it. Under these circumstances, in the absence of any authority to support it, the motion must be refused.

Rule refused.

(a) 1 Salk. 104. (b) 8 C. & P. 558.

(c) 9 C. & P. 228.