twenty-five years. The business of an auctioneer consisted in something more than in making bows, and in knocking down the hammer. It required knowledge, grounded on experience; a proper acquaintance with all the circumstances belonging to the estate, and the mode of preparing proper advertisements to enlarge the ideas of the public."

Mr. Erskine, who was counsel for the defendant, addressed the jury in a speech replete with wit and ingenuity. He said he found the profession of an auctioneer was infinitely preferable, in point of pleasure and profit, to that of a barrister, for the difference between the charge of the present plaintiff and his was as follows.

Auctioneer's charge. To a pleasant journey into Sussex, where I was hospitably entertained, (out two days) £230.-Mr. Erskine's charge. To pleading from nine in the morning till four in the afternoon, by which I was melted down by fatigue, to the size of a silver penny, £10. 10s.

Mr. Erskine said, if auctioneers were paid the demand in question on every adventure, they would be the richest subjects in the nation. By enlarging the ideas of the public, which he found was the business of the gentlemen of the hammer, he supposed was meant, representing an estate to be worth £20,000, when it would only sell for £10,000. The plaintiff was nonsuited.

FREEDOM OF SPEECH.

At the Lancaster assizes, September, 1817, an action was tried at the instance of Mr. Peter Hodgson,

an attorney, against Mr. Scarlett, the counsel, for words spoken at the preceding Spring assizes for that county.

Mr. Raine, who opened the case for the prosecution, observed, that Mr. Hodgson had long been an eminent attorney in Whitehaven, in the county of Cumberland, and applied now to a jury of his countrymen, in consequence of the wound given to his professional reputation, by Mr. Scarlett's language at the bar. "The freedom of speech at the bar," said Mr. R.," is of the utmost importance, not only to the dignity of the bar, but to the interests of the public, whose high and delicate interests are entrusted to it. Of this freedom, none can be a more strenuous and tenacious friend than I am. In importance and utility, I hold it to be of the same rank as freedom of discussion in the Commons' House of Parliament. have thus made the highest admission in favour of Mr. Scarlett; but bounds must be set to this freedom of speech, otherwise, from the greatest blessing, it becomes the bitterest curse that can infest and annoy society. These bounds were overleaped in this case. Mr. Scarlett, while addressing the jury for the defendant in an action in this court, went out of his way to traduce and vilify the character of the attorney for the plaintiff, and to wound his reputation. The words charged, and which we shall prove to have been spoken, are these. "Some actions are founded in foily, some in knavery."

I

certainly

"Some in

Mr. Baron Wood. That is surely true. Mr. Raine. Yes my lord, these are truisms, but they are thus connected. both; some actions in the folly and knavery of the attornies, and some in the folly and knavery of

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the parties." My friend is not apt to deal in metaphysical abstraction; you know very well that he does not use words without application. We shall not attempt to prove his whole speech. You know with how little credit a long story is received from witnesses; but we shall prove the words here entered upon the record: "Mr. Peter Hodgson was the attorney for the plaintiff; he drew the promissory note; he fraudulently got Beaumont to pay £150 to the plaintiff. This was the most profligate thing I ever knew done by a professional man." Then follows the particular expression which we have charged in the second count on the record: it concludes the remarks already stated to you. The sting is always in the tail. "Mr. Hodgson is a fraudulent and wicked attorney." Now, gentlemen, I ask you, if you were wrong in any action brought into this court, how would you like such abuse of the freedom of speech, by a gentleman holding a high reputation at the bar? A humble individual, if he had not the spirit and the honour to vindicate his fame from such an attack, would be ruined. spirit and honour to repel it. He only wants the My client has the vindication of his injured character. You will take care, that he sustain no loss by the vindication. I do not ask for angry and vindictive damages. I ask no more than justice to my client; less than justice you will not give.

Mr. Baron Wood. Can you mention any action of the same kind, or upon what principle it can be maintained?

Mr. Raine. I do not know that any action of the kind has ever been brought.

Mr. Baron Wood. It appears to me that an action

cannot be maintained for words spoken in judicial proceedings. If a counsel misbehaves, or goes too far, the Judgewho presides corrects his misconduct; but if an action is once maintained, there is no end of it. Actions of this kind would perpetually occupy the court. If a counsel were to pause in his pleading, and to say such a man is a great rogue, that would be actionable. Mr. Raine. That is precisely our case. We say the libellous expressions were voluntarily and gra. tuitously used.

Mr. Baron Wood. No; whether a note was fraudulent or not, as I understand the record; for I know nothing of the nature of the first action.

Mr. Richardson. The privileges of Parliament have been alluded to. I apprehend that the question has not any resemblance to them.

Mr. Baron Wood. Why not?

Mr. Richardson. Well, be it that the utmost freedom of speech is allowed; but to go out of the way to attack character!

Mr. Baron Wood. No, it was not out of the way; the words might be too severe, but they were connected with the note. It would be a dangerous precedent to receive an action on such a ground.

Mr. Topping, (for the defendant). If such an action can be maintained, very different will be the situation of every client in a court of justice, when deprived of the free and vigorous exercise, of his counsel, at full liberty to apply his talents, learning, and industry to the cause in which he is engaged. The words in the record are only the opinion, the inference, the comment, which my honourable and learned friend

F

felt at the time to be merited. The facts of the case warranted the comment. The words were severe, because my honourable and learned friend felt severity to be warranted. They were the comments which the learning and ability of my friend suggested on the facts proved. "Some actions are founded in folly." That action was so, for it ended in a nonsuit. The whole passage was not respecting the character of Mr. Hodgson in general, but in this case. If the counsel are not allowed to comment on the facts proved, there is an end of the British Bar's utility; its energies are paralyzed for ever; without those fair and honour able exertions, which are thus attempted to be suppressed, it will be neither creditable nor useful. The expressions used by my friend were called for and merited, in my opinion. But it was necessary, not only to prove that they were false, but malicious. Good God! will it be said that we feel any malice against a party, against whom we exert ourselves at this bar? Will your lordship be the first judge to fetter the bar and, if I may use a coarse and vulgar expression, to oblige every counsel to address a jury with a halter about his neck? The danger is palpable and plain. Your lordship will not allow, in 1817, a principle to be established hitherto unknown to English law.

Mr. Raine (in reply). The words are false. The comment was unmerited. That they were malicious, I may say, appears on the face of the expressions. I have been twitted twice; one sneer would be enough for not citing a case. I distinctly admitted that I knew no case. The question is, whether there are no bounds, and counsel may go any length? If there