THE KING บ. D'EON. reigners, never likely to return to England. Process on informations. Court, till the arrival of the Count de Guerchy the present embassador. Soon after which a warm dispute broke out between the Count and M. D'Eon; notes and contre-notes were published on both sides, and at length, in April last, M. D'Eon published a large quarto volume, highly abusing the Count, and charging him in direct terms with forging his, D'Eon's, letters of recall. For which (as a libel) the present information was filed; the subpoena being served on the 12th of April, and returnable the 9th of May. By the practice of the Court, the defendant could not be brought in by any compulsory process, till the 4th of June; on which day he thought proper to appear; and the information was filed on the 8th of June, and a copy then delivered to him. He could not be forced to plead till the 29th of June, when he pleaded the general issue, and notice of trial was at the same time given for the 9th of July. And now, on the 30th June, Morton moved to put off the trial till the next Term, on the defendant's affidavit of the absence of four material witnesses, whom he named, and swore to be sent abroad at the instigation of Count Guerchy, but who (he believed) would come over in next Michaelmas Term. Lord MANSFIELD, C. J.-Is it possible, that the evidence sworn to be abroad can be material in this case? Remember the Case of the King and Radcliffe (d). There could be only a single question, Whether Radcliffe was, or was not, the person formerly attainted. The Court told him, if he would swear the negative, he should have all possible indulgence, and [they would] put off his trial, [he] having sworn to the absence of a material witness. But he refused, and the trial was brought on instanter. [ *511 ] Let the counsel for the defendant consider, whether the facts laid in the information can admit of any justification. If not, the whole results to the single question of publication, which is a fact wholly within the defendant's knowledge. However, take a rule to shew cause, on Wednesday the 4th of July. On that day M. D'Eon swore a supplemental affidavit, that, on conference with his counsel, they had assured him, that the facts, which his witnesses were to prove, would be material on his defence; and therefore he swears "to his belief;" and that the gentlemen had been sent out of England, at the instance of Count Guerchy, on account of their friendship with D'Eon, and, since they had been in France, were enjoined not to open their lips about this affair. The Attorney-General, Solicitor-General, and Wallace, shewed for cause, that the new affidavit is a fresh libel on the Count de Guerchy. That, in December last, D'Eon set up a press in his own house; had printed off the libel, entitled Memoires et Negotiations, &c. by the end of March, and published it the beginning of April. If therefore the witnesses were sent off by Count Guerchy to stifle their evidence, (as was insinuated, though not positively sworn to), it must be since the publication: whereas in fact they left England in Novem (d) Ante, 4. THE KING บ. D'EON. ber last about their own affairs. And we have the affidavit of the Count's secretary, that they were not sent away by the Count. They are now in the King of France's actual, military, service. Is it probable he will send them over in next Michaelmas Term, merely to give their evidence in behalf of D'Eon? Can they, who left England in November, be material evidences in respect to the publishing of a libel in the April following? If they can be supposed to prove any thing, it must only be the truth of some of the facts alleged, which the defendant may weakly suppose to be a justification; but that cannot be given in evidence (e). It is not sworn that the witnesses are likely to return, or that he has used any endeavours to bring them over, though he has known of this prosecution ever since the middle of April. Trials might be put off ad Græcas kalendas, if such loose affidavits are admitted. And (per De Grey, Solicitor-General), the only question is, whether the defendant did print and publish. In Radcliffe's Case (in order [ *512 1 to obtain a like favour from the Court) the Court required him to say, he was not the person. Why will not M. D'Eon now say, he did not print and publish? Morton and Ashhurst, in support of the rule, observed, that, if the defendant be now convicted, he cannot be brought to judgment till Michaelmas Term;-that the indulgence asked for will make only eight days difference in that respect. That M. D'Eon is entitled to the same justice and indulgence as every subject of this kingdom. He is in the usual course of the Court, which, on a general affidavit of the absence of any material witness, will always put off the trial, for once at least. If the application is repeated, without disclosing some special circumstances, it is then indeed looked upon as an artifice to evade any trial. But if, as is suggested, the King of France will not suffer his subjects to come over to give evidence on behalf of D'Eon, the Justice of England ought to put off the trial indefinitely, even ad Græcas kalendas. In the King and Belinda Williams, where an information ex officio was filed against her for a cheat in pretending to be an officer's widow, to whom it was alleged she was never married; she swore to the absence of a material witness in Scotland, who refused to come, and was out of the reach of any process from this Court. The Court put off the trial, and said; "Unless the prosecutors the trial. would consent to let a commission go into Scotland to examine the absent witness, they would put off the trial from time to time" (ƒ). To avoid the imputation of collusion, the defend (e) R. v. Baker, Bull. N. P. 9; 1 Hawk. P. C. c. 73, s. 6; 4 Bac. Abr. Libel, (A) 5, p. 455, acc. So (f) S. C. cited by Lord Mansfield, in Mostyn v. Fabrigas, 1 Cowp. 174; S. P. Furly v. Newnham, 2 Doug. 419. where on an information the defendant applied to put off the trial, the Court refused to grant the application, unless he would consent to the examination of a witness for the Crown upon interrogatories; and in that case it was held, that deposi- a Trial put off till commission amine a material witness, who was out of England, and re should go to ex fused to attend THE KING บ. D'EON. ant has sworn, in the common form, that he did not send the witnesses away, and that Guerchy did. If Guerchy did not, why does he not swear it himself? Does he think himself too great a man? He appears here in no other light, than that of a subject of England prosecuting for a misdemesnor, and appealing to the justice of the country. Long before November, books were published in respect to this dispute; I will not say by whom; for, till the course of the Court is avowedly altered, I will not, on such a motion, disclose the merits of my client's defence. Guerchy might send the men abroad to prevent them from giving evidence against the facts which were alleged [ *513] against D'Eon by his antagonist. D'Eon never thought, nor was told, that the truth of the facts, alleged in a libel, might be given in evidence. He was told, and has sworn it, that, if the gentlemen could give the evidence he said they would, it would be very material: perhaps not in justification, but in extenuation. But, in what manner material, the Court will not expect us to disclose. No delay is imputable to D'Eon: he appeared in time, and was not contumacious. Is he to outrun the zeal of the prosecutor, and appear before the law commands him, or else not be entitled to common indulgence? I did not expect to have heard Mr. Radcliffe's Case applied to the present case. That was an instantaneous proceeding, in the nature of an inquest of office: and therefore (says Mr. Justice Foster) could not be put off, unless upon good cause. Whoever reads that case attentively will observe, that Mr. Justice Foster himself seems, in some of his days, to have wished that the trial had been then put off(g). YATES, J.-In my juvenile days, I used to think that was a hard case. I have lived to see reasons why I think it a right determination. It was a matter entirely in his own knowledge. Lord MANSFIELD, C. J.-I don't believe Mr. Justice Foster had any doubts about the propriety of bringing on the trial. One thing he had mistaken, and therefore doubted about. He thought the Court had refused to let the prisoner plead the act of indemnity, after he had pleaded in chief. But I set him right in that particular before he published: and I believe he corrected it. The act of indemnity excepted all who had broke prison, which, we were prepared to shew, Mr. Radcliffe had done: on notice of which, his counsel did not insist on their plea. Morton. I hope that case shall never be applied as a precedent to make a defendant disclose and anticipate his defence, in order to obtain a common favour. What our de[ *514 ] *fence is, I will not, for the sake of precedent, disclose; but if nothing should be left to a jury in the case of libels but the mere publication, I am sure that much time has been lately (g) Fost. Cr. Law, 40; ante, 3, S. C. Lord Kenyon, observing upon that case, said; "How far that case was relished at the time, the public opinion of it has since shewn. It has never since been considered as a precedent, or at all acted under;" in Duberly v. Gunning, Peake's N. P. C. 97. mispent before your Lordship. (Alluding to Wilkes's Case (h) for publishing the North Briton, No. 45, in which the tendency and nature of the libel was amply discussed at the trial.) THE KING v. D'EON. Lord MANSFIELD, C. J.-Informations ex officio are personally the King's prosecutions. No man is there to be considered in the light of a promoter or private prosecutor. No crime is so great, no proceedings so instantaneous, but that, upon sufficient grounds, the trial may be put off. Mr. Radcliffe's Case did not proceed upon the instantaneous nature of the trial. If the usual form of the affidavit is observed, and there is no special ground of suspicion, the rule goes of course. But if there be such ground, it is refused unless the party will go into farther and minuter circumstances (i): or, if it appears that there is an affected delay, the rule is also then refused. Three things are necessary to put off a trial.-1. That the witness is really material (k), and appears to the Court so to be. I have often known it refused unless the party will say to what point he means to examine him. 2. That the party who applies has been guilty of no neglect (). 3. That the witness can be had at the time to which the trial is deferred. Mr. Radcliffe's Case is now out of the question. For, 1. It appears most clearly now, that they cannot be material evidences. They went abroad in November, and therefore cannot be material evidences to the publication in March, in England. As to any circumstances of alleviation, if proper to be considered before the judgment, he may lay them before the Court by affidavit (m). The defendant insinuates that they were sent abroad by Count Guerchy to prevent their giving of testimony. But that is impossible, from the difference of dates and times. He swears also, that they have orders not to open their lips about the affair between him and Guerchy. That [ *515 ] also is impossible. The affair must mean this prosecution, or means nothing to the present purpose: which was commenced long after they were sent or went abroad. 2. The defendant had notice of this prosecution on the 12th of April. It appears in the state trials (passim), that notice is held to be given by the warrant of commitment. In all that time no endeavour has (h) 4 Burr. 2527, 19 How. St. Tr. 1075. (i) So where writs of mandamus issued under a particular statute to examine witnesses abroad, the Court would not postpone the trial till the return of the writs, unless the defendant laid before the Court such special grounds by affidavit as might induce them to think, that the witnesses sought to be examined were material to his defence; R. v. Jones, 8 East, 31, where Lord Ellenborough approves of the rule laid down in the text; Id. 37. It also there appears, that the common form of the affidavit is to mention the persons on whose account the trial is sought to be put off, by name, and that the defendant (or prisoner) "is advised and believes that their evidence will be material to him up- (k) In R. v. Jones, 8 East, 33, the de- (1) Saunders v. Pitman, 1 Bos. & P. 33, acc. (m) See R. v. Burdett, 4 B. & A. 314, 319. [ THE KING v. D'EON. been made to bring these gentlemen over. 3. They are all subjects of France. The presumption therefore is, (unless you shew a special ground to the contrary), that they will not come back to England. The presumption is otherwise in British subjects; that they will return to their own native soil and domicil. Two are in the army, and cannot come without special permission. In Steel's Case, indicted for perjury, there was a full affidavit, that one Matthews, at Guadaloupe, was a material witness.-The Court refused to put off the trial: and when it came on it was manifest, that Matthews could not have been at all a witness to any thing. In the King and Luckup, the Court would not put off the trial, till the defendant shewed a special ground for believing that his witnesses would come over, and came into terms of stopping all actions in the Common Pleas. In the Case of Belinda Williams, the sole question was, whether married or not married. All the witnesses were in Scotland. By consent, as this was a civil fact, it went down to be tried by commission, as if in a civil action. WILMOT, J.-The rule is the same in criminal and civil cases, and whether the information is granted by the Court, or filed by the Attorney-General. In common cases it has been sufficient to swear generally to the absence of material witnesses; though I have always thought the rule too loose. But *516] even in a common action, if the witnesses are foreigners, *the general affidavit will not be sufficient. The presumption is, that natives of Great Britain will return to it, and that foreigners will not. As to the insinuation that M. Guerchy sent the men abroad to take off their evidence, were the fact well proved, I should think it a reason to put off the trial for ever. But it is not proved, nor is even a belief of it sworn to. They went abroad before the book began to be printed. Impossible, therefore, that the insinuation should be true. Where there is evidentia rei against even a positive oath, that the absent witnesses are material, the Court will not put off the trial; especially as no pains have been taken, no endeavours used, to bring them over. YATES, J.-Whatever indulgence the law gives to defendants in civil cases, it ought, a fortiori, to give in criminal. In both the view is to obtain justice. Whether the trial be accelerated or retarded, the view is the same. Two rules are necessary to be observed:-1. The evidence must be material: 2. That it may be attainable. 1. The Court will not drive the defendant to disclose what the evidence is;-but though he swears the man a material witness, that oath is not conclusive. If the other side can shew it impossible; as if the witness be the husband or wife of the party, or has been abroad seven years, and the cause of action arose last year, this will counterbalance his oath. But in the present case there is no occasion to consider the materiality; because, 2. The presumption is, that the evidence cannot be obtained, and the defendant has shewn no endeavours to bring the witnesses over. Rule discharged, absente DENNISON, J. |