The Lord Chief Justice then proceeded to sum up the case to the jury. Gentlemen, he said, the case divides itself into two distinct subjects, to be looked at with reference to different principles and considerations, and therefore essentially distinct. The plaintiff complains, first, that in a series of communications professing to be reports of what passed at the court in Brussels, at a trial in which he was charged with forgery and murder, an unfair and prejudicial report has been published; and, secondly, that after the trial had ended in his acquittal the defendants, in an article commenting upon the trial and the reports, published a repetition of the charge. Now, take the two parts of the case in the order in which I have stated them, and, first, as to the reports. I am glad that all are agreed as to what is the law, and that, whatever may have been thought in past times, now-a-days, at all events, we are all agreed that a fair and impartial report of the proceedings of a court of justice, although, as incidental to them, it may embody matter defamatory to an individual, is, nevertheless, privileged and protected, the public interest and advantage in having the reports published preponderating so much over the inconvenience to individuals as to justify the sacrifice of private inconvenience to the public good. But the condition upon which alone the privilege can be maintained is that the report shall be fair, truthful, honest, and impartial. It need not be a report of every thing, nor of all the proceedings of a long trial; the report may be long, or it may be more condensed, but still you must have an honest and impartial and substantially fair account, or there is no privilege for the publication of defamatory matter. Of course, if there is no defamatory matter, there is no occasion for privilege. But if the reporter adds facts or statements of his own, which are defamatory, then he cannot claim the benefit of the privilege. Whether the trial of a British subject by a foreign tribunal is within the privilege is a question which has not been raised to-day. But the proposition is not contested that unless the reports are fair they are not privileged. Having thus told you what is the law, I ask your attention to the series of letters or reports, with the view of your forming your judgment as to whether they come within the privilege. Gentlemen, they are certainly in a different style from what we are accustomed to in the reports of our English courts. The style has been described as “sensational "--perhaps it might be called a foreign style. There is a tendency abroad to dramatize every thing, and this is in that style. It may be attractive, but it is dangerous to pass from facts to fancy. The report, which ought to be truthful, is apt to become fanciful and fantastic. And if the reporter draws upon his fancy, and has particular views upon the subject, he may unconsciously convey that impression in place of the real facts. I hope, therefore, that we shall in our courts continue to adhere to the simple, truthful mode of reporting. But it is not because you may think this sensational style is in bad taste that therefore you are to allow any feeling of that sort to weigh with you in considering the limit of the privilege. The Lord Chief Justice then went through the various matters complained of in the report. As to the first, a statement which was a little ambiguous, as to whether it was taken from the acte d'accusation or was the reporter's own statement, his Lordship said he thought, on the whole, that it was meant as taken from the acte d'accusation. Alluding to the passage in which it was stated that one half of the personal testimony was in favour of Risk Allah, but that some people seemed to think he looked a cross between the serpent and the tiger, his Lordship observed that remarks of that sort could not be justifiable in a report, but that mere matters of personal description were not

of much importance one way or another. Then came what the writer called a "damaging story," as told by a particular witness, as to which the Lord Chief Justice said the witness certainly did so state, and it was " damaging," so that this did not seem to be justly matter of complaint. But it was questionable whether the writer had a right to add that the witness was reticent," so as to convey the idea that he rather understated the case. He would now come, however, he said, to more important matters. There was a passage insinuating by means of an allusion to a passage in Shakespeare, that Risk Allah was a villain. The jury would judge how far that was consistent with the fair privilege of a report, and whether it was not going far beyond the function of a reporter to state that the person accused was a " villain." Adverting to another passage in which the writer spoke of Risk Allah's beard whitening, the Lord Chief Justice observed that if this was meant as mere matter of dramatic description it did not much matter; but if it meant to convey that the evidence was pressing upon the accused, and that he felt it oppressing him, then it went far beyond the proper function of a reporter to make observations of that kind, which were most prejudicial to the accused. Then, as to the important evidence of the "experts," the Lord Chief Justice entered fully into the effect of the statement in the report, which he said was entirely erroneous, and conveyed an impression quite the contrary of the truth, for the real fact was that the majority of the "experts" were from the first in favour of the theory of suicide, and not only never retracted that opinion, but adhered to it; and, indeed, one of them went so far as to assert his positive belief and certainty that it was a case of suicide. Moreover, the Lord Chief Justice remarked that it was manifest from the discrepancy between the statement in the letter and the actual fact as to the day on which the "experts" were examined that the writer was not in court at all. Referring to the report in the Echo du Parlement, and reading this part of it at length, the Lord Chief Justice showed that the writer could not have been in court, and that his statement as to the "experts" having retracted their opinion in favour of the plaintiff was the opposite of what really occurred, for they not only, after repeated experiments, maintained it, but with greater certainty. And it was utterly incorrect to say that though the plaintiff was discharged as to the murder the proofs of forgery and fraud remained, and that he was detained upon them. It was not true; he had been tried as well upon those charges as upon the other, and equally acquitted; and he was not detained. Then came the further statement as to the evidence of the " experts," that they were evenly balanced. This was quite incorrect; for only one retained his view contrary to the theory of suicide; the others were strongly in favour of the theory, and one of them went so far as to say that he was certain of it. The writer stated that one of them said the theory of suicide was impossible. This only showed that the writer could not have been present at the trial and must have taken his facts secondhand; for it was utterly and entirely unfounded. No doubt there was no reason to impute personal ill-feeling to the writer, and no doubt the writer wrote under the honest conviction that the facts told strongly against the plaintiff, and wrote without any intention of doing injustice. But while (said his Lordship) we uphold the liberty of the Press, and especially in the matter of reports of proceedings in courts of justice, and while it is to the interest of the public that they should be made known as widely as possible, we must take care that those who exercise that all-important function should act under a due sense of the duty they have to discharge. If you think the letters do not embody a fair and

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faithful representation of what passed at the trial, but that the reporter has gone beyond the legitimate bounds of his privilege by introducing statements of his own injurious to the plaintiff, and which turn out to be unfounded, then it will be your duty to find for the plaintiff as to the publication of the letters. Then there is the other cause of complaint, as to the article published after his acquittal. It has been suggested that it did not convey the impression that he was guilty, but only that he was innocent, and had had a very narrow escape; but if it conveyed the impression that he was guilty, and had for some reason had a narrow escape, then the accused, if innocent, would have a good ground of complaint. Another just question, therefore, would be, what the article really meant. The Lord Chief Justice then went through it, dwelling upon the passages which have been quoted, especially the sentence, the Syrian gentleman whose wife perished, and whose ward was found with a gunshot wound in his head." What did that mean? What could the whole article be understood to convey? Did it mean that he was guilty, and had had a narrow escape? or did it mean that he was innocent, and had had such an escape? If the jury thought that it meant that a man who had been acquitted by a verdict of a jury was really guilty, then the question would be whether it could be excused, under the circumstances, by the privilege which the law wisely allowed to public writers in the discussion of matters of public interest. It was admitted that the administration of justice was so important to the well-being of society that public writers have the right of discussing it, even although in so doing they may bear hard upon individuals; and therefore, although they should turn out to have been erroneous in their observations, yet if they have written in good faith, with an honest desire to discharge their duty, bringing to it a reasonable judgment, they are not legally liable, and therefore the jury were rightly invited to consider whether the circumstances were such as to allow of the claim of privilege, even although it was intended to impute that the crime of murder was really committed. And with a view to the consideration of that question it was necessary to go into the circumstances of the case, and to inquire what were the facts proved against the plaintiff, and what were in his favour. Now no doubt the circumstances of the case were such as that when they were first looked at they must naturally suggest the idea of guilt; but after they had been examined into, the question was whether such an article could be written in a fair spirit, and with a reasonable exercise of judgment. What were the facts? That Risk Allah had insured the youth's life; that the youth had received a shot as he lay in bed; that at first sight there seemed no probability of suicide. Such was the aspect of the case at first sight; but, even looking at it thus there were two facts calculated to dispel the idea of murder; the fact of the youth's shirt being taken off, and the fact of the paper found in his handwriting bearing the words, "I have done it." There was no reason to doubt that the youth usually slept in a shirt of some sort, and it was not found upon him. There was no rational possibility of its having been taken off by any one else, and he must have taken it off himself. Nothing was said about a shirt being found stained with blood-a fact which, had it occurred, would not have escaped the attention of the prosecutors. Then, assuming the shirt to have been found (as seems to have been assumed at the trial) clean and free from blood, it was impossible not to see that he must have taken it off; and this was a fact almost conclusive as to suicide, for, with what possible motive could he have taken it off except with a view to suicide, in order (as was suggested) to avoid the possibility of its catching fire? Then as to the paper, the experts proved it

P

to have been in the youth's handwriting; and there was no reason to impute forgery to the plaintiff; so that there seemed no ground for doubting that it was the youth's own writing. If so, it was all but conclusive as to suicide. Then there were the experiments of the experts, and their evidence. The majority of these were in the plaintiff's favour; one went so far as to say he was certain it was suicide. Then there was the evidence as to the character and health of the youth, who was irregular in his mind and epileptic in his habit of body. Then came the rejection of his offer of marriage upon that account, which, beyond all doubt, had preyed upon his mind. Several respectable witnesses stated that after this the youth had spoken in a desponding and despairing way, and it was plain that disappointment and despair were preying upon his mind. Taking all these circumstances into account, could any one fairly say that the verdict was wrong? It was true that Risk Allah would gain 50001. by the youth's death, but that was all. It was said he had insured the youth's life for 10007.; but the youth had acknowledged to several witnesses that he owed the plaintiff 7007. Therefore the notion that the plaintiff had insured the youth's life with a view to get rid of him appeared to fall to the ground. Thus the case of Risk Allah as to motive was relieved of that. The Lord Chief Justice then said that under all the circumstances it was for the jury to say, not merely whether they did not think that Risk Allah was innocent, but whether they thought that in the fair, honest, reasonable exercise of a public writer's privilege, an article could be written imputing that the plaintiff was guilty. If they thought that the writer had rashly, recklessly, and wantonly represented a man who had been acquitted as guilty, they should give a verdict for the plaintiff. The Lord Chief Justice then entered into the matter of Osman's forgeries, putting it to the jury whether they were or were not satisfied with the plaintiff's explanation. The plaintiff had been acquitted at Brussels, and if a public writer challenged the verdict, he should do so in a fair and proper spirit and in the exercise of an honest and reasonable judgment. The jury gave a verdict for the plaintiff for 9607.

V.

MARTIN v. MACKONOCHIE.

RITUALISM.

THIS case, which involved the important question as to high ceremonial in the church of St. Alban's, Holborn, the incumbent of which was the Rev. A. H. Mackonochie, was an appeal by the promoters of the suit from the judgment of the Dean of Arches to the Judicial Committee of the Privy Council.

Present-The Archbishop of York, Lord Chelmsford, Lord Cairns, Sir W. Erle, and Sir J. Colville.

Lord Cairns delivered the judgment of the Committee as follows:-"The case of Martin v. Mackonochie,' commenced before the Bishop of London, was, under the provisions of the Clergy Discipline Act, sent by the Bishop to the Court of the Archbishop of Canterbury for trial in the first instance; and having been fully heard before the Judge of the Arches' Court, resulted in a decree made on the 28th of March, 1868. Mr. Mackonochie, the clerk in holy orders against whom these proceedings were directed was charged with four offences against the

laws ecclesiastical, viz. :-1. The elevation during or after the Prayer of Consecration in the Order of the Administration of the Holy Communion of the paten and cup, and the kneeling or prostrating himself before the consecrated elements; 2. Using lighted candles on the communion-table during the celebration of the Holy Communion, when such candles were not wanted for the purpose of giving light; 3. Using incense in the celebration of the Holy Communion; 4. Mixing water with the wine used in the administration of the Holy Communion. The learned Judge of the Arches' Court by his decree sustained the third and fourth of these charges, and admonished Mr. Mackonochie to abstain for the future from the use of incense, and from mixing water with the wine as pleaded in the articles. Against this part of the decree there is no appeal. The second charge, as to lights, was not sustained, the learned judge holding that it was lawful to place two lighted candles on the Communion-table during the time of the Holy Communion. Against this the promoter has appealed. As to the first charge, Mr. Mackonochie, while admitting the elevation of the consecrated elements at the times and in the manner alleged, pleaded that he had discontinued the practice before the institution of the suit. The learned Judge, therefore, admonished Mr. Mackonochie not to recur to the practice; but as to the other part of the charge—namely, the kneeling and prostrating himself before the consecrated elements, the learned Judge held that if Mr. Mackonochie had committed any error in that respect it was one which should not form the subject of a criminal prosecution, but should be referred to the Bishop in order that he might exercise his discretion thereon. The promoter appeals from the latter part of the decision of the learned judge on this charge, and he also complains in his appeal that the defendant was not ordered to pay the costs of the suit. The questions thus raised by the appeal were very fully and ably argued before this tribunal, and their Lordships have now to state their reasons for the advice which they propose humbly to offer to her Majesty. They will advert first to the charge of kneeling before the consecrated elements. It is necessary to refer to the whole of the charge on this head as contained in the 3rd and 4th articles, although some of the acts charged are said to have been discontinued before the suit commenced. These articles run thus :

"3. That the said Alexander Heriot Mackonochie has in his said church, and within two years last past (to wit, on Sunday, the 23rd day of December, on Christmas-day last past, and on Sunday, the 30th day of December, all in the year of our Lord, 1866), during the Prayer of Consecration in the Order of the Administration of the Holy Communion, elevated the paten above his head, and permitted and sanctioned such elevation, and taken into his hands the cup, and elevated it above his head during the Prayer of Consecration aforesaid, and permitted and sanctioned the cup to be so taken and elevated, and knelt or prostrated himself before the consecrated elements during the Prayer of Consecration, and permitted and sanctioned such kneeling or prostrating by other clerks in holy orders. 4. That such elevation of the paten, and such taking and elevation of the cup, and such kneeling and prostrating are severally unlawful additions to and variations from the form and order prescribed and appointed by the said statutes, and by the said Book of Common Prayer, and administration of the sacraments, and other rites and ceremonies of the Church, and are contrary to the said statutes, and to the 14th, 36th, and 38th of the said constitutions and canons, and also to an Act of Parliament passed in a Session of Parliament holden in the 13th year of Queen Elizabeth, cap. 12, and to the 25th and 28th of the Articles of Religion therein referred to.'