MASON, J. This is an action for slander. Upon the trial of the cause

the plaintiff proved the following words, which were also alleged in

the complaint: “Doctor Secor killed my children.” “He gave them

teaspoonful doses of calomel, and they died.” “Dr. Secor gave them

teaspoonful doses of calomel, and it killed them; they did not live

long after they took it. They died right off,—the same day.” The

plaintiff was proved to be a practising physician, and the evidence

shows that he had practised in the defendant’s family, and had

prescribed for the defendant’s children, and that the words were

spoken of him in his character of a physician. The plaintiff claimed

that the words were actionable, and that he was entitled to have this

branch of the case, upon the words, submitted to the jury. The judge

at the circuit held that the words were not actionable, and took them

from the consideration of the jury. These words, spoken of the

plaintiff as a physician, are actionable _per se_, whatever may be

said upon the question, whether they impute a criminal offence. They

do not impute a criminal offence, unless there is evidence, arising

from the quantity of the calomel which the defendant alleged that the

plaintiff gave these children, from which a jury would be justified in

finding an intention to kill them. One of them was three years of age,

and the other one year and a half. If the natural result, which should

reasonably be expected from feeding children of such tender years full

teaspoon doses of calomel, would be certain death, then it is not a

forced construction of the words to say that the defendant intended to

charge the plaintiff with an intention to kill these children, in

giving them such doses. It is not necessary, however, to say that the

judge should have submitted this case to the jury upon the question,

whether the defendant did not intend to impute to the plaintiff, by

these words, a criminal offence. I am quite inclined to think,

however, that had the judge submitted the case to the jury upon the

imputation of a criminal intent in these words, and had the jury found

that such intent was imputed, we should not be justified in setting

aside their verdict. It is not necessary, however, to place the case

upon this ground; for it is certainly slanderous to say of a physician

that he killed these children of such tender years, by giving them

teaspoonful doses of calomel. The charge, to say the least, imports

such a total ignorance of his profession as to destroy all confidence

in the physician. It is a disgrace to a physician to have it believed

that he is so ignorant of this most familiar and common medicine, as

to give such quantities thereof to such young children. The law is

well settled that words published of a physician, falsely imputing to

him general ignorance or want of skill in his profession, are

actionable, in themselves, on the ground of presumed damage. Starkie

on Slander, 100, 110, 115, 10, 12; Martyn _v._ Burlings, Cro. Eliz.

589; Bacon’s Abr. title Slander, B; Watson _v._ Van Derlash, Hetl. 69;

Tutler _v._ Alwin, 11 Mod. R. 221; Smith _v._ Taylor, 1 New R. 196;

Sumner _v._ Utley, 7 Conn. R. 257. I am aware that it was held, in the

case of Poe _v._ Mondford, Cro. El. 620, that it is not actionable to

say of a physician, “He hath killed a patient with physic;” and that,

upon the strength of the authority of that case, it was decided in

this court in Foot _v._ Brown, 8 Johns. 64, that it was not actionable

to say of an attorney or counsellor, when speaking of a particular

suit. “He knows nothing about the suit; he will lead you on until he

has undone you.” These cases are not sound. The case of Poe _v._

Mondford is repudiated in Bacon’s Abr. as authority, and cases are

referred to as holding a contrary doctrine (vol. ix. pages 49, 50).

The cases of Poe _v._ Mondford, and of Foot _v._ Brown, were reviewed

by the Supreme Court of Connecticut, in the case of Sumner _v._ Utley,

7 Conn. R. 257, with most distinguished ability, and the doctrine of

those cases repudiated. In the latter case it is distinctly held, that

words are actionable in themselves, which charge a physician with

ignorance or want of skill in his treatment of a particular patient,

if the charge be such as imports gross ignorance or unskilfulness. To

the same effect is the case of Johnson _v._ Robertson, 8 Porter’s R.

486, where it was held that the following words spoken of a physician

in regard to his treatment of a particular case, “He killed the child

by giving it too much calomel,” are actionable in themselves; and such

is the case of Tutler _v._ Alwin, 11 Mod. R. 221, where it was held to

be actionable to say of an apothecary, that “he killed a patient with

physic.” See also 3 Wilson’s R. 186; Bacon’s Abr. title Slander,

letter B, 2, vol. ix. page 49 (Bouv. ed.). The cases of Poe _v._

Mondford and Foot _v._ Brown have been repudiated by the highest

judicial tribunal in two of the American States, while the case of Poe

_v._ Mondford seems to have been repudiated in England; and I agree

with Clinch, J., that the reason upon which that case is decided is

not apparent. I do not go the length to say that falsehood may not be

spoken of a physician’s practice, in a particular case, without

subjecting the party to this action. A physician may mistake the

symptoms of a patient, or may misjudge as to the nature of his

disease, and even as to the powers of medicine, and yet his error may

be of that pardonable kind that will do him no essential prejudice,

because it is rather a proof of human imperfection than of culpable

ignorance or unskilfulness; and where charges are made against a

physician that fall within this class of cases, they are not

actionable, without proof of special damages.[447] 7 Conn. R. 257. It

is equally true, that a single act of a physician may evince gross

ignorance, and such a total want of skill, as will not fail to injure

his reputation, and deprive him of general confidence. When such a

charge is made against a physician, the words are actionable _per se_.

7 Conn. R. 257. The rule may be laid down as a general one that, when

the charge implies gross ignorance and unskilfulness in his

profession, the words are actionable _per se_. This is upon the ground

that the law presumes damage to result, from the very nature of the

charge. The law in such a case lays aside its usual strictness; for

when the presumption of damage is violent, and the difficulty of

proving it is considerable, the law supplies the defect, and, by

converting presumption into proof secures the character of the

sufferer from the misery of delay, and enables him at once to face the

calumny in open court. Starkie on Slander, 581. It was well said by

the learned Chief Justice Hosmer, in Sumner _v._ Utley, 7 Conn. 257,

that, “As a general principle, it can never be admitted that the

practice of a physician or surgeon in a particular case may be

calumniated with impunity, unless special damage is shown. By

confining the slander to particulars, a man may thus be ruined in

detail. A calumniator might follow the track of the plaintiff, and

begin by falsely ascribing to a physician the killing of three persons

by mismanagement, and then, the mistaking of an artery for a vein, and

thus might proceed to misrepresent every single case of his practice,

until his reputation should be blasted beyond remedy. Instead of

murdering character by one stroke, the victim would be cut

successively in pieces, and the only difference would consist in the

manner of effecting the same result.” It is true, as was said by the

learned Chief Justice Hosmer in that case, the redress proposed, on

the proof of special damage, is inadequate to such a case. Much time

may elapse before the fact of damage admits of any evidence; and then

the proof will always fall short of the mischief. In the mean time the

reputation of the calumniated person languishes and dies; and hence,

as we have before said, the presumption of damage being violent, and

the difficulty of proving it considerable, the law supplies the defect

by converting presumption of damage into proof: Starkie on Slander,

581; in other words, the law presumes that damages result from the

speaking of the words. In the case under consideration, the words

proved impute to the plaintiff such gross ignorance of his profession,

if nothing more, as would be calculated to destroy his character

wherever the charge should be credited. It would be calculated to make

all men speak out and say, as did the witness Richard Morris, “that it

was outrageous, and the plaintiff ought not to be permitted to

practise.” The law will therefore presume damages to result from the

speaking of the words, and consequently hold the words actionable in

themselves. The judge at the circuit erred in taking this branch of

the case from the consideration of the jury, and a new trial must be

granted; costs to abide the event of the action.

CRIPPEN, J., concurred. SHANKLAND, J., dissented.

_New trial granted._[448]

SMITH _v._ HOBSON

IN THE KING’S BENCH, TRINITY TERM, 1647.

_Reported in Style, 112._

Smith, an innkeeper in Warwick, brought an action upon the case against

Hobson for speaking these words: “Colonel Egerton had the French pox,

and hath set it in the house” (meaning the plaintiff’s house), “and

William Smith and his wife” (meaning the plaintiff and his wife) “have

it, and all you.” The plaintiff hath a verdict. The defendant moves in

arrest of judgment, and for cause shows, that the words are not

actionable; for the words are, that Colonel Egerton hath set the French

pox in the house, which is impossible; for the house could not have the

pox, and the words, “William Smith and his wife have it,” shall not be

meant that they have the pox, but the house, for that is the next

antecedent to the words, to which they shall refer. ROLL, J., held the

words here actionable, and bid the plaintiff take his judgment, if cause

were not shown to the contrary Saturday following. Judgment was

afterwards given accordingly.[449]

JOANNES _v._ BURT

SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY TERM, 1863.

_Reported in 6 Allen, 336._

HOAR, J.[450] The declaration is in tort for slander, by orally imputing

insanity to the plaintiff. We are aware of no authority for maintaining

such an action, without the averment of special damage. The authorities

upon which the plaintiff relies are both cases of libel. The King _v._

Harvey, 2 B. & C. 257; Southwick _v._ Stevens, 10 Johns. 443. An action

for oral slander, in charging the plaintiff with disease, has been

confined to the imputation of such loathsome and infectious maladies as

would make him an object of disgust and aversion, and banish him from

human society. We believe the only examples which adjudged cases furnish

are of the plague, leprosy, and venereal disorders.

In addition to this vital objection in matter of substance, the

declaration fails to set forth the supposed cause of action in

substantial conformity with the requirements of the statute; and

contains many superfluous allegations, which are manifestly irrelevant,

impertinent, and scandalous.

_Appeal dismissed._[451]

FOSS _v._ HILDRETH

SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY, 1865

_Reported in 10 Allen, 76._

CHAPMAN, J. The defendant’s counsel requested the court to give certain

instructions to the jury, as stated in the bill of exceptions. One of

the instructions prayed for was, that the truth is not a defence to an

action of slander, if the words were spoken maliciously or without any

reason on the part of the defendant to believe they were true.[452] But

in respect to verbal slander the law has always been otherwise. A

special plea in justification sets forth the truth of the words merely.

3 Chit. Pl. 1031.

_Exceptions overruled._[453]

SCOTT _v._ STANSFIELD

IN THE EXCHEQUER, JUNE 3, 1868.

_Reported in Law Reports, 3 Exchequer, 220._

Declaration that the defendant published of the plaintiff in relation to

his business as a scrivener these words: “You are a harpy, preying on

the vitals of the poor.”

Plea: That the defendant uttered the said words while acting as a judge

in the trial of a cause wherein the now plaintiff was defendant.

Replication: That the words were spoken falsely and without reasonable

cause, and were wholly irrelevant and impertinent to the cause before

the defendant as the latter then well knew.

Demurrer.[454]

KELLY, C. B. I am of opinion that our judgment must be for the

defendant. The question raised upon this record is whether an action is

maintainable against the judge of a county court, which is a court of

record, for words spoken by him in his judicial character and in the

exercise of his functions as judge in the court over which he presides,

where such words would as against an ordinary individual constitute a

cause of action, and where they are alleged to have been spoken

maliciously and without probable cause, and to have been irrelevant to

the matter before him. The question arises, perhaps, for the first time

with reference to a county court judge, but a series of decisions

uniformly to the same effect, extending from the time of Lord Coke to

the present time, establish the general proposition that no action will

lie against a judge for any acts done or words spoken in his judicial

capacity in a court of justice. This doctrine has been applied not only

to the Superior Courts, but to the court of a coroner and to a court

martial, which is not a court of record. It is essential in all courts

that the judges who are appointed to administer the law should be

permitted to administer it under the protection of the law independently

and freely, without favor and without fear. This provision of the law is

not for the protection or benefit of a malicious or corrupt judge, but

for the benefit of the public, whose interest it is that the judges

should be at liberty to exercise their functions with independence and

without fear of consequences. How could a judge so exercise his office

if he were in daily and hourly fear of an action being brought against

him, and of having the question submitted to a jury whether a matter on

which he had commented judicially was or was not relevant to the case

before him? Again, if a question arose as to the _bona fides_ of the

judge it would have, if the analogy of similar cases is to be followed,

to be submitted to the jury. Thus, if we were to hold that an action is

maintainable against a judge for words spoken by him in his judicial

capacity, under such circumstances as those appearing on these

pleadings, we should expose him to constant danger of having questions

such as that of good faith or relevancy raised against him before a

jury, and of having the mode in which he might administer justice in his

court submitted to their determination. It is impossible to overestimate

the inconvenience of such a result. For these reasons I am most strongly

of opinion that no such action as this can, under any circumstances, be

maintainable.

_Judgment for the defendant._[455]

MUNSTER _v._ LAMB

IN THE COURT OF APPEAL, JULY 5, 1883.

_Reported in 11 Queen’s Bench Division, 588._

BRETT, M. R.[456] This action is brought against a solicitor for words

spoken by him before a court of justice, whilst he was acting as the

advocate for a person charged in that court with an offence against the

law. For the purposes of my judgment, I shall assume that the words

complained of were uttered by the solicitor maliciously, that is to say,

not with the object of doing something useful towards the defence of his

client: I shall assume that the words were uttered without any

justification or even excuse, and from the indirect motive of personal

ill-will or anger towards the prosecutor arising out of some previously

existing cause; and I shall assume that the words were irrelevant to

every issue of fact which was contested in the court where they were

uttered; nevertheless, inasmuch as the words were uttered with reference

to, and in the course of, the judicial inquiry which was going on, no

action will lie against the defendant, however improper his behavior may

have been.

It has been contended that as a person defamed has, _prima facie_, a

cause of action, the person defaming must produce either some statute or

some previous decision directly in point which will justify his conduct.

I cannot agree with that argument. The common law does not consist of

particular cases decided upon particular facts: it consists of a number

of principles, which are recognized as having existed during the whole

time and course of the common law. The judges cannot make new law by new

decisions; they do not assume a power of that kind: they only endeavor

to declare what the common law is and has been from the time when it

first existed. But inasmuch as new circumstances, and new complications

of fact, and even new facts, are constantly arising, the judges are

obliged to apply to them what they consider to have been the common law

during the whole course of its existence, and therefore they seem to be

laying down a new law, whereas they are merely applying old principles

to a new state of facts. Therefore, with regard to the present case, we

have to find out whether there is a principle of the common law, which

although it has existed from the beginning, is now to be applied for the

first time. I cannot find that there has been a decision of a court of

law with reference to such facts as are now before us, that is, with

regard to a person acting in the capacity of counsel: but there have

been decisions upon analogous facts; and if we can find out what

principle was applied in these decisions upon the analogous facts, we

must consider how far it governs the case before us.

Actions for libel and slander have always been subject to one principle:

defamatory statements, although they may be actionable on ordinary

occasions, nevertheless are not actionable libel and slander when they

are made upon certain occasions. It is not that these statements are

libel or slander subject to a defence, but the principle is that

defamatory statements, if they are made on a privileged occasion, from

the very moment when they are made, are not libel or slander of which

the law takes notice. Many privileged occasions have been recognized.

The occasion, with which we now have to deal, is that a defamatory

statement has been made either in words or by writing in the course of

an inquiry regarding the administration of the law. It is beyond dispute

that statements made under these circumstances are privileged as to some

persons, and it has been admitted by the plaintiff’s counsel that one

set of these persons are advocates: it could not be denied that

advocates are privileged in respect of at least some defamatory

statements made by them in the course of an inquiry as to the

administration of the law. It was admitted that so long as an advocate

acts _bona fide_ and says what is relevant, owing to the privileged

occasion, defamatory statements made by him do not amount to libel or

slander, although they would have been actionable if they had not been

made whilst he was discharging his duty as an advocate. But it was

contended that an advocate cannot claim the benefit of the privilege

unless he acts _bona fide_, that is, for the purpose of doing his duty

as an advocate, and unless what he says is relevant. That is the

question which we now have to determine. Certain persons can claim the

benefit of the privilege which arises as to everything said or written

in the course of an inquiry as to the administration of the law, and

without making an exhaustive enumeration I may say that those persons

are judges, advocates, parties, and witnesses. There have been decisions

with regard to three of these classes, namely, judges, parties, and

witnesses, and it has been held that whatever they may have said in the

course of an inquiry as to the administration of the law, has been said

upon a privileged occasion, and that they are not liable to any action

for libel or slander. But it has been suggested that only some of these

classes of persons can successfully claim the privilege of the occasion,

and those are judges, parties, and witnesses, who make statements

without malice and relevantly; and that those judges, parties, and

witnesses, who either speak or write without relevancy and with malice,

cannot successfully claim the privilege of the occasion. I am inclined

to think that with regard to these classes of persons the law has not

always been stated in the same manner by the judges, and some judges

have a strong objection to carry the privilege beyond the point to which

they are obliged by authority to carry it; they are disinclined to admit

the existence of the privilege. Other judges are inclined to carry the

privilege to its full extent, and we must see what is the doctrine which

has been finally adopted. With regard to witnesses, the chief cases are,

Revis _v._ Smith, 18 C. B. 126, 25 L. J. C. P. 195, and Henderson _v._

Broomhead, 4 H. & N. 569, and with regard to witnesses, the general

conclusion is that all witnesses speaking with reference to the matter

which is before the court—whether what they say is relevant or

irrelevant, whether what they say is malicious or not—are exempt from

liability to any action in respect of what they state, whether the

statement has been made in words, that is, on _viva voce_ examination,

or whether it has been made upon affidavit. It was at one time suggested

that although witnesses could not be held liable to actions upon the

case for defamation, that is, for actions for libel and slander,

nevertheless they might be held liable in another and different form of

action on the case, namely, an action analogous to an action for

malicious prosecution, in which it would be alleged that the statement

complained of was false to the knowledge of the witness, and was made

maliciously and without reasonable or probable cause. This view has been

supported by high authority; but it seems to me wholly untenable. If an

action for libel or slander cannot be maintained, how can such an action

as I have mentioned be maintained, it being in truth an action for

defamation in an altered form? Every objection and every reason, which

can be urged against an action for libel or slander, will equally apply

against the suggested form of action. Therefore, to my mind, the best

way to deal with the suggested form of action is to dispose of it in the

words of Crompton, J., in Henderson _v._ Broomhead, where he said: “The

attempts to obtain redress for defamation having failed, an effort was

made in Revis _v._ Smith, 18 C. B. 126, 25 L. J. C. P. 195, to sustain

an action analogous to an action for malicious prosecution. That seems

to have been done in despair.” Nothing could be more strong, nothing

could show more clearly his entire disbelief in the possibility of

supporting that new form of action. The answer to the suggested form of

action was that during the hundreds of years which had elapsed such an

action never had been sustained. No reported case from the time of the

commencement of the common law until the present day can be found in

which the suggested form of action has been maintained, and yet it is

impossible to suppose that opportunities for bringing actions of that

kind and of carrying them to a conclusion have not occurred again and

again. However, the question is not as to the form of the action, but

whether an action of any kind will lie for defamation uttered in the

course of a judicial proceeding. Crompton, J., in Henderson _v._

Broomhead, also said: “No action will lie for words spoken or written in

the course of any judicial proceeding. In spite of all that can be said

against it, we find the rule acted upon from the earliest times. The

mischief would be immense if the person aggrieved, instead of preferring

an indictment for perjury, could turn his complaint into a civil action.

By universal assent it appears that in this country no such action lies.

Cresswell, J., pointed out in Revis _v._ Smith, 18 C. B. 126, that the

inconvenience is much less than it would be if the rule were otherwise.

The origin of the rule was the great mischief that would result, if

witnesses in courts of justice were not at liberty to speak freely,

subject only to the animadversion of the court.” It is there laid down

that the reason for the rule with regard to witnesses is public policy.

In Scott _v._ Stansfield it was held that all judges, inferior as well

as superior, are privileged for words spoken in the course of a judicial

proceeding, although they are uttered falsely and maliciously and

without reasonable or probable cause. The ground of the decision was

that the privilege existed for the public benefit: of course it is not

for the public benefit that persons should be slandered without having a

remedy; but upon striking a balance between convenience and

inconvenience, between benefit and mischief to the public, it is thought

better that a judge should not be subject to fear for the consequences

of anything which he may say in the course of his judicial duty.

Therefore the cases of both witnesses and judges fall within the rule as

to privileged occasions, notwithstanding it may be proved that any

defamatory words spoken by them were uttered from an indirect motive and

to gratify their own malice. In Dawkins _v._ Lord Rokeby, Law Rep. 8 Q.

B. 255, it was assumed for the purposes of the decision, that the

defendant had been guilty of both falsehood and malice; nevertheless it

was held that no action would lie against him for statements made by him

as a witness. The ground of the decision was no doubt that a witness in

giving his evidence should not be afraid of being sued for anything that

he might say. A similar view of the law was taken in Seaman _v._

Netherclift; and the same rule has been applied to the parties. If upon

the grounds of public policy and free administration of the law the

privilege be extended to judges and witnesses, although they speak

maliciously and without reasonable or probable cause, is it not for the

benefit of the administration of the law that counsel also should have

an entirely free mind? Of the three classes—judge, witness, and

counsel—it seems to me that a counsel has a special need to have his

mind clear from all anxiety. A counsel’s position is one of the utmost

difficulty. He is not to speak of that which he knows: he is not called

upon to consider, whether the facts with which he is dealing are true or

false. What he has to do, is to argue as best he can, without degrading

himself, in order to maintain the proposition which will carry with it

either the protection or the remedy which he desires for his client. If

amidst the difficulties of his position he were to be called upon during

the heat of his argument to consider whether what he says is true or

false, whether what he says is relevant or irrelevant, he would have his

mind so embarrassed that he could not do the duty which he is called

upon to perform. For, more than a judge, infinitely more than a witness,

he wants protection on the ground of benefit to the public. The rule of

law is that what is said in the course of the administration of the law,

is privileged; and the reason of that rule covers a counsel even more

than a judge or a witness. To my mind it is illogical to argue that the

protection of privilege ought not to exist for a counsel, who

deliberately and maliciously slanders another person. The reason of the

rule is, that a counsel, who is not malicious and who is acting _bona

fide_, may not be in danger of having actions brought against him. If

the rule of law were otherwise, the most innocent of counsel might be

unrighteously harrassed with suits, and therefore it is better to make

the rule of law so large that an innocent counsel shall never be

troubled, although by making it so large counsel are included who have

been guilty of malice and misconduct. In Rex _v._ Skinner, Lofft, 55,

Lord Mansfield, a judge most skilful in enunciating the principles of

the law, treated a counsel as standing in the same position as a judge

or a witness. In Dawkins _v._ Lord Rokeby, Law Rep. 8 Q. B. 255, at pp.

263, 264, 268, a most careful judgment was delivered on behalf of all

the judges in the Exchequer Chamber, and the opinion of Lord Mansfield

was cited and adopted. If the authority of these two cases is to be

followed, counsel are equally protected with judges and witnesses. I

will refer to Kennedy _v._ Hilliard, 10 Ir. C. L. Rep. N. S. 195, and in

that case Pigott, C. B., delivered a most learned judgment, in the

course of which he said: “I take this to be a rule of law, not founded

(as is the protection in other cases of privileged statements) on the

absence of malice in the party sued, but founded on public policy, which

requires that a judge, in dealing with the matter before him, a party in

preferring or resisting a legal proceeding, and a witness in giving

evidence, oral or written, in a court of justice, shall do so with his

mind uninfluenced by the fear of an action for defamation or a

prosecution for libel.” 10 Ir. C. L. Rep., at p. 209. Into the rule thus

stated the word “counsel” must be introduced, and the rule may be taken

to be the rule of the common law. That rule is founded upon public

policy. With regard to counsel, the questions of malice, _bona fides_,

and relevancy, cannot be raised; the only question is, whether what is

complained of has been said in the course of the administration of the

law. If that be so, the case against a counsel must be stopped at once.

No action of any kind, no criminal prosecution, can be maintained

against a defendant, when it is established that the words complained of

were uttered by him as counsel in the course of a judicial inquiry, that

is, an inquiry before any court of justice into any matter concerning

the administration of the law.

I am of opinion that the rule of law is such as I have pointed out, that

it ought to be applied in the present case, and therefore that this

action cannot be maintained.

From our judgments it is obvious that we dissent from the opinion of

Lord Denman, C. J., expressed by him at Nisi Prius in Kendillon _v._

Maltby, Car. & M. 402; 2 M. & R. 438.

_Appeal dismissed._[457]

SEAMAN _v._ NETHERCLIFT

IN THE COURT OF APPEAL, DECEMBER 15, 1876.

_Reported in 2 Common Pleas Division, 53._

Appeal from the decision of the Common Pleas Division, ordering

judgment to be entered for the defendant. 1 C. P. D. 540.

Claim: That defendant said of a will, to the signature of which the

plaintiff was a witness, “I believe the signature to the will to be a

rank forgery, and I shall believe so to the day of my death,” meaning

that the plaintiff had been guilty of forging the signature of the

testator, or of aiding and abetting in the forgery.

Defence: That defendant spoke the words in the course of giving his

evidence as a witness on a charge of forgery before a magistrate.

Reply: That the words were not _bona fide_ spoken by defendant as a

witness, or in answer to any question put to him as a witness, and he

was a mere volunteer in speaking them for his own purposes otherwise

than as a witness and maliciously and out of the course of his

examination.[458]

COCKBURN, C. J. The case is, to my mind, so abundantly clear, and I

believe to the minds of my learned brothers, that I think we ought not

to hesitate to at once pronounce our decision.

The plaintiff brings his action against the defendant for slander,

alleged to have been uttered on the occasion of a prosecution for

forgery before a magistrate of the city of London. The defence set up

is: “True, I did utter the words imputed to me, but I spoke them when

I was a witness in a case in which I was called as a witness.” The

plaintiff’s answer to that is, “Yes, you were called as a witness, but

you spoke these words when you were no longer giving evidence, and not

only knowing them to be false, but also not in the inquiry, and dehors

altogether the subject-matter of the inquiry, for your own purpose of

maliciously defaming me.” At the trial before Lord Coleridge it

appeared that in the Probate suit of Davies _v._ May the defendant had

been examined, as an adept, to express his opinion as to the

genuineness of a signature to a will, and he gave it as his opinion

that the signature was a forgery. The president of the court, in

addressing the jury, made some very strong observations on the

rashness of the defendant in expressing so confident an opinion in the

face of the direct evidence. Soon afterwards, on a prosecution for

forgery before the magistrate, the defendant was called as an adept by

the person charged, when he expressed an opinion favorable to the

genuineness of the document. He was then asked by the counsel for the

prosecution whether he had been a witness in the suit of Davies _v._

May. He answered, “Yes.” And he was then asked, “Did you read a report

of the observations which the presiding judge made on your evidence?”

He again said, “Yes.” And then the counsel stopped. I presume the

circumstances of the trial were well known, and the counsel thought he

had done enough. The defendant, the witness, expressed a desire to

make a statement. The magistrate told him he could not hear it.

Nevertheless the defendant persisted and made the statement, the

subject-matter of this action of slander.

On the proof of these facts Lord Coleridge reserved leave to the

defendant to move to enter judgment, if the court should be of opinion

that there was no evidence on behalf of the plaintiff which ought to

be left to the jury. It occurred to him, however, that it would be as

well to take the opinion of the jury, and they found that the

replication was true, viz., that the words were spoken, not as a

witness in the course of the inquiry, but maliciously for his own

purpose, that is, with intent to injure the plaintiff. Upon these

findings judgment was entered for the plaintiff, leave being again

reserved to enter judgment for the defendant, and the Court of Common

Pleas gave judgment for the defendant.

Now, if the findings of the jury had been founded upon evidence by

which they could have been supported, I might have had some hesitation

about the decision. But they were not; and we are asked to come to a

conclusion contrary to what has been established law for nearly three

centuries.

If there is anything as to which the authority is overwhelming it is

that a witness is privileged to the extent of what he says in course

of his examination. Neither is that privilege affected by the

relevancy or irrelevancy of what he says; for then he would be obliged

to judge of what is relevant or irrelevant, and questions might be,

and are, constantly asked which are not strictly relevant to the

issue. But that, beyond all question, this unqualified privilege

extends to a witness is established by a long series of cases, the

last of which is Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, after

which to contend to the contrary is hopeless. It was there expressly

decided that the evidence of a witness with reference to the inquiry

is privileged, notwithstanding it may be malicious; and to ask us to

decide to the contrary is to ask what is beyond our power. But I agree

that if in this case, beyond being spoken maliciously, the words had

not been spoken in the character of a witness or not while he was

giving evidence in the case, the result might have been different. For

I am very far from desiring to be considered as laying down as law

that what a witness states altogether out of the character and sphere

of a witness, or what he may say dehors the matter in hand, is

necessarily protected. I quite agree that what he says before he

enters or after he has left the witness-box is not privileged, which

was the question in the case before Lord Ellenborough. Trotman _v._

Dunn, 4 Camp. 211. Or if a man when in the witness-box were to take

advantage of his position to utter something having no reference to

the cause or matter of inquiry in order to assail the character of

another, as if he were asked, “Were you at York on a certain day?” and

he were to answer, “Yes, and A. B. picked my pocket there;” it

certainly might well be said in such a case that the statement was

altogether dehors the character of witness, and not within the

privilege.

If, therefore, the findings of the jury, that the defendant had ceased

to be a witness when he spoke the words, were justified by the

evidence, I should hesitate before I decided in his favor. But I think

the defendant was entitled to judgment on the first reservation. There

was no evidence to go to the jury upon the plaintiff’s case. What the

defendant said was said in his character of witness; for there can be

no doubt that the words were spoken in consequence of the question put

to him by counsel for the prosecution, the object and effect of the

cross-examination having been to damage his credibility as a witness

before the magistrate, and of this the witness was conscious. The

counsel, having put the question, stops; and if there had been counsel

present for the prisoner who had re-examined the witness, he would

have put the proper questions to rehabilitate him to the degree of

credit to which he was entitled. That such questions would have been

relevant I cannot bring myself for a moment to doubt, relating as they

do to the credibility of the witness, which is part of the matter of

which the magistrate has to take cognizance. That being so, the

witness himself, who is sworn to speak the whole truth, is properly

entitled, not only with a view to his own vindication, but in the

interest of justice, to make such an observation in explanation of his

former answer as is just and fair under the circumstances. That is

what the defendant did. The sitting magistrate having allowed the

disparaging question to be put and answered, ought not to have

interfered to prevent the defendant from giving an explanation. I

think the statement, coming immediately after the damaging question

had been put to him, must be taken to be part of his testimony

touching the matter in question, as it affects his credibility as a

witness in the matter as to which he was called. It was given as part

of his evidence before he had become divested of his character of

witness; and but for the question of the opposite counsel he never

would have made the statement at all.

As to the finding of malice, it is true that what the defendant said

might possibly have the effect of damaging the plaintiff’s character;

but can any one suppose that the defendant had this in his mind when

he spoke, or that he intended to injure the plaintiff? He thought only

of his own credit as a witness, which had been attacked. He spoke, on

the impulse of the moment, no doubt very foolishly; and it was

probably his foolish persistence in maintaining the same attitude and

setting up his own opinion against the positive testimony of the other

witnesses that prejudiced the jury against him, and led them to return

the findings they did, founded, in reality, upon no evidence at all.

In my opinion, the Lord Chief Justice should have nonsuited the

plaintiff, which is the conclusion at which the Court of Common Pleas

ultimately arrived; for there really was no evidence that the

defendant was speaking otherwise than as a witness and relevantly to

the matters in issue, because relevantly to his own character and

credibility as a witness in the matter. That being so, even if express

malice could have been properly inferred from the circumstances, the

case of Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, conclusively

decides that malice has ceased to be an element in the consideration

of such cases, unless it can be shown that the statement was made not

in the course of giving evidence, and therefore not in the character

of a witness. A long series of authorities, from the time of Elizabeth

to the present time, has established that the privilege of a witness

while giving evidence is absolute and unqualified. Allardice _v._

Robertson, 1 Dow, N. S. 495, 515, was relied upon by Mr. Chambers.

That was the case of an action against a magistrate for words spoken

on the bench, and Lord Wynford expressly distinguishes the two cases,

and says that the privilege of a judge of the superior courts does not

apply to the judge of an inferior court; and that in the case of the

latter the privilege is not absolute and unqualified, and that a

“subordinate judge” would be liable to an action if malice were

proved. It does not, therefore, touch the present case; and as to a

witness speaking with reference to the subject-matter of the issue, it

is clear that the privilege is unqualified.

The judgment of the Common Pleas Division must, therefore, be

affirmed.

BRAMWELL, J. A. I am of the same opinion. The judgment of the Common

Pleas affirmed two propositions. First, that what the defendant said

was said as a witness, and was relevant to the inquiry before the

magistrate; secondly, that, that being so, the Lord Chief Justice

should have stopped the trial of the action by nonsuiting the

plaintiff.

As to the first proposition, I am by no means sure that the word

“relevant” is the best word that could be used; the phrases used by

the Lord Chief Baron and the Lord Chancellor in Dawkins _v._ Lord

Rokeby, Law Rep. 7 H. L., at p. 744, would seem preferable, “having

reference,” or “made with reference to the inquiry.” Now, were the

judges of the Common Pleas Division right in holding that this

statement of the defendant had reference to the inquiry? I think that

they were. There can be no doubt that the question put by the

cross-examining counsel ought not to have been allowed: “Have you read

what Sir James Hannen is reported to have said as to your evidence in

Davies _v._ May?” What Sir James Hannen had said in a former case was

not evidence. It was, therefore, an improper question, and the answer

to it, if untrue, would not have subjected the witness to an

indictment for perjury. But the question having been put, and the

answer having been in the affirmative—and the question being, as Lord

Coleridge observed, “ingeniously suggestive,” viz., that the way the

defendant had been dealt with on the former occasion did not redound

to his credit as a witness—the defendant insisted on making in

addition the statement complained of. He did so, in my opinion, very

foolishly. It would have been better to have been satisfied with

retaining his own opinion without setting it up in direct opposition

to the positive testimony of eye-witnesses. But he foolishly, as I

think, and coarsely exclaimed, “I believe that will to be a rank

forgery, and shall believe so to the day of my death.” Suppose after

he had said “yes,” he had added in a decent and becoming manner, “and

I am sorry Sir James Hannen said what he did, for I took great pains

to form my own opinion, and I shall always retain it, as I still think

it right.” Would not that have had reference to the inquiry before the

magistrate? And would it not have been reasonable and right that the

witness should have added that statement in justification of himself?

Surely, yes. Mr. Clarke said he was prepared to maintain that as long

as a witness spoke as a witness in the witness-box, he was protected,

whether the matter had reference to the inquiry or not. I am reluctant

to affirm so extreme a proposition. Suppose while the witness is in

the box, a man were to come in at the door, and the witness were to

exclaim, “That man picked my pocket.” I can hardly think that would be

privileged. I can scarcely think a witness would be protected for

anything he might say in the witness-box, wantonly and without

reference to the inquiry. I do not say he would not be protected. It

might be held that it was better that everything a witness said as a

witness should be protected, than that witnesses should be under the

impression that what they said in the witness-box might subject them

to an action. I certainly should pause before I affirmed so extreme a

proposition, but without affirming that, I think the words “having

reference to the inquiry” ought to have a very wide and comprehensive

application, and ought not to be limited to statements for which, if

not true, a witness might be indicted for perjury, or the exclusion of

which by the judge would give ground for a new trial; but ought to

extend to that which a witness might naturally and reasonably say when

giving evidence with reference to the inquiry as to which he had been

called as a witness. Taking that view, I think the first proposition

is established, that the statement of the defendant was made as

witness and had reference to the inquiry.

As to the second proposition, that, if the first be made out, no

inquiry can be gone into as to whether the statement was false or

malicious or as a volunteer, we are bound by authority. The case of

Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, is directly in point,

and binding upon us even if we disliked the decision. Mr. Chambers has

not attempted to distinguish that case except on the ground that the

inquiry in that case was before a military court. But it is clearly

not distinguishable on that ground. The learned Lords determined that

what is true of a civil tribunal is true of a military court of

inquiry; and they affirmed most distinctly the proposition that if the

evidence has reference to the inquiry, the witness is absolutely

privileged. There is also the case in the Court of Error of Henderson

_v._ Broomhead, 4 H. & N. 569, which is precisely to the same effect,

and undistinguishable from the present case.

I am, therefore, of opinion that the judgment of the Common Pleas

Division was right, and must be affirmed.

_Judgment affirmed._[459]

WHITE _v._ CARROLL

COURT OF APPEALS, NEW YORK, MARCH 18, 1870.

_Reported in 42 New York Reports, 161._

SUTHERLAND, J.[460] On the trial of this action, before Mr. Justice

Potter and a jury at the circuit, it appeared, that in 1858 and 1859, a

proceeding was going on before the surrogate of Montgomery county in

which the contested point or question was the testamentary capacity of

one Jay Phillips; that the plaintiff and the defendant were both at the

time, and for some years previously had been, practising as physicians

at Amsterdam, Montgomery county, the plaintiff as a homœopathic

physician, and the defendant as an allopathic physician; that both had

been sworn as witnesses, and testified in the proceedings before the

surrogate, the defendant some time after the plaintiff; that on the

examination of the defendant as such witness, he was asked whether any

other physician was in attendance on Jay Phillips, at the time he was

attending him, and that he answered: “Not as I know of.” That he was

then asked: “Did not any physician attend him at the time he was at Mrs.

Moore’s, when you did not?” That to this question, the defendant

answered: “Not as I know of; I understand he had a quack, I would not

call him a physician; I understood that Dr. White, as he is called, had

been there.” That this evidence was reduced to writing by the surrogate,

and filed in the surrogates’ office; and thereupon this action was

brought, the complaint in which contains two counts, one for libel, or

for words written; and the other for slander, or for words spoken.

No point was made on the trial of the action, that the words alleged in

the complaint had not been proved to have been spoken by the defendant,

but a motion was made on his part to dismiss the complaint,

substantially upon the ground that the words spoken by the defendant

were not actionable, because they were spoken on his examination as a

witness, and were spoken as pertinent and responsive to the questions

asked him.

Justice Potter denied the motion to dismiss the complaint, and the

defendant excepted.

In submitting to the jury the question, “whether the defendant, at the

time he so testified and used the words in question, believed the words

so used by him were relevant or pertinent to the question then on

trial,” Justice Potter charged the jury as follows: “That if the jury

believed, from all the circumstances proved, from the questions put to

him, and from his manner of answering, and from the answers themselves,

that he testified in good faith, or in the belief that his answers were

pertinent and relevant, then the law protected him in what he said; it

was privileged, and their verdict should be for the defendant. That if,

on the contrary, they should believe from this evidence, that the

defendant, though testifying at the time as a witness, and as such

entitled to the protection of the law, in so using the words proved, was

actuated by malice; that he used the words for the mere purpose of

defaming the plaintiff, then the law withdrew the protection it would

otherwise have afforded him, and he became amenable to the consequences

of uttering the slander, or of publishing the libel.”

There is certainly some doubt whether the defendant’s exception which he

claims applies to this part of the charge, was sufficiently specific or

definite to raise the question as to its correctness; but I shall assume

that it was; and I shall also assume, in view of what I have said

preliminarily, as the counsel for the defendant assumed on the argument,

and assumes in his points, that the only material questions presented by

this appeal, are those presented by the two exceptions referred to.

Now, as to the first, it is perfectly clear, that the question, whether

the defendant was protected under the circumstances, was not a question

of law for the court, but was a question of fact for the jury. It was

really a question of conduct, of motive, of good faith and honest

purpose, or of bad faith and malicious purpose.

The question was, whether the defendant did, or did not, avail himself

of the occasion to maliciously answer the questions put to him as a

witness, in the way he did.

This question was most emphatically a question for the jury; and, I

think it was submitted to the jury as favorably for the defendant as he

had a right to expect or ask.

It is true, that in submitting it to the jury, Justice Potter assumed

that the defendant, when he answered the questions as he did, knew what

the question in the proceeding before the surrogate was; but Justice

Potter had a right to assume this under the circumstances.

I think the judgment should be affirmed, with costs.

All concur for affirmance.

_Judgment affirmed._[461]

RICE _v._ COOLIDGE

SUPREME JUDICIAL COURT, MASSACHUSETTS, DECEMBER 1, 1876.

_Reported in 121 Massachusetts Reports, 393._

MORTON, J. This is an action of tort. The principal question raised by

the demurrer is, whether the plaintiff’s declaration states any legal

cause of action. Each count alleges, in substance, that a proceeding for

a divorce was pending in the courts of the State of Iowa, between Joseph

S. Coolidge and Mary L. Coolidge, in which the latter alleged that the

said Joseph S. Coolidge had been guilty of adultery with the plaintiff;

that the defendants conspired together and with the said Mary L.

Coolidge to procure and suborn witnesses to falsely testify in support

of said charges of adultery; and that the defendants, in pursuance and

execution of said conspiracy, did procure and suborn certain witnesses

named, to testify in said divorce suit, and to falsely swear to criminal

sexual intercourse between the plaintiff and said Joseph S. Coolidge,

and between the plaintiff and other persons, and to various other acts

and things which, if believed, would tend to bring disgrace and infamy

upon the plaintiff.

Three of the counts also allege that the defendants, in pursuance and

execution of the conspiracy, published or caused to be published a

printed pamphlet in which the false testimony of such witnesses was

repeated, and made the pretext for false and malicious charges upon the

plaintiff’s character and good name.

The gist of the plaintiff’s case is that the defendants have suborned

witnesses to falsely swear to defamatory statements concerning her, and

have done other connected acts in pursuance of a scheme or plan to

defame her. The alleged conspiracy or combination is not one of the

elements of the cause of action. That is not created by the conspiracy,

but by the wrongful acts done by the defendants to the injury of the

plaintiff. If the acts charged, when done by one alone, are not

actionable, they are not made actionable by being done by several in

pursuance of a conspiracy. Wellington _v._ Small, 3 Cush. 145; Parker

_v._ Huntington, 2 Gray, 124; Bowen _v._ Matheson, 14 Allen, 499.

The question is presented, therefore, whether the plaintiff can maintain

an action of tort, in the nature of the common-law action on the case,

against the defendants for suborning witnesses to falsely swear to

defamatory statements concerning the plaintiff in a suit in which

neither of the parties to this suit was a party.

It requires no argument to show that the acts charged as done by the

defendants, if proved, are a great wrong upon the plaintiff. It is a

general rule of the common law that a man shall have a remedy for every

injury. The plaintiff should have a remedy for the injury done to her by

the defendants, unless there are some other rules of law, or some

controlling considerations of public policy, which take the case out of

this rule.

The defendants contend that the witnesses who uttered the defamatory

statements are protected from an action, because they were statements

made in the course of judicial proceedings, and that therefore a person,

who procured and suborned them to make the statements, is not liable to

an action.

It seems to be settled by the English authorities that judges, counsel,

parties, and witnesses are absolutely exempted from liability to an

action for defamatory words published in the course of judicial

proceedings. Henderson _v._ Broomhead, 4 H. & N. 569; Revis _v._ Smith,

18 C. B. 126; Dawkins _v._ Rokeby, L. R. 8 Q. B. 255, and cases cited;

affirmed, L. R. 7 H. L. 744; Seaman _v._ Netherclift. The same doctrine

is generally held in the American courts, with the qualification, as to

parties, counsel, and witnesses, that, in order to be privileged, their

statements made in the course of an action must be pertinent and

material to the case. White _v._ Carroll, Smith _v._ Howard, 28 Iowa,

51; Barnes _v._ McCrate, 32 Maine, 442; Kidder _v._ Parkhurst, 3 Allen

393; Hoar _v._ Wood, 3 Met. 193. In the last-cited case, Chief Justice

Shaw says: “We take the rule to be well settled by the authorities, that

words spoken in the course of judicial proceedings, though they are such

as impute crime to another, and therefore, if spoken elsewhere, would

import malice and be actionable in themselves, are not actionable if

they are applicable and pertinent to the subject of inquiry.”

We assume, therefore, for the purposes of this case, that the plaintiff

cannot maintain an action against the witnesses in the suit in Iowa, for

their defamatory statements, though they were false. But it does not

follow that she may not maintain an action against those who, with

malice and intent to injure her, procured and suborned those witnesses

to testify falsely.

The reasons why the testimony of witnesses is privileged are that it is

given upon compulsion and not voluntarily, and that, in order to promote

the most thorough investigation in courts of justice, public policy

requires that witnesses shall not be restrained by the fear of being

vexed by actions at the instance of those who are dissatisfied with

their testimony.[462] But these reasons do not apply to a stranger to

the suit, who procures and suborns false witnesses, and the rule should

not be extended beyond those cases which are within its reasons.

The argument, that an accessory cannot be held civilly liable for an act

for which no remedy can be had against the principal, is not

satisfactory to our minds. The perjured witness and the one who suborns

him are joint tort-feasors, acting in conspiracy or combination to

injure the party defamed. The fact that one of them is protected from a

civil suit by a personal privilege does not exempt the other joint

tortfeasor from such suit. A similar argument was disregarded by the

court in Emery _v._ Hapgood, 7 Gray, 55, where it was held that the

defendant, who instigated and procured an officer to arrest the

plaintiff upon a void warrant, was liable to an action of tort therefor,

although the officer who served the warrant was protected from an

action, for reasons of public policy.

The defendants rely upon the cases of Bostwick _v._ Lewis, 2 Day, 447,

and Smith _v._ Lewis, 3 Johns. 157. But those cases turn upon a

principle which does not apply in the case at bar. The facts in those

cases were as follows: Lewis brought an action in Connecticut against

several defendants, in which he prevailed. Afterwards Bostwick, one of

the defendants in the original action, brought an action in Connecticut

against Lewis, for suborning a witness in that action; and Smith,

another of the defendants, brought a similar action in New York. It was

held in each case that the action could not be maintained, because, in

the language of Mr. Justice Kent, it was “an attempt to overhaul the

merits” of a former suit. The case of Dunlap _v._ Glidden, 31 Maine,

435, is to the same effect. Although the parties to a former action

cannot retry its merits, while a judgment therein is in force and

unreversed, yet any person who was not a party to the action, or in

privity with a party, may in a collateral action impeach the judgment

and overhaul the merits of the former action. Those cases, therefore,

are not decisive of the case at bar.[463]

The defendants argue that an action of this nature ought not to be

maintained, because the plaintiff therein might, by the testimony of a

single witness, prove that a witness in another action had committed

perjury. The rule of law, that a man cannot be convicted of perjury upon

the unaided testimony of one witness, is a rule applicable only to

criminal proceedings. The argument may go to show that the rule ought to

be extended to civil cases in which perjury is charged against a

witness, but it does not furnish a satisfactory reason why a plaintiff

should be altogether deprived of a remedy for an injury inflicted upon

him.

It is also urged, as an argument against the maintenance of this action,

that it is a novelty. The fact that an action is without a precedent

would call upon the court to consider with care the question whether it

is justified by correct principles of law; but if this is found, it is

without weight. In answer to the same argument, Lord Chief Justice

Willes said: “A special action on the case was introduced for this

reason, that the law will never suffer an injury and a damage without a

remedy, but there must be new facts, in every special action on the

case.” Winsmore _v._ Greenbank, Willes, 577.

Upon a careful consideration of the case, we are of opinion that there

are no rules of law and no reasons of public policy which deprive the

plaintiff of her remedy for the wrong done her by the defendants by

suborning witnesses to defame her character.[464]

_Demurrer overruled._

RYALLS _v._ LEADER

IN THE EXCHEQUER, MAY 26, 1866.

_Reported in Law Reports, 1 Exchequer, 296._

Declaration on a libel published of the plaintiff by the defendants, in

a newspaper called the “Sheffield and Rotherham Independent.”

Plea. Not guilty. Issue thereon.

The libel complained of was contained in a report of an examination of a

debtor in custody, held in York Castle, before the registrar of the

Leeds Bankruptcy Court, pursuant to the provisions of the Bankruptcy

Act, 1861 (24 & 25 Vict. c. 134), ss. 101, 102; and it conveyed an

imputation on the solvency of the plaintiff, who had been the debtor’s

partner. The cause was tried at the last Leeds spring assizes before

Keating, J., when, the publication of the defamatory matter having been

proved, the learned judge told the jury that “the libel was a privileged

communication, and that the defendants were entitled to the verdict if

the jury thought that the libel was a fair report of the proceedings

before the registrar of the Court of Bankruptcy, and published without

malice.” The report contained no original comment on what passed. The

jury found a verdict for the defendants.

In Easter Term last, a rule nisi was obtained for a new trial.[465]

POLLOCK, C. B. I am of opinion that my Brother Keating was right in his

ruling. The complaint here made is that certain proceedings held by a

registrar in bankruptcy in York Castle, and published by the defendant,

were libellous on the plaintiff. The defence is, that the alleged libel

was contained in a fair, correct, and _bona fide_ report of what took

place; and if these proceedings were in a public court, and the

publication was fair, there is no foundation for this action.[466] The

only question then is, whether the registrar’s court was under the

circumstances a public court. I think that it was. We ought, in my

opinion, to make as wide as possible the right of the public to know

what takes place in any court of justice, and to protect a fair _bona

fide_ statement of proceedings there. The jury found that the

publication of this report was _bona fide_, and the verdict, therefore,

ought not to be set aside.

BRAMWELL, B. I am of the same opinion. I think that this court was a

public court. That is shown from the terms of ss. 101 and 102. And even

if it were not so, yet if the officer who holds it chooses to make it

public, it would be public for this purpose. Then as to the point made,

that nothing ought to be published affecting a third party, even when

relevant to the inquiry, I think there is no such restriction. Those who

are present hear all the evidence, relevant or irrelevant, and those who

are absent, may, as far as I can see, have all that is said reported to

them. The doctrine contended for is an entire novelty, because, if

sound, every witness might bring an action against the newspaper

publisher reporting his evidence, and call upon that publisher to prove

all the libellous statements which might be contained in his examination

or cross-examination. I do not think that there is any such

qualification as that suggested, nor do I concur in the other suggestion

made to us, viz., that what is _irrelevant_ and libellous on a third

person is not protected. There are cases where an individual must suffer

for the public good, and it is difficult to draw the line between

relevancy and irrelevancy. My opinion is, that when once you establish

that a court is a public court, a fair _bona fide_ report of all that

passes there may be published. Possibly this privilege is applied to

courts of justice, because needless scandals are usually avoided in

them. I am therefore of opinion that this rule should be discharged.

_Rule discharged._

USILL _v._ HALES

IN THE COMMON PLEAS DIVISION, JANUARY 30, 1878.

_Reported in 3 Common Pleas Division, 319._

LORD COLERIDGE, C. J.[467] I am of opinion that this rule must be

discharged.

This was an action against the proprietor of a newspaper for publishing

a _bona fide_ and fair report of proceedings before a magistrate. Three

persons, surveyors, who had been employed by a civil engineer to assist

in the construction of a railway in Ireland, hearing that their employer

had been paid, and conceiving that the money due to them had been

improperly withheld by him, went before a police magistrate in London,

and (I must take it for the purpose of my judgment, and do so take it)

applied to him for a summons or order under the Masters and Workman’s

Act. In the result, the magistrate thought that the facts stated by the

complainants showed no ground for a summons against the plaintiff under

the Act; and therefore in the result it turned out that, in a certain

sense, an application had been made to the magistrate with regard to a

matter as to which he had no jurisdiction. I say in a certain sense: but

it has been long held, and I think most properly held, that it is not

the result but the nature of the application made to the magistrate

which founds his jurisdiction: and that, wherever an application is made

to a magistrate as to a matter over which, supposing the facts to bear

out the statement, he has jurisdiction, he then has jurisdiction to

ascertain whether the facts make out a case for the exercise of that

jurisdiction which, if the facts make out the case, undoubtedly he has.

It has been laid down again and again in broad terms that the

publication of the proceedings in courts of justice is privileged if the

report of such proceedings be fair and honest; and this is so found to

be. An attempt however has been made (and Mr. Shortt will allow me to

say that, if it were possible to have succeeded, I think his argument

would have succeeded, because he has said everything that could be said,

and has said it well) to distinguish this case and take it out of the

general proposition, by bringing it within an undoubted qualification

which has been grafted upon that general proposition, viz., that the

application to the magistrate here was what may be called an _ex parte_

or a preliminary proceeding. Now, there is no doubt that, in many cases

to which Mr. Shortt has referred, the term “_ex parte_ proceeding” has

been over and over again used by judges of great eminence, sometimes

affirmatively to say that an _ex parte_ proceeding is not privileged,

and sometimes negatively to say, this, being a proceeding not _ex

parte_, is privileged; and I do not doubt for my own part that, if this

argument had been addressed to a court some sixty or seventy years ago,

it might have met with a different result from that which it is about to

meet with to-day. Speaking frankly,—and it is useless, if a case has

made a certain impression upon your mind after you have done the best

you can to understand it, to say it has not made that impression,—it

seems to me quite plain that in such cases as Rex _v._ Fleet, 1 B. & A.

379, judgments of great judges do lay down the rule that an _ex parte_

or preliminary proceeding is not privileged on the ground, good or bad,

that it is very hard upon an individual to have a matter stated against

him behind his back which he has no means of answering; and that

oftentimes an accused person will come to trial, if he be tried, with a

heavy weight of prejudice; where the case against him has been reported

in the public newspapers, and his own answer, if he has one, from the

necessities of the case has not been similarly made known. No doubt

there are very strong observations in those cases adopted in Duncan _v._

Thwaites, 3 B. & C. 556, which go very far to maintain that proposition.

There is also a _dictum_ of one of the greatest authorities in our law,

Lord Eldon, than whom few greater lawyers have ever sat in Westminster

Hall, who is reported, by Mr. Starkie, Starkie on Libel, 4th ed., p. 191

(9), to have once observed that he recollected the time when it would

have been matter of surprise to every lawyer in Westminster Hall to

learn that the publication of _ex parte_ proceedings was legal.

But we are not now living, so to say, within the shadow of those cases:

and it is idle to deny that there are cases since that time, in which

the decisions I have just now referred to have been brought to the

attention of the learned judges, where the courts have been pressed with

the authority of those decisions, and have come to conclusions which it

is not for me to say are inconsistent, but which I am perfectly unable

to reconcile with those earlier cases; and I find what I think is

excellent good sense in the judgment of the Court of Queen’s Bench in

the case of Wason _v._ Walter, which explains how that is. It is a

passage which one of the learned counsel read to us, and it is a passage

which upon the whole I should desire to adopt and adhere to: “Whatever

disadvantages attach to a system of unwritten law,—and of this we are

fully sensible,—it has at least this advantage, that its elasticity

enables those who administer it to adapt it to the varying conditions of

society and to the requirements and habits of the age in which we live,

so as to avoid the inconveniences and injustice which arise where the

law is no longer in harmony with the wants and usages and interests of

the generation to which it is immediately applied. Our law of libel has

in many respects only gradually developed itself into anything like

satisfactory and settled form. The full liberty of public writers to

comment on the conduct and motives of public men has only in very recent

times been recognized.” And then the passage goes on,—“Even in quite

recent days judges, in holding the publication of the proceedings of

courts of justice lawful, have thought it necessary to distinguish what

we call _ex parte_ proceedings as a probable exception from the

operation of the rule. Yet _ex parte_ proceedings before magistrates,

and even before this court, as, for instance, on applications for

criminal informations, are published every day; but such a thing as an

action or indictment founded on a report of such an _ex parte_

proceeding is unheard of; and, if any such action or indictment should

be brought, it would probably be held that the true criterion of the

privilege is not whether the report was or was not _ex parte_, but

whether it was a fair and honest report of what had taken place,

published simply with a view to the honest publication, and innocent of

all intention to do injury to the reputation of the party affected.”

Now, to the general line of argument in that passage, and to the

accuracy of the statement in the last sentence I have read, I entirely

adhere; and it is familiar that not only are unimportant cases and _ex

parte_ proceedings published, but a particular class of inquiries which

in some of the earlier cases I find actually by name excluded from the

privilege,—I mean inquiries before a coroner,—are in cases which may be

supposed to interest the public reported in all the newspapers in the

kingdom; and yet no one ever heard, at least since I have known

Westminster Hall, of an action being brought by a person injuriously

affected by such publication, where the report is honest and _bona

fide_, and published without intention to injure. That, therefore, seems

to introduce this element into the determination of these cases, that

there is a certain elasticity in the rules which apply to questions of

privilege (development is perhaps the more correct expression), and that

the courts have from time to time applied as best they may what they

think is the good sense of the rules which exist to cases which have not

been positively decided to come within them. If there had been a case

directly in point in which a proceeding such as this, where the matter

was at an end, and where the publication had been found by the jury to

have been _bona fide_, honest, and fair, had been held by a court of

co-ordinate jurisdiction not to be privileged, I do not hesitate to say

for my own part that I should have gladly acted upon it, because I do

not disguise that my own judgment is not at all satisfied with the

enormous advantage to the public of having every small personal matter

reported day by day, often to the extreme pain and injury of

individuals, which is supposed to form its justification. Nevertheless,

I feel it to be the duty of a judge not to declare what he considers the

law ought to be, but to decide according to what to the best of his

judgment he finds it is: and, if he finds a principle laid down upon

competent authority, it is far better to accept and apply it broadly and

honestly, even if he is not in his own mind satisfied with the

foundation of the rule, than to attempt to fritter it away in its

application to cases which manifestly come within it.

I come therefore to the consideration of this case feeling that the

general tendency of the law has been to hold such a publication as this

to be within the protection of the privilege. Now, I do find one case

which to the best of my judgment appears to cover this case, and from

which I am unable, according to the principle laid down in it, to

distinguish the case now before us. It is a case to which much reference

has been made, and which Mr. Shortt has dealt with at considerable

length, viz., Lewis _v._ Levy; and it has no doubt a most important

bearing upon this question. I do not propose to read the elaborate

judgment delivered by Lord Campbell in that case: it is well summed up

in these words: “The rule, that the publication of a fair and correct

report of proceedings taking place in a public court of justice is

privileged, extends to proceedings taking place publicly before a

magistrate on the preliminary investigation of a criminal charge

terminating in the discharge by the magistrate of the party charged.” I

am perfectly aware that there may be subtle distinctions,—distinctions

which I will not say are merely shadowy, but which are subtle,—between

the facts of that case and those of the case now before us: but I cannot

disguise from myself that the _ratio decidendi_ and the argument by

which the court was there led to hold such proceedings to be privileged,

do in effect cover this case. I am of opinion that this is a case in

which there was a judicial proceeding terminating, not in the discharge

of the party accused, because there was no such person before the

magistrate, but terminating in a refusal to proceed with the charge and

to set the criminal process in motion. I am unable to distinguish the

principle of Lewis _v._ Levy from that involved in the present case; and

I adopt what is said there of the old,—and I may say great case, because

it was decided by judges of high authority,—of Curry _v._ Walter, so far

back as the year 1796. That case is adopted by the Court of Queen’s

Bench in a written judgment in the year 1858, as a ground of their

decision; and, whatever may have been said about it in some of the

intermediate cases, and the doubts that have been thrown upon it by some

eminent judges, it must I think be considered to be completely

rehabilitated by the judgment of the Court of Queen’s Bench in Lewis

_v._ Levy, E. B. & E. 537. I am content, therefore, to rest my judgment

in this case upon the principles laid down in Curry _v._ Walter, 1 B. &

P. 525, and deliberately reaffirmed in Lewis _v._ Levy, E. B. & E., at

p. 559, and to say that, upon the principles there laid down, I am of

opinion that this rule must be discharged.

_Rule discharged._[468]

WASON _v._ WALKER

IN THE QUEEN’S BENCH, NOVEMBER 25, 1868.

_Reported in Law Reports, 4 Queen’s Bench, 73._

The judgment of the court was delivered by

COCKBURN, C. J.[469] This case was argued a few days since before my

Brothers LUSH, HANNEN, and HAYES, and myself, and we took time, not to

consider what our judgment should be, for as to that our minds were made

up at the close of the argument, but because, owing to the importance

and novelty of the point involved, we thought it desirable that our

judgment should be reduced to writing before it was delivered.

The main question for our decision is, whether a faithful report in a

public newspaper of a debate in either house of parliament, containing

matter disparaging to the character of an individual, as having been

spoken in the course of the debate, is actionable at the suit of the

party whose character has thus been called in question. We are of

opinion that it is not.

Important as the question is, it comes now for the first time before a

court of law for decision. Numerous as are the instances in which the

conduct and character of individuals have been called in question in

parliament during the many years that parliamentary debates have been

reported in the public journals, this is the first instance in which an

action of libel founded on a report of a parliamentary debate has come

before a court of law. There is, therefore, a total absence of direct

authority to guide us. There are, indeed, _dicta_ of learned judges

having reference to the point in question, but they are conflicting and

inconclusive, and, having been unnecessary to the decision of the cases

in which they were pronounced, may be said to be extrajudicial.

* * * * *

The case of Stockdale _v._ Hansard, 9 Ad. & E. 1, which was much pressed

upon us by the counsel for the defendant, is ... beside the question. In

that case a report from the inspectors of prisons relative to the jail

of Newgate, in which a work published by the plaintiff, a bookseller,

and which had been permitted to be introduced into the prison, had been

described as “of a most disgusting nature,” and as containing, “plates

obscene and indecent in the extreme,” had been presented to the House in

conformity with the Act of 5 & 6 Wm. 4, c. 38. In another report, being

a reply to a report of the court of aldermen on the same subject, the

inspectors had reiterated their charges as to the character of the book,

adding that it had been described by medical booksellers, to whom they

(the inspectors) had applied for information as to its character, as

“one of Stockdale’s obscene books.” These papers the House had ordered

to be printed, not only for the use of members, but also, in conformity

with a modern practice, for public sale, the proceeds to be applied to

the general expenses of printing by the House. An action of libel having

been brought by Stockdale against the defendants, the printers of the

House of Commons, for publishing these papers, the defence as raised by

the plea which this court had to consider was, first, that the papers in

question had been published by order of the House of Commons; secondly,

that the House having resolved (as it had done with a view to such an

action) that the power of publishing such of its reports, votes, and

proceedings, as it should deem necessary, was an essential incident to

the functions of parliament, the question became one of privilege, as to

which the decision of the House was conclusive, and could not be

questioned in a court of law.

From the doctrines involved in this defence, namely, that the House of

Commons could by their order authorize the violation of private rights,

and, by declaring the power thus exercised to be matter of privilege,

preclude a court of law from inquiring into the existence of the

privilege,—doctrines which would have placed the rights and liberties of

the subject at the mercy of a single branch of the Legislature,—Lord

Denman and his colleagues, in a series of masterly judgments which will

secure to the judges who pronounced them admiration and reverence so

long as the law of England and a regard for the rights and liberties of

the subject shall endure, vindicated at once the majesty of the law and

the rights which it is the purpose of the law to uphold.

To the decision of this court in that memorable case we give our

unhesitating and unqualified adhesion. But the decision in that case has

no application to the present. The position, that an order of the House

of Commons cannot render lawful that which is contrary to law, still

less that a resolution of the House can supersede the jurisdiction of a

court of law by clothing an unwarranted exercise of power with the garb

of privilege, can have no application where the question is, not whether

the act complained of, being unlawful at law, is rendered lawful by the

order of the House or protected by the assertion of its privilege, but

whether it is, independently of such order or assertion of privilege, in

itself privileged and lawful.

Decided cases thus leaving us without authority on which to proceed in

the present instance, we must have recourse to principle in order to

arrive at a solution of the question before us, and fortunately we have

not far to seek before we find principles in our opinion applicable to

the case, and which will afford a safe and sure foundation for our

judgment.

It is now well established that faithful and fair reports of the

proceedings of courts of justice, though the character of individuals

may incidentally suffer, are privileged, and that for the publication of

such reports the publishers are neither criminally nor civilly

responsible.

The immunity thus afforded in respect of the publication of the

proceedings of courts of justice rests upon a twofold ground. In the

English law of libel, malice is said to be the gist of an action for

defamation. And though it is true that by malice, as necessary to give a

cause of action in respect of a defamatory statement, legal, and not

actual malice, is meant, while by legal malice, as explained by Bayley,

J., in Bromage _v._ Prosser, is meant no more than the wrongful

intention which the law always presumes as accompanying a wrongful act

without any proof of malice in fact, yet the presumption of law may be

rebutted by the circumstances under which the defamatory matter has been

uttered or published, and, if this should be the case, though the

character of the party concerned may have suffered, no right of action

will arise. “The rule,” says Lord Campbell, C. J., in the case of Taylor

_v._ Hawkins, 16 Q. B., at p. 321, “is that, if the occasion be such as

repels the presumption of malice, the communication is privileged, and

the plaintiff must then, if he can, give evidence of malice.”

It is thus that in the case of reports of proceedings of courts of

justice, though individuals may occasionally suffer from them, yet, as

they are published without any reference to the individuals concerned,

but solely to afford information to the public and for the benefit of

society, the presumption of malice is rebutted, and such publications

are held to be privileged.

The other and the broader principle on which this exception to the

general law of libel is founded is, that the advantage to the community

from publicity being given to the proceedings of courts of justice is so

great, that the occasional inconvenience to individuals arising from it

must yield to the general good. It is true that with a view to

distinguish the publication of proceedings in parliament from that of

proceedings of courts of justice, it has been said that the immunity

accorded to the reports of the proceedings of courts of justice is

grounded on the fact of the courts being open to the public, while the

houses of parliament are not; as also that by the publication of the

proceeding of the courts the people obtain a knowledge of the law by

which their dealings and conduct are to be regulated. But in our opinion

the true ground is that given by Lawrence, J., in Rex _v._ Wright, 8 T.

R., at p. 298, namely, that “though the publication of such proceedings

may be to the disadvantage of the particular individual concerned, yet

it is of vast importance to the public that the proceedings of courts of

justice should be universally known. The general advantage to the

country in having these proceedings made public, more than

counterbalances the inconvenience to the private persons whose conduct

may be the subject of such proceedings.” In Davison _v._ Duncan, 7 E. &

B., at p. 231, Lord Campbell says: “A fair account of what takes place

in a court of justice is privileged. The reason is, that the balance of

public benefit from publicity is great. It is of great consequence that

the public should know what takes place in court; and the proceedings

are under the control of the judges. The inconvenience, therefore,

arising from the chance of injury to private character is

infinitesimally small as compared to the convenience of publicity.” And

Wightman, J., says: “The only foundation for the exception is the

superior benefit of the publicity of judicial proceedings which

counterbalances the injury to individuals, though that at times may be

great.”

Both the principles, on which the exemption from legal consequences is

thus extended to the publication of the proceedings of courts of

justice, appear to us to be applicable to the case before us. The

presumption of malice is negatived in the one case as in the other by

the fact that the publication has in view the instruction and advantage

of the public, and has no particular reference to the party concerned.

There is also in the one case as in the other a preponderance of general

good over partial and occasional evil. We entirely concur with Lawrence,

J., in Rex _v._ Wright, 8 T. R., at p. 298, that the same reasons which

apply to the reports of the proceedings in courts of justice apply also

to proceedings in parliament. It seems to us impossible to doubt that it

is of paramount public and national importance that the proceedings of

the houses of parliament shall be communicated to the public, who have

the deepest interest in knowing what passes within their walls, seeing

that on what is there said and done, the welfare of the community

depends. Where would be our confidence in the government of the country

or in the Legislature by which our laws are framed, and to whose charge

the great interests of the country are committed,—where would be our

attachment to the constitution under which we live,—if the proceedings

of the great council of the realm were shrouded in secrecy and concealed

from the knowledge of the nation? How could the communications between

the representatives of the people and their constituents, which are so

essential to the working of the representative system, be usefully

carried on, if the constituencies were kept in ignorance of what their

representatives are doing? What would become of the right of petitioning

on all measures pending in parliament, the undoubted right of the

subject, if the people are to be kept in ignorance of what is passing in

either house? Can any man bring himself to doubt that the publicity

given in modern times to what passes in parliament is essential to the

maintenance of the relations subsisting between the government, the

Legislature, and the country at large? It may, no doubt, be said that,

while it may be necessary as a matter of national interest that the

proceedings of parliament should in general be made public, yet that

debates in which the character of individuals is brought into question

ought to be suppressed. But to this, in addition to the difficulty in

which parties publishing parliamentary reports would be placed, if this

distinction were to be enforced and every debate had to be critically

scanned to see whether it contained defamatory matter, it may be further

answered that there is perhaps no subject in which the public have a

deeper interest than in all that relates to the conduct of public

servants of the state,—no subject of parliamentary discussion which more

requires to be made known than an inquiry relating to it. Of this no

better illustration could possibly be given than is afforded by the case

before us. A distinguished counsel, whose qualification for the judicial

bench had been abundantly tested by a long career of forensic eminence,

is promoted to a high judicial office, and the profession and the public

are satisfied that in a most important post the services of a most

competent and valuable public servant have been secured. An individual

comes forward and calls upon the House of Lords to take measures for

removing the judge, in all other respects so well qualified for his

office, by reason that on an important occasion he had exhibited so

total a disregard of truth as to render him unfit to fill an office for

which a sense of the solemn obligations of truth and honor is an

essential qualification. Can it be said that such a subject is not one

in which the public has a deep interest, and as to which it ought not to

be informed of what passes in debate? Lastly, what greater anomaly or

more flagrant injustice could present itself than that, while from a

sense of the importance of giving publicity to their proceedings, the

houses of parliament not only sanction the reporting of their debates,

but also take measures for giving facility to those who report them,

while every member of the educated portion of the community from the

highest to the lowest looks with eager interest to the debates of either

house, and considers it a part of the duty of the public journals to

furnish an account of what passes there, we were to hold that a party

publishing a parliamentary debate is to be held liable to legal

proceedings because the conduct of a particular individual may happen to

be called in question?

The learned counsel for the plaintiff scarcely ventured as of his own

assertion to deny that the benefit to the public from having the debates

in parliament published was as great as that which arose from the

publishing of the proceedings of courts of justice, but he relied on the

_dicta_ of Littledale, J., and Patteson, J., in Stockdale _v._ Hansard,

9 Ad. & E. 1, and on the opinions of certain noble and learned lords in

the course of debates in the House of Lords on bills introduced by Lord

Campbell for the purpose of amending the law of libel.[470] There is no

doubt that in delivering their opinions in Stockdale _v._ Hansard, the

two learned judges referred to denied the necessity and in effect the

public advantage of the proceedings in parliament being made public. The

counsel for the defendant in that case having insisted, as a reason why

the power to order papers to be printed and published should be

considered within the privileges of the House of Commons, on the

advantage which resulted from the proceedings of parliament being made

known, the two learned judges, not satisfied with demonstrating, as they

did, by conclusive arguments, that the House had not the power to order

papers of a libellous character and forming no part of the proceedings

of the House to be published, still less to conclude the legality of

such a proceeding by the assertion of privilege, thought it necessary to

follow the counsel into the question of policy and convenience, and in

so doing took what we cannot but think a very short-sighted view of the

subject. This is the more to be regretted, as their observations apply

not only to the printing of papers by order of the House, the only

question before them, but also to the publication of parliamentary

proceedings in general, the consideration of which was not before them,

and therefore was unnecessary. Lord Denman, in his admirable judgment,

than which a finer never was delivered within these walls, and in which

the spirit of Holt is combined with the luminous reasoning of a

Mansfield, while overthrowing by irresistible arguments the positions of

the Attorney-General, was content to answer the argument as to the

policy of allowing papers to be published by order of either of the

houses of parliament, not by denying the policy of giving power to the

House to order the printing and publishing of papers, but by saying that

such power must be provided for by legislation. On the subject of the

publication of parliamentary debates he said nothing, nor was he called

upon to say anything. That the Legislature did not concur with the two

judges in their view of the policy is manifest from the Act of 3 Vict.

c. 9, passed in consequence of the decision in Stockdale _v._ Hansard, 9

Ad. & E. 1, the preamble of which statute recites that “it is essential

to the due and effectual exercise and discharge of the functions and

duties of parliament and to the promotion of wise legislation that no

obstructions or impediments should exist to the publication of such of

the reports, papers, votes, or proceedings of either house of parliament

as such house of parliament may deem fit or necessary to be published.”

After which the Act proceeds to provide for the prevention of actions

being brought in respect of papers published by order of either house of

parliament.

As regards the attempt of Lord Campbell to fix the legality of the

publication of parliamentary debates on the sure foundation of statutory

enactment,[471] we think it may be as well accounted for by the

apprehension, as to the result of any proceeding at law in which the

legality of such publication should come in question, produced in his

mind by the language of the judges in Stockdale _v._ Hansard, as by any

conviction of the defectiveness of the law....

We, however, are glad to think that, on closer inquiry, the law turns

out not to be as on some occasions it has been assumed to be. To us it

seems clear that the principles on which the publication of reports of

the proceedings of courts of justice have been held to be privileged

apply to the reports of parliamentary proceedings. The analogy between

the two cases is in every respect complete. If the rule has never been

applied to the reports of parliamentary proceedings till now, we must

assume that it is only because the occasion has never before arisen. If

the principles which are the foundation of the privilege in the one case

are applicable to the other, we must not hesitate to apply them, more

especially when by so doing we avoid the glaring anomaly and injustice

to which we have before adverted. Whatever disadvantages attach to a

system of unwritten law, and of these we are fully sensible, it has at

least this advantage, that its elasticity enables those who administer

it to adapt it to the varying conditions of society, and to the

requirements and habits of the age in which we live, so as to avoid the

inconsistencies and injustice which arise when the law is no longer in

harmony with the wants and usages and interests of the generation to

which it is immediately applied. Our law of libel has, in many respects,

only gradually developed itself into anything like a satisfactory and

settled form. The full liberty of public writers to comment on the

conduct and motives of public men has only in very recent times been

recognized. Comments on government, on ministers and officers of state,

on members of both houses of parliament, on judges and other public

functionaries, are now made every day, which half a century ago would

have been the subject of actions or _ex officio_ informations, and would

have brought down fine and imprisonment on publishers and authors. Yet

who can doubt that the public are gainers by the change, and that,

though injustice may often be done, and though public men may often have

to smart under the keen sense of wrong inflicted by hostile criticism,

the nation profits by public opinion being thus freely brought to bear

on the discharge of public duties? Again, the recognition of the right

to publish the proceedings of courts of justice has been of modern

growth. Till a comparatively recent time the sanction of the judges was

thought necessary even for the publication of the decisions of the

courts upon points of law. Even in quite recent days, judges in holding

publication of the proceedings of courts of justice lawful, have thought

it necessary to distinguish what are called _ex parte_ proceedings as a

probable exception from the operation of the rule. Yet _ex parte_

proceedings before magistrates, and even before this court, as, for

instance, on applications for criminal informations, are published every

day, but such a thing as an action or indictment founded on a report of

such an _ex parte_ proceeding is unheard of, and, if any such action or

indictment should be brought, it would probably be held that the true

criterion of the privilege is, not whether the report was or was not _ex

parte_, but whether it was a fair and honest report of what had taken

place, published simply with a view to the information of the public,

and innocent of all intention to do injury to the reputation of the

party affected.

It is to be observed that the analogy between the case of reports of

proceedings of courts of justice and those of proceedings in parliament

being complete, all the limitations placed on the one to prevent

injustice to individuals will necessarily attach on the other: a garbled

or partial report, or of detached parts of proceedings, published with

intent to injure individuals, will equally be disentitled to protection.

Our judgment will in no way interfere with the decisions that the

publication of a single speech for the purpose or with the effect of

injuring an individual will be unlawful, as was held in the cases of Rex

_v._ Lord Abingdon, 1 Esp. 226, and Rex _v._ Creevey, 1 M. & S. 273. At

the same time it may be as well to observe that we are disposed to agree

with what was said in Davidson _v._ Duncan, 7 E. & B., at p. 233, as to

such a speech being privileged if _bona fide_ published by a member for

the information of his constituents. But whatever would deprive a report

of the proceedings in a court of justice of immunity will equally apply

to a report of proceedings in parliament.

It only remains to advert to an argument urged against the legality of

the publication of parliamentary proceedings, namely, that such

publication is illegal as being in contravention of the standing orders

of both houses of parliament. The fact, no doubt, is, that each house of

parliament does, by its standing orders, prohibit the publication of its

debates. But, practically, each house not only permits, but also

sanctions and encourages, the publication of its proceedings, and

actually gives every facility to those who report them. Individual

members correct their speeches for publication in Hansard or the public

journals, and in every debate reports of former speeches contained

therein are constantly referred to. Collectively, as well as

individually, the members of both houses would deplore as a national

misfortune the withholding their debates from the country at large.

Practically speaking, therefore, it is idle to say that the publication

of parliamentary proceedings is prohibited by parliament. The standing

orders which prohibit it are obviously maintained only to give to each

house the control over the publication of its proceedings, and the power

of preventing or correcting any abuse of the facility afforded.

Independently of the orders of the houses, there is nothing unlawful in

publishing reports of parliamentary proceedings. Practically, such

publication is sanctioned by parliament; it is essential to the working

of our parliamentary system, and to the welfare of the nation. Any

argument founded on its alleged illegality appears to us, therefore,

entirely to fail. Should either house of parliament ever be so

ill-advised as to prevent its proceedings from being made known to the

country—which certainly never will be the case—any publication of its

debates made in contravention of its orders would be a matter between

the house and the publisher. For the present purpose, we must treat such

publication as in every respect lawful, and hold that, while honestly

and faithfully carried on, those who publish them will be free from

legal responsibility, though the character of individuals may

incidentally be injuriously affected.