subsequent case, not relating directly to this point, but to the publication of proceedings in Parliament, Bayley, J., said, "It has been argued that the proceedings of courts of justice are open to publication. Against that, as an unqualified proposition, I enter my protest. Suppose 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 instances 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 endeavor 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 afterwards 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 publication was a transcript of the counsel's speech."(k) 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 showing 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 anything defamatory, seditious, blasphemous, or indecent and the rule was made absolute.(1) 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 *328] 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.(m) 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, 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 plaintiff was therefore entitled to judgment.(n) It is an established principle, upon which the privilege of publishing a report of any judicial proceedings is admitted to rest, that such report must be strictly con

publish a scandalous petition to the House of Lords, or a scandalous affidavit made in a court of justice.

(k) Rex v. Creevey, 1 M. & S. 281. In the same case Lord Ellenborough, C. J., said, "As to Curry v. Walter, [ante, note (g),] it is not necessary for the present purpose to discuss that case; whenever it becomes necessary, I shall say that the doctrine there laid down must be understood with very great limitations; and shall never fully assent to the unqualified terms attributed in the report of that case to Eyre, C. J."

(1) Rex v. Carlisle, 3 B. & A. 167 (5 E. C. L. R.).

(m) Lewis v. Walter, 4 B. & A. 605 (6 E. C. L. R.).

(n) Lewis v. Clement, 3 B. & A. 702 (5 E. C. L. R.). In this case the question was raised whether it be lawful to publish proceedings of a court of law containing matter defamatory of a person neither a party to the suit nor present at the time of the inquiry; but it became unnecessary to decide this point.

fined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatever, in addition to what forms strictly and properly the legal proceedings.(0) A report of a charge made against the plaintiff at the Mansion-house, added, "Mr. Hobler, the chief clerk, observed that it was exceedingly improper under any circumstances to obtain the signature of the complainant, a mere boy, to bills of exchange;" it was held that this was a substantive reflection on the character and conduct of the plaintiff, which was altogether unwarranted: it was not made in the course of any judicial proceeding by any one whose duty called upon him to make it; but was uttered by a person who, for this purpose, must be considered as an entire stranger. (p) If the report of what takes place in a court of justice contains only a fair account, the person who publishes it has only to prove that fact under the general issue, and he is entitled to entire impunity. It is not essential that every word of the evidence, of the speeches, and of what was said by the judge, should be inserted, if the report is substantially a fair and correct report of what took place in a court of justice.(q) The subsequent publication of a speech made by a counsel in the course of a cause containing observations injurious to the character of a party, attorney, or witness in the cause, is not lawful, because such publication is not required for the due administration of justice;(r) but no action will lie against a barrister for words spoken by him in a cause, which are *pertinent to the matter in issue.(s) And an attorney acting as an advocate has the same privilege. (t) And a party is at liberty [*329 to publish a history of a trial, viz., of the facts of the case, and of the law of the case as applied to those facts.(u)

Proceedings before magistrates, under the 11 & 12 Vict. c. 43, with respect to summary convictions and orders, in which, after both parties are heard, a final judgment is given, are strictly of a judicial nature, and the trial and the judgment may lawfully be made the subject of a printed report, if that report be impartial and correct; (v) and the like privilege extends to the publication of proceedings taking place publicly before a magistrate on the preliminary investigation of a charge of an indictable offence, terminating in the discharge of the party charged, although there were several hearings, and separate publications as to each hearing;() but it has not yet been decided that the publication of such preliminary inquiries is lawful where they end in the case being sent for trial.(x) On the contrary, the publication of preliminary examinations before a magistrate, taken ex parte, have been held not to come within the principle by which the fair reports of proceedings in courts of justice are privileged. Such publications 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.(y) And the Court of King's Bench has granted 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.(z) So the publication of proceedings before a commissioner of inquiry respecting corporations cannot be

(2) Per Tindal, C. J., Delegal v. Highley, 3 B. N. C. 950 (32 E. C. L. R.). (p) Delegal v. Highley, supra.

(7) Andrews v. Chapman, 3 C. & K. 286, Lord Campbell, C. J. See Smith v. Scott, 2 C. & K. 580 (61 E. C. L. R.); Hoare v. Silverlock, 9 C. B. 20 (67 E. C. L. R.).

See

(r) Per Bayley, J., Flint v. Pike, 4 B. & C. 473 (10 E. C. L. R); 6 D. & R. 528. also per Holroyd, J., Ibid, and per Tindal, C. J., Roberts v. Brown, 10 Bing. 519 (25 E. C. L. R.); see Saunders v. Mills, 6 Bing. 213 (19 E. C. L. R.); s. c., 3 M. & P. 520. (3) Hodgson v. Scarlett, 1 B. & Ald. 232. (t) Mackay v. Ford, 5. H. & N. 792.

(u) Per Bayley, J., Flint v. Pike, supra. (v) Lewis v. Levy, E. B. & E. 537 (96 E. C. L. R.). (w) Ibid. (x) Ibid.

(y) Rex v. Lee, 5 Esp. 123; Rex v. Fisher, 2 Camp. 563; Duncan v. Thwaites, 3 B. & C. 556 (10 E. C. L. R.); D. & R. 447; Delegal v. Highley, 3 B. N. C. 950 (32 E. C. L. R.); but see the remarks in Lewis v. Levy, supra. And still less can the defendant justify the publication of a matter which was not brought before the magistrate in his judicial character, or in the regular discharge of his magisterial functions: M Gregor v. Thwaites and Another, 3 B. & C. 24 (10 E. C. L. R.) ; 4 D. & R. 695.

(z) Rex v. Fleet, 1 Barn. & Ald. 379. See East v. Chapman, M. & M. 46 (22 E. C. L. R.) ; 2 C. & P. 570 (12 E. C. L. R.).

justified by showing that it is a true report of what occurred before the commissioner. (a)

So, a fair report in a newspaper of what takes place at a public meeting, if it contain matter defamatory of an individual, is not privileged. Therefore a fair report of what took place at a public meeting of the West Hartlepool Commissioners, acting under the powers of an Act of Parliament, and which contained injurious expressions concerning an individual, is not privileged. (b)

If a report made by a medical officer of health to a vestry board, in pursuance of the Metropolitan Local Management Act (18 & 19 Vict. c. 120) contains libellous matter, a newspaper proprietor is not justified in publishing it, though without comment; and it is doubtful whether, after publication of such a report by the vestry board, it is competent to others to re-publish it, with or without reasonable comment. (c)

*Though the publication of a proceeding in Parliament will, in general, *330] be considered as privileged and protected from being deemed libellous; (d) and the printing and delivering a petition to members of a committee of the House of Commons, being according to the order of proceedings of Parliament and their committees, has been held to be justifiable :(e) yet it may be doubted how far the circulation of a copy of a writing containing matter of an injurious tendency to the character of an individual, though published for the use of the members, is legitimate and exempted from prosecution. (f) 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.(g) And in a more recent case it was held, 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.(h) But 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.(i)

It has recently been decided in a case, which underwent the most profound consideration, that it is no defence in law to an action for publishing a libel, that the defamatory matter is part of a document which was, by order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the House, and which was afterwards, by orders of the House, printed and published by the defendant; and that the House of Commons had theretofore resolved, "that the power of publishing such of its reports, votes, and proceedings, as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially to the Commons' House of Parliament, as the representative portion of it."(k)

(a) Charlton v. Watton, 6 C. & P. 835 (25 E. C. L. R.).

(b) Davis v. Duncan, 7 E. & B. 229 (90 E. C. L. R.).

(c) Popham v. Pickburn, 7 H. & N. 891.

(d) Rex v. Wright, 8 T. R. 293. In this case a former case of Rex v. Williams, 2 Show. 471; Comb. 18, was animadverted upon by Lord Kenyon, C. J., and Grose, J., as having happened in the worst of times.

(e) Lake v. King, 1 Saund. 131.

(f) See the judgment of Lord Ellenborough, C. J., in Rex v. Creevey, 1 M. & S. 278. (g) Rex v. Lord Abingdon, 1 Esp. 226.

(h) Rex v. Creevey, 1 M. & S. 273.

(1) Per Lord Campbell, Davison v. Duncan, 7 E. & B. 229 (90 E. C. L. R.).

(k) Stockdale v. Hansard, 9 A. & E. 1 (36 E. C. L. R.) ; 2 P. & D. 1.

In consequence of this decision the 3 & 4 Vict. c. 9, was passed, which by sec. 1, reciting, "whereas 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 pub[*331 lished: And whereas obstructions or impediments to such publication have arisen, and hereafter may arise, by means of civil or criminal proceedings being taken against persons employed by or acting under the authority of the Houses of Parliament, or one of them, in the publication of such reports, papers, votes, or proceedings; by reason and for remedy whereof it is expedient that more speedy protection should be afforded to all persons acting under the authority aforesaid, and that all such civil or criminal proceedings should be summarily put an end to and determined in manner hereinafter mentioned:" enacts, "that it shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament, to bring before the court in which such proceeding shall have been or shall be so commenced or prosecuted, or before any judge of the same (if one of the superior courts at Westminster), first giving twenty-four hours' notice of his intention so to do to the prosecutor or plaintiff in such proceeding, a certificate under the hand of the Lord High Chancellor of Great Britain, or the Lord Keeper of the Great Seal, or of the Speaker of the House of Lords, for the time being, or of the clerk of the Parliaments, or of the Speaker of the House of Commons, or of the clerk of the same House, stating that the report, paper, votes, or proceedings, as the case may be, in respect whereof such civil or criminal proceeding shall have been commenced or prosecuted, was published by such person or persons, or by his, her, or their servant or servants, by order or under the authority of the House of Lords or of the House of Commons, as the case may be, together with an affidavit verifying such certificate; and such court or judge shall thereupon immediately stay such civil or criminal proceeding, and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined, and superseded by virtue of this Act."(1)

Sec. 2. "In case of any civil or criminal proceeding hereafter to be commenced or prosecuted for or on account or in respect of the publication of any copy of such report, paper, votes, or proceedings, it shall be lawful for the defendant or defendants at any stage of the proceedings to lay before the court or judge such report, paper, votes, or proceedings, and such copy, with an affidavit verifying such report, paper, votes, or proceedings, and the correctness of such copy, and the court or judge shall immediately stay such civil or criminal proceeding, and the same, and every writ of process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined, and superseded by virtue of this Act." Sec. 3. "It shall be lawful in any civil or criminal proceeding to be commenced or prosecuted for printing any extract from or *an abstract of such report, [*332 paper, votes, or proceedings, to give in evidence under the general issue such report, paper, votes, or proceedings, and to show that such extract or abstract was published bona fide and without malice; and if such shall be the opinion of the jury a verdict of not guilty shall be entered for the defendant or defendants." Sec. 4. "Nothing herein contained shall be deemed or taken, or held or construed, directly or indirectly, by implication or otherwise, to affect the privileges of Parliament in any manner whatsoever."

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:-1. Against the Christian religion. 2. Against morality. 3. Against the constitution. 4. Against the King. 5. Against the (7) The Act is imperative upon the Court to stay proceedings: Stockdale v. Hansard, 11 A. & E. 297 (39 E. C. L. R.); 3 P. & D. 346.

two Houses of Parliament. 6. Against the Government. 7. Against the magis trates and the administration of justice. 8. Against private individuals. And 9, Against foreigners of distinction.

1. It has heretofore been observed, (m) that blaspheming God, or turning the doctrines of the Christian religion into contempt and ridicule, is an indictable offence. At common law, all blasphemies 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.(n)

Some provisions have also been made upon this subject by statutes. The 1 Edw. 6, c. 1,(9) enacts, that persons reviling the Sacrament of the Lord's Supper, by contemptuous words or otherwise, shall suffer imprisonment. The 1 Eliz. c. 2,(p) enacts, that if any minister shall speak anything in derogation of the Book of Common Prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for 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 anything 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. The 1 Will. 3, c. 18, s. 17, enacted, *333] that, *whosoever 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 now repealed by 53 Geo. 3, c. 160: but while it was in existence it was considered as operating to deprive the offender of the benefit therein mentioned, leaving the punishment of the offence as for a misdemeanor at common law.(q) The 9 & 10 Will. 3, c. 32, enacted, that if any person, educated in or having made profession of the Christian religion, should, by writing, printing, teaching or advised speaking, deny any one of the Persons in the Holy Trinity to be God,(r) or should assert or maintain there are more gods than one, or should deny the Christian religion to be true, or the Holy Scriptures to be of divine authority, he should upon the first offence be rendered incapable to hold any office or place of trust; and for the second be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and should suffer three years' imprisonment without bail.(s) A person offending under this statute was held to be also indictable at common law.(t) And where a motion was made in arrest of judgment on an information for a blasphemous libel, on the ground that this statute had put an end to the common law offence: the Court were clear that it had not, considering that the provisions of the statute were cumulative.(u)

Upon the trial of an information against the defendant for uttering expressions grossly blasphemous, Hale, C. J., observed, that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws,

(m) Ante, p. 322.

(n) See ante, p. 92, and the cases collected in 1 Hawk. P. C. c. 5; Gathercole's case, 2

Lewin 287.

(0) Repealed by 1 Mary, c. 2, and revived by 1 Eliz. c. 1.

(P) Partly repealed by the 7 & 8 Vict. c. 102, and 9 & 10 Vict. c. 59, but not so as to affect the provisions here mentioned.

(g) By Lord Kenyon in Rex v. Williams, 1797; Holt on Libel 66.

(r) Repealed by the 53 Geo. 3, c. 160, s. 2, "so far as the same relates to persons denying as therein mentioned respecting the Holy Trinity."

(s) But the delinquent publicly renouncing his error in open court, within four months after the first conviction, is to be discharged for that once from all disabilities,

(t) Barnard 162; 2 Str. 834; Fitzgib. 64; Rex v. Williams, 1797; Rex v. Caton, 1812. (u) Rex v. Carlisle, 3 B. & A. 161 (5 E. C. L. R.).