Sitting of 9 February 1844

MINUTES.
BILLS. Public.—1a. Libel Law Amendment. Reported.—Teachers of Schools (Ireland).
3a. and passed:—Gaming Actions Discontinuance.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
Lord Broughamsaid, an account had been laid on the Table of all Appeals and Cases before the Privy Council which have not yet been heard, and which were ready for hearing on or before the 1st day of February, 1844, which return, although of a negative character, was very satisfactory, being "nil."
The Lord Chancellortook that opportunity of stating his opinion to be unchanged, that it was necessary to have a permanent head of this court.
Lord Broughamhad no objection to such a plan, which he had himself proposed; the establishment of the Judicial Committee of the Privy Council had been unquestionably productive of great benefit; but he had formerly expressed his opinion, and that opinion he still retained, that it was susceptible of improvement, and, if supported, he would endeavour to remedy its imperfections. He had no objection whatever to bring in a bill for that purpose, embodying such alterations as seemed to him to be necessary, for experience had shown him that the existing law did not go far enough.
Lord Campbellwas of opinion that the system, as it stood at present, worked extremely well. With his noble and learned Friend that system had originated, and the public were much indebted to him for what he had done. His noble and learned Friend might be said to be at the head of the Judicial Committee; but still, so excellent was its arrangement, that they contrived to get on very well in his absence, although they missed those witty remarks with which his noble and learned Friend enlivened every subject. His noble and learned Friend was pleased with the return "nil," but how did it happen that such a return could be truly made? The reason was, because, while his noble and learned Friend was at his chateau in France, enjoying all the luxuries of the climate, the other members of the Committee were sitting day by day amid the fogs of Downing-street, busily employed in getting rid of the arrears. He was not favourable to the creation of any new judicial office. The Committee had been recently strengthened by the accession of the legal talents of Mr. Pemberton Leigh, the Chancellor of the Duchy of Cornwall, and he conceived they were perfectly capable of transacting all the necessary business.
Lord Broughamthought the objection premature, because his noble and learned Friend did not know his plan. It would be more effectual than his former bill. As his noble and learned Friend had alluded to him, he hoped he might reciprocate the compliment, which he did fully and sincerely, though he could not say, that his noble and learned Friend shed any liveliness on any matters before the Council, which he knew to be of such a nature as to be perfectly dry—they were so remarkably dry that he defied all the liveliness of all the Members to give them anything they had not in their own nature. He would state what he felt himself, that he had very great scruples of conscience and much delicacy in calling upon his noble and learned Friends, who had other duties to perform, to come and give their hours and labour in that Court, and to render perfectly gratuitous services to the public. It was a thing which he abhorred to find the discharge of judicial functions merely voluntary. They had now it was true, the accession of Mr. Pemberton Leigh. Nevertheless, though that gentleman was a very great and beneficial accession to the Judicial Committee, it must not be forgotten, that they had recently been deprived altogether of the services of the Common Law Judges who had sufficient business elsewhere, owing to the winter circuits, and the great increase of business in banco, consequent on the bill of his noble and learned Friend Lord Denman, and the new rules. He alluded to Mr. Justice Erskine, Mr. Baron Parke, and Mr. Bosanquet, who, however, was no longer a judge. The only two they could rely upon were Dr. Lushington and Mr. Pemberton Leigh. With respect, however, to Mr. Pemberton Leigh, the same objection existed that he had already stated. Here was a gentleman sitting week after week and assisting in the decision of most important causes, without either salary or pension. He thought that this ought not to be the case. It was a defect that could easily be rectified, and it was indifferent to him in what way it was done. Certainly, a remedy might be adopted, at a very moderate expense to the public and with a great diminution of labour to those who were now obliged to act. Such being his opinion, he should lay his plan before the House in the form of a bill, founded on the measure of 1834, for better regulating and expediting the busi-

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ness before the Judicial Committee of the Privy Council, ancillary to proceedings in the House of Lords. He should submit it, in the first instance, to his noble and learned Friend on the Woolsack, to his noble and learned Friend near him, to Dr. Lushington, and to one or two other persons, in order to put it into the best shape before submitting it to their Lordships.

LAW OF LIBEL.
Lord Campbelllaid on the Table a bill which was of considerable importance, but he would content himself on that occasion with very shortly explaining its objects and provisions, and humbly hoped this would enable their Lordships to come to a favourable conclusion with respect to its utility. The bill was to effect this: when a prosecution should take place by the Attorney-general, or on behalf of the Crown, for a libel, or for the use of seditious words, and the libel or words stated facts which might or might not be true, to allow the defendant to give in evidence the truth of the statements, on a notice being served on the prosecutor. Their Lordships would well recollect that the subject of the Law of Libel was brought before them last Session, so far as regarded libels on individuals, or private defamation; there was, however, a great difference between private wrongs and public libels, or the use of seditious words. It was thought more expedient to abstain last Session from touching public prosecutions, that they might not hazard the great good which they then had in contemplation. Their Lordships did agree to a bill, which had, in his opinion, greatly improved the law. Some of the provisions assented to by their Lordships had not met with the agreement of the other House of Parliament. He could not coincide in the view there taken; and though he did not now propose to make any alteration with regard to the provisions on which the two Houses differed, the time might come when they would agree that their Lordships had rightly determined. He thought that the time would come when, in a public place, a man could not be denounced as a liar, a scoundrel, and a coward, without having any remedy, civil or criminal, or that a female reputation could be tarnished by the most opprobrious appellations without any redress being afforded. At present he would be content to leave the law, under its present
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objections in that respect, as it stood. The present bill which he submitted to their Lordships was of the nature he had described, and related to what ought to be done when there was a prosecution for public libel, or for seditious words, when facts were stated which might or might not be true. As the law now stood, the truth of a libel could not be inquired into. Suppose that a libel asserted that the Government of the country had sent out troops on an expedition in an unseaworthy ship, whereby they were in great danger of going down. That might or might not be a libel, either true or false; but surely the guilt or innocence of the party accused might materially depend upon whether the statement made in the libel was true or false. There had been libels with respect to military flogging; it might be said, that great cruelty had been perpetrated by the sentence of courts-martial. The guilt or innocence of the party in this case must depend upon whether the statement was a pure fiction, or was founded in fact. Now, he proposed by this bill, that on notice being given, the defendant at the time of the trial should be permitted to give evidence of the facts which he asserted; and, of course, that evidence should also be allowed to be given on the part of the Crown, to show that his statement was false. It would then be for the jury, taking the whole matter into consideration, to return their verdict, and say whether the defendant was or was not guilty. He would not necessarily be acquitted, although it should turn out that what he had stated was true, nor would he necessarily be convicted although it should turn out that it was false. He might have fallen into an error without any malicious or seditious motives; still the jury should be informed whether he was actuated by a desire to confer a benefit on the country. In this case he did not propose to follow the plan which the Legislature had adopted with regard to indictments for a private libel, because there was to be a justification put upon the record, and an issue expressly raised upon the truth or falsehood of the statements; because, with regard to a public libel, it was impossible to take a distinct issue upon the truth or falsehood. They could not separate the facts from the comments, or from the opinions or exhortations. They must allow the whole of the circumstances of the case to be laid be-

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fore the jury, who would say whether there was, on the part of the defendant, any bad intention or any tendency in the libel to produce public mischief. He had framed the bill with as much care as possible, with the assistance of his friend Mr. Starkie, but he would propose that the bill, after being read a second time, should be referred to a Select Committee; and that it should undergo the consideration of his noble and learned Friend on the Woolsack, the noble and learned Lord beside him (Lord Brougham), the Judges generally, and such Members of the House as it might be desirable to consult on the subject, when he hoped it would be presented in such a shape as to meet with general agreement.
Lord Broughamentirely approved of the course proposed to be taken by his noble and learned Friend. No doubt the Committee of last year would have taken this step also, but preferred completing one step at a time: they had, however, examined the evidence on this part as well as the others. He agreed that it was desirable to read this bill a second time, and then refer it to a Committee. Of course, he fully approved of it, for he had introduced a similar bill twice into the other House, and once into that.
The Lord Chancellorobserved, that this matter was discussed in the Committee last year, and it would be better to refer this bill to the same Committee, who had considered this point much, though they had not made it a part of their Report. It must not be understood in what he had now stated, that he had expressed any opinion on this bill.
Bill read a first time.
House adjourned.