though there was a suggestion of fraud, yet that is no more than is contained in every bill in Chancery, which is never held libellous if relative to the subject-matter. (a) So a petition addressed by a creditor of an officer in the army to the Secretary-at-War, bona fide, and with the view of obtaining, through his interference, the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, is not a malicious libel for which an action is maintainable. (b) A letter written to the Postmaster-General, or to the Secretary to the General PostOffice, complaining of misconduct in a postmaster, or guard of a mail, is not a libel, if it was written as a bona fide complaint to obtain redress for a grievance that the party really believed he had suffered. (c) And where the defendant being deputy-governor of Greenwich Hospital, wrote a large volume, containing an account of the abuses of the hospital, and treating the characters of many of the officers of the hospital (who were public officers), and Lord Sandwich in particular, who was First Lord of the Admiralty, with much asperity, and printed several copies of it, which he distributed to the governors of the hospital only, and not to any other person, the rule for an information was discharged. Lord Mansfield said, that this distribution of the copies to the persons only who were from their situations called on to redress these grievances, and had, from their situations, competent power to do it, was not a publication sufficient to make the writing a libel. (d) Where, however, the defendant wrote a letter to the Secretary of State, imputing to the town clerk and clerk to the justices of a borough, corruption in the latter office, it was held that this was not privileged, because the Secretary of State had no direct authority in respect of the matter complained of, and was not a competent tribunal to receive the application. (e) But a memorial presented to the Secretary of State for the Home Department by the elector of a borough complaining of the conduct of a justice of the peace during a recent election of a Member of Parliament for the borough, and imputing that he had made speeches inciting to a breach of the peace, and praying that the secretary would cause an inquiry to be made into the conduct of the plaintiff, and that, on the allegations being substantiated, the secretary would recommend to the Queen that the justice should be removed from the commission of the peace, is a privileged communication; for though the Lord Chancellor generally is consulted as to the removal of justices of the peace, the memorial might be considered as addressed to the Queen, through the secretary, who might have caused the inquiry to be made, have communicated with the Lord Chancellor, and have,

(a) R. v. Bayley, Andr. 229, Bac. Abr. tit. Libel (A.) 2. As to the privilege of proceedings in courts of justice, see ante, p. 600.

(b) Fairman v. Ives, 5 B. & A. 642. See per Maule, J., in Wenman v. Ash, 13 C. B. 836.

(c) Woodward v. Lander, 6 C. & P. 548. Alderson, B. Blake v. Pilford, 1 M. & Rob. 198, Taunton, J.

(d) R. v. Baillie, 30 Geo. 3. Holt on Libel, 173. 1 Ridgway's Collection of Erskine's Speeches, p. 1. Lord Mansfield

seemed to think that whether the paper were in manuscript or printed, under these circumstances, made no difference.

(e) Blagg v. Sturt, 10 Q. B. 899. This case was much considered in Harrison r. Bush, infra, and may, perhaps, be shaken by it. The cases, however, are distinguishable, as the clerk to justices of the peace is appointed by them, and a Secretary of State has no authority as to him, either directly or indirectly.

in effect, recommended the removal of the justice. (f) And where the publication is an admonition, or in the course of the discipline of a religious sect, as the sentence of expulsion from a society of Quakers, it is not libellous. (g) So a letter written by a son-in-law to his motherin-law, containing imputations on the character of a person whom she was about to marry, and desiring a diligent and attentive inquiry into his character, if written bona fide, is a privileged communication. (h) And it has been decided, that an action will not lie for words innocently read as a story out of a book, however false and defamatory they may be. Thus, where a clergyman in a sermon recited a story out of Fox's Martyrology, that one G., being a perjured person, and a great persecutor, had great plagues inflicted upon him, and was killed. by the hand of God; whereas in truth he never was so plagued, and was himself actually present at the discourse, the words being delivered only as matter of history, and not with any intention to slander, it was adjudged for the defendant. (i)

To a declaration in an action for libel, setting out letters written of and concerning the plaintiff, the defendant pleaded, in substance, that when he wrote the letters he was the superior military officer of the plaintiff, and that it was his duty, as such superior officer, to forward to the Adjutant-General letters written by the officers under his command, and sent to him in relation to their military conduct, &c., and to make reports in writing to the Adjutant-General upon such letters for the information of the Commander-in-Chief; that he (defendant) had received such letters from the plaintiff, and had forwarded them in the ordinary course of his military duty as such superior military officer to the Adjutant-General as an act of military duty and not otherwise, and had made certain reports in writing, &c., which letters and reports were the libels complained of. To this plea the plaintiff replied that the said words in the declaration mentioned were written and published by the defendant of actual malice on his [the defendant's] part, and without reasonable, probable, or justifiable cause, and not bona fide or in the bona fide discharge of the defendant's duty as such superior officer, as in the said second plea alleged: Held, by Mellor and Lush, JJ., that even though the words complained of were published of actual malice, and without any reasonable, probable, or justifiable cause, as alleged in the replication, yet that, inasmuch as the question raised was one purely of military cognizance, the plaintiff and the defendant being officers in the army, and both bound by the Articles of War, the plaintiff had no remedy at law: Held, by Cockburn, C. J., that the plaintiff was entitled to judgment. (j)

The Board of Admiralty having ordered the defendant, the Queen's printer, to print a board minute relating to their proceedings in naval ship-building, which contained a letter of the Comptroller of the Navy in reference to plans of the plaintiff submitted to the board, the de

(f) Harrison v. Bush, 5 E. & B. 344; Dickeson v. Hilliard, 43 L. J. Ex. 37.

(g) R. v. Hart, 2 Burn's Ecc. L. 779. The charge of a bishop to his clergy in convocation is a privileged communication. Laughton v. The Bishop of Sodor and Man, 42 L. J. P. C. 11.

(h) Todd v. Hawkins, 8 C. & P. 88, Alderson, B.

(i) Bac. Ab. Libel (A.) 2.

(j) Dawkins v. Paulet, 32 L. J. Q. B. 53. See Dawkins v. Lord Rokeby, 42 L. J. Q. B. 63.

fendant sold copies to the public; the plaintiff brought his action of libel against the defendant, averring that a statement in such letter that the plans derived no weight from his antecedents, meant that his plans were worthless, and were calculated to injure him in his profession; no actual malice was imputed: Held, by the majority (Willes, Byles, and Brett, JJ.) of the Court (dissentiente, Grove, J.), that the plaintiff was rightly non-suited on the ground that every man has a right to discuss freely, if honestly and without malice, any subject in which the public are generally interested, and that what the defendant had done merely amounted to this. (k)

Comments by a churchwarden upon the conduct of the clergymen, in taking meals in the vestry, and in causing books to be sold in the church during service, are matters of public interest, and may lawfully be published if they do not exceed the boundaries of fair criticism. (7)

The proper meaning of a privileged communication is this: that the occasion on which the communication was made rebuts the inference, prima facie, arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact; that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made. This may be made out either from the language of the letter itself, or by extrinsic evidence, or by proof of the conduct or expressions of the defendant, showing that he was actuated by a motive of personal ill will. (m) But where the publication is prima facie privileged, juries ought not to look too strictly at the particular expressions used, but ought clearly to see that the letter was written. with a malicious intent before they find it to be a libel. (n)

It is matter of law for the judge to determine whether the occasion of writing or speaking criminatory language repels the inference of malice, constituting what is called a privileged communication; and if at the close of the case for the prosecution there is no intrinsic or extrinsic evidence of malice, it is the duty of the judge to direct a verdict for the defendant; but wherever there is evidence of malice, either intrinsic or extrinsic, it is the duty of the judge to leave the question of express malice to the jury. (0) But where a communication is prima facie privileged, in order to leave the question of malice to the jury, it is not enough that the facts proved are consistent with the presence of malice as well as with its absence; for actual malice must be proved, and therefore its absence must be presumed until such proof is given. (p) Where a letter containing defamatory words is written upon a privileged occasion, surrounding circumstances are to be considered by the judge at the trial in determining whether the

(k) Henwood v. Harrison, 41 L. J. C. P. 206.

(7) Kelly v. Tinling, 35 L. J. Q. B. 231. (m) Wright v. Woodgate, 2 C. M. & R. 573. 1 T. & Gr. 12. See Blake v. Pilfold, 1 M. & Rob. 198, Taunton, J. Blagg v. Sturt, 10 Q. B. 899.

(n) Woodward v. Lander, 6 C. & P. 548, Alderson, B. Todd v. Hawkins, 8 C. & P.

(0) Cooke v. Wildes, 5 E. & B. 328. Gilpin v. Fowler, 9 Exc. R. 615.

(p) Somerville v. Hawkins, 10 C. B. 588. Taylor v. Hawkins, 16 Q. B. 308. Harris v. Thompson, 13 C. B. 333. Wenman v. Ash, 13 C. B. 836; Wason v. Walter, 38 L. J. Q. B. 41, per Cockburn, C. J.; Hart v. Von Gumpack, 43 L. J. P. C. 25.

words used are so much too violent for the occasion as to rebut the presumption of the absence of malice arising from the privilege of the occasion; and if from surrounding circumstances it appears that the words are capable of two constructions, one of which is compatible with the absence of malice, then the presumption of the absence of malice which existed in the first instance from the privilege of the occasion should be allowed to prevail throughout. (9)

SEC. III.

Publications against the Christian Religion.1

Of publications against the Christian religion. 1. It has been before observed, (r) that blaspheming God, or turning the doctrines of the Christian religion into contempt and ridicule, is an indictable offence. At common law, all blasphemies against God, as denying His being or providence; and all contumelious reproaches of Jesus Christ; all profane scoffing at the Holy Scripture, or exposing any part thereof to contempt or ridicule; and also seditious words in derogation of the established religion,- are considered as offences tending to subvert all religion and morality, and punishable by the temporal courts with fine and imprisonment, and also infamous corporal punishment in the discretion of the Court. (s)

Some provisions have also been made upon this subject by statutes. The 1 Edw. 6, c. 1, (t) enacts, that persons reviling the Sacrament of the Lord's Supper by contemptuous words or otherwise, shall suffer imprisonment. The 1 Eliz. c. 2, (u) enacts, that if any minister shall speak anything in derogation of the Book of Common Prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for the second; and if he be beneficed, shall for the first offence be imprisoned six months and forfeit a year's value of his benefice; for the second, shall be deprived and suffer one year's imprisonment; and for the third, shall in like manner be deprived and suffer imprisonment for life. And that if any person whatsoever shall in plays, songs, or other open words, speak anything in derogation, depraving, or despising of the said book, or shall forcibly prevent the reading of it, or cause any other service to be read in its stead, he shall forfeit for the first offence 100 marks; for the second, 400; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment for life. The 1 Will. 3, c. 18, s. 17, enacted, that whosoever should deny in his preaching or writing the doctrine of the Blessed Trinity, should

lose all benefit of the Act for granting toleration. This section is now repealed by 53 Geo. 3, c. 160: but while it was in existence it was considered as operating to deprive the offender of the benefit therein mentioned, leaving the punishment of the offence as for a misdemeanor at common law. (v) The 9 & 10 Will. 3, c. 32, enacted, that, if any person, educated in or having made profession of the Christian religion, should, by writing, printing, teaching, or advised speaking, deny any one of the Persons in the Holy Trinity to be God, (w) or should assert or maintain there are more gods than one, or should deny the Christian religion to be true, or the Holy Scriptures to be of divine authority, he should upon the first offence be rendered incapable to hold any office or place of trust; and for the second be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and should suffer three years' imprisonment without bail. (x) A person offending under this statute was held to be also indictable at common law. (y) And where a motion was made in arrest of judgment on an information for a blasphemous libel, on the ground that this statute had put an end to the common law offence: the Court were clear that it had not, considering that the provisions of the statute were cumulative. (2)

Upon the trial of an information against the defendant for uttering expressions grossly blasphemous, Hale, C. J., observed, that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, state, and government, and therefore punishable in the Court of King's Bench. That to say religion is a cheat is to dissolve all those obligations whereby civil society is preserved; that Christianity is part of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law. (a) In a case where a libel stated that Jesus Christ was an impostor, a murderer in principle, and a fanatic, a juryman asked whether a work denying the divinity of our Saviour was a libel; and Abbott, C. J., answered that a work speaking of Jesus Christ in the language here used was a libel; and on a motion for a new trial, on the ground that this was a wrong answer, the Court without difficulty held that the answer was right. (b)

Where the defendant had been convicted for publishing several blasphemous libels, in which the miracles of our Saviour were turned into ridicule and contempt, and His life and conversation calumniated, it was moved in arrest of judgment that this was not an offence within the cognizance of the temporal courts at common law; but the Court would not suffer the point to be argued, saying that the Christian religion, as established in this kingdom, is part of the law; and, therefore that whatever derided Christianity derided the law, and consequently must be an offence against the law. (c) It was also moved in

(v) By Lord Kenyon in R. v. Williams, 1797. Holt on Libel, 66.

(w) Repealed by the 53 Geo. 3, c. 160, s. 2, so far as the same relates to persons denying as therein mentioned respecting the Holy Trinity.'

(c) But the delinquent publicly renouncing his error in open court, within four months after the first conviction, is to be

discharged for that once from all disabilities. (y) Barnard, 162. 2 Str. 834. Fitzgib. R. v. Williams, 1797. R. v. Caton,

64.

1812.

(z) R. v. Carlisle, 3 B. & A. 161.
(a) R. v. Taylor, Vent. 293. 3 Keb. 607.
(b) R. v. Waddington, 1 B. & C. 26.

(c) R. v. Woolston, Barnard, 162. 2 Str. 834. Fitzgib. 64.