REG. A second note from Mr. Kiernan demanded a reply, to which the KIERNAN. following reply was sent: V. 1855. Criminal "March 26. "SIR,-In reply to your note of the 24th, and its demand, my address to the jury proceeded upon the evidence given before I information. spoke, and upon what I understood would be offered, and was, in fact, received without objection; I had no intention to throw into the scale against you the influence of any thing which might tend to the expression of my own private opinion. I repeat that I am not aware, and but for your assurance would think it incredible that I did so, and if, as you no doubt think such was the case, I regret the circumstance and retract such expressions. But so far as the language you complain of was employed to suggest or illustrate the views with which the evidence impressed me in my public professional character, and which it was my duty to induce the jury, if possible, to adopt, I must decline to apologize for the use of that language, or in any way to recognise the propriety of the demand you have made. I only did the best I could for my client, and would have reproached myself if I had done less. At the same time I do not hesitate to express my regret, at having been the means, even in the discharge of my professional duty, of creating pain or offence-an alternative which nothing but the paramount claim of duty has ever induced me to adopt. "Yours, &c. "RD. ARMSTRONG." It appeared, from the affidavits filed by the defendant for the purpose of shewing cause, that Mr. Armstrong, in his address, has imputed to the defendant "the grossest perjury," "deliberate and infamous perjury," "unscrupulous, corrupt, shabby and sharp practice," and had observed that the defendant had absented himself from his office to avoid payment by Mr. Aylmer, for the purpose of making costs. There were also a number of affidavits, made on behalf of the defendant by jurors, solicitors, and other persons of respectability and station, stating that they had never heard so violent an attack ever made by counsel. Mr. Kiernan charged that the prosecutor was actuated by feelings of spite and malevolence, and that the attack was irrelevant and purely malicious. One reason for this belief assigned by him was that he was not in the habit of giving Mr. Armstrong briefs on circuit. For the purpose of justifying the charge about Susan Bennett, Mr. Kiernan stated that a person of that name was employed as a domestic servant by Captain Grady, of Stillargan Castle, and that defendant was consulted professionally by that gentleman as to an action of libel, which was threatened by Susan Bennett, the subject of the action being a letter written by Mrs. Grady to Mrs. Armstrong, as to the character of the servant, who was about being hired by the latter lady, and which he believed at the time must have been handed over by Mr. Armstrong to Susan Bennett. This was put, not as direct accusation against Mr. Armstrong, but as giving a colour to the charge in the letter. Both Mr. and REG. v. KIERNAN. 1855. Mrs. Armstrong swore that they never gave up the letter alluded to by the defendant in his affidavit to Susan Bennett or any other person. The remaining facts of the case, together with the arguments of counsel, and the few cases cited, will appear sufficiently in the judgment of the court, which was delivered by Crampton, J. David Lynch, Q. C., and J. E. Walsh, were heard on showing information. cause; and Brewster, Q. C., Martley, Q. C., and Francis Brady, appeared to support the conditional order. JUDGMENT. The parties in this case are Richard Armstrong, Q. C., the prosecutor, a gentleman of eminence and practice in his profession, and the defendant, Mr. Kiernan, a respectable attorney, also in considerable practice. These parties each belong to honourable professions, equally entitled to the consideration and protection of the court. Mr. Armstrong obtained a conditional order for a criminal information against the defendant for sending a letter, bearing date the 23rd of March, 1855, the manifest and unmistakable tendency of which was to provoke Mr. Armstrong to fight a duel with the writer. The defendant stated in his affidavit that he did not intend to provoke to a breach of the peace; however that may be, we must judge of intentions, not by a man's secret motives, but by his acts and declarations. No one can read that letter without coming to the conclusion that the tendency and intent was that which the prosecutor attributes to it, namely, to provoke to fight a duel. According to the ordinary and salutary practice of this court, it would be at once our duty to make absolute that conditional order, if we had only to consider whether the act of the defendant had the tendency which it is alleged it had but the prosecutor's title to this order is resisted on the grounds that his own misconduct had provoked the injury of which he complains, and that that provocation was a speech made by the prosecutor as counsel in a case of Kiernan v. Aylmer, which was tried at the last assizes for the North Riding of Tipperary, in which the defendant was plaintiff, and Mr. Armstrong was professionally engaged for Mr. Aylmer. Undoubtedly the speech of Mr. Armstrong, if not protected by the privilege of counsel, would be slanderous in the highest degree, and the controversy now is whether that speech was so protected. The defendant says the attack on him was wanton, unjustifiable and unnecessary; nay, more, that it was prejudicial to Mr. Armstrong's client, while the prosecutor's counsel say, no matter how severe or galling that speech was, it was spoken by the prosecutor in the discharge of his duty as counsel, that it was all relevant to the matter in issue, and only a legitimate comment on the evidence in the case. If the prosecutor be right there has been no sufficient cause shown against the rule; if the defendant be right it should be discharged. Much has been said in this case on the liberty of speech which the law allows to the advocate. The importance of this liberty, and the necessity for having counsel unfettered, has been strongly urged Criminal REG. v. KIERNAN. 1855. Criminal on one hand, and the grievous abuse to which an unrestricted liberty may lead, has been strongly pressed on the other side; but we must say all liberty is liable to abuse and may run into excess, and further, that privileges which are most valuable are most likely to be abused. The impunity of the barrister is not the information. privilege of the counsel, but of the client whom he represents; and I would say, freedom of speech in courts of justice is as necessary for the protection of life, liberty and property, as it is in either house of Parliament. Mr. Lynch, however, for the defendant, said, in his able speech, which was a mixture of zeal and temperance which cannot be too much praised (and I should say the way in which this case has been discussed shows how counsel can discuss with temperance, moderation, and propriety), let the advocate be perfectly free, but let not his freedom degenerate into malicious slander or licentiousness; but how are the limits to be fixed, I would ask? With great deference, I say it is impossible to fix these limits. In the heat of Nisi Prius, in the full tide of impassioned eloquence, the most correct counsel may pass the bounds of temperance. Human nature is frail; there are securities, however, against abuse. Self respect, considerations of duty, feelings as a gentleman, a barrister, and a Christian, the interference of the presiding judge, even the personal interest of the advocate, are better safeguards than statutes or the interference of criminal courts. I do mean to say, however, that when that liberty has been made a cloak for malice, that in such a case the slanderer should not be allowed to shelter himself in this robe of protection, or that in such a case he will find favour or protection in this court. It was stated that the defendant had no remedy by action for the injury which he complains of; whether he has or not is not now the question before the court; but I consider Hodgson v. Scarlett (a) lays down two positions in conformity with the earlier cases,-first, that counsel is not liable, no matter how strong or severe his observations, if they were made bonâ fide and were pertinent to the case; secondly, that when it is proved that the injurious words were not spoken bonâ fide, and that there was express malice, the words, which would otherwise be privileged, may be actionable. In Hodgson v. Scarlett, Mr. Scarlett's words were, "that the act (the defendant's) was one of the most profligate things I ever knew to be done by a professional man," and "he (the defendant) is a fraudulent and wicked attorney." Severe and insulting as these observations were, because the court considered them relevant to the matter in issue in that case, and spoken bonâ fide, commenting on the evidence, they held them not to be actionable. The words complained of here are perhaps more strong and more severe than those used by Mr. Scarlett; but did the prosecutor use them, bona fide considering them a fair comment on the evidence? To come more immediately to the matter before us, how are we to determine between the (a) 1 Bar. & Ald. 232. REG. v. KIERNAN. 1855. Criminal prosecutor and the defendant? On their statements are we to determine that these observations were relevant to the issues on the record? How are we to institute the investigation? Such a question must be tried by a jury. How is the court in its present attitude and position to pronounce on such a question. The action in which Mr. Armstrong's speech was made was one for libel, con- information. tained in letters written by Mr. Aylmer to Archdeacon Knox, reflecting on the character of Mr. Kiernan. The charge in this letter was, that Mr. Kiernan, in a matter referred to, had been guilty of sharp practice and of manufacturing costs. These were the libels complained of, and the extraordinary defence set up was, that the charges were true in substance, and that Mr. Aylmer made them in the belief in their truth, and without malice. The monstrous issues offered by this defence, unwarranted either by the Common Law Procedure Act or by any thing else, was taken by Mr. Kiernan in my opinion most rashly. He gives as his reason for so doing, that he wished to vindicate his character from the libel as completely and as soon as possible, and accordingly issues were agreed on, whether the matter stated in the libel were true in fact or not, and whether Mr. Aylmer wrote them without malice, and with a belief in their truth as alleged. I think a wider issue could not be taken, or one allowing more latitude to counsel. The prosecutor was counsel for Mr. Aylmer, it was his duty to persuade the jury that these several charges were true, and that the defendant had been guilty of sharp practice of manufacturing costs; and it is lamentable to think that a difference as to a miserable sum of 4s. 6d., should have led to all these consequences. The defendant, on the trial of that action for libel, offered himself as a witness, and asserted no doubt his innocence of the charge made against him by Mr. Aylmer. He was cross-examined, and doubtless closely, and at length. Two witnesses, Byrne and Roe, contradicted him in some matters. The witnesses were confronted, and there was a conflict of evidence between Mr. Aylmer and Mr. Kiernan. questions were put, and answers made over again. Was not, under these circumstances, the advocate for Mr. Aylmer justified in asserting the truth of his client's case? We cannot find anything that was said by Mr. Armstrong that was irrelevant that can be called malicious, and not bonâ fide intended to persuade the jury that Mr. Aylmer's statements were correct. I am not here adverting to some of these epithets so justly complained of. Much was said about private prejudice and malice on the part of Mr. Armstrong, and that he used the occasion of this trial to abuse and insult the defendant. However Mr. Kiernan may have grounds for entertaining this suspicion, it is no more than suspicion, and there is no evidence before us to lead us to that conclusion. The matters referred to to support this charge I shall not go into, and the story about Susan Bennett is quite insufficient to found any such notion. At first the court was disposed to think it of some importance, but when it came to be examined and The REG. v. KIERNAN. 1855. explained the whole fabric at once vanishes into thin air. I do not mean to say that the defendant had not reasonable grounds for the suspicion he entertained, but we cannot assume that the prosecutor's observations were irrelevant or malicious, and we have Criminal no mode of trying this question on a motion for liberty to file a information. criminal information. I must, however, say this much, not in justification, but in palliation of the defendant's conduct, that there are before us fifteen affidavits, which, if true, abundantly establish that the speech of Mr. Armstrong was one of extreme, I may add, of undue severity, calculated to wound his feelings and deeply injure him both in his private and professional character, and that it went far beyond the bounds usually taken by counsel in advocating their client's case. I am happy to say Mr. Kiernan was acquitted of the charge and had a triumphant verdict, and I would have hoped the matter might have ended then. I wish he had been satisfied with his triumph and the assertion of his innocence. Stung, however, with the castigation he received, he wrote these letters, one on the day after the trial, the other after a lapse of a couple of days. I must say Mr. Armstrong's answer was manly and honest. The defendant, in his first letter, called Mr. Armstrong's attention to the statement in his speech, that in his (counsel's) private and deliberate opinion Mr. Kiernan's conduct had been unscrupulous, corrupt, and ungentlemanly, and he was asked would he adhere to that statement. Mr. Armstrong's answer was, that he was not aware of having so expressed himself, but that, if he had, he regretted and retracted the expression. I think that letter does him and his advisers credit. He also refused to retract any observation made by him as counsel during the trial. Now, to pause here, I think the defendant after this should have stayed his hand. He had got a verdict in his favour, a retraction of that of which he had first complained. Mr. Armstrong disclaimed having given his own testimony or expressed his private opinion, and if such had fallen from him, he regretted and retracted it. The defendant, however, was not yet satisfied, and he sent the letter of the 23rd of March, the letter on which the conditional order was obtained. I cannot characterize too strongly the coarseness, the illegality, or the impropriety of that letter, and not one word in vindication of it was offered by the defendant's counsel. The charges against Mr. Armstrong contained in that letter are fully denied by him, and the cause therefore, shown by the defendant in this part of the case, falls to the ground. We cannot say that the letter of the 23rd was provoked by the misconduct of the prosecutor. It appears, however, that the speech of the prosecutor was one of unusual and extreme harshness and severity, and that observations were made, not only calculated to irritate but to inflict deep injury. Under these circumstances what is the court to do? By refusing the information, we should admit that the defendant's letter was provoked by improper conduct of the prosecutor; by granting it unqualifiedly, we should approve of all that fell from the prosecutor on the trial. We are, |