Proof of the falsehood of the communication is evidence of malice, but it is not necessary for the maintenance of this action, though formerly it was considered otherwise a. Where the plaintiff, knowing the character which the master would give, procured a character from him with a view of founding an action upon it; it was held that he could not recover b. upon 3.-Words used in legal or judicial proceedings.] Words used Words used in in the course of a legal or judicial proceeding, however hard judicial they may bear the party of whom they are used, are pro- proceedings are privitected by the occasion, and cannot form the foundation of an leged. action for slander without proof of express malice, as by shewing that the defendant knew at the time that the charge was false; for it would be a matter of public inconvenience, and operate to deter persons from preferring their complaints against offenders, if words spoken in the course of their giving charge of them, or preferring their complaint, should be deemed actionable. Thus, an action will not lie for words spoken on giving a party in charge to a constable, or in preferring a complaint to a magistrate d Nor where a man, upon reasonable grounds of suspicion, charges an innocent person with a theft. Nor if a servant summon his master before a court of conscience for wages, and the latter, in his necessary defence, utter words imputing felony to the former f. Nor for words spoken in a court of justice in a man's own defence against a charge therein preferred against him . Where a court martial, after stating in their sentence the ac * In Weatherstone v. Hawkins, 1 T. R. 112, Buller, J., said that it was incumbent on the plaintiff to prove that the charge was malicious as well as false. King v. Waring, 5 Esp. 14. son v. Evans, 3 Esp. 32. d Id. But where A. obtained a warrant to search the house of B. for goods suspected to be stolen, and in accompanying the officer to exe- e Fowler v. Homer, 3 Camp. 294. f Trotman. Dunn, 4 Camp. 211. B Astley v. Younge, 3 Burr. 807. Words said by a barrister, or a member of parliament, are privileged. quittal of an officer 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 advocatea. On the same principle, whatever is said by a barrister or advocate in the conduct of a cause, relevant to the subject matter, is privileged, and not actionable . So, no action lies for anything said by a member of parliament in the house; but the privilege does not extend beyond the walls of the house; and if a member of either house publishes his speech, he is as liable as a private individual to be prosecuted for any libellous matter which it may contain c. It is established by numerous authorities, that an action cannot be maintained for anything said or otherwise published, either by a judge, a party, or a witness, in the due course of a judicial proceeding, whether civil or criminal d. 4.-Criticisms of literary works.] Criticisms on literary productions and works of art publicly exhibited, may also be ranked in the class of privileged communications. It is established by a variety of authorities, that a fair and candid, though erroneous criticism of any publication, however poignant it may be, and however severely it may reflect upon the author, so far as he has embodied himself with his work, cannot form the foundation of an action, unless it appears that the defendant, under a pretext of criticising the work, indulged in personal defamation against the author, unconnected with the publication. "One writer," said Lord Ellenborough, C. J., “in ex 2 Jekyll v. Sir John Moore, 2 N. Wood v. Guston, Styles, 462. 1 B. & A. 232. See Flint v. Pike, 4 B. & C. 473. 226. Rex v. Lord Abingdon, 1 Esp. R. v. Creevy, 1 M. & S. 273. 4 See 1 Stark. Sland. 240, et seq. Carr v. Hood, 1 Camp. 355. Macleod v. Wakeley, 3 C. & P. 311. Thompson v. Shackell, M. & M. posing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum obsque injuriá. Where is the liberty of the press, if an action can be maintained on such principles? Liberty of criticism must be allowed or we should neither have purity of taste, nor of morals. We really should not cramp observations upon authors and their works; they should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous. Reflection upon personal character, is another thing. Shew me an attack upon the moral character of the plaintiff, or an attack upon his character, unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him; but I cannot hear of malice on account of turning his works into ridicule." a par the authority of either house of parliament, are privi tions under leged. 1.-Parliamentary proceedings.] PUBLICATIONS duly made in Publicathe ordinary course of parliamentary proceedings are privileged, and therefore not actionable. As where a false and scandalous libel was contained in a petition which the defendant caused to be printed and delivered to members of a committee of liament, appointed by the House of Commons to hear and examine grievances; it was held, that an action would not lie for it; but the court said, that if copies had been distributed to any but members of parliament, it would have been actionable 1. But a difference of opinion prevails, whether the publication 187. Tabart v. Tipper, 1 Camp. 350. Fraser v. Berkeley, 7 C. & P. 621. Per Lord Ellenborough, C. J., in Carr v. Hood, 1 Camp. 354. And see Stuart v. Lovell, 2 Stark. 73. Lake v. King, 1 Saund. 131. of parliamentary proceedings, for any other purpose than for the use of members of parliament, is privileged. Upon an information against the speaker of the House of Commons for publishing "Dangerfield's Narrative," he pleaded that the narrative was printed and published as a parcel of the proceedings; yet the court held that it was no defence. But in a subsequent case, the court of King's Bench refused to grant a criminal information, for a libellous paragraph which was contained in the report of a committee of the House of Commons, a literal copy of which the defendant had published; Lord Kenyon observing, that it was impossible to admit that the proceedings of either house of parliament was a libel, and the court expressed their disapprobation of the preceding case b. Yet in a very recent case, where an action was brought against the defendant for a libel contained in a report of the inspectors of prisons, which was printed and sold to the public by the defendant, in conformity to the express orders of the House of Commons, Lord Denman held, that it was not a privileged publication. "I am not aware," said his lordship, "of the existence in this country of any body whatever that can privilege any servant of theirs to publish libels of any individual. Whatever arrangements may be made between the House of Commons and any publisher in their employ, I am of opinion that the publisher who publishes that in his public shop, and especially for money, which may be injurious, and possibly ruinous to any one of the king's subjects, must answer in a court of justice to that subject, if he challenge him for a libel; and that the fact of the House of Commons having directed the defendant to publish all their parliamentary reports, is no justification for him or for any bookseller who publishes a parliamentary report containing a libel against any man." In this case, however, a verdict was given for the defendant, on a plea justifying the truth of the publication . In consequence of the preceding observations, the House of Commons passed the following resolutions: "That the power of с R. v. Williams, 2 Show. 471. Rex v. Wright, 8 T. R. 293. MS. Sitt. after H. T. 1837. 7 C. & publishing such of its reports and proceedings as it shall deem is an essential incident to the constitutional functions of parliament. necessary, "That by the law and privilege of parliament, this house has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding for the purpose of bringing them into discussion for decision before any tribunal directly or incidentally elsewhere than in parliament, is a high breach of such privilege, and renders all parties concerned therein answerable to its displeasure, and to the punishment consequent thereon." and accurate report of proceedcourt of ings in a justice, is privileged. 2.-Judicial proceedings.] It may be laid down as a general A fair, full, rule, that an action cannot be maintained in respect of a fair and impartial report of proceedings in a court of justice. "Trials at law," said Lord Ellenborough, C. J., "fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged, the benefit they produce is great and permanent, and the evil that arises from them is rare and incidental." a The doctrine here laid down must, however, be taken with some qualification; for on another occasion, his lordship said, "that it must not be taken for granted that the publication of every matter which passed in a court of justice, was under all circumstances, and with whatever motive published, justifiable, for it often happens that circumstances necessary for the sake of public justice to be disclosed by witnesses in a judicial inquiry, were very distressing to the feelings of individuals." And it was laid down by the court of King's Bench, in granting a criminal information for the publication of a correct account of what had taken place at a trial, in the course of which the whole of Paine's Age of Reason had been read, that though, as a general proposition, it was certainly lawful to publish the proceedings of courts of justice, yet, that it must be taken with this qualifi Rex v. Fisher, 2 Camp. 563. And see Curry v. Walter, 1 B. & P. 525, where it was held that a true report of what passed in a court of b In Stiles v. Nokes, 7 East, 493. |