Scottish Court of Session Decisions

Objections that the slander was not set forth with sufficient specification, and that the letters containing it were complaints against the conduct of the Judge, which the panel was entitled to make, and that therefore the slander was privileged, and could not form an article of dittay, repelled.

Panel pleaded guilty to the charges at common law, and was sentenced to be imprisoned for one month, and to pay a fine of £50, or to be imprisoned for another month.

Alexander Robertson, Dundonnocbie, whose name has been frequently before the public in connection with the opposition to the Dunkeld Bridge pontage, was called upon to answer a charge of slandering Sheriff Barclay. The prosecution was conducted by the Solicitor-General, assisted by Mr H. J. Moncreiff; while Mr Mair appeared on behalf of the prisoner.

The indictment charged the panel at common law with the crime of slandering a Magistrate or Judge in reference to his official conduct or capacity; and further charged him with the crime of “murmuring” a Judge, as set forth in an Act passed in the seventh Parliament of James V. of Scotland. By chapter 104 of that Act, which bears date 1504, “it is statute and ordained in times cumming that all Justices, Scheriffes, Lordes of Session, Baillies of Regalities, Provest and Baillies of Burrowes, and uther deputes and all uther Judges, spiritual and temporal, alsweill within regalities as royaltie, sail do trew and equal justice to all our Soveraine Lordis lieges, without ony partial counsel, rewardes, or buddes taking, further then is permitted of the law, under the paine of tinsel of their honour, fame, and dignitie, gif they be tainted and convicted of the samin; and gif ony maner of person murmuris ony Judge, temporal or spiritual, alsweill Lordes of Session as others, and proovis not the samin sufficientlie, he sail be punished in semblable maner and sorte as the saide Judge or person quhom he murmuris, and sail pay ane paine arbitral, at the will of the King's grace, or his councel, for the infaming of sik persones.” The crime libelled was declared to have been committed, in so far as (1) the said Alexander Robertson did, on 30th December 1869, in the house occupied by him at Dundonnocbie, wickedly and feloniously write and subscribe the following letter:—

“To the Right Hon. Lord Hatherley, Lord Chancellor.

“MY Lord,— I am under the necessity of complaining to your Lordship of the conduct of Hugh Barclay, Esq., Sheriff-Substitute and a Magistrate of this county, who, for eighteen months, has been misapplying those powers intrusted to him for the safety of the public, and for the repression of crime, in order to maintain a fraud upon the lieges, or what is at least an exaction which cannot be enforced by the laws of the realm.

“Owing to my open and legitimate opposition to the imposition referred to— viz., the Dunkeld Bridge pontage— I have been subjected to a malicious persecution by Sheriff Barclay, and, in consequence of his partiality, my privileges of citizenship have been invaded, and my personal protection rendered insecure while in the peaceful exercise of my lawful rights. Sheriff Barclay has committed myself and others to prison wantonly, maliciously, and without probable cause, thus, as it were, taking upon him to suspend our Habeas Corpus Act; in my own case alleging that I wa3 exercising too great an influence over the minds of the people in the north country.

“On the 18th July 1868 Sheriff Barclay, forgetting his status as a magistrate, and acting as a criminal detective officer, personally dogged me, and made inquiries regarding what time I would leave a hotel which I was calling at in Dunkeld. He watched me passing the pontage-gate, and, while I was standing beside it, he assaulted me, and, addressing foolish challenges to me, did all he could to get me involved into a squabble. He also caused several parties to intercept my progress on the highway, and interfered with the Procurator-Fiscal of the county in the due and ordinary discharge of his duties, in order to get me more severely punished for simply acting in my own defence. Sheriff Barclay, in the month of September last, again acted as a detective, and made undue efforts to get me criminated in an act of malicious mischief, while he could have learned, by the simplest inquiry, that I was not in the locality at the time of its perpetration, and could not possibly have been guilty of the crime he was determined to fasten upon me.

“In June last year Sheriff Barclay swore in seventy special constables, selected on account of their partiality in the civil, and while doing so, was guilty of a falsehood, in openly stating that they were not sworn in to protect the pontage gate. Sheriff Barclay, since that time, has given several of these constables every encouragement to commit crime, and has in various ways shielded them from justice while their hands were imbrued in the blood of their fellow-citizens, they having, at the same time, been under oath to protect the peace. Still further to protect the imposition complained of, Sheriff Barclay, under misrepresentations, got a detachment of the military stationed at Dunkeld, although none of those in charge of the peace ordinarily had been deforced in the exercise of their duty.

“Still more, Sheriff Barclay has stationed a county constable at Dunkeld Bridge for the unlawful purpose of interfering with the civil rights of the citizens, and for constantly annoying passengers, and at all times trying to provoke them into assaults, or breaches of the peace.

“I have strong reasons for believing that Sheriff Barclay has been unduly influenced in the course he has taken in the above instances by the acceptance of money to such an amount as to bias his judgment; and I am also persuaded that, had my friends made themselves agreeable to him by doing the same, the results would have been different. I have no means of knowing whether he looks for more gratifications; but there can be no doubt whatever that his partiality as a judge and as a magistrate (whether amounting to utter corruption of office or not) his collusion with those interested

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in protecting the fraud or exortion complained of, his disrespect to the supreme legislature of the nation by tampering with Acts of Parliament, and the falsehoods of which he has been guilty, and other acts in the same cause, have brought a great scandal upon the administration of justice in the county of Perth, and tended to bring the laws of the land into contempt.

“Trusting that the serious complaints I have made will receive your Lordship's early attention, I have the honour to be, my Lord, your Lordship's humble servant, “and addressed the said letter to the Eight Hon. Lord Hatherley, Lord Chancellor of Great Britain; and this with intent to slander Hugh Barclay, Esq., Sheriff-Substitute of Perthshire, in reference to his official conduct and capacity. Under a second count, the panel was charged with having on 31st December 1869, with similar intent, addressed the following letter to the Home Secretary:—

Alex. Robertson.”

“ SIR,— I regret that I should be under the necessity of again complaining to you of the gross partiality— amounting, I believe, to corruption of office— on the part of Hugh Barclay, Esq., Sheriff-Substitute and a magistrate of this county, who has perverted his high functions in order to maintain, encourage, and uphold a fraud, or exhortation on the public— or what cannot be enforced by the law of the land. And, further, there is evidence for believing that Sheriff Barclay has been influenced by the acceptance of money, and that to a large amount.

“Whether this be so or not, there can be no doubt that he, as a judge, has received private visits from interested parties, and has been guilty of collusion in reference to criminal trials; he has encouraged parties to prevaricate on oath; and he has tampered with the evidence of others who could prove guilt; he has in the same interest volunteered false statements on the bench; he has committed people to prison against whom no charge could be brought, and freed their opponents when proved guilty— all to support an extortion.

“To such an extent has the partiality of Sheriff Barclay been manifested that it has frequently received the condemnation of the public, and drawn down the animadversions of the public press; it has given encouragement to the commission of crime; it has brought the administration of the law into contempt; and created a scandal on the purity of the Courts of Justice.

“In these circumstances, I have once more to urge that you will not shrink from your duty in at once seeing that the penalties provided by the Act of 1540, c. 104, are enforced without delay.— I am, &c., “Alex. Robertson.” “In these circumstances, I have once more to urge that you will not shrink from your duty in at once seeing that the penalties provided by the Act of 1540, c. 104, are enforced without delay.— I am, &c., “Alex. Robertson.”

A third count charged that on 30th or 31st December 1869 the panel made copies of the above letters; that on 3d January 1870, at a public meeting of the inhabitants of Birnam, he stated that he had written such letters, and subsequently furnished copies thereof to the Perthshire Advertiser and Dundee Courier, in both of which journals they were published; and that in this way he wickedly and feloniously published the said letters with intent to slander, and thereby did slander, the said Sheriff Barclay in reference to his official conduct and capacity.

The Lord Justice-Clerk was about to ask the panel to plead, when

Mr Mair said he had certain objections to state to the relevancy of the indictment. The first was that he had not, on the face of it, any specification of what the slander consisted in which, it was said, the panel had uttered. The letters to the Lord Chancellor and the Home Secretary were set forth at length; but there was nothing whatever said as to what the particular slander was— as to what particular language was used by the panel which was slanderous. All he found was that “all this, or part thereof, the panel did with intent to slander, and did thereby slander, the said Hugh Barclay.” He submitted that in a criminal indictment that was not sufficient. The panel was entitled to know the precise slander which was complained of against him. There were several things in both the letters which unquestionably were not slanderous. He did not know, therefore, what particular charge he was to meet. Was he to understand that the slander consisted in charging Sheriff Barclay with gross partiality, amounting to corruption in office, or with perverting his high functions in order to maintain, encourage, and uphold a fraud or extortion upon the public? Or was he to understand that the slander consisted in saying that Sheriff Barclay received private visits from interested parties, and that he had been guilty of collusion in reference to criminal trials? Or was he to understand that the slander consisted in the statement that the Sheriff dogged the panel, and made inquiries as to what time he would leave a hotel which he was calling at in Dunkeld? Suppose it had been the case that, instead of two letters, a pamphlet or a correspondence had passed between the panel and various other parties. In such a case it would not have been sufficient merely to quote the pamphlet or the correspondence, and to say at the end that, in writing that pamphlet or entering into that correspondence, he did so with intent to slander, and did thereby slander, a particular individual. It was necessary for the representatives of the Crown to let him know distinctly the precise language which they maintained was slanderous. Even supposing that this were a civil proceeding and not a criminal one, he did not think that a summons such as there was here would be sufficient. Their Lordships were aware that in an ordinary action of defamation it was not sufficient simply to set forth the letter in which the defamation was said to have occurred. One must go beyond that, and say that the defender, in writing the letter, did mean to say so and so of the pursuer. Supposing a letter were written by one person to another charging a party with theft, it would not do merely to set forth the letter. It would be necessary in a case tried in a Civil Court to state that the defender said so and so in the communication, meaning to say that the pursuer was a thief, and that the language was used of and concerning him. If that were the case in a civil proceeding, much more was it required in a proceeding like the present. That was the first objection he had to the indictment; but there was another, and he thought a much more formidable one. It appeared upon the very face of the indictment itself that the letters complained of, in which the slander was said to have been made, were not addressed to the Sheriff himself or to any private party, but to the Lord Chancellor and the Home Secretary. They were letters which, according to their tenor, were written for the purpose of complaining of the official conduct of Sheriff Barclay; and they were letters inviting inquiry into that conduct. He submitted that they

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were therefore of a privileged character; and if they were of a privileged character, they could not be taken cognisance of in a criminal Court. It might be that the statements contained in them were slanderous. He assumed that those statements were so; but that was no reason why a party should not be allowed to complain to the Lord Chancellor or the Home Secretary, inviting inquiry into the judicial conduct and character of a magistrate. There were some observations by Lord Gifford in the case of Haggart's Trustees against the Lord President which bore upon this matter, and which he might quote. His Lordship said:— “I look upon it as extremely essential that, in every part of Her Majesty's dominions, all Judges, however high their rank and station, are responsible for their official conduct; and most lamentable would be the position of the country were it otherwise, for, however great their elevation, Judges are still but men, and are subject to all the errors and infirmities of human nature.” And the redress, where a Judge had abused his discretion, was by appeal to the Sovereign in Counsel or to Parliament. What he said was this, that the panel was doing no more than exercising a constitutional privilege in making his complaint to the Lord Chancellor or the Home Secretary. He did not know whether these were the proper parties to whom to make application; but the panel believed that they were, and lie believing so, any communication which he might make to them was of a privileged character, and could not be made the ground of a criminal prosecution against him. There were various cases on record in which communications were so favoured that, although they might contain slander, the party was, at all events, so much protected that he could not be made amenable to the criminal law. Suppose that, instead of writing the two letters, in which the slander was alleged to be contained, the panel had addressed a petition to Parliament embodying the very statements which were to be found in them, would the Crown, in such a case as that, have been entitled to gag the petitioner's mouth by at once raising a criminal prosecution against him. It would be absurd to maintain anything of the kind. It would be the most effectual way of depriving a party of his constitutional privilege of having inquiry made into the judicial conduct and character of a Judge. In “Russell on Crimes,” it was stated that a communication fairly made by a person in tire discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest was concerned, was a privileged communication, and, if made in the regular and proper course of proceeding, would not be libelous.

The Lord Justice-Clerk— That is under the English law.

Mr Mair— Under the English law. The learned gentleman went on to cite Russell, to the effect that where the defender wrote a letter to the Secretary of State, imputing to the town-clerk and clerk to the justices of a burgh bribery in the latter office, it was held that such letter was not privileged, because the Secretary of State had no direct authority in respect of the matter complained of; but that a memorial presented to the Home Secretary, complaining of the conduct of a Justice of the Peace during a Parliamentary election, and asking for inquiry, was a privileged communication; for, although the Lord Chancellor was consulted as to the removal of Justices of the Peace, the memorial might be considered as addressed to the Queen through the Secretary of State. That was just the kind of case with which the Court had now to deal. Even supposing— what he was not willing to admit— that the Lord Chancellor and Home Secretary were not the proper parties to whom the letters in question should be addressed, that might be no matter, because by either of those functionaries the communication might have been forwarded to the Queen, by whom redress might have been given. He submitted, therefore, that the communication was necessarily one of a privileged kind, and if it were so, he cared not although it might contain statements of the most flagrantly slanderous character. A party who fancied he had been aggrieved by the conduct of a Judge, was settled to complain to the Queen, and to ask an inquiry into the Judge's conduct and character. In the letters libelled there was nothing beyond a complaint setting forth in detail the various charges which the panel brought against Sheriff Barclay, and calling for an inquiry into the matters so complained of. After citing additional authorities as to the extent to which a person making such communications was protected, Mr Mair went on to submit that it would lead to very extraordinary consequences if such a charge as that in the libel could be sustained. He thought he was right in assuming that every member of the community had a constitutional right to complain of a judge's judicial conduct and character, and to apply for redress; but in the event of the complaint containing slanderous matter— and it was scarcely conceivable that there could be a complaint of such a kind without language of a slanderous kind being used in it— if such a charge as the present were sustained, it would just come to this, that upon the complaint being made, the party complaining would be effectually gagged by a criminal prosecution. But, apart from this, he might have seen a case for the Crown if the indictment had set forth, not merely that the letters were written wickedly and feloniously, but that they were written maliciously, and knowing that the statements in them were false. In the indictment before the Court, however, there was nothing beyond the words “wickedly and feloniously,” which certainly did not amount to malice. Before leaving this objection, ho asked their Lordships to suppose that, instead of applying to the Home Secretary or Lord Chancellor, the panel had gone to the Circuit Court of Perth, and, on the occasion of the Judges asking whether any complaints were to be made against any of the Sheriffs within the circuit, had openly came forward and read the letters complained of. Would the Court in a ease of that sort have been entitled to commit the person to prison upon the ground that he was guilty of slandering a magistrate? He apprehended that such a thing would not be tolerated, because it would just be denying to the party the power of doing what he was invited to do. If, however, such a proceeding would be incompetent, he held that it was equally incompetent to bring a criminal charge in a case like the present, where the party was doing nothing more than applying to the proper quarter for redress. To come next to the statute libelled on, it was stated in the subsumption of the indictment that the panel was guilty of slandering a judge, and of the crime of murmuring a judge. He did not know the legal signification of the word “murmuring,” and what the statute meant by the term was certainly not explained

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in the indictment. There was, in short, no minor proposition applicable to the statutory charge. The learned counsel went on to refer to certain recorded cases resembling in some points the one under discussion, and remarked that he was not aware of any case in which a charge similar to the present had been sustained.

In reply to a question from the Bench,

Mr Mair said he did not maintain that a party would be privileged in publishing any privileged communication; but he submitted that the objection he had stated as to want of specification applied to the last part of the indictment.

Mr Moncreiff said that it was with the view of distinctly stating the offence which the prisoner was alleged to have committed under the statute that the expression “murmuring” was used. The Court would observe that there were three separate offences charged. While in regard to the first two it might be open to the prisoner to plead that his letters were privileged communications, the same thing could not be pleaded in regard to the third charge, which related to the publishing of the letters. Mr Mair had not adverted to that charge; so that whatever the fate of the first two charges might be, the third remained unassailed. As to the first objection stated, he apprehended that it was only in cases of ambiguous expressions being used that even in civil cases it was necessary to explain the meaning which the pursuer held the words to bear. Where the words were perfectly unambiguous, and the meaning did not admit of doubt, it was sufficient to libel the words themselves, and to say that in using them the defender was guilty of slander. In the present case he thought no difficulty could be experienced. The letters were written with great deliberation and great distinctness, and the charge was, that in writing these letters, which from beginning to end the prosecutor characterised as slander, the prisoner had slandered Sheriff Barclay. As to the second objection, it occurred to him that the present was not the time for stating a plea of that sort on behalf of the panel. He did not concede at the outset that in any case might the panel be entitled to address a scurrilous communication to the Home Secretary or the Lord Chancellor. He should contend that the doing so would be a crime to be dealt with, provided always that the letters sent were slanderous and calumnious. But even supposing that there might be cases in which the prisoner would be entitled to make such a communication, it depended upon the nature of the case; and it was a question for the jury whether in the circumstances the communication was to be held as privileged or not. As far as the Scotch law was concerned, he did not think there was any authority to say that a man might write a scandalous letter to anyone, even the person to whom it referred, without being liable in damages; and the truth of this proposition, he thought, would be evident when their Lordships remembered that by the law of Scotland it was a sufficient foundation of a libel to send a scandalous letter to the person himself, even although the letter went no further. Such was the case in regard to private individuals, and still more so in regard to a Judge.

The Lord Justice-Clerk — The question of privilege would not arise if the letter was only addressed to the Judge himself.

Mr Moncreiff admitted that it would not; but, he added, if it was an offence which could be prosecuted to send a calumnious letter to the man himself, a fortiori it must be a greater offence to complain of a Magistrate to one having the porter of reprimanding or dismissing him. While he thought this held good at common law, he considered that in the present case the statute possibly assisted the prosecution. That statute appeared to him to be meant to meet the case of a complaint against a Judge, made in the proper quarter, but which was calumnious and ill-founded. He thought, therefore, that, assuming the communications made by the prisoner to have been made to the proper parties, he yet fell under the statute. In support of his contention, the learned gentleman proceeded to remark upon certain cases, including those cited by Mr Mair.

The Solicitor-General said the Sheriff was responsible, it might be, to the Home Secretary, but not in any way to the Lord Chancellor. Therefore there could not, he contended, be any privilege claim as to the letter sent to the Lord Chancellor. But, supposing there were a privilege claim, the mere fact of the existence of the privilege would not prevent the crime libelled from being committed. It would be a very strange doctrine if letter was written with intent to slander a Judge, to a person entitled to take steps for having that Judge removed, to say that that was not a crime. The accused might justify himself if he could show that the letter was sent for a proper purpose; but if the purpose of sending it was to slander, surely the crime was as great, or even greater, in the case of its being sent to persons in distinguished positions. Now, he undertook to show that the letters libelled were sent for the purpose of slandering, not for the purpose of obtaining an inquiry. As to the objection touching the framing of the libel, he submitted that there was enough in the minor proposition to support not only the common law charge, but the statutory charge— the indictment having been framed in this matter according to ordinary form.

Mr Mair having been heard in reply.

Lord Neaves said he was of opinion that the indictment was relevant in all its parts. With regard to the charge at common law, it could not be doubted that the slandering of a Magistrate in his official capacity was a crime. As to the statute, the only matter connected with relevancy depended on the question whether the Act cited was still in force. On that subject he could entertain no doubt, because he saw that on various occasions it had been libelled upon and recognised by the Court as a subsisting statute. As to the meaning of the word “murmuring” used in the statute, he was sorry the counsel for the panel did not understand it, but it could mean nothing else but dispersing complaints and murmurs against a judge's equity and honesty, such as would destroy his usefulness if proved, and the dissemination of which ought to be punished if false. Coming to the minor proposition of the libel, it was, he took it, quite well established that where there were different charges, particularly where there was a statutory charge and a common law charge of an analogous and cognate kind, one minor might be sufficient to cover both majors, provided the facts set forth in the minor made it an exemplification of the offences charged in each of the two majors. It was said the minor did not specify the slander complained of. Many a man had been called a rogue in a sneer styling him an honourable man. What was ironical required explanation, but when it was stated in clear language that a

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judge had taken money for his judgment, he could not understand how that could be made plainer. As to the letters being privileged, he recognised in the strongest manner the right of the subject to go to the fountain of justice and seek for redress when wrong had been done. He was disposed to think that the old Act of 1540 included complaints made to the proper quarter. Even where the complaint was made in the most correct, specific, and intelligible manner, he was pretty sure the object of the statute was that, if the complaint could not be proved, the party making it did so at his own risk. In certain circumstances he should be very slow to interfere in that course of proceeding. If a party made a complaint to the proper quarter against a judge, whether the highest in the land or the humblest, setting forth maladmistration and corruption, and made his complaint in such a way as admitted of its being taken up and investigated, he should be very slow to say that next day the Procurator-Fiscal should charge that party with slander. But it depended a great deal on the nature of the communication made, and also on the animus displayed. Now, the communications made in this case appeared to him to be communications which it was utterly impossible for the authorities to investigate. There was no specification given of what the charges were. They were stated in such a way that no inquiry into them could be commenced. Not only so; instead of leaving the letters in the hands of the parties to whom they were addressed, the accused, as the concluding part of the indictment alleged, resorted instantly to an expression of public opinion, and in that way circulated throughout the country complaints against the efficiency of an acting Judge, without specification of any kind — a procedure calculated to destroy the Sheriffs usefulness without bringing the matter to any kind of issue. His Lordship concluded by repeating that, in his opinion, the indictment should be allowed to stand.

The Lord Justice-Clerk concurred in the result at which his learned brother had arrived. With regard to the second of Mr Mair's objections, his Lordship said that plea could not be maintained against the last part of the indictment, because, in so far as the prisoner was charged with having published the slanderous statements, it was clear that the defence of privilege could not be sustained. With regard to the first part of the indictment, he did not think the plea of privilege could be sustained to the effect of preventing the indictment from being tried. He was not prepared to say that, apart from the proof of facts, of motive, or intent, the allegation made was not relevant. He concurred with Lord Neaves that it was the right and privilege of every citizen of this country to make his complaint against whomsoever or on what ground soever that complaint might be made. As long as that right was exercised in good faith and honesty, he did not think its exercise could ever form the foundation of a criminal charge. On the other hand, if the form of complaint was only made a cover for private malice, he thought it was not to be assumed as an abstract proposition that that would be covered by the plea of privilege. Therefore, it would remain a very serious question for the jury how far the official character of the persons to whom the letters were addressed should protect the prisoner in making the charges they contained; and while the whole question of the intent to slander was brought forward, he concurred in thinking that the Court could not in the present stage prevent the prosecutor from proving his allegations.

After a pause,

The Lord Justice-Clerk said— Alexander Robertson, you have been served with a copy o this indictment. Are you guilty or not guilty?

The Prisoner— I admit having written the letters; but I did so in the endeavour to obtain redress of an alleged grievance. I admit having used language stronger than was necessary on the occasion. So far as that is concerned, I wish to withdraw the strong expressions; but, at the same time, I must say I had great provocation for what I did.

The Lord Justice-Clerk— That is a plea of not guilty.

A Jury having been empannelled,

Mr Mair said— Perhaps the Court would ask the panel again to plead.