Court of King's Bench, Friday, May 7.

THE KING v. CREEVEY.

Mr. Brougham, in the case of the King, on the prosecution of Kirkpatrick, v. Creevey, moved for a rule to shew cause why the verdict of Guilty should not be set aside, and a new trial granted, on the ground of misdirection on the part of the Learned Judge. In making this motion, he should first state the proceedings which had taken place on the trial, and should then go on to notice the objection which he had then urged to the Learned Judge who tried the case, and now meant to enforce on the Court for their consideration.

Lord Ellenborough asked, was the Defendant in Court?

Mr. Brougham said he was. The offence charged against the Defendant was a supposed libel in a publication, purporting to be a speech, made by the Defendant in the Commons House of Parliament, of which he was a Member. An indictment having been preferred against him for this offence, at the Quarter Sessions, the same was removed by CERTIORARI into this Court, and was afterwards sent down to be tried at the last Assizes for Lancaster. At the trial he had moved to have it put off, on account of the absence of a material witness, Mr. Bennet, a Member of the House of Commons, who was present when the speech supposed to contain libellous matter was read, and who would have proved that the publication in question contained the substance of that speech. He was saved the necessity of urging this point, however, his Learned Friend, Mr. Park, the Attorney-General for the Duchy of Lancaster, having agreed to admit that the publication contained à fair report of the substance of

YOL. III.

the speech made by the Defendant in Parliament. This point being settled, the trial proceeded, when Mr. Smith, Printer of the Liverpool Mercury, proved the publication, and that he had received it in a letter enclosed in an envelope from the Defendant, desiring him to publish it, the publication in question being part of a speech which the Defendant had delivered in the House of Commons, on the State of the Trade of Liverpool, and on the East India Company's Charter: On his cross-examination, this witness admitted, that, though he had lost the envelope, he recollected its contents;--that the Defendant then complained that he had seen mis-statements of his speech in that and in other papers, and was anxious to give the inclosed as a more correct account of what he had actually said.This was all the evidence of any importance adduced on the trial; and, on its being closed, he (Mr. Brougham) submitted to the Learned Judge who tried the indictment (Mr. Justice Le Blanc,) that enough had not been proved to go to the Jury, inasmuch as it was not libellous matter: and 2dly, whatever was the nature of the publication, that enough had been proved to shew that it was a justifiable publication under the circumstances of the case. Learned Judge was of a contrary opinion, relying on the case of the King v. Lord Abingdon. He (Mr. Brougham), on the other hand, relied on the case of the King v. Wright, which occurred about three or four years afterwards.That, the Learned Judge observed, was an application for a criminal information, and that a great distinction was held by the Court between criminal informations and

The

common indictments, the former being granted only as an extraordinary remedy. In answer to this, he (Mr. Brougham) remarked, that the ground stated by the Learned Judge was not that on which the information in that case had been refused, but, that it had been refused on its merits, all their Lordships having stated that there was no ground to send the matter for trial, it not being an offence punishable at all. It was not, they all agreed, a matter of judicial inquiry, inasmuch as it was a true account of what happened in Parliament. The Learned Judge then distinguished from a case like the present, the cases of characters given of servants, on the ground, that there confidence was reposed. He (Mr. Brougham) contended that that distinction could not apply, as that was only one of the modes or means, and that there were others which equally afforded justification; in support of which doctrine he referred to the case of Weatherston and Hawkins, 1st Term Reports, where Lord Mans field and Mr. Justice Buller laid it down that the occasion on which words were used might amount to a justification of those words; and that, to every libel there might be a justification from the occasion.

Mr. Justice Bailey said, there the party was not a volunteer, but owed it to the public.

Mr. Brougham said, he put it on this principle that there was nothing in the occasion on which the speech was made which implied ma

lice.

however, did not afterwards leave the manner of the publication entirely out of consideration. He informed the Jury, that though a Member of Parliament could not be called to account for what he spoke in the Houses of Parlia ment, yet, when the speech appeared in the Papers, it became a question whether it was malicious or not. As to the point urged on behalf of the Defendant, that he did not even know the party supposing himself aggrieved, that was of little consequence, the only fact for the consideration of the Jury was, if the publication was libellous. In His Lordship's opinion it was defamatory, and the law in ferred malice from the mischievous tendency of the publication. The Jury accordingly found the Defendant Guilty.

.

Mr. Brougham, however, now contended, that this was a publi cation made in such circuinstances as to prevent even the possibility of inferring malice. The Defendant was a Member of Parliament, and as such not responsible for what he said in the House of which he was a Member. He was the representative, not of the body by whom he was sent into Parliament alone, but of the whole community: he not only owed it to them to account for his conduct in Parliament, but it was his incumbent duty so to do: and, if that duty could be rendered more incumbent in any one instance than in another, it must be in this very instance which had occured on the present occasion, namely, where his conduct in Parliament had been misrepresented; in which case it became his duty to justify himself, and to set his conduct right in the eyes of the community. He should proceed, however, in the first place, to consider the case of the King and Lord Abingdon, as the Learned Judge who tried the

lication was of advantage to the Public, and even to the Legislative Bodies, and they would be deprived of that advantage if publications of their proceedings were to be prevented. The Learned Counsel, as he had taken the liberty to do on the trial, must now again submit that it was impossible to distinguish the case now alluded to from the present. The one publication was justifiable, beCause it had taken place in Parliament, and because it was accurate and true. For the same reasons, he submitted, so was the other. In these respects both publications were alike. What was the proceeding in Wright's case?It was an accurate publication of a Report of a Committee of the House of Commons.-What was the present proceeding?It was a Speech made by a Member of the House of Commons; in a House constituted; made by him. in discharge of his Parliamentary duty; and to which the Flouse was bound to listen. The act consisted in the Member's making the speech, and in the House listening to it.--Here it did not happen to be either a Report or a Pe

tition which was laid before the

House, and which they might be disposed of as they thought proper; but it was a statement made by a Member in the course of observations made by him in discharge of his Parliamentary duty, he having an incontestible right to make them.

The learned Counsel then quoted a great number of cases to justify his opinion that the Defendant had a right to cause to be published an accurate report of his speech in Parliament.

Lord Ellenborough said, he understood all Parliamentary papers were ordered to be printed for the use of the Members; none of them for the information of the com munity.

Mr. Brougham agreed that this was so; but Mr. Wright had not published the report in question for the accommodation of the Members, but of the Public. The question was, whether he was at all protected in publishing it; and on that question all those 30 or 40 resolutions against strangers might have been thrown in his teeth; but the decision went to this, that the contempt could only be taken cognizance of in Parliament and punished there. He farther submitted, that there was here enough in the occasion of making the publication to justify it, and to have warranted the Learned Judge in sending it more strongly to the Jury, as rebutting and excluding the presumption of malice. The present was of the same description with the case of Delancy and Jones, where a public advertisement having been inserted, charcrime of bigamy, it was held to be ging a person with suspicion of the a justification that the Defendant had an interest in making the in quiry. Here the publication was not made with a view to investigation, but still on an occasion equally capable of having good faith assigned as the cause of it, namely, conduct to his constituents. that of explaining the Defendant's

Lord Ellenborough said, it would not bear an argument, that with. a view to stand well with his constituents, a Member of Parliament might publish what he pleased.That was an innovation on the law of the land, which, he hoped, would never be tolerated.

Mr. Brougham said, that was not his argument, which only went to this, that a Member of the House of Commons might publish what he spoke in that House. Again referring to the case of King and Wright, he submitted that the Defendant was entitled to a new trial in this case.