THIS was a motion for leave to file a criminal' informa 1806. versus DRAVE tion against the defendant, the author of a libellous The KING publication, entitled "An Address to the British public, on the Case of Brigadier General Picton, late Governor and Captain General of the Island of Trinidad, with Observations on the Conduct of W. Fullarton, Esq. F.R.S. and the Right Honourable John Sullivan." The application was made on the behalf of the latter gentleman, who was one of his majesty's privy counsellors, and late his majesty's under-secretary of state for the colonial department, in which office he was stated to have acted from May 1801 till May 1804. In June 1801, General Picton was, by commission under the great seal, appointed governor and commissioner in chief in and over the island of Trinidad. In October, 1802,W. Fullarton, Esq. and Captain now Sir Samuel Hood were appointed by his majesty's commission under the great seal, joint commissioners to take upon themselves the government of the said island. The above-mentioned pamphlet professed to state a letter from a Dr. Lynch to a Mr. Gloster, dated in the month of February, 1805, importing that Mr. Sullivan, in a conversation with the said Dr. Lynch, some time previous to the month of December, 1802, told the said Dr. Lynch, that in all probability, General Picton would be ordered to return to England, before six months; as Colonel Fullar ton was instructed to investigate his past conduct, in Trinidad. And also, professed to state the copy of an affidavit, therein supposed to have been made by Dr. Lynch in July 1805, and verifying upon oath the above statement in the letter. The book also contained other strongly libellous matter against Mr. Sullivan, which was set out in the affidavit, but which it is not necessary nor proper to insert here. 1806. The KING Mr.Sullivan, in his affidavit, declared, that he never did either directly or indirectly, inform the said Dr. Lynch, or any other person, either in conversation or DRAYER. otherwise, before the month of December, 1802, or at any other time, that, in all probability, General Picton would be ordered home, before six months, &c; and not only denied the fact, but stated, that he had no reason to expect the return of Col. P.; that he had no information that Colonel F. had any instructions, pub lic or private,to revise Gen. P.'s conduct, or procure his removal; and that he recommended, aud from letters and conversations with Colonel Fullarton; he expected and believed, there would be aperfect cordiality and cooperation between them. That he never took any step or recommended any measure to prejudice General Picton. Colonel Draper, in answer to this affidavit, stated, that, since the application to enlarge the rule, he had stopped the publication; that he did not know the necessity of doing it,till Sunday last, or would have done it earlier; that the original of Dr. Lynch's affidavit and a letter addressed by him to Lord Sydmouth are deposited in the privy council office; and that he believed he should be enabled to obtain an affidavit from Dr. Lynch, verifying the facts in his above-mentioned affidavit, if time were allowed to write to Trinidad. That he believed him to be a person of unimpeachable, integrity, &c. that unless he had believed him to be of integrity, &c. and to have sworn the said affidavit, he would not have published it, That he did not write or publish the above publication or any part thereof, from any motives of malice against Mr. Sullivan. Mr, Glaster the attorneygeneral of the island of Trinidad, stated the conveątion with Dr. Lynch in the island which led to the affidavit, and that he knew Dr. Lynch to be a gentleman of unquestionable honour, &c. And that in and subsequent to the month of January, 1803, reports were frequently circulated and encouraged, that Mr. Ful 1806. versus DRAPER. larton had secret instructions to inquire into the past The KING conduct of Colonel Picton. And further, that in the early part of that year certain secret investigations did take place upon oath respecting the conduct of Colonel Picton, as governor of the island, under the direction or superintendance of Mr. Fullarton. BEST, Serj. MARRYAT, and GURNEY, now offered to have the facts verified by the affidavit of Dr. Lynch who was ready to swear to the truth of the facts stated. But by the COURT. "The truth of a libel is no justification of it. If it be true and contain a charge of criminality, the party ought to be indicted for the fact or proceeded against by Colonel Draper.” BEST, Serjt. then urged that, as the court required the facts to be denied by the party applying for an information, so they might be affirmed by the opposite party; and, therefore, in that case, the court would not interfere by granting a rule for a criminal information, which is an application to the discretion of the court; that even if the facts were false, yet as the party was misled by a document of a public nature, the court would not interfere. "Your application Lord ELLENBOROUGH, C. J. is to have an affidavit from Trinidad; but how are we to get that affidavit? Could we either compel him to make it, or empower any one to take it; or could we punish him for perjury, if it were not true, he being now in the island of Trinidad." BEST, Serjt. then cited the case of Dalmer v. Barnard, in which the court had received an affidavit, upon a rule to set aside an annuity, verified before the high bailiff of the Isle of Man. Lord ELLENBOROUGH, C, J. "The denial of the fact is merely for a man to purge himself of the charge made against him; but it is not necessary for the 1806. versus DRAPER. granting of the rule. It must indeed have been adoptThe KING ed before the case of Sir Francis Sykes; but I do not know whether the court would hold a person so strictly to it in this case, as to try the fact upon conflicting affidavits. And a party who, upon such a supposed fact, chuses to spread about slander, ought to have the means of defence, and supporting the charge in manu.” MARRYAT urged that an affidavit taken before the magistrate, or chief officer of justice of the place, properly verified to be so taken, had never been refused in a summary application, and that it could not be required that he should be prepared with the affidavit, because it could not be read if it were taken before the rule, as the party making it could not, in that case, be indicted for perjury, if it were false. And, that it is quite clear, that it is a sufficient answer to an application for a criminal information, that there is a suspicion that the person applying for it has not conducted himself properly. GARROW, contrà, observed shortly, that the defendant was in the situation which he desired to be placed in by his counsel; for the prosecutor denied the fact, 'in the said supposed affidavit,' and, if he had the affidavit which he required, he could not be in a better situation. Lord ELLENBOROUGH, C. J. "Is it not an aggravation of the offence, that there is an application before the privy council, for the investigation of a criminal charge, and that the affidavit is before the counsel board? I will suppose, that the affidavit of Dr. Lynch sworn in the island, was sworn since this rulé; yet I am at a loss to know how it could be received, or, if received, how applied to this case. First, it could not be received as affidavits are to hold to bail, for they are received not as influencing the jurisdiction of the court, but as actuating the judge to give an order to hold to bail. But, on what principle is an oath sq informally taken to be put in competition with an oath made by a party who is criminally responsible for that which he states? Then, the party applying for the infor 1806. versus DRAPER mation has complied with the rules of the court, which, in order that we might not be occupied about objects un- The KING worthy of us, require, that the person applying shall falsify the abuse, except where the party himself is abroad, or where it is of so general a nature that it cannot be denied. Many of these things are incapable of being denied, and if it were even true that Sullivan bad informed Lynch, that there was a prospect that Picton might be recalled, how could that be an excuse for all the collateral abuse? For he takes this merely for his text and branches out into a great deal of substantive calumny of his own. If Mr. Lynch made the same affidavit which it is said he will make, it could not affect this case; although I will not say that the court will not, in any case, refuse to grant the rule, where it appears to be for a charge which is really not false and which it would not be proper for us to interfere in. In cases of holding to bail it seems similar proofs of affidavit may be admitted but not in a case of a criminal nature. If this were laid down even as a cause for delay only, in what case might not the party put off the information? He might always state it was written to me' or, I heard it from a man in foreign parts,' and pray the court to delay it till he had got his affidavit." GROSE, J. "This application for a criminal information is very properly brought forward. But what is the object of this affidavit? Is it that we are upon affidavits to try the truth of the book? We never refuse the rule in these cases, if we are perfectly satisfied that it is a libel, and the party who applies says it is not true. I do not agree with what my brother BEST has stated, that, if a man has a well grounded reason to believe that his accusation is true, he may publish it. I should expect of a libeller, that he should know that the thing was true, before he called upon us to withhold our interposition on behalf of the person whom he is injuring." 1 |