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wise, there not being any ill intention of sedition in the bishops, and the object of their petition being to free themselves from blame in not complying with the King's command. The jury found them not guilty. (r)
It has been resolved that no false or scandalous matter con- Petitions to tained in a petition to a committee of parliament, or in articles of pa
and other authe peace exhibited to justices of peace, or in any other proceed- thorized proing in a regular course of justice, will make the complaint amount ceedings. to a libel ; for it would be a great discouragement to suitors to subject them to public prosecution in respect of their applications to a court of justice.(s) Thus where a charge was, that the defendant, in a certain affidavit before the court, had said that the plaintiff in a former affidavit against the defendant had sworn falsely, the court held that this was not libellous; for in every dispute in a court of justice, where one by affidavit charges a thing and the other denies it, the charges must be contradictory, and there must be affirmation of falsehood.(t) It is also held that no presentment of a grand jury can be a libel, not only because persons who are supposed to be returned without their own seeking, and are sworn to act impartially, shall be presumed to have proper evidence for what they do, but also because it would be of the utmost ill consequence in any way to discourage them from making their enquiries with that freedom and readiness which the public good requires. (u) Where an action was brought against the president of a military court of enquiry for a libel contained in the minutes of such court, which had been delivered by the defendant to the commander in chief and deposited in his office, it was held that these minutes were a privileged communication, and properly rejected when tendered at the trial in proof of the alleged libel; and also that a copy of them had been properly rejected.(v) And where a court-martial, after stating in their sentence the acquittal of an officer against whom a charge had been preferred, subjoined thereto a declaration of their opinion, that the charge was malicious and groundless, and that the conduct of the prosecutor in falsely calumniating the accused was highly injurious to
(r) Case of the Seven Bishops, 12 St. any reason why such a mockery of Tri. 183; and see post, as to commu- public justice should not rather agnications made bona fide, and in the gravate the offeuce than make it cease proper course of proceeding
to be one. Upon this point Mr. Starkie, (8) 1 Hawk. P. C. c. 73, s. 8. 4 Bac. after referring to the several authoriAbr. Libel (A) 4. p. 454. And see the ties, says, that it may be collected gejudgment of Holroyd, J., in Hodgson nerally that no action can be mainv. Scarlett, 1 B. & A. 244. It is holden tained for any thing said or otherwise by some that no want of jurisdiction published in the course of a judicial in the court to which the complaint proceeding, whether criminal or civil; sball be exhibited will make it a libel; though for a malicious and groundless because the mistake of the court is not prosecution, an action, and perhaps imputable to the party, but to his an indictment, may be supported, counsel : but Hawkins says, (1 Hawk. founded on the whole proceeding. P. C. c. 73. S. 8.) that if it manifestly Starkie on Libel, 223. appears that a prosecution is entirely (1) Astley v. Younge, 2 Burr. 817, false, malicious, and groundless, and (u) i Hawk. P. C. c. 73. s. 8. 4 Bac. commenced, not with a design to go Abr. Libel (A) 4. p. 455. through with it, but only to expose the (v) Horne v. Lord F. C. Bentinck, 4 defendant's character under the shew Moore, 563. of a legal proceeding, he cannot see
eithe memb and malicilence or on the
the service, it was held that the president of the court-martial was not liable to an action for a libel for having delivered such sentence and declaration to the judge advocate ; and Mansfield, C. J., in delivering his opinion, said, “If it appear that the charges are “ absolutely without foundation,-is the president of the court-mar“ tial to remain perfectly silent on the conduct of the prosecutor ; “ or can it be any offence for him to state that the charge is
groundless and malicious ?" (W) And speeches The members of the two houses of parliament, by reason of of members of their privilege, are not answerable at law for any personal reflecparliament are til privileged.
* tions on individuals contained in speeches in their respective
houses; for policy requires that those who are by the constitution appointed to provide for the safety and welfare of the public should, in the execution of their high functions, be wholly uninfluenced by private considerations. (x)
Thus the actual proceedings in courts of justice and in parliament are exempted from being deemed libellous: it becomes important to enquire in the next place how far the same privilege will be extended to communications of those proceedings to the
public, made with impartiality and correctness. How far the
It has always been held that a publication of the proceedings in publication of proceedings in a court of justice will not be protected unless it be a true and courts of jus- honest statement of those proceedings. (y) But provided it were tice is allow
of that character, the doctrine seems at one time to have been able.
that it might be made to the full extent of stating what had actu-
(w) Jekyll v. Sir John Moore, 2 Stiles v. Nokes, 7 East. 493.
(2) Curry v. Walter, i Bos. & Pull. (x) Holt on Libel, 190. Starkie on 523., referred to by Lawrence, J., in Libel, 211. Rex v. Lord Abingdon, Rex v. Wright, 8 T. R. 298. I Esp. Rep. 226. By 4 Hen. 8. c. 8. (a) By Lord Ellenborough, C. J. and members of parliament are protected Grose, J., in Stiles v. Nokes, 7 East. from all charges against them for any 503. thing said in either house; and this is (6) Id. ibid. And see Rex v. Salisfurther declared in the Bill of Rights, bury, I Ld. Raym. 341, that it is inI W. & M. st. 2. c. 2.
dictable to publish a scandalous peti(y) Waterficld v. the Bishop of Chi- tion to the House of Lords, or a scanchester, 2 Mod. 118. Rex v. Wright, dalous affidavit made in a court of 8 T. Rep. 297, 298. per Lawrence, J. justice.
his defenicted of "pürecent calorience
“ pose an indictment for blasphemy, or a trial where indecent “evidence was necessarily introduced ;—would every one be at “ liberty to poison the minds of the public, by circulating that “ which for the purposes of justice the court is bound to hear ? “ I should think not: and it is not true therefore that in all in“stances the proceedings of a court of justice may be published. “ Again, it may be said that counsel have a right, in pursuance “ of their instructions, and whilst the cause is going on, to endea“ vour to produce an effect by making such observations on the “ credit and character of parties and their witnesses as sometimes, “ when the cause is over, perhaps they are sorry for. But have “ they, therefore, or any person who hears them, a right after“ wards to publish those observations? I have no hesitation in “ saying that when the occasion ceased, the right also would cease; “ and that it would be no justification to plead that such a publica“ tion was a transcript of the counsel's speech.”(c) This doctrine was recognized and acted upon in a recent case. The defendant's husband had been convicted of publishing a blasphemous libel, after having in his defence at the trial used arguments and statements of a blasphemous and indecent description. His wife published the trial; and, upon shewing cause against a rule for a criminal information, it was urged that she had a right to publish what actually took place in a court of justice: but the Court were clear she had not, if that statement contained any thing defamatory, seditious, blasphemous, or indecent: and the rule was made a absolute. (d) And where it is allowable to publish what passes in a court of justice, the party must publish the whole case, and not merely state the conclusion which he himself draws from the evidence. Thus, where the libel stated in the declaration purported to be a speech of counsel at a trial of the plaintiff on a criminal charge, and, after setting out the speech, said that a witness was called who proved all that had been stated by counsel, and that the defendant was immediately afterwards acquitted upon a defect in proving some matter of form; and the plea stated that in fact such a speech was made, and that the witness called proved all that had been so stated, but it did not set out the evidence or justify the truth of the charges made in the counsel's speech; it was holden that such plea was bad, inasmuch as a party could not be justified in publishing the result of evidence given in a court of justice, but must state the evidence itself. (e) And the party making the publication will not be justified, unless he confines himself to what actually passed in court. In a case where an action was brought for a libel concerning the plaintiff in his profession as an attorney, and the libel, as stated in the declaration, began, “shameful conduct of an attorney,” and then proceeded to give an account of proceedings in a court of law which contained matter injurious to the plaintiff's professional character,
(c) Rex v. Creevy, I M. & S. 281, In “must be understood wilh very great the sanie case Lord Ellenborough, C.J. "limitations; and shall never fully assaid, “ As to Curry v. Walter, (ante, “sent to the unqualified terms attri“pote (2), ) it is not necessary for the “buted in the report of that case to "present purpose to discuss that case : "Evre, C. J." “ whenever it becomes necessary, I shall (d) Rex v. Carlisle, 3 B. & A. 167. “say that the doctrine there laid down (e) Lewis v. Walter, 4 B. & A. 605.
and the defendant had pleaded that the supposed libel contained a true account of the proceedings in the court of law; it was holden (after verdict for the defendant) that the plea was bad, inasmuch as the words “ shameful conduct of an attorney” formed no part of the proceedings in the court of law, and that the plain
tiff was therefore entitled to judgment. (b) Publication of It should be observed also, that the publication of preliminary ex parte exa
- examinations before a magistrate, taken ex parte, will not come minations before a magis- within the principle by which the fair reports of proceedings in trate may be courts of justice have been held to be privileged. Such publicalibellous.
tions have a tendency to cause great mischief by perverting the public mind, and disturbing the course of justice; and, if they contain libellous matter, will be considered as highly criminal. (c) And the Court of King's Bench has gone to the extent of granting a criminal information for publishing in a newspaper a statement of the evidence given before a coroner's jury, accompanied with comments; although the statement was correct, and the party
had no malicious motive in the publication. (d) How far the Though the publication of a proceeding in parliament will, in publication of general, be considered as privileged and protected from being proceedings in parliament is
is" deemed libellous ;(e) and the printing and delivering a petition to
deer allowable. members of a committee of the House of Commons, being accord
ing to the order of proceedings of parliament and their committees, has been held to be justifiable : 0) yet it may be doubted how far the circulation of a copy of a writing containing mạtter of an injurious tendency to the character of an individual, though published for the use of the members, is legitimate and exempted from prosecution. (g) And it is clear that the publication of the speech of a member of parliament, if it contain matter of libel, is not protected, even though such publication be made by the member himself. In a case upon this subject, Lord Kenyon, C.J. observed that if the words in question had been spoken in the House of Lords, and confined to its walls, the Court of King's Bench would have had no jurisdiction to call a member of that house before them, to answer for such words as an offence; but that the offence was the publication of them in the public papers, under the authority of the member, with his sanction, and at his expense : that a member of parliament had certainly a right to publish his speech, but that his speech should not be made the vehicle of slander against any individual; if it were, it would be a libel.(n) And in a more recent case it was held by the Court
(6) Lewis v. Clement, 3 B. & A, 702. ter, or in the regular discharge of his In this case the question was raised magisterial functions. M'Gregor v. whether it be lawful to publish pro- Thwaites and another, 3 B. & C. 24. ceedings of a court of law containing (d) Rex v. Fleet, 1 Baro. & Ald. 379.· matter defamatory of a person neither (e) Rex v. Wright, 8 T. R. 293. In a party to the suit nor present at the this case a former case of Rex v. Wiltinue of the enquiry ; but it became liams, 2 Show. 471. Comb. 18., was unnecessary to decide this point. animadverted upon by Lord Kenyon,
(c) Rex v. Lee and another, 5 Esp. C. J. and Grose, J. as having happened 123. Rex v. Fisher and others, 2 Campb. in the worst of times. 563. Duncan v. Thwaites and others, (f) Lake v. King, 1 Sauod. 131. 3 B. & C. 536. Acd still less can the (g) See the judgment of Lord Ellendefendant justify the publication of a borough, C. J., in Rex v. Creevey, I matter which was not brought before M. & S. 278. the magistrate in his judicial charac- . (h) Rex v. Ld. Abingdon, 1 Esp. 226.
torncule, is an indictaving His being
of King's Bench that a member of the House of Commons may be convicted upon an indictment for a libel, in publishing in a newspaper the report of a speech delivered by him in that house, if it contain libellous matter, although the publication be a correct report of such speech, and be made in consequence of an incorrect publication having appeared in that and other newspapers. (i)
Having treated generally of the publications which may be considered as libellous, it may be useful to refer to some of the particular points which have been holden, respecting publications :I. Against the Christian religion. II. Against morality. III. Against the constitution. IV. Against the King. V. Against the two Houses of Pariiament. VI. Against the Government. VII. Against the magistrates and the administration of justice. VIII. Against private individuals. And, IX. Against foreigners of distinction.
1. It has been before observed, (k) that blaspheming God, or of publicaturning the doctrines of the Christian religion to contempt and tions against ridicule, is an indictable offence. At common law, all blasphemies
es religion. against God, as denying His being or providence; and all contumelious reproaches of Jesus Christ; all profane scoffing at the Holy Scripture, or exposing any part thereof to contempt or ridicule; and also seditious words in derogation of the established religion ; are considered as offences tending to subvert all religion and morality, and punishable by the temporal courts with fine and imprisonment, and also infamous corporal punishment in the discretion of the court. (1)
Some provisions have also been made upon this subject by Statutes upon statutes. The 1 Ed. 6. c. 1.(m) enacts that persons reviling the
one ponilince the this subjeot. sacrament of the Lord's Supper, by contemptuous words or otherwise, shall suffer imprisonment. The statute 1 Eliz. c. 2. enacts that if any minister shall speak any thing in derogation of the book of common prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life, the second ; and if he be beneficed, shall for the first offence be imprisoned six months and forfeit a year's value of his benefice ; for the second, shall be deprived and suffer one year's imprisonment; and for the third shall in like manner be deprived and suffer imprisonment for life. And that if any person whatsoever shall in plays, songs, or other open words, speak any thing in derogation, depraving, or despising of the said book, or shall forcibly prevent the reading of it, or cause any other service to be read in its stead, he shall forfeit for the first offence 100 marks; for the second 400; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment for life. By the 3 Jac. 1. c. 21. a person using the name of the Holy Trinity profanely, or jestingly, in any stage-play, interlude, or show, shall be liable to a qui tam penalty of ten pounds. The 1 W.3. c. 18. s. 17. enacted that whoever should deny in his preaching or writing the doctrine of the blessed Trinity, should lose all benefit of the act for granting toleration. This section is (1) Rex v. Creevey, 1 M. & S. 273. P. C c.5. (k) Ante, p. 209.
(m) Repealed by 1 Mary, c. 2., and (1) See the cases collected in 1 Hawk. revived by i Eliz. c. 1.
visie court. ( infamoude tempos to suby
and forfeit a yeaffer one years aim and suffer imprison