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on, those who publish them will be free from legal responsibility, though the character of individuals may incidentally be injuriously affected.

So much for the great question involved in this case. We pass on to the second branch of this rule, which has reference to alleged misdirection in respect of the second count of the declaration, which is founded on the article in the Times commenting on the debate in the House of Lords and the conduct of the plaintiff in preferring the petition which gave rise to it. We are of the opinion that the direction given to the jury was perfectly correct. The publication of the debate having been justifiable, the jury were properly told the subject was, for the reasons we have already adverted to, pre-eminently one of public interest, and therefore one on which public comment and observation might properly be made, and that consequently the occasion was privileged in the absence of malice. As to the latter the jury were told that they must be satisfied that the article was an honest and fair comment on the facts,-in other words, that, in the first place, they must be satisfied that the comments had been made with an honest belief in their justice, but that this was not enough, inasmuch as such belief might originate in the blindness of party zeal, or in personal or political aversion, that a person taking upon himself publicly to criticise and condemn the conduct or motives of another, must bring to the task, not only an honest sense of justice, but also a reasonable degree of judgement and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct and motives of the party who is the object of censure.

Considering the direction thus given to have been perfectly correct, we are of opinion that in respect of the alleged misdirection as also on the former point, the ruling at nisi prius was right, and that consequently this rule must be discharged.

(L.R.; iv. Q.B.D. lxxxii. et seq.)

Rule discharged.

XXXI

PHILLIPS v. EYRE

34 Vict., 1870.

[This was an action brought against Eyre, Governor of Jamaica, for false imprisonment and other injuries, committed during a rebellion in the island. The defendant pleaded that (1) the Colonial Legislature had passed an Act of Indemnity; (2) that the acts complained of were bona fide done to put an end to the rebellion, and so were included in the Indemnity. The case was tried before Cockburn, C.J., Lush and Hayes, JJ., in the Queen's Bench, January, 1869 (see L.R.Q.B.D. iv. 225-244), when judgment was given for the defendant. The case was brought on appeal before the court of Court of Exchequer Chamber (Kelly, C.B.; Martin, Channell, Pigott, and Charley, BB.; Willes and Brett, JJ.), and the judgment, delivered by Willes, J., affirmed the decision of the Court of Queen's Bench. See L.R.Q.B.D. vi. 1-31; Broom, C.L. 622 et seq.; Clode, Military Forces of the Crown, ii. xviii.; Finlason, History of the Jamaica Case (and other works by the same author on the same subject); Dicey, L.C. 282 and app. xii.]

Willes, J. . . . It may be convenient to consider generally the condition of the governor of a colony and other subjects of Her Majesty there in case of open rebellion. To a certain extent their duty is clear to do their best and utmost in suppressing the rebellion. Even as to tumultuous assemblies and riots of a dangerous character, though not approaching to actual Rebellion, Tindal, C.J., in his charge to the Bristol grand jury on the special commission upon the occasion of the riots in 1832, there, in accordance with many authorities, stated the law as to private citizens. ...

(Passage from Tindal's (C.J.) Charge to the Bristol grand jury here quoted. See p. 374.)

This perillous duty, shared by the governor with all the Queen's subjects, whether civil or military, is in a special degree incumbent upon him as being entrusted with the powers of government for preserving the lives and property of the people and the authority of the Crown; and if such duty exist as to tumultuous assemblies of a dangerous character, the duty and responsibility in case of open rebellion are heightened by the consideration that the existence of the law itself is threatened by force of arms and a state of war against the Crown established for the time. To act under such circumstances within the precise limits of the law of ordinary peace

is a difficult and may be an impossible task, and to hesitate or temporize may entail disastrous consequences. Whether the proper, as distinguished from the legal course has been pursued by the governor in so great a crisis, it is not within the province of a court of law to pronounce. Nor are we called upon to offer any judicial opinion as to the lawfulness or propriety of what was done in the present case, apart from the validity and legalizing effect of the colonial Act. It is manifest, however, that there may be occasions in which the necessity of the case demands prompt and speedy action for the maintenance of law and order at whatever risk, and where the governor may be compelled, unless he shrinks from the discharge of paramount duty, to exercise de facto powers which the legislature would assuredly have confided to him if the emergency could have been foreseen, trusting that whatever he has honestly done for the safety of the state will be ratified by an Act of indemnity and oblivion. There may not be time to appeal to the legislature for special powers. The governor may have, upon his own responsibility, acting upon the best advice and information he can procure at the moment, to arm loyal subjects, to seize or secure arms, to intercept munitions of war, to cut off communication between the disaffected, to detain suspected persons, and even to meet armed force by armed force in the open field. If he hesitates, the opportunity may be lost of checking the first outbreak of insurrection, whilst by vigorous action the consequences of allowing the insurgents to take the field in force may be averted. In resorting to strong measures he may have saved life and property out of all proportion to the mistakes he may honestly commit under information which turns out to have been erroneous or treacherous. The very efficiency of his measures may diminish the estimate of the danger with which he had to cope, and the danger once past, every measure he has adopted may be challenged as violent and oppressive, and he and everyone who advised him, or acted under his authority, may be called upon, in actions at the suit of individuals dissatisfied with his conduct, to establish the necessity or regularity of every act in detail by evidence which it may be against public policy to disclose. The bare litigation to which he and those who acted under his authority may be exposed, even if defeated by proving the lawfulness of what was done, may be harassing and ruinous. Under these and like circumstances it seems to be plainly within the competence of the legislature, which could have authorized by antecedent legislation the acts done as necessary or proper for preserving the public peace, upon a due consideration of the circumstances to adopt and ratify like acts when

done, or, in the language of the law under consideration, to enact that they shall be "made and declared lawful and confirmed." Such is the effect of the Act of Indemnity in question, which follows the example of similar legislation in the mother-country and in other dominions and colonies of the Crown.

We have thus discussed the validity of the defence upon the only question argued by counsel, touching the effect of the Colonial Act, but we are not to be understood as thereby intimating any opinion that the plea might not be sustained upon more general grounds as shewing that the acts complained of were incident to the enforcement of martial law. It is, however, unnecessary to discuss this further question, because we are of opinion with the Court below that the Colonial Act of Indemnity, even upon the assumption that the acts complained of were originally actionable, furnishes an answer to the action.

The judgement of the Court of Queen's Bench for the defendant was right, and is affirmed.

(L.R.Q.B.D. vi. 1-31.)

XXXII

BRADLAUGH v. GOSSETT

46 & 47 Vict., 1883-84.

[In May, 1883, Mr. Bradlaugh, duly elected burgess for Northampton, required the Speaker to call him to the table to take the oath. The Speaker did not do so. On July 9 the House resolved to exclude Mr. Bradlaugh until he engaged not to disturb their proceedings. Accordingly, in an action brought against Gossett, the Sergeant-at-Arms, he claimed (1) that the declaration of July 9 should be made void; (2) an order restraining the Sergeant-at-Arms from excluding him; (3) such other relief as he was entitled to. The case on December 7, 1883, was argued on demurrer to the statement of claim before Lord Coleridge, C.J., and Justices Mathew and Stephen. Judgment was delivered on February 9, 1884. See Broom, C.L. 975; Anson, i. 175; May, P.P. 134.]

Lord Coleridge, C.J. In this as in so many matters of practical concern difficulties are created by the laying down of principles in terms so wide and general, that, although logic may justify them, the sense and feeling of men imposes upon them in fact limitations which are said not altogether untruly to be sometimes inconsistent with the principle they are supposed to admit. For example, it seems to be conceded that a resolution of the House of Commons only (and what

is true of one House of Parliament is true of the other) cannot change the law of the land. Sir John Patteson and Sir John Coleridge, the former especially,-put this point with great force in their judgements in Stockdale v. Hansard: and yet, if the House of Commons is, as for certain purposes and in relation to certain persons it certainly is, and is on all hands admitted to be,-the absolute judge of its own privileges, it is obvious that it can, at least for these purposes, and in relation to those persons, practically change or practically supersede the law.

Again, there can be no doubt, that in an action between party and party brought in a court of law, if the legality of a resolution of the House of Commons arises incidentally, and it becomes necessary to determine whether it be legal or no for the purpose of doing justice between the parties to the action, in such a case the Courts must entertain and must determine that question. Lord Ellenborough expressly says so in Burdett v. Abbot; and Bayley, J., seems to assume it at p. 161. All the four judges who gave judgement in Stockdale v. Hansard assert this in the strongest terms. That case, indeed, was an illustration of this necessity. The Attorney-General, Sir John Campbell, could undoubtedly have succeeded at nisi prius upon the facts of the case, without raising the question of privilege upon which the arguments and judgements were delivered. But, for reasons perfectly well understood at the time, he forced Lord Denham (who tried the cause) to give the ruling which he was determined to question. It is perhaps not to be regretted that he did so, when the arguments and judgements which were the result are remembered: but I see no answer to the statements of the judges, at pp. 193 and 243, that, when a question is raised before the Court, the Court must give judgement on it according to its notions of the law, and not according to a resolution of either House of Parliament. Cases may be put, cases have been put, in which, did they ever arise, it would be the plain duty of the Court, at all hazards to declare a resolution illegal and no protection to those who acted under it. Such cases might by possibility occasion unseemly conflicts between the Courts and the Houses. But, while I do not deny that as matter of reasoning such things might happen, it is consoling to reflect that they have scarce ever happened in the long centuries of our history, and that in the present state of things it is but barely possible that they should ever happen again.

Alongside, however, of these propositions, for the soundness of which I should be prepared most earnestly to contend, there is another proposition equally true, equally well established, which

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