Barnes Peacock, C.J.

1. It is always a most unpleasant duty for a Judge to becompelled to vindicate his own honour, or the dignity of the Court over which hepresides, by adopting measures which may cause pain, or wound the feelings ofany man. But a Judge who would shrink from the discharge of what he considersto be his public duty, merely because it is to him a painful one, is not fit tobe entrusted with the office which he holds. To me the duty which I am nowcalled upon to perform is all the more painful, because the gentleman whoseconduct is called into question is one with whom in times gone by I have heldsocial and friendly intercourse. The case is one of public importance, and I amanxious that there shall be no misunderstanding of the views and opinions ofthe Judges and of the reasons which induced them to adopt the course which theyhave pursued. Above all, I am desirous that there shall be no furthermisrepresentations such as those with which unhappily we are called upon todeal. I have, therefore; thought it right to enter fully into the facts and lawof the case, and I have reduced into writing the greater portion of myjudgment.

2. Mr. W. Tayler was formerly a member of the Bengal CivilService. After his retirement he was admitted as a Vakeel of the late SudderCourt; and upon the amalgamation of the late Supreme and Sadder Courts, he, incommon with all the Vakeels of the late Sudder Court, was enrolled as a Vakeelof the High Court. He subsequently carried on business as a Mooktear or lawagent in the District of Patna, in which, before his retirement from the CivilService, he had acted as Commissioner. Among other clients, he was retained byRanee Usmedh Kower, the elder Ranee of Ticaree, for two years, upon a retainingfee of Rs. 500 a month for looking after her suits, in addition to which he wasto receive a reward for every case that he might win according to its importance.Matters did not proceed amicably between Mr. Tayler and the Ranee, and theresult was that two suits were commenced--one by Mr. Tayler against the Raneeto recover a sum of Rs. 29,773, consisting of Rs. 20,910 alleged to be due forprincipal and interest on a bond given, as Mr. Tayler alleged, for fees due tohim, and Rs. 8,000 and interest alleged by Mr. Tayler to be the balance due onaccount of his salary or retaining fee; the other by the Ranee against Mr.Tayler to recover money alleged to have been received by him on her account.

3. In the suit brought by Mr. Tayler, the Court held thatthe bond had been improperly obtained, and the result was, that Mr. Taylerssuit was dismissed with costs, and Rs. 6,110 were decreed to the Ranee in hercross-suit. The case Ranee Usmut Koowar v. Taylor 2 W.R. 307 is reported in the2nd Volume, Weekly Reporter, page 307.

4. On the 29th January 1866, the Ranee applied to the Judgeof Behar for execution, and in the month of February in that year, a tenurecalled Dergaon, belonging to Mr. Tayler, was attached in execution. Thatattachment, by virtue of the provisions of Section 240, Act VIII of 1859,prevented Mr. Tayler from selling the estate so long as the attachment was inforce. On the 26th February a consolidated appeal to Her Majesty in Council wasfiled by Mr. Tayler in the two suits, and on the 8th March he obtained a Rulecalling upon the Ranee to show cause why, upon his giving security, theexecution should not be stayed pending the result of his appeal to Her Majestyin Council; and the sale under the attachment was stayed pending that Rule. TheRule was sent to the Judge of Behar for service, and he thereupon passed anorder in the execution case that the proceedings should be stayed "forthe time," that is to say, until the Rule to show cause should be disposedof; and as there was nothing which he could do in the execution case whilstthat Rule was pending, he, at the time of transmitting to the High Court hisreturn of having served the Rule upon the Ranee, ordered that the proceedingsfor execution should be struck off the file of cases pending in his Court.

5. When the Rule nisi came on for hearing in the High Court,it was considered more just that, as the Ranee had obtained a decree, sheshould be allowed to execute it on giving security, than that she should berestrained from realising the amount upon Mr. Taylers giving security.Accordingly, upon the 18th May, it was ordered that the decree should beexecuted upon the Ranees giving sufficient security, to the satisfaction ofthe Judge, for the due performance of such decree as Her Majesty in Councilshould make.

6. That Rule was received by the Judge on the 29th May, andthereupon the execution case was again numbered and restored to the file ofcases pending in his Court. The Ranee, who was a lady of large property,tendered security, which was admitted on the 7th December 1866. The delay whichoccurred between the transmission of the Rule to the Judge and the acceptanceof the security which the Ranee offered is not accounted for on the evidence inthe cause. I have frequently found in cases in which execution is stayed untilthe decree-holder gives security, that great delay is caused by inquiries intothe sufficiency of the security, to which the debtor or his agent objectsmerely for the purpose of delaying the execution. Whether this was the case inthe present case or not does not appear, and it is not necessary to enquire. Itis not likely that the Ranee, who is a lady of large property, would have hadany difficulty in finding security for so small an amount, or that Mr. Taylerwould have run any risk if she had been allowed to execute her decree withoutsecurity. But Mr. Tayler, having appealed to Her Majesty in Council, wasentitled by law to have security, and it was granted to him.

7. It is clear that there was no improper delay on the partof the Ranee in completing her security. Delay is not generally the game of thejudgment-creditor, and it is expressly found by the Judge that there was nodefault by the Ranee in carrying on the case.

8. On the 11th day of October, Mr. Tayler sold to MusammatZuhoorun, the wife of Ahmedoollah, for Rs. 55,000, the estate which had beenattached under the Ranees decree. Mr. Tayler says that the purchase was madeby Ahmedoollah in the name of his wife. That is very probable, and I shalltreat the case as if it were so, and give Mr. Tayler the full benefit of thatargument. But when Ahmedoollah is described as an old Pleader at Patna, for thepurpose of raising an -inference that be must have known of the attachment atthe time of the purchase, it must be borne in mind that the estate was at Gyaand not at Patna, and that the sale was under an attachment from the Court atGya, and not from the Court at Patna.

9. After the sale by Mr. Tayler, the estate was againattached by the Ranee under her decree, and the 25th February 1867 was fixedfor the sale. On the 13th February Musammat Zuhoorun intervened and disputedthe right of the Ranee to sell under her decree, and claimed a right to theproperty upon the ground that her purchase was completed before the secondattachment. The case was decided against her, and an order was made that theestate should be sold. Musammat Zuhoorun thereupon satisfied the decree toprevent the sale of the estate which she had purchased and for which she hadpaid Mr. Tayler Rs. 55,000, and commenced a suit against him to recover Rs.12,406, the amount which she had been compelled to pay in satisfaction of theRanees decree.

10. In the written complaint in that suit, it was distinctlycharged that Mr. Tayler, the defendant, bad concealed the fact of his liabilityto the Ranee under the decree and of the attachment of the estate in execution.The plaintiff stated that she had paid an adequate price for the estate, andthat after the defendant, Mr. Tayler, had secured the entire purchase-money,and had conveyed the estate, and had put her in possession of it, the estatewas publicly proclaimed for sale; that she intervened and objected to the sale,but that her claim as a purchaser was overruled on the 23rd February 1837; thatthe vendor, Mr. Tayler, having failed to satisfy the decree, she was compelledto; pay the amount due under it in order to preserve the estate which she had purchased.

11. The following is a translation of the defence set up inthe defendants written statement put in on behalf of Mr. Tayler, and verifiedby Mr. Kelly, his agent. He says:

First.--On the principle that purchaser is bound to informhimself of all the advantageous and disadvantageous circumstances connectedwith the property he is going to purchase, plaintiff has no claim upon yourpetitioner in reference to the judgment-debt payable to Ranee Usmedh Koer, asnumerous precedents of the Sudder Dewanny Adawlut and the High Court in supportof this argument are extant.

Second.--If the plaintiff, without asking your petitionerand obtaining his concurrence, has, to serve her own ends, liquidated thejudgment-debt due to Ranee Usmedh Koer, she cannot by any rule or regulationrecover from your petitioner the money so paid.

Third.--At the time of sale, Mouzah Dargaon, in accordancewith the proceedings of the Civil Court of Gya, dated 1st February 1866, A. D.,and 13th February 1867, A. D., was attached and advertised for sale, and theplaintiff in full knowledge of the circumstances purchased the mouzah, andnothing was kept secret from her : on the contrary, the condition of theproperty was above board at the time of sale, and the plaintiff in fall knowledgeof all particulars, in whatsoever way acquired, purchased the property.

Fourth.--the plaintiff has purchased a most valuableproperty, namely, a property of the value of upwards of Rs. 88,000, for a smallprice of Rs. 55,000, and since she procured a property worth Rs. 88,000 for atrifling sum of Rs. 55,000, she raised no objection in reference to the decreemoney of Ranee Usmedh Koer, of which, in consequence of the attachment ofDergaon, she was undoubtedly cognizant, nor did she enter into any arrangementsfor the deduction of the amount, nor had she any document executed for hersatisfaction: on the contrary, considering the bargain for Rs. 55,000,notwithstanding the payment of the decreed money, to be a cheap one, sheforthwith upon securing the sale-deed paid up in a lump the whole of thepurchase-money and took possession of the property. Under these circumstances,she has no reason whatever to complain, hence the suit brought by her is quiteuncalled for. Tour petitioner prays that for the ends of justice her claim maybe dismissed.

12. Here let me remark that in the defence set up on thepart of Mr. Tayler, no suggestion was made that the Ranees attachment hadceased to have effect in consequence of the execution case having been struck offthe file, or that the first attachment had been superseded by the second. Thepoint was not alluded to, or even suggested : on the contrary, it was admittedthat the estate was liable to be sold under the decree. The plaintiff, when sheintervened and set up her purchase as a bar to a sale under the attachment,took the objection, but it was very properly overruled by the Judge in a veryclear and decisive judgment, and the plaintiff satisfied the decree to savefrom sale the estate which she had purchased. That judgment was put in evidencein the suit against Mr. Tayler. It might just as well be contended that all theproceedings in a suit in this Court are nullified, and that the parties mustcommence de novo, if a case is for any reason taken out of the peremptoryboard. The point is too absurd for argument.

13. The suit proceeded, and the case was tried by BabooGirish Chunder Ghose, the Principal Sadder Ameen of Patna, who laid down twoissues:

First.--Whether or not the plaintiff has the right to arefund of the amount of Rs. 11,381-13 6 paid by her in order to save thedisputed property from sale, with interest claimed by her; or whether the suitis barbed by the application of the maxim of caveat emptor

Second.--Did the plaintiff know at the time of the purchaseas to the property being attached by Usmedh Kower in satisfaction of a claimagainst the vendor Did the vendor inform her about the said attachment whenthe negotiations were completed

14. As to the first issue, the Principal Sadder Ameen foundthat, according to the legal maxim caveat emptor, a purchaser ought to exercisea proper caution in order to ascertain the amount and nature of the interestwhich he is about to buy; that if, without instituting proper and sufficientenquiries within his reach, he foolishly purchases any property in which thevendors interest was not what it was represented to be, he will not beentitled to compensation for the loss he sustains for the defective-ness oftitle and quality of the property bought, for it is his own folly and lachesnot to use the means of knowledge within his reach. He then entered into thequestion whether the plaintiff had made due enquiries, and finding that she hadnot done so, he said she must be presumed to have purchased the estate with allfaults, except as to the extent of the right of the vendor. He added:

It is contended that the fact of the attachment wasfraudulently concealed, but there is no proof whatever to support theallegation. On the other hand, such a thing as the attachment, which was knownto the world so far as the village was concerned, could not by any attempt onthe part of the vendor be industriously concealed, for it was known to hundredsof people residing in the village sold. The attachment would be known in notime if a proper man had been deputed to make necessary enquiries on the spot.Therefore, the concealment, if it was one, was by no means fraudulent, and,unless fraud be proved, the contract could not be annulled.; and had there beenanything like fraud on the part of the vendor, the plaintiff would undoubtedlyhave come to the Court for the cancellation of the contract. As there was nolegal fraud on the part of the vendor the cause of the complaint falls to theground, and hence it is to be presumed that, with the liability existing on theproperty, the plaintiff has purchased the same.

15. He, therefore, ordered the suit to be dismissed withcosts.

16. In the latter part of his judgment the Principal SudderAmeen alluded to a contention on the part of the plaintiff that the executioncase had been struck off the file and subsequently revived, and added:

Admitting her contention to be correct I see no force in it,for the simple reason that, in that case, she was not bound to pay the amountdue to the decree holder; and in case the property was sold, she, as a thirdparty, might have sued for the cancellation of the sale on the ground thatthere existed no attachment before the sale.

17. It is not very clear why such a contention should havebeen urged on the part of the plaintiff in the suit. It was her contention whenshe intervened and disputed the Ranees right to sell under the attachment andprobably there may have been some confusion as to the time at which suchcontention was put forward on her behalf. But it is not very material.

18. The result of that decision, if upheld, would have beenthat Mr. Tayler would have had his judgment debt satisfied by the plaintiff,and that she would have had no redress against him.

19. Mr. Tayler in his letters has cited fromShakespeare," but he has not made any quotation from a "New way topay old."

20. The plaintiff appealed to the High Court from thejudgment of the Principal Sadder Ameen; and amongst other grounds she urged tothe effect--first, that the defendant could not take advantage of his ownwrong; second, that the doctrine of caveat emptor did not apply to a case likethis, in which fraud was alleged as the cause of action; seventh, that thevery, circumstance of the defendants concealing the fact of attachment ondecree was sufficient to show a fraudulent concealment, as Mr. Tayler was wellaware of finch attachment, and sufficient to fix him with liability, unless heproves that the plaintiff purchased with knowledge and paid inadequate value,and eighth, that the case was not one of voluntary payment, for the recovery ofthe money was sought, not from the judgment-debtor, but from the vendor.

21. The appeal was heard in the First Bench before the ChiefJustice and Mr. Justice Dwarkanath Mitter. The case was very fully and ablyargued by Mr. Paul as Counsel on behalf of Mr. Tayler; the evidence on bothsides was fully considered, and every attention and consideration was given tothe case which it was in the power of the Court to bestow. It was very properlyadmitted on behalf of Mr. Tayler, for it could not possibly be denied, that thepayment was not voluntary, and the Chief Justice was so fully satisfied of theplaintiffs right to recover upon the ground that she had been compelled to payMr. Taylers debt in order to protect from sale, under the Ranees decree, theestate which she had purchased from Mr. Tayler, that he did not consider itnecessary to express any decided opinion upon the other points of the case,viz., whether there was concealment or no concealment, fraud or no fraud. Hesays:

It appears to me that this is a very clear case. Theplaintiff seeks to recover the sum of Rs. 12,406-7-0, which she paid on accountof Mr. William Tayler in discharge of a decree which Ranee Usmedh Koer hadrecovered against him. It is almost unnecessary to consider whether theplaintiff was a volunteer in paying this money, or whether she paid it undercompulsion, because it has been admitted by Mr. Paul, the learned Counsel ofMr. Tayler, that the payment was not a voluntary one.

It appears that the plaintiff purchased an estate from Mr.W. Tayler for the sum of Rs. 55,000; that before the sale to the plaintiff thatestate had been attached in execution of the decree; and that the plaintiff paidthe amount of the decree and interest in order to prevent the property whichshe had purchased from being sold in execution. It is said by Mr. Tayler thatalthough the property was sold for Rs. 55,000 it was worth a great deal more;and in proof of that assertion he has called a witness, who, if he is to bebelieved, has shown that Mr. Taylers estimate of the value was very much underthe mark, inasmuch as the estate was worth two lakhs. I do not believe theevidence of that witness. It is improbable that he, acting as the agent of Mr.Tayler, would have sold for Rs. 55,000 a property which was worth two lakhs;but whether it was worth Rs. 55,000, Rs. 88,000, or two lakhs, is whollyimmaterial for the decision of this case.

By Section 235 of the Code of Civil Procedure, when propertyis to be attached in execution of a decree, the attachment is to be made by awritten order prohibiting the defendant from alienating the property by sale,gift, or in any other way, and all persons from receiving the same by purchase,gift, or otherwise; and by Section 240 of the same Act, it is enacted that whenany attachment shall have been made by actual seizure, any private alienationof the property attached, whether by sale, gift, or otherwise, shall be nulland void.

Mr. Tayler, therefore, must, before he sold the property,have been served with an order from the Court prohibiting him from alienatingit. He must have been fully aware at the time of the sale that any sale by himwould be liable to be defeated by the decree-holder.

Several witnesses have been called on the part of thedefendant, and have proved that the plaintiff at the time that she purchasedthe estate was aware of the attachment. Enayut Hossein swore that he informedthe husband of the plaintiff of the attachment at the time of the execution ofthe deed of sale. Shaik Eusoof Hossein swore that Enaynt Hossein told thehusband of the plaintiff in his presence in the house of Wilayat Ali Khan,where the consideration money was paid; and yet Enayut Hossein, who was actingfor Mr. Tayler in selling the property, upon cross-examination, stated that hedid not remember at what place he told Ahmedoollah about the lien. Ahmedoollah,on the other hand, swears that he never knew of the attachment and if it werenecessary to decide upon the conflicting testimony of the witnesses in thecause, I should have little hesitation in deciding that the plaintiff, at thetime of the payment of the purchase-money, was not aware of the attachment. Itis hardly likely that, if she had been aware of the attachment, something wouldnot have been Said upon the subject. Enayut Hossein, who, according to his ownevidence, took the precaution of telling Ahmedoollah about the attachment,swears that he was acting for both parties; and yet, according to his evidence,nothing appears to have been said at the time of the sale as to whether theplaintiff, in consequence of her being allowed to purchase the estate for whatMr. Tayler calls the trifling sum of Rs. 55,000, was to take upon herself todischarge the debt which Mr. Tayler owed the Ranee. Even supposing theplaintiff made a good bargain in buying this estate for Rs. 55,000, there wasno obligation on her part, because she got the estate cheap, to pay Mr.Taylers debt.

If it had been intended that she was not only to pay the Rs.55,000 to Mr. Tayler, but was also to pay off the debt which Mr. Tayler owed tothe Ranee, the purchase-money would have been stated, as suggested by Mr.Twidale, to be the Rs. 55,000 and the amount of the debt added; and part of thepurchase-money would have been paid to the decree-holder in satisfaction of herdecree. It is clearly beyond all doubt that the plaintiff has paid Mr. Taylersdebt; that she was under no legal obligation to pay that debt as between herand Mr. Tayler; that she did not pay the debt voluntarily, but undercompulsion, to save the estate which she had purchased, and for which she hadpaid, from sale in execution of the decree; and under the ordinary rules oflaw, of justice, and of equity, Mr. Tayler, who has had the benefit of havinghis debt discharged by the plaintiff, would be bound to repay the amount. Evenif the plaintiff knew that Mr. Tayler owed the money, and that the estate hadbeen attached, that fact would make no difference, unless she came under anobligation to Mr. Tayler to pay off that debt in consideration of his allowingher to have the estate for Rs. 55,000; yet Mr. Tayler contends that, becauseshe got the estate cheap, she was bound to satisfy the decree against him. Isee no reason to believe that Mr. Tayler would have sold the estate to theplaintiff or to any one else for Rs. 55,000 if he could have got two lakhs, oreven Rs. 88,000 from any other person. This lady was no more bound, without acontract, to pay Mr. Taylers debt, because she got the estate for Rs. 55,000,than she was to repay Mr. Tayler the difference between Rs. 55,000 and Rs.88,000, the amount at which he now values it, or the two lakhs at which it wasvalued by his agent.

In the case of Exall v. Partridge (1790) 8 T.R. 808 : 101E.R. 1405 which was decided on the principles of justice, applicable as much inthe Mofussil as they are in England, it was held that where the goods of astranger were on the premises of another person and were distrained by thelandlord for rent in arrear, and the stranger was obliged to pay the rent inorder to redeem his goods, he might recover the money paid from those who owedthe rent.

It was said by one of the Judges that the plaintiff couldnot relieve himself from the distress without paying the rent. It was not,therefore, a voluntary, but a compulsory payment. Under these circumstances,the law implies a promise by the three defendants to repay the plaintiff.

Another of the Judges said, one of the propositions statedby the plaintiffs Counsel certainly cannot be supported, that whoever isbenefited by a payment made by another is liable to an action of assumpsit bythat other, for one person cannot, by a voluntary payment, cause an assumpsitagainst another; but here was a distress for rent due from the threedefendants, the notice of distress expressed the rent to be due from them all,the money was paid by the plaintiff in satisfaction of a demand on all, and itwas paid by compulsion. Therefore, I am of opinion that this action may bemaintained against all the three defendants.

Here, then, was a debt of Mr. Taylers paid under compulsionby a person who was under no obligation to pay it, and the plaintiff is entitledto recover the amount. It is unnecessary, therefore, to consider or to decidewhether there was any fraudulent concealment on the part of Mr. Tayler of thefact that the estate had been attached, or to enter into the question whetherthe recital in the deed amounted to a covenant that Mr. Tayler had power tosell.

The legal maxim caveat emptor has been misapplied. It iswholly inapplicable, and has no bearing whatever upon the present case.

The Principal Sudder Ameen says that the concealment, if itwas one, was by no means fraudulent, but I feel at a loss to understand whatnotions the Principal Sudder Ameen entertains of fraud, when he holds that if agentleman sells an estate which he knows has been attached under a decreeagainst him, and conceals the fact from the purchaser, and receives thepurchase-money, the concealment is one which does not fall within the class offraudulent.

Cases have been cited to show that if an execution case isstruck off the file, the attachment which has been made under the executionnecessarily falls to the ground.

Section 245 of the Code of Civil Procedure enacts, that ifthe amount decreed with costs, and all charges and expenses which may beincurred by the attachment, be paid into Court, or if satisfaction of thedecree be otherwise made, an order shall be issued for the withdrawal of theattachment; and if the defendant shall desire it, and shall deposit in Court asum sufficient to cover the expense, the order shall, be proclaimed orintimated in the same manner as hereinbefore prescribed for the proclamation orintimation of the attachment, and such steps shall be taken as may be necessaryfor staying further proceedings in execution of the decree.

I find no authority in Act VIII of 1859 for saying that anattachment is at an end if the execution case is struck off the file; and,therefore, if it became necessary to decide upon that point, I should refer thecase to a Full Bench.

No one, I presume, will contend that if a Judge finds thathe has struck off an execution case improperly, he cannot restore it to thefile, but that the case must proceed de novo. In this case, according to thestatement, which must be taken all together, the execution decree case hadbeen for a time struck off the register when the sale took place, andsubsequently the case was revived, when a sale-proclamation issued, on whichthe plaintiff preferred a claim, and on the claim being rejected, she paid theamount for which the property had been attached.

There has been no case cited which goes to the extent ofholding that if an execution case is struck off the file, and a proclamationissued upon the attachment which had issued before the case was struck off, thesale would be subject to all incumbrances created by the debtor between thetime the attachment was made and the time the property was sold, on the groundthat the effect of the attachment was destroyed for ever by striking the caseoff the file. Though not expressly in point, the case of Rajah Mukesh NarainSingh v. Kishanund Misr (1862) 1 Suth. P.C.J. 488 : 9 M.I.A. 324 : 1 Sar.P.C.J. 862 : 19 E.R. 764 has a strong bearing upon the point.

For the above reasons, it appears to me that Mr. Tayler isbound to refund the money which the plaintiff was compelled to pay, and didpay, in order to save the estate, which she purchased and paid for from beingsold under the execution.

22. Mr. Justice Dwarkanath Mitter said (and this is theprincipal grievance of which Mr. Tayler complains in his letters to the Editorof the Englishman):

I entirely concur. I feel no hesitation in holding that theplaintiff is entitled to recover, both upon the ground that she has paid a debtdue from Mr. Tayler to Ranee Usmedh Koer when she was under no obligation topay it, as also upon the ground that a fraud has been perpetrated against herby Mr. Tayler in concealing from her the fact that the estate sold by him toher was under attachment in execution of a decree of Court. I should have beenextremely sorry if the state of the law were otherwise.

23. The finding that there was a fraudulent concealment wasupon a point raised in the suit and in the grounds of appeal, and one uponwhich evidence was gone into on both sides.

24. For pronouncing this judgment upon a point in issue, thelearned Judge, as will be presently seen, is charged with "wanton insultand unfounded aspersion." He is charged with having done that for which aDistrict Judge would probably have been suspended. But the charge was made inletters in which the real facts under which the judgment was pronounced wereartfully, and I may say wilfully, concealed by Mr. Tayler; and a new state offacts, which was untrue, and which, if true, had never been set up as a defencein the suit, or ever brought to the notice of the learned Judge, wassubstituted. Mr. Tayler must have known, and I will prove out of his own mouththat he did know, that upon the facts, as they appeared at the time when Mr.Justice Dwarkanath Mitter pronounced his judgment, there was not the slightestground for complaint. It was not because the Chief Justice felt so confident ofthe plaintiffs right to succeed upon another point, and abstained from findingupon the issue of fraud, that Mr. Justice Dwarkanath Mitter was not at libertyto express his opinion upon that point, which was directly in issue, withoutsubjecting himself to such charges as those which Mr. Tayler has preferredagainst him in his letters. As well might a juryman be charged with wantoninsult and unfounded aspersion for pronouncing, upon evidence before him, averdict of guilty against a man tried upon a charge of theft or embezzlement.The case was one appealable to Her Majesty in Council, and even if it had notbeen so, it would have made no difference.

25. Judges, although they may agree as to the judgment whichought to be given in a particular case, do not always agree in the reasons forarriving at that conclusion, or one Judge may have an additional reason, uponwhich the other has not expressed his opinion. There is no reason why a native gentleman,who by his abilities has raised himself to the Bench of the High Court, is tobe maligned and slandered because he has the independence to express an opinionof his own, or even to differ from the Chief Justice. What would become of theindependence of Judges if this were to be allowed

26. Mr. Tayler says that this dishonoring and unmeasuredimputation, judicially cast upon him by Mr. Justice Dwarkanath Mitter, has beenrecorded by him without one tittle of evidence to support it; that it is whollyuntrue and manifestly absurd. But, if he was dissatisfied with the finding, hecould have appealed to Her Majesty in Council, for the case was an appealableone, and it is not too late to appeal even now. But Mr. Tayler knew full wellthat, if be appealed to Her Majesty in Council, he must have appealed upon thecase as it stood when the Judge pronounced his judgment. He, therefore,preferred to appeal to the Editor of the Englishman, and through him to thepublic, and to rest that appeal upon a false state of facts and a dishonestconcealment of the real one.

27. No one reading the letter of the 7th of April could haveimagined that Mr. Justice Dwarkanath Mitters judgment was a finding upon anissue in the case founded upon what he honestly believed to be the weight ofevidence given on both sides. If Mr. Tayler had honestly intended to criticisethe judgment, with reference to the evidence given in the cause, he might havedone so without objection: he might have set the evidence and commented upon it,so that those who read the criticism might have been able to form their ownjudgment as to his conclusions.

28. I now pass from the charge against Mr. JusticeDwarkanath Mitter in reference to his original judgment to the charge broughtagainst him in respect of his refusing to retract upon review.

29. Here let me again point out that throughout the whole ofMr. Taylers so called criticism he treats Mr. Justice Dwarkanath Mittersfinding upon a material issue in the cause as a gratuitous uncalled-for aspersion,and as a wanton insult which he could retract at pleasure. But this is not so.Mr. Justice Dwarkanath Mitter had expressed his judgment upon a material pointin the case, and he could not, without granting a review, retract it. Thefinding had been come to and the judgment had been recorded. The case was onewhich might have been appealed by Mr. Tayler to Her Majesty in Council, and theplaintiff would have been entitled to have the finding returned with therecord.

30. The case set up by Mr. Tayler in review was, like thecase set up in his letters, entirely different from that which had been set upor even suggested on his behalf in the lower Court.

31. In the lower Court it was admitted in the 3rd paragraphof the written statement that at the time of sale the estate was attached underproceedings of the Civil Court of the 1st February 1866 (now said Mr. Tayler tohave been at an end by the striking of the case off the Judges 61e) and of the13th February 1867 (the attachment stated in Mr. Taylers letter of the 13thApril 1869 to have been discovered by him only within the last two days), andthe contention then was that plaintiff purchased with full knowledge of thefirst attachment; that she bought for Rs. 55,000 an estate which was worth Rs.88,000; that she paid off the decree against Mr. Tayler to serve her own ends,and that the maxim caveat emptor applied.

32. In the petition for review, the case set up was, that inMr. Taylers belief the attachment had been ipso facto withdrawn before thesale, by reason of the case in execution having been struck off the file inconsequence of the Ranees having neglected to furnish security in pursuance ofan order of the High Court, and that Ahmedoollah was aware of the fact when thesale was completed.

33. Mr. Tayler said:

Your petitioner, having just returned to India, has read, heneed not say, with pain and mortification the decision of the High Court in thecase of Musammat Zuhoorun passed on the 19th November 1868.

Your petitioner cannot reasonably demur to the decision,based as it is on the defence set up by his native Mookhtear, and supported bythe evidence which he has volunteered in the case.

All your petitioner now desires to do is to inform the Courtthat the statement put in and the evidence given by Enayut Hossein and hiscreatures are totally false, male and given without the approval, concurrence,or knowledge of your petitioner, and in direct opposition to this instructionsgiven by your petitioner to Enayut Hossein before his departure from India.

When the High Court is informed that Enayut Husein is now inthe criminal jail, convicted of fraud and embezzlement against your petitioner,and that your petitioner himself has been compelled to come out to India atgreat loss and in-convenience principally for the purpose of counteracting hisnefarious proceedings, it will without difficulty appreciate your petitionersposition.

34. He then proceeded to state what he called the facts ofthe case, to the effect that the Ranee attached the estate in February 1866,under the decree; that being about to appeal to Her Majesty in Council, heobtained an order from the High Court that she should be required to givesecurity before execution; that the Ranee not having complied with the order,the decree case was struck off the file; that whatever might have been thestrict legal consequence of that order, he confidently believed that itnecessarily involved the withdrawal, ipso facto, of the attachment; that hetruly and conscientiously believed that no obstacle existed to the absolutesale of the property; that he gave instructions to his agent to sell it; thatnegotiations for sale were carried on for several months, and were finallyconcluded at nearly the end of the year, when the sale was completed, the deedregistered, and possession given, the Ranee having during the whole of thatperiod failed to comply with the Courts order, and the attachment being still,as generally believed, removed; that he heard nothing mere until a few days beforehe left India, when Enayut Hossein informed him that the estate had beenbrought to sale, and that Ahmedoollah had paid the amount of the decree; thatin the meantime a correspondence had been going on between Enayut Hossein andthe Ranees Dewan, and that the latter had proposed a compromise of the decreeon a cash payment of Rs. 6,000 or Rs. 7,000; that when Mr. Tayler heard thatAhmedoollah had, without the slightest intimation or reference to him, paid thefull amount, and thus, for his, Ahmedoollahs own, benefit deprived Mr. Taylerof the advantage of the reasonable compromise just About to be concluded, heinstructed Enayut Hossein to represent the circumstances to Ahmadoollah andeffect an amicable compromise with him, if possible, for the amount which, butfor the sale under the decree would have been effected with the Ranee; that henever disputed nor wished to dispute his liability for the payment made.

35. He then went on to say that he left a few daysafterwards for England; that when some months afterwards he heard that anaction has been brought against him, not then having reason to distrust EnayutHossein, he concluded that, if he defended the suit at all, it would only be tothe extent of the equitable plea above mentioned according to the instructionsreceived; that it was impossible to divine for what purpose Enayut Hossein putin the false and dishonest statement on which the High Court had commented; buthe positively asserted that both himself and, to the best of his belief, Ahmedoollahand the numerous other persons cognizant of the lengthened negotiations wereall under the conviction, that the attachment had ceased, and everything wasconcluded with the greatest openness and publicity; that Ahmedoollah, thepurchaser in his wifes name, to the best of his (belief, had the sameconviction, being, as he believed, perfectly aware of all that had passed; thatEnayut Hosseins statement as to the attachment, the value of the estate, andthe information said to have been given to the purchaser, as well as his pleaas to the non-liability of Mr. Tayler, were totally and wickedly untrue.

36. He prayed that the Court would accept his statement,which he was prepared, if required, to substantiate on oath, and relieve himfrom the harsh and dishonoring animadversions which it had recorded--a modestrequest certainly, when in the petition he accused Enayat Hossein of perjuryand with having misrepresented to Mr. Kelly, Mr. Taylers own agent, the effectof the written statement which Mr. Kelly had verified upon oath; and when thepetition stated, in direct contradiction of Ahmedoollahs evidence given in thecause upon oath, that he, Ahmedoollah, was to the best of Mr. Taylers belieffully cognizant of all that had passed, and was under the same conviction as hethat the attachment had ceased.

37. In his petition and in his affidavit he declared that itwas not his intention to dispute his liability for the amount paid. He statedthat he directed Enayut Hossein to endeavour to compromise with the plaintiffif he could. He does not state what instructions he left with Enayat Hossein asto the defence to be set up if the plaintiff should refuse to compromise, butmerely that, when he heard that the action had been brought, he considered thatif Enayut Hossein defended at all it would only be to the extent of theequitable plea above mentioned according to the instructions received. This wasexplained by an additional affidavit, in which he swore that he believed thatthe only plea which he would ever have allowed to be advanced on his behalfwas, that a compromise had been agreed to by the Ranees Dewan for a sum (asfar as he could remember) of Rs. 7,000, and that the plaintiff, by paying thefull amount of the decree, without notice, had deprived him of the benefit ofthe compromise. He also annexed extracts from a correspondence between himselfand Mr. Kelly.

38. In one of the letters to Mr. Kelly he appears to havesaid:

I certainly would not pay Amedoollah more than Rs. 7,000,which is the sum I should in all probability have been able to compromise withthe Ranee for. He had no right to pay the money on his own authority andwithout my concurrence, and thus entail on me a liability to the whole withoutcompromise and without the time which the Court would undoubtedly have givenme. So if he does not accept this, let him bring his action. But in this matteralso, you had better exercise some discretion in consultation with EnayutHossein and Wilayut Ali.

39. That letter is dated 3rd May 1867. The plaintiffs suitwas not brought before the 3rd December following. Though Mr. Kelly and Mr.Tayler both made affidavits, not one syllable was stated by either of them asto any offer of compromise having been made to the plaintiff. All Mr. Kelly sworeupon that subject was, that if there had been a compromise he had funds in handsufficient to pay Rs. 7,000 or 8,000 to the purchaser.

40. That no compromise had ever been effected with the Raneeis clear from her proceeding with the execution without any attempt on the partof Mr. Tayler to prevent it. It is clear that no compromise was made with theplaintiff, from the fact that her suit was afterwards brought, and no suchcompromise was set up as a defence.

41. The only defence that Mr. Tayler could have set up underthese circumstances was, that the attachment was not in force when the saletook place. If he had made that defence, he might have dictated his own terms,for in that case the plaintiff had paid in her own wrong; and no doubt Mr.Tayler would have set up that defence and dictated his own terms, if he hadbelieved that the attachment was not in existence when the sale took place, orthat it was superseded by the second attachment; but no such defence wassuggested by him either to Enayut Hossein or to Mr. Kelly in any one of hisletters. It is also to be remarked that nothing is said either in the petitionor in the affidavits as to whether any and what consultation ever took placebetween Mr. Kelly, Enayut Hossein, and Wilayut Ali, as recommended in Mr.Taylers letter of the 3rd May 1867.

42. Mr. Tayler was heard in support of his petition forreview, and on the 13th of March 1869 the following judgments were delivered.The Chief Justice said:

It appears to me that there is no ground for reviewing thejudgment. I have read very carefully the judgment which I delivered in thiscase, and I see nothing in it which I can retract. I did remark upon thejudgment of the Subordinate Judge, but I abstained from expressing any opinionas to whether there was any fraudulent concealment on the part of Mr. Tayler.

43. Mr. Justice Dwarkanath Mitter said:

I am of opinion that this application ought to be refused.

It is not contended that the remarks made by me in thejudgment, which is now sought to be reviewed, were not warranted by theevidence then before me, nor is it contended that the decree which followedupon that judgment is in any respect contrary to law or justice. But it isurged that the written statement put in on behalf of the petitioner, and theevidence adduced in support of it, were all concocted by one Enayut Hossein,the native agent of the petitioner, contrary to the instructions expresslygiven to him by the petitioner, and I have been accordingly asked to withdrawcertain remarks which I had made with reference to the conduct of thepetitioner, as disclosed by the evidence on the record which I had before mewhen I beard the appeal.

I do not think that an application of this sort, which doesnot ask for any substantial interference either with the judgment or the decreewhich followed upon it, can be legitimately treated as an application forreview, and on this ground I decline to entertain it.

I wish to add, however, that I should not. be justified inwithdrawing the remarks in question upon an ex parte proceeding of this kind.Enayut Hossein is not before the Court, and so far as the plaintiff isconcerned, she is in no way interested in opposing this application, inasmuchas the petitioner is not seeking for any interference with the decree which hasbeen passed in her favour.

I express no opinion whatever as to the correctness orotherwise of the statements contained in the affidavit filed by the petitioner.I can only say that if the charges brought against Enayut Hossein are true, thepetitioner ought to prosecute him upon those charges; and I have no doubt thatsuch a prosecution, when brought to a successful termination, would be asufficient vindication of his character. As matters stand at present, I cannot,upon an ex parte application like this, hold Enayut Hossein guilty of theserious offence with which he has been charged by the petitioner, and this Imust do before I can withdraw the remarks in question.

I wish further to add that I am by no means satisfied withthe explanation given by Mr. Kelly with reference to the verification of thewritten statement. Mr. Kelly says in his affidavit, I received from Mr. Taylera letter, dated from London the 17th April 1867, and another dated from thesaid place the 3rd May of the said year, and in these two letters werecontained instructions for the settlement of the claims of MusammatZahuroonnissa, and the purport and substance of these instructions werecommunicated by me to the said Enayut Hossein. When the suit of Musammat Zuhuroonnissawas brought, the written statement on the part of Mr. William Tayler wasprepared by the said Enayut Hossein, and was represented to me as being inconformity with the purport and substance of the instructions of Mr. WilliamTayler in the said matter, and upon this assurance I verified the writtenstatement.

In the first place I remark that the affidavit does notdisclose the precise instructions which Mr. Kelly gave to Enayut Hossein incase he, Enayut Hossein, should fail to bring about an amicable settlement, nordoes it appear that the letters referred to are very clear on the point. But bethat as it may, it appears to me that Mr. Kally was in no way justified inverifying the written statement in question merely upon a general assurancefrom Enayut Hossein that it was prepared in conformity with the purport andsubstance of the instructions of Mr. Tayler. When a gentleman puts in averified written statement, it is his bounden duty to satisfy himself, by everypossible means in his power, that every allegation which is contained in thatwritten statement is in strict conformity with truth; and it is no excusewhatever for him to say that he is ignorant of the language in which thewritten statement was drawn up, or that he was generally assured by some oneelse that everything stated therein was in conformity with his instructions. Itmay be that Mr. Kelly was misled by Enayut Hossein; but without expressing anyopinion upon this point, one way or the other, I do not feel the slightest hesitationin saying that, upon his own showing, the explanation offered by Mr. Kelly isaltogether unsatisfactory.

I reject this application.

44. Before those judgments were pronounced, the ChiefJustice and Mr. Justice Dwarkanath Mitter consulted together upon the subjectof Mr. Taylors application for review. I pointed out to Mr. Justice DwarkanathMitter that I did not see how he could revoke his finding upon the issue offraudulent concealment without virtually expressing his opinion, behind the backof Enayut Hossein, of the charges brought against him by Mr. Tayler in hispetition and affidavits. I fully concurred with my honourable colleague in thecourse which he proposed to adopt, and which he did adopt, in the judgmentwhich I have read.

45. Without setting out the judgment, or even stating thenature of his reasons, Mr. Justice Dwakanath Mitter is charged with having, onthe narrowest grounds of technically, refused to retract an unfounded andunjustifiable accusation and a slander re corded against an absent suitorwithout one tittle of evidence to support it; and this though the accusationhad been clearly disproved. If this is fair criticism, I confess I do notunderstand what fair criticism is.

46. Mr. Tayler, in his affidavit put in on Tuesday last,swears that the several letters written by him were written for the sole andsingle purpose of removing the stigma which attached to his name in consequenceof the remark recorded by Mr. Justice Dwarkanath Mitter, and to prove, by asearching criticism before the public and his friends, that the facts of thecase did not warrant such inference. If that is true, Mr. Tayler has farexceeded the means necessary for the end.

47. To show the animus with which the letters were written,I proceed to read them.

48. They are all artistically framed, and, like the chaptersin some novels, each is headed with a quotation to give some short general ideaof what is coming. Some of the insinuations are artfully penned, but there canbe no doubt that they are defamatory, It is plain who are the persons alludedto, and what is the meaning; and to quote the words of Lord Hardwicke in asimilar case [The St. Jamess Evening Post case (1742) 2 Atk. 469 : 26 E.R.683] of contempt:

As a Jury, if this fact was before them, could make nodoubt, so, as I am a Judge of facts, as well as law, I can make none.

49. The first letter, that of the 7th April, begins with aquotation from Shakespeare:

My reputation, Iago, my reputation.

Othello.

To the Editor of the Englishman.

Sir--I was in hopes that, long ere this, I might have sentyou for publication the proceedings of the High Court in the matter of myapplication for a review of judgment in the case in which Mr. JusticeDwarkanath Mitter did me the honour to record that I had perpetrated a fraud; but as I have not yet been able to obtain authenticated copies. I do not wishto delay any longer the remarks which I consider myself called upon to makeinjustice to myself in regard to this insulting, and as I shall show, utterlyunjustifiable, charge.

Condemnation or censure passed by a Court of Justice on asuitor (if without sufficient ground or reason) is the most mischievous, themost intolerable of slanders. The Judge on the Bench, like the Parson in thePulpit, has it all his own way for a time; but the Preacher attacks man ingeneral, the Judge deals with the individual. General condemnation hurts noone. Individual censure may be ruin to the object of it.

I now purpose to show, and that by clear and unanswerableevidence, that this dishonoring and unmeasured imputation judicially cast uponme by Mr. Justice Dwarkanath Mitter has been recorded by him without one tittleof evidence to support it; that it is wholly untrue and manifedly absurd; and Ibeg you to observe that the learned Judge who placed it on record has notcondescended to give one single reason, ground, on argument in support of hisdenunciation.

If a District Judge, had so acted, he would in allprobability have been suspended, or, at all events, subjected to some suchordeal as Mr. Beaufort underwent not long ago ! Whether elevation to the Benchof the High Court carries total exemption from responsibility with it remainsto be seen.

50. This is a distinct charge, that the learned Judge had beenguilty of such conduct that if he had been a District Judge he would in allprobability have been suspended; but where is the promised clear andunanswerable evidence to support it It not only asserts that the Judgesconduct was such as to justify suspension, but Mr. Tayler declared that itremains to be seen whether, in con-sequence) of his high position, he will beexempt from responsibility by Government. There was a charge sufficiently graveto justify the Secretary of State in calling for explanation. Was the learnedJudge to wait, or immediately to vindicate his honour and his character

51. The letter proceeds:

The facts of the case, as far at least as they regard thisjudicial insult, lie in a nutshell.

52. Mr. Tayler then proceeds to detail the facts, not asthey appeared on the record, on which alone the Judge had to decide, but uponMr. Taylers statement. He says:

In October 1866, I sold an estate then in my possession inthe Gya District for Rs. 55,000 to one Ahmedoollan, an old Patna Vakeel, whopurchased it in the name of his wife. Nine months after the sale, this estatehad been attached by the delicious old maid of Ticaree under the decree which,to her utter amazement and bewilderment, she obtained from the Honble JusticesLoch and Norman for Rs. 12,000--a decree which robbed me of the hard earningsof a year.

53. I shall have occasion in another place to refer to thisdescription of the Ranee. I merely ask here, was it necessary for thevindication of Mr. Taylers character in this matter under consideration Butwhat was the meaning of the assertion that she obtained that judgment to herutter amazement and bewilderment What was the meaning of describing the decreeas one which had robbed him of the hard earnings of a year Could any othermeaning attach to those words than that the decree was an unjust one Was itnecessary for the vindication of Mr. Taylers character, with reference to thequestion whether he had fraudulently concealed the attachment from a purchaserof the estate, to enter into the merits of the decree under which that estatewas attachment I should have thought that Mr. Tayler would have been glad toallow all questions as to that decree to be buried in colivion; for,notwithstanding the Judges and on review, and upon reading a deposition of Mr.Tayler which had been taken irregularly and was not before the Court on thefirst bearing of the appeal, withdraw certain remarks which reflected seriouslyupon Mr. Taylers character, still the ugly fact remained that Mr. Taylerendeavoured in a certain suit against the Ranee, his former client, to enforcepayment of a bond which he had obtained improperly from her, and by thedoctrine or estoppel to bind her to certain untrue statements which had beenintroduced into the bond.

54. Mr. Justice Norman in that case made the followingremarks:

Mr. Tayler, however, raises the issue that his client isestopped by the admission in the bond. There cannot be a greater mistake. Mr.Tayler stood towards the Ranee in a fiduciary position as her confidentiallegal adviser." And again--"We think Mr. Tayler is not entitled torecover on the bond, and it must be set aside as improperly obtained from hisclient.

55. The attempt made by Mr. Tayler in that suit to pervertjustice by a misapplication of the doctrine of estoppel was not unlike theattempt which was made by him in the suit brought by Musammat Zuhoorun topervert justice by a misapplication of the maxim caveat emptor. And here I mayask why, if Mr. Tayler believed that the decree passed by Justices Loch andNorman was unjust or erroneous, did he not proceed with his appeal which hepreferred to the Privy Council, and which he withdrew before the date of thisletter

56. The letter continues:

After this attachment, she was required by the High Court togive security before her decree was executed, and on failing to comply with theorder, the case of execution of decree was struck off without reservation. Sometime after this, I gave directions for the sale of the estate. The negotiationswere conducted with the utmost publicity by my agent while I was at Simla. Theywere carried on for months together, and finally completed nine months afterthe case had been struck off.

57. This allegation not only contains a false fact, butsuppresses the truth. It is false as regards the statement that the attachmentwas struck off for default of the Ranee. It is a suppression of the truth,inasmuch as the facts stated were not those upon which the Judge decided, andthe validity of the attachment, or of the Ranees right to sell the estateunder it, had never been disputed or set up as a defence by Mr. Tayler.

58. It is not necessary to decide that Mr. Tayler, when hewrote in this letter that the decree had been struck off for default of theRanee, stated what he knew to be false, but it is a very remarkable fact thatit was made after the Judge in his judgment in the intervention case haddeclared that the case was not struck off for default of the Ranee, and thatthe precedent which had been cited by the Pleader to show that the attachmentwas invalidated by the striking the case off the file was applicable only to acase in which the decree is struck off owing to the negligence of thedecree-holder. That judgment having been filed as part of the evidence in thesuit against Mr. Tayler, that gentleman in his letter brings his case withinthe rule by the false statement that the decree was struck off in consequenceof the Ranees having failed to comply with the order that she might give security.

59. It will make the case clearer if I now read the Judgesjudgment in the intervention suit, which was put in as evidence in the suitbrought by the purchaser against Mr. Tayler, and compare it with theseassertions of Mr. Tayler:

To-day this case came on for hearing in the presence of thePleaders for both parties, and the papers of the case have been taken intoconsideration. The particulars of this case are as follows:

On the 27th January, 1866, Ranee Usmedh Koer filed apetition for execution of decree, with a view to realize the costs and interestpayable to her under the decree of the High Court, dated 29th April 1865, byMr. William Tayler. At that time she also submitted a schedule of theproperties which she intended to attach, that is to say, a schedule of sixteenannas of mokuraree right in Mouzah Dargaon in Pergunnah Sumai, On the 1stFebruary 1866, an order for attachment was passed by this Court, and also theusual processes were issued and the estate was attached on the 9th March 1866.An order was sent by the Court to the effect that the decree-holder should showcause within two weeks, why the execution of decree should not be postponed ifthe judgment-debtor would find sufficient security until the appeal preferredto the Privy Council shall have been decided. On the receipt of the order aforealluded to, this Court passed in order, to the effect that the executionproceedings should be postponed for the time. Also on the 13th March at thetime of the transmission of the return to the superior Court, this Court madethis order, that the proceedings for execution of decree should be struck offfrom the files of pending cases. On the 29th May I860, an order was receivedfrom the High Court, purporting that in the event of tender of sufficientsecurity, the decree in favour of the decree-holder might be executed. Inobedience thereto, the case for execution of decree was again numbered on thefile. On the 7th December 1865, the security tendered by the decree-holder wasadmitted, and the property having been again attached, the 2nd February 1867was fixed for another sale. On the 13th February 1867 Musammat Zahoorun, theobjector, filed a petition praying that the property attached might be exemptedfrom sale, because she having purchased the property in dispute under a deed ofsale of 11th October 18 56 had been in possession, and the purchase in questiontook place before the second attachment.

In this case the point for trial is whether the order ofthis Court in the matter of striking off the case for execution of decree forthe time being from the file of pending oases can be prejudicial to theprevious attachment, and render the same null and void.

The opinion of the Court is, that an order, like the onepassed by this Court, cannot be prejudicial to the interest of the decreeholder under the circumstances of the case, and with reference to the fact thatthe proceedings in execution of decree were thrown oat for a short time and nodefault was committed by the decree-holder in carrying on the case. Hence, asthe decree holder has furnished sufficient security, and the case for executionof decree has been numbered on the file by order of the Court, the parties tothis suit have been placed in the same position in which they were at the timeof the striking off of the case for a short time. Hence the Court finds thatthe first attachment has been in existence and in status quo. The precedentrelied on by the Pleader for the objector, of 3rd May 1855, page 224, can beapplicable to a case in which the execution of decree is specially struck offthe file, owing to the negligence and default of the decree-holder. Hence,believing that the first attachment did not become null and void, and as thefirst attachment had taken place prior to the purchase made by the objector,the Court does hereby order that the objection be rejected, and the properlyattached be sold by auction for the realization of the money decreed.

60. The letter goes on:

Now I ask you, and through you the public, the whole serviceto which I had the honour to belong, and with which I am still connected by somany ties, and finally I ask the Honble the Chief Justice and the Judges ofthe High Court to say what was the fraud which I perpetrated in thus disposingof my property

61. I will answer the question. The fraud consisted, not inselling the estate, but in gelling it without informing the purchaser of theattachment, receiving the whole purchase-money from her, leaving her subject tohave her estate sold under that attachment, and when she had been obliged tostaisfy the decree in order to save her estate from sale, refusing to pay herthe money which she had so paid, and of which Mr. Tayler got the benefit insatisfaction of the decree, and setting up the doctrine of caveat emptor andother similar sham defences. Mr. Tayler was not so innocent as not to know thatthe fraud charged was not the simple fact of his selling his property.

62. The letter further says:

Is it not, and has it not for years passed been the unvaryingcustom throughout the District Courts to consider an attachment dead when anexecution case has been struck off the file Will Mr. Justice Dwarkanath Mitterdispute this

63. This question has already been answered by the Judge ofGya, who held that striking off an execution case does not invalidate anattachment unless the case is struck off for default of the decree-holder. Thefacts in this letter, as stated, bring the Ranees attachment directly underthis category; but they are false, as has been already shown.

64. Mr. Taylers letter proceeds:

On what ground, then, on what evidence, did this Judge inthe first instance record this grave accusation Not on the evidence of EnayutHossein, my native agent, for his evidence was set aside by the Court asunworthy of trust.

65. Enayut Hosseins evidence was disbelieved as to the factthat the purchaser was informed of the attachment, and that the amount of itwas fixed at Rs. 14,000. The concealment was proved by Ahmedoollah and theother witnesses produced by the plaintiff.

66. Farther the letter goes on:

Whatever may have been the dishonesty of his pleading andanswer to the suit, where were the materials to justify the charge that Iperpetrated a fraud in selling my estate in October 1866

67. Mr. Tayler must know that that was not the charge, andthat the fraud alleged consisted of his suppressing the fact of the attachment.

68. The letter proceeds:

And if the original charge is thus shown to be withoutreason, ground, or evidence, what will be said when it is known that after thesolemn affidavits taken by me before the Court, and the full proof I have givenof my entire blamelessness in the matter, Mr. Justice Dwarkanath Mitterrefuses, on grounds of the narrowest technicality, to expunge his remarks, andtells me that a criminal prosecution against my native agent, if conducted to asuccessful termination, will be a complete vindication of my character. (Iquote from memory of what he said at the time).

69. Here again the judgment and the reasons for it aresuppressed. I cannot understand what Mr. Taylers notions of justice are, if heholds that a refusal to act upon a charge of perjury against a man behind hisback is a matter of the narrowest technicality.

70. Mr. Tayler proceeds:

I should certainly have thought that a Judge, endowed withthose high qualifications which are generally believed to be essential to thedue discharge of his duties, would have gladly seized the opportunity, when hefound that he had unwittingly and unjustly slandered an absent suitor, toretract his words and expunge them from the record, instead of referring me toa process not only of doubtful issue, but which is actually impracticable inexecution, for there is no criminal charge which could be framed against myagent in this case. He cannot be indicted for perjury without the expresssanction of the Civil Court. He cannot be charged with false verificationbecause he induced Mr. Kelly, ray English agent, to verify the statement put inon his behalf. He certainly disobeyed my instructions, but he fought the caseand gained a decree in my favour in the District Court.

71. If Enayut Hossein was guilty of perjury, as charged byMr. Tayler, he might clearly have been charged with perjury. Mr. Tayler wouldin all probability have had no difficulty in obtaining leave to prosecute him.If Mr. Tayler had no evidence to prove perjury, he ought not to have made thecharge.

72. Mr. Tayler continues:

On what possible grounds could I frame or conceive acriminal charge against him with the slightest chance of bringing such chargeto a successful termination

So the happy sequel is, that I am unjustifiably accused. Theaccusation is clearly disproved. My accuser refuses to retract, and refers mefor vindication of my character to an impossible remedy.

"It is a satisfaction at least that the Honorable theChief Justice has publicly disclaimed all participation in this cruelwrong."

All that I stated was that I had nothing to retract. I leftit to Mr. Justice Dwarkanath Mitter to say what he thought right with referenceto his own judgment.

The next letter is that of the 12th April; it runs thus:

First Fury.--Thou thinkest we will rend thee, bone frombone.

And nerve from nerve, working like fire within

Prometheus.--Pain is my element, as hate is thine!

Ye rend me now, I care not."

Prometheus unbound.

To the Editor of the "Englishman."

Sir,--Two or three days ago, I addressed you on the subjectof Mr. Justice Dawarkanath Mitters charge against me of fraud. What I am nowabout to relate is an appropriate and somewhat amusing supplement to thenarrative. At the very time I was in person protesting against this insultingand unfounded imputation, what was taking place in the same district and beforethe same Court in which the attachment of my estate had taken place

"Listen, and be edified. Some weeks ago, I had myselfattached a house belonging to a judgment-debtor against whom I held a decreefor Rs. 5,000. The house was worth about that sum. Before the sale, however, myirresistible old maid of Ticaree, who is in dangerous rapport with all theAmlah of all the Courts, having a stray claim against me of Rs. 500 for costs,attached my decree for Rs. 5,000.

73. Here is a direct charge against the Ranee that she is inrapport with all the Amlah of all the Courts. Was it necessary for thevindication of Mr. Taylers character that the discharged Mookhtear should turnupon his former client and endeavour to bring her into ridicule and contemptThe lady who is styled my irresistible old maid of Ticaree" is a lady ofrank and position: above all, she is a Hindu widow, a state which Mr. Talyerfrom his experience must know is one in which she is removed from all worldlypleasure. Is it because she discharged Mr. Tayler from her service, or becauseshe holds some stray decrees against him which she seeks to enforce, that sheis to be slandered and ridiculed Her sex, her misfortune, ought to haveprotected her from insult and indignities.

74. I have no doubt that the charge was intended to conveythe imputation that all the Amlah of all the Courts in the district are underundue influence exercised over them by her. But even if this was not themeaning of the slander, there was the intention to ridicule; and why was thisMr. Tayler has positively sworn that the only object of this letter was tovindicate his character. Would he have thus written if he had continued to bethe Ranees Mookhtear on a salary of Rs. 500 a month, with extra reward forwinning suits Is this part of the edification which he promises to those wholisten Let me not be misunderstood. I do not charge this as part of thecontempt of the Court. I refer to it merely as evidence of Mr. Taylers animus,and to test the credibility of his affidavits.

75. Mr. Tayler goes on:

And now for judicial wisdom! Instead of allowing the sale toproceed, subject to this lien for Rs. 500, which would, of course, have beenpaid out of the proceeds, to the satisfaction of justice and all the partiesconcerned, the Judge strikes the case off the file! The Ranee steps in withanother decree against the same party and the house is sold for her benefit !Meanwhile my agent at Patna, directly he hears of the attachment of my decree,sends off Rs. 500 in cash and prays for the sale of the house.

What is the order Your case has been struck off. Ergo, yourattachment has fallen to the ground, and another has reaped the fruits of yourdiligence!!

76. This judgment is not intelligible, but, right or wrong,it did not justify the aspersions on Mr. Justice Dwarkanath Mitter.

77. The letter proceeds:

Now, just observe how I am dealt with. Because, in the onecase I acted in the belief that the attachment of my own property had ceased inconsequence of the case being struck off the file, Mr. Justice DwarkanathMitter declares I perpetrated a fraud.

78. Now is this true Did Mr. Justice Dwarkanath Mitterdeclare that Mr. Tayler perpetrated fraud because he acted in the belief thatthe attachment had Cases in consequence of the case being struck off the fileThe fact was not before him when he delivered the first judgment. His reasonsfor not withdrawing the remarks were given in his judgment in review.

79. The letter continues:

Because, in the Court of Gya, my case of execution had beenstruck off the file (and that inexcusably), I am robbed of Rs. 5,000 on theground that the attachment had ceased.

Thus justice, like the sword of Ali, strikes me at one andthe same moment with both edges of the redoubtable Zoolfikar, and each time, aswas Alis pleasant custom, with a shout of insult and derision.

At the voice of Mr. Justice Dwarkanath Mitter down goes myreputation; on the dictum of the District Judge away goes my money; both Judgesacting on grounds diametrically opposed to each other."

What was meant by the words "shouts of insult andderision" with reference to Alis sword, except that Mr. JusticeDwarkanath Mitter, who was compared to one of the edges, insulted and gloriedin his insult

80. Mr. Tayler proceeds:

With all respect to the majesty of the ermine, I cannot butthink that such instances of human frailty should teach our Judges, whetherhigh or low, the melancholy lesson that after all they are but falliblemortals, and at least make them pause before they aggravate the wrong of anerroneous judgment by the far greater wrong of wanton insult and unfoundedaspersion.

The last letter is dated 13th April 1839; it commences thus:

"Dogberry.--Come you hither, Sirrah; a word in yourear, Sir; I say to you, it is thought you are false knaves.

Borachio.--Sir, I say to you, we are none.

Dogberry.--Well, stand aside. Fore God, they are both in atale,

Have you writ down that they are none

Much Ado about Nothing."

Here let me sak how it was necessary for the vindication ofMr. Taylers character to introduce Dogberry into the scene

"To the Editor of The "Englishman."

Sir.--Will you allow me a few more last words about thelate assault of Mr. Justice Dwarkanath Mitter, and forgive me for againreferring to the irrepressible Ego. Thackerays pithy defence of egotism is,that if a man tread on my corns, I am the sufferer, and who so well as myselfcan describe my woes But this matter has public as well as private interest;others have corns, and there are more than one Mitter who may tread on them.

"But what I am now about to represent is a new incidentin the case, and one which renders the Judges accusation so thoroughly absurdthat I am bound to give it publicity.

"The only conceivable ground hitherto supposed to existfor casting a stigma upon me was that the Judge sold my estates under theformer attachment, and therefore, that that attachment did exist at the time ofmy private transfer of the estate.

"This could not really alter the case as far as myfraud was concerned, because, even if he had done so, he would have acted indirect opposition to the established practice, and it was quite enough for mymoral absolution to show that I believed, and was justified in the belief, thatthe attachment bad ceased. No judicial expost facto eccentricity could alteror affect this state of things.

But I have within these two days ascertained that even thislittle homeopathic globule of justification does not exist! but that the Judgebefore he brought the estate to sale, directed a new order of attachment, thusshowing by his own proceedings that he also deemed the old attachment to havebecome null and void.

81. Here there is again falsehood and concealment; falsehoodin representing that the second attachment was a new incident in the case andconcealment in keeping out of sight the fact that in one defence set up to thesuit, the validity of the attachment or of the sale under it was neverquestioned. The question was, admitting the validity of the attachment and ofthe right to enforce it by sale of the estate, whether the plaintiff knew of itat the time of sale, and if not, whether Mr. Tayler knew of it and fraudulentlysuppressed or concealed it. The discovery of the fact of the second attachment,even if not known to Mr. Tayler before, could not affect the question whetherhe fraudulently concealed the first attachment, or the fact of the firstattachment continuing in force. But it is clear that this attachment, stated tohave been discovered by Mr. Tayler only two or three days before writing theletter, was a matter known when the written statement was put in on behalf ofMr. Tayler, and was actually referred to in the 3rd paragraph as the proceedingof the 13th February 1867, and was also decided by the Judge of Gya not to haveaffected the first attachment. The Judge speaks of the property having beenagain attached: of the intervenors objection that she purchased before thesecond attachment, and he decided that the first attachment did not become nulland void by reason of the second attachment. So much for Mr. Taylersdiscovery.

82. The letter goes on:

Thus the infinitesimal peg upon which Mr. Justice DwarkanathMitter suspended his insulting imputation subsides into space

The confident and uncompromising tone of his accusation haddeceived even me, and I had hitherto concluded that he had at least thus muchof fact to justify his anathema.

But it now appears that he made no enquiry whatever as towhether the sale took place under a fresh attachment, or not!! before he thusvilipended me.

83. There was no necessity to enquire, because the matterwas no part of the defence set up.

84. The letter concludes:

We have all heard or read among the mysteries of humannature of that strange idiosyncrasy which enables some men to detect, by acertain internal irritation, the presence, though unseen, of a cat. It appearsto me that of late years some such element of anti-feline irritation mustappertain to my unhappy person, for there is a certain class among the officialprincipalities of Bengal who, directly I am brought into contact with them,appear to be at once affected by an overpowering internal excitability, whichaffects the understanding even of the wise and good, and intensifies the follyof the foolish, but at the same time always issues in one result--injury,insult or wrong to myself.

When the true history of mesmeric repulsion is unravelled,perhaps the cause may be traced.

85. Can any one doubt, after reading the context, thereference to the judgment of Mr. Justice Loch and Mr. Justice Norman in thefirst letter, that the words official principalities" are intended toinclude the Judges of the High Court, or some of them, and to accuse them of awant of impartiality, fairness, and courtesy in all cases in which Mr. Tayleris concerned as a suitor, which always result in injury, insult and wrong tohim

86. I will read a passage or two from Lord Hardwickesjudgment in a similar case.

87. Lord Hardwicke said in St. Jamess Evening Post case(1742) 2 Atk. 469 : 26 E.R. 683:

Nothing is more incumbent upon Courts of Justice than topreserve their proceedings from being misrepresented; nor is there anything ofmore pernicious consequence than to prejudice the minds of the public againstpersons concerned as patties in causes before the cause is finally heard.

It has always been my opinion, as well as the opinion ofthose who have sat here before me, that such a proceeding ought to bediscountenanced.

But, to be sure, Mr. Solicitor-General has put it upon theright footing that, notwithstanding this should be a libel, yet unless it is acontempt of the Court, I have no cognizance of it. For whether, it is a libelagainst the public or private persons, the only method is to proceed at law.

The defendants Counsel have endeavoured two things--1st, toshow this paper does not contain defamatory matter; 2ndly, if it does, yetthere is no abuse upon the proceedings of this Court, and, therefore, there isno room for me to interpose.

Now, take the whole together, though the letter is artfullypenned, there can remain no doubt, in every common reader at a coffee house,but this is a defamatory libel.

88. The Lord Chancellor then stated, with reference to thecourse which had been followed in that case of alluding to the persons libelledby the initial letters of their names, that:

All the libellers of the kingdom know now that printinginitial letters will not serve their turn, for that objection has been long gotover.

89. He then proceeded:

It is plain, therefore, who is meant; and as a Jury, if thisfact was before them, could make no doubt, so as I am a Judge of facts, as wellas of law, I can make none.

I might mention several strong cases, where even feignednames have been construed a libel upon those persons who were really meant tobe libelled.

I shall take notice but of one, and that is the case of Mrs.Dodd, who printed a letter abusing the late King, under the name of MerriweisSophy of Persia; it was tried before a Jury of gentlemen of great honour, whowere so well satisfied of the real meaning, that, notwithstanding the whole wasconcealed under fictitious names, they found the publisher guilty.

Next, as to the expression in the paper, that there wereeven here in England some gentlemen of note and character who did not scrupleto turn affidavit men. Mr. Solicitor-General has insisted this may be taken ina good sense as well as a bad one, because a man who swears true, is as much anaffidavit man, as if he swears false, and the Court should take it in mitiorisensu.

I will not take upon me to say whether, upon an action atlaw, this could be supported as libellous upon the strict rules.

But, I believe, there is nobody who is conversant in theproceedings of this Court, but must know that this expression means persons whoare ready, upon all occasions, to make affidavits, without regarding whetherthey have any conusance of the facts.

90. The use of the words a certain class of officialprincipalities of Bengal" cannot deceive the Court. There is no doubt itincludes one or more of the Judges of the High Court, and I have no more doubtas to what Mr. Tayler meant by the words being affected by an overpoweringinternal excitability which affected the principalities when they came into contactwith him, and which always resulted in injury, insult, or wrong to him,"than Lord Hardwicke had as to the meaning of the words affidavit men."

91. These letters are not fair criticisms: they areslanderous effusions, as regards the Ranee of a disappointed Mookhtear who hasbeen dismissed from her service, and, as regards the Judge of a disappointedsuitor who has failed in his case.

92. The charge against Mr. Justice Dwarkanath Mitter, ofcasting upon Mr. Tayler an unmeasured imputation without one title of evidenceto support it, was not only false, but false within Mr. Taylers own knowledge.This I will prove out of his own mouth.

93. In the letter to the Editor of the Englishman, dated12th February 1869, Mr. Tayler says:

I have just arrived from England, and one of the firstpleasant things presented to me has been your paper of December 1st, containingthe decision of the High Court in the appeal Musammat Wuzeerun (appellant)versus William Tayler (respondent).

From this decision I find that, in a suit instituted againstme after I had left India, and conducted on my behalf by my native Mookhtear,Enayut Hossein, the High Court has declared me guilty of fraudulent concealmentof attachment (in its legal sense) in regard to an estate which I sold.

I do not complain of this decision, for it is based onstatements and evidence put forward by Enayut Hossein which are quitesufficient to justify the conclusions of the Court, which regards them as mine.

94. Again, in his petition of review, on the 17th Februarylast, Mr. Tayler says:

Your petitioner, having just returned to India, has read, heneed not pay, with pain and mortification, the decision of the High Court inthe case of Musammat Zahoorun passed on the 19th November 1888.

Your petitioner cannot reasonably demur to the decision,based, as it is on the defence set up by his native Mookhtear, and supported bythe evidence which he has volunteered in the case.

"All your petitioner now desires to do is to inform theCourt that the statement put in and the evidence given by Enayut Hossein andhis creatures are totally false, made and given without the approval,concurrence, or knowledge of your petitioner, and in direct opposition to theinstructions given by him to the said Enayut Hossein before his departure fromIndia.

95. Holding this opinion, Mr. Tayler knew that, according tothe case as it stood when Mr. Justice Dwarkanath Mitter pronounced judgment, hewas fully justified in pronouncing it as he did. Mr. Tayler substituted a freshstate of facts, which was false, and wilfully concealed the real one, and hecriticised the judgment with reference to that statement. Was this honest Wasit fair criticism, in good faith, of the acts of a public man

96. I could scarcely believe that I correctly understood Mr.Taylers observations which he made with reference to his letter of the 12thFebruary, and his attempt to reconcile the passage which I have quoted with theslanderous imputations in his subsequent letters.

97. He stated that when he wrote the first letter he wasunder the impression that the Chief Justice as well as Mr. Justice DwarkanathMitter had imputed fraud to him, but that he had since been gratified byfinding from the explanation of the Chief Justice that he had put only a hypotheticalcase; that if the observations of the Chief Justice had been to the effectwhich he had supposed, he would have had no cause to complain of Mr. JusticeDwarkanath Mitter, as he would then have been concurring with the ChiefJustice, after he had considered all the facts.

98. I called his attention to the fact that he hadreiterated the same thing in his petition for review. He then stated that itwas not until after the hearing of that petition that he had heard theexplanation of the Chief Justice.

99. I can scarcely trust myself to characterise thisexplanation of Mr. Tayler. I wish merely to ask whether it was just and fair ormanly on the part of Mr. Tayler to impute to Mr. Justice Dwarkanath Mitter thatwhich he would not have imputed to the Chief Justice, if he had come to asimilar finding. How is it possible that there could have been evidencesufficient to justify the Chief Justice alone, or the Chief Justice and Mr.Justice Dwarkanath Mitter jointly, in imputing fraud, if there was not onetittle of evidence to support the imputation when made by Mr. JusticeDwarkanath Mitter alone

100. I have now shown beyond all doubt that there was not ashadow of justification for Mr. Taylers charges against Mr. Justice DwarkanathMitter, and that the public could not have been misled by any criticisms ifthey had been based upon the truth, the whole truth, and nothing but the truthI have also criticised what Mr. Tayler has been pleased to style hisintellectual and searching criticism, and I have no hesitation in declaringthat his letters do not contain fair criticisms, but slanderous assertions andfalse statements. A fair critic must not misrepresent, and he must not wilfullyconceal the truth. He is not bound to "extenuate," but he must not"set down ought in malice "

101. Mr. Taylers first object in writing the letters mayhave been to vindicate his own character, but vindication was not the soleobject of all that he inserted in them. Besides, every honest man knows that hehas no right to vindicate his own character by reflections upon the characterof another, based upon false statements and wilful suppression of the truth. Ido not believe that there is an editor of a single journal in this country, orin any other, who, having all the facts before him, would, unless influenced bymalice or improper motives, have criticised the judgments of Mr. JusticeDwarkanath Mitter in the way in which Mr. Tayler has had the audacity to writeabout them.

102. There can be no doubt that the publication of suchletters is a contempt of Court. It is unnecessary to refer to many oases insupport of that position.

103. "Nothing," said Lord Hardwicke in the casealready cited, "is more incumbent upon Courts of Justice than to preservetheir proceedings from being misrepresented." It is a matter of thegreatest importance that Judges should possess the confidence of the public.Such confidence tends much to the satisfactory administration of justice.

104. In Mr. Lechmere Charltons case (1837) 2 My. & Cr.316 : 40 E.R. 661 : 45 R.R. 68 Lord Cottenham said:

The power of committal is given to Courts of Justice for thepurpose of securing the better...administration of justice. Every writing,letter, or publication which has for its object to divert the course of justiceis a contempt of the Court. It is for that reason that publications ofproceedings which have already taken place, when made with a view ofinfluencing the ultimate result of the cause, have been deemed contempts. Itwould be strange, indeed, if the Judges of the Court were the only persons notprotected from libels, writings, and proceedings, the direct object of which isto pervert the course of justice. Every insult offered to a Judge in theexercise of the duties of his office is a contempt; but when the writing orpublication proceeds further, and when, not by inference, but by plain anddirect language, a threat is used, the object of which is to induce a JudicialOfficer to depart from the course of his judicial duty, and to adopt a course hewould not otherwise pursue, it is a contempt of the very highest order.

105. In Crawfords case (1849) 13 Q.B. 613 : 18 L.J.Q.B. 225: 13 Jur. 955 : 116 E.R. 1397 : 78 R.R. 479 Mr. Justice Patteson said:

It is...objected that the Court could have no general powerof commitment for a libel published out of Court some time before. This pointhas not been expressly decided upon. In Von Sandaus case (1845) 6 Q.B. 773 :14 L.J.Q.B. 154 : 9 Jur. 296 : 115 E.R. 291, the libel appears to have beenpublished both in Court and out of it. In Peg. v. Almon (1765) Wilm. 243:252-271 : 97 E.R. 94 : 19 SH. St. Tr. 1082 note, there was a very learnedjudgment by Chief Justice Wilmot, which he intended to deliver, though it wasnot delivered in fact, the case having been dropped. He satisfactorily shewsthat a Court of Record has power to punish, by commitment for contempt, a libelpublished while the Court is not sitting. There must be a choice as to the modeof proceeding; for he says that the punishment may be by indictment or bycommittal for contempt: he treats it throughout as a matter of election. Thatmay be an answer to the difficulty suggested by my brother Coleridge to Mr.Peacock." (The difficulty suggested was whether a commitment for contemptcould be pleaded as an answer to an indictment for the same publication)."We need not, however, determine as to this : it is enough for us to seethat the Court has the power; and that is clear law. If that be so, thequestion whether the particular publication be libellous or contemptuous isclearly, as has been said in many instances, a question for the Court whichcommits. We have not to enquire into this matter, which has been adjudicatedupon by a Court of competent jurisdiction.... The fact of authorship is admittedby Mr. Crawford, who comes forward to avow it, openly and very properly. Theconstruction of the publication was for the Court. We, therefore, cannotinterfere unless there has been some error in the manner and form of theproceeding.

106. In the same case Mr. Justice Erle said:

Then is there here a lawful ground for committal The powerof Courts to commit for contempt in this country has been discussed : and ithas been established, on good reason, that a Tribunal has power to protectitself by committing for a contempt relating to the exercise of its powers. Thecommitment here was for a contempt in publishing, while the Court was notsitting, and perhaps at some distance of time and place, a libel on theproceedings of the Court. In the elaborate judgment to which my brotherPatteson has referred, it if shewn that such a publication may have a strongand immediate tendency to paralyze the proceedings of this Court. Such casesmay easily be conceived; the propriety of the decision in the particular caseis a question for the Court itself.

107. In Re: Wallace (1866) 1 P.C. 283 : 4 Moore P.C. 10 : 36L.J.P.C. 9 : 15 W.R. 533 : 16 E.R. 269 a Barrister and Attorney of the SupremeCourt of Nova Scotia wrote a letter to the Chief Justice reflecting on the Judgesand the administration of justice in the Court. The Court suspended him for it.On appeal to the Privy Council, the suspension was reversed. Lord Westbury, indelivering judgment, said:

The letter was a contempt of Court which it was hardlypossible for the Court to omit taking cognizance of. It was an offence,however, committed by an individual in his capacity of a suitor in respect ofhis supposed rights as a suitor and of an imaginary injury done to him as asuitor and it had no connection whatever with his professional character, oranything done by him professionally, either as an Advocate or an Attorney. Itwas a contempt of Court committed by an individual in his personal characteronly. To offences of that kind there has been attached by law and by longpractice a definite kind of punishment, viz., fine and imprisonment.... Wethink...there was no necessity for the Judges to go farther than to award tothat offence the customary punishment for contempt of Court.

108. After Mr. Taylur had been brought into Court, I askedhim whether he had caused the letters in question which bore his name to bepublished. He at first hesitated. I do not state this by way of complaintagainst him, for he was possibly taken by surprise at the moment, and be almostimmediately afterwards did, as I should expect Mr. Taylor or any othergentleman, who had sent a letter to a newspaper for publication would do, hevery properly admitted that he was the author of the letters, and that he hadcaused them to be printed and published. I am not quite certain whether I spokebefore his admission of what I should do, or spoke after it of what I shouldhave done, if he had not admitted the publication. My belief is that it was theformer, and that I said that if Mr. Tayler disavowed the letters, I should becompelled to send for the printer and publisher of the paper, who was just asliable in point of law to be punished for contempt as Mr. Tayler, or words tothat effect. This opinion has been challenged, and I proceed to prove that itwas well founded.

109. There can be no doubt that the publication in anewspaper of letters like these has in fact a much more injurious effect thanthe mere writing and sending them to the editor of a newspaper. If the editorof the Englishman had torn up Mr. Taylers letters and put them into his wastebasket, no great injury to the public, or to any one else, would have beencaused. But when they were published in the Englishman, they were spread overthe country wherever that newspaper had circulation. If the writing of thoseletters was injurious, the injury was increased a thousand fold by thepublication of them in the newspaper to all the readers of that journal. Theprinter and publisher of the paper doubtless had no feeling upon the subject.The real guilt of publication was mainly that of the author who sent them tothe editor in order that they might be published. Under these circumstances,the Court had its election to punish both the author and publisher of thenewspaper, or either of them.

110. In this case the Court saw no necessity to punish both.They intended to deal only with the author. If the author, when brought intoCourt, had disavowed the publication, the Court would not have allowed justiceto be defeated or baffled. It would have sent for the publisher of the paper,and if he had failed to produce the letters or to bring the case home to theauthor, the Court would have held him responsible. If the printer of anewspaper publishes a letter with the name of an author attached to it, he mustbear the responsibility if he is unable, when required, to prove that it waspublished with the authority of the person by whom it purports to have beensigned. Notwithstanding all that has been said in the newspapers, Iunhesitatingly affirm that that is the course which I should have adopted. Itrust that I am firm enough and conscientious enough not to be influenced byanything that has been publicly said upon this subject. If I had intended topunish the publisher, I should have punished him, notwithstanding the remarkswhich have been made. I did not intend to punish him after Mr. Tayler avowedthe authorship, and nothing that has been said would induce me to hold thepublisher responsible. I have pursued the same course precisely as that which Ishould have pursued if no remarks upon the subject had been made in the publicnewspapers.

111. Now with regard to the liability of the printer, therecan be no doubt, assuming that the letters are not fair criticisms. If theywere fair criticisms, of course, both Mr. Tayler and the publisher of thenewspaper were justified in publishing them.

112. In the case of St. Jamess Evening Post case (1742) 2Atk. 469 : 26 E.R. 683, which I have already cited from 2 Atkyns, the contemptwas committed by publishing a libel reflecting upon certain suitors in matterspending in the Court. The libel had been published in the Champion newspaper,and also in the St. Jamess Evening Post.

113. Lord Hardwicke said that there were three sorts ofcontempt:

One was scandalizing the Court itself: another was abusingthe suitors: there may also be another contempt in prejudicing mankind againstpersons before the case is heard. There cannot be anything of greaterconsequence than to keep the streams of justice clear and pure, thatparties" (and I may add the Judges) "may proceed with safety both tothemselves and their character.

114. It was held that the libel was a contempt of Court, andLord Hardwicke remarked:

With regard to Mrs. Read [the publisher of the St. JamessEvening Post] by way of alleviation, it is said, that she did not know thenature of the paper which she had published, and that printing papers andpamphlets was the trade which she got her livelihood by. But though it is true,this is a trade, yet they must take care to do it with prudence and caution;for if they print anything that is libellous, it is no excuse to say that theprinter had no knowledge of the contents, and was entirely ignorant of itsbeing libellous; and so is the rule at law, and I will always adhere to thestrict rules of law in these oases.

Therefore, Mrs. Read must be committed to the Fleet,according to the common order of the Court upon contempts.

But as to Mr. Huggonson" (the printer of the"Champion" newspaper), who is already a prisoner in the Fleet, I donot think this any motive for compassion, because these persons generally takeadvantage of their being prisoners to print any libellous or defamatory matterwhich is brought to them, without scruple or hesitation.

If these printers had disclosed the name of the person whobrought this paper to them, there might have been something said in mitigationof their offence; but as they think proper to conceal it, I must order Mrs.Read to be committed to the Fleet, and Mr. Huggonson to be taken into closecustody of the Warden.

In Crawfords case (1849) 13 Q.B. 613 at p. 627 : 18L.J.Q.B. 225 : 13 Jur. 955 : 116 E.R. 1397 : 78 R.R. 479, which has alreadybeen referred to, it was ordered that Robert Fargher, the printer and publisherof the Mona Herald newspaper, should attend the Court on 1st February "toanswer for unlawfully and contemptuously printing and publishing" anarticle tending to scandalize and defame the Court. It appeared that Fargherattended and admitted that he was the printer and publisher, and expressed hisregret that, in consequence of bad health, he had not given the article theconsideration it ought to have had, and regretted that it should have givenoffence to the Court, and he tendered an apology and offered to publish it inall the insular newspapers. The Court did not accept the apology, but forthwithcommitted Fargher for contempt of Court. Crawford then stated to the Court thathe was the author and was willing to take the responsibility, provided theCourt relieved Fargber, but that he would not acknowledge the right of theCourt to act in a vague, informal, and summary manner. The Court, however,committed Crawford, and he and Fargher were immediately removed from Court incustody.

115. In a case of Cann v. Cann (1751) 2 Ves. Sen. 520 : 2Dick. 795 : 28 E.R. 332 it appears that:

Mrs. Farley, having been committed to the Fleet upon motionof the plaintiff for having published an advertisement in the "BristolJournal," relating to the answer in Chancery put in by the defendant, SirRobert Cann, moved to be discharged, having paid for costs of the contempt andsubmitted; as also the defendant did, confessing the advertisement was put inat his instance. The plaintiff did not oppose the discharge of Mrs. Farley, andleft the matter to the Court. Lord Hardwicke, Chancellor, said, his reason forcommitting was not only for the sake of the party injured by the advertisement,but for the sake of the public proceedings in Court, to hinder such advertisements,which tend to prepossess people as to the proceedings in the Court. But as on aprosecution for a libel in the Kings Bench for publishing a scandalousadvertise-merit, if they confess in what manner it was brought to them andeverything about it, that Court takes the matter into consideration toalleviate the punishment; so here, though Mrs. Farleys ignorance of law was nojustification for the publishing the advertisement, yet having discovered inwhat manner it was brought to her with other advertisements, and disclosedeverything, it was a ground to alleviate the punishment. Therefore, he grantedthe motion.

116. In Ex parte Jones (1806) 13 Tea. (Jun.) 237 : 33 E.R.283 Lord Erskine, whom no one will venture to charge with having endeavoured toshackle the liberty of the press, said:

In this dedication the object is avowed by defaming theproceedings of the Court, standing upon its Rules and Orders, and interestingthe public, prejudiced in favour of the author by her own partialrepresentation, to procure a different species of judgment from that, whichwould be administered in the ordinary course; and by flattering the Judge totaint the source of justice. This pamphlet has been sent to me.

As to the printers, as Lord Hardwieke observes, it is noexcuse, that the printer was ignorant of the contents. Their intention may havebeen innocent; but, as Lord Mansfield has said, the fact, whence the illegalmotive is inferred, must be traversed; and the party, admitting the act, cannotdeny the motive. The maxim actus non facit reum, nisi mens sit rea, cannot bemade applicable to this subject in the ordinary administration of justice; asthe effect would be, that the ends of justice would be defeated by contrivance.But upon the satisfactory account, given by three of these printers, thoughundoubtedly under a criminal proceeding they would be in mercy (those words intheir legal sense meaning amerced) in a case of contempt, though I have thejurisdiction, I shall not exercise it. The other printer appears upon theaffidavits under different circumstances. Having made the observation that thispamphlet ought not to be printed, being totally uninteresting to the public,yet he does print it; and though the locus poenitentiae was afforded to him,and be was called upon not to print any more, he proceeded, until he had noticeof this petition.

Let the Committee and his wife, and the printer, to whom Ihave last alluded, be committed to the Fleet prison.

117. Let me not be misunderstood. I have not cited the abovecases as precedents as to the mode in which the Court ought to exercise itsdiscretion. Discretion as to punishment must depend upon the facts of eachparticular case. I cite the oases merely to show what the law is, and what thepower of the Court, not to show what the Court ought to do in the exercise ofthat power. If a printer were to publish defamatory and contemptuous libelssent to him for publication by a gentleman beyond the jurisdiction of theCourt, or libels published in another paper beyond the jurisdiction, or if aprinter should refuse to give up the name of the real author of the libel, hiscase would be very different from that of a printer who, having committed anerror, should apologize and give up the name of the author.

118. I am free to admit that I alone am responsible for allthat has been done in this matter, though my honourable colleague does notdesire to be relieved from any part of the responsibility. [sat with myhonourable colleague both on the hearing of the appeal and on the hearing ofthe petition of the review. I knew him before he was raised to the Bench. Ihave sat with him frequently as a colleague, and I believe that I have had asgood an opportunity as any one of forming a just estimate of his character. Thoughnow speaking in his presence, I may be permitted to say that he is a nun ofability and learning, very unassuming, yet high minded, of a gentle, kind, andamicable disposition, independent and always ready to maintain his opinion solong as he conceives it to be right, and equally ready to abandon it ifconvinced that it is wrong. He is a man to whom I am sure it would give pain toinjure the reputation or to wound unnecessarily the feelings of any one. He isthe second native gentleman who by his own abilities has raised himself to thehigh position of a Judge of the High Court.

119. I saw the letter of the 7th April on that day, butbeing particularly engaged I did not read it attentively. On the followingMonday, the 12th, I saw the letter of that date, and in the evening, after Ireturned from Court, I read it carefully in conjunction with that of the 7th,to which it referred. I then considered it necessary to vindicate the honourand character of my honourable colleague and the dignity of the Court; andhaving heard and believed that Mr. Tayler was about to leave Calcutta forEngland on the following morning, I wrote to my honourable colleague at a latehour of the night, to meet me at 6 oclock on the following morning. He did so;after consulting together we considered it necessary to take proceedings forcontempt. We adjourned to the Town Hall, where we were mat by the Under-Sheriffand the Registrar, and we ordered a writ of attachment to be issued. I may hereremark that, up to the time of our meeting on the Tuesday morning, myhonourable colleague had never uttered one syllable of complaint to meregarding the charges that had been made against him. If the character of anyother of the Judges had been similarly assailed I should have thought it necessaryto adopt a similar course. But it appeared to me to be especially necessary inthe present case, when the attack had been made upon a native gentleman, theonly one of his countrymen who had a seat on the Bench of the High Court.

120. It now appears from the affidavit of the Sheriffsofficer that Mr. Tayler intended up to the Monday to leave for England in thesteamer which was to sail on Tuesday, and that on that day he was allowed bythe Peninsular and Oriental Company to postpone his passage until the nextsteamer. The letter of Monday, the 12th, could not have been sent to the editorof the Englishman later than Saturday or Sunday, at which time Mr. Tayler musthave had the intention of leaving the jurisdiction of the Court on the dayfollowing that on which the letter could be published, and in all probabilityhe had the same intention at the time when he sent to the editor the letterpublished on Tuesday, the 13th instant, which we also had before us when weissued the attachment.

121. There were two modes of proceeding open to us: one by aRule calling upon Mr. Tayler to show cause why he should not be adjudged guiltyof contempt of Court,--the other by attachment, under which Mr. Tayler might bearrested and brought into Court for a similar purpose. If we had gone throughthe force of making an affidavit of the facts founded on our own belief, inorder to satisfy our own minds that a contempt of Court had been committed andhad issued a Rule to show cause, which Mr. Tayler probably considered was theonly course which the Court could adopt (for on his being arrested he asked theSheriffs officer why he had not had notice), if, I say, we had made such anaffidavit and issued a Rule to show cause to be served on Mr. Tayler on boardthe steamer on the eve of his departure, we should have deservedly broughtourselves, and we should also have brought the Court and its process, intoutter decision and contempt. If we had asked the Registrar to make anaffidavit, he knew no more of the facts than we did. He could merely have swornthat he had seen the letters in the papers with Mr. Taylers name attached tothem, and that he verily believed that Mr. Tayler had caused them to bepublished; and, further, that he had heard and believed that Mr. Tayler wasabout to leave the jurisdiction of the Court. We had as much knowledgeourselves of the facts without such an affidavit as we should have had with it.We, therefore, determined to act upon our own knowledge of those facts, which,if sworn to by any one to the best of his belief, would have bean sufficient tosupport a Rule to show cause. There was no private complainant. The charge wasmade by the Court itself upon its own knowledge of facts, which, if sworn to byany one to the best of his belief, would have made a prima facie case ofcontempt of Court. We concluded that the editor of the "Englishman"would not have published letters with Mr. Taylers name attached to themwithout having had them authenticated, and we were right in our conclusion thatMr. Tayler had caused the letters to be published. The writ of attachment whichwas issued was not a commitment for contempt, but a process to bring Mr. Taylerinto Court to answer a charge of contempt. It was necessary, under thecircumstances, not merely to vindicate the honour of the Judge and the dignityof the Court, but also to teach gentlemen like Mr. Tayler that they cannotcommit contempts of Court with impunity even though they are about to sail thenext day for England, and also to prove to the public that justice is not to bebaffled or defeated by artifice.

122. I will cite two or three out of many authorities toshow that the Court is not powerless in such cases.

123. In Bacons Abridgment, Tit. Attachment, page 386, it issaid:

An attachment is a process that issues at the discretion ofthe Judges of a Court of Record against a person for some contempt for which heis to be committed, and may be awarded by them upon a bare suggestion, or ontheir own knowledge, without any appeal, indictment, or information for thoughby the Statute of Magna Charta none are to be imprisoned sine judicio pariumvel per legem, terrie, yet this summary method of proceeding, being absolutelynecessary to the furtherance and execution of justice, seems to have been longpractised, and is certainly now established as part of the law of the land.

124. The rule is laid down to the same effect in ComynsDigest, Tit. "Attachment," A.i., and in Hawkins Pleas of the Crown,218.

125. In Lex v. Jones (1795) 1 Strange 185 : 93 E.R. 462:

The defendant having treated the process of the Courtcontemptuously, an attachment went against him, without a Rule to show cause,(according to Salk. 84) and there being intimations that he relied on theassistance of his fellow workmen to rescue him, the Court sent for the Sheriffof Middlesex into Court, and ordered him to take a sufficient force.

126. I am now speaking in the presence of a large andenlightened audience, and before a learned and independent Bar, a profession ofwhich the members, from their education and habits of mind, have ever been thewatchful guardians of the rights and liberties of the people, and the foremostto protect against any arbitrary or unconstitutional exercise of power. If Ihave exercised tyrannically the powers committed to me (as I have been chargedwith doing), or if I have exercised them unconstitutionally, I know that myconduct is subject to be criticised by the Bar and by the public; but I have nomisgivings, because I know that if criticised it will be criticised honestlyand fairly, and independently. I claim not to be free from criticism : I amalways open to conviction, and if convinced of error, I am ready to acknowledgeit.

127. Before I conclude I wish to say a few words as to thecourse which has been taken out of doors since these proceedings werecommenced.

128. On the 16th April, whilst this matter was pending, anarticle appeared in the "Englishman" which I will read:

We are not surprised to find that our views respecting theaction of Sir Barnes Peacock, in summarily arresting and dragging Mr. Taylerbefore the Court for writing to a newspaper, are likely to be shared in bycontemporaries who have some influence on public opinion. The Friend of Indiasays:

Sir Barnes Peacock stated that the printer and publisher ofthe Englishman also was liable to prosecution,--an opinion which raises aninteresting question as to the liberty of the press in India.

129. The Pioneer, having heard the news of the arrest bytelegraph, thus comments:

If the letters alluded to be those in the Englishman of the7th and 12th instant, and if the fact be that Mr. Tayler has been abruptlyarrested by the High Court solely in consequence of having written them, we donot wonder at there being excitement. Such an act would naturally seem to everyBriton an act of presumptuous tyranry. But we can hardly believe the fact ofthe arrest, or if it has been made, it must have been made on some other groundthan merely that Mr. Tayler challenged and quizzed the decision of a Judge ofthe High Court. Sublime personage as he is, a Judges judgment is no moresacred from fair criticism than any other publication, and well for the purityof justice that it is so.

130. Having made the above quotation from the Pioneer, theEnglishman proceeds:

We suspect that Sir Barnes, if he attempts to carry out hisdictum too for, will raise a storm not easy to quell. There are many people whodo not care for the grievances of Mr. Tayler, but who will not brook anencroachment upon their right of appeal to the press concerning the public actsof public men. A Judges acts are no more exempt from public criticism thanthose of a Chairman of the Justices.

131. Again, to show how little the facts of the case wereunderstood, I will read an extract from an article in the same paper, dated the19th April. It is there said:

Attention has been drawn to the fact, which no one, as faras we have heard, questioned, that Sir Barnes Peacock originally held, in thecase which seems likely to gain so much notoriety, that Mr. W. Tayler had beenguilty of fraud, and that this opinion had been concurred in by Mr. JusticeMitter. The contention raised in Taylers letters is, however, that he wasafterwards allowed an opportunity of explanation, and that the Chief Justicethen acquitted him of fraud whilst Mr. Justice Mitter moderated his decision inno way whatever.

132. I have already shown most distinctly that I never didfind Mr. Tayler guilty of fraud; that I had no charge to retract, and that Inever did, after hearing his explanation, acquit him of anything.

133. It would have been well if all the public newspapershad followed the calm and dignified course which in the first article which Ihave read is reported to have been taken by the Friend of India. In that paperthe opinion expressed by the Chief Justice was brought to notice, and wastreated as one which raised an interesting question as to the liberty of thepress in India. That course left the question as to the liability of theprinter and publisher open to discussion, after the Court should have explainedthe grounds upon which it had acted, and had referred to the authorities insupport of the opinion which it had expressed. But, notwithstanding the veryproper course which had been taken by the Friend of India, we were told in ajournal published on Saturday even-in last that the members of the FourthEstate had protested against this unexpected attack on the liberty of thepress, and that with happy unanimity they had warmly denounced the action takenby the Chief Justice. To pay that the press had unanimously denounced, withoutwaiting for the explanation of the Judges, is a libel rather upon the pressthan upon the Chief Justice.

134. I have referred to the above articles for the purposeof now declaring publicly that to charge a Judge with presumptuous tyranny forthe mode in which he is proceeding in a matter pending before him, or topublish anything respecting that matter whilst it is under consideration, witha view to induce the Judge to alter his course, is a grave contempt of Court.The Englishman by publishing the article from the Pioneer has rendered itselfas responsible for the article as though it had been one of its own. I amwilling to believe that the expressions in the article of the 16th April, towhich I have referred, were made without duly reflecting that the matters towhich they related were then sub judice, though they would not have beenjustifiable at any time.

135. I am an unflinching advocate of the liberty of the press.I believe that its freedom is one of the main bulwarks of the rights of thepeople. I claim no exemption as regards my public acts from the most rigidscrutiny and the most unsparing criticism. All I claim is, that there shall beno misrepresentation and no wilful or unfair concealment of facts; and thatthose who deny infallibility to the Judges shall not claim infallibility forthemselves. I have had no cause to complain of the public press since I havebeen in this country. Speaking generally, I believe it to be fair, independent,and impartial. There has not, I believe, been a single criminal prosecutionagainst a newspaper since I have had the honour to hold the office of ChiefJustice, and there have been only one or two private actions for libel. Thepress in this country addresses itself for the most part to readers ofeducation and intelligence, men The judge and form opinions for themselves. Thepress is fair, it is not scurrilous; the public are not captious; and publicmen do not object to have their public acts freely discussed and fairlycriticised. Our Courts, therefore, are generally free from all complaintsagainst the press, either civil or criminal, on the ground of defamation,

136. And now I wish to declare publicly and emphatically thatthe Judges are not, and cannot be, influenced in the discharge of their duty byany attacks made upon them by the press. Nothing that has been said by thepress upon this subject, and nothing that can be said, no fear of thethreatened storm, can even divert me or my honourable colleague from pursuingthat plain, straightforward course which our consciences dictate. No unfaircriticisms can disturb my equanimity, nor in the slightest degree affect myhappiness. They are based on the consciousness that the honest andconscientious discharge of my duty has ever been the ruling principle of mylife. That is a foundation too strong to be undermined by critics, who attemptto criticise that which they do not understand, or to be shaken by any stormswhich it is in their power to raise.

137. I am a servant of the public, and I respect theiropinion. If they believe that I have exercised in an arbitrary, tyrannical, oroppressive manner the great powers which have been entrusted to me, or if theybelieve that I have exercised them unconstitutionally, let them express thatopinion in a manner which cannot be misunderstood, and I am ready to bow totheir verdict. But I shall not accept the expressions of a few newspapers asthe general expression of public opinion. If ever I have the misfortune tolose, whether justly or otherwise, the confidence of the public, I shall beready to lay down those powers which, without that confidence, I shall be nolonger able to exercise for the public good.

138. And now permit me to conclude in the words of LordMansfield:

I wish popularity, but it is that popularity which follows,not that which is run after. It is that popularity which sooner or later neverfails to do justice to the pursuit of noble ends by noble means. I will not dothat which my conscience tells me is wrong, to gain the daily praise of all thepapers which issue from the press. I will not avoid doing that which I thinkright, though it should draw upon me the whole artillery of libels, all thatfalsehood and malice can invent or credulity can swallow.

139. Mr. Tayler was then addressed by the Chief Justice asfollows:

William Tayler, the Court has considered all that you haveurged, and it adjudges that you have committed grave contempts of Court inhaving published the letters of the 7th, 12th, and 13th April in the"Englishman". I have already fully stated my reasons for holding thatthose letters were not fair or honest criticisms, but that they were foundedupon misrepresentation and wilful concealment of the true state of facts. Therecan be no doubt that you must have known, when you published those letters,that the reflections which you were casting upon the learned Judge had noreference to the state of facts which appeared before him when he pronouncedthe judgment complained of but to a new state of facts, which, whether true orfalse, you knew were not before him at the time. It is unnecessary for me tosay whether your assertion that at the time you sold the estate you were underthe belief that it was not subject to the attachment in execution of theRanees decree, was a wilful misrepresentation or not. You must have known, asI have already shown, that the charge which you preferred against Mr. JusticeDwarkanath Mitter, of casting an unmeasured imputation upon you without onetittle of evidence to support it, was false and without any foundation. Youknew that, according to the case as it stood, when Mr. Justice DwarkanathMitter pronounced judgment, he was fully justified in saying what he did. Yousubstituted a fresh state of facts, of which part, to say the least of it, wasfalse within your own knowledge, and having wilfully concealed the real stateof the case you criticised the judgment and founded the charges which you madeagainst the Judge with reference to that statement.

140. It is not even necessary to show that any part of themisrepresentation was wilful, for, whether it was so or not, you areresponsible for it. You knew that the learned Judge could act only upon thefacts as they appeared before him at the time, and that according to thosefacts there was no ground of complaint. It is no justification or excuse to saythat you were not in the country when the action against you was defended, andthat your agent acted fraudulently in that defence which he set up. If. aperson undertakes to criticise the acts of a public man, he must take care notto assert that which is not true as the basis of his criticism, and he is boundnot to conceal wilfully anything which would show that the criticism is notwell founded.

141. You have stated in your affidavit that the letterswritten were written for the sole purpose of vindicating your own character. Ihave shown that, whatever were the reasons which induced you to write thoseletters, you introduced into them matters which were wholly unnecessary forthat vindication, and which reflected on Mr. Justice Dwarkanath Mitter andothers of the Judges. I have also shown the animus with which those reflectionswere made. This affidavit, instead of mitigating, rather aggravates the guiltof your contempt. When you were before the Court on Tuesday last, I called yourattention to the difference between the statement contained in your firstletter and in the grounds of review and the assertions which you made in theletters which you subsequently published in the newspaper. In the former youstated that you had no ground of complaint against Mr. Justice DwarkanathMitter, based as it was on the defence set up by your native Mookhtear, andsupported by the evidence which he volunteered in the case. In the letter youcharged the learned Judge with casting upon you an unmeasured imputationwithout one tittle of evidence to support it.

142. I do not think that you have mitigated your offence bythe mode in which you have endeavoured to reconcile those conflictingstatements.

143. You have endeavoured to do so by stating that when youwrote your first letter to the Englishman, and when you applied for a review ofthe judgment, you believed that the Chief Justice as well as Mr. JusticeDwarkanath Mitter had imputed the fraud to you. I have shown in my judgmentthat if there was not one tittle of evidence to support the imputation whenmade by Mr. Justice Dwarkanath Mitter alone, there could not have been a tittleof evidence to justify the imputation if it had been made by Mr. JusticeDwarkanath Mitter in conjunction with the Chief Justice. I have no doubtwhatever, looking at that statement, that your charge was an unmanly one, andthat you made a charge against Mr. Justice Dwarkanath Mitter which you wouldnot have ventured to make against the Chief Justice.

144. Further, I am of opinion that you have aggravated thecontempt by contending that the charge in the last paragraph of the letter ofthe 13th April was not intended to apply to any of the Judges of the HighCourt. I have not the slightest doubt that in using the words "officialprincipalities" you did intend to refer to the Judges of the High Court.You say the words had reference to something gone by long ago. But the letter,on the face of it, could not have referred to those bygone acts, as those actshad, and could have, no connection with the charge against a Judge of the HighCourt. Besides those transactions occurred many years ago and in the paragraphto which I am referring you say:

It appears to me that of late years some such element ofanti-feline irritation must appertain to my unhappy person for there is acertain class among the official principalities of Bengal who, directly I ambrought into contact with them, appear to be at once affected by anoverpowering internal excitability which affects the understanding even of thewise and good, and intensities the folly of the foolish, but at the same timealways issues in one result--injury, insult, or wrong to myself.

145. In one of the letters in which you charged Mr. JusticeDwarkanath Mitter with wanton insult and unfounded aspersion, you introducedthe words which I have read, and if they apply to the transactions to which yousay they do apply, they have no bearing whatever on the subject, and you havesworn positively that your only object in writing the letters was thevindication of your character. But, whether you had such intention or not, youmade use of language which must have conveyed that meaning to others, and wassuch as to lead any ordinary reader to believe that you intended it to apply toat least one or more of the Judges of the High Court. I have no hesitation insaying that the words, in the reasonable and ordinary construction of them, hadreference to one or more of those Judges, and charged them with a want ofimpartiality in all cases in which you were a suitor.

146. It is a high and serious offence to cast unjust anddefamatory imputations on a Judge. Judges are subject to be criticised, butthey must be protected from unfounded defamation. Had you been charged in anindictment in England with writing such letters, I cannot think that any lesspunishment than imprisonment and fine would have been passed upon you, and probablythe imprisonment would have extended to a year.

147. It is not the wish or desire of this Court to imposeany excessive punishment on you. You have admitted that you have committed acontempt. I do not say that that has aggravated your offence; it has mitigatedit. You no doubt did intend to make charges against the learned Judge, whichwere not justified by the real facts, but which the public would be induced tobelieve were well founded, because they were based on misrepresentation, andbecause you concealed the real state of the case.

148. Taking all the circumstances into consideration, theCourt orders that yon stand committed for one month to the civil side of thePresidency Jail, and that you pay a fine of Rs. 500, and that you be fartherimprisoned till the fine be paid.

149. You state that you are willing still further toapologise. I have endeavoured to show (whether I have been able to satisfy yourmind or not I cannot say) that the charges against Mr. Justice DwarkanathMitter were without the slightest foundation. The other charge to which I havereferred is equally unfounded; and whatever your intention in publishing thatpart of the letter may have been, or whatever meaning you intended to convey,you were not justified in using language which would induce an ordinary readerto believe that you referred to the Judges of the High Court. If you think fitto add to the apology which you have already published (and it is for you todecide whether you can conscientiously do so or not) the Court is willing tomitigate the sentence. If, after what you have heard, you state that, uponreflection, you find that the charges which you made against Mr. JusticeDwarkanath Mitter were unwarranted and wholly without foundation, and that youare sorry for having made them, you may do so: and you may add, if you wish it,either that you did not intend to cast any reflection upon any of the otherJudges, or that the reflection cast was unfounded, and if you publish thatapology in the "Englishman," you may apply on Monday, the 3rd of Maynext, for your discharge on payment of the fine.

150. On Tuesday, the 27th April, Mr. Tayler addressed apetition to the Chief Justice and Mr. Justice Dwarkanath Mitter, which was sentto the Chief Justice at an early hour in the morning.

151. A writ of habeas corpus was forthwith issued by theChief Justice to the Superintendent of the Presidency Jail, commanding him tobring Mr. Tayler into Court at half-past nine oclock.

152. The petition was as follows:

That on the 24th of April instant, your petitioner wascommitted for contempt of Court in having caused to be published in Calcuttacertain letters in the Englishman newspaper relating to a decision of theHonorable Mr. Justice Dwarkanath Mitter in the case noted in the margin, andwas ordered to pay a fine to Her Majesty of Rs. 500, and to be furtherimprisoned until such fine was paid, or until the further order of the Court.

That the Court was pleased to intimate to your petitionerthat, in the event of his publishing in the Englishman newspaper a furtherapology in the terms suggested by the Court, in addition to the apologypublished by him on the 22nd instant, he was to be at liberty to apply to theCourt for his discharge.

That your petitioner has paid the fine of Rs. 500 imposedupon him by the Court, as will appear from the certificate of theAccountant-General of the Court, already submitted.

That your petitioner has also published in this morningsEnglishman the further apology required of him.

That your petitioner is very sorry for having written theletters against Mr. Justice Dwarkanath Mitter, and is also sorry for havingmade use of expressions which have been considered as reflecting upon the otherJudges of the Court.

That your petitioner can truly say that he never intended toreflect upon the other Judges of the Court.

That your petitioners health, which was previously in aweak state, has been seriously affected by the anxieties attending his trial,and by his imprisonment at this season of the year.

That your petitioner had taken his passage to England, andarranged to leave by the steamer which will leave at 11 oclock this morning.

Your petitioner having fully complied with the order of theCourt, and made all the reparation in his power, prays that the remainder ofthe term of his imprisonment may be remitted, and that he may be forthwithdischarged from custody.

153. Upon taking his seat, the Chief Justice addressed Mr.Tayler to the following effect:

Mr. Tayler.--The Court has read your petition, which is avery proper one. You have now fully submitted. You state that you have paid thefine, and that you have published in this mornings Englishman the furtherapology required of you. You further state that you are very sorry for having writtenthe letters against Mr. Justice Dwarkanath Mitter, and that you are also sorryfor having made use of expressions which have been condemned by the Court asreflecting upon the other Judges; and that you can truly say that you neverintended to reflect upon them. You state that your health, which was previouslyin a weak state, has been seriously affected by the anxieties attending yourtrial and by your imprisonment at this time of the year; that you had takenyour passage to England, and had arranged to leave by the steamer which is toleave at 11 oclock this morning. You then, after stating that you have fullycomplied with the order of the Court and have made all the reparation in yourpower, pray that the remainder of the term of imprisonment may be remitted, andthat you may be forthwith discharged oat of custody.

154. You have also forwarded a copy of a medical certificatefrom Drs. Macrae and Brougham, dated 25th April, in which it is stated, amongstother things, that for the last three months you have been suffering fromattacks of recurrent gout with aggravated dyspepsia, from which you have becomegreatly debilitated; that a prolonged imprisonment, from its depressinginfluences, would be attended with risk of serious impairment to your health,if not with more grave consequences, and that you ought not to remain in thiscountry a day longer than can be avoided; in fact, that you had been advised toleave India a month ago.

155. When you were before the Court on Tuesday last youexpressed yourself willing to apologize. I then stated that whatever apologymight be made, it ought to be published as widely and extensively as yourletters to the editor of the Englishman. The case was adjourned until Saturdaylast, in order to give you an opportunity of publishing in the Englishman suchan apology as you might see fit; and, without dictating or recommending anyparticular form of apology, I called your attention to the fact that you hadnot retracted the charges which you had publicly preferred against Mr. JusticeDwarkatath Mitter.

156. In cases of this nature a proper apology may mitigate,but it cannot wholly excuse or justify, or form a ground for a total exemptionfrom punishment.

157. On the 22nd April you published an apology in the Englishman,but it contained no denial or disavowal of the truth of the charges which youhad preferred. The Court, considering all the circumstances of the case,ordered you to stand committed to the Presidency Jail for one month, or untilfurther orders, and to pay a fine of Rs. 500. The month was fixed as themaximum of the imprisonment which, under any circumstances, you were toundergo. A maximum was fixed in consequence of a doubt thrown out in Crawfordscase (1849) 13 Q.B. 613 : 18 L.J.Q.B. 225 : 13 Jur. 955 : 116 E.R. 1397 : 78R.R. 479, whether a commitment for contempt could be until furtherorders," which might amount to imprisonment for life.

158. It was not necessary to consider whether the usual modeof framing commitments for contempt until further orders, which was the formadopted by Lord Cottenhamin Mr. Lechmere Charltons case (1837) 2 My. & Cr.316 : 40 E.R. 661 : 45 R.R. 68, and had been adopted in numerous other oases,could be supported or not. A month was fixed as the maximum, and the words"or until further orders" were added in order to enable the Court todischarge you at an earlier period if you should make your apology complete;and you were informed that you might apply for your discharge on Monday next.You have now made your apology complete and have sent it to this Court underyour signature; and you have also published a copy of it in the Englishman thismorning. In addition to the apology* which you published on the 22nd instant,you say that you regret to state that, upon reflection, you find that thecharges made by you against Mr. Justice Dwarkanath Mitter were unwarranted andwholly without foundation. Further, you declare that you had no intention tocast any reflection upon the High Court or upon any of the other Judges of theCourt. The Court has already determined that they could put no other meaningupon the last part of your letter of the 13th April than that it was intendedto charge want of impartiality on the part of the Judges in cases in which youare concerned, which always resulted in injury, insult, or wrong to you.Whether you intended it or not you are responsible for publishing words which,in the opinion of the Court, were susceptible of no other meaning. You havebeen punished for your offence, you have now fully and very properlyapologized; and whatever opinion the Court may entertain, it cannot fairly askor endeavour to compel you to admit that in publishing the letters in theEnglishman you had any intention or knowledge which, as a gentleman, you disavow.

159. The Court agrees with you that you have now made allthe reparation in your power, or that the Court could fairly expect, and theydo not wish to do anything which would add further pain to the anxiety whichyou have already undergone, and to the humiliation which you have suffered. Youhave already undergone sufficient punishment to be a warning to yourself and toothers; no additional amount of punishment could add to that warning. The Courtsat at this early hour, not for their own convenience, nor for any otherreason, except that you might proceed to England by the steamer, and that youmight not be detained in this country an hour longer than was absolutelynecessary.

160. In the course of his address, the Chief Justice pointedout that there was a clerical error in the letter published in the Englishmanthis morning, which made Mr. Tayler say that he had no intention to cast anyreflection "upon any of the Judges," instead of any of the otherJudges, which were the words of the original apology signed by Mr. Tayler. Hesaid this for the sake of the Court and for the sake of Mr. Tayler. The Court,after Mr. Taylers apology with regard to Mr. Justice Dwarkanath Mitter, couldnot fairly ask him to say that he never intended to cast reflection upon any ofthe Judges, nor could Mr. Tayler, as a gentleman, have made such a statement.

161. Mr. Tayler wished to be allowed to say that theapplication for his discharge from imprisonment which had been made to theLieutenant-Governor was made by his friends without his sanction. He was fullyaware that the Lieutenant-Governor had no power to interfere in a case like thepresent, or to order his discharge from imprisonment.

162. The Chief Justice said that he had seen the medicalcertificates which had been forwarded to His Honour the Lieutenant-Governor,that without entering into the question whether the Lieutenant Governor had thepower or not, he thought that the certificates were not such as could havejustified the exercise of it. They were not even such as would have induced theCourt to discharge Mr. Tayler before the end of the month, if the additionalapology had not been punished; but they were certificates which might veryproperly influence the Court after that apology had been made. Even withoutthose certificates, the Court would have had no desire to inflict any furtherpain on Mr. Tayler, after he had so fully submitted, and had made so completean apology, and presented so proper a petition.

163. Mr. Tayler was then discharged.

*The apology is as follows:

"To the Editor of the "Englishman."

Sir,- You are no doubt fully informed of the result ofyesterdays proceedings in the matter of the charge against me of contempt ofCourt, for which I was arrested on the 13th instant.

Considering that the fact of my arrest was sufficientevidence that the Court held my former letters to your address to"constitute such contempts," I resolved, after consultation with myfriends and my learned Counsel, to submit on this point to the decision of theCourt; and, as I had never intended to commit, and never thought that I hadcommitted, such contempt, but had written with the sole purpose of vindicatingmy character, I at once tendered, both orally and by affidavit, a full andunreserved apology both to Mr. Justice Dwarkanath Mitter and the Court atlarge. But the Honble the Chief Justice, in postponing the case for finalorders until Saturday, suggested that I should give the same publicity to thisapology as was given to my former letters In compliance with this intimation,and as my apology is in truth without reservation or stint, I shall be muchobliged by your printing this letter, if possible, in your journal ofto-morrow.

There is only one other point which it is desirable tomention.

The Honble the Chief Justice remarked that he did notobserve in my apology anything which showed that I retracted my charge againstMr. Justice Dwarkanath Mitter. In accordance with this suggestion, I beg to saythat I have no hesitation whatever in retracting all such expressions andobservations as may have been deemed by the Court to be improper orcontemptuous: and I may observe that I had intended my apology to include suchretraction.

I hope that this public expression will be satisfactory toMr. Justice Dwarkanath Mitter, and meet the suggestion of the Honble the ChiefJustice.

W. TAYLER.

.

In Re: William Tayler(24.04.1869 - CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 05.05.1869

Appellants: In Re: Banks and Fenwiok

Honble Judges/Coram:

Barnes Peacock, C.J. and Macpherson, J.

Subject: Contempt of Court

Catch Words

Mentioned IN

Authorities Referred:

Kents Commeiitiries, Vol. I, page 321; 233-page -3rd Volume-Campbells Lives of the Chief Justices; "Campbells Lives of the ChiefJustices, Vol. II, page 293, p.297; Coke upon Littleton, page 3776; 8th HenryVI, page 18

Citing Reference:

Discussed

20

Distinguished

1

Mentioned

6

Case Note:

Contempt of Court - High Court, power of, to punishsummarily for contempt--Advertisement for demonstration against Judge, whethercontempt--Apology, effect of.

JUDGMENT

Barnes Peacock, C.J.

1. An advertisement publislied in a newspaper for ademonstration against a Judge for acts done in Court may be a contempt of Courtas well as defamation, although it cannot be said that in every case ademonstration got up in order to obtain an expression of public opinionconcerning the acts of a Judge would be a contempt, [p. 125, col. 1.]

2. If anonymous letters are sent to the press containingfalse statements), the press is responsible for them if the name of the authoris not given up. [p. 144, col. 2.]

3. To say that a sentence is cruel" may be a con-temptof Court, though it would be no contempt if the remark is merely that, thesentence is a severe one. [p. 142, col 2; p. 143, col. 1.]

4. Per Macpherson, J.--The High Court has power to proceedby way of contempt oven when the contempt is not committed in Court or duringthe pendency of a suit. [p. 145, col. 2.]

5. Per Curiam.--The fact of his making an apology does notentitle the person charged with contempt of Court to hisdischarge as a matterof right, [p. 137, col. 1.]

6. Charges of contempt against the Printer and Publisher ofthe Englishman, Calcutta. Upon this case being called on--

7. Mr. Kennedy stated that he appeared for Mr. Banks,Printer of the Englishman, with Mr. Evans and Mr. Paul. There was one point inwhich a little difficulty had occurred with res-peot to the form in which theaffidavit of Mr. Banks was to be drawn up. It was stated that the Court wassitting in its original jurisdiction, but it did not appear which jurisdiction,whether civil or criminal.

8. The Chief Justice.--The Court is Hitting in its originalcivil jurisdiction, The matter is not on the Crown side of the Court.]

9. Mr. Kennedy stated he would then proceed to put in theaffidavit of Mr. Banks.

10. [The Chief Justice.--I suppose there is no doubt as tothe signature of Mr. Banks to that document.]

11. I believe the affidavit has been sworn before an officerof the Court. I will read the affidavit.

12. [The Chief Justice.--An office copy of Mr. Banksdeclaration has been put in under the seal of the Court, but there is noevidence to show whose signature it is.]

13. The first paragraph of the affidavit removes alldifficulty about that, wherein be states:

I am the printer and publisher of the Englishman.

14. [The Chief Justice.--Very well; but there is one other matterwhich I wish to mention before going on to the affidavits. I want to see thesubscription list which Mr. Clarke has beea subpoenaed to produce. I do notwish to see the names of the persons who have subscribed, but I wish to see forwhat purpose the subscription was raised If the gentlemen who subscribedprefetred that their names should not be knoin, I have no wish to make themknown, but I want to know whether they subscribed to th it fund in order toassist Mr. Tayler, or whether it was with the view of denouncing the judgmentof the Court.]

15. Mr. Kennedy stated that the subscription list had noparticular heading stating for what purpose the subscription was being raised.

16. [The Chief Justice.--I want to know whether they came inin pursuance to the advertisement or whether they were accompanied by lettersstating the reason for which the money was sent.]

17. In many cases letters accompanied the subscription.

18. [The Chief Justice.--If the gentlemen who havesubscribed will come forward and acknowledge having done so, they may do sowith perfect freedom so far as any proceedings against them are concerned. Ifthey like to avow having subscribed, they may do so; if not, I have no wish toenquire into the matter]

19. I have a copy of a list headed, List of subscribers tothe Tayler fund who agree to their names being given up." Application wasmade to the subscribers of the fund, and every one applied to consent to giveup his name. I dont know whether there was any particular beading to the listwhen it was first started, but there are many gentlemen in Court who areprepared to state the circumstances under which they sent in theirsubscription.

20. [The Chief Justice.--I do not wish to press for thenames of those gentlemen, but if they like to give them up themselves they maydo so.]

21. Captain Fenwiok (Editor of the Englishman) is in thisposition. He is not justified in refusing to produce the list of subscriberswhich he has been required to produce by a subpoena of the Court, and it couldnot be any breach of faith on his part, as it was originally intended topublish the names. After, however, the observations of your fjordships, it wasconsidered that to publish their names would be to place them in a somewhatinvidious position, and they were accordingly written to and requested to beallowed to give up their names, and to which all who have replied haveconsented. As I understand, it was not merely their rupees that these gentlemenwere sending in, but an expression of the opinion.

22. [The Chief Justice.--I propose to put in the"englishman" newspaper of the 21st instant merely to show a report ofwhat took place with regard to Mr. Taylers case, and merely for the purpose ofthe proceedings. I do not propose to treat this as a contempt of Court, butmerely as explana-tory of other parts of the proceedings. There is anotherpaper of April 16, which contains an article with reference to an article whichhas appeared in the "Pioneer." I do not wish to put this as formingpart of the contempt, as I have already expressed in my judgment in Mr.Taylers case my willingness to allow, this to pass, and I will not now go backfrom what I before stated, and treat it as a contempt. I merely put this paperin for the purpose of showing, with reference to the subsequent articles, whatwas the object of those subsequent articles. The words: "We suspect thatSir Barnes, if he attempts to carry out his dictum too far, will raise a stormnot easy to quell. There are many people who do not care for the grievances ofMr. Tayler, but who will not brook an encroachment upon their right of appealto the press concerning the public acts of public men. A Judges acts are nomore exempt from public criticism than those of a Chairman of theJustices" were merely to be read as introductory to and explanatory of theother articles.]

23. I will read the affidavit of Mr. Banks in the firstinstance, and probably after reading it, your Lordships may be induced to takeanother course in the matter.

24. Mr Kenned, then read Mr. Banks affidavit as follows:

In the High Court of Judicature at Fort William in Bengal.

([In the matter of Alexander Banks.)

I, Alexander Banks, of Hare Street, in Calcutta, Printer,make oath and say:

First.--I am the printer and publisher of the"Englishman" newspaper.

Second.--That George Roe Fenwiok is the Editor of the saidnewspaper, and without his orders and directions no articles are insertedtherein.

Third.--That the said George Boe Fenwiok has signified to mehis intention to appear before this Honble Court and admit that the articlesand advertisements, referred to in the Rule nisi herein, were inserted in thesaid newspaper by his directions.

Fourth.--That I exercise no control whatever over thecontents of the said newspaper.

Fifth.--That, although I read some of the said articles whenhanded to me for publication as aforesaid, I did not in any way consider theirmeaning or purport, but inserted the same simply en the direction of the saidGeorge Boe Fenwiok, as is my habit.

Sixth.--That in inserting the said articles, notices andadvertisements, I did sobonafide not actuated from any improper feeling ormotives towards the Honble The Chief Justice or any of the Judges of thisHonble Court, nor did I intend by such insertion in any way to excite contemptagainst the proceedings of this Honble Court.

A. Banks.

Sworn this third day of May 1869 before me.

A.L. Piddington, Commissioner.

25. Mr. Kennedy--Captain Fenwiok, is now present in Court.Of course, if, in the strict principle of law, Mr. Banks has been guilty ofcontempt in what he has done, I do not put this forward as any ground for hisdischarge, but Captain Fenwiok is in Court, ready to bear the brunt of what wasin reality done by him, or by his order, and not leave it to others to bear.

26. [The Chief Justice.--Captain Fenwiok, in doing that, hasonly done that which every honourable gentleman who fills an editors chairwould do, in not allowing a publisher of a paper to take the consequence ofarticles written and published by his orders, by not coming forward to avow theauthorship. Sir Barnes went on to state that he was prepared to withdraw thetnile as against the printer, and treat Captain Fenwiok as the person againstwhom the Rule was issued. The argument might go on, however, on the printersRule.]

27. Mr. Kennedy said that what he thought the Court mightdo, would be to make a fresh order returnable immediately in order that theremight be no delay. Captain Fenwiok was in Court and the case might be allowedto proceed as against him, but there would be this difficulty, that CaptainFenwiok wished to explain some matters and had expected to have the opportunityof doing so as he had been called on a subpoena.

28. [The Chief Justice--Captain Fenwiok might put in anaffidavit for any purpose the pleased, the arguments might be proceeded withand the affidavit put in at some fucure time.]

29. Mr. Kennedy remarked that, as he would probably have tooccupy the Court for a long time, the affidavit could be sworn in the meantime.Captain Fenwiok authorised him to say that he admitted having published thearticles in question.

30. [The Chief Justice.--Then a new order for a Rule can bemade out, similar to the one made in the case of Mr. Banks, (To CaptainFenwiok) I believe I understand that you admit your responsibility.]

31. [Captain Fenwiok.--Certainly, my Lord.]

32. Mr. Kennedy in proceeding to address the Court againstthe Rule spoke as follows: This is a case in which I appear with very greatpain and anxiety, because it is hardly possible to conduct it properly withoutappearing to be guilty of a thing--contempt of your Lordship--which would bethe last I should wish.

33. [The Chief Justice.--I shall, of course, understand allyou say, Mr. Kennedy, as only said in the discharge of your duty as anAdvocate.]

34. Thank you, my Lord; but at the same time I would wish itto be understood that in any remarks that may fall from two I do not desirethat they should appear to 10 addressed to the same Chief Justice as the ChiefJustice of whom I speak.

35. The Chief Justice.--I think, Mr. Kennedy, that it is apity to resort to any fiction in the case (a laugh)].

36. I shall be obliged, then, to criticise the judgment ofthe Chief Justice, I hope, without exceeding the limits of discretion. Thefirst question is whether, whatever the former state of the law was withrespect to contempts of Court or matters of defamation of Judges or theirjudgment, it now applies, or can be applicable, to your Lordships. I understandthis Rule to be issued under the civil jurisdiction of the Court and yet itappears to me that a case of contempt of Court should be tried under thecriminal jurisdiction.

37. [The Chief Justice.--I am quite ready to admit that, ifyon please; it is quite indifferent and immaterial at which side of the Courtthe case is tried.]

38. I submit, my Lord, that yon have only the power ofcommitting a prisoner for contempt of Court under the criminal jurisdiction. Inthe case of Wellesley v. Duke of Beaufort (1831) 2 R.M. 639 : 39 E.R. 538 : 34R.B. 159 it is clearly shown that contempts of this class are criminal offencesand are so dealt with by the Court. By thi.s, it is quite clear that, by tryingcontempt under the criminal jurisdiction, your Lordships are only exercisingjurisdiction under the Indian Penal Code, Act XLV of I860. No Court canexercise jurisdiction with respect to contempt, except it is contempt by thatCode. Cases, if they amount to infraction of that Code, must be tried andpunished by that Code, as is mentioned in the 50th Section of the LettersPatent: "All persons brought for trial before the said High Court ofJudicature at Fort William in Bengal, either in the exercise of its originaljurisdiction or in the exercise of its jurisdiction as a Court of appeal,reference or revision, under the Indian Penal Code, charged with any offence,for which provision is made by Act XLV of 1860, called the Indian Penal Code,or by any Act amending or extending the said Act which may have been passedprior to the publication of these presents, shall be liable to punishment underthe said Act or Acts and not otherwise.

39. I think, my Lord, this must be, a misprint as to theword extended, which should be "excluded". Chapter 10 defines theoffences which shall be deemed contempts of Court. As a general rule theheading is not part of an Act, but in this case it is different, inasmuch asthe body of the chapter acknowledges and incorporates the different headings asin Section 6--"Throughout this Code every definition of an offense, everypenal provision, and every illustration of every such definition or penalprovision, shall be understood subject to the exceptions contained in thechapter entitled general exceptions, though those axeeptions are not repeatedin such definition, penal provision or illustration." I think that thismarks intention to include the headings or titles in legislation as part of theAct. Not the same is the case of the marginal notes, which are added afterwards,subsequently to the Act being passed. Then we find in that chapter certaindefinitions most important here. In Section 21 we find that publicservants" include a Judge, and the whole of Chapter 10 is a code to guidethe Court in breaches of duty to public servants, and provides for that classof contempt most generally dealt with by the Courts; that is, for the most partknown in Chancery and Common Law. There it is stated that contempt consists indisobedience to the laws of the Court, obstruction of its business orinterference with, or prejudice to, its decisions and judgments.

40. Those are the classes of acts, which are punishable ascontempts under the provisions of the Code of Criminal Procedure, and none ofthese come up to, or in any way near, the matter in respect of which Mr. Fenwick is now charged. There is an additional provision in this matter in the228th Section of the Penal Code, which enacts as follows:

Whoever intentionally offers any insult or causes anyinterruption to any public servant, while such public servant is sitting in anystage of a judicial proceeding, shall be punished with simple imprisonment fora term which may extend to six months, or with fine which may extend to onethousand rupees, or with both.

41. And in the 499th Section of the Code the following wordsoccur:

42. "Whoever, by words either spoken or intended to beread, or by signs or by visible representations, makes or publishes anyimputation concerning any person, intending to harm, or knowing or havingreason to believe that such imputation will harm, the reputation of suchperson, is said, except in the cases hereinafter accepted, to defame thatperson". Now, as far as I understand it, the accusation which is madeagainst Captain Fenwiok--the contempt of Court which he is now called upon toanswer-is a contempt of haviag defamed a person, but there is an exception withrespect to that class of defamations.

43. [The Chief Justice.--You must not understand that weassent to all you are saying, Mr. Kennedy.]

44. No, my Lord, I dont assume assent from yonr Lordshipssilence. I am grateful for that silence for the case is one of peculiardifficulty, and which might be rendered more so if I were to be interrupted.

45. [The Chief Justice.--Pray dont understand that becausethe Court is silent, it agrees with all you are saying.]

46. No, my Lord. I perfectly understand that.

47. Mr. Kennedy then went on to say that the secondexception to the 499th Section of the Indian Penal Code was as follows:

It is not defamation to express in good faith any opinionwhatever respecting the conduct of a public servant in the discharge of hispublic functions, or respecting his character, so far as his character appearsin that conduct, and no farther.

48. Now, what I sumbit is this, that a case having occurred,in which certain matter published amounted to defamation--and defamation ofacts done in the capacity of a Judge--that defamation, being a defamation onthe acts of a Judge, becomes of itself included in the exception which I havejust read. It must be defamation within the terms of the Penal Code, and nodefamation which was not punishable under the provisions of the Penal Code asdefamation is punishable by this Court in any other way; for it is clearly laiddown in the 2nd Section of the Code, as well as by the 30th Clause of theCharter, that every person shall be liable to punishment under this Code, andnot otherwise, for every act or omission contrary to the provisions thereof, ofwhich he shall be guilty within the said territories on or after the said 1stday of May, 1861.

49. It is clearly stated in the Penal Code what ispunishable as defamation, and with regard to the exception to which I havereferred, your Lordships are bound to read it as if the word "Judge"is substituted, for public servant"; and nothing expressed in good faithon the public functions of a Judge could be punishable as defamation. It seemsto me that it is impossible, without destroying the utility of the PenalCode--without making it a trap--to hold that the license of Legislature hasbeen given to the Court, empowering it to say that though this charge againstCaptain Fenwiok may not be tried in the ordinary course of law by an indictmentfor defamation, yet that it may be dealt with in an extraordinary way, andunder a course which does not give him the ordinary protection of a Jury--theprotection of the ordinary Tribunals--and a scale of ascending Tribunals, withan appeal from each, but leaves him wholly at the mercy of the person on whomthe defamation has been uttered. I do not contend that any defamation whichdoes not come within the 499th section, as explained and limited by theexception to which 1 have just referred, can be such an offence as to empowerthe Courts to deal with it either by its ordinary procedure or in anextraordinary way, by treating it as a contempt of Court. That explanation mustbe given by your Lordships to the language of the Legislature in itsdescription of what it calls and deems to be contempt of a public servant--amongwhom are included Judges--and that of itself would limit the operation of theCourt dealing with such contempts as would come within that part of theStatute, as offences punishable only as defamation under the ordinaryprovisions of law.

50. Therefore, my Lord, if jurisdiction can be exercised, itcan only be exercised when the Court comes to the conclusion as to theexpression. I mean when that expression is not in good faith. Even so 1 wouldtub mil that the power to punish summarily, in a case under the former law, forcontempt has been taken away by the express language of the Legislature.Whether that jurisdiction ever existed or whether it be taken away, I contendthat it was never imperative for the Court to exercise it, even in those worstof times when newspapers were considered as vermin, to be hunted down as pests,and marks for scorn; instead of, as they are now considered, members ofsociety, important members to be protected instead of arraigned before aTribunal, considered as the 4th estate of the realm. Even then it was adiscretionary matter with the Court how to deal with libels which were likelyto bring into contempt the proceedings or judgments of that Court. YourLordship has recently delivered a judgment [William Tayler, In the matter of 44Ind. Cas. 930 : 26 C.L.J. 345 : 19 Cri .L.J. 402 in respect of the samequestion. No doubt that any authority that could be produced from theproceedings of any English Court would not be unknown to your Lordship, yet noexercise of such a power is in that judgment shown to have occurred. I havealso carefully searched the reports and text books, but am unable to find asingle instance of a Court in England having exercised such a jurisdiction, byway of trying or punishing contempts of Court, which were merely defamatorylibels on the Court or the Judges, when no proceedings were pending and which,therefore, could in no way prejudice or influence the Court in suchproceedings. The observations with which your Lordship finds fault, werepublished by Captain Fenwiek subsequent to the proceedings against Mr. Tayler.These proceedings were concluded on the 23rd April, Saturday, and, as Iunderstand, your Lordship is not now proceeding against Captain Fenwiek forthose articles published on or before the 16th April. Even in those, I am sure,you do not attribute to Captain Fenwiek the folly of supposing you weak orwicked enough to alter your judgment in the pending case for fear of an articlein the newspaper.

51. [The Chief Justice.--Although it is not so material tothe present portion of your argument, I want to call attention to thEexplanation in Section 52. You must, I think, import that explanation of"good faith" into the construction of this exception--where it speaksof opinions in good faith, it must mean, in order to express an opinion in goodfaith the person who hold it must have taken care and attention in forming it.

52. I think, my Lord, that if he truly holds the opinion heis justified in expressing it. Care and attention in expressing an opinion aredifferent from the care and attention demanded in forming that opinion, and thewords "good faith" are only connected with the expression.

53. [The Chief Justice.--I understand you to say that aperson may express an opinion in good faith, though care and attention have notbeen taken in forming that opinion.]

54. That is the only construction which can reasonably begiven to the language. The power of proceeding by summary powers for contempt,even if vested in the Court, is a discretionary one. There are other courses,than the one now adopted, open for vindicating the integrity of the Courts andthe honour of the Judges, and I submit that the discretion which is vested inyour Lordships is not properly exercised by proceeding in a summary way forcontempt of Court. The discretion, properly exercised by the Court, would be tofall back on the long list of precedents brought forward in the judgment inWilliam Taylers case 44 Ind. Cas. 930 [LQ/CalHC/1869/1] : 26 C.L.J. 345 : 19 Cri .L.J. 402 andif the dignity of the Court has been in any way brought into contempt, todirect an officer of the Court to file a criminal information. In every case inEngland which 1 have been able to discover since the earliest period of anyreference respecting contempts of this class, that course has always beenadopted. No doubt the Courts in England are vested with a summary power totreat certain cases of contempt, without which, indeed, it would be impossiblefor the ordinary course of justice to be proceeded with--without which noregularity could be observed--and to shield the officers of the Court in theexecution of their duty. The power even went so far that where contemptuouswords were used towards the Court, or the writ of the Court, at the time the writwas being served, punishment, for contempt was inflicted; but from the earliesttime do in to the spresent, I am not aware of one single case where a personhas been punished, as for a contempt of Court, for a libel referring not to asuit then pending, but subsequent to its termination. It is stated by ChiefJustice Campbell in a well-known book--but I could hardly call it an authority,"Campbells Lives of the Chief Justices, Vol. II, page 293, note",that if a prosecution for a libel on Judges be necessary, the preferable courseis to proceed by information or indictment so as to avoid placing them in theinvidious situation of deciding when they may be supposed to be parties".He says, this is in reference to a judgment written but not delivered, in whichChief Justice Wilmot had laid down the existence of this power, but it wouldseem that this only states that there, may be cases where it may be necessaryto exercise this summary jurisdiction in order for the safety of the Courts.

55. Mr. Kennedy then referred to the case of the King v.Faulkner (1835) 2 Montague and Ayrton 311 at p. 330 and continued: I do somerely to show that there has been, so far as the memory of the Courts at homereaches, no exercise of its jurisdiction in this manner. Baron Park, whose namestands as high as any who have ever worn the ermine in the Courts ofWestminster, in the course of the argument in King v. Faulkner (1835) 2 MA A311at p. 330 was unable to refer to any case of it save that of Reg. v. Almon(1765) Wilm. 243 : 97 B.R. 94 but in that case of Reg. v. Almon (1765) Wilm.243 : 97 B.R. 94 referred to there, no judgment was ever given, and in no casecan it be shown that, when the Courts proceeded for contempt against a personsubsequent to the termination of the proceedings, they did so summarily;butthere are many such cases cited, and they have all been proceeded against byinformation.

56. I would submit that there is no analogy between thiscase and the cases where a person brought himself into contempt by directcommunication, whether oral or written, with the Court, or an officer, as inthe case of Mr. Lechmere Charltons case (1837) 2 My and Cr. 316 : 40 E.R. 661: 45 R.B. 68. I submit there is a great difference between writing outside theCourt and coming into the presence of the Court and insulting it, or usingimproper language, or being guilty of improper behaviour there. There is nocase in England where contempt has been noticed after the close of theproceedings. As to the propriety of your Lordships exercising a jurisdictionwhich Courts in England have never exercised for the last 100 years, I mayrefer to the case of Birch v. Walsh (1846) 10 Ir. Eq. 93.

57. Here was clearly a case of oomtempt, yet the Courtexercised a discretionary power. There is an enormous difference betweenproceedings pending in a Court, such as the Court of Chancery, and a Courtwhere a Jury might be influenced, or witnesses deterred, or the course ofjustice paralysed by the publication of such libels. The jurisdiction is givenfor the purpose of protecting the Court, parties, and suitors when the ordinaryremedy might be too slow, This difference is, as I say, most material, and inthe enormous lapse of time there is not one case, like the present, in whichthe English Courts have proceeded as for a contempt. There have, however, beencases in which the smaller Courts in the Colonies have adopted severe measureswith regard to contempts, and in which this summary jurisdiction has beenexercised. In a case which came before the Privy Council in 1866 reported asMcDermott, In re (1866) 1 P.C. 260 : 4 Moor. P.C. 110 : 17 W.R. 352 : 16 E.R.258, an appeal by one Lawrence Macdermott, the Court which had punished him,gave him leave to appeal against the sentence of six months imprisonment and afine, for an article inserted in a local journal. When McDermutts case (1866)1 P.C. 260 : 4 Moor. P.C. 110 : 17 W.R. 352 : 16 E.R. 258 came before the PrivyCouncil, it was held that there was no jurisdiction to interfere with thedecision of the Colonial Court, but the permission to appeal marked thedisapprobation of the Privy Council.

58. The Chief Justice.--I believe another case is reportedas Rainy v. Justices of Sierra Leone (1853) 8 Moore P.C. 47 : 14 B.R. 19 : 97R.B. 26, where the Privy Council, although deciding that they could notinterfere in such a matter, yet reduced the amount of fine from 150 to 60,not as an Appeal Court, but as a mere matter of finance, I looked intoMcDermotts case (1866) 1 P.C. 260 : 4 Moor. P.C. 110 : 17 W.R. 352 : 16 E.R.258 before passing sentence in William Taylers case 44 Ind. Cas. 930 [LQ/CalHC/1869/1] : 26C.L.J. 345 : 19 Cri.L.J. 402 in order that the fine might be below that whichthe Court allowed in that case.]

59. In McDermotts case (1866) 1 P.C. 260 : 4 Moor. P.C. 110: 17 W.R. 352 : 16 E.R. 258 one of the contempts for which he was charged waswith reference to matters past and gone. It appears from the report that on the2nd April an ex parte order was obtained against Mac-Dermott for publishingcertain scandalous articles reflecting on the administration of justice in theColony of British Guiana. On the 5th April another article appeared which wasalso treated as a contempt which might be held to refer to a pendingproceeding, but the first article, which appeared to be one of a highlydefamatory nature, wholly referred to past proceedings. The ultimate decisionof the Privy Council on appeal was that it had no power to interfere. The merefact that there is no appeal to the Privy Council against an order forcontempt, ought to itself make your Lordships feel that it is not exercising aproper discretion on your part in proceeding in the matter of an articledefamatory of your Lordship the Chief Justice himself by a summary jurisdictionin a Court from whose decision there is no appeal, and in a Court in which theChief Justices opinion, even if differing from the rest of the Court, mustprevail. Unless it appeared that there was likely to be the gravest possibleconsequences to the administration of justice, the proper course to be adoptedwould be, not to have proceeded by a summary process for contempt, but byproceeding, if the Court came to the conclusion that this case is one whicbcalls for animadversion, against Captain Fenwiok in a constitutional way, whenCaptain Fenwiok would be brought before a Jury, and if any questions of lawarose, they might be reserved for the consideration of a higher Court. That isa point which I have felt in duty bound to bring before your Lordships notice,and no doubt it would have due weight. Here, in this Court, Captain Fenwiok isbrought forward to answer a charge of contempt, the nature of which is that heis likely to brinsr the administration of justice iu this country intocontempt--that he is likely to weaken the faith of the people in the due andtrue administration of justice. This case is one which must go to the public asa matter of fact. I am unable to see any reasons which lead to the conclusionthat a summary proceeding should be used instead of the constitutional one.There may be such reasons, but it will be difficult to induce the mass of thepeople to believe in them. If the Court were to exercise this jurisdiction, itwill go forth to the world that a Court, from whose decision there is no appeal,has held that these articles of Captain Fenwiok were not written in good faith.Would that be satisfactory to the public Will a decision like this strengthenthe faith of the public in the administration of justice in the same way as adecision of a Jury will. The Courts of law in this country are held in too highestimation by the people for any newspaper article to have any damaging effecton that estimation. Whether a Jury convicted or acquitted Captain Fenwiok ofdefamation, or of not having written those articles in good faith, would havevery little effect upon the public mind, but the case of a Judge, from whosedecision there is no appeal, deciding a case in which he is a personinterested, must have the effect of shaking the confidence of the public in theTribunals of the country. I much regret that it should have this effect, but Ifear that it is an almost necessary consequence. If no other course was open tothe Court, if it was imperatively necessary for the Court to proceed in themanner it had done, I would be the first to say, regardless of any outsideopinion which might be entertained outside,--"Go on, and exercise yourjurisdiction". The jurisdiction is vested in the Court for the benefit ofthe mass of the subjects and must be exercised. It is, however, not a necessaryjurisdiction, but a discretionary one, and one which should be exercised withthe greatest care, especially when in the course of upwards of 100 years not asingle case can be cited to show that the Court at Westminster had exercisedthis jurisdiction. That is the most elementary feeling and principle that hasbeen engrained into the minds of all people which prevents Judges fromdecid-ing in cases in which they are directly interested In the case of Dimesv. Grand Junction Onal (1852) 3 H.L.C.759 : 17 Jur. 73 : 10 E.R. 301 : 88 R.R.330 Lord Cottenhams judgment was held by the House of Lords not capable ofbeing supported merely because he had an infinitesimal interest as ashareholder.

60. [The Chief Justice.--The same thing would apply if thesame were said to the Judge in Court.]

61. No, my Lord, I think not. I do not think so; for when aninsult is offered m Court, it calls for summary proceed-ings and instantanimadversion, in order to preserve order and regularity, but even thendiscretionary power is used. What can the Judge do but use summaryadministration; but even then the offender is in general only put in prisonuntil he submits, or until the rising of the Court Cases of contempt of thischaracter pertain more to disturbance than defamation, as in case of mad peoplein the presence of the Court who use insulting and defamatory language. Theyare not cases in which the Judge is seeking to vindicate his own character;they are not personal matters, but are analogous to cases of writ serving,where the served occasionally use bad language. Could the Judge have personalmotives there in punishing such an offender P I think not. I would ask now,what reason can there be in not using criminal information or to what reasonswill the adoption of this course be attributed The Court cannot wish to punishCaptain tenwiek if he has not done wrong. Has the Court no confidence in theadministration of justice by a Jury who have taken an oath of impartiality P Isit impossible to obtain a Jury from among the community of Calcutta who are tobe relied on when they have taken a solemn oath to convict the offender, shouldthey find him guilty Surely their verdict would be satisfactory to the ends ofjustice. On the other hand, the fact of the Court faying a case in which theJudges were personally interested, would have a more important effect on themind of the public than could be possibly produced by any newspaper articles orwritings. In the case of a great personage in Her Majestys dominions, which Idare say your Lordships remember, when he tried a person against whom he hadbrought accusation, the case created a sensation not easily forgotten. I cannotforget the expression of public opinion on that occasion. When your Lordshipwishes to preserve the dignity and character of the Court, I conceive that inthe wording of the Rule the words "to be dealt with in such otherway" mean criminal information and trial by a Jury.

62. The Chief Justice.--I did not mean that.]

63. Mr. Kennedy quoted the case of Dimes v. Grand JunctionGitnal (1852) 3 H.L.C.759 : 17 Jur. 73 : 10 E.R. 301 : 88 R.R. 330 as to theundesir-ability of a Judge trying his own case. In the case of the Rex v.Justices of Tyrone (1860) 12 Ir. C.L. R. 91 Judge Fitzgerald made some verystrong observation as to the impropriety of Judges trying cases in which theyhad the slightest interest.

64. This is an undoubted and an unquestioned principle. Thisis not a case like that of Lord Cottenham and Grand Junction Company (1852) 3H.L.C.759 : 17 Jur. 73 : 10 E.R. 301 : 88 R.R. 330, in which it was supposedthat an animus existed in the mind of the Judge from the trivial interest heheld in the matter as a shareholder in the Company. There are two cases which Ihave discovered, in which it is laid down that a Judge cannot take part in thetrial of any case in which he was an interested party. One of these cases isreported in Coke upon Littleton, page 3776, in which a Judge named Richelwished to decide a case in his own favour, but was overruled by three otherJudges. And so the case was dismissed "ex assensu omnium justiciariorumprcetor qwerentem Richel." Leaving then this Judge, who had tried his owncase, to be a warning to others, as Coke puts it, he came to a very interestingcase, if authentic, but he got it from a high authority, (8th Henry VI, page18). That was an action against one Chase, the Chancellor Of Oxford, fortrespass, where the defendant pleaded in abatement that he was Chancellor ofOxford, and Clerk of Oxford, and that by Letters Patent the case could only betried in his own Court. Upon demurrer the plea of abatement was overruled. Inthat case the Counsel for the defence, being much pressed by the Court toproduce a precedent for a man sitting as Judge in his own case and givingjudgment against himself, replied he knew of but one. It was that of a Pope,who had committed a grievous crime, and the Cardinals came and said to himPeccasti," and he answered Judicate me" and they said, Non possumus:tu es caput ecolesice Judica teipsum." And the Pope gave judgment"judico me ipsum cremari et fait combuitus." So having sentencedhimself to be burnt, he was burnt and became a saint, and so it clearly appearsthat a man may be a just judge in his own case. In the present case therecertainly is that enormous objection--which I have tried to impress upon theCourt--that, however it may be, it will be impossible for the public to divestits mind of the fact, that where a course like this has been adopted from the wishthat the trial might be withdrawn from that more proper tribunal--theconsideration of a Jury.

65. There was another point of jurisdiction to which hewished to draw the Courts attention, and that was that the whole law ofcommitment for contempts had arisen antecedent to what he might call the MagnaCharta of the English Press, Sometime ago it made little difference whether aperson charged with libel was tried by a Judge alone, or by a Judge and Jury,as it was the Judge alone who was to determine whether the article wasdefamatory or not, and the Jury were obliged to confine themselves to thesimple issue as to whether the person charged did or did not publish thedefamatory matter. That, however, was not the law now. One must look to thepresent state of the law with respect to libels, and must consider that1 thewhole jurisdiction has been withdrawn from the Court. To the Jury, and the Juryalone, is submitted the power, but the Court may interfere if the Jury decidesto be libal that which is clearly not libel, or it can mitigate, but notincrease, the punishment with which the Jury visits such libel. Newspapers areno w-a-days looked upon as thenatural and proper correctors of those who arehigh in power. All hold that in England we have one broad principle on which,in a great measure, rests our superiority. I mean the liberty of the press,which does not exist elsewhere. In England the press acts as the hand and eyeto the public and to the executive. I refer now to Wason v. Walter (1868) 4 Q.B. 73 : 8 B. and Section 671 : XXXVIII L.J.J. 34 : 19 L.T. 109 : 17 W.B. 169.

66. Lord Chief Justice Oockburn there says:

The law of libel has only gradually developed itself into asatisfactory state: for the liberty of a public writer to comment upon theconduct and motives of public men has only recently been recognised. Commentson Government, on Ministers and Officers of State on Members of both Houses ofParliament, on Judges and other public functionaries are now made every day,which, half a century ago, would have been the object of ex officioinformations, and woald have brought down fine and imprisonment on publishersand authors. Yet who can doubt that the public are gainers by the change, andthat though injustice may often be done, and though public men may often haveto smart uqder the keen sense of wrong inflicted by hostile criticism, thenation profits by public opinion being thus freely brought to bear on thedischarge of public duties

67. This shows what a change has taken place in the state ofthe law and public opinion. Lately the Governor-General or Lieutenant Governor,whose conduct has been subjected to severe and even hostile criticism,especially on the subject of the Orissa famine, took no notice of suchcriticism. Had they done so, the writers of such criticism would have beenequally liable with the present offenders on a criminal information. Is it wisefor the High Court to object to criminal information, and to claim for itself ahigher prerogative, when it is perfectly clear that other functionaries had notthat right These are all the observations I wish to make on this part of thecase, and I will now shortly proceed to call your Lordships attention toanother point, and ask whether there is sufficient authority for saying--especiallyhaving regard to the then state of the law with regard to indictments forlibels, that the Court has ever had jurisdiction to treat as contempts of Courtmatters which have occurred outside the Court after the termination of thecase, which brought no one into personal collision with the Court, and whichare in no way injurious except in being in some way defamatory. All the casescited on the point are cases which have been actually decided in England, andin all these cases criminal informations have been issued I have not been ableto discover a case in which an English Judge has exercised this jurisdiction,although there have been cases of Colonial Judges having done so In the case ofKing v. Faulkner (1835) 2 Montague and Ayrton 311 at p. 330 alluded to before,and reported in Montague and Ayrton it is held that, whatever might be theright or the power of attachment, the Jcdge who professed to exercise the powerhad not the power. In examining the law in this matter it strongly recalls to mymind the observation of Lord Denman in the case of OConnell v. Reg. (1884) 11Clause and Fin 155: 9 Jur. 25 : 1 Cox C.C. 413 : 7 Ir. L.R. 261 : 5 St. Tr.N.S. 1 : 8 E.R. 1061 : 65 R.R. 59:

That there were three kinds of law: Common Law, Law byStatute, and Law taken for granted and that the amount of accepted legalopinion which fell under the last head far exceeded the amount comprised underthe two first heads.

68. The law could not be better expressed than it was there,in one of the greatest judgments which have ever been delivered by anv memberof the House of Lords.

69. [The Chief Justice.--Buy it was proved that the lawtaken for granted was not good Law.]

70. It was proved to be irreconcilable to clear Jegalprinciples.

71. The Court then adjourned for a quarter of an hour forrefreshment. Upon its ressembling--

72. Mr. Kennedy proceeded with his argument. I refer theCourt to the judgment of the Lord Chancellor in St. Jomes Evening Post case(1742) 2 Atk. 469 : 26 E.R. 683 and will now ask your Lordships to direct yourattention to the case of Brich v. Walsh (1846) 10 Ir. Eq. 93 in which theMaster of the Rolls in ireland adopted the language of Lord Hardwicke end wentthrough the who e of the classes of contempts punishable by the Court in itshigh prerogative power.

73. Mr. Kennedy again quoted (he class of contempts referredto, and proceeded to speak with regard to the third point--that of an inferenceof an intention to obstruct the course of justice This, I submit, could not becalled scandalising the Court. The term "scandalising," as Iunderstand it, is a part of the class of contempt in which, when the process ofthe Court was served, opprobrious language of some description was used. Itdoes seem to me that in cases of this description, where the contempt consistsof an attack on the Judges, that the Court invariably ought to proceed oncriminal information.

74. Mr. Kennedy then quoted the case of the King v. Watson(1788) 2 T.R. 199 : 100 E.R. 108 and went on to say.--I do not think that anyCourt at this day would proceed against a man for expressing an opinion even ifit were expressed without forethought. There are several cases in whichcriminal informations have been brought against persons for libels upon personsfilling high judicial positions, but if a shorter and more simple remedy hadbeen open to them, that course would certainly have been pursued. In yourjudgment your Lnrdship starts with that case St. Jamess Evening Post case(1742) 2 Atk. 469 : 26 E.R. 683--which lays down three different kinds ofcontempt. That is exhaustive of contempts which are liable to punishment, andyet the Judge is not in favour of public rights to the exclusion of rights ofthe Court. It is hardly possible to put any other construction on thatjudgment. I think the only other case having any bearing on the present is Vantiandans case (1846) 1 Ph. 605 : 4,1 E.R. 763--which is alluded to in thecourse of Mr. William Taylers case. 44 Ind. Cas. 930 [LQ/CalHC/1869/1] : 26 C.L.J. 345 : 19Cri.L.J. 402--in which the contempt was actually committed in the presence ofthe Court, and the summary jurisdiction was resorted to for the purpose ofpreserving order.

75. The two cases referred to by Sfcarkie, page 481, arestated to be libels on the Court of the Queens Bench; whereas it would appear,on looking into them, that they had nothing to do with the Court of the QueensBench at all, but it was a libel on Dr. Middleton. How it occurred that theKings Bench could be mixed up with a Doctor of Divinity I am at a loss tocomprehend. We find in Fortescue 201, that the libel was a libel on a Doctor ofDivinity, and that the libel was contained in the dedication of a book. 1 haveheard that "divinity doth hedge a King" but here the "KingsBench" seems to hedge a Doctor of Divinity (a laugh). Then the only othercase was in Starkie, 584. These are the only two cases which state that suchjurisdiction has never existed. In more modern times we find a case in theQueens Bench. Now in this case it appears on the face of the report,Crawfords case (1849) 13 Q.B. 613 : 18 L.J.Q.B. 225 : 13 Jur. 955 : 116 E.R.1397 : 78 R.R. 479, that Crawford attended the Court as a spectator and auditorand that he commented in the Mona newspaper, and then it appears the Court wasadjourned and the man was committed.

76. [The Chief Justice.--That case appears to be a libel outof Court]

77. It does not appear that the suit was not still pending.It appears that the article was contemptuous, and that its publications werecalculated to paralyse the proceedings of the Court, I believe your Lordshipwas personally present, but it appears to me that as it is reported thatappears to be the gist of the affair. Next I come to Wallaces case (1866) I.P.283 : 4 Moore P.C. (N.S.) 140 : 36 L.J.P.C. 9 : 15 W.R. 533 : 16 E.R. 269,which was a letter directed to the Judge for the purpose of influencing him inthe discharge of one of the duties of the Court. This letter was mostinsulting, and accused him of altering minutes of the Court (here Mr. Kennedy quotedthe case). This was clearly during a pending suit. I forgot to remind yourLordships that in the Moffussil, except in those Courts established by RoyalCharter, they would have no power to exercise such a jurisdiction as Imentioned before, as the administration has oarefully withdrawn all suchpower--Act XXV of 1861, Section 1863.

78. No Court except those established by Royal Charter hasany jurisdiction, and when so established it has only that power to a similarextent of Rs. 200 fine. Yet they would want it more than this Court, in factone would have thought it would have been necessary in those Courts. Assumingthat your Lordships are rot convinced on the points on which I have argued, Iwill go on to prove that your Lordships oannot treat this case as one ofcontempt, that is to say, as a case punishable summarily, hut that you can onlytry it by Jury as a case of defamation under the Penal Code.

79. [The Chief Justice--If the contempt is one which doesnot come under the provisions of the Penal Code, there is nothing to preventthe Court dealing; with it as a contempt and if it is contempt punishable underthe Penal Code, the Court can try it itself, but upon the understanding thatthe punishment to be inflicted will in, no case exceed that provided in thePenal Code.]

80. What is the charge against Captain Fenwiok in thepresent case

81. [The Chief Justice.--He is charged with having publishedcertain letters and advertisement in the newspaper, and that in doing so he hasbeen guilty of a contempt of Court.]

82. What I want to know is whether I am to direct myself tothe question as to whether the articles in question were calculated to do harmor to injure the reputation of the Judge.

83. [The Chief Justice.--Not alone that. The advertisementfor a demonstration against a Judge for acts done in Court if, in my view, acontempt.

84. [Macpherson, J.--I think, Mr. Kennedy, you may arguefirst as to whether the letters, etc., written come within the meaning of theword defamation according to the Penal Code, and then whether they are acontempt of Court.]

85. [The Chief Justice.--I put it that the advertisementcalls for a demonstration of public opinion, and is a defamation as well.]

86. With respect to the defamation, I want to understand whatyour Lordships hold.

87. [The Chief Justice.--If it is a criticism for which,within the meaning of the Penal Code, he could not be indicted, it is not acontempt. Any fair criticism is justifiable and is not a contempt, if expressedin good faith. According to the 52nd Section of the Penal Code, a bona fidecriticism is not a contempt.]

88. There may be some difference between the wordsexpression of opinion" and the word "criticism", althoughperhaps the simple meaning of the word "criticism" is nothing but anexpression of opinion, but if any person were to say, "So and Sosjudgment was wrong", that could hardly be called a fair criticism.

89. [The Chief Justice.--I call an expression of opinion ingood faith a criticism.]

90. If writers in the discharge of their public duty were tobe obliged to support every portion of what they wrote with reasons, they wouldbe in a hard case.

91. [The Chief Justice.--I dont mean with their ownreasons, but it would not do for a writer, in the case of a man convicted ofmurder, to say, without giving the evidence, that Judge and Jury had convictedan innocent man.]

92. Suppose it was not in a newspaper, but an ordinaryperson had said so.

93. The Chief Justice.--If he said so in Court that would bea contempt of Court. I am willing to hear you if you wish to argue thatwould" be an expression in good faith on the conduct of a public servant.Suppose in a case in which there was a conflict of evidence, a newspaper was tosay that "the Judge and Jury have convicted an innocent man; the man hasbeen hanged and it is a cruel injustice", would that be justifiable]

94. If made in good faith, it would. Suppose the case of aperson who had been in Court and paid great attention to the case and came tothat conclusion, or suppose that ore of a minority of a Jury, as in theMoffussil, where a unanimous verdict is not required, differed from the otherjurors, and the man tried was condemned to death, could it be said that,although he did not give his reasons, yet that if he said, in my opinion thatman is as innocent as any in Court, and yet he has been sentenced to death,that the statement was not made in good faith

95. Mr. Kennedy continued.--The offences charged againstCaptain Fenwiok are two; first, in having consented to act as treasurer to thefund, and in having given notice of the formation of a fund, intended to offeran opportunity to people who entertained an adverse opinion to the Court inWilliam Tayler]In the matter of 44 Ind. Cas. 930 [LQ/CalHC/1869/1] : 26 C.L.J. 345 : 19 Cri.L.J.402 of giving an expression of their opinion by paying their rupee. Possiblythe law of conspiracy still prevails in the country, and after the case ofOConnell v. Reg. (1844) 11 CI.& Fin. 155: 9 Jur. 25 : I: 8 E.R. 1061 : 65R.R. 59. it is hard to say what is not conspiracy.

96. [The Chief Justice.--But those counts were held to bebad.]

97. I will not state what is and what is not of the natureof a conspiracy, as that is an offence not triable under this particularjurisdiction; and since the introduction of the Penal Code I doubt whether itis triable at all in India. The paragraph which I presume to take as thecontempt of Court was this:

During the whole of Sunday and yesterday great excitementprevailed throughout Calcutta at the severe sentence pronounced by the ChiefJustice on Mr. W. Tayler. We understand that a public subscription has beenopened to pay the amount of the fine, subscriptions being limited to one rupeeeach. We shall be happy to take charge of any subscriptions to such a fund--thedemonstration not being at all intended to express any justification of Mr.Taylers conduct, but to show rather the sentiment which exists in the breastsof all Englishmen against a too severe use of power. Precedents in law and theforms of justice may be cited in favour of Sir Barnes Peacocks action in thematter, but the universal shout of indignation with which His Lordshipssentence, sitting as he was as Prosecutor, Judge and Jury upon his own wrong,has been received, sufficiently justifies an appeal to the public. Five hundredmen having the pluck to put down their rupee each, in proof of their protestagainst the cruel sentence awarded by the Chief Justice, and as an earnest oftheir determination to support their right of appeal to a free press, will be alesson which Sir Barnes Peacock will not be likely soon to forget.

98. I confess that I can find nothing there that amounts toa contempt of Court. I find a desire rather to find out what public feelingreally was in the matter. In your judgment your Lordship said, "I am aservant of the public. If public opinion is unmistakeably expressed I will bowto it. But I will not take the voice of a few papers for the voice of thepublic." It really seems difficult to ascertain how public opinion couldbe better expressed than by this rupee sub-noription. It was yourLordships/and not Captain Fenwieks suggestion as to the expression. Theproposal for subscription did not ccme from Captain Fenwiek, as I Seam; on thecontrary, he has been led into it. This appears on the faoe of the noticeitself.

99. From this it is clear that the suggestion was made tohim, as he had taken great interest in William, Taylers case 44 Ind. Cas. 930 [LQ/CalHC/1869/1] : 26 C.L.J. 345 : 19 Cri.L.J. 402, and surely this could not be taken as acontempt of Court, when his action was merely the result of your Lordshipschallenge of the public opinion of the community in Calcutta fortified by athreat.

100. [The Chief Justice.--I used no threat. I said I shallbe happy to lay down.]

101. Yes, my Lord, it is a threat when you speak ofdepriving the community of your deep learning and the brilliancy andimpartiality so long the brightest ornament of the Bench. This subscription maybe regarded as an indication that public opinion thought your Lordship was inerror. This public opinion may be very wrong, but still the feeling existed, asit would amongst all Englishmen and I believe it also existed here amongst themembers of the Bar, that it would have been better had Mr. Tayler been tried bya Jury. In one word, there was a feeling of dissatisfaction at the proceedingsagainst Mr. Tayler and the severity of his punishment. Tour Lordship thoughtthat the sentence of the Court was a fit award, and this judgment had been tosome extent challenged by an expression of public opinion on the subject, andit was difficult, under the circumstances, to-see how else that expression ofpublic opinion could have been conveyed. Calling a public meeting for thepurpose would have been a much graver offence as well as more insulting, andwas a course which I would have been very sorry to have seen adopted. The wayof enabling the people to oome forward and give their opinion as expressed bytheir rupee was about as mild a form of expressing an opinion as could well beadopted. I have known of many such similar cases, but have never known of onein which any particular proceedings were taken as in this case.

102. [The Chief Justice--This subscription was not intendedfor the purpose of paying, off Mr. Taylers fine.]

103. Cases of paying off a persons fine for charity arenever noticed by the Court, and indeed are very seldom done; but in most caseswhere subscriptions are raised for the purpose of paying off fines, it is inorder to mark public disapprobation at the course adopted. It will doubtless beremembered that when the Nil Durpan prosecution (1862) 1 Celebrated Trials 36was successfully carried out, a wealthy native, named Kali Prosunno Singh,actually threw the amount of the fine on the table of the Court. In McDermottscase (1866) 1 P.C. 260 : 4 Moor. P.C. 110 : 17 W.R. 352 : 16 E.R. 258 there wasalso a fine, and this was also raised by subscription.

104. [Macpherson, J., said that it must be remembered thatthe article in the paper of the 16th April was to be read in connection withthe other articles, although there was no charge of contempt in respect of thatparticular article.]

105. It appears to me that this is a mere expression ofopinion if it has been given bona fide and with reasonable care, and if thereis no reason why the expression of opinion should not be given in this way, andwhy persons who really have been challenged to come forward and give anexpression of their opinion should not do so, then it would seem a monstrousthing that it should be made a matter of contempt on the part of Mr. Feriwickto give them an opportunity to do so. Another paragraph states as follows:

Notwithstanding yesterday having been mail day and a day ofconsiderable business in Calcutta, subscriptions towards the fine imposed uponMr. Tayler have been pouring in. Our notice yesterday must have been carelesslyread by many, as individual subscriptions of 100 rupees and upwards have beenoffered. The limit proposed was cne rupee. Again we have to remark that thedemonstration is in no way intended as a vindication or approval of Mr.Taylers conduct, but as an independent expression of opinion regarding anoverexercise of power on the part of Sir Barnes Peacock, and as a legitimateprotest against undue interference with the right of appeal to the Press.

106. [The Chief Justice.--Mr. Taylers second apology hadbeen put in the day before the second notification.]

107. Mr. Tayler, in his second apology, admitted himself tobe altogether in the wrong, and the article in the Englishman does notvindicate Mr. Taylers conduct, but merely says:

There are many people who do not care for the grievances ofMr. Tayler, but who will not brook an encroachment upon their right of appealto the Press concerning the public acts of public men.

107. I confess my belief that, on investigation, that theseproceedings are an encroachment on the liberty of the Press, the opinion wouldbe discovered to prevail extensively among the members of the Bar. Thisprevails also among Captain Fenwiok and many others who are not at alldefective in intelligence, who were present and read the proceedings withoutreference to Mr. Tayler, whom many think to have acted in a very shabby way.Many also entertained an opinion against Mr. Justice Mitter. I will here readthe letters that were sent with these subscriptions.

108. [The Chief Justice.--Are these all the names, or arethey only of those who consented to have their names published]

109. These are all the names, my Lord except those of someladies and those who are in the Moffussil, and have, therefore been unable tosend in their consent as yet.

110. [The Chief Justice.--I see here "Inigo or Jingoand three friends, H.B. and 10 others, residents of--"]

111. Those are all ladies, my Lord (laughter).

112. Here Mr. Kennedy read the letters which caused muchamusement. One letter being anonymous and of a libellous nature was not read.

113. Mr. Kennedy continued--Although, after your Lordshipissuing the Rule, Captain Fenwiok published a statement to the effect that hewould receive no more subscriptions, yet many further subscriptions came inThere were also many other subscribers who have not sent letters, but who aremen of high education and strong feelings as to the rights of Englishmen, whichthey feel in the present case have been infringed and attacked I dont know howit was that the subscription came to take place. It has been shown that CaptainFenwiok was not the originator of it but merely agreed to act as treasurer, andthe part he has taken was done by no means with the intention of committing acontempt of Court. One of the advantages we enjoy from a free press is that theexpression of public opinion whieh it allow, prevents the breaking out ofconspiracies. The greatest means of keeping our country free from outbreaks isthat every person is able to bring his opinion before the public, when it canbe confirmed or refuted by those who have the power and ability to show what isright and what is wrong. The preventing of the expression of public opinionsuch as this, by the dread of being punished for contempt of Court, appears tome to be about as wise as placing a weight on a safety valve to keep a boilerfrom explosion. Captain Fenwiok has probably high ideas of the press and theduties of an editor, they may be erroneous ideas, and he may perhaps have gonebeyond what he ought to have done in the matter of criticism. The first of theincriminated articles, seems to me to be one of the 26bh April and with regardto the first passage which states:

The extraordinary severity of the sentence was muchcommented on in and out of Court." That I take it, my Lord, is a merematter of fact. I believe Captain Fenwiok in his affidavit states it as suchand I will be able to procure other viva voce evidence of persons who werepresent to verify that statement, that there was much comment on the sentenceand that the public expected that after what had occurred on Tuesday morning,they understood that Mr. Tayler would be, to use a Police Court phrase, warnedand disaharged upon his making an apology. The letter went on: "There wasnot a listener in Court on Tuesday last to Mr. Taylers offer of apology, whodid not consider, from what fell from the Chief Justice, that his Lordship wasprepared to accept his apology, provided it obtained the same publicity as hadbeen afforded to the letters complained of.

114. The words "there was not a listener inCourt", etc., might be difficult to prove, but what I am prepared toprove, is that a large number of persons in Court did come to the conclusionthat your Lordship did not intend to proceed to punish Mr. Tayler in case hepublished an apology, and included in it a retraction suggested by yourLordship. The article goes on to say that the Ranee of Ticarees unprotectedposition was feelingly dwelt upon, and Mr. Dwarkanath Mitter was extolled insuch a manner that he must have blushed, although like Grays flower, it wasunseen."

115. That may perhaps be a somewhat irreverent joke at theHonble Mr. Justice Mitter, but I cannot think it amounts to anything like acontempt, or calls for any necessity for measures such as have been adopted.

116. [The Chief Justice.--No proceedings would have beentaken for anything like that.]

117. Then the letter goes on--

118. [The Chief Justice.--There is a quotation at thecommencement of the articles which you have not read, Mr. Kennedy.]

119. Mr. Kennedy read the following:

Calendaro.--Will he be punished

Bertuccio.--Yes.

Calendaro.--With what a mulct or an arrest

Bertuccio--With both:

Calendaro.--Now you rave, or must intend revenge.

120. Slightly altered from Marion Faliero.

121. I do not see how that can be considered as applying tothe Court. I suppose your Lordship remembers the original quotation, and yonwill see that the alteration is a very slight one. The joke may not be a verygood one, but it is hard to see how it could be applied to the Court. The wordin the original quotation is "death". I take it that quotation is onlymeant as a sort of expression of opinion, that the imposition of both fine andimprisonment for such an offence was a singularly severe one. Now surely thatis a matter in which a journalist is capable of forming a bona fide opinion,having seen Mr. Tayler in Court and heard the proceedings. What he says of yourLordship, if it is not in good faith, then it is not justifiable. YourLordships judgment was one of singular power and of deep research, mostclearly bringing before the public that which to other Judges would not haveoccurred. Your Lordship in exercising your real powers did bring an enormousamount of evidence to bear against Mr. Tayler, against whose acts yon hadformed a very strong opinion. So, surely, there is no dispraise in saying thatyon had turned every point against Mr. Tayler. The word "bitterness"cannot be construed into contempt of Court. It merely applies to yourLordships mariner. It may not be fair to criticise your Lordships manner, norperhaps in good taste, but really your Lordships manner is sometimes veryforcible, very forcible indeed. You did say that Mr. Taylers apology didaggravate his offance, for the apology in the affidavit was but an echo of theother. Yet when it was read in Court you did not intimate that it was improperor objectionable. Your Lordship intimated that it was insufficient, because itcontained no retractation. The general opinion then was, that your Lordship hadno further intention to punish, but that as the affidavit contained noretractation it was insufficient. Yet, surely, pity for Mr. Tayler would notoverrule the anxiety in the minds of the public for the honour of the Court.

122. The case was then adjourned till the following day.

123. Mr. Kennedy resumed his argument on May 4th, He said Ishall again draw your Lordships attention to the exceptions contained in thePenal Code. Your Lordship seemed to think that the expression of opinion WHSequivalent to criticism. I confess I hardly think that is the trueconstruction. Expression of opinion is a much wider phrase than criticism. Theframers of the law evidently held that fair criticism was certainly not libel.When they used such a wide term as expression of opinion, they must have meantsomething very different from the existing state of the law, or they would nothave gone to the trouble of defining what good faith was. I think here thatthere is an invitation in the Statute for the expression of opinion in goodfaith, which is totally exempt from punishment, otherwise the Legislature ismerely laying a trap. I cannot think this to be the case. In a recent calamity,public opinion ran very strongly against the highest officials; in fact, it wassaid that they were indifferent about the death of thousands of people at thetime of theOrissa famine which was attributed to their negligence and want ofknowledge. The same opinions prevailed at home, although I understand thathuman means would have been totally unavailing to prevent the calamity, but yeta strong opinion was expressed that this was caused by the culpable neglect ofthe officials. There was even a suggestion that this province should have aseparate Governor from home, as the existing Lieutenant Governor was the causeof the evil. I think that was singularly unjust. Yet there was no explanation,no giving of reasons; still it was not punishable because it was in good faith.The case put yesterday of a Judge and Jury finding a man guilty of murder, andthereupon being accused of having condemned an innocent man, would be anexpression of opinion. Might not that be perhaps in good faith, although thereasons did not appear Perhaps they might be very weak. But yet that would notimply a doubt as to the speakers good faith. The 52nd Section does not implythat every one must be completely master of his subject, or that his reasonsmust be sufficient and good, and that else he is liable to punishment, althoughsuch expression was made in good faith. Again, the publication of defamatorywords is extended towards words "either spoken, or intended to be spokenor said." It is not at all an unfre-quent occurrence to hear defeatedCounsel expressing strong opinions against the judgment which has overthrownthem. Yet, surely, that cannot be defamation, though perhaps erroneous and notfulfilling such demands as "care and attention." Surely the 52ndSection does not say that good faith must be applied in forming opinions, butonly in expressing such opinions. Of course, if a man has no opinion, if heknows nothing whatever of the case, what he expresses cannot be in good faith.On the other hand, if he has an opinion, this section gives him the liberty ofexpressing it. The intention of the Penal Code is to extend this liberty ofexpression, yet if no opinion may be expressed save after careful study, itonly misleads the public and contracts their liberty. I now think it right toread Captain Fenwioks affidavit (Here Mr. Kennedy put in and read theaffidavit, which stated that, the articles complained of were inserted bonafide, and as a fair expression of public opinion. Then an article from theFriend of Indian, April 29). Here the writer appears to have been in Court andseen the reports, and he says that the opinion was shared by all in Court, thatnothing further than the apology, which Mr. Tayler afterwards published in thenewspaper, would be required of him.

124. And now this brings me to a very painful portion of mysubject. I must say that your Lordships language on that occasion wouldraturally lead to the supposition that if Mr. Taylor made the apology requiredby your Lordship, your Lordship would be satisfied, and that no furtherproceedings would be taken against him. Mr. Tayler did make an affidavit whichhe read to your Lordship and he also read the case of Fletcher, Ex parte (1841)2 Ment. D. De G. 129, a very gross contempt, when the Court intimated that theywould be satisfied with an apology. This was read to your Lordship, and yet yonexpressed no dissent from such an opinion. Of course that was a matter for yourLordships discretion, but still I submit that many would think that, as youexpressed no dissent, you consented to the contents of that affidavit. Ipresume myself that the apology you referred to was that incorporated in theaffidavit. The affidavit was then before your Lordship. Any one might thinkthat you meant the apology contained in this affidavit. You further said:"I leave this remark to Mr. Taylers consideration."

125. [The Chief Justice.--I did mean the affidavit.]

126. Under those circumstances, my Lord, it does seem thatit was not natural to presume that upon a retractation published as the letterswere published, it would be accepted as sufficient, for although your Lordshipdid not pledge yourself [having Van Sandaus case (1846) 1 Ph. 605 : 4,1 E.R.763 in your mind] that if Mr. Tayler published his apology and retractation itwould be sufficient, yet the supposition was that nothing further would bewanted. Of course you did not say so; and people may be to blame for thinkingso: still that was their opinion. This is what Captain Fenwiok says in hisaffidavit, and if that is not sufficient, I can give the evidence of severalmost respectable gentlemen whose opinions were identically the same, and whowill testify that that was the state of public opinion. I mean that if Mr.Tayler published the apology as he had published the offence, he would bevisited with no other punishment, I dont myself like to give evidence, butreally there was a great discussion hero amongst the members of the Bar, andhere that was the general opinion as is also in the outside world. Thereflections on your Lordship in "Bystanders" letter are very strong,but then what you have to consider is, whether that was the prevalent opinioncaused by what you said or by what you did not say. Of course, if it had beenbrought to your Lordships notice you would have spoken more fully upon thematter. But with that we have now nothing to do. What did occur did verynaturally give rise to the general belief that the publication of the apologywas all your Lordship required. I submit, my Lord, that the thing for you toconsider is, whether such opinion might not be held bonafide. The question iswhether the course taken in Court may not have induced people in Court, who hadnot the same means as we had of forming an opinion of your Lordships judgment,to have taken such a view perfectly bona fide. I cant help impressing uponyour Lordship the opinion, which could most naturally occur to the minds ofsuch persons, was that a gentleman of your Lordships ability would not allowsuch an impression to arise without intending that it should arise. I know thatyour Lordship did not intend such an impression to arise, but the question iswhether it did not arise bona fide and that this letter was the bona fide andlegitimate expression of the opinion of the person who wrote it. If so, Isubmit the subsequent remarks were not beyond the limits of free expression,even though the opinion was founded in error. The latter part of the letter iswritten in a sort of flourishing style and is to me quite unintelligible and Iam unable to put any construction upon it. In that part of the letter he says:"there is a marked difference between the dulcet though powerful tones ofthe British lion and the arriere pensee gamut of the Bengal tiger." Whatthe meaning of these words is, or what construction is to be put upon them, Icertainly cannot understand. The other inculpated letter is, I take it one publishedin the Englishman of the 28th April, in which a short extract is given fromSutherlands Weekly Reporter, showing that Mr. Justice Dwarkanath Mitterappeared as Counsel for the Ranee in a case against Mr. Tayler Ranse UsmutRoowar v. Tayler 2 W.R. 307 and the last part of the letter stated what waserroneous as well as ungram-matical. The sentence is as follows: "By thisyou will perceive that Mr. Justice Dwarkanath Mitter, who held a brief for theRanee in this case, afterwards sat as a Judge in a cause between the sameparties." This is erroneous, because Mr. Justice Mitter did not sit as aJudge in a cause between the same parties. But of what consequence is it Is itunprofessional or contrary to precedent that a gentleman of the Bar holding a briefshould afterwards sit as Judge in a different suit between the same parties Itis only a rule of etiquette and nothing more that where an Advocate taking partin a suit, which afterwards comes before the Court when he is on the Bench,takes no part in the case. Certainly, the suggestion that he sat as Judge in adifferent suit between the same parties was no imputation on Mr. JusticeDwarkanath Mitter.

127. Macpherson, J.--The whole point of the letter is thatMr. Justice Mitter, having been Counsel for one of the parties, had been guiltyof unfair and improper conduct in taking part in the case. That was theinnuendo contained in the letter--or why was it published]

128. Well, I dont see why it was published.

129. Macpherson, J.--There is a misstatement in the letter,which any one may see.]

130. Yes, and it parries its contradiction on the face ofit.

131. [Macpherson, J.--But the letter is nonetheless anoffence for all that, when the manifest object with which it was written isconsidered.]

132. It is hard to see how the letter can amount todefamation. There had been a great deal of excitement about the matter and--

133. [Macpherson, J.--The letter itself is of no value oneway or the other, except that it goes to show the object with which it waswritten, in imputing improper conduct to Mr. Justice Dwarkanath Mitter.]

134. There had been a good deal of excitement about thismatter, and this letter came to Captain Fenwioks hands, and he published itwith a perfectly innocent intention. It is a very foolish letter, but nothingmore. It does not implicate Mr. Justice Dwarkanath Mitter or any other personand is perfectly immaterial one way or the other. That there was and is a greatdeal of excitement about these cases, can hardly be doubted. These cases haveexcited a great deal of interest, and your Lordships need hardly have lookedaround the Court yesterday or to-day to see that this is the case. In spite ofthe heat of the weather the Court has been much crowded during the last two days,and this shows the enormous interest and excitement felt about this case as asequel to the case of Mr. Tayler. The public of Calcutta, not only Europeansbut natives, had become impressed with the value of the principles of EnglishJurisprudence, and an idea had been engendered that some of these principleswere endangered by the aotion taken by the Court in Mr. Taylers case 44 Ind.Cas. 930 : 26 C.L.J. 345 : 19 Cri.L.J. 402. In times long gone by a verysummary course was adopted towards the public in matters which affected thedignity of the Courts. In times long gone by, the person of the Crown wasprotected with equally stringent prerogatives, The same with regard toMinisters of State, and remarks upon persons holding high offices of State wereprosecuted and dealt with almost as treason. He would remind the Court of acase in the reign of Edward IV, where a mans deer was killed, and he wishedthat the horns of the deer were in the belly of the man who advised the King todo this. That was held to be high treason, Those days, however, have gone by,and the rights of free speech and free discussion have been gradually wideneddown to the present day. The greatest change is that in the free discussions onthe doings of public men public men have now learned to view their safety, andmen now see that it is good for the commonwealth and for the good of all thatthere should be free discussion, and that if it overstepped the proper boundsit should be punished by constitutional means. As I have shown, the discretionarypower of exercising a summary jurisdiction in the case of libels upon the Courtpublished out of Court, and after the termination of a case, has never for thelast 100 years been exercised in England, it was a power to be exercised withthe most guarded discretion--a discretion which has been so guarded in England,that in the whole history of English Law, not one case could be found in whichEnglish Judges had used this power, The only cases in which this power is shownto have been used are cases from the Colonies and the Isle of Man. Under thesecircumstances it is not astonishing that it has caused great public excitement,and it is not astonishing that the Court should have been crowded as it wasyesterday and to-day. I have now, my Lords, only to close by repeating what Isaid before, that I can hardly feel the administration of justice and therespect felt for this Court could receive a heavier blow than they havereceived by these proceedings of your Lordships, when it is remembered that theseproceedings of your Lordships may give rise to an impression that yourLordships consider a Jury cannot be safely entrusted with the administration ofthe law.

135. Mr. Paul then rose to address the Court. He said: Mayit please your Lordships. The duty, of showing cause against the Rule made byyour Lordships which devolves upon me, imposes on me a task at once painful,delicate, difficult and em-barassing.

136. Painful, because I shall have to offer remarks upon theconduct of the Chief Justice, who is entitled, by his well known services andimmense talents, to a respect which is acknowledged and felt by all who knowhim.

137. Delicate, because in my duty to the Court and my clientI must be careful not to overstep the bounds of propriety on the one hand andmust yet push every argument to the utmost limits on the other.

138. Difficult, because I have to contend against what maybe considered to some extent a foregone conclusion in the minds of yourLordships, based upon mature judgment and reflection.

139. Embarassing, because it is clear that whateverarguments I may take up, have already been considered and weighed beforehand byyour Lordships, besides which no specific grounds are laid down against which Ihave to combat.

140. The learned Counsel then proceeded to show how greatlyindebted the community was and should be to the Chief Justice for having sweptaside, the cobwebs of confusion, and for having substituted clear grounds oflaw in laying down the Penal Code, which existed only in this country.

141. Whatever accusation might be made against CaptainFenwiok surely everybody would acquit him of malice, or of deliberately badintentions. Whatever faults he had committed were errors of judgment. Steadyjustice was to be considered as much the indication of public liberty as thefreedom of the press. From the earliest records of civilisation, authority andliberty had always been in contest. In order that the two may act inconjunction and harmony a line of definement must be drawn, a very difficultproblem indeed, if it was to be governed by the precedent of cases whichoccurred in England 40 or 50 years ago. Some Judges have held very singularopinions on the subject, and, therefore, in that necessary definement oneshould rather be guided by the principles than the conclusions of those cases.It would, therefore, be better to confine the argument to the question of thelaw, as to whether the Court had the right to try a case in which it was itselfinterested. Nothing published after the termination of proceedings could beheld practically as contempt. Mr. Justice Wil mots opinions are oftencommented on, but they are not sound, because they will not accommodatethemselves to the present times. He, however, was not, according to Lord Campbell,a very bright genius, and his opinions must be regarded as speculativeopinions.

142. Whenever cases have come up of libels after thetermination of proceedings the Judges have always refrained from exercisingtheir rights of punishing. Sir Samuel Romilly at one time held a strong opinionon the existence of this power, but found he had gone too far, and heafterwards retracted. This retraction is a matter worthy of consideration,considering the eminence of his position, his learning, and the benefit heconferred on society (13, Adolphus and Ellis). No case in England had gone tothe extent that a contempt after proceedings could be punished summarily[Crawfords case (1849) 13 Q.B. 613 : 18 L.J.Q.B. 225 : 13 Jur. 955 : 116 E.R.1397 : 78 R.R. 479]. In that case it was considered there was no question to goto the Jury, for the publisher had admitted publication, and in those daysbefore Foxs Bill, the question of construction was one for the Judge.

143. Here was a manner of proceeding in which the wholeargument was one of law. Therefore, trial by a Jury was absurd, as the fact ofthe publication and authorship was admitted, if the construction to be placedon a libel was for the Court to decide. Tn the judgment of Mr. JusticePatterson, it was stated that a case might be conceived, which would have theeffect of paralysing the proceedings of the Court. I can conceive such a case,but I thought it must be more than mere defamatory matter. If a threat weremade that your Lordships would be resisted in going to Court, that would be aproceeding which would be likely to have the effect of paralysing the action ofthe Court, as it would be actively impending the administration of justice. Ifthe world did believe your Lordships judgment to be severe, and CaptainFenwiok said so, it would have no, effect in paralysing the action of theCourt, and the equanimity with which your Lordships sat there would not bedisturbed in the least. In no case in England had the Judges gone the lengthcontended for. It was said that the Court could not properly punish as contemptanything which would not interfere with the working of the Court, and I canimagine many cases in which the Court might well exercise this power. In thecase of the King v. Faulkner (1835) 2 Montague and Ayrton 311it was held that aCommissioner of Bankruptcy had not the power to punish for contempt. I contendthat the letter reflecting upon the sentence of his Lordship as severe was notan obstruction in any way. In the case of Reg. v. Almon (1765) Wilm. 243 : 97B.R. 94 Lord Campbells Lives of the Chief Justices, Volume, page 297, thejudgment of the Chief Justice Wilmot begs the question which it proceeds toprove. It says the Court has power because it has the power, but shows noinstance of its exercise.

144. It is for the Court to say if they are satisfied withthis judgment. The Judge does not know where the power comes from. Thought ishere lost in language. (Here Mr. Paul read the note of Lord Campbell, to theeffect that it was inexpedient for a Judge to exercise this power, and that theproper way to proceed was by criminal information,).

145. The matters here complained of are pot scandalising tothe Court. To think so would be to give the words too wide an interpretation.That is a question for a Jury. Van Sandaus case (1846) 1 Ph. 605 : 41 E.R. 763does not come within that class. Where the Court sees a direct attempt toobstruct the proceedings, then they are justified, but in Captain Fenwiokscase, the supposed obstruction is from some reasoning or some argument; andthen the Chief Justice says the Courts had better be shut up, it is theinference of intention.

146. Times have changed and the severity of the law is nowmuch mitigated. With regard to this, whole pages of legal literature teemedwith cases of great injustice done by Judges under colour of law. I need go nofarther than to instance the judgment of Sir John Finch in the case of Hampden(1640) How. St. Tr. 825, in which everything was exhausted to show that in thatcase the right way of proceeding had been adopted, and to uphold in thestrongest manner the divine rights of Kings. I understand your Lordship to saythat if the misrepresentations had been confined to misstatements withoutanything being based on them, no notice would have been taken of them. Iunderstand that your Lordship considers the letter of "Bystander" tobe a contempt as reflecting upon your Lordships character and also that theadvertisement calling for subscriptions was also a contempt of Court, as beingintended as a demonstration against the Court. I have already submitted, on theauthority of a number of cases, that in cases of libel of this sort on a Judge,after proceedings had ended, the Court had no greater powers than an ordinaryindividual. There were other ways than the present course of proceedings bywhich the honour of the Court might be protected, and the menial capacity of aJudge ought to be of such a nature as to prevent him from placing himself inthe position of Prosecutor and Judge in the same case. With regard to theanimadversions in the letter of "Bystander", no doubt the word"ruse" is one calculated to annoy your Lordship, but I hope to beable to show to the Court, although the word was not one which I can approveof, that it was really intended to express an impression which had gone abroadthat your Lordship had given Mr. Tayler to understand that his apology would beaccepted, and had thus punished him severely without even mentioning theapology.

147. With regard to what was said to be the grossestlibel--the opening of the subscription as demonstration against the Court--Mr.Paul mentioned that in olden times, the Judges had very ourious ideas upon theliberty of the subject and the firmness of the British constitution. If almostanything was done, it was given out that the constitution was in danger. Evenin later times a great deal of en-enlightenment clung to Judges of highstanding. In Lord Ellenboroughs speech on Sir Samuel Romillys Bill, reportedin the 233rd page of the 3rd Volume of Campbells Lives of the Chief Justices,he strongly recommended that the punishment of death for felony to the amountof five shillings should not be abolished and so late as 1830, Lord Tenterdenstrongly opposed the abolishment of capital punishment for the offence offorgery. Mr. Paul then proceeded to read Sir A. Cock-burnss remarks in thecase of Wason v. Waller (1868) 4 Q. B, 73 : 8 B. and Section 671 : XXXVIIIL.J.J. B 34 : 19 L.T. 109 : 17 W.B. 169 already cited by Mr. Kennedy.

148. In modern days Judges do not go on the acts of theirpredecessors, they do not deliver judgments in such and such a manner, becauseothers have been of a similar character (here Mr. Paul cited several cases ofoverruling). The law as it is written is adamantine and immovable, but theunwritten law is so elastic that it adapts itself to the present time andjudgment can, therefore, be guided by proper discretion. If a dissent ofopinion be contempt, then it is impossible to know what is nob contempt, andone is at a loss to discover what and where the bounds of contempt exist. TheEarl of Macclesfield was fined 3,000 and because the King dissented from theopinion of the House of Lords, he ordered the fine to be paid from the PrivyPurse. Suppose a case of a man who had been fined, and that fine were to bepaid off by any one in Court, is this a case of contempt There is the case ofthe Corporation of Yarmouth, in Dunsford and Eaat, on which the present case isjudged. But surely that is carrying the law too far. When a man expresses hisopinion that a verdict is wrong, or declares it to be so, it does not followthat he says it is infamously so or that he even thinks so. In the present casethere has been no obstruction of justice, and he was at a loss to conceive howit could be construed into a contempt of Court except by a process of harshreasoning. There are wrong verdicts every day. In times past perhaps Jurieswere more subservient to the Judges, and perhaps that was the reason there areso few cases on record of reversal of sentences, but that does not say thatthey were not unjust. Provided that they are deserved, animadversions on wrongjudgments or on any public acts of any public men were of benefit to themselvesand useful to the general community. If there were no liberty of the Press,then a Justice could say whatever he liked or pleased.

149. Even if their Lordships considered that Captain Fenwiokcught to be punished, even then they would surely acquit him of any endeavourto sap the administration of justice. But it was submitted that the presentcase was one for a Jury who were uninterested.

150. (Court adjourned.) Upon the re-assembling of the Courtafter a short adjournment for tiffin, Mr. Paul resumed his argument. He saidthat in the judgment of Mr. Justice Buller, that learned Judge seemed disposedto consider that all animadversions on the proceedings of Courts should beprevented, He (Mr. Paul) submitted that an opinion pronounced adverse to thejudgment of a Judge and Jury us perfectly justifiable if not of a calumniousnature.

151. [Macpherson, J.--Surely that is not disputed.]

152. Mr. Paul said that was the decision of Mr. JusticeBailer in the case he had referred to. He (Mr. Paul) would only say that he wasone of those who, when occasion required, expressed himself strongly in caseswhere he felt strongly. There had been cases of Judges of the High Courtexpressing themselves in strong language. Mr. Paul submitted that if an articlewas written and published bona fide, the reasons ought not to be tested by thesevrest logic, for if so, the Government of the world would rest in the handsof two or three parsons. If that were so his Lordship the Chief Justicesdecisions could be never assailed, if the reasons of anything which was allegedagainst them were to be put to the severe test of logic. Mr. Paul then quotedthe case of Hurra Chunder Roy Chowdry v. Shooro-dhonee Debia 9 W.R. 408 : B,L.R. Sup. 985 where the present Chief Justice had made use of strong languagein expressing his opinion, and had said that to come to the conclusion come toby the majority of the Judges in that case would bring discredit upon the lawand upon the administration of justice. Mr. Paul continued and contended thatin cases of this kind it was nesessary that not only the words but their intentshould be calumnious before it could be made an offence. Mr. Paul maintainedthat these articles did not come wthin the meaning of the word contempt, as thejudgment of the Court in the case referred to was gone and final. He would nowproceed to interpret the law with regard to the liberties of the press. It wasa noble example that Lord Brougham showed when in trying a question relating tothe privilege of members of the House of Commons, he did not hesitate to castaside certain decided cases, when it behoved him to do so. He (Mr. Paul) askedtheir Lordships to do the same. Mr. Paul also read some passages from Mill onLiberty defining the right of criticism of public men.

153. He then summed up this portion of his argument bysubmitting that he was right in stating that with the exception of two Colonialcases, one of which was Crawfords case (1849) 13 Q.B. 613 : 18 L.J.Q.B. 225 :13 Jur. 955 : 116 E.R. 1397 : 78 R.R. 479, in which the details led him tobelieve that although the Court was not sitting, yet the proceedings were stillpending, for in that case Mr. Justice Earle said that it was quite possible toooneeive cases of contempt calculated to paralyse justice and, therefore, theCourt would vindicate its administration, and that it was for the Court in eaohcase to decide whether it amounted to that. If the suit had been terminatedthese observations would not have been applicable.

154. Sir Samuel Hornilly, a great man and one who had donevery much for the good of the country, and who was a great authority, gives anaccount of certain prooeedings before Lord Erskine. They are stated in 6 LordCampbells Lives of the Chancellors, page 565. He states the facts andarguments in a case in which he had endeavoured to persuade Lord Erskine toexercise this jurisdiction, but Lord Erakine had declined to commit. Sir SamuelRomilly made some very harsh comments on Lord Erskines conduct but eventuallyhe had himself retracted his arguments, and said he believed that a contempt ofthis kind ought to be prosecuted as a libel. And in McDermotts case (1866) 1P.C. 260 : 4 Moor. P.C. 110 : 17 W.R. 352 : 16 E.R. 258, the facts were openwhen leave to appeal was applied for. Lord Westbury saw the necessity and gavethe leave to appeal, thus marking his disapprobation of the committal, andalthough subsequently that was rescinded, that proved nothing, because it wasmerely refused as there was no jurisdiction to entertain an appeal in the case.

155. In the case of Wallace, In re (1866) I.P. 283 : 4 MooreP.C. 140 : 36 L.J.P.C. 9 : 15 W.R. 533 : 16 E.R. 269, gross charges were madeagainst the Chief Justice by letters sent to him, and before the proceedingswere terminated, and that of course came within the class of direct contempts,because the letters containing the insults were sent direct to the ChiefJustice.

156. Therefore, the case was narrowed down to the case inWilmot and a case which occurred in the Isle of Man, which shows that the powerwas doubtful and did not prove satisatisfactorily that a man could be punishedfor remarks made after the conclusion of the proceedings. The question seemedto be an open question, which, if properly considered, would show that no suchpower really did exist. The next subject was the mode of proceeding to beadopted, supposing this to be a case in which the Court still retains of theopinion that they have a right to punish. In order to show cases where thatpower clearly existed, Stockdale v. Hansard (1839) 9 Ad. Ell. 1 : 2 Starkic 204: 2 P. and D. 1 : 3 St. Tr. 723 : 8 L.J.Q.B. 294 : 3 Jur. 905 : 112 E.R. 1112 :48 R.R. 326 shows the general opinion that such cases ought to go before animpartial Jury. Then as regards Birch v. Walsh (1846) 10 Ir. Eq. 93 no grossercase could be conceived than this, and yet tha, Court thought that the safetyof its honour was not impeached, and that the futile attempts would but recoilon the authors. Letters Patent, 1865, Section 3C, is already before the Court,and here if the offence does not come under the second exception, then it isplainly defamatory and consequently triable under the Penal Code la LongWellesleys case (1831) 2 Russ. and M. 639 : 39 E.R. 538 : 34 R.B. 159 LordBrougham considers that the proceedings for contempt are criminal proceedings.

157. Here in the present case was no specific charge.

158. [The Chief Justice.--The charge is for publishing thoseletters and notices which are in themselves contempts of Court.]

159. Yes, but there is no specific charge.

160. [The Chief Justice.--Then how would it be in the caseof an indictment which would only say: "That on a certain day he didpublish and set forth certain articles"]

161. Then, my Lord, there would be an innuendo.

162. [The Chief Justice.--If you are ignorant as to what Icomplain of I will tell you.]

163. In the case of indictment there would be a ProsecutingCounsel.

164. [The Chief Justice.--But if there were none]

165. Then the defendant should be told.

166. [The Chief Justice.--The substance of the letters andthe advertisement was to get up a demonstration to teach the Chief Justice alesson, and the article stated that the Chief Justice would raise a storm whichhe would not find it easy to quell. Those were the letters which formed thecontempt. Do you wish an adjournment, Mr. Paul, to consider the charges as nowexplained]

167. No, my Lord, but I submit that my client is prejudicedin not knowing the precise charge brought against him, and which he is expectedto meet.

168. Mr. Paul went on to state that the course adopted bythe Court had prejudiced his client, and was a course which ought not to beresorted to except where it was imperatively necessary. There was a deanitepunish, merit provided for defamation in the Penal Code, and a definite way oftrial provided for such cases. It was never intended that offences of thisdescription should be dealt with in a summary manner. Mr. Paul then referred tothe jurisdiction of the Sudder Court in cases of contempt, the punishment forwhich could not exceed a fine of Rs. 200, or a months imprisonment where thefine was not paid. In America, it was stated in Kents Commeiitiries, Vol. I,page 321, that the Courts could only summarily punish in those cases where thecontempt was committed in the face of the Court, or was such as to obstruct thecourse of justice. This Court was precluded from punishing except by the PenalCode, and the Penal Code can only punish such offences as come under thesections in that Code, The question was whether what was printed as bona fidecriticism might be a better kind of opinion but not necessarily more bona fidethan the mere expression of opinion. The well-known case of a Judge in theColonies who was told to give his opinions but not his reasons for those opinionsis a matter of history.

169. On the 13th April a warrant was issued, and Mr. Taylerappeared in answer and admitted the authorship of those letters. In commentingon Mr. Taylers case 44 Ind. Cas. 930 [LQ/CalHC/1869/1] : 26 C.L.J. 345 : 19 Cri.L.J. 402 hisaudacity and his carelessness were certainly indefensible. The Chief Justice,therefore, brought a strong artillery of argument to bear against him. On theother hand Mr. Tayler bad some reasons for complaining, although not sufficientto justify him, but still he felt mortified against Mr. Justice Milter. Yetthis did not warrant his careless way and the style in which those letters werewritten. Mr. Justice Mitter might have retracted what he had said as to Mr.Tayler being directly guilty of fraud, a statement which there was not a tittleof eviderce to prove so far as it meant personal fraud. Therefore, Mr. Taylerhad a grievance which might have been some extenuation of his conduct and havemitigated his offence and on those grounds his sentence might have been lesssevere, yet not one observation, not one remark, appeared in the long andcarefully considered judgment pronounced upon him, to show that there was asingle point in his favour. It did not say that he was galled or that hesubmitted at once--which he did without complaining of his arrest. Hissubmission and his apology might have baen sufficient and could have beenaccapted. In the outside world his wrong was supposed to be true. Yet the ChiefJustice went to work with all the zeal and labour for which his judgments areconspicuous to turn evary point against Mr. Tayler. It would be no complimentwere one to say that the Chief Justice had been careful in preparing hisjudgment. Yet that judgment shows in no way that Mr. Tayler was suffering underirritation which might have given him some cause for his conduct. Mr. Paul thenproceeded to refer to the 3rd occasion when Mr. Tayler was brought up, when hepresented a petition and made a further apology.

170. [Macpherson, J.--The fact of his making an apology didnot entitle him to his discharge as a matter of right.

171. Mr. Paul said that it was a matter of expectation thatif he did apologise he would not be subjected to any farther punishment. In thecase in which Mr. Piffard and Captain Francis were tried for contempt of Court,the Court wai satisfied with an apology expressing sorrow for what had occurredin lien of all punishment.

172. [Macpherson, J.--All I meant is that a man cannot claimimmunity from punishment from the fact of having made an apology for hisoffences.]

173. The Chief Justice.--Suppose a man were to knock anotherperson down in the street, and on being arrested, make an apology. Would he beentitled to consider that sufficient amends]

174. Mr. Paul said that in Van Sandaus case (1846) 1 Ph.605 : 4,1 E.R. 763, which was a very gross one, a simple apology was held to besufficient and quoted Sir George Rowes remarks in that case, wherein he saidhe would be unwilling to inflict punishment if he could find a singleexpression of regret. Mr. Paul said that he considered Mr. Taylers firstapology to have been a sufficient one, and that when he expressed his sorrow,that implied all retractations and he did not think it was necessary for him toretract everything, and say in so many words that what he had said was falseThat apology appeared to him (Mr. Paul) to have been a sufficient and ample oneand this formed one of the grounds for the writing of the letter ofBystander", Which had been referred to. When it was pointed out to Mr. Taylerthat his apology contained no retractation, he made the only retractation hecould. Under the circumstances, nothing had been said to Mr. Tayler but thathis letters were a contempt, and his apology was therefore a general one. Hewas not told of any particular contempt in any of the letters and when hebegged to be allowed to retract everything which the Court considered to be acontempt, he (Mr. Paul) considered that to be quite sufficient. Another factwas that his. Lordship in his judgment on Mr. Tayler did not mention one wordof his published apology, but after passing his sentence he said somethingabout it. It might very naturally have happened that in a long and elaboratejudgment like that, his Lordship might have forgotten to mention it, but outsidepeople bad criticised the omission: and it had been mentioned that although thepublished apology was one which emanated from the suggestion of the ChiefJustice, yet that his Lordship had not once mentioned it in his judgment nortaken it into consideration in mitigation of punishment.

175. [The Chief Justice said that after the delivery of hisjudgment he told Mr. Tayler that if he made certain additions to his apologywhich had been already published, his punishment would be mitigated.]

176. Mr. Paul said that the apology which Mr. Tayler hadbeen required to make was a most abject one, and he was surprised that thatgentleman did not Consider his reputation to be worth more than a monthsimprisonment.

177. [The Chief Justice.--I do not consider the apology wasan abject one.]

178. Mr. Paul said that it appeared to him the apology was amost abject one, as Mr. Tayler stated that what he said was unwarranted andwholly without fundation, He (Mr. Paul) would have suffered six monthsimprisonment, no matter how much in the wrong he might have been, rather thanmake such an apology as that. However much sympathy Mr. Tayler might have hadat first, he bad since altogether lost it by such conduct. He did not blame hisLordship for demanding the apology, as it seemed to have been fixed in his mindthat such an apology was necessary. Mr. Paul mentioned the fact that Mr.Taylers final apology was not to be received till a week after the judgmenthad been pronounced, so that it was seen that his Lordship had fully made uphis mind, no matter what apology was given, to sentence Mr. Tayler to a fine ofRs. 500 and a weeks imprisonment. He only referred to this in order to show areason for the misunderstanding which had arisen. As regards the law of the caseof Wellesley v. Duke of Beaufort 1831 2 Russ. and M. 639 : 39 E.R. 538 : 34R.B. 159 that was a case in which upon only an apology being made the order wasdischarged, which shows that an apology is sufficient sometimes. And further,the Chief Justice expressed no opinion that the affidavit, or rather theapology to the affidavit, was an aggravation of the offence, until he deliveredhis judgment, yet that affidavit was before him.

179. [The Chief Justice.--I was not advising Mr. Tayler.]

180. No, my Lord, but you gave the impression that if theaffidavit was rectified and the apology published, Mr. Tayler would bedischarged.

181. He then continued.--There was nothing in the characterof the Chief Justice to induce the editor to caluminate and attack him. In facthe only said that in case he carried his dictum too far he would raise a storm.There is surely no contempt in that. The only dictum was that the printer andpublisher would be proceeded against; naturally the editor took offence atthis. This did not refer to anything the Pioneer had said. The Pioneercontained no dictum. It was the Friend of India that contained the dictum whichthe editor thought was going too far. Since the Court has signified itsdisapprobation, the newspaper has been silent on the subject and in no wayendeavoured to prejudice proceedings.

182. [Macpherson, J.--The article of the 26th April statesor at least imputes that the Chief Justice acted wrongfully and attacked andturned everything against Mr. Tayler that he possibly could, and then protestsagainst the cruelty (not the severity) of the sentence. There is a vastdifference between cruelty and severity. The poetry must be taken as part ofthe article.]

183. Mr. Paul said that this was merely an expression ofwhat the public opinion was. Surely an editor is not responsible for an opinionthat prevails or for expressing it; The Friend of India had done the samething. He himself thought that Mr. Tayler would have been discharged. In factfrom what the Chief Justice had said on Tuesday, he (Mr. Paul) did not attendon Saturday although he was watching the case for Mr. Tayler--for in fact hethought that nothing further would be done. Many people thought that the publicapology was not fairly treated and, therefore, they thought the sentence acruel one. Exception should not be taken at that one word "cruel"here, which merely meant harsh, and nothing more. The editor had never had awish to impute malice to the Chief Justice, or he would not have paid the tributehe did to the Chief Jastices talents, etc., which he did in the lines directlyprecading the word cruel." Surely the Chief Justice was a little toosensitive. There was not one misstatement, not one hostile criticism even, andoonld that article be called mala fide It was difficult to convince a Judgewho himself had to put what oonstruotion he pleased on the sentences he foundoffensive and to judge, of their meaning himself. Did the Chief Justice thinkthat a Judge who thought he had done right should not be told he had delivereda cruel judgment (meaning a harsh judgment) if that judgment had beenunnecessarily severe After all the Chief Justice did go unnecessarily into thepast life of Mr. Tayler and the hearers upon that thought the judgment cruel.

184. The Chief Justice.--The object of that jndgment was tojustify the Court and not to attack Mr. Tayler.]

185. Mr. Paul here mentioned the very strong remarks whichhad been made on Mr. Justice Shee and the Jury who had tried Toomer when almostevery newspaper in England denounced both the verdict and the sentence. Hecontinued: Mr. Tayler had a grievance and in consequence of that he did veryunwisely insult Mr. Justice Mitter. The Chief Justices high and exaltedposition prevents him from seeing disappointed suitors, and from witnessingwhat such men feel. Mr. Tayler knew that he was not in the country when thefraud was committed so that at the most he could only be accounted guilty of aconstructive fraud, not of any moral fraud. Had Mr. Justice Mitter said thatthe fraud was perpetrated by Mr. Taylers agent all would have been well, buthe did not do so.

186. Mr. Paul then proceeded to comment upon the judgment,showing that Mr. Tayler really had been aggrieved. The Chief Justice in hisjudgment in the case of Zuhooroonissa against Mr. Tayler said that it wasunnecessary to consider the question whether there had been any fraud orconcealment. To this jndgment the Honble Mr. Justice Mitter said, "Ientirely concur," and when the Chief Justice said that it was unnecessaryto enter into the question, Mr. Justice Mitter held that it was not necessaryto decide, for that was part of the Chief Justices judgment, and then he wenton and found that Mr. Tayler had been guilty of both fraud and concealment. Therewas no evidence before the Court in that case to justify Mr. Justice Mitter insaying that Mr. Tayler had committed fraud. All that could by any means havebeen said upon the evidence was that a fraud had been constructively committedon behalf of Mr. Tayler, but not by him, because all the transactions withAhmedoollah were conducted by Enaynt Hossein, who was acting as agent for bothparties.

187. The Court then adjourned to the following day.

188. Mr. Paul in resuming his argument the next morning saidthat when the Court rose the day before he was still on the subject of thearticle of the 26th April, with reference to that part of it which stated thatevery possible point had been turned against the accused. He (Mr. Paul) hadalso endeavoured to show that Mr. Tayler had good grounds for complaint againstthe decision of Mr. Justice Dwarkanath Mitter, and concluded by showing thatalthough the Chief Justice had declared it to be unnecessary to decide whetherthere had been any fraud or concealment on the part of Mr. Tayler, Mr. JusticeDwarkanath. Mitter, after declaring his concurrence in the jndgment of theChief Justice, went further, and expressed what he (Mr. Paul] could not helpthinking was a dissent from the judgment of the Chief Justice, that it wasunnecessary to decide that fraud had been committed. Mr. Justice Mittersjudgment was as follows: "I entirely concur. 1 feel no hesitation inholding that the plaintiff is entitled to recover both upon the ground that shehas paid a debt due from Mr. Tayler to Ranee Usmedh Koer when she was under noobligation to pay it, as also upon the ground that a fraud has been perpetratedagainst her by Mr. Tayler in concealing from her the fact that the estate soldby him to her was under attach-ment in execution of a decree of Court. I shouldhave been extremely sorry if the state of the law were otherwise" As tothe duty of the Judges, he (Mr. Paul) must refer to the Bench as it must knowbetter what its duties were than any of the outside world, but it struck himthat it behoved Judges to be particularly care-f ul in the expressions used intheir judgments, that the ordinary meaning was to be given to the words used.If a Junior Judge thought that the jndgment of his senior required to be madestronger by further remarks, it was his duty to make them and to give hisreason for doing so. But in this case no reason was given as to why, when theChief Justice had declared it was unnecessary to go into the question ofwhether there had been fraud or not, the Junior Judge should have considered itto be his imperative duty to come to a finding directly opposite, withoutassigning any reason. He (Mr. Paul) would assume, as indeed the judgmentshowed, that the bargain for the sale of the estate was altogether carried onbetween Enaynt Hossein and Ahmedoollah and that Bnaynt Hossein acted in thematter as the agent of both parties. Enayut Hossein stated that Ahmedoollahknew of the attachment, and that he had told him of it. Mr. Tayler was at adistance at the time and took no part in the proceedings, and how therefore washe to know that Enaynt Hossein, who was acting as agent for both parties, hadkept concealed a fact, which was in his knowledge, from his other principalJustice Dwarkanath Mitter did not say in his jndgment that the agent of Mr.Tayler had committed fraud, and that Mr. Tayler was constructively responsiblefor the acts of his agent, but he said that Mr. Tayler had committed a fraudhimself, and he (Mr. Paul) contended that that conclusion was arrived atwithout there being a tittle of evidence to support it. Mr. Tayler never tookany part in the contract with Ahmedoollah from beginning to end, but left itall to his agent, and an amount of moral obloquy had been thrown upon him whichthere was not a tittle of evidence to support. The Chief Justice in hisjudgment had expressed his disbelief in the evidence of Enayut Hossein and hisbelief in that of Ahmedoollah, not from the fact that the evidence of one waspreferable to the other by reason of character, but from a chain ofcircumstances. His Lordship had shown in his judgment that if Enayut Hosseinwas to be believed, there would have been something done which had not beendone. He would ask his Lordship to bear in mind these facts. The judgment on theoriginal case was tantamount--perhaps not to a direct charge of perjury againstEnayut Hossein, but sufficiently so for Mr. Tayler to hold and express theopinion that the Court had considered he had been guilty of perjury. He wouldnow refer to Mr. Taylors petition for a review of judgment. In that petitionMr. Tayler said as follows: "All your petitioner now desires to do is toinform the Court that the statement put in and the evidence given by EnayutHossein and his creatu es are totally false". This was a statement of factand was nothing more than what the Court had already decided in its judgment.Mr. Taylers petition went on--and was made and given without the approval,concurrence or knowledge of your petitioner, and in direct opposition to theinstructions given by your petitioner to Enayut Hossein before his departurefrom India". Mr. Tayler said that the fabric of the defence set np byEnayut H ossein was directly contrary to the instructions he gave him beforeleaving for India. Mr. Tayler never disputed nor wished to dispute hisliability for the money and when the action was brought against him, thedefence set np by his agent was directly contrary to the written instructionswhich he had left behind him. Mr. Tayler, as far as he was aggrieved, wassatisfied by the statement that the Chief Justice had not made any imputationof moral fraud against him, and he accordingly bowed to the judgment. The Courtallowed the proceedings for review of judgment to go on and Mr. Tayler fullybelieved that some justice would be done him in that way. He had put in apetition which he had verified by affidavit, praying that the words used in thejudgment of the Honble Mr. Justice Dwarkanath Mitter might be ip some wayretracted or modified. This might have been done without detracting from thegravity of the judgment in any way. The course of justice did not require thatthe words should be repeated and though the Court was right when it said thatit could not go on to a review of judgment in a case where the party applyingto the Court did not express himself aggrieved at the decree, the Court mighthave done something for the reputation of Mr. Tayler by retracting or modifyingthe remarks which had been made against him. That might be done by stating thatthe fraud imputed to Mr. Tayler was fraud committed by Mr. Taylers agent inhis absence. In the judgment of Messrs. Norman and Loch, in the Ticaree case,words which were used in the judgment were afterwards modified, and the samemight very well have been done in this case. Mr. Tayler could not be consideredto be an active party to the perpetration of the fraud as he was absent inEngland at the time, and when the negotiations were going on with Ahmedoollah,Mr. Tayler was only constructively negotiating with him through his agentEnaynt Hossein and not actively. Mr. Paul then submitted that in order tocorrect what was found to be an error in a judgment it was not necessary thatthere should be a reivew of judgment, and the Court, in the case of an error ina judgment which was admitted in itself to be a correct judgment, had power torectify the error, by retracting or Modifying, the expression to whichexception had been taken. If a date in judgment was found to be wrong or thenames of parties were declared wrongly or a genealogical tree was not properlyplaced in the judgment, it would not be necessary to apply for a review ofjudgment in order to correct them. His Lordship the Chief Justice in refusingthe application for a review of judgment said: "it appears to me thatthere is no ground for reviewing the judgment. I have read very carefully thejudgment which I delivered in this case, and see nothing in it which I canretract. I did retiiiark upon the judgment of the Subordinate Judge, butabstained from expressing any opinion as to whether there was any fraudulentconcealment on the part of Mr. Tayler". In theeourae of Mr. JusticeMitters judgment on the same application, he said: I wish to add, however,that I should not be justified in withdrawing the remarks in question upon anex parte proceeding of this kind. Enaynt Hossein is not before the Court, andso far as the plaintiff is concerned she is in no way interested in opposingthis application, inasmuch as the petitioner is not seeking for anyinterference with the decree which had been passed in her favour. "If thiswere to be the case, it would be impossible for a person to obtain redress forinjuries of this kind, if the other person were out of the jurisdiction of theCourt or transported beyond the seas. Why was Mr. Justice Mitter so careful ofthe reputation of Enayut Hossein If these proceedings were ex parte there wereno grounds to affect Enayut Hosseins character; why should he reject thepetition Why should the Court express no opinion on evidence before it Nobodyasked Mr. Justice Mitter to hold Enaynt Hossein guilty of the serious offence.How could a prosecution have benefited Tayler when the Chief Justice hadalready stigmatised Enayut Hossain as guilty of a falsehood, and when EnayutHossein was at that very time undergoing a sentence of imprisonment for fraudsperpetrated against Mr. Tayler Why should he be put to these great expenses PSurely it would have been sufficient for Mr. Justice Mitter to have said thatduring Mr. Taylers absence this fraud was committed by his agent. It does notmatter whether Mr. Justice Mitter believed Kelly or not; it is sufficient thatKelly took the responsibility himself; he admitted that Mr. Tayler had had nohand in the frand; this was evidence prima facie. Many European gentlemen hadto rely on their agents for native contracts. It was very good advice of Mr.Justice Mitters that Mr. Kelly should have known what was in the statement,but that advice was impracticable. Mr. Tayler was deeply aggrieved. The reasonsof Mr. Justice Mitter were not satisfactory; if it was intended to charge Mr.Tayler with personal fraud, there was not a tittleof evidence to support theaccusation. Had he put his grievance in a short, clear, logical way he mighthave cleared his character; but he went into the hyperboles censured by theChief Justice. Mr. Tayler was more sensitive on account of the Chief Justicesobservations. The Chief Justice had delivered the judgment from an attackingpoint of view. He felt that a colleague had been attacked. Here is a proof ofthe evil of the prosecutor being the Judge. The Chief Justice considered Mr.Taylers insolence and the insult offered to Mr. Justice Mitter, but he forgotMr. Taylers grievance. Mr. Tayler, being a man of some historic reputation,perhaps an unfortunate man, but a man of some accomplishments, though from thetime he took to being Vakil, he acred very unfortunately, felt deeply theattack on his character, having descended from his high position; there was,therefore, some extenuation for his offence, not perhaps sufficient to stop theChief Justices judgment, but sufficient to mitigate the blame and lessen hisdegradation.

189. Mr. Paul then turned to the subject of the opinionwhich had been formed as to the severity of his Lordships sentence, and wenton to say that he submitted, with all due respect for Mr. Justice Mitter, andto the Court, that in his view the reasons which had been given for the viewwhich had been expressed of Mr. Taylers conduct by Mr Justice Mitter were notcorrect, and that gentleman had every right and reason to complain of havingbeen adjudged guilty of fraud without any evidence to support that view, and healso had a right to complain that when he presented his petition for a reviewof judgment, the Judge refused to retract or modify one single word which hehad used. All these circumstances might be urged in extenuation of the conductof Mr. Tayler. Mr. Tayler had committed a very foolish act, doubtless, inappealing to the papers, but the Court must look to the provocation he hadreceived. There was no doubt that Mr. Tayler had a grievance, and if he hadproceeded to vindicate his character in a proper way, it was not impossible tosay that public sympathy might not have gone with him.

190. With regard to the second point of the same subject,the allegation that the Chief Justice had turned every point that could beturned against Mr. Tayler with great severity and bitterness, Mr. Paulproceeded to justify these remarks. With regard to the judgment itself if theChief Justice thinks that the two cases of the Ranee of Tekaree and ofZuhooroonissa had such connection as to make it proper to introduce the pointinto his judgment respecting the maid, there is some reason, forCuriosity" in his letter deeming them to be connected cases.

191. As to the observation made by your Lordship on thestatement in the 1st letter and the petition of review and Mr. Taylers oralexplanation, I cannot help thinking your Lordship has misapprehended Mr.Taylers meaning. I believe Mr. Tayler meant to say that if Mr. Justice Mitterhad based his judgment on the bypotheti-cal case of fraud he would have hadnothing to say, and not that if the Chief Justice had agreed with Mr. JusticeMitter then he would have had no ground of complaint. The plea as to whetherthere was a fraud is one thing, that Mr. Tayler was the author of it, is quiteanother. Mr. Tayler did not attack at all the judgment of Judges Norman andLoch. I think the attribution of degraded cowardice conveyed by your Lordshipwas not founded on the facts of the case. Tayler had no ground of complaintagainst your Lordship, and that was the reason he did not attack you it was notbecause your position rendered you unassailable.

192. [Macpherson, J.--Why are you arguing on Mr. Taylerscase Is it with the view of showing that the article in the Englishman of the26th April is correct in facts.]

193. Yes, my Lord.

194. [Macpherson J.--That the judgment of the Chief Justicewas a vindictive judgment.]

195. No, not with that view, but that it was anunnecessarily severe judgment.

196. [Macpherson, J.--The imputation in the article is thatthe sentence was a vindictive one. The wording of the paragraph is not that thesentence was severe, but that it was cruel.]

197. [The Chief Justice said that the word "cruel"imputed a wish to cause pain.]

198. That, I submit, is not the meaning which the word isintended to convey.

199. [The Chief Justice.--If the remark was merely, that thejudgment was a severe one, it would be no contempt. That would only be faircriticism.]

200. Mr. Paul said that he was placed in a very peculiarposition. There was not the slighest intention to cast an imputation on hisLordship, but the whole case had turned on a misunderstanding which hadunfortunately arisen. Where the word cruel was used, it only meant to expressharshness and severity and nothing more.

201. [The Chief Justice.--The article says that I knew ofMr. Taylers bad state of health. That I did not know; all that I did know wasthat he was suffering from gout, and as I had shortly before that seen him insociety and knew that he was able to make a journey to Pa.tna, I did not knowhe was suffering from anything else than a simple attack of gout. I knewnothing of what was stated in the medical certificate until after the judgmenthad been delivered.]

202. Your Lordship comes to the conclusion that this articleis intended to charge you with cruelty.

203. [The Chief Justice.--If the word only means severe 1 donot complain.].

204. Mr. Paul said that the word "cruel" in thearticles must be taken in connection with the words which followed it. In onepart of the article the sentence is called a cruel one, in the next paragraphthe words "the harshness of the sentence" occur, and a little lowerdown there are the words "cruel severity". Captain Fen-wick neverintended that the word "cruel" should be used in the bad sense whichhad been imputed to the words and he said so now publicly through him (Mr.Paul). He hoped the Court would not construe the word cruel in that badsense.

205. Macpherson, J.--That is the ordinary meaning of theword.]

206. [The Chief Justice.--The meaning of the word cruel is apleasure to inflict pain.]

207. How could it be imputed that your Lordship would takepleasure in inflicting punishment.

208. [Macpherson, J.--The question is whether that was notimputed.]

209. I submit it was not, All that it was meant to expresswas that tha sentence was a severe one--a very severe one.

210. [Macpheeson, J.--There could be no objection to havingit said that the sentence passed was a very severe one.

211. [The Chief Justice.--If it is tsaid that the word wasnot intended to be used in any bad sense, I am willing to accept thatstatement.]

212. I now state on behalf of Captain Fenweik that the wordwas not intended to be so construed.

213. [The Chief Justice.--I am ready to hear the rest ofyour argument, and will accept Captain Fenwieks statement. If the charge hadbeen only that my sentence was a severe one, none of these proceedings wouldhave been taken.]

214. Your Lordships mind was so imbued with indignationthat the other matters did not strike you. If it were not the intention ofCaptain Fenwiok to say that you were guilty of deliberate cruelty, you will besatisfied then I think I can prove that the use of the word all through thearticles would be inconsistent with such an intention. He does not call youcruel, which might have the sense imputed, but calls the sentence cruel whenthe word could only mean, at the most, extremely harsh and severe.

215. To go on with Mr. Taylers case. No charge was made,merely an inference. I dont think the charge is fair that he attempted to putaside former judgments, because it does not arise out of the case, and thatafter Messrs. Norman and Loch had acquitted him; but to add a sting you urgethat the affidavit was irregularly taken. Surely that did not fairly arise.That was very severe and should not have been adverted to. I hope I do not giveoffence, but I must express my opinion.

216. [The Chief Justice.--I do not look upon anything yousay as an offence. I give you full liberty and I hope you will not restrictyourself from the fear of offending.]

217. Mr. Paul then resumed and again ran over the argumentsas to the Chief Justices judgment having been very severe. In that judgmentMr. Tayler was identified with all the acts of Enayut Hossein: he was activelyguilty of fraud and taunted with having tried a new way to pay old debts,though he was absent from the country at the time and denied all knowledge ofthe matter. He said that no one had ever yet come into Court without one scrapof any thing, without one scintilla of extenuation in his favour. Yet noneappeared in the judgment, and on those grounds it was very severe. The ChiefJustice had no right to go back into Mr. Taylers previous history which wasnot in this case. That was another reason why it was severe. The Chief Justiceknew Mr. Tayler was suffering from gout, which at his advanced age was veryvirulent, and that again made the judgment most severe or cruel in its leastoffensive sense. That word must be taken with the subsequent context, whichshows what the animus was, "We do not defend what Mr. Tayler wrote, but wedo protest," etc. If the editor did not defend Mr. Tayler he could notmean that the judgment was cruel in its worst sense.

218. [The Chief Justice.--If he meant that the object of theJudge was to give pain and not to administer justice, then I understand theword cruel.]

219. No, my Lord, Captain Fenwiok imputed no facts to showthere were private feelings.

220. [The Chief Justice.--What does "Now you rave ormust intend revenge" mean]

221. [Macpherson, J.--This would appear to be vindictive.]

222. In as much as the article professes to be bona fide theword "cruel" cannot bear that character.

223. [The Chief Justice.--Then why was the quotation alteredin one instance to suit Mr. Taylers case and not in the word"revenge."]

224. You see, my Lords, were this case before a Jury then wecould see how ordinary minds would construe the word. As to me I do not knowwhat it meant I would ask how many men would have known what it meant. I will,however, submit that no facts are mentioned from which malice could be imputed.When flattering enlogiums precede, why should such imputations of malice bemade. They are wholly inconsistent with such an imputation.

225. Mr. Paul then read the following paragraph from theChief Justices judgment: "I am an unflinching advocate of the liberty ofthe press. I believe that its freedom is one of the main bulwarks of the rightsof the people. I claim no exemption as regards my public acts from the mostrigid scrutiny and the most unsparing criticism. All I claim is that thereshall be no misrepresentation and no wilful or unfair concealment of facts; andthat those who deny infallibility, to the Judges shall not claim infallibilityfor themselves. I have had no cause to complain of the public press since Ihave been in this country. Speaking generally, I believe it to be fair,independent and impartial. There has not, I believe, been a single criminalprosecution against a news-papr since I have had the honour to hold the officeof Chief Justice, and there have been only one or two private actions forlibel. The press in this country ddresses itself for the most part to readersof education and intelligence, men who judge and form opinions for themselves.The press is fair, it is not scurrilous; the public are not captions; andpublic men do not object to have their public acts freely discussed and fairlycriticised. Oar Courts, therefore, are generally free from complaints againstthe press, either civil or criminal, on the ground of defamation".

226. He continued: Captain Fenwiok had not sinned in any wayagainst that statement. No false facts had been stated in the article in thenewspaper, and the only thing to be regretted was the use of an unfortunateword in it, to which a meaning had been given which it was never intended thatword should convey and which it did not and could not properly convey. It was avery gratifying circumstance that, throughout all these proceedings, hisLordships general opinion of the press was favourable and also, as would beseen from this very article, the general opinion of the press with regard tohis Lordship was also favourable. When the press, as his Lordship, said,addressed itself for the most part to readers of education and intelligence,men who judge and form opinions for themselves," it could not be said thathis Lordships reputation would suffer one iota from anything it might contain.He would mention that, since Captain Fenwiok had assumed charge of theEnglishman, a manifest change for the better had been observed in the conductof the paper. And the scurrility with which some people had charged it hadaltogether disappeared. It was unfortunate that Mr. Taylors wrongs should havebeen ventilated through the newspaper. Mr. Paul read other portions of the articleof the 26th, and contended that there was nothing which could be objected to.He submitted that if Captain Fenwiok was punished for contempt, that would notalter the opinion of the public as to the sentence on Mr. Tayler, but wouldonly serve to cause Captain Fenwiok to be considered a martyr in a cause ofpublic benefit.

227. The Chief Justice.--My object is not punishment but tovindicate the action taken by the Court. In showing these articles to be acontempt of Court, I do not mean that there is any moral delinquency on thepart of Captain Fenwiok, as I thought there was in Mr. Taylers case.]

228. Mr. Kennedy.--Under these circumstances, I dont thinkwe should be justified in further taking up the time of the Court.

229. The Chief Justice.--This is not an attack upon theliberty of the press. All I want to show is that, if anonymous letters are sentto the press containing false statements, the press is responsible for them ifthe name of the author is not given up.]

230. Mr. Kennedy--Tour Lordship has said that it is not yourintention to punish Captain Fenwiok.

231. [The Chief Justice.--No, not after what Mr. Paul hassaid. All I want is to explain my reasons for the course which has beenadopted.]

232. Mr Paul.--With regard to the word "ruse" inthe letter of Bystander"--

233. [The Chief Justice.--I dont think Captain Fenwiok wasthe author of that anonymous letter.]

234. Mr. Paul.--No, my Lord, he was not.

235. [The Chief Justice.--He has, however, taken theresponsibility upon himself, but the letter is written in a style which I donot think would come from Captain Fenwiok.

236. Captain Fenwiok very properly submitted to the Court,when the Court first expressed its opinion that receiving subscriptions was acontempt, by declining, to receive atiy more, and he has now very properlyexplained that the language which was supposed to cast imputations on themotives of the Chief Justice was not so intended. All I mean to contend is thatfalse statements published in newspapers are not fair criticisms. I have nointention of interfering with the right of appeal to the press, but no one hasa right of appeal to the press by bringing false accusations founded on wilfulmis-statements.

237. Mr. Kennedy.--As your Lordship had expressed yourintention not to punish, I have no right to take up the time of the Court anylonger.

238. [The Chief Justice.--I will hear you on the point as towhether the articles are contempts. If I had waited tc proceed by indictmentbefore proceedings were taken, all the mischief, which I wished to prevent,would have been done; and in Mr. Taylers case, he would have gone to Englandif instant and summary measures had not been taken, and would have left theprinter and publisher of the paper to be alone responsible.]

239. Mr. Paul asked whether their Lordships held that in anycase it would not be right to open a subscription for the purpose of obtaininga demonstration of public opinion.

240. [Macpherson, J.--That depends very much on the way inwhich it is done. It is just as easy to write pointedly without beingdefamatory. If, however, you wish to hear the decision of the Court you hadbetter resume your argument.]

241. [The Chief Justice.--And let everything which has beensaid be withdrawn.]

242. Mr. Paul.--As I understand, any further argument on thematter would be of no use. If the Court is satisfied that no imputations wereintended, I do not see the good of any further argument.

243. Mr. Kennedy.--I dont understand the Court to say thatin every case a demonstration, got up in order to obtain an expression ofpublic opinion, would be a contempt.

244. [The Chief Justice.--No.]

245. Mr. Kennedy.--Suppose in a case of an encroachment onthe liberty of a subject by a Judge, it could not be said that it would beunjustifiable, for those who thought their liberties had been encroached upon,to come forward and give a public expression of their opinion or to support itby subscription.

246. [The Chief Justice.--No; but I hold this to be acontempt as it contained a threat.]

247. Mr. Paul said there was nothing to be gained by goingon any further. He begged to thank the Court, on behalf of Mr. Kennedy andhimself for the patient hearing that had been given.

248. [This Chief Justice.--The Court would have beenprepared to decide that these articles are a contempt, but under all thecircumstances, and as all imputations of motives have been disclaimed, andCaptain Fenwiok having submitted to the Court when the Rule was issued, theRule will not be carried any further, but will be discharged.]

249. Macpherson, J.--I also, as far as the case has gone,was prepared to decide that the Court has power to proceed in this matter byway of contempt, and also that there have been two contempts of Court. Asregards the power of the Court to proceed by way of contempt, even when thecontempt is not committed in Court or during the pendency of a suit, that pointwas fully settled in the case of Mr. Piffard and Captain Francis (1863) 1 Hyde792 Celebrated Trials 1 which was tried before a Bench of eleven Judges. Inthat case Captain Francis, who was a stranger to the Court, was brought up forcontempt which consisted in delivering or attempting to deliver at a Judgeshouse a message relating to what had occurred in Court between a Judge and Mr.Piffard. In that case Mr. Bell argued that the Court had no power to deal withthe matter which took place out of Court, but out of the eleven Judges sitting,nine held that to proceed by way of contempt was a proper way of dealing withthe case. A decision of such a number of Judges quite settles, the question asfar as a Division Bench of two Judges is concerned. Mr. Piffards case wasquite "different, as he was an Advocate of the Court.

250. [The Chief Justice.--I may say that, in my opinion,Captain Fenwiok has adopted a very honourable and proper course in this matterby avowing himself to be responsible for the articles which have appeared, andthus taking the responsibility off the shoulders of the printer and publisherwho had nothing to do with it. It would have given me much pain if I had beenobliged to proceed against the printer and publisher. I also think that CaptainFenwiok has adopted a very proper course in having, through Mr. Paul, withdrawnall imputations of improper motives on the part of the Chief Justice, and inhaving explained that the word "cruelly" was not intended in any badsense, but merely as meaning severity. Captain Fenwiok not having any suchintention, although the word was susceptible of bearing such a meaning, hasdone himself honour by expressing that he had no such intention. I repeat thatthe only object I had in taking summary measures against Mr. Tayler, was thathe was about to leave for England, and if he had been allowed to go awsy, the printerand publisher of the paper would have been left responsible for his letters. Ihave already stated that I am an unflinching Advocate for the liberty of thePresp, and I repeat what I said before, that I do not claim for myself anyimmunity from unspairing criticism for any of my public acts, but all I claimis that there shall be no wilful misrepresentation or concealment of factswhich the person criticising knows to be altogether unfounded. It appears to methat the public Press as well as the Judges of the Court are all instrumentsfor the public good, and, in my opinion, the more public men are submitted topublic criticism the better for the public, provided that the criticismcontains no misrepresentations of facts or undue concealment. With thisexplanation, I order the Rule to be discharged.

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In Re: Banks and Fenwiok(05.05.1869 - CALHC)