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urged on the Learned Judge who tried the relying on the case of the King v. Lord case, and now meant to enforce on the Court Abingdon. He (Mr. Brougham), on the for their consideration.

other hand, relied on the case of the King Lord ELLENBOROUGH asked, was the de- v. Wright, which occurred about three or fendant in Court?

four years afterwards. That, the Learned Mr. BROUGHAM said, he was. The of- Judge observed, was an application for a fence charged against the defendant was a criminal information, and that a great dissupposed libel in a publication, purporting tinction was held by the Court between crito be a speech, or report of a speech, made minal informations and common indictby the defendant in the Commons House of ments, the former being granted only as an Parliament, of which he was a Member. extraordinary remedy. In answer to this, An indictment having been preferred against he (Mr. Brougham) remarked, that the him for this offence, at the Quarter Ses- ground stated by the Learned Judge was not sions, the same was removed by CERTIO- that on which the information in that case RARI into this Court, and was afterwards had been refused, but, that it had been resent down to be tried at the last Assizes for fused on its inerits, all their Lordships havLancaster. At the trial he had moved to ing stated that there was no ground to send have it put off, on account of the absence of the matter for trial, it not being an offence a material witness, Mr. Benniet, a Member punishable at all. It was not, they all of the House of Commons, who was pre- agreed, a matter of judicial inquiry, inassent when the speech supposed to contain much as it was a true account of what haplibellous matter was read, and who would pened in Parliament. The Learned Judge have proved that the publication in question then distinguished from a case like the precontained the substance of that speech. He sent, the cases of characters given of serwas saved the necessity of urging this point, yants, on the ground, that there confidence however, his Learned Friend, Mr. Park, was reposed. He (Mr. Brougham) conthe Attorney-General for the Duchy of Lan- tended that that distinction could not apply, caster, having agreed to admit that the pub- as that was only one of the modes or means, lication contained a fair report of the sub- and that there were others which equally stance the speech made by the defendant afforded a justification, in support of which in Parliament. This point being settled the doctrine he referred to the case of Weathertrial procccdcd, when Mr. Smith, Printer ston and Hawkins, First Term Reports, of the Liverpool Mercury, proved the pub- where Lord Mansfield and Mr. Justice Bullication, and that he had received it in a ler laid it down that the occasion on which letter enclosed in an envelope from the de- words were used might amount to a justififendant, desiring him to publish it, the cation of these words; and that, to every publication in question being part of a libel there might be a justification from the speech which the defendant had delivered occasion. in the House of Commons, on the State of MR. JUSTICE. BAILEY said, there the the Trade of Liverpool, and on the East party was not a volunteer, but owed it to India Company's Charter. On his cross the public. examination, this witness admitted, that, MR. BROUGHAM said, he put it on this though he had lost the envelope, he recol- principle that there was nothing in the occalected its contents ;-that the defendant then sion on which the speech was made which complained that he had seen mistatements implied malice. He (Mr. Brougham), his of his speech in that and in other papers, objections being over-ruled, then went to and was anxious 10 give the enclosed as a the Jury; and the Learned Judge, in summore correct account of what he had actu- ming up, repeated in substance, what he ally said. This was all the evidence of any had already done, desiring the Jury first to importance adduced on the trial; and, on be satisfied as to the fact of publication, and its being closed, he, (Mr. Brougham) sub- then to say if it was not a libel, or publica. mitted to the Learned Judge, who tried the tion of a defamatory tendency. The Learnindictment, (Mr. Justice Le Blanc,) thated Judge, however, did not afterwards enough had been proved to go to the Jury, leave the manner of the publication entirely įnasmuch as it was not libellous matter : out of consideration. He informed the and, 2dly, whatever was the nature of the Jury, that though a Member of Parliament publication, that enough had been proved could not be called to account for what he to shew that it was a justifiable publication spoke in the Houses of Parliament, yet, under the circumstances of the case. The when the speech appeared in the Papers, Learned Judge was of a contrary opinion, it became a question whether it was mali

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cious or not. As to the point urged on be- MR. JUSTICE BAILEY observed, if it
half of the defendant, that he did not even conveyed reflections against the character of
know the party supposing himself aggriev- the prosecutor it had been made the vehicle
ed, that was of little consequence, the only of slander.
fact for the consideration of the Jury was, if MR. BROUGHAM contended, it the de-
the publication was libellous. In his Lord- fendant had an interest in publishing the
ship's opinion it was defamatory, and the paper in question, for other purposes, it
law inserred malice from the mischievous could not be said to be the vehicle of slan.
tendency of the publication. The Jury der against the prosecutor, though he was
accordingly found the Defendant Guilty. incidentally defamed in it, or his character

MR. BROUGHAM, however, now contend-attacked. If the defendant had published ed, that this was a publication made in such the speech in question for other purposes, circumstances as to prevent even the possi- or with other views, he was not liable for bility of inferring malice. The defendant what might arise incidentally from the pubwas a Member of Parliament, and as such lication. Lord Kenyon also there laid it not responsible for what he said in the down that the mind must be in fault. Here House of which he was a Member. He there were no circumstances that went to was the representative, not of the body by infer malice. A few years after this case whom he was sent into Parliament alone, of Lord Abingdon's came the case of the but of the whole community: he not only King v. Wright. A Criminal Information owed it to them to account for his conduct was there moved for on the part of Mr. in Parliament, but it was his incumbent John Horne Tooke, against a Mr. Wright, duty so to do: and, if that duty could be a bookseller, for publishing a Report of a rendered more incumbent, in any one in- Committee of the House of Commons, atstance than in another, it must be in this tributing to Mr. Horne Tooke charges of a very instance which had occurred on the treasonable or seditious nature, after he had present occasion, namely, where his con- been tried and acquitted of high treason. duct in Parliament had been misrepresent- The Rule was granted in the first instance, ed; in which case it became his duty to and was afterwards very fully argued.. It justify himself, and to set his conduct right was not denied that the publication conin the eyes of the community. He should tained an accurate copy of the Report of the proceed, however, in the first place, to con- Committee of the House of Commons; and sider the case of the King and Lord Abing- Lord Kenyon was there for discharging the don, as the Learned Judge who tried the Rule, on the ground that the publication case had made it the ground for over-ruling was an accurate Report of what had passed the preliminary objection taken on the trial. in Parliament. The case would be found It appeared, in that case, that Lord Abing- in Eighth Term Reports, p. 206; and don having employed Mr. Salmon as his Lord Kenyon was there made to lay it down attorney, took occasion in the course of in- that it would be impossible for the Court to troducing into Parliament a Bill to correct admit that any proceeding in either of the improper practices in Attorneys, to intro- two Houses of Parliament could be of a liduce a string of defamatory matter against bellous nature. Mr. Justice Grose concurMr. Salmon; and that he afterwards had red generally in the saine opinion; and the same defamatory matter published at Mr. Justice Lawrence referred to other his own expense in different newspapers. cases, and entered into the matter more at When the case came to be tried his Lord- large. He put the proceedings in Parliaship appeared in Court himself without any ment, and in the Courts of Law on the Counsel, the information having also been same footing. He referred to the case of granted without opposition. Lord Kenyon Currie and Walter, ist. Bosanquet and in charging the Jury, in that case, observ- Puller, p. 525, in which it was held that ed, that a Member of Parliament had a an accurate report of a proceeding at law right to make speeches in Parliament, with- was not a libel, but, on the contrary, was out being subject to any control; yet, that of advantage to the public, and to the ends he was not to make any such speech the ve- of justice. Such, also, that Learned Judge hicle of slander. In this doctrine he, (Mr. conceived was the case with an accurate reB.) perfectly agreed,

port of a proceeding in Parliament. Such MR. JUSTICE BAILEY asked, then was he publication was of advantage to the public, to understand that the present publication and even to the Legislative Bodies, and was not libellous ?

they would be deprived of that advantage MR. BROUGHAM said, the speech had not if publications of their proceedings were to been made the vehicle of slander.

be prevented. The Learned Counsel, as

he had taken the liberty to do on the trial, ceived, must have had in view the judicial must now again submit that it was impos- character o. the House, when he expressed sible to distinguish the case now alluded to himself as he did in the case of the King v. from the present. The one publication was Wright. It was clearly pointed out in justifiable because it had taken place in Coke, in his first {nstitute, where he says, Parliament, and because it was accurate and " Parliament is the highest and most hotrue. For the same reasons, he submitted, nourable and absolute Court of Justice in so was the other. In these respects both England.”_" It is called Parliainent bepublications were alike. What was the cause every Member of that Court should proceeding in Wright's case? It was an sincerely and discreetly purier la ment, for accurate publication of a Report of a Com- the general good of the Common Wealth ;" mittee of the House of Commons. What -And such must also have been the view was the present proceeding? It was a entertained by his Lordship on this subject, speech made by a Member of the House of in the case of Burdett v. Abbatt. It was Commons; in a House duly constituted ; on that ground that the House had the made by him in discharge of his Parlia- power of commitment. He begeed here mentary duty; and to which the House to be allowed to state, that there were 30 were bound to listen. The act consisted in or 40 Resolutions of the House of Comthe Member's making the speech, and in mons against strangers publishing de l'ates, the House listening to it. Here it did not and not one Resolution on that subjec i rehappen to be either a Report or a Petition lating to Members, or in which they are which was laid before the House, and censured for so doing. The case of Wriglit which they might have disposed of as they was exactly against those 30 or 40 Resoluthought proper ; but it was a statement tions, the Reports which he was prosecuted made by a Member in the course of obser- for publishing, have only been ordered to be vations made by himn in discharge of his printed for the use of the Members. Parliamentary duty, he having an incon- LORD ELLENBOROUGH said, he undertestible right to make them. The House stood all Parliamentary papers were orderheard what he had to say.


pro- ed to be printed for the use of the Memceeding was final, and was determined, bers; none of them for the information of after the Member, in discharge of his duty, the community. had made the speech, and the House had MR. BROUGHAM agreed that this was so; listened to it. If the House had so in- but Mr. Wright had not published the reclined, they might have dealt even penally port in question for the accommodation of with him for making the speech. They the Members, but of the Public. The might have called him to order; they might question was, whether, he was at all prohave stopped him; and, if that had not tected in publishing it; and on that quesbeen enough, they might have committed tion all those 30 or 40 resolutions against him for having so spoken. In that" high-strangers might have been thrown in his est, most honourable and absolute Court teeth ; but the decision went to this, that of Justice," he might have been committed the contempt could only be taken cognifor exceeding his duty, as a Counsel might zance of in Parliament, and punished there. in this Court. As in the Court of Com. He farther submitted, that there was here mon Pleas, in the case of Currie and Wal- enough in the occasion of making the pubter, and in this Court in the case of the lication to justify it, and to have warranted King and Wright; so, in the House of the Learned Judge in sending it more Commons, if the Member had abused his strongly to the Jury, as rebutting and exprivilege of speech, and made it a vehicle cluding the presumption of malice. The for abuse and slander, as in Lord Abing- present was of the same description with don's case, it would, to use the language the case of Delaney and Jones, where a of Lord Ellenborough in the case of Bur- public advertisement having been inserted, dett v. Abbott, not be decent to suppose charging a person with suspicion of the that the House would suffer its privileges crime of bigamy, it was held to be a justito be abused with impunity. To argue fication that the defendant had an interest that the House would suffer a man to be in making the inquiry. Here the publicadefamed in a speech to which they listened, tion was not inade with a view to investiwithout censure or disapprobation, would gation, but still on an occasion equally cabe to suppose that the House itself would pable of having good faith assigned as the become a party to such abuse. Mr. Jus- cause of it, namely, that of explaining the tice Lawrence, the Learned Counsei con- defendant's conduct to his constituents.

was not.

Lord ELLENBOROUGH said, it would not print their speeches. There was not here bear an argument, that with a view to the least colour for granting a new trial, stand well with his constituents, a Mem- and it would be wrong to excite doubts ber of Parliament might publish what he where none remained. pleased. That was an innovation on the MR. JUSTICE GROSE was of the same law of the land, which, he hoped, would opinion; he was not disposed to find fault never be tolerated.

with the direction of the Judge, or with Mr. Brougham said, that was not his what the Jury had done, argument, which only went to this, that a Mr. Justice Bailey should have been Member of the House of Commons might happy to have the case further gone into, publish what he spoke in that House. if there was any doubt on the subject, Again referring to the case of the King and which he was decidedly of opinion there Wright, he submitted tliat the defendant

A Member had a right to speak was entitled to a new trial in this case. 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 down so low as to communicate his speech that the Rule ought at once to be refused to a printer for publication. If he were The present, however, did not range itself misrepresented, he could set himself right under the head of a proceeding in Parlia- in his place, but he could not be suffered ment. But if a Member chose to state in himself to publish defamatory matter against the House of Commons what he thought fit any man.

He could not agree


every subject of debate, that is afterwards pub- thing that passed in that Court, if acculished, and he chuses, because he esteems rately stated, might be legally published. it more or less correct, to re-publish it If, for instance, a prosecution for blashimself, and it is found to contain defama- phemy were to be brought, would a publitory matter against individuals, is he to be cation of every thing which occurred in the authorized to do so, because he may have course of such an investigation be tolerated, spoken it in the House of Commons? Be thereby giving greater publicity to what cause he has not met with reprobation in ought never to have seen the light? , Or that House, has he a right to address the could every speech of Counsel, commentsame iinproper and defamatory matter as, ing upon the evidence of witnesses, which an Oralio ad populum ? Where was such even the person making it would be sorry a doctrine to be met with in our Law to see make a deep and lasting impression, Books, or even in any Book of Theories on be supposed to be a fit or justifiable subthe subject of Libels?. It was an accident, ject for publication?. He was of opinion or rather a misfortune, of the present day, they could not. The present, he was sato have such a proposition started, and to tisfied, was a case in which the occasion have it bandied about in every news paper. did not justify the publication. The case of Currie and Walter was not Mr. JUSTICE LE BLANC remained of the now before the Court. When such a case same mind he had been in on the trial. should arise, he should hesitate much be- Mr. BROUGHAM observed, in answer to fore he went the full length of the doctrine an observation of Lord Ellenborough's, that laid down in it. As to the occasion of the he had relied on the law as laid down by present publication, whether it was libel- Mr. Justice Lawrence, in the case of the lous and malicious, those had been left to King and Wright, in which he referred to the Jury. To bring the present case with the case of Currie and Walter, rather than in that of Lake and King, which related to on the case of Currie and Walter itself. the printing of a Petition before the House The rule was refused. of Commons, it would be necessary to see Mr. Creevey was in Court himself during the Order of the House, to Members to the whole of the proceedings, accompa

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of war.

nied by Mr. Western, General Ferguson, series of unexampled inconsistencies, might and the Hon. Henry Grey Bennett. excite the greater wonder, as proceeding

from a Government which founded the very war in which it has been so long engaged,

on a charge against the disorganizing and OFFICIAL PAPERS.

insurrectional policy of its adversary.

To render the justice of the war on our AMERICAN STATES.

part the more conspicuous, the reluctance

to commence it was followed by the earliest (Continued from page 704.)

and strongest manifestations of a disposition rying it on, no principle of justice or ho- to arrest its progress.

The sword was nour, no usage of civilized nations, no pre- scarcely out of the scabbard before the cept

of courtesy or humanity have been in- enemy was apprized of the reasonable terms fringed. The war has been waged on our on which it would be re-sheathed. Still part, with scrupulous regard to all these more precise advances were repeated, obligations, and in a spirit of liberality and have been received in a spirit forwhich was never 'surpassed.

How little bidding every reliance not placed in the has been the effect of this example on the military resources of the nation. conduct of the enemy. They have retained

These resources are amply sufficient to as prisoners of war citizens of the United bring the war to an honourable issue. Our States, not liable to be so considered under ration is, in number, more than half that the usages -They have refused to

of the British Isles. It is composed of a consider as prisoners of war, and threaten- brave, a free, a virtuous, and an intelligent ed to punish as traitors and deserters, per people. Our country, abounds in the nesons emigrating without restraint to the cessaries, the arts, and comforts of life. A United States; incorporated by naturaliza- general prosperity is visible in the public tion into our political family, and fighting countenance. The means employed by the under the authority of their adopted coun- British Cabinet to undermine it, have retry, in open and honourable war, for the coiled on themselves ; have given to our maintenance of its rights and safety. Such national faculties a more rapid developeis the avowed purpose of a government, ment; and, draining or diverting the prewhich is in the practice of naturalizing, by cious metals from British circulation and

, thousands, citizens of other countries, and British vaults, have poured them into those not only of permitting, but compelling them of the United States. It is a propitious to fight its battles against their native coun- consideration, that an unavoidable war try. - They have not, it is true, taken should have found this seasonable facility into their own hands the hatchet and the for the contributions required to support it. knife, devoted to indiscriminate massacre; When the public voice called for.war, all but they have let loose the savages armed knew, and still know, that without them it with these cruel instruments; have allured could not be carried on through the period them into their service, and carried them to which it miglit last; and the patriotism, battle by their sides, eager to glut their the good sense, and the manly spirit of our savage thirst with the blood of the van fellow-citizens, are pledges for the cheerquished, and to finish the work of torture fulness with which they will bear each his and death on maimed and defenceless cap- share of the common burden. To render tives. And, what was never before seen, the war short, and its success sure, aniBriçish Commanders have extorted victory mated and systematic exertions alone are over the unconquerable valour of our troops, necessary; and the success of our arms by presenting to the sympathy of their chief now, may long preserve our country from awaiting massacre from their savage associ- the necessity of another resort to them. ates. And now we find thein in further Already have the gallant exploits of our contempt of the modes of honourable war- naval heroes proved to the world our inhe. fare supplying the place of a conquering rent capacity to maintain our rights on one force, by attempts to disorganize our poli- element. If the reputation of our arms tical society, to dismember our confederat- has been thrown under clouds on the other, ed Republic. Happily, like others, those presaging flashes of heroic enterprise assure will recoil on the authors : but they mark us, that nothing is wanting to corresponthe degenerate councils froin which they dent triumphs there also, but the discipline emanate : and if they did not belong to a and habits which are in daily progress."

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