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If a libel contain matters imputing to another a crime capable of being tried, evidence of the truth of those imputations is not admissible. (t) But in one case where evidence of the falsehood of the libel was adduced by the prosecutor as necessary to support the charge, and no objection was made to it, Lord Tenterden, C. J., although not free from doubts on his own mind, yet adverting to the particular nature of the libel, which was little more than a narrative of certain facts supposed to have taken place in one of the West India Islands, did not think himself warranted in interposing under the very peculiar circumstances of that case: and, having received evidence of the falsehood, he would have received evidence of the truth, if any such had been offered, on the part of the defendant. (u)

A party will not be excused by shewing that the libel with which Nor that it he is charged was copied from some other

work, even though he may from some have stated it to be merely a copy, and disclosed the name of the other work. original author at the time of its publication. Thus, where to a declaration for a libel the defendant pleaded that he had the libellous statement from another person, and at the time of publishing the libel he stated that the libel had been published to him by such other person, it was held that the plea was bad; for wrong is not to be justified, or even excused, by wrong: if a man receives a letter with authority from the author to publish it, the person receiving it will not be justified, if it contains libellous matter, in inserting it in a newspaper: no authority from a third person will defend a man against an action brought by a person who has suffered from an unlawful act. If the receiver of a letter publish it without authority, he is, from his own motion, the wilful circulator of slander. (x) So it is no defence to an action for oral slander for the defendant to show that he heard the slander from another, and named the person at the time, unless he also shew that he believed it to be true, and uttered the slander on a justifiable occasion. (y).

But there are some circumstances which will protect a publica- Petition to the tion from being deemed libellous. A petition to the King to be King. relieved from doing what the King has directed the party to do, if bona fide and in respectful terms, is no libel, though it call in question the legality of the King's direction. James II. published a declaration of liberty of conscience and worship to all his subjects, dispensing with the oaths and tests prescribed by statutes 25 & 30 Car. II., and directed that it should be read two days in every church and chapel in the realm, and that the bishops should distribute it in their dioceses that it might be so read. The Archbishop of Canterbury and six bishops presented a petition to the the charge imputed to him. This rule, but if false, it is from beginning to end however, may be dispensed with if the calumnious, and may no doubt be the subperson libelled resides abroad, or if the ject of a criminal prosecution. Possibly, imputations of the libel are general and therefore, in such a case evidence of the indefinite, or if it is a charge against the truth of such a statement by the production prosecutor for language which he has held of the record, might afford an answer to a in parliament. 4 Bla. Com. 151, note (6). prosecution for libel.” Ibid. per Bailey, J., Dougl. 271, 372.

p. 147. Sed tamen quære. C. S. G. () Rex 0. Burdett, 4 B. & Ald. 95. (u) Case mentioned by Lord Tenterden, “In some cases, indeed, it is possible that C.J., in Rex v. Burdett, 4 B. & Ald. 182, the falsehood may be of the very essence of but see Rex v. Grant, post. the libel. As for instance, suppose a paper

(r) De Crespigny v. Wellesley, 5 Bing. were to state that A. was on a given day 392.2 M. & P. 695. tried at a given place, and convicted of (y) M.Pherson v. Daniels, 10 B. & C. perjury; if that be true it may be no libel, 263

King praying that he would not insist upon their distributing and reading it, principally because it was founded on such a dispensing power as had often been declared illegal in parliament, and that they could not in prudence, honour, or conscience, so far make themselves parties to it as to distribute and publish it. This petition was treated as a libel: they were taken up for it; and, not choosing to give bail, were sent to the Tower, and tried. The publication was proved; and Wright, C. J., and Allibone, J., thought it a libel: but Holloway and Powell, Js., thought otherwise, 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. (2)

It has been resolved that no false or scandalous matter contained in a petition to a committee of parliament or in articles of the peace exhibited to justices of peace, or in any other proceeding in a regular course of justice, will make the complaint amount 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. (a) 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. (6) 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 inquiries with that freedom and readiness which the public good requires. (c) Where an action was brought against the president of a military court of inquiry 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. (d) And where a courtmartial, after stating in their sentence the acquittal of an officer

Petitions to parliament, and other au

thorized pro

ceedings.

(2) Case of the Seven Bishops, 12 St. he cannot see any reason why such a Tri. 183 ; and see post, as to communica- mockery of public justice should not rather tions made bona fide, and in the proper aggravate the offence than make it cease to course of proceeding.

be one. Upon this point Mr. Starkie, (a) | Hawk. P. C. c. 73, s. 8. Bac. after referring to the several authorities, Abr. tit. Libel (A) 4. And see the judg- says, that it may be collected generally ment of Holroyd, J., in Hodgson v. Scarlett, that no action can be maintained for any 1 B. & A. 241. It is holden by some that thing said or otherwise published in the no want of jurisdiction in the court to course of a judicial proceeding, whether which the complaint shall be exhibited will criminal or civil ; though for a malicious make it a libel; because the mistake of and groundless prosecution, an action, and the court is not imputable to the party, but perhaps an indictment, may be supported, to his counsel ; but Hawkins says (1 Hawk. founded on the whole proceeding. 1 Starkie P. C. c. 73, s. 8), that if it manifestly on Libel, 254, 2 Ed. appears that a prosecution is entirely false, (6) Astley v. Younge, 2 Burr. 817. malicious, and groundless, and commenced, (c) i Hawk. P. C. c. 73, s. 8. Bac. not with a design to go through with it, Abr. tit. Libel (A) 4. but only to expose the defendant's charac- (d) Horne 0. Lord F. C. Bentinck, 4 ter under the 'shew of a legal proceeding, Moore, 563.

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 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-martial 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 ?" (e)

The members of the two houses of parliament, by reason of their And speeches privilege, are not answerable at law for any personal reflections on of members of individuals contained in speeches in their respective houses ; for perditepeat are 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. (f)

Thus the actual proceedings in courts of justice and in parliament are exempted from being deemed libellous : it becomes important to inquire 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.

It has always been held that a publication of the proceedings in How far the a court of justice will not be protected unless it be a true and publication of honest statement of those proceedings. (g) But provided it were courts of justice of that character, the doctrine seems at one time to have been is allowable. that it might be made to the full extent of stating what had actually taken place. (h) More recently, however, it has been said that it must not be taken for granted that the publication of every matter which passes in a court of justice, however truly represented, is, under all circumstances and with whatever motive published, justifiable; and that such doctrine must be taken with grains of allowance. (i) And Lord Ellenborough, C. J., said, “ It often happens that circumstances necessary for the sake of public justice to be disclosed by a witness in a judicial inquiry are very distressing to the feelings of individuals on whom they reflect: and if such circumstances were afterwards wantonly published, I should hesitate to say that such unnecessary publication was not libellous merely because the matter had been given in evidence in a court of justice.” (j) In a 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.

(e) Jekyll v. Sir John Moore, 2 N. R. 341.

(f) Holt on Libel, 190. 1 Starkie on Libel, 239. Rex v. Lord Abingdon, 1 Esp. Rep. 226. By 4 Hen. 8, c. 8,

members of parliament are protected from all charges against them for anything said in either bouse ; and this is further declared in the Bill of Rights, 1 Wm. & M. st. 2, c. 2.

(g) Waterfield v. the Bishop of Chichester, 2 Mod. 118. Rex v. Wright, 8 T. Rep. 297, 298, per Lawrence, J., Stiles v.

VOL. I.

Nokes, 7 East, 493.

(h) Curry v. Walter, 1 Bos. & Pull. 523, referred to by Lawrence, J., in Rex v. Wright, 8 T. R. 298.

(i) By Lord Ellenborough, C. J., and Grose, J., in Stiles v. Nokes, 7 East, 503.

(;) Id. ibid. And see Rex v. Salisbury, 1 Ld. Raym. 341, that it is indictable to publish a scandalous petition to the House of Lords, or a scandalous affidavit made in a court of justice.

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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 endeavour 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 recognised 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 aad 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 anything defama

tory, seditious, blasphemous, or indecent: and the rule was made The whole absolute. (1)

And where it is allowable to publish what passes case, and not nierely the in a court of justice, the party must publish the whole case, and conclusion not merely state the conclusion which he himself draws from the from it, must be published,

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. (m)

And the party making the publication will not be justified, unless he confines and nothing

himself to what actually passed in court. In a case where an but what

action was brought for a libel concerning the plaintiff in his proactually passes fession 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

(k) Rex v. Creevey, 1 M. & S. 281. In with very great limitations; and shall never the same case Lord Ellenborough, C. J., fully assent to the unqualified terms atsaid, “ As to Curry r. Walter, (ante, note tributed in the report of that case to Eyre, (h),] it is not necessary for the present pur- C. J.” pose to discuss that case; whenever it (1) Rex v Carlisle, 3 B. & A. 167. becomes necessary, I shall say that the (m) Lewis v. Walter, 4 B. & A. 605. doctrine there laid down must be understood

counsel.

(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 report the privilege of publishing a report of any judicial proceedings is ad- must contain mitted to rest, that such report must be strictly confined to the no defamatory 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. (o) 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) The subsequent pub- Speech of lication 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 ; (9) but a party is at liberty 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. (r)

It should be observed also, that the publication of preliminary Publication of examinations before a magistrate, taken ex parte, will not come

er parte exawithin the principle by which the fair reports of proceedings in fore a magiscourts of justice have been held to be privileged. Such publications trate may be 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. (s) 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. (t). So the publication of proceedings before a commissioner of inquiry respecting corporations, cannot be justified by showing that it is a true report of what occurred before the commissioner. (u)

Though the publication of a proceeding in parliament will, in How far the general, be considered as privileged and protected from being publications in

minations be

(n) Lewis v. Clement, 3 B. & A. 702. 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.

(0) Per Tindal, C. J. Delegal v. Highley, 3 B. N. C. 950,

(o) Delegal v. Highley, supra.

(9) Per Bayley, J. Flint v. Pike, 4 B. &
C. 473. 6 D. & R. 528. See also per
Holroyd, J., ibid, and per Tindal, C. J.
Roberts 0. Brown, 10 Bing. 519 ; sec
Saunders o. Mills, 6 Bing. 213. S. C.
M. & P 520.

(r) Per Bayley, J. Flint v. Pike, supra.

(s) Rex v. Lee and another, 5 Esp. 123. Rex v. Fisher and others, 2 Campb. 563. Duncan v. Thwaites and others, 3 B. & C. 556. 5 D. & R. 447. Delegal v. Highley, 3 B. N. C. 950. 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. 4 D. & R. 645.

(t) Rex v. Fleet, 1 Barn. & Ald. 379. See East v. Chapman, M. & M. 46.2 C. & P. 570.

(n) Charlton v. Watton, 6 C. & P. 835.

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