DEFAMATION AND LIBEL. (Hansard, 22 August 1843)

Lord Campbell

called their Lordships' attention to the Libel and Defamation Bill, and to the alterations which had been made in it by the other House of Parliament. This was a different case from that bill affecting the law of Scotland concerning moveables, which had been approved of by all their Lordships, and which had been thrown out in the House of Commons, not because, after discussion, a majority of that House disapproved of it, but because an individual, not a Member of Parliament, did not like it. The rejection of that bill was not respectful to their Lordships. In the case of the libel law, the bill had been discussed in the other House, and alterations made by the majority; but he still maintained his opinion, and could not agree with the majority of the other House. Indeed, he regretted and deplored the alterations which had been made in the measure, by which its unity and consistency were destroyed, and the bill much impaired. The first alteration had been made in the first clause, and he could not pass that by without addressing some remarks to their Lordships. The Commons adhered with pertinacity to the old common law of England, by which no action will lie against spoken words, unless they impute an offence which is indictable, whatever those words may be, or unless they injure a man in his profession; but beyond those two points, however calumnious may be the words, though they may destroy a man's reputation, and make him lose caste, or cause him to be expelled from society for such spoken words, he has no remedy. Those curious distinctions which were now made by the law were approved of by the House of Commons. Their Lord- 988 ships might expect him, as he was perhaps casting reflections on others, to give them some proof of these actionable offences. If it were said of a barrister, that he was "a daffy down dilly," that is actionable. If he is said "to be a dunce,"—[The Lord Chancellor: Or a dandy.]—or that he has "no more law in him than a jackanapes," that is actionable. Nay, it was actionable to say that a barrister "has more law in him than the devil," for he must have less law, and not more than that personage. Now, with regard to words imputing indictable offences, it was an actionable offence to say that Mr. A. had held up his hand to Mr. B., for that was held to be an inducement to commit an assault. In Comyn's Digest it was held that to say a man had not repaired a road or a bridge, which he ought to repair, was actionable, because the slander imputed to him an act for which he might be fined as a misdemeanor. For such trifling words as these a man might bring his action, and recover damages under the law of slander; but for words of a most serious nature, which might ruin a man's character, no action could be maintained if they did not ascribe to him conduct inconsistent with the duties of his profession, or impute to him an indictable offence. To call a lawyer a swindler was not actionable. But if a letter containing those words were sent to a single individual, though not shown to another person, an action would lie. If the words were only spoken, it might be proclaimed in the face of the whole county of Middlesex, that a barrister was a swindler, and no action could be brought. If it were said, "a man is a cheat, and I will prove him a cheat; he is a cheat, and stole two bonds from me," no action would lie, because the bonds were considered only a security, and in that state, as a security, they were a chose in action. So, to say of a man "he is a thief, and stole my trees," no action would lie, because they were fixtures on the freehold, and on them a man could not commit a larceny. To say a man "stole corn from my field" is not actionable, because the corn was growing or standing, and therefore no action would lie. To say also that a "man stole iron bars out of my window" is not actionable, because the bars are part of the house, and a man cannot commit larceny with a house. So, to state that a "man stole the shutters" is not action- 989 able, for the same reason. To say that "he stole lead from my House," falls under the same description. To accuse man of "burning a barn," is not actionable, unless it were shown that there was corn in the barn; for unless there was corn in the barn the offence might be only a trespass. So, to state that a man stole Lord A.'s deer is not actionable, because deer are fercœ natureœ, and with them man cannot commit a petty larceny. Neither was it actionable to speak most irreverent words of a parson; that was according to a judgment given, which must be well known to his noble and learned Friend on the Woolsack, though the same words, if spoken of a lawyer, would b actionable. It might be said of a parson and it was so held by a judge, that he was a "bon, padre and un grand fou." An action was brought on these words but it appeared by the decision of the court they were not actionable, for the court said in its Norman French, that the man had not said anything against the parson, for a "bon parson might be a d—d fool." There were cases of a still more serious description. To say of man that he had forged a warrant was not actionable, for he may hay forged some warrants which it was no indictable to forge, and therefore, to say that he had forged them gave him no ground of action. To say of a person "that he was foresworn," was not actionable though it were said publicly. To say c a person "that he has foresworn himself and I have three witnesses to prove it," was not actionable. To say of any person that "he has been a foresworn man, an I can bring people to prove it," was not actionable, because it was a fundamental principle that a man was not foresworn unless he had taken an oath before court, and where no jurisdiction had administered an oath it was only a more perjury, not an indictable offence, and no action would lie. To say that "he is perjured person and was foresworn in the Bishop of Gloucester's Court," when was not stated that the Bishop of Gloucester's Court had the power to administer an oath, was not actionable. To say to a man, "Thou did suborn witnesses to swear," without showing that perjury was actually committed, though the charge of subornation was complete was not actionable, and he had no remedy. Words also which only denoted suspicion, 990 and did not imply a positive charge, were not actionable. To say to a man that "he deserved to be hanged," was only an intimation that he might have committed a capital offence, and those words were not actionable. To say of a woman, "that she had a child and that she or somebody else made away with it," because it was not said that the mother had made away with it, but somebody else, it was not actionable, though the charge was solemnly denied. To say "those are rebels," was not actionable, for peradventure the plaintiff might not have appeared to a subpœna from the Court of Chancery, and a commission of rebellion might have issued against him. There were no words, the most opprobrious, which might not be applied to the chastest matron or the purest maid, and for which she could obtain no remedy either civil or criminal. He would not repeat that common and vulgar word which might be applied to a young woman, of whom it might be also said that she had a bastard, and as long as it was not said that the bastard was chargeable to the parish, that was no offence. If it was said that the bastard was chargeable to the parish, then the person accused of having a bastard might have a remedy. But the worst charges might be made against women: they might be ruined in reputation; they might be removed from society; they might be utterly ruined and had no remedy whatever. He regarded this part of the law as erroneous. It might now be proclaimed at Charing-cross of the man of the highest integrity and courage, of officers of the utmost distinction, who had served their country for a long life—it might be proclaimed of such men at Charing-cross, by the sound of the trumpet, that they were liars, scoundrels, villains, or cowards, and no action would lie. This distinction was peculiar to the law of England; he was sorry it was not removed; their Lordships agreed that it ought to be; but now, however, serious the injury upheld by words, if they were not written, the law gave the injured man no remedy. The Lord Advocate of Scotland, Mr. M'Neil, had been examined before their Lordships' committee, and he had stated that according to the law of Scotland a man might recover damages for spoken slander. He had also stated that a woman slandered might recover by an act of solatium. The Lord advocate added, that he thought 991 such ought to be the law. That was not only the law of Scotland, it was the law of every country of Europe, except England. It was said that if they were to allow of actions being brought on such grounds, it would give rise to a great increase of litigation. But he thought that the check given by the costs would prevent that affliction. As the law stood, if the damages were not above 40s. the verdict did not carry costs, and as actions of this description were generally brought by pettifogging attornies for the sake of costs, they would not bring them when they ran the risk of being out of pocket. But it should be remembered that there was a clause in the bill allowing the jury, if they thought an action was brought on frivolous grounds, to give a verdict for the defendant, which would carry the costs of both parties. It was said too, that to alter the law might interfere with the liberty of speech. He was as friendly to the liberty of speech as any man, and should be sorry to interfere with that privilege of the people; but it was necessary to give a remedy for the abuse of that liberty. Where a hundred thousand actions might now be brought not one was brought. It was necessary to make the rule of law large in order to provide a remedy for all kinds of injuries; but it was absurd to say that you must not provide a remedy against spoken slander, because you are afraid of vexatious actions. He looked upon the check of costs as sufficient to guard against such actions. His noble and learned Friend (the Lord Chancellor) knew that great freedom of language was tolerated in Westminster-hall. Suppose some person were to say there of a lawyer high in office—of his learned Friend the Attorney-General—that he has no more law than a jackanapes, and suppose that he were to be informed of it, he would not think of bringing an action, he would rest on his character, and only laugh at it as a harmless joke. When he considered the licence of Westminster-hall, the opportunities for bringing actions, and when he knew that actions were not brought, he could not believe that giving a remedy for unwritten as well as written libels would lead to that overwhelming mass of actions which was alleged. Had the first clause of the bill been agreed to, it would have removed an analogy from our law, it would have given men redress when an injury was inflicted and when no injury 992 was inflicted no damages could be recovered, without he believed, restricting the liberty of speech, or giving rise to many vexations actions. Another important clause had been rejected—that which allowed the truth to be pleaded in certain cases in civil actions, by which, he thought, the law was made more inconsistent than at present. It took away from the civil action all remedy, if the words were proved to be true. As the law now stands the truth of a libel is an absolute bar against the civil remedy. The veritas convitii, absolved the parties from the crime of defamation. That, too, was peculiar to the law of England. It was not known in the law of Scotland, nor in the law of France, nor he believed in the law of any part of Europe. It was monstrous that it should be so. What right had any man to publish the infirmities of another, or the youthful error which might have been forgotten and atoned for, or some misfortune of his family for which he was not responsible? Egregious wrong might be done in this way, it was manifest, and great pain inflicted on an individual, without any benefit to the public or anybody. Now, if the Commons were of opinion that to publish truth of this nature ought to be punished criminally, being wrong, why should not the individual who suffered, have his remedy by civil action? Where there was a wrong, there was also a remedy, was the maxim of the law of England, and accordingly a clause had been inserted in the bill, enacting that the truth should not be an absolute bar in civil actions, unless the defendant could make out that it was published for the public benefit. That clause had been rejected by the House of Commons; and they left on the bill this strange anomaly, that truth was not to be an absolute bar, but only sub modo, in criminal proceedings; in civil actions, it was to be an absolute bar. The effect would be that injured parties would be driven to indict. He had rather see them obtain damages by civil actions. He regretted and deplored that the Commons had rejected the clause which gave the power to the defendant to a suit to plead that the publication of the truth was for the public good. He was not, at the same time, prepared to say, that the amendment of the Commons should be rejected. He would also refer to another clause which had been altered, that 993 which had been framed to prevent the extortion of money. He now, however, had no right to complain of that alteration, for it had been made according to the view he took. His noble and learned Friend on the Woolsack had introduced amendments altering the clause, as he (Lord Campbell) had proposed it, as he thought much impairing it. His noble and learned Friend's amendment had been struck out, and that clause had been restored pretty nearly as he had framed it. There were no other alterations in the bill which it was necessary for him to advert to. He had stated his objections to some of the alterations; and he should conclude by moving their Lordships to agree to the amendments. There was still much good in the bill. The sixth clause remained, which was a great benefit. He was glad too, that the third clause was left. The maxim, the greater the truth the greater the libel, had been banished for ever from the English law. The truth would be admitted in evidence, and it would be left for the jury to say, whether the publication were for the public good, or were published merely to gratify some wanton malevolence. He trusted their Lordships would agree to these amendments, as at this period of the session they would otherwise throw out the bill, which contained much good, though not all which he wished. He hoped that this instalment might lead to further important improvements of the law of libel, and he should take every opportunity in his power to endeavour to render it one of the most perfect, as it had hitherto been one of the most disgraceful parts of our law.