Lords Sitting of 13 February 1843

MINUTES.
BILLS. Public.—la. Creditors and Debtors (Lord Brougham's).
2a. Attornies and Solicitors.
Private.—1a. Hough's Divorce.
PETITIONS PRESENTED. By Lord Brougham, from Newton Colliery, for the Repeal of that part of the Mines and Collieries Act which Forbids the Employment of Women and Children; and from persons at Paisley, for the Repeal of the Corn-laws. —By a noble Lord, from the Dean and Chapter of Hereford, for the Repeal of so much of 6 and 7 Will. 4th, c. 77, as to the Union of the Sees of St. Asaph and Bangor.

SANITORY MEASURES—SEWERAGE.
The Earl of Clarendonbegged to ask, on the part of his noble Friend the Marquess of Normanby, who was unavoidably absent, whether it were the intention of the Government to bring forward any measures relating to the sanitory condition of the people?
The Earl of Riponsaid, it was intended to introduce into the other House a Bill for regulating buildings in London; but as regarded the general question of the sanitary condition of other towns, and the mode of effecting improvements, Government contemplated issuing a commission for the purpose of inquiring into the subject upon scientific principles. This was rendered necessary, in consequence of the
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difference of opinion which prevailed amongst competent persons with respect to the manner in which the sewerage of London was executed.

THE BANK CHARTER.
Lord Mont-eaglerose to put some questions, of which he had given notice, to the noble Duke. In the first place, he wished to know whether it were the intention of the Government to introduce any measure this Session relative to the Bank charter? The next question which he had to ask related to the system of banking generally. Inquiries had been going on for several years past, relative to the general laws of banking in this country. It was stated last Session, in the other House of Parliament, on the part of the Government, and he thought properly, that the Government had no intention of proposing any further inquiry upon the subject, because they considered the question ripe for discussion, or legislation, if either were required. He wished to know, therefore, whether it were the intention of the Government to introduce any measure this Session on the subject of banking? There was still another point, respecting which he wished to be informed. By the Bank Charter Act of 1833, the usury laws were altogether repealed for a certain period, with respect to one class of securities, namely, bills of exchange of three months' date, or having no longer to run. That provision of the act had been renewed by several temporary acts, the last of which would shortly expire. Now, as many bills in commercial transactions were drawn for as long dates as twelve months, the drawers and acceptors of such bills would be naturally anxious to know whether a Bill would be introduced to continue the provisions of the present act. He wished to guard against any inference being drawn that he was unfavourable to the existing arrangement respecting the Bank of England from the first of the questions which he had proposed.
The Duke of Wellingtonsaid, that the Bank Charter Act would not expire until August, 1844. It was not the intention of the Government to introduce any measure on that subject during the present Session. Neither did the Government intend to bring forward any proposition this Session relative to banking business generally; but the Government would bring in a Bill to continue the repeal of

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the usury laws relative to bills of exchange.

DEBTORS AND CREDITORS.
Lord Broughamlaid upon the Table the Debtors' and Creditors' Composition Bill.
The Lord Chancellorsaid, that a similar Bill had been brought in by Lord Cotton-ham, whilst Government intended to introduce another. He suggested that the progress of two Bills upon the Table should be suspended until all these measures were before their Lordships, when they might all be referred (such was the intention of the Government) to a Committee.
Lord Broughamhad no objection to that course.—Bill read a first time.

THE LAW OF LIBEL.
Lord Campbell: I rise, in pursuance of the notice I have given, to move for a Select Committee of your Lordships to consider the law of defamation and libel. I know how difficult it is to obtain attention to such a subject. Absorbed by disputes between this country and foreign states, and questions on which the fate of rival parties at home may depend, Parliament and the public are generally rather indifferent respecting any defects in our jurisprudence. Yet upon the frame of our laws the permanent credit, glory, and happiness of the country must mainly depend; and a duty is cast upon those intrusted with the power of legislating, of considering the state of the law from time to time, and adapting it to the varying circumstances of the age. One of the most important branches of the law is that which respects defamation and libel. There must necessarily be legislation on this subject. The boundary must be defined between permitted discussion and words and writings injurious to individuals and dangerous to the state. Remedies must be provided for an attack on private character, and punishments must be enacted against incitements to crime. You can as little licence as you can forbid all speaking or all written publications. In every country, therefore, the law must attempt to distinguish what is permitted from what is forbidden, and by civil and criminal sanctions guard the line which it lays down. I am sorry to say that on this important subject the law of England is more defective than that of any other civilised country in the world. Our law respecting property is excellent Our commercial code is admired, and universally imitated. Our criminal code generally has been greatly
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improved, and rendered not only more humane, but more enlightened and discriminating. Our law respecting defamation and libel has always been, and continues vague, uncertain, incongruous, inefficient, neither authoritatively permitting free discussion, nor effectually protecting private character. A little consideration will make us cease to wonder that this peculiar branch of the law should be so defective among us. There has been no act of Parliament upon the subject, except some absurd statutes passed in the reigns of Edward 1st and Richard 2nd, about false news, and scandalum magnatum, which, though not formally repealed, have long been obsolete. Mr. Fox's Libel Bill, in 1793, for asserting the right of juries to find a general verdict upon the whole matter, did not vary the law as to the offence of libel. What can we expect from the common law on such a subject? At the time when the common law took its origin, not only was printing unknown, but very few could read, and still fewer could write. Your Lordships' ancestors, the bold barons who followed CŒur de Leon to the Holy Land, and wrung Magna Charta from King John, were chiefly marksmen, and signed with a cross. But all the rules of the common law are supposed then to have existed; and how can we expect to find these rules adapted to the middle of the nineteenth century, when there are newspapers published daily, of which many thousand copies are sold, and which are read by many millions? The law upon this subject has been entirely manufactured by judicial tribunals, and chiefly by the Star Chamber. I do not feel the repugnance which some affect to judge-made law. Upon many subjects the law is better framed by the decisions of the judges, adapted to the exigencies of society, as discovered in particular cases, subject to be reviewed and altered, than it would be by prospective statuteable enactment. But the law of libel is by no means a good specimen of judicial legislation or judge-made law. Very soon after the introduction of printing, the Star Chamber was established by Henry 7th. This was a mere instrument of the executive Government: great jealousy was entertained of the press by all European kings, and particularly by the House of Tudor, and into the Star Chamber all alleged offences of the press were brought for punishment. When the Star Chamber was happily abolished, in the time of Charles 1st, its

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decisions were still considered as expositions of the law, and the famous case in the Star Chamber, "De Libellis Famosis," reported by Lord Coke, was considered binding on all the courts of Westminster Hall. Then, my Lords, although the common law judges might well be trusted to lay down rules for the enjoyment of property, I cannot think (with all repect to their memory) that they were well qualified to determine, without any assistance from the Legislature, what should be the just limits of discussion and free inquiry, and what remedy should be given, by action or indictment, where these limits have been transgressed. The judges were appointed and were removable by the Crown; and in former times, devoting themselves to their black-letter studies, they mixed little with the world, and were apt to take a very contracted view of social expediency. Whatever the cause may be, I think few will deny that the present state of the law respecting defamation and libel is exceedingly defective, and that it requires to be revised. I shall content myself with pointing out to your Lordships a few of what I consider its most glaring defects. I begin with the distinction which it makes between spoken and written slander, a distinction not made by the law of Scotland or the law of France, and condemned by some of the most eminent judges in England. With us it is not an offence to speak-any words, however calumnious, on any occasion, however public, of any individual however honourable or exalted; but for a private letter, not meant to be seen by any one, except the person to whom it is addressed, if it contains anything reflecting on the character of another, the writer is liable to be indicted, fined, and imprisoned. If it were falsely proclaimed at a county meeting that the Member for the county then attending his duty in Parliament had murdered his father, the calumniator would be exempt from any criminal proceedings. The excuse given is, that a written calumny, or a libel, tends to a breach of the peace; but if this were the true foundation on which slander is treated as a public offence, have not opprobrious words the same tendency? There is another distinction, equally without principle, between spoken and written slander—as to the civil remedy. For anything in writing at all criminatory—even, it is said, hurting the feelings of another—an action may be maintained to recover damages; but for words, however maliciously
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or publicly spoken, no action lies, unless they impute an indictable offence, or reflect upon a man in his profession, or import that he is afflicted with a contagious disease. Saying that a man of high rank is a coward and a liar would not be action able, although it would be actionable to say that he has the measles or the hooping cough. To apply to a woman of exalted station and unblemished virtue the most opprobrious epithets that can be applied to her sex, could not be made the foundation of any proceeding, civil or criminal, unless the words were spoken within the walls of the city of London, where ladies of a certain description are liable to be carted. Indeed, a suit might be brought prosalute animœ, in the Ecclesiastical Court, and the propagator of the scandal might be condemned to do penance before the congregation in a white sheet; but by a bill introduced by the Government into the other House of Parliament, even this remedy is abolished. Is it not fitting that we should consider seriously whether the law may not be freed from such incongruities? It is more than thirty years since Sir James Mansfield, Chief Justice of the Common Pleas, a man not apt to blame the law unnecessarily, and not at all given to change, lamented this distinction between written and spoken slander, and said he gave effect to it only because he was bound by the decisions of his predecessors. In this manner the Chief Justice called for the interference of the Legislature to wipe off a blot which judges had cast upon our code. But when I come to consider criminal proceedings for libel, I find things still more to be lamented and condemned. In the first place, we have no definition to be relied upon, either as to what is a personal or what is a political libel. I know the extreme difficulty to be encountered in attempting any such definition. My noble and learned Friend (Lord Brougham), who has tried his skillful hand at it, has pronounced it impossible. Yet I do not utterly despair, and I am sure your Lordships would well employ a portion of your valuable time in trying to supply this deficiency. The evil of uncertainty is so great as sometimes to create a wish for a licenser of the press. It is often utterly impossible to say whether a publication is libellous or not, if you have no more precise criterion than whether it be hurtful to the feelings of an individual, or tends to bring him into odium, or contempt, or ridicule. According

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to this, H. B. who has so much amused the present generation, may be a terrible libeller, and my two noble and learned Friends, the present Lord Chancellor and the ex-Lord Chancellor may indict him for his last caricature, very harmlessly representing them as basketing Whig Reform, and dividing between them the patronage of the Court of Chancery. But with regard to political libel the deficiency is more flagrant. From the mildness of judges, and the liberality of juries, this evil in the administration of justice is much mitigated; but I must say that no man can tell how far in strict law he may go in commenting upon public men or measures. Great latitude is allowed under the conceded freedom of "fair discussion." But no such latitude was allowed till recent times; and the Legislature never having interposed to change the law, I am rather doubtful what the law really is. In the year 1704 it was laid down, in the "Queen v Tutchin," by that most constitutional judge, Lord Holt, that it is libellous to publish anything reflecting on the existing administration. That was an information, ex officio, by the Attorney-general, for certain articles in a newspaper called the Observalor, reflecting upon the Government, particularly in the management of the navy, and Lord Holt said to the jury,
"If people should not be called to account for possessing the people with an ill opinion of the Government, no government can subsist. For it 'is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavour to procure animosities as to the management of it; this has been looked upon as a crime, and no government can be safe without it be punished. Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of the Government. To tell us that those that are employed know nothing of the matter, and those that do know are not employed. Men are not adopted to offices, but offices to men, out of a particular regard to their interest and not to their fitness for the places; this is the purport of these papers. If you are satisfied that he is guilty of composing and publishing those papers at London you are to find him guilty."
I must take this to have been the law in the reign of Queen Anne, and I know not when it was altered. In the most recent edition of "Hawkins Pleas of the Crown" (a book of great authority), I find it laid down,
" It is a very high aggravation of a libel that it tends to scandalize the Government, by
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reflecting on those who are intrusted with the administration of public affairs, and to breed in the people a dislike to their governors."
If the law were now so laid down to a jury by a Chief Justice, and could be brought before your Lordships in your judicial capacity by writ of error, I know not exactly how you could hold the charge to be erroneous. If the right of freely discussing the measures of Government belongs to the subject, ought he not to hold it by a more secure tenure than the varying opinions of judges? I come now to a point of very great difficulty, on which I have myself a strong opinion, but on which others, entitled to the greatest deference, think differently. Upon a criminal prosecution for a libel, ought the defendant to be permitted to give in evidence the truth, or Veritas convicii? The criminal law commissioners have given it as their opinion, that in early times a libel to be indictable must be false, and this seems to have been taken for law so late as the year 1702, in the case of the Queen v Fuller. There being then an information for a libel, stating that persons in office had carried on correspondence with the abdicated monarch, James 2nd, and had received sums of money from him, the Attorney-general called upon the defendant to prove the truth of the libel, if he could, and Chief Justice Holt several times invited him to produce witnesses to prove the truth of the libel, intimating that if he did so he would be entitled to an acquittal. But in 1793 the judges being consulted by your Lord ships, gave it as their opinion that by the law of England the truth cannot be given in evidence on the trial of an indictment or information for libel; and it has been since decided, that after a conviction the truth cannot be disclosed to the court by affidavit in mitigation of punishment. This being the state of the law, does it not deserve consideration from your Lordships whether it ought to continue? Its inconveniences are manifold, and it can only be submitted to from an apprehension that still greater inconveniences would follow from its alteration. It is revolting to the common sense of mankind, which declares in the language of the civil law,—
" Eum qui nocentem infamavit non esse bonum œquum ob eam rem condemnari; nam peccata nocentium nota esse et opportere et expedire,"

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It brings great scandal on the administration of justice, by confounding different degrees of guilt, and by confounding with the guilty those who are morally innocent. It strips character of the effectual protection of the law: for a prosecution has little effect in vindicating character, when the public know that whether the charge be true or false, there must equally be a conviction, and the punishment is the same. It prevents the severe punishment from being inflicted which is deserved by him who is proved knowingly and maliciously to have brought a false charge against another. Mr. Starkie, the very learned author of the "Law of Libel," and the head of the criminal law commission, states, as the result of the present law, that as the truth is excluded, no man can be justly punished for a libel, except upon the footing that it is true; that is to say, he cannot justly have a heavier sentence than might fairly be imposed upon him for truly publishing the charge. The present rule has a strong tendency to keep back from the public important information, which the public have an interest to possess. Your Lordships may remember an indictment for a libel preferred by a foreign swindler, who had been convicted and sentenced to the galleys in France, and here sat up as an instructor of youth. The defendant at the trial offered in evidence a copy of his conviction, under the seal of the court; but the judge ruled that it could not be received, and the jury were compelled to find a verdict of guilty. To show how the rule may work, I will mention a still more recent case of the Times newspaper, which ventured to expose the machinations of the most desperate and formidable gang of swindlers ever assembled, who, by forged letters of credit, had laid a plan to cheat the principal bankers all over Europe on the same day. A civil action was brought, and by infinite labour and unbounded expense, evidence of the conspiracy was obtained from many different cities on the continent, and it was proved to the satisfaction of the jury. The commercial body of the city of London voted a valuable testimonial to the proprietors of the Times for their spirited exertions, and the benefit they had conferred upon the public. But, my Lords, if any one of these swindlers had preferred an indictment against the Times for this same libel, the truth would have been no defence, and could not have been received
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in mitigation of punishment, and the same individuals, so publicly thanked, would have been liable to fine and imprisonment as calumniators. Perhaps the greatest evil of the present system is, that it gives the most wicked slanderers a pretext for saying that they are ill-used, and the means of exciting public sympathy in their favour. The leading journals, on both sides in politics, are very respectably conducted: they abstain from attacks on private character, and do not violate the sanctity of domestic life. But there are one or two journals which exist by slander —by pandering to the base appetite for scandal—and, as I have been credibly informed, by extorting money under the threat of publishing paragraphs reflecting on the honour of families. If they are prosecuted for libels, they immediately complain of the law of libel: they say they are victims to this law; and conscious of the utter falsehood of what they have published, they represent that, if they were permitted, they could prove the whole to be true. According to the doctrine of Mr. Starkie, they can only be punished as if the whole were true; the distinction between truth and falsehood being avowedly disregarded in the sentence, they cannot be treated as wilful and deliberate slanderers, and no reparation is done to the reputation of the parties whom they have so grievously wronged. When such are the evils arising from the exclusion of the truth, what are the objections to its admission? We are told that the essence of the offence consists in its tendency to produce a breach of the peace— which is as great whether the charge be true or false; and indeed, if the principle were just, the legitimate consequence is, "that the greater the truth, the greater the libel;" for it has been justly observed that many people despise what is palpably false, and resent what has an appearance of probability. But I regard this reason for making libel a criminal offence as a contemptible fiction. Libel is an offence in the same manner that theft is an offence; because it deprives a citizen of that which he is entitled to enjoy, and which the good of society requires should be protected by penal sanctions. Is it really criminal to caluminate a bishop or a judge, or a friendless woman, because it is feared they would break the peace by horse-whipping the libeller? Reputation is to be protected like property

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in the possession of the righful owner. But, generally, there is no injury done to an individual in speaking the truth concerning him. So strongly is this recognised by the law of England, that truth, or the Veritas convicii, is always considered an answer to an action for damages. In reality, an indictment for a personal libel is a private remedy as much as an action. The public prosecutor never interferes on such an occasion; and the only object is private redress or revenge. With what consistency or propriety, then, do you refuse a civil action to a person truly charged with a crime, and give him a criminal prosecution, as if he were unjustly accused? But it is said, that instead of publishing offences to the world, the offenders should be carried before a magistrate, and brought to jus lice according to the forms of law. How would this apply to offences, of which the party may have been already convicted, or to offences committed in a foreign country? How does it apply to many offences against honesty and morality, for which no legal punishment has been provided? Suppose there were a man so hardened in profligacy as systematically to answer the advertisements of unprotected young women for the situation of governess, with a view to seduce them, he could not be criminally prosecuted; but is it not desirable that a public warning should be given against his infamous schemes? The criminal law commissioners, in their last report, have pointed out the peculiar hardship of excluding the truth upon the trial of a criminal information. The information is only granted upon the charge being negatived by the prosecutor, and not being substantiated on affidavit. But, say the commissioners, an editor may have inserted the article on the credible tetimony of persons whom he cannot compel to make an affidavit, and whom he might compel by subpoena to give evidence at the trial. However, when the case comes to trial, the jury are told the libel is false, or the court never would have granted the information, and the judge is not permitted to receive evidence to show that it is true. I must agree with them, that there is a danger of this creating a prejudice against the defendant, and perhaps it might be salutary if, as they suggest, this extraordinary interference of the court should not be invoked unless the
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prosecutor should be prepared to allow the truth of the charge to be submitted to the jury. Although I would allow the truth in every instance to be given in evidence, I am not prepared to say that in every instance it should amount to a complete defence. Upon this point I venture to differ, with great respect, from the commissioners who prepared the new code for our Indian possessions, and to agree rather with the celebrated code prepared by Mr. Livingstone, for the state of Louisiana, according to which, the truth being admitted, it is left to the jury to say whether the publication was for the good of the community. I allow that you cannot look merely to the private motives of the defendant. Although they should be malicious and revengeful, if a benefit has been conferred upon society, he ought not to be punished as a criminal. But many cases may be imagined where society has no interest to be informed of the private history of an individual, and when the malicious disclosure of what is true is wrongful, and ought to be punished. There may have been faults committed in early youth atoned for by penitence and a long course of good conduct, which may have conducted the individual to a station in which gravity and sanctity of character are required. Is it to be understood that these faults which were, perhaps, never known, or are forgotten, may be now blazoned to the world with impunity? Most of your Lordships have heard the story of the girl seduced when very young—reformed and respectably established in life—being threatened by her seducer that he would publish her shame to the world unless she would renew her illicit intercourse with him. A man may have personal failings, or may be unfortunate in his domestic relations, so that a malicious disclosure of such circumstances may give him great pain without any benefit to the public. Another defect in the present libel law, showing that it requires revision, is the difficulty of ascertaining who is liable as publisher. It has been ruled in former times, that a person who laughs when he hears a libellous epigram read, is liable as the publisher. In my own time it has been laid down, that all the registered owners of a newspaper are absolutely and conclusively liable to a criminal prosecution for any libel inserted in the newspaper; and that proof was not admissible that it had been inserted without their general or special au

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thority, and under circumstances where it was impossible that they could have authorised it. I do not believe that this is the law; and I never heard it so laid down by my noble and learned Friend the present Chief Justice of the Queen's Bench; but I think the rule ought to be promulgated by the Legislature, whether proprietorship is prima facie or conclusive evidence of publication. There is only one other defect of the law of libel which I would beg leave to point out to your Lordships— the entire absence of any attempt by law to apportion the punishment according to the degree of guilt. At common law, libel was considered universally an infamous offence, and was punished, at the direction of the court, with fine, imprisonment without any limit, pillory, whipping, and loss of ears. The punishment of the pillory has been abolished by statute—whipping and loss of ears may be considered as obsolete; but upon every conviction for libel the defendant is liable to fine and imprisonment, to the length of which the law has imposed no limit, without any distinction as to the nature of the charge imputed, or the station or character of the person against whom the charge is made; or whether it be true or false; or whether the defendant actually composed the libel; or whether, though subject to a legal complicity, he was, in point of fact, entirely ignorant of its contents. It is surely worth considering whether there might not be some gradation in the offence, as it occurs with or without particular aggravations, accompanied by a corresponding gradation of punishment. For these reasons, my Lords, I venture to propose to your Lordships that a select committee should be appointed to consider the whole of this subject. My noble and learned Friend on the Woolsack has very courteously asked me why I do not at once introduce a bill? My answer is, that I have by no means, at present, sufficient confidence in my own views to propose them for the adoption of the Legislature, until they are considered and canvassed by others more competent to come to a right conclusion, and until additional information is obtained. If it be your Lordships' pleasure that the committee I move for should be appointed, I hope we may be able to examine before it lawyers, not only belonging to this country, but to other countries in Europe, and not only lawyers, but gentlemen from other classes of society who have attended to the general subject of ju-
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risprudence and the restrictions by which the communication of ideas by speaking, or by the press, ought to be guarded. When the committee shall have concluded their labours, I pledge myself to present a bill upon the subject, aided by their inquiries and deliberations. No one can feel more deeply than I do the importance of protecting from calumny the reputation of individuals, and of correcting the abuses of the press which may be dangerous to the public tranquillity, and injurious to morals and religion; but I am convinced that these great ends will be more effectually attained by rendering the law more certain, more discriminating, more just, and more in harmony with the opinions and feelings of the people.
Lord Brougham,in seconding the motion said that everything he had heard on this subject since, only confirmed the opinions respecting what he broached in the year 1816, when he called attention to the subject in the other House of Parliament. Had his noble and learned Friend thought proper to proceed by bill, he should have taken the liberty of moving that his bill also should be referred to the committee, as had been done with great advantage in the case of the law of debtor and creditor. He certainly did not think that there was any means of defining libel, or instructing the judges as to what they should consider the bounds of fair discusssion. He was persuaded that no definition could be adopted which would not have the effect of limiting discussion. However, the whole question would be canvassed in the committee, where they might have the evidence of lawyers, writers, and other men interested in the question. I do hope (continued the noble and learned Lord) that this amendment of the law of libel will have the effect of putting an end at length to the impunity of those who are by far the most pernicious and scandalous of all libellers — those who abuse the liberty of the press— who abuse and pervert it to their own sordid and malignant purposes, but, above all sordid purpose—those who use the freedom of the press as pirates do the freedom of navigating the great highway of nations, who inflict cruelties, not to be described, in order to drive a private and sordid traffic which I cannot find words sufficiently glowing and pointed to express my abhorrence and disgust at the contemplation of—infamous and detestable per-

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sons, whose avocations my noble Friend described in not too strong, but well-merited terms, who pursue a hateful trade in the terrors of mankind, ay, and of womankind. In the terrors of mankind, I repeat, who do not dread exposure on their own account—for they are fearless as to any attempt on their character—but who suffer vicariously, in the outraged feelings and fears of those connected with them, through which assaults on their own reputation become assaults on their peace —men who perpetrate their flagrant misdeeds under the eye of Parliament, and receive sums of money, nay, amass fortunes, by levying their contributions on those who thus hope to stop their vile and slanderous publications. My Lords, I could not hear this subject alluded to without expressing a hope that the result of the inquiry will, at all events, be a remedy for the grievous evil which I have just alluded to.
The Lord Chancellor: It was quite true that, after his noble and learned Friend had given his notice, he had stated to him that he should not object to the motion. For this reason, and because they should have an opportunity, when all the materials were before them, of treating the matter with greater advantage, he did not think it desirable to enter into the consideration of the various topics—some of them of great difficulty, and others of extreme nicety—to which their attention had been called. He certainly did think, and he had so suggested to his noble and learned Friend, that, considering his great experience, and that he was fully master of the whole subject— and considering also that there were many other noble and learned Lords who had directed their attention to the subject—the better course would be to direct specifically their Lordships' attention to those reforms and amendments which ought, in his opinion, to be introduced in this branch of our laws. We should then have had an opportunity of discussing each point one after another, and when affirmed they could be referred to the committee. In that case certain points only would be brought under the notice of the committee, which had received their Lordships' previous consideration. His only regret was that he feared his other avocations would prevent his attending the committee.
Lord Denmanregretted that his noble
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Friend had not stated the alterations which he intended to propose in the existing law in the form of a bill, in order that their Lordships might have an opportunity of judging of them beforehand. He should certainly have preferred hearing something definitely suggested upon the subject; and when his noble Friend stated that in the codes of other countries the law relating to libel would be found to be less defective than our own system, he should like to have heard what those enactments were by means of which it was supposed that we could improve our own. That the system at present in use in this country might be improved in some points he had no doubt. For instance, there was a doubt relative to the length of punishment which in some cases it was competent to inflict, and he should like to see a certain limit imposed as the maximum to which such punishment should extend. There was now, he knew, no fear of personal mutilation being resorted to in any case, but he would have a declaration in a definite clause prohibiting it in any measure which might be proposed relative to the law of libel. With respect to the suggestion thrown out relative to truth being admitted as a justification for libel, it appeared to him that there would exist some difficulty in applying the test proposed. He did not say that there were not many cases in which the occasion for uttering defamatory matter might be a justification for uttering it; but the utterance of the mere naked truth had been shown by his learned and noble Friend to be capable of causing much misery, and producing many evil consequences, without tending to the possible gratification of aught other than the malice of parties, who might have raked up faults long ago repented of and atoned for. The subject of the law of libel was one which had occupied the attention of all connected with its administration; and he would only refer to the Libel Act, introduced by Mr. Fox in the year 1792, to remind their Lordships of the great service which that enactment had rendered to the cause of liberty and truth. With reference to the harshness with which the law of libel had occasionally been administered, he would cite the case of Mr. Johnson, the bookseller, in St. Paul's Church-yard, who was convicted of a libel because a political pamphlet of Gilbert Wakefield had been exposed for sale in his shop. Johnson had been Wakefield's

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publisher of scientific and learned works, but he had expressly refused to publish this pamphlet—nay, he had actually declined to allow the book to be sold on his premises, and it was by a mere accident that it was so sold. Nevertheless, Mr. Johnson went to prison for eight months because he, in the eye of the law, was the publisher of the libel. No such event he was sure could take place now. Common law had worked its way through the feelings of mankind, and, filtered through sentiments of justice and rectitude, it would never be again laid down in the oppressive way in which it had once been administered. But whatever made that certainty still greater would be most agreeable to him, and he would, therefore, willingly support the proposal of his noble and learned Friend.
Lord Cottenhamsuggested, that it would be advisable if certain evidence taken on this subject before a committee of the House of Commons in 1834, should be laid before the committee of their Lordships, now moved for.
Lord Campbellreplied, that although that evidence had not been officially communicated to their Lordships' House, yet that he himself had the means of laying it before the committee.
Motion agreed to.

ATTORNIES AND SOLICITORS' BILL.
Lord Langdalesaid, I have the honour to move the Second Reading of the Bill for Consolidating and Amending several of the Laws relating to Attornies and Solicitors. Your Lordships are aware that the Legislature has, from a very early period, thought it right to secure to all persons the right of employing attornies and solicitors to appear and act for them in the courts of justice, and to transact all legal business on their behalf; and also to adopt such regulations as were thought calculated to provide the public with attornies and solicitors duly qualified for the performance of the duties they undertook. The business in which attornies and solicitors are employed is of the utmost importance; it relates to transactions affecting the characters, the properties, and the lives of their clients. The agents and confidential advisers in such transactions have necessarily become a very influential body of men. Speaking in general terms, they may be truly said to be distinguished for their acquirements and integrity, but they
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are placed in circumstances and engaged in business often so little understood by those for whom they act, that it has been thought expedient and necessary to subject them to special regulations.
The laws which had previously been made for the admission and regulation of attornies and solicitors were superseded by the Statute 2 Geo. 2nd, c. 23. That act was experimental, and was to be continued for nine years only. It was explained, amended, re-amended, and prolonged by several subsequent acts, and ultimately made perpetual by the 30 Geo. 2nd, c. 19. The regulations were intended to secure the due qualification of the persons admitted to practice and to afford protection to clients against improper charges. To secure the qualification it was provided that the candidates should, before admission to practice, be examined as to their fitness and capacity, and should have had the means of instruction by employment and study in the service of qualified persons under articles of clerkship. And for the protection of the client against improper charges, attornies and solicitors were prevented from bringing actions for the recovery of their bills for business done in the courts, until they had first delivered the bills to their clients, who had an opportunity afforded them of procuring the bills to be taxed and moderated by the officers of the courts.
Subsequent to the time when the act of the 2 George 2nd, was made perpetual, it was thought fit to impose stamp duties on attornies and solicitors; and for the purpose of collecting the duties, it was by the 25 George 3rd, c. 80 enacted, that every attorney and solicitor admitted to practice should annually take out a certificate of such his admission, and of his enrolment or register; and that every such certificate should be charged with a stamp duty. And various regulations were made for imposing on attornies and solicitors, the obligation of taking out the certificate. And at a subsequent period, by the Act 34 George 3rd, c. 14, a stamp duty was imposed on articles of clerkship and on admittances. It is not proposed by this bill to interfere with the stamp duties; but I have thought it right to state them for the purpose of shewing the origin of the certificate which was merely fiscal.
After a considerable interval some further amendments were made in the laws

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relating to attornies and solicitors; and encouragement was given for their more liberal education in the Universities of Oxford, Cambridge, Dublin, Durham, and London.
The consequence of there being so many Acts of Parliament relating to the same subjects has been a considerable perplexity and obscurity in the law. Regulations which seem capable of being made clear, have become the subject of litigation and conflicting decisions; and to those who have considered the subject, it has long been thought desirable to consolidate the law, making, at the same time, such amendments as experience has suggested.
The subjects comprised in the present bill are principally these. First, the service of the clerks. Secondly, The examination and admission of attornies and solicitors. Thirdly, the certificates of their being duly enrolled; and, Fourthly, the taxation and payment of their bills of costs; and there are some matters of smaller importance which I shall have to notice as I proceed. The service of clerks is to be secured by articles of clerkship; and, according to the general rules, it is to continue for five years, but one of the five years may be served with a London agent, and another with a special pleader or barrister, and the service of five years may be reduced to a service of three years, if the clerk be a graduate of any of the English universities, or of the University of Dublin. It is further provided, that the master with whom the service is to take place is to be in actual practice for himself, and is to have been so for five years. But care is so taken that the clerk is not to be prejudiced by want of due gratification of the master; and any complaint of defective service is to be made within twelve months after the admission. In this part of the bill the only new provision is that which requires that the attorney or solicitor who takes an articled clerk shall have himself been in practice for five years. It has been represented to me that some clerks have suffered from want of experience in their masters, and I have therefore been induced to make this proposal which I submit, to the consideration of your Lordships, having myself some doubt of its expediency.
As to the examination and admission of attornies and solicitors,' the bill provides for the continuance of a real and
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efficient examination of all who are candidates to be admitted. The Act of Geo. 2d. provided, that the judges and the master of the rolls, or two masters in Chancery, should inquire by such ways and means as they thought proper touching the fitness and capacity of the candidates to be admitted. I am not aware whether any adequate examination was instituted upon or after the passing of the act, but if it ever was so, it had ceased to be efficient, and long before the year 1836, it had dwindled into a mere form. Instead of any examination at all taking place, attornies and solicitors were admitted on the proof of service, and on the certificate of barristers that they were fit. But in the year 1836 the Courts of Common Law, taking advantage of the establishment, and availing themselves of the assistance of the Incorporated Law Society, instituted a very efficient examination for ascertaining the attainments of attornies. This example was soon followed by the Court of Chancery, and, for about seven years past, there has been in every term a strict and most useful examination of the candidates for admission as attornies and solicitors. This examination has been productive of very useful results. I have been informed on authority, upon which I can rely, that a marked improvement has taken place in the conduct and character of students for that branch of the legal profession, and that the candidates from time to time present themselves for admission with proofs of increased acquirements, and better founded claims to respect and confidence. This bill provides for the continuance of this system of examination, reserving to the Judges and the Master of the Rolls the power of appointing separate examiners for attornies and solicitors respectively, and also empowering them, if they should so think fit, to appoint jointly one set of examiners for both attornies and solicitors. The examination is so conducted as to test the knowledge of the students in the practice in the Courts both of Law and of Equity. Whoever passes the examination is deemed to be qualified by his attainments to be both attorney and solicitor. One who is admitted as an attorney is considered to be entitled to be admitted a solicitor; and one who is admitted a solicitor is considered to be entitled to be admitted an attorney. The consequence is, that nearly every attorney is a solicitor, and nearly every

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solicitor is an attorney; and the two characters being thus consolidated, I had at one time hoped that one roll of attornies and solicitors might be established. But objections to that course having arisen, this bill preserves the separate rolls of attornies and solicitors nearly as they are now, and provides for the convenience and advantage of one general roll in a manner which I shall afterwards mention.
With respect to the certificate, it is to be observed, that the enrolment is the evidence that the attorney or solicitor has been found to possess the requisite qualifications to entitle him to practice. But the courts have great authority over him, and there are various acts of misconduct for which he may be struck off the roll. It is therefore important to ascertain from time to time that he remains on the roll, and this may be evidenced by the issue of an annual certificate to that effect. The certificate, however, was first required, and is now only required for the purposes of revenue, and to enforce payment of the stamp duty imposed upon it. In form it was at first a certificate of admission and enrolment duly stamped, and in that form might have afforded some evidence of the name of the attorney or solicitor being on the roll; but by subsequent regulations it has become a mere certificate that the stamp duty has been paid, and affords no evidence whatever of admission or enrolment. It is true that in by far the greater number of cases the name of the attorney or solicitor who pays the duty is enrolled; but there is annually published in a book called the "Law List," a list of the attornies and solicitors who have paid the duty; and there is no list published or made of the attornies and solicitors who are actually enrolled—and under these circumstances it sometimes occurs that persons pay the duty—obtain the certificate, by that means procure their names to be inserted in the "Law List," and thereby appear to be attornies and solicitors, although, in fact, they are not qualified as such, and are not enrolled. To practise as an attorney or solicitor without being on the roll, is an offence which subjects the offenders to great risks — but the risk is occasionally hazarded; and it is proposed by this bill to remedy the inconveniences which have arisen by those means, and to afford to the public better protection against the practice of
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unqualified persons by impressing the stamp upon a certificate which shall at all times afford evidence of the admission and enrolment of the attorney or solicitor who receives and holds it. The mode of obtaining this important object is to appoint a registrar of certificates, whose duty it may be to form one general roll of the attornies and solicitors from the rolls of the several different courts of law and equity, and who may under proper regulations issue certificates, showing the attornies and solicitors to be on the roll, making at the same time proper provision for the certificates being duly stamped. The incorporated Law Society being in asituation which eminently qualifies them for the performance of the duties of this office, and having the strongest interests to see the duties of it fairly performed, it is proposed that they should be appointed the first registrars—giving power, however, to the judges, to appoint any other if they should think proper. This simple regulation will make it unnecessary to continue some inconvenient and severe enactments which have led to much litigation and many conflicting decisions. But it is still proposed that attornies and solicitors shall not be able to recover any costs for business done at times to which their certificates do not extend.
The next subject to which I have to ask attention, is the delivery of bills and the taxation of costs; and in this respect the present bill proposes what seems to me a considerable improvement. The law as it now stands, prevents an attorney or solicitor from bringing an action to recover the amount of his bill for business done until the lapse of a month after the bill has been delivered to the client, who may therefore have the bill taxed. But the business referred to, must have been transacted in some court—-so that as to business, of which no part has been transacted in any court (and there is a great deal of such business) the client has not this protection. The Court of Chancery has, indeed, exercised a jurisdiction which belonged to it before the statute of Geo. 2, to order the taxation of costs in cases where the solicitor claims a lien on documents in his possession, and has also exercised a jurisdiction to order the taxation of the bills of costs and costs of agents. But the Courts of Law have not exercised a like jurisdiction; and there are very many cases in which, according to the existing

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law there can be no taxation. This bill proposes to make many bills of costs not formerly subject to taxation, taxable, providing only that those bills which do not relate to business transacted in any court shall be referred for taxation to the Taxing Master of the Court of Chancery. This bill also provides that the attorney or solicitor may himself be at liberty to refer his own bill for taxation, if the client does not think fit to do so within a limited time after the delivery of the bill.
This bill contains the clauses which are contained in former acts for prohibiting attornies and solicitors from practising whilst in prison, from acting as agents for persons who are not qualified, and from acting as justices of the peace, except in places having justices by charter; and also for preventing unqualified persons from suing out writs, and acting in County Courts; substituting for penalties a provision that any infringement of the rule so made, is to be treated as a contempt of the court in which this offence is committed.
The only remaining clauses of the bill to which I think it necessary to ask the attention of your Lordships on this occasion, are the 43d, the 47th, and the 48th.
The great power and influence which an attorney must necessarily possess over his client during the pendency of a cause, has made the court regard security for costs given by a client to his attorney under such circumstances, with great jealousy. Securities for future costs are deemed to be illegal; and many suits have been instituted either for the purpose of setting aside securities for costs actually incurred, or for the purpose of reducing the sum secured to the sum really due from the client to the solicitor, on a full and fair investigation of the charges and accounts. It has been suggested, that many persons able to give security, but unable to advance money for the prosecution of their causes, have been prevented from instituting the proceedings necessary for the establishment of their rights, and for the purpose of preventing this hardship and diminishing litigation respecting such securities. This bill proposes to permit securities for costs to be taken, but to provide that they shall in no case extend to sums which shall not be found to be actually due upon taxation.
The 47th section contains words which
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make an alteration in the statute of George 2nd, by inserting instead of the words "to be," the words "holding at the time of the passing of this act the offices of." The effect is, not to prejudice any person who now holds the office of solicitor to one of the Government Boards, but to make the being an attorney or solicitor who has been examined and enrolled, a necessary qualification for the persons who may be hereafter chosen to fill such office. There can, I apprehend, be no doubt but that a sufficient number of persons, amply qualified by their character and attainments to fill these offices may be found among the attornies and solicitors really such. The duties of the offices may be most satisfactorily performed by persons chosen from that class, and considering the offices as conferring honour and distinction on the holders, it may be thought expedient to bestow them in a manner to encourage amongst a numerous and influential body of men, the cultivation of those qualities by which such honour and distinction may probably be attained.
The 48th section proposes to authorize attornies and solicitors to administer oaths, and if such authority could be given, it would undoubtedly afford great convenience to the suitors of the several courts. Having however, been informed that this power cannot be given without materially interfering with the emoluments of various persons— thinking it injury to take away those emoluments without giving compensation to those who may suffer, and not knowing at present of any means by which such compensation can be secured to them, I am afraid that I shall be under the necessity of asking your Lordships' permission to withdraw this clause in the committee.
Your Lordships will observe, that this Bill does not propose to disturb any enactments or statutes which enable all persons to employ attornies, and solicitors in the transaction of their legal business in the courts of law or equity, or which impose penalties for deceit, embezzlement, or perjury, or which charge at tornies, solicitors, and their articled clerks with stamp duties, and which forbid at tornies and solicitors and all other persons from committing champarty. The object is simply to contradict and amend several acts of Parliament which relate to the qualification of attornies and solicitors, and the protection of their clients from

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unjust charges. And I hope that your Lordships will have no objection to give this bill a second reading.
Adjourned.