Judgment:
Monro and
Gordon showed cause.
Gifford and
A. Moncrieff were heard in support of the rule.
The
Lord Justice-Clerk said that as he had to try the case when the verdict of the jury was returned, it might not be amiss in him to explain the impression which the evidence made upon his mind at the time, and which it still made. The case was a most delicate one, and his duty was one of great responsibility, and not the less so because a serious charge was brought against public officers, and men whom he had occasion to know were most efficient public servants. But, on the other hand, he knew that some of the proceedings were of such an unusual nature as very naturally to involve these gentlemen in embarrassment. He endeavoured to hold the balance justly. If he had thought there was no evidence of malice he would have most probably instructed the jury to that effect, and withdrawn the case from them; but there was undoubtedly some evidence of malice. At the same time, it might be that the evidence was so slender, that although he, as presiding Judge, was not authorised to take it from the jury, the jury were not justified in affirming it to be sufficient. Now, that was the question. Questions of malice were peculiarly jury questions. No doubt, as this was a privileged case, it was indispensable that malice should be proved as substantive matter of fact; but it has been misunderstood what sort of matter of fact it is. It is not a physical but a psychological fact, and can be proved only by facts and circumstances. Now, there are a number of facts and circumstances in this case, and from these taken together he could not say that the jury were far wrong in deducing malice, and unless they were far wrong he could not disturb their verdict. He abstained from saying whether they were wrong at all, because in a case of so delicate a nature it is better to abstain from saying anything more than is necessary for its decision; and all that is necessary to say is that the jury were not far wrong.
Lord Cowan—It seems to me there was evidence enough to leave to the jury. I will not express any opinion as to whether I would have concurred in their verdict. It has been said that this is a peculiar case, because there are two defenders; but that peculiarity shrinks into nothing when it is remembered that the calumny complained of was the joint statement of these parties. It has been farther said that the defenders are public officers, discharging their duties to the best of their ability; but the action here was not brought against them for malice in the conducting of their professional business. It is an action of damages for judicial slander, after the proceedings which had been conducted by them in their professional position were nearly at an end. I believe these gentlemen did conduct their professional duties with discretion and anxiety, but that will not protect them in this action. I think Procurators-Fiscal are entitled to great protection in the performance of their professional duties, but if they travel beyond these they must be responsible. Now, was there sufficient evidence here to entitle the jury to return the verdict which they did? Among the circumstances which have impressed themselves on my mind, I give no weight to that miserable affair about the defenders not touching their hats nor making a bow to the pursuer on the street. I agree with Lord Neaves that if they had raised their hats a foot higher or made their bows a foot lower, it might equally well have been presented as a symptom of malice. But the statement complained of is this—that certain averments contained in a petition presented by the defenders against the pursuer “were and are true.” And what are these statements? That during 1863 and 1864 the pursuer was engaged in a conspiracy to murder the Rev. Mr Edgar and others; and it is averred with regard to these that they “were and are true.” More than this, that averment was made on the 22d March 1865, and at that time the precognition was far advanced, and the pursuer had been apprehended and committed to trial the very day before, not on the charge of being concerned in a conspiracy, but simply on the charge of sending threatening letters. It is said that the statement was inserted by senior counsel. That would have been worthy of much consideration if there had been an abandonment on the part of the defenders, but there was no such abandonment, and having committed themselves to their Edinburgh advisers, they must be held to have instructed them. We cannot hold that gentlemen's characters are to be left to such risks. It is a matter of some moment that Mr Morrison at the trial, when examined as a witness, still persevered in his opinion that the averment was correct. The only other point is that a letter containing matter for an action of damages by Ballingall against the pursuer, was shown by the defenders to Ballingall's agent. I don't say that was done with any bad intentions. But on the whole I cannot but agree that the verdict must stand.
Lord Benholme—This is a delicate case. I am deeply impressed by the fact that this statement did not proceed from the pen of the defenders. Had there not been previous circumstances in this case, I hardly think the jury would have given a verdict against the defenders. But we see clearly that very angry passages had occurred during this ecclesiastical fight, and I cannot help thinking that the jury looked to that, and were prepared to scan with extreme delicacy any hostile expression on the one side or the other. Several things appear in the evidence that the jury were entitled to look to; and above all, the showing that letter of Bell's, which was a letter written just in the heat of that contest. Now, this letter comes into the hands of the defenders as Procurators-Fiscal, and we find that they communicated it to the agents of the parties spoken about. The circumstances of the parties on each side were not to be thrown out of view in considering the conduct of these parties, and after what your Lordship has said, that you were satisfied there was no reason to interfere, I cannot do so. Malice is eminently for a jury. It is derived from slight circumstances concurring in one direction, and often more calculated to convince than one very strong circumstance, and in the present instance I am not inclined to interfere.
Lord Neaves—I arrive at the same opinion, not with doubt, but with great reluctance, for I feel great sympathy with the defenders, and have a perfect knowledge, and feel at this moment, that they are most excellent men of business. But from what we know of the circumstances, there seems to have arisen an irritation which overcame a little that impartiality and high position which public prosecutors must have. It is out of our power to take the case from the hands of the jury. I don't say that I would have concurred in their verdict, but we are not entitled to withdraw it from them. I think a little animus did come out a little in the adherence by Mr Morrison to his belief in Bell's guilt, after another person had been convicted. Without going into the cutting upon the street, which is like the biting of the thumb in “Romeo and Juliet,” there are indications that when they lodged their defences there was great temper. I cannot look on the defences except as their defences. They did not repudiate them at the time, nor in this record, and it was only at the trial in this case that they tried to make out that they were not their defences. The record was closed with these statements in the defences, and they are now interpreted by the jury as accusing Bell of that most serious conspiracy. Now, as Lord Cowan has said, Mr Bell was committed on nothing but sending threatening letters, when these defences were lodged. When the record was closed, besides the confession of Edmisston, the Crown had not taken a step to follow up the other charge, and the Procurators-Fiscal, whose duty was as much to prosecute as to put these statements on record, had not taken one step. They could not have put them on record without the intention of proving them, or without a blindness to the course they were to follow, and no evidence would have been sufficient to prove them except what would have been sufficient in a criminal charge. That is the rule whenever the
veritas has to be proved. To some extent the feelings of the defenders seem to have lost their balance, and the jury were entitled to consider that there was some evidence of malice. Then there was the letter shown to Nicholson. I don't say whether there was any bad intention, but it is unexplained; and nothing can illustrate the danger of such warrants which set Procurators-Fiscal loose on all correspondence, than that letters slumbering in a private desk should be got out, promulgated, or shown to the agent of the injured parties, who before were quite uninjured, for I doubt whether anything said by Bell about Mr Hungerjaw, to the poet, could injure these parties. The injury was in promulgating what was said. Now the defenders injudiciously showed these letters to Mr Nicholson, the agent of the Ballingalls—and that gave rise to all the actions of damages at their instance. I cannot but say that that was most injudicious.
