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In the course of the last week several cases of misdemeanor have been brought before the Criminal Court. One of them, a case of private libel, was conducted at the expence of the private prosecutor, and by his own legal adviser; the others were prosecuted at the charge of the Public. We understand that, on more than one occasion, the Attorney General has submitted observations to the following effect, on this distinction, to the Court. He has stated, that the subject seemed to require much consideration with reference to public and private interests; and that the reasons which he at present felt to be proper for him to be guided by, were open to the examination and correction of His Honor the Chief Justice, of the Gentlemen who had practised in the Court, and of the Public.
The late Act of Parliament, introducing certain new forms of criminal procedure into the Colony, is expressed in general terms:- "That all crimes, misdemeanors, and offences cognizable in the Supreme Court, shall be prosecuted by information in the name of the Attorney General." - The question arises, What is the force of this enactment? Where the law and customs of England are not changed, they must be taken to be the rule by which, as nearly as circumstances permit, we must be guided. By these words nothing more seems to be done, in regard to expence, than the substitution of informations for indictments presented by a Grand Jury. The Attorney General, therefore, of the Colony, in executing the act, must look to the law and practice at home as to indictments, and, in some degree, to the former practice here. - All informations being to pass in his name, it seemed to him necessary to form an opinion on the merits of each case; and that after examinations, he must allow them or not, according to their several natures, and with the incidents as near as possible to which they would severally be subject, if instead of informations they had been indictments. In this extremely delicate task he would be much relieved by the Magistrates having first examined most of the cases. Where the proceedings should commence in a manner similar to the ex officio informations, and to those in the name of the Master of the Crown-office, the known rules which govern them in England, would, with the necessary alterations, as to forms, be applicable here.
In some cases, as in that of libel before alluded to, there seemed little doubt of the propriety of leaving the trial to the exertions of the private prosecutor; - such would be the course in England, although the King's name would be used. The question is not merely one of expence; several further considerations deserve attention upon it. Here, however, more cases seem to have been prosecuted from time to time at the public expence than at home - and probably for good reasons; but, looking to the establishing of a system of Criminal Law under the Act as in some measure new, it is of the greatest possible importance to introduce the various arrangements with caution.
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