is, that each must be credited with a sense of justice, and to seek a check upon either is to revert to the apophthegmquis custodiet leges? 1 During the controversy that arose out of the case of Stockdale, which had the effect of making Parliament and the courts of law take up opposite sides, and to act as if they were preparing for extremities, statesmen as well as lawyers were divided as to the correct view. One party urged the committal of the judges, and that nothing short of that course could terminate the issue. The other party confidently predicted disgrace and loss of popularity to the House of Commons, if any such course were resorted to. The subject was thoroughly discussed, and after many fluctuations, the happy thought at last was suggested and adopted of passing a statute, which had the effect of putting an end to the apparent conflict.2

1 See ante p. 108. See also as to mode of commitment, 2 Pat. Com. (Pers.) 251. SIR R. PEEL said, if extremities were resorted to, the military and the posse comitatus might be on opposite sides. -67 Parl. Deb. (3) 1012.

2 "There was no case so extreme, so absurd, so improbable, that might not be imagined for the purpose of affording grounds for taking away any power vested in the House of Commons, the House of Lords, or the Crown. The Crown had the clear right of declaring war against all the powers of Europe to-morrow if it thought fit; but would any one make this very improbable contingency a ground for demanding, that the Crown should be deprived of its right to declare war? There are no means of the House of Commons maintaining its authority, its dignity, its independence, except reserving to itself entire and undiminished the power of declaring, what are its direct constitutional privileges, and by taking care that such a declaration on its part shall be held final and sufficient throughout the empire."-Lord J. Russell, H. C. 48 Parl. Deb. (3) 339.

LORD CAMDEN said "the rights of the House of Commons are original and self-created-they are paramount to the jurisdiction of courts of law, and are above the reach of prohibitions, injunctions, or error."-Entinck Carrington, 19 St. Tr. 1030.

PEMBERTON in course of the debates maintained, that the courts of law were the superior power in such a conflict. And SUGDEN urged, that the House of Cominons could not commit the judges, owing to the disgrace such a step would involve.—51 Parl. Deb. (3) 50.

The division of opinion between the statesmen and lawyers then in Parliament seemed to be as follows. On the side of Parliament: Peel, Lord J. Russell, Palmerston, Lord Stanley, Lord Howick, Campbell, Rolfe, Wilde, Follett, Lushington, O'Connell, Hume. In favour of the courts of law: Pemberton, Sugden, Goulburn, Gladstone, Disraeli, Brougham. On some of the minor incidents one or two of these occasionally changed sides.

Conflict of Courts of Law and Parliament ended by a Statute.-The controversy which ended in this statute was happily deemed a triumph by both the contending parties. It was even in the view of the upholders of Parliamentary privilege necessary if only to give a better remedy, seeing that the House of Commons could only commit during the sitting of Parliament, which was too often an inadequate punishment. In future when the authorised printer of Parliament is proceeded against, it is sufficient, under this statute, for him to give notice to the court or a judge of his authority, and to verify such authority by affidavit, whereupon the proceeding must be finally stayed and suspended.1 Moreover the same statute entitled strangers, who publish copies of such Parliamentary papers, at any stage to make an affidavit verifying the paper and the correctness of the copy, and the court then is bound to stay all civil and criminal proceedings. And the statute also protected strangers who published extracts or abstracts of the same papers to this extent, that when proceeded against they have only to show, that these were published bonâ fide and without malice, in which event, if the jury agree, the court is bound to enter a verdict of not guilty.3

2

Excuse of libel in publishing reports of legal proceedings. The right of any person to publish reports of the proceedings of courts of justice has been seen to be well established; from which also it follows, that when a fair report of a trial in any court of justice is published, such publication is protected from any proceeding, though defamatory. The conspicuous condition of this exemption however is, that the report shall be a fair report. This again implies, that the reporter has no business to state his own or any other person's impression as to the effect of the evidence of a witness, or of the whole evidence, for that is the sole business of the court. Hence when a report stated, "that the jury under the directions of the judge were obliged to give a verdict of acquittal to the great regret of a crowded court, on whom the evidence made a strong impression of the prisoner's guilt," this was deemed an outrageous overstepping of the reporter's function; and 3 Ibid. § 3.

1 3 & 4 Vic. c. 9, § 1.

2 Ibid. § 2

however just and fair such comment may be, it is held certainly libellous, when the reporter thus arrogates to himself the functions of both judge and jury.1 On the other hand, the reporter may make mistakes without any intention to do so. In such a case the main question always is, whether he exercised reasonable skill and care in the work of reporting, for his vocation cannot be carried on without the usual admixture of error incident to all employments. Honesty of intention and the absence of anything like personal spite and a ready desire to rectify the error are, it is true, not a sufficient defence, for these cannot justify what has actually gone forth as a libellous statement. It is for the jury however always to say, whether the whole taken together is or is not libellous. The jury have also necessarily to determine, whether it is an exaggerated account intermixed with comments3; and as already stated, though the reporter, like the rest of the community is bound to know what is or is not libellous, and therefore is personally liable, yet in practice the publisher or proprietor of the newspaper, being also liable, is usually selected as the party responsible.

Excuse of libel in publishing reports of public meetings. The same rule, which exists as to courts of law and as to Parliament, does not however extend to the proceedings of public meetings or rather meetings of persons who discuss topics in which great numbers are interested, and who for the time associate themselves to consider such topics at the same time and place. The following distinctions obviously arise in such a comparison. In courts of law and in Parliament the speakers are men of skill, accustomed to confine their attention to things relevant and to know how to avoid the irrelevant; and the judges and the Speaker of the House of Commons and the Peers are vigilant to repress all things irrelevant, in the course of the discussions. But in public meetings a chairman is taken from the crowd, having often no special knowledge, no special skill in adhering to relevant

239;

2 Stockdale v Tarte, 4 A. Chalmers v Payne, 3 Stiles v Nokes, Andrews v Chapman,

1 Lewis v Walter, 4 B. & Ald. 605. & E. 1016; Blake v Stevens, 4 F. & F. 5 Tyr. 766; Dicas v Lawson, 5 Tyr. 769. 7 East, 493; Lewis v Clement, 3 B. & Ald. 710; 3 C. & K. 286.

topics, and above all, having by virtue of his position as chairman little or no control over the individuals assembled, and no power of enforcing close attention to the matter in hand. There is little or no self-control as to what is said on the part of each individual singly, or on the part of all collectively; the dignity which sustains habitually elevated functions fails to descend on men who are often biassed by ignorance, passion, suspicion, and a self-delusive zeal. Hence the irrelevant materials often outnumber the relevant, and private character and reputation are the prey of random attacks and of every gust of popular delusion. The discipline of those accustomed to think and reason closely imparts no safeguards against these attacks. And hence it follows, that while the speaker at a public meeting may often escape all liability, owing to the privileged occasions on which he speaks, yet he who puts the words in print and publishes them becomes as much liable as if he originated the whole.1 Thus at a meeting of local improvement commissioners dealing with ecclesiastical property and the conduct of a chaplain in a cemetery, one of the speakers in the heat of his complaints charged the chaplain with having obtained a bishop's license by misrepresentation. This was published in a newspaper, and being libellous, the court held, that there was no excuse attaching to the publication, and no defence could be set up by the newspaper proprietor.2 In like manner a meeting of inhabitants to petition Parliament does not furnish any privilege to publish what was there uttered.3 And no

privilege protects the publisher of official papers of local self-governing bodies, even though these are ordered by statute to be kept and sold to all comers, especially if he anticipates the statutory publication-as for example when reports of medical officers to vestries or sanitary authorities are published in a newspaper before the time when the paper would have been issued officially. The reason is, that before the paper is officially published it may still be corrected. After the paper however has been issued under statutory authority, the privilege protects all who thereafter republish it, for it is then a public document. 1 194 Parl. Deb. (3) 1600. 2 Davison v Duncan, 7 E. & B. 231. 3 Hearne v Stowell, 12 A. & E. 719. 4 Pophamn v Pickburn, 7 H. & N. 891.

And it is not enough, that a meeting is of public interest and as such a fair matter of comment in a newspaper, as for example a meeting of poor law guardians. For if at such meeting the character of some individual is attacked, and a report of such attack is published in a newspaper, however accurate it may be, there is nothing to exempt the publisher of the newspaper from liability for its libellous character.1

Slandering from the pulpit.-The question has even been raised, whether a clergyman in preaching or discharging his duties is in any way protected more than his neighbours. The proper function of a priest, or minister of religion of any sect, is to deal with vice or misconduct in an impersonal manner, and therefore he has no privilege while in the pulpit or out of it and is amenable to an action, if he slander or libel any individual in the course of his sermon, address, or circular. He may visit and remonstrate privately with any of his flock, but he exceeds his duty when he takes on himself to put the finger of scorn and denunciation on any individual. He runs the same risk as others of being liable to an action, if he injure private reputation. And where in one case he denounced by printed circular a parishioner for setting up a school without his leave and warned his flock against sending their children to it, an action was rightly brought. And where in his sermon he once professed to read a pretended sentence of excommunication against a parishioner and refused to administer the sacrament till he left the church, an action was held rightly brought by such parishioner. And yet the charge of a bishop to his clergy has been deemed a privileged communication, especially where he replies to attacks which had been made upon some of his proceedings; it is privileged in the sense, that malice will be primâ facie rebutted in such a case.1

1 Purcell v Sowler, 2 C. P. Div. 215. 9 Exch. 625.

2 Gilpin v Fowler,

3 Barnabas v Traunter, 1 Vin. Abr. 396. 4 Laughton v Sodor, L. R., 4 Priv. C. 495.