Star.
London, England, 1817-09-13 00:00:00

LANCASTER ASSIZES, SEPT.°.

FREEDOM OF SPEECH AT THZ EAR.
HODGSON W. SCARIXI7.
Mr. RICHARDSON stated the action to be brought
by Peter kf,ideson. Gent. for damages on account of
words spoken by James Scoriae, Esq. at the last
Spring Assizes in this Court.
Mr. RAINS. —May it please your Lordship, Gen-
tlemen of the Jury. It often happens to all of us,
owing to professional accident, to be engaged in ac-
tions painful to our feelings. Painful, I can with
truth assure you, the present action as to my feelings.
Having travelled in our professional walk, with a
Gentleman of Mr. &alai!' charaoter, for more than
2ti years, having known hinsain peivate life for a still
longer period, I cannot be supposed capable. by any
who know me, of harboeting an unkind sentiment
towards him, and still less of giving utterance to such
a sentiMent. if I could entertain it : but what I owe
to my client, what I owe to the profession to which
I belong, what T owe, I may say it without aro-
gance, to myself, oblige me to lay before you the
grriund,,of the present action. Peter Hodgson is,
and has long been, an eminent Attorney in White-
haven, in the county of Cumberland, and applies new
to you in consequence of the wound given to his pro-
fessimal reputation by Mr. Seaside s language at
this bet. The freedom of speech at the bar is of the
ctmost Importance. During the present Assize 1
heard, with much pleasure, Mr. Scoriae descant
upon this topic. I could not help believing that he
spoke then in anticipation of this action. This free-
dom of speech is of the greatest importance, not only
to the dignity of the bar, but to the interests of the
public, whose high and delicate interests are intrusted
to the bar, Ot this freedom acne can be a more
strenuous and tenacious friend than T. In impertaece
and utility I hold it to be of the same rank as free-
dom of discussion in the Commons' House of Parlia-
ment. I have thus made the highest admission in
favour of Mr. Scatlett ; but bounds must be set to
this freedom of speech—otherwise, from the greatest
blessing, it becomes the bitterest curse that can infest
a Id annoy society. These bounds were overkaped
in this case. Mr. Scarlett, while addressing the Jury
for the defendant in an action in this Court, went out
of his way to traduce and vilify the character of the
Attorney for the plaintiff, and to wound his reputa-
tion. I shall not go into the particulars of that
action: they are not upon the record, and his Lord-
ship will tell you that it was not necessary they should.
The words charged, and which we shall prove to
have been spoken, are these—" Some actions ate
founded in lolly, some in knavery"—(Mr. B. WOOD.
That is surely true.— Mr RAIN& Yes, my Lord,
these are certainly truisms, but, they are thus con-1
nected)—" some in both; some actions in the folly
and knavery of Acetonic', and some in the folly and ,
knavery of the parties." My friend is not apt to '
deal in metaphysical abstraction; you know very
well that he does not use words without application.
We shall not attempt to prove his whole speech.—
You know with low little credit a long story is re-
ceived from witnesses; but we shall ;move the words
here entsted upon the accord: " Mr. Peter Hodgson
was the attorney for VT plaintiff; he drew the pro.
missory note ; he fraudulently got Beaumont to pay
AIN to the plaintiff. This was the most pretligate
thing T ever knew done by a professional man.'.
Then follows the particular repression which we have
charged in the second count on tine record: ix con-
eludes the retpatks already stated to you. The sting
is always in the tail. " Mr. liosigsea is i fraudulent
and wicked Attorney." Vow, Gentlemen, I ask
you, if you wee wrong in any action brought fitto
this Court, how would you 1:1:e such abuse of the
freedom of speech by a Gentleman holding a high
reputation at the Bat ? A 14.anhler individual. if he
had not the spirit and the honour to vindicate his
fame front such an attack, would tie Foieed. My
client has the spirit and honour to repel it. The de-
fendant has joined the general issue, that is, the
words are denied. I have a tight to presume, indeed
I have more than a presumption, that his iusrructious
did not warrant the words, and Mr. HoJeson has
taken care to ascertain the fact. In the hurry, agi-
tation, and irritation of the bar, words may certainly
be uttered that are cot warranted; but a serious im-
pression to the injury of character. end professional
career could never be allowed to be made with impu-
nity. What was Mr. Hodgson to do? He called
upon Mr. Scorlett to justify or to deny these words;
he would do neither. Mr. Hodgson, therefore, found
be must appeal to a Jury. The words will be indis-
putably proved. Mr. Hodgson was distinctly !medi-
cated to be a fraudulent and wicked Attorney. The
only question then was, whether be was thus to be
traduced with impunity ? I mentioned that the
plaintiff lives in a different county. It is generally a
auspicious circumstance for a plaintiff to come to a
Ivey of a different county, as if he could not trust a
Jary who knew his character. But in this case the'
action was boon ht here because the words charged
bad bet* uttered here s and it is rather advantageouso
to my learned friead, for it there is one place on this
circuit in which be is better known than in another
place, it is the county palatine of Lancaster. As I
pelieve this wjll be the last time I can address you
on the sulgsti, I must say a word of damages. I
distinctly thieleint tor my client that damages are
his object. • He only wants the vindication of his in-
jured character. You will take care that he sustain
- -co loss by this vindication. I do act "ask for ay
and vindictive damages. I ask no more than Justice
to mYclieut. Leis than justice ynd will not gives
Mr. Baron Wooo.—Can you mention any action
of the same kind, or upon what principle it can be
LL
oaintioned I
Mr. Rettse.—l do not know that any action of the
kind bas ever been brought.
Mr. Baron Woen.— It appears inc that action
tannic be maintained for. words spoken in judicial
proceedings. If a Counsel misbehaves, or goartoo
saes the Judge. who presides corrects his misconduct;
bat if an action is once maintained, there is no end
of It. Actions of this kind would perpetually occupy
the Court. If a Counsel were to pause in his plead-
ing, and to say suds a man is a great rogue, that
would be actionable.
Mr. RAINS.—That is precisely oar ease. We say
doliballars expressions were voluntarily and gra-
tuitoitsly used. •
Mr. Sim Woott.-4,10 I whether a note was frau:

detest or not, es J orderstand the record, for I
know nothing of the name of the first action.
Mr. Rrearmussow...-The privileges of Parliament
have been 'Boded to; I don't apprehend that the'
(lumina here has any resemblance to them.—(Mr.
Baron Woo .—Vhf not ?).—Well, be it that the
utmost freedom of speech is allowed ; but te_s_go out
of the way to attack character—( Mr. Baron wood—
No, it was not out of the way ; the wads might be
too severe, but they were connected with the note.—
It would be a dangerous precedent to receive an ac-
tion nn such a ground.)—lf a man's character is in-
jured, if, for instance, a surgeon is injured and ob-
structed in his career, there must surely be some re-
medy. The presiding wisdom in our Courts is no
protection, when the injury is sustained, when the
shaft strikes, and cannot be extracted by such pro.'
tection. T, like' all my brothers, am interested in
the full freedom of the Bar, but there must be a
limit. The privilege of Parliament is a peculiar spe.
cies of right that cannot in its very nature be made
actionable in courts of law. The plain question here
is. if the Counsel could with impunity go nut of his
way, and say, Mr. Hodgson Nis a fraudulent and
wicked Attorney ?"
Mr. Toeitiso.—Does your Lordship wish us to
say any thing on the question f—liaron Woon—Yes.
• Mr. Tore:No.-1 did espect in hear some obse.va-
tions by your Lordship on the novelty of ibis action.
Its tendency and nature are important. not only to
the Bar but to the client. If such an action can be
maintained, very different will be the situation of
every client in a court of justice, when deprived of
the free and vigorous exercise of his Counsel, at fell
liberty to apply his talents, learning, and industry to
the cause in which he is engaged. The words in the',
record are only the opinion, the inference, the com-
ment, which my Honourable and Learned Friend
felt at the time to be merited. The facts of the case
warranted the comment. Mr. Raine very judiciously
and very ably—l observe he shakes his head, but I
will say—(Mr. Rams— I read every word)—if Mr.
Raine had not interrupted me, he would h.ive heard
me say, in terms an way disrespectful to him, that
he spewed great prudence and discretion in ant com-
municating the facts and circumstances of the case.'
The words were severe, because my Honourable and
Learned Friend felt severity to be warranted. They
were the comments which the learning and ability of
my friend suggested on the facts proved. 14 Some
actions are founded in folly." That action was so,
for it ended in a nonsuir. The whole passage was
not respecting the character of Mr. Hodgson in ge-
neral, but in this case. lf the ,Counsel are not al-
'awed to comment on the facts proved,- there is an
end of the British Bar's utility; its energies are para-
lyzed for ever : without those fair and honourable
exertions which are thus attempted to be suppressed,
it will be neither creditable nor useful. The ewes.
Sim used by my friend were called for and merited
in my opinion. But it was necessary not only to
prove that they were false, but malicious. Good
Grin I will it be said that we feel any malice against
a party against whom we exert ourselves at this Bar?
Will your Lordship be the first Judge to fetter the
Bar; and, if I may use a coarse and vulgar expres-
sion, to oblige every Counsel to address is Jury with
a halter about his neck ? The danger is palpable
and plain. Your Lordship will not allow in 1817
a principle to be established hitherto unknown to
' English law.
Seijeaot Huttoce.--That this action is. feriae M.
Aressienir is proof of the unanimous opinion of the
whole profession against it. The words were used
is the fair and legitimate exercise of his profession ;
they were too strong perhaps, but they were not
actionable. If he had met a man in the street and
repeated them, it would be a libel. In giving a cha-
racter to a servant thete could be no ground of at.
don. Sir Streit Clifton was found liable in an action,
became lie had written a letter respecting a servant.
after he had given the ctiaracter. There was no vin-
dication on record, because the manner and occasion
was the vind.cation. If this action were maintained,
it would be the ruin of the British public as well as
of the privileges of the Bar.
Mr. LITTLWALE.-The words arise from the fair
discussion of the questicm. If they had been used on
a question of trespass, tl.e case would be different.
The action was on a note; the note was fraudulent;
it was wicked and fraudulent in an Attorney to act
Sc: Mr. Hodgson was that fraudulent and wicked
Attorney. The words were not distinct and inde-
pendent. I admit that Mr. Scarlett would be liable
if he had spoken the words in the street, or caused
them to be published in a newspaper. That what
would otherwise be libellous might be said in giving
the character of a servant was proved in the case of
Weaiherstone v. Haskins.

Mr. Itistrra (in reply).—The words a•e lithe. The
comment was unmerited. That they were malicious,
I may say, appears on the flee of the expressions. 1
have been twitted twice ; one inter would be enough
for not citing a case. I distinctly admitted that I
knew no cat. The question is, whether there ate
no bounds, and Counsel may go any length' If
there are, to call my client fraudulent and wicked
was going beyond the bounds and limits which most
be axed.

Mr. Baron Woofs WAS not fer giving sanction to'
this action, of a first impression, brought for the
first time, because it would be must mischievous,
not merely to the Bar, but to the public. The words
might overstep the bounds of propriety, and be too
severe, but they were not to be torn cted by such an
action. If they bad been said elsealiete, it they had
been published, they could be punished. In the pri-
vileges of Parliament it was the same. The principle
was this—whatever is said in judicial or, legal pro-
ceedings is not actionable. If published, it is. Lord
Abingdon was found liable in the King's Bench on
this principle, and was imprisoned. He refused, on
the lame principle, to maintain an action atlsiorthacxp-
Nip brought by a Clergyman against a parishioner,
for letters written to the Bishop of the Diocese (Pe-
terborough). because he would not make Courts of
Lis, ancillary to Ecclesiastical Courts, the parishioner
having a right to make such representations to the
Bishop. It had been said, some limits must be set.
its objection to this action was the difficulty of fixing
limits. During one Assize, they could do nothing
but try actions brought for words used by Counsel at
the former Assize. The words might be too severe ; I
cannot say any thing of that.—PiAiotiff aonsuited.
Mr. focaatarr sat with much ecanposure, in his
ordinary place, during this WAZill

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