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WAGSTAFFE.

1883.

REG. have the issue raised that death was due to want of skill on the DAVIS AND

part of the medical men. People who inflicted injuries must deal with the law. If the jury thought there was a melée, and that the injury was not clearly brought home to Wagstaffe, they

were at liberty to say the Crown had not brought home to him Manslaughter

the death of the man. If they were satisfied Davis had nothing -Death re- to do with the injury, and he thought there could be no doubt sulting from a about that, and if they believed it was brought home to Wagstaffe,

tion rendered it would be their duty to acquit Davis and say Wagstaffe was adrisable from guilty. the act of the

The jury acquitted the prisoners. accused.

Not guilty.

Ireland.

QUEEN'S BENCH DIVISION.

Monday, Jan. 15, 1883.
(Before May, L.C.J. and Lawson, J.)

Ex parte Wm. O'BRIEN. (a)
Criminal information Preliminary investigation before magis.

trates-Seditious libel-Evidence-Truth of seditious libel not
a subject of inquiry before magistrates—68. 7 Vict. c. 96—

44 8. 45 Vict. c. 60, 8. 4. Upon an application for a criminal information against the proprietor of a newspaper for publishing a seditious libel, evidence was tendered under the 44 f. 45 Vict. c. 60, s. 4, of the truth of the libel, and that it was for the public benefit that it should be published. The magistrate refused to receive such evidence. Upon an application to the Queen's Bench Division for a conditional order for a mandamus to compel the magistrate to receive

the evidence so tendered. Held, that no such matters could be given in evidence at the trial,

and that, therefore, the magistrate was right in refusing to

admit the evidence at the preliminary investigation.
Reg. v. Duffy (9 Ir. L. Rep. 329), approved of and followed.

(a) Reported by JONES H. STAYELEY, Esq., Barrister-at-Law.

Ex parte
O'BRIEN.

1883.

trates.

THIS
HIS was an application on behalf of Wm. O'Brien for a

conditional order for a mandamus to compel the divisional magistrates of the City of Dublin to hear evidence tendered by him in justification of an article which appeared in a certain newspaper called United Ireland, and which article was entitled Seditious libel Accusing Spirits,” and on foot of which a prosecution had beep before magisinstituted against Wm. O'Brien as the editor of that newspaper. The affidavit of Wm. O'Brien, on which the application was grounded, stated that he had, on the 23rd day of December, 1882, been served with a copy of a summons requiring him to appear before one or more of the justices of the police district of Dublin metropolis

and county of the City of Dublin presiding at the Metropolitan Police-court, Inns Quay, Northern Division, on Wednesday the 27th day of December, 1882, to answer the complaint of the Attorney-General, and show cause why informations should not be received against him and returned for trial, for that he did, on the 23rd day of December, 1882, in the newspaper called United Ireland, publish a false, malicious, and seditious libel contained in an article entitled " Accusing Spirits," for the purpose and with the intent of bringing the government of the country and the administration of the laws into hatred and contempt, and in order to excite hostility against the same, and for the further purpose of disturbing the peace of the country and raising discontent and disaffection among the Queen's subjects. Mr. O'Brien attended in pursuance of that summons on the 27th day of December, 1882, and applied for and obtained an adjournment to the 1st day of January, 1883. At the hearing, on the 1st day of January, counsel on behalf of Mr. O'Brien tendered evidence to show that the statements contained in the article complained of were true, were published for the public benefit, and were merely fair comment on public affairs. The magistrate refused to admit the evidence.

J. F. Taylor, in support of the application. The doctrine of Reg. v. Dufy (9 Ir. L. Rep. 329) has been impliedly reversed by the 44 & 45 Vict. c. 60, s. 4. The words of that Act are cumulative, enumerating various kinds of evidence which might be tendered before the court of summary jurisdiction. Construed literally and grammatically that section is perfectly clear; but my difficulty is to show its relation to the case of Reg. v. Duffy. That case arose out of an insurrectionary article written by the late Mr. Mitchel in the Nation newspaper, and Mr. Holmes, counsel for Mr. Duffy, the proprietor of the paper, speculatively raised the question, does Lord Campbell's Act apply to cases of seditious libel? The Court held that it did not on the ground apparently that the word "defamatory” in Lord Campbell's Act excluded libels against the State. This is intelligible enough when the article is an obvious incitement to violence. But in matters of public comment the question of truth is an essential element of guilt or innocence. It may be the clear duty of à journalist, as a contemporary historian, to reprobate the

1883.

trates,

no libel”

was

Ex parte

conduct of officials. Putting obvious malice aside, what can be O'BRIEN.

more necessary to an understanding of his intention and probable influence than the inquiry, are these statements true? Duffy's

case had no such character, and that distinguishes it from the Seditious libel Evidence present case.

In applying the principle of Duffy's case to this before magis. one the court would

court would really be taking advantage of an adjective "seditious," which might be readily introduced into any charge, thus closing the lips of truth unfairly. Similarly the principle broached cautiously at first that “libel or

a matter of law, and therefore rested with the judge according to the maxim De jure respondent judices de facto juratores, was stretched by Lord Mansfield to absurdity, and made Fox's Libel Act, 1792, necessary to sweep away

the growth of judicial decisions. In quite a similar manner the Parliament by this salutary Act of 1881 (44 & 45 Vict. c. 60, s. 4) allows at the outset an inquiry into the bona fides of the public journalist, and shields him from a trumped up charge of sedition when he is merely impeaching the reprehensible conduct of State servants. This might be urged even by a literal interpretation of the section, but in remedial measures a large and liberal construction is always given. No matter to what anomaly or apparent absurdity an Act may lead, it must not be narrowed when it gives a remedy. But there is really no absurdity here. Before Lord Campbell's Act (6 & 7 Vict. c. 96), in cases of application for criminal informations, the Court of Queen's Bench required from the prosecutor an affidavit that he entered the court innocent of the matters charged against him in the libellous production. Why not treat the State similarly? If State officials break the law, and for that a fair critic attacks them, why should they have the power of gagging inquiry by introducing a general word like "seditious” to change the substantive nature of the offence ? This is the last lurking place of indefiniteness in English law. The policy of the law requires that the charges brought should be clear and well defined. What is sedition ? Every judgment gives a different definition of it. It is the jury who will have to decide it, but not until the very last stage of the proceedings. We are charged with it at the outset, but what the jury will have to pronounce upon at the end should surely not take away our rights at the very threshold. Is it not unreasonable to argue that Parliament, having the decision in Duffy's case before them, deliberately relieved subjects from such an inconvenient, not to say oppressive procedure, and the court, by so interpreting it, will follow the analogy of the judges who interpreted Fox's Act as repealing the long list of cases from Tutchin's case (14 State Tr. 1095) to Shipley's case (3 T. R. 428, a), which grew from an abstract decision like that in Duffy's case, and which therefore closely resembled the mischief which the Act of 1881 was intended to remove.

May, L.C.J.-I think that this application_ought to be refused. The law on the subject is clear. Prior to Lord

Ex parte

1883.

trates.

Campbell's Act (6 & 7 Vict. c. 99), in a civil action for libel, it was competent for the defendant to aver the truth of the

O'BRIEN. matter alleged, and the plaintiff it was held could not recover damages in respect of charges brought against him, the truth of which was established. In the case of criminal proceedings Seditious libel for libel the law was otherwise ; upon a trial in a criminal court before magisproof of the truth of the libel formed no defence; on the contrary it was said the greater the truth the greater the libel. The Act of 6 & 7 Vict. c. 96 (commonly called Lord Campbell's Act), was passed, and provided that, subject to certain conditions, it should be competent for a traverser prosecuted for defamatory libel by way of defence to establish, first, that the matter charged was true; and second, that it was for the public benefit that it should be published. In the case of Reg. v. Duffy (9 Ir. L. Rep. 329), decided in the year 1846, this court, then consisting of very eminent judges, Blackburne, L.C.J., Burton, Crampton, and Perrin, JJ., unanimously came to the conclusion that Lord Campbell's Act had no application to seditious libels, but to defamatory libels on private persons only. Lord Chief Justice Blackburne says in his judgment, at page 333 : “It requires very little consideration to see that a provision of this sort would not apply to libels, seditious or blasphemous. It only makes the truth of the facts a justification where it is for the public benefit such facts should be published, and it enables the party to plead such justification if it were for the public benefit. But no person can assert that it is for the public benefit to publish a matter blasphemous or seditious." The court accordingly decided that Lord Campbell's Act had no application to seditious libels. That decision appears to be a very sound one. At any rate it is binding on this court. Recently a case occurred in England of a prosecution for a defamatory libel upon an individual, and the magistrate before whom the case came upon an application to take informations declined to receive evidence of justification such as would have come within the scope of Lord Campbell's Act. This was the case of Reg. v. Carden (5 Q. B. Div. 1; 14 Cox C. C. 359). The Queen's Bench Division held that the magistrate had no jurisdiction to receive evidence of the truth of the libel, inasmuch as his function was merely to determine whether there was such a case against the accused as ought to be sent for trial, and a defence based on the truth of the libel under Lord Campbell's Act could only be inquired into at the trial upon a special plea framed in accordance with sect. 6 of that Act. Subsequently the Act 44 & 45 Vict. c. 60, was passed, whether or not in consequence of that decision it is hard to say, the 4th section of which was relied on by counsel for the present applicant. This clause provides that on the hearing of a charge before a court of summary jurisdiction against the proprietor of a newspaper for a libel published therein the court may receive evidence as to the publication being for the public benefit, and as to the matters charged by the libel

O'BRIEN.

1883.

Seditious libel

Eridence

trates.

being true, and as to any matter which under that or any other Act or otherwise might be given in evidence by way of defence by the person charged on his trial on indictment; and the court, if of opinion, after hearing such evidence that there is a strong

or probable presumption that the jury on the trial would acquit before magis- the person charged, may dismiss the case. This provision seems

not unreasonable. A person brought before magistrates, against whom it is sought to take informations may be able in the first instance to make a conclusive case showing that he ought to be acquitted by a jury, and in such a case it may be right to dispose of the case upon the preliminary inquiry. But if it be the law, as I apprehend it is, that no such matter could be given in evidence under Lord Campbell's Act at the trial so as to entitle the person to an acquittal it would seem perfectly idle, and worse than idle, to command the magistrates in a case of seditious libel which the present was assumed to be, to receive evidence of the truth of the matter and that the publication of it was for the public benefit. The whole of such evidence would be inadmissible at the trial if the decision in the case of Reg. v. Dufy (9 Ir. L. Rep. 329) were a sound one. The court considers that that decision ought to be followed in its consequences, and that it would be most improper to issue a mandamus directing the magistrate at this preliminary stage to receive evidence which at the trial would be inadmissible. We therefore refuse the application.

Lawson, J.-Counsel who has brought forward this motion has, perhaps wisely, not favoured the court with any statement of what the libel was which was the subject-matter of the application. We can, therefore, only take the description of it which is given in the affidavit upon which the application was grounded, which is, that it was a seditious libel for the purpose, and with the intent of bringing the government of the country and the administration of the law into hatred and contempt, and in order to excite hostility against the same, and for the further purpose of disturbing the peace of the country, and raising discontent and disaffection amongst the Queen's subjects.” The court is gravely asked to give a mandamus requiring the magistrate to receive evidence for the purpose of proving that it was for the public benefit that a libel should be published with the intention of bringing the government of the country and the administration of the law into hatred and contempt, and of exciting hostility against the same. I think we need not go into anything more in order to show that a more unfounded application never was brought before a court of justice.

Application refused. Solicitor for Mr. O'Brien, M. Healy.

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