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should say that, strictly speaking, Mr. Hodgson could not be pronounced guilty of fraud, as between man and man: but there certainly was a degree of wickedness in foro divino, in bringing forward such an action. That it was clearly proved, that the words were relevant to the matter in issue; and therefore his Lordship thought the action not maintainable.

Mr. Just. Bayley was of the same opinion; and he thought that the rule applicable to this case was rightly laid down, Brooke v. Sir Henry Montague, Cro. Jac. 90. "that a counsellor in law, retained, hath a privilege to enforce any thing which is informed unto him for his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false; but it is at the peril of him who informs it. For a counsellor is at his peril to give in evidence that which his client informs him, being pertinent to the matter in question. Otherwise, an action upon the case lies against him by his client, as Popham said; and, although it be false, he is excusable, being pertinent to the matter."-As to the question of pertinency in this case, the learned Judge

was of opinion, that the facts of the former trial clearly justified the words that upon ground: and, even supposing that those facts had gone to the Jury, it was difficult to imagine how a different conclusion could be drawn. Admitting that the expressions were harsh; yet, under all the circumstances of the case, they were no more than counsel was privileged in using, as pertinent to the matter in issue.

Mr. Justice Abbott said, that the rule for determining whether this action was maintainable against a barrister, must be governed by the pertinency of the words to the matter in issue. Here the pertinency of the expressions were manifest; and as there was no malicious motive imputable to the defendant, the action was not maintainable. No advantage could be derived from sending this case to a new trial, as the result must and ought to be the same.

Mr. Justice Holroyd was of the same opinion. He considered the privilege of speech in counsel of the same extent as that which belonged to the party whom he represented. His right to exercise it was founded in the duty of the trust reposed in him. Greater latitude was undoubtedly allowed

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in practice to the party himself than to his advocate; but this was merely because the latter, from his knowledge and experience, must be restrained more strictly to the pertinence. of his observations. With respect to the privilege of the party himself, the learned Judge cited 1 Hawk. c. 73. s. 8. 1 Rol. 87. Pl. 4. Lake v. King, 1 Saunders, 132. and 4 Co. 14 B.; and from these authorities, he said, that an argument was to be derived as well in favour of counsel, as of the party, in the exercise of this his undoubted privilege. -His opinion in this case was governed; first, on the ground of the pertinency of the words to the matter in issue; and, secondly, that no malice was proved.

Per Curiam.-Rule discharged.

After the judgment of the court in this case, it may seem almost unnecessary to add any thing else, in illustration of the right claimed by counsel, and hitherto always exercised, to speak, with the most unrestrained freedom, upon all subjects connected with the case before them; confining themselves only, (if upon statement,) to matters pertinent to

The

the subject on trial; or, if in the expression of feeling, to such terms as are natural and proper to the occasion. right is so simple, and, indeed, so manifest, that a sufficient reason for it is almost included in the above description of what it is. The counsel for a party is the legal substitute for that party himself.-As far as respects the subject before the court, such counsel is presumed to be invested with the whole person and case of his client. Whatever, therefore, law or reason would allow to a man pleading his own cause, whether in statement, or in the expression of natural feeling, belongs, in the same extent, to the counsel who represents him. Without such latitude, a counsel would be a very imperfect and inadequate representative of his client. The principle, therefore, belongs to natural justice as well as to law. It is a part of the necessary means to enable counsel to make as full and sufficient a defence as could be made by the party himself. Nor, on the other band, is there any injury in the extravagance natural to a counsel or his client, under these circumstances. It goes forth only as an ex parte statement. It is given as such, and received as such; and the

due allowance is always made. Whatever excess there may be in it, is amended by the same liberty allowed to the opposite Counsel in answer and defence, or by the correction of the Judge upon his observations on the evidence and the whole case. In the result, therefore, any restriction to the liberty of speech at the bar would be more injurious to the interests of public justice, than any latitude in the exercise of it (always subject to the controul of the Court) could possibly be to individual feeling and character.

Being now upon this subject, we may be permitted briefly to observe, that many popular errors have lately become current with respect to the general right of making public the proceedings of Courts of Justice. Some writers, admitting in full this privilege of speech in court, have contended for the unbounded right of publishing every thing that is transacted there; thus erroneously extending an undoubted privilege of Courts and Counsel to the printers and publishers of their proceedings. But the same reason does not exist; and, therefore, not the same privilege.

The proceedings of Courts of Justice in England are public; not, as asserted by some

writers, with any view to controul the Courts by public opinion, but simply because, in ordinary circumstances, there is no reason for se

crecy ; and in ordinary circumstances such publicity is a manifest good: and, therefore, has always been encouraged by the Judges of the Courts. But when the nature of a cause, or any evidence in it, however necessary it might be to the trial, may be injurious to any public interest, whether of good morals, public decency, or private feeling, it is of course within the rights of a course of justice to close its doors against all but those concerned in the cause, and to its necessary trial. Such, for example, as in trials for blasphemy, obscenity, &c. Nor will it follow in cases where the doors are open to all comers, which is the most frequent course, that any hearer may publish all that he may hear. He is still within the obligation of not using his faculties in producing any public or private mischief. The Court and Jury try what they hear, and give to evidence, and the speeches of Counsel, their proper weight. But the publication of such proceedings may very unnecessarily offend private feelings, and still more frequently, public decency. The

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trial is before men of gravity and wisdom, bound by an oath to administer justice. The publication of it goes forth to SCARLETT. people of all ages, conditions, and passions. And still more strongly would it be a contempt of Court, and a public wrong, for any advocate employed in a cause, to publish, with a malicious and partial intention, his speech in a Court. Such speech would necessarily be an ex parte statement. To put it forth to the world as the whole and true case, supposing the matter to be accusation, would be a manifest libel.

The members of the two houses of parliament, by reason of their privilege, are not answerable at law for any personal reflections on individuals, contained in speeches in their respective houses. But this privilege does not extend to them, or others, in the publication of such speeches. Such publications, therefore, if containing matter of libel, are not protected. Lord Abingdon's case, 1 Esp. 226.

A member of the House of Commons may be convicted upon an indictment for a libel, in publishing in a newspaper the report of a speech delivered by him in that house, if it contain libellous matter, although the publication be a

correct report of such speech, and be made in consequence of an incorrect publication having appeared in that and other newspapers. Rex v. Creevey,

1 M. and S. 273.

The principle of the case of Rex v. Lord Abingdon, and Rex v. Creevey, is this:-On account of public utility, the constitution gives unrestrained freedom of speech to the members of both houses of parliament, speaking within their respective chambers; and whatever may be there said is censurable only according to the rules of parliament, and before parliament. It is needless to say, that the reason of this is two-fold in the first place, its public utility; and, secondly, that it would be derogatory to the dignity of either house of parliament to be called before the inferior tribunals. But it does not therefore follow, that because a Member, for the sake of public good, may speak as he pleases in parliament, before an assembly, the established rules of which will restrain any mischievous indecorum, that he may therefore publish his speech in the shape of an appeal to the people; that he may convert a parliamentary speech into a popular harangue, and carry his privilege of parliament as a shield against legal responsibility,

where the reason of such pri- should be no restraint beyond vilege totally ceases.

The privilege is not absolute, but relative; it is not personal but local; and where the reason ceases, and the condition of place does not exist, the promulgation or publication of slanderous and libellous matter (the privilege being divested with the reason and consideration of it) necessarily stands forth in its own nature, subject to the controul and punishment of law.

In a Court or Council of public Inquiry, such as are the two houses of parliament, the accusation of individuals must frequently occur. The public good requires, that there

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the rules of the House itself; and the gravity and dignity of the assembly considered, the probable mischief to an indivi- Scarlett.

dual cannot for a moment weigh against the public good of such freedom. But the misIchief would become intolerable, if a member of parliament, having any malignant passion against an individual, and having first legitimated his slander by carrying it through the House, might thereafter publish it without responsibility to the laws.

The privilege of Counsel is exactly within the same analogy, and subject to the same controuls.

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