of libel for publishing a speech he had made in the house; but the report was only of a single speech, and it is just like the case of publishing part only of the proceedings in a court of justice, such as the speech of counsel; and Lord Ellenborough, C.J., expressly distinguishes the case on the ground that a single speech could not be said to be a proceeding in parliament; and Bayley and Le Blanc, JJ., both proceeded on the ground that the occasion did not justify the publication, the publication being of a single speech. The cases of Lake v. King (1) and Rex v. Lord Abingdon (2), were referred to in that case; in the first the publication of a scandalous petition to the House of Commons was held not libellous, as being in the course of parliament; while in the latter the publication of a single speech made in parliament was held libellous. The case of Stockdale v. Hansard (3) will be relied on by the plaintiff; but although there are dicta of some of the puisne judges in favour of the doctrine that the report of a debate in either house of parliament would not be and ought not to be privileged, yet the decision is really only that the House of Commons could not mero motu legalize the publication of a libel by ordering the printing and publication of a report made to the House; this was the decision on the demurrer, and the substance and effect of Lord Denman, C.J.'s direction to the jury on the trial were the same. (4) In Davison v. Duncan (5) the Court were unanimous that the privilege accorded to the report of proceedings in a court of justice did not extend to the report of what was said at a public meeting; but Wightman, J., seemed to think that it did extend to the report of proceedings in parliament; and he drew the distinction between such a report and the publication of a single speech. Mr. Starkie (on Libel, vol. i. 261, 2nd ed.) no doubt takes the contrary view, but he bases the distinction between the report of legal and parliamentary proceedings on the narrow ground that courts of justice are open to the public, whereas the publication of parliamentary proceedings is, theoretically at least, a breach of privilege. On the second count, taking into consideration the false position (1) 1 Saund. 131. (4) 2 Mood. & Rob. at p. 12; 7 C. & P. at p. 738. (5) 7 E. & B. 229; 26 L. J.(Q.B) 104. H 1 1868 WASON v. WALTER. 7 in which the plaintiff had put himself by making charges which were proved to be utterly groundless, and inasmuch as the matter was one of public interest, a writer in a public newspaper had a right to comment on the matter, and the comments were no stronger than the occasion fairly justified: Campbell v. Spottiswoode (1), Turnbull v. Bird (2), Paris v. Levy (3), Lewis v. Levy. (4) Nov. 19, 21. T. Jones, Q.C., and R. E. Turner, in support of the rule. As to the first count, Stockdale v. Hansard (5) is a direct authority that a report of parliamentary proceedings is not privileged. That was an à fortiori case, for the House of Commons had ordered the papers to be published, as being for the public advantage, and yet the Court decided against the defendant, and held the publication libellous, expressly deciding that the detriment to the individual was sufficient to override the public advantage; and not only did the Court so decide, but several members of it expressed opinions adverse to the supposed advantage of giving immunity to the publication of parliamentary proceedings. [They then referred at length to the judgments of Littledale, Patteson, and Coleridge, JJ. (6)] [COCKBURN, C.J. The point decided in that case was, not that the reports of parliamentary debates were not privileged, nor even that a report of a committee of the House would not be privileged, but that the House of Commons, by ordering a report of inspectors of prisons to be printed, could not legalize the publication of libellous matter.] But all the learned judges, including Lord Denman, C.J. (7), assume throughout as the basis of their decision that the publication of parliamentary proceedings is not privileged. Lake v. King (8) decided that the printing and publication was justifiable only so far as publication to the members themselves, but no further. Rex v. Wright (9) is strongly commented upon by Lord (1) 3 B. & S. 769; 32 L. J. (Q.B.) 185. (3) 9 C. B. (N.S.) 342; 30 L. J. (4) E. B. & E. 537, 560, 561; 27 L. J. (Q.B.) 282, 290. (5) 3 Ad. & E. 1. (6) 9 Ad. & E; see especially, pp. . 181, 182; 211-213; 241, 242. (7) 9 Ad. & E. at p. 114. (8) 1 Saund. 131. (9) 8 T. R. 293. Ellenborough, C.J., in Rex v. Creevey (1), and, while doubting the propriety of the decision, he points out that it is no authority to warrant the publication of parliamentary proceedings such as a speech or debate; and Rex v. Creevey (2) is an express decision that a speech delivered in parliament cannot be published with impunity if libellous. The publication of a libellous speech was held not privileged by Lord Kenyon himself in Rex v. Lord Abingdon. (3) In Davison v. Duncan (4) all the Court agreed that a report, though fair and accurate, of what was said at a public meeting, was not privileged; and Wightman, J., contrasted the case with the privilege as to the publication of judicial proceedings; and added, "So it may be in the case of parliamentary proceedings. But when a member of parliament volunteered to publish a corrected edition of his speech, it was held in Rex v. Creevey (1) not to be privileged; so that even the privilege of making a report of what took place in parliament is limited;" on which Lord Campbell, C.J., observes, after referring to Rex v. Creevey (1) and Rex v. Lord Abingdon (3) that he "should think a publication of a report of his speech by a member of the House of Commons bonâ fide addressed to his constituents would be privileged;" but Crompton, J., puts this on its true ground: "The privilege in such a case would arise because the publication was as a communication between a member and his constituents, and not because it was a true report of what took place in parliament." There is in fact no authority at all for the proposition that the report of a debate in either house is privileged, and there is direct authority that the report of a speech is not privileged. If we look at the statutes, we find legislative declaration against the existence of this supposed privilege. Thus, 3 Vict. c. 9, passed in consequence of the decision in Stockdale v. Hansard (5) makes lawful the publication of all papers, reports, or proceedings ordered by either house to be printed; but it does not extend the privilege to reports of debates. And what was the opinion as to the law on this point held by the highest legal authorities, is shown by the debates which subsequently took place. Thus in 1843, when Lord Campbell introduced into the House of Lords his bill as (1) 1 M. & S. 273, 277, 278. (2) 1 M. & S. 273. (4) 7 E. & B.229; 26 L. J. (Q.B.)104. (3) 1 Esp. 226. (5) 9 Ad. & E. 1. 1868 WASON v. WALTER. 1868 WASON V. WALTER. to libel, which now stands in the statute book as 6 & 7 Vict. c. 96, on clause 7 being discussed, by which it was proposed to enact that no legal proceeding, civil or criminal, should be maintainable for a faithful report of any proceedings in either house of parliament at which strangers had been permitted to be present, both Lord Campbell, while supporting the clause, and Lord Brougham, who opposed it, shewed clearly that they thought the publication of a report of parliamentary proceedings was not privileged. [They then read several passages from the debate. (1)] (1) Hansard's Parliamentary Debates, 3rd series, vol. lxx., pp. 12541258. House of Lords, July 18, 1843. Lord Campbell proposed clause 7; the clause, he stated, was founded on the 10th proposition of the recommendations of the committee on the law of libel, which ran thus:-"That no action, indictment, or information shall be maintainable for a faithful report of any proceedings of courts of justice, or before magistrates acting in the discharge of their duty, or of any proceedings in either house of parliament, at which strangers have been permitted to be present, provided that such proceedings are not of such a nature that a report thereof would be contrary to good manners." After some preliminary observations, Lord Campbell continued: "Faithful and bonâ fide reports of parliamentary proceedings, why ought not they to be as much protected as similar reports of legal proceedings?". . . . He proposed, then, to assimilate the law in respect of parliamentary proceedings generally, to the law as regarded legal proceedings. This would not sanction unfair and unfaithful reports, but only those that were fair and faithful." . . . ... Lord Brougham 66 was decidedly of opinion that parliament could not discharge its higher functions without the most entire freedom of debate. In proportion, however, as there should be an absolute and unrestrained privi lege within the walls of parliament for saying whatever any member might think proper to say, restrained only by his sense of duty, so in the same proportion, was the necessity absolute that there should not be given an unrestrained power to the press to publish everything that was said in parliament. There was no fear of the proceedings of parliament not being published. Practically, therefore, there was no necessity for such provision as this. In the course of all his experience at the bar, he never remembered a single prosecution or action for the publication of a speech delivered in parliament. In the case of Wright, publisher, reported in 6 Term Reports, an action was brought by Horne Tooke against Wright for publishing a report of proceedings in parliament which reflected upon Mr. Horne Tooke. The Court of King's Bench held that it was a privileged publication, because it was good for parliament itself and for the country that the publication should be made. But the Court never held, on the contrary the rule was the other way, that any indemnity whatever should be given to the publisher for printing everything that was said in parliament. It was the only check upon members of parliament that the publication should rest on the responsibility of the publisher." ... The clause was negatived by 11 to 5. Again, in 1858, when in consequence of the decision in Davison v. Duncan (1), Lord Campbell introduced another bill into the House of Lords to protect fair reports of certain public meetings, he also included in the proposed protection faithful reports of parliamentary debates at which strangers had been permitted to be present; and he and Lord Cranworth, who supported, and Lords Lyndhurst, Wensleydale, and Chelmsford, C., who opposed it, never for a moment doubted that without the protection of an act of parliament the publication of parliamentary debates containing libellous matter was actionable. (2) That there was not and ought not to be such a privilege accorded to the promiscuous publication of all that passes in the houses of parliament, is thus shewn by the opinion of those best qualified to form an opinion. And in addition it may be noticed that when Mr. Creevey, in 1813, brought forward his conviction as a breach of privilege, and sought to raise a debate upon it, Mr. Williams Wynn, in opposing, cited as the highest authority he could cite the statement of Mr. Fox made in 1788, against the existence of such a privilege. (3) The analogy between the reports of legal proceedings and of proceedings in parliament cannot be supported. In the first place the ground upon which the publication of proceedings in a court of justice is often supported, as by Patteson, J., in Stockdale v. Hansard (4), is that the courts are themselves open to the public, whereas it is only by a tacit abrogation of the standing orders that strangers are permitted to be present at the debates in either house. Secondly, it may well be that the public are interested in what passes in a court of justice; every one is interested in the due administration of justice which the publicity of reports tends to foster: but it by (1) 7 E. & B. 229; 26 L. J. (Q.B.) 104. (2) See Hansard's Parliamentary Debates, 3rd series, vol. cxlix., pp. 947— 982. (3) "He did not hold the opinion, that because members in the house may not only with propriety, but with strict regard to their duty, hold certain language and declare certain sentiments upon any topic under their consideration, the public prints were warranted in giving these to the world at large. (4) 9 Ad. & E. at p. 212. 1868 WASON v. WALTER. |