Scottish Court of Session Decisions

The pursuer in this action of damages for slander was Mr Edward Cunningham Craig, student of medicine in the University of Edinburgh, and class-assistant to Dr Christison, Professor of Materia Medica there. The defender, Miss Sophia Jex-Blake, was also a student of the University of Edinburgh, matriculated under a resolution of the University Court admitting women to the privileges of students of medicine. During the session of 1870–71, she was a student under Dr Handyside, Lecturer on Anatomy in the Royal College of Surgeons. She was also a member of

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the court of contributors to the Royal Infirmary of Edinburgh, inconsequence of a contribution of the statutory amount subscribed by her.

The pursuer's allegations in support of his action were as follows:—“A statutory general court of the contributors to the Edinburgh Royal Infirmary was held in the Council Chambers, Edinburgh, and by adjournment in the High Church there, on Monday the 2d day of January 1871. Part of the business of that meeting was the election by the contributors of six managers of the corporation. Two lists of managers were proposed for election—one by the Lord Provost of Edinburgh, and the other by Dr Halliday Douglas. The meeting was very crowded, and was attended by a large number of persons, among whom there were many acquainted with the pursuer. The defender, Miss Sophia Jex-Blake, attended that meeting, and made, or rather read from a manuscript which she held in her hand, a speech professing to be in support of the persons named in the list proposed by the Lord Provost. The pursuer was not present at the meeting. In the course of the defender's said speech she referred to an occurrence which had taken place at or near the gate of the hall of the Royal College of Surgeons in Nicolson Street, on the 18th day of November last, 1870, when a crowd assembled near the gates, and the gates were closed by some one or more of the crowd against the entrance of Miss Sophia Jex-Blake and other female students of medicine, which she described as follows:—‘And at last came the day of that disgraceful riot, when the College gates were shut in our face, and our little band bespattered with mud from head to foot.’ After having thus characterised that occurrence, the defender, in her said speech, used and uttered the words and sentences following, or words and sentences to the following effect, viz.:—‘This I do know, that the riot’ (meaning the occurrence above mentioned) ‘was not wholly or mainly due to men from Surgeon's Hall. I know that Dr Christison's class assistant was one of the leaders of the riot, and that the foul language he used could only be explained on the supposition I heard asserted, that he was intoxicated. I do not say that Dr Christison knew of or sanctioned his presence.’ Again, after Dr Christison, who was present at the foresaid meeting of contributors to the Royal Infirmary, had protested against the use of such language in reference to a gentleman who was not present, the defender proceeded with her speech, and used and uttered the following words and sentences, or words and sentences of the following import, viz:—‘I said before, that the only excuse for the assistant was that he was alleged to be drunk. If he’ (meaning Dr Christison) ‘prefers me to say that the language was used when the person was sober, I am satisfied.’

“The words and sentences above set forth, used and uttered by the defender, and published as said is, were in whole or in part of and concerning the pursuer, and are false, calumnious, injurious and malicious, and falsely, calumniously, injuriously and maliciously misrepresent the pursuer to have been one of the leaders of a disgraceful riot; to have used foul language, which was due to his intoxication; and to have been intoxicated; and they were calculated to injure the pursuer's character and reputation, and to wound his feelings; and they have injured his character and reputation, and have deeply wounded his feelings. They were at once applied, both by many of the persons present at the meeting, and by the whole medical students of the College, and by the pursuer's friends and acquaintances, to the pursuer; and they were applicable to him, and him only.” The defender set forth that it was necessary that she and the other lady students should be admitted to study at the Royal Infirmary in order to entitle them to a license to practice as medical practitioners. That there was much opposition to their admission to the Infirmary on the part of a large portion of the public of Edinburgh; and that Professor Christison took a prominent part in the opposition. Various meetings of the managers of the Royal Infirmary were held on the subject; and ultimately the managers for the year 1870 came to a resolution refusing to recognise the claim of the lady students to admission. At the statutory annual meeting of the court of contributors to the Royal Infirmary, held in January 1871, as mentioned in the summons, it was part of the business of the said court to elect, for the first time, six managers for the year ensuing, under the provisions of “The Edinburgh Royal Infirmary Act 1870.” Two lists were proposed, the one by Dr Halliday Douglas, the other by Mr Law, Lord Provost of Edinburgh. Dr Hallidy Douglas proposed a list of six gentlemen, nominated or suggested by the then board of managers, which was opposed to the admission of lady students into the Infirmary. The Lord Provost proposed a list of gentlemen who were known to be favourable to the admission of lady students. In the speeches of the movers of the respective lists, and of others who followed them, the discussion was made to turn on the propriety of admitting ladies to study in the Infirmary. Amongst other speakers, Mr David Smith, Writer to the Signet, addressed the court of contributors, and argued in favour of the exclusion of ladies, upon the ground, inter alia, that such exclusion would accord with the opinions of the male students attending medical classes in the University of Edinburgh; a large number of whom, according to Mr Smith's statement, had petitioned against the admission of ladies to the Infirmary. The defender being at the time a member of the court of contributors, and much interested in the appointment of the new managers, particularly with reference to the question of the admission of lady students, addressed the court of contributors in support of the list of managers proposed by the Lord Provost. In reply to Mr Smith's observations as to the wishes and opinions of the male students, she spoke at some length on the subject of their opinions and conduct, and the weight which should attach to the petition alluded to by Mr Smith. In so doing the defender referred to a riot which had taken place at the entrance of the College of Surgeons, in which she and other lady students had been mobbed and insulted; and she, inter alia, referred to Professor Christison's class-assistant, who, as she had been informed and then knew, had been present, and had taken an active part in the disturbance, although he was not personally known to her. The defender had probable cause for all the statements which she made, and in making them was not influenced by malice or personal feeling, but solely by a desire to promote the election of the managers nominated in the Lord Provost's list. After the disturbance alluded to the defender was informed, by Dr Handyside of the part taken in it by the pursuer; and she was also informed by that gentleman

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that the pursuer's appearance and behaviour conveyed to him at the time the impression that the pursuer was not sober, but was somewhat the worse of liquor. The defender also heard various others express their belief that the pursuer could not have been sober, otherwise he would not have taken any part in these disgraceful proceedings.

The defender pleaded inter alia—“The defender is not liable, in respect that the words used by her were spoken at a statutory court of contributors to the Royal Infirmary, of which she was a member, were pertinent to the subject of discussion, and not malicious. The defender's speech being a fair comment on the proceedings of the pursuer, and the other students engaged in the disturbances of 18th November 1870, and the pursuer having given provocation, she is entitled to absolvitor, with expenses.”

The case went to trial before Lord Mure and a jury, upon the following issue.—

Whether the defender, in a speech which she made or read at a meeting of the contributors to the Royal Infirmary, held in Edinburgh on the 2d day of January 1871, did in the presence and hearing of Dr Robert Christison, Professor of Materia Medica in the University of Edinburgh; David Smith, Esq., W.S.; Joseph Bell, M.D.; Christopher Douglas, Esq., W.S.; A. Halliday Douglas, M.D., and others, use and utter the words and sentences set forth in the schedule hereto annexed, or part thereof, or words and sentences to that effect; and whether the said words and sentences are, in whole or in part, of and concerning the pursuer, and are false and calumnious, to the loss, injury, and damage of the pursuer?”

Schedule.

“And at last came the day of that disgraceful riot, when the College gates were shut in our face, and our little band bespattered with mud from head to foot.” “This I do know, that the riot was not wholly or mainly due to men from Surgeon's Hall. I know that Dr Christison's class assistant was one of the leaders of the riot, and that the foul language he used could only be explained on the supposition I heard asserted that he was intoxicated. I do not say that Dr Christison knew of or sanctioned his presence.”

Damages laid at £1000.

The Jury unanimously found for the pursuer, and assessed the damages at one farthing.

The defender, who had made several exceptions to the Judge's ruling on points of evidence, and to the law laid down in his charge, thereafter brought a bill of exceptions containing:—

Exception 1.—“In the course of the cross-examination of Professor Christison, a witness for the pursuer,—the counsel for the defender, to maintain and prove her case under the said issue, proposed to put the following question to the witness:—‘Did you ask pursuer if he had been present at the riot?’ The counsel for the pursuer objected to the admissibility of the proposed evidence, as proving the veritas convicii, in respect that no counter issue had been taken by the defender. Lord Mure sustained the objection, and excluded the evidence as tending to prove veritas, to which ruling the counsel for the defender excepted.”

Exception 2.—“In the course of the examination in chief of the defender—the counsel for the defender, to prove her case under the issue, proposed to put the following question:—Referring to the day of the riot, ‘When you got to the College of Surgeons what did you find there?’ Counsel for the pursuer objected. That this was introductory to proving that there was a disgraceful riot, and that pursuer was there, and a ringleader of it, and Lord Advocate stated he intended to endeavour to do this. The Lord Advocate here admitted his readiness to take the discussion of whole question of privilege and defender's right to prove what occurred at Surgeon's Hall in November, and that defender was there and a ringleader of riot. Parties heard.

“Lord Mure ruled— first, that the case was not one of privilege on the part of a member of the court of contributors, and that the defender was not entitled to single out individual students not members of the court, and assail them; second, that as there was no issue of veritas the defender was not entitled to prove that the pursuer was one of the leaders of a disgraceful riot, and used foul language which was due to his intoxication. But reserved to allow proof, if offered, of reports having been made to defender that pursuer was at College of Surgeons on that day, and engaged in the riot. To the first and second parts of which ruling, counsel for the defender excepted.”

Exception 3.—“In the course of the examination in chief of Mr Sanderson, a witness for the defender—counsel for the defender, to prove her case under the issue, proposed to put the following question:—‘Among the students assembled inside the gate, at the time you are speaking to, did you observe the pursuer?’ Counsel for the pursuer objected. This is veritas, with no issue, and no allegation of veritas. Lord Mure sustained the objection, and disallowed the question; to which ruling counsel for the defender excepted.”

Exception 4.—“In the examination-in-chief of the pursuer as a witness for the defender—the counsel for the defender, to prove her case under the issue, proposed to put the following question:—‘Did you take any part in the riot?’ Pursuer's counsel objected. Lord Mure disallowed the question: to which ruling the counsel for the defender excepted.”

Exceptions 6 and 6. “Lord Mure thereafter charged the jury, and inter alia directed the jury in point of law: That the case was not one in which the defender was privileged in using the words complained of on the occasion mentioned in the issue, and that it was not therefore necessary for the pursuer to prove that the defender acted maliciously to entitle the pursuer to a verdict. To which direction the counsel for the defender excepted, and requested Lord Mure to direct the jury in point of law to the following effect:—

(1) That in order to entitle the pursuer to a verdict it was necessary that he should prove that the words complained of were spoken maliciously.

(2) That if the jury were satisfied that malice was not proved the defender was entitled to a verdict in her favour. “Lord Mure refused to give the directions asked, and the defender's counsel excepted to his Lordship's refusal to give the said directions.”

Solicitor-General ( A. R. Clark), Shand, and Macdonald for the pursuer.

Lord Advocate ( Young), Watson, and M'Laren for the defender.

At the hearing on the Bill of Exceptions—

Counsel for the defender argued in support of the bill of exceptions, that, as regarded the question

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of privilege, disposed of by the rulings excepted to in the 5th and 6th exceptions, the law was, that wherever a party has interest or duty to make a statement and makes it in bona fide to another party or parties having a similar interest or duty to receive it, then that is a privileged statement. The bona fides here was perfect; the students' behaviour was fairly the subject of remark, and it strengthened any animadversions on them generally to single out the pursuer, who was not an ordinary student but a class assistant. There was a privilege to speak of him; and if there was that privilege, then it was only for the jury to decide whether the words used were in excess of the licence granted by that privilege. Privilege protected the speaker from the presumption of intention to injure.

With respect to the other exceptions, which had reference to the Judge's rulings as regarded evidence, it was contended that the questions asked were quite competent. They were asked not with a view to justify the libel, but to mitigate the damages. To prove a riot and the pursuer's presence at it was not a justification of the libel. The libel charged being, that he was a ringleader and drunk.

Defender's authorities:— Fenton v. Currie, 5 D. 705; Edwards v. Begbie, 12 D. 1134; Harrison v. Bush, 25 Law Jour., Q. B., 25; Somerville v. Hawkins, 10 Common Bench Rep. 589; Harris v. Thomson, 13 Common Bench Rep. 333; Kershaw, 17 Law. Jour., Exch. 129; Whitley v. Adams, 15 Common Bench Rep. N. S. 393.

Counsel for the pursuer replied—Practically the questions raised by the bill of exceptions were reduced to two.

1st, Whether or not the defender is entitled to claim privilege in the language used, in respect that she was present at a meeting of contributors to the Infirmary, and, as herself a contributor, was addressing the meeting?

On this head they said that they did not deny the right of the defender or any other person present to discuss any subject pertinent to the question before the meeting. It was quite true that in discussing a subject pertinent to the question at issue the speaker had an amount of licence which could not be otherwise accorded, and which, when looked on from the present point of view, might establish a case of privilege. But this depended entirely upon the pertinency of the remarks. Now, the object of the meeting was the election of managers of the Infirmary, and the question under discussion was,—whether lady students should or should not be admitted to study in the wards of the Infirmary? On this question there was very great difference of opinion. One party proposed to elect managers favourable to the claims of the lady students, and another party proposed to elect managers who were mostly unfavourable to their admission. And upon this question the election of managers mainly depended. Now, it appears that there had been presented to the existing managers a petition of students at the University and Surgeon's Hall, seeking to prevent what they thought illegal, viz., the admission of ladies to study at the Infirmary. Accordingly, at the meeting of contributors one of the then managers, Mr David Smith, brought up the subject of this petition, and used it in support of the views which he himself held. He brought up this matter in the interest of the students, but without particularizing any of them. He merely expressed, as he thought, the wishes of them all. What was laid before the meeting was merely the fact that a memorial had been presented. The memorial itself was never before the meeting—was not in fact addressed to the meeting, and not one of the names attached to it was disclosed in any way. At this stage of the proceedings the defender rose to address the meeting in favour of her own views as to the admission of lady students, of whom she was one. What was properly relevant and pertinent to that question she was entitled to introduce. She was entitled to offer any argument against giving weight to that petition or memorial of the students. Any general representations as to their conduct, as affecting the value of that declaration of their views and wishes, she was entitled to. But that is a very long way from giving her the right to speak of any individual student. She could only have had such right to speak of an individual student as she did if his character had been properly brought before the meeting for discussion. But that was not the case here, where the only thing before the meeting was the value of a certain document, as testifying the opinions of a general body of students. How then could the speaking of any individual of that general body advance the cause she was advocating? Was the individual character and conduct of Mr Craig on a particular occasion pertinent to the great educational question under discussion? That is the question which determines this point of privilege. The law is settled that unless she can shew that she was entitled to discuss this gentleman's character and conduct, either generally or in relation to the particular question, she had no right to use the language she did.

2d, The question of the admission or rejection of evidence.

It was exceedingly expedient for the defender to deal separately, as she had done, with the 3d and 4th exceptions, from the 1st and 2d. But the whole four really hang together. Had the Lord Advocate once been allowed to break ground with any one of the questions objected to, there would have been no possibility of preventing the insertion of much more than the defender was entitled to. It would have been impossible with anything like safety to a pursuer's case, to permit the introduction of anything that is evidence of veritas on the mere allegation that it is not done for the purpose of proving the veritas, but for something else.

Pursuer's authorities— Adam v. Allan, 3 D. 1072; Fraser v. Wilson, 13 D. 289; Milne v. Bauchope, 5 Macph. 1114; Brodie v. Blair, 12 S. 941; Mackellar v. D. of Sutherland, 21 D. 226, and 24 D. 1124; Starkie on Evid., 3d edit., pp. 59, 516, and 526; Cook v. Wildes, 24 Law Jour., Q. B., 367; Fryer v. Kinnersley, 33 Law Jour., C. P., 96; Rae v. M'Lay, 14 D. 988; Torrance v. Weddel, 7 Macph. 243; M'Neill v. Rorison, 10 D. 15; Macleod v. Wakley, 3 Carrington and Payne, 311; Underwood v. Parks, 2 Strange, 1200.

At advising—