urged on the Learned Judge who tried the case, and now meant to enforce on the Court for their consideration.

LORD ELLENBOROUGH asked, was the defendant in Court?

MR. BROUGHAM said, he was.-The offence charged against the defendant was a supposed libel in a publication, purporting to be a speech, or report of a speech, made by the defendant in the Commons House of Parliament, of which he was a Member. An indictment having been preferred against him for this offence, at the Quarter Sessions, the same was removed by CERTIORARI into this Court, and was afterwards sent down to be tried at the last Assizes for Lancaster. At the trial he had moved to have it put off, on account of the absence of a material witness, Mr. Bennet, a Member of the House of Commons, who was present when the speech supposed to contain libellous matter was read, and who would have proved that the publication in question contained the substance of that speech. He was saved the necessity of urging this point, however, his Learned Friend, Mr. Park, the Attorney-General for the Duchy of Lancaster, having agreed to admit that the publication contained a fair report of the substance of the speech made by the defendant in Parliament. This point being settled the trial proceeded, when Mr. Smith, Printer of the Liverpool Mercury, proved the publication, and that he had received it in a letter enclosed in an envelope from the defendant, desiring him to publish it, the publication in question being part of a speech which the defendant had delivered in the House of Commons, on the State of the Trade of Liverpool, and on the East India Company's Charter. On his crossexamination, this witness admitted, that, though he had lost the envelope, he recollected its contents;-that the defendant then complained that he had seen mistatements of his speech in that and in other papers, and was anxious to give the enclosed as a more correct account of what he had actually said. This was all the evidence of any importance adduced on the trial; and, on its being closed, he, (Mr. Brougham) submitted to the Learned Judge, who tried the indictment, (Mr. Justice Le Blanc,) that enough had been proved to go to the Jury, inasmuch as it was not libellous matter: and, 2dly, whatever was the nature of the publication, that enough had been proved to shew that it was a justifiable publication under the circumstances of the case. The Learned Judge was of a contrary opinion,

relying on the case of the King v. Lord Abingdon. He (Mr. Brougham), on the other hand, relied on the case of the King v. Wright, which occurred about three of four years afterwards. That, the Learned Judge observed, was an application for a criminal information, and that a great distinction was held by the Court between criminal informations and common indictments, the former being granted only as an extraordinary remedy. In answer to this, he (Mr. Brougham) remarked, that the ground stated by the Learned Judge was not that on which the information in that case had been refused, but, that it had been refused on its merits, all their Lordships having stated that there was no ground to send the matter for trial, it not being an offence punishable at all. It was not, they all agreed, a matter of judicial inquiry, inasmuch as it was a true account of what happened in Parliament. The Learned Judge then distinguished from a case like the present, the cases of characters given of servants, on the ground, that there confidence was reposed. He (Mr. Brougham) contended that that distinction could not apply, as that was only one of the modes or means, and that there were others which equally afforded a justification, in support of which doctrine he referred to the case of Weatherston and Hawkins, First Term Reports, where Lord Mansfield and Mr. Justice Buller laid it down that the occasion on which words were used might amount to a justification of these words; and that, to every libel there might be a justification from the occasion.

MR. JUSTICE BAILEY said, there the party was not a volunteer, but owed it to the public.

his

MR. BROUGHAM said, he put it on this principle that there was nothing in the occasion on which the speech was made which implied malice. He (Mr. Brougham), objections being over-ruled, then went to the Jury; and the Learned Judge, in summing up, repeated in substance, what he had already done, desiring the Jury first to be satisfied as to the fact of publication, and then to say if it was not a libel, or publication of a defamatory tendency. The Learned Judge, however, did not afterwards leave the manner of the publication entirely out of consideration. Jury, that though a Member of Parliament could not be called to account for what he spoke in the Houses of Parliament, yet, when the speech appeared in the Papers, it became a question whether it was mali

He informed the

cious or not. As to the point urged on behalf of the defendant, that he did not even know the party supposing himself aggrieved, that was of little consequence, the only fact for the consideration of the Jury was, if the publication was libellous. In his Lordship's opinion it was defamatory, and the law inferred malice from the mischievous tendency of the publication. The Jury accordingly found the Defendant Guilty.

MR. BROUGHAM, however, now contended, that this was a publication made in such circumstances as to prevent even the possibility of inferring malice. The defendant was a Member of Parliament, and as such not responsible for what he said in the House of which he was a Member. He was the representative, not of the body by whom he was sent into Parliament alone, but of the whole community: he not only owed it to them to account for his conduct in Parliament, but it was his incumbent duty so to do: and, if that duty could be rendered more incumbent, in any one instance than in another, it must be in this very instance which had occurred on the present occasion, namely, where his conduct in Parliament had been misrepresented; in which case it became his duty to justify himself, and to set his conduct right in the eyes of the community. He should proceed, however, in the first place, to consider the case of the King and Lord Abingdon, as the Learned Judge who tried the case had made it the ground for over-ruling the preliminary objection taken on the trial. It appeared, in that case, that Lord Abingdon having employed Mr. Salmon as his attorney, took occasion in the course of introducing into Parliament a Bill to correct improper practices in Attorneys, to introduce a string of defamatory matter against Mr. Salmon; and that he afterwards had the same defamatory matter published at his own expense in different newspapers. When the case came to be tried his Lordship appeared in Court himself without any Counsel, the information having also been granted without opposition. Lord Kenyon in charging the Jury, in that case, observed, that a Member of Parliament had a right to make speeches in Parliament, without being subject to any control; yet, that he was not to make any such speech the vehicle of slander. In this doctrine he, (Mr. B.) perfectly agreed.

MR. JUSTICE BAILEY asked, then was he to understand that the present publication was not libellous ?

MR. BROUGHAM said, the speech had not been made the vehicle of slander.

MR. JUSTICE BAILEY observed, if it conveyed reflections agains: the character of the prosecutor it had been made the vehicle of slander.

MR. BROUGHAM contended, if the defendant had an interest in publishing the paper in question, for other purposes, it could not be said to be the vehicle of slander against the prosecutor, though he was incidentally defamed in it, or his character attacked. If the defendant had published the speech in question for other purposes, or with other views, he was not liable for what might arise incidentally from the publication. Lord Kenyon also there laid it down that the mind must be in fault. Here there were no circumstances that went to infer malice. A few years after this case: of Lord Abingdon's came the case of the King v. Wright. A Criminal Information was there moved for on the part of Mr. John Horne Tooke, against a Mr. Wright, a bookseller, for publishing a Report of a Committee of the House of Commons, attributing to Mr. Horne Tooke charges of a treasonable or seditious nature, after he had been tried and acquitted of high treason. The Rule was granted in the first instance, and was afterwards very fully argued. It was not denied that the publication contained an accurate copy of the Report of the Committee of the House of Commons; and Lord Kenyon was there for discharging the Rule, on the ground that the publication was an accurate Report of what had passed in Parliament. The case would be found in Eighth Term Reports, p. 206; and Lord Kenyon was there made to lay it down that it would be impossible for the Court to admit that any proceeding in either of the two Houses of Parliament could be of a libellous nature. Mr. Justice Grose concurred generally in the same opinion; and Mr. Justice Lawrence referred to other cases, and entered into the matter more at large. He put the proceedings in Parlia ment, and in the Courts of Law on the same footing. He referred to the case of Currie and Walter, 1st. Bosanquet and Puller, p. 525, in which it was held that an accurate report of a proceeding at law was not a libel, but, on the contrary, was of advantage to the public, and to the ends of justice. Such, also, that Learned Judge conceived was the case with an accurate report of a proceeding in Parliament. Such publication was of advantage to the public, and even to the Legislative Bodies, and they would be deprived of that advantage if publications of their proceedings were to be prevented. The Learned Counsel, as

ceived, must have had in view the judicial character o. the House, when he expressed himself as he did in the case of the King v. Wright. It was clearly pointed out in Coke, in his first Institute, where he says, "Parliament is the highest and most honourable and absolute Court of Justice in England."- "It is called Parliament because every Member of that Court should sincerely and discreetly purier la ment, for the general good of the Common Wealth ;"

entertained by his Lordship on this subject, in the case of Burdett v. Abbott. It was on that ground that the House had the power of commitment. He begged here to be allowed to state, that there were 30 or 40 Resolutions of the House of Commons against strangers publishing debates, and not one Resolution on that subject relating to Members, or in which they are censured for so doing. The case of Wright was exactly against those 30 or 40 Resolutions, the Reports which he was prosecute. for publishing, have only been ordered to be printed for the use of the Members.

LORD ELLENBOROUGH said, he understood all Parliamentary papers were ordered to be printed for the use of the Members; none of them for the information of the community.

he had taken the liberty to do on the trial, must now again submit that it was impossible to distinguish the case now alluded to from the present. The one publication was justifiable because it had taken place in Parliament, and because it was accurate and true. For the same reasons, he submitted, so was the other. In these respects both publications were alike. What was the proceeding in Wright's case? It was an accurate publication of a Report of a Committee of the House of Commons. What—And such must also have been the view was the present proceeding? It was a speech made by a Member of the House of Commons; in a House duly constituted; made by him in discharge of his Parliamentary duty; and to which the House were bound to listen. The act consisted in the Member's making the speech, and in the House listening to it. Here it did not happen to be either a Report or a Petition which was laid before the House, and which they might have disposed of as they thought proper; but it was a statement made by a Member in the course of observations made by him in discharge of his Parliamentary duty, he having an incontestible right to make them. The House heard what he had to say. The proceeding was final, and was determined, after the Member, in discharge of his duty, had made the speech, and the House had listened to it. If the House had so inclined, they might have dealt even penally with him for making the speech. They might have called him to order; they might have stopped him; and, if that had not been enough, they might have committed him for having so spoken. In that "highest, most honourable and absolute Court of Justice," he might have been committed for exceeding his duty, as a Counsel might in this Court. As in the Court of Common Pleas, in the case of Currie and Walter, and in this Court in the case of the King and Wright; so, in the House of Commons, if the Member had abused his privilege of speech, and made it a vehicle for abuse and slander, as in Lord Abingdon's case, it would, to use the language of Lord Ellenborough in the case of Burdett v. Abbott, not be decent to suppose that the House would suffer its privileges to be abused with impunity. To argue that the House would suffer a man to be defamed in a speech to which they listened, without censure or disapprobation, would be to suppose that the House itself would become a party to such abuse. Mr. Justice Lawrence, the Learned Counsel con

re

The

MR. BROUGHAM agreed that this was so; but Mr. Wright had not published the port in question for the accommodation of the Members, but of the Public. question was, whether he was at all protected in publishing it; and on that question all those 30 or 40 resolutions against strangers might have been thrown in his teeth; but the decision went to this, that the contempt could only be taken cognizance of in Parliament, and punished there. He farther submitted, that there was here enough in the occasion of making the publication to justify it, and to have warranted the Learned Judge in sending it more strongly to the Jury, as rebutting and excluding the presumption of malice. The present was of the same description with the case of Delaney and Jones, where a public advertisement having been inserted, charging a person with suspicion of the crime of bigamy, it was held to be a justification that the defendant had an interest in making the inquiry. Here the publication was not made with a view to investigation, but still on an occasion equally capable of having good faith assigned as the cause of it, namely, that of explaining the defendant's conduct to his constituents.

LORD ELLENBOROUGH said, it would not bear an argument, that with a view to stand well with his constituents, a Member of Parliament might publish what he pleased. That was an innovation on the law of the land, which, he hoped, would never be tolerated.

MR. BROUGHAM said, that was not his argument, which only went to this, that a Member of the House of Commons might publish what he spoke in that House. Again referring to the case of the King and Wright, he submitted that the defendant was entitled to a new trial in this case.

print their speeches. There was not here the least colour for granting a new trial, and it would be wrong to excite doubts where none remained.

MR. JUSTICE GROSE was of the same opinion; he was not disposed to find fault with the direction of the Judge, or with what the Jury had done.

MR. JUSTICE BAILEY should have been happy to have the case further gone into, if there was any doubt on the subject, which he was decidedly of opinion there. was not. A Member had a right to speak boldly and freely what he chose in the LORD ELLENBOROUGH saw no foundation Houses of Parliament, without being subwhatever for granting the present Rule. If ject to be called to account; but he was any doubt had belonged to the case, his not entitled, out of his place in Parliament, Lordship should have been of opinion that more than any other man, to state what it ought to be fully discussed, in order to was injurious to any individual. Such was its being finally put to rest. But as there even laid down in the case of Lake and was nothing in the argument which had King, in which it was held to be justifiable been addressed to them, except in the ex- only because it was a proceeding in Parlia travagant construction given to the opinion ment. But it had never been pretended. of Lord Kenyon, that that Court could not that it was in the course of Parliamentary admit a proceeding in either House of Par-proceeding for a Member to let himself liament to be a libel, he was of opinion that the Rule ought at once to be refused. The present, however, did not range itself under the head of a proceeding in Parliament. But if a Member chose to state in the House of Commons what he thought fit subject of debate, that is afterwards published, and he chuses, because he esteems it more or less correct, to re-publish it himself, and it is found to contain defamatory matter against individuals, is he to be authorized to do so, because he may have spoken it in the House of Commons? Because he has not met with reprobation in that House, has he a right to address the same improper and defamatory matter as an Oratio ad populum? Where was such a doctrine to be met with in our Law Books, or even in any Book of Theories on the subject of Libels? It was an accident, or rather a misfortune, of the present day, to have such a proposition started, and to have it bandied about in every news-paper. The case of Currie and Walter was not now before the Court. When such a case should arise, he should hesitate much before he went the full length of the doctrine laid down in it. As to the occasion of the present publication, whether it was libellous and malicious, those had been left to the Jury. To bring the present case with in that of Lake and King, which related to the printing of a Petition before the House of Commons, it would be necessary to see the Order of the House, to Members to

down so low as to communicate his speech to a printer for publication. If he were misrepresented, he could set himself right in his place, but he could not be suffered himself to publish defamatory matter against any man. He could not agree that every thing that passed in that Court, if accurately stated, might be legally published. If, for instance, a prosecution for blasphemy were to be brought, would a publication of every thing which occurred in the course of such an investigation be tolerated, thereby giving greater publicity to what ought never to have seen the light? Or could every speech of Counsel, commenting upon the evidence of witnesses, which even the person making it would be sorry to see make a deep and lasting impression, be supposed to be a fit or justifiable subject for publication? He was of opinion they could not. The present, he was satisfied, was a case in which the occasion did not justify the publication.

MR. JUSTICE LE BLANG remained of the same mind he had been in on the trial.

MR. BROUGHAM observed, in answer to an observation of Lord Ellenborough's, that he had relied on the law as laid down by.. Mr. Justice Lawrence, in the case of the King and Wright, in which he referred to the case of Currie and Walter, rather than on the case of Currie and Walter itself.

The rule was refused.

Mr. Creevey was in Court himself during the whole of the proceedings, accompa

nied by Mr. Western, General Ferguson, | series of unexampled inconsistencies, might and the Hon. Henry Grey Bennett.