M'Millan against Birch, 1 Binn. 178

TilgIhman C. J. after stating the facts, delivered his opinion as follows: The bill of exceptions contains two points: 1. That upon the-evidence given, the action could not be maintained by the plaintiff, for words spoken of him in his profession of a minister of the Presbyterian church. 2. That the words spoken by the defendant, while making his defence before the Ohio Presbytery, against the charge exhibited against him by the plaintiff for slander, were not actionable. On both these points the court' charged in favour of the plaintiff.

In arguing the cause before us, the counsel for the plaintiff in error made four points which it will be necessary to consider. 1. That the words spoken are not actionable, applied to persons in general. 2. That they are not actionable when applied to the plaintiff on the evidence in this cause. 3. That exclusion from the Huntingdon Presbytery is no temporal damage, nor such as the law will take any notice of, or suffer damages to be recovered for. 4. That the words spoken by the defendant in his defence before the Ohio Presbytery are not actionable. First and second.

Whether the words are actionable applied to persons in general, I think it unnecessary to decide, because I am clearly of opinion they are actionable as applied to the plaintiff. The reason why certain expressions are actionable when applied to persons of certain professions is this: that from the nature of the case it is evident that damage must ensue. To say of a merchant that he is a bankrupt, or of a lawyer that, he is a knave, must, if believed, necessarily produce damage.

So to say of a clergyman that he is a drunkard; because these words if believed, must deprive him of that respect, veneration, and confidence, without which he can expect no hearers as a minister of the gospel. Express authority has been produced to shew that these words are actionable, spoken of a clergyman in England.

The defendant’s counsel do not say that the character of a clergyman is less sacred or less worthy of protection here, than In England; but they object, that inasmuch as the plaintiff was never admitted to the rights of a Presbyterian clergyman in the United States, he has failed in proving his case as stated in his Ndrr. But in answer to this it is to be remarked, that he has not said he was a minister of the Presbyterian church in the United States; he only says in general that he was a minister of that church, and so he undoubtedly was; for he was ordained in Ireland., and was never degraded from holy orders.

He was what the Presbyteries and General Assembly in the United States call a foreign minister; and in that capacity he might, if he thought propex-, preach and receive money for preaching, from any that chose to pay him, without the consent of any Assembly or Presbytery. Or if he proceeded in a regular way, and obtained their consent, no nezu ordination would have been necessaxy; which is an incontestible proof that the church here recognises an ordination in Ireland, as investing aclergvman completely with the order of the ministry.

The plaintiff therefore was a minister of the Pi-esbyterian church; and the words spoken of him, if believed, must necessarily preclude him from any employment, whereby' he might obtain a living in the American church. Third. This point is not mentioned in the bill of exceptions. No objection was made to the charge of the court in this respect. I think it therefore immaterial. There can be no ei-ror in the record, on account of special daxnages, because the words are actionable in themselves, and the lav/ implies damage.

Even supposing for argument’s sake that the loss of admission into a Presbytery was not a matter for which damages could be recovered, (which be it remembex-ed I by no means assert) it would be unwarrantable to suppose after a verdict, that the jury had given damages on that account. Courts are always disposed to support, and not to destroy, the verdicts of juries. Fourth. I coixie now to the last point, the only one which is attended with any difficulty.

It was raised suddenly in the course of the trial; it was new; and the judges who tried the cause, and who were obliged to declare their opinions in a short time, delivered the impression of their minds, not without doubt.

I have given it the attentive consideration that it merits; and though I cannot but feel diffidence when I disagree with the respectable and learned gentlemen before whom the trial was had, I will px-oceed to offer my reasons for thinking that the words spoken by the defendant, when making his defence ^e^ore the Presbytery, are not actionable. - I consider malice as an essential ingredient in slander. If I say of a man that he is a thief, or that he committed murder, t]le jaw jmplies malice in general; and it lies on me to shew that there was no malice in my heart. This I may do in various ways.

I may shew that I used this expression when examined as a witness in a court of justice; or when I was concerned in a prosecution, as attorney for the Commonwealth; and although I was mistaken in the fact, no action lies. The,occasio_u of my speaking being called upon by others, and only acting in the-course of my duty, preclude the idea of malice. So what is said by myself or my attornies in my defence in a court of justice is not actionable; not only because of the occasion of my speaking, but also because the public good requires that every man should be allowed to speak freely in his own ciefence.

It is the same with regard to what I say as plaintiff in an action; because there is as much reason why persons should enjoy freedom of complaint, as freedom of defence. But if any man should abuse this privilege, and under pretence of pleading his cause, wander designedly from the point in question, and maliciously heap slander upon his adversary, I will not say that he is not responsible in an action at law. This freedom of speech in what is called a course of justice, is not confined to courts oí common law.

Cases have been cited to shew that it is extended to proceedings in ecclesiastical courts, and proceedings before justices of the peace; and I have no doubt but it should likewise be extended to proceedings before referees. The objection in the case before us is, that Presbyteries and General Assemblies are not courts of justice. Certainly they are not; and depositions taken before them are no evidence in courts of justice, because they have no authority to administer an oath; and a person swearing falsely could not be indicted for perjury.

But although they are not courts of justice, they are bodies enjoying certain rights, established by long custom, and not forbidden by any law. They can inflict no temporal punishment; and their jurisdiction is founded on the consent of the members of the church. No extensive church can preserve decency, good order, or purity of manners, without discipline. It serves to correct a multitude of evils, which cannot and ought not to be subject to temporal cognisance.

It corrects them too in a manner the most mild, the most private, and the least scandalous and injurious to religion; in a manner that may reform the offender, without exposing him to the open scorn and ridicule of the world; circumstances which sometimes render men desperate. A jurisdiction of this kind, exercised only over those who consent to it, certainly must be productive of good effects; and it appears to me that the persons thus consenting and pleading their causes either in a course of complaint or defence, fall within the principle applied to those who are speaking-in courts of justice.

If they conduct themselves in a decent manner, the occasion of speaking makes it improper that the law should imply malice. 1 repeat the remark made before, that if under a pretence of pleading a cause before a Presbytery, one should designedly and maliciously wander from the point and slander his opponent, he would be responsible for his conduct in a court of justice. Let us apply these principles to the case before us. It was the plaintiff who first affirmed the jurisdiction of the Presbytery, and cited the defendant to answer before it. The defendant did not decline the jurisdiction. What then was he to do?

He must either confess that the words he had spoken of the plaintiff were false, which if he believed them to be true would be a great crime, or by acknowledging that he had spoken them, and endeavouring to justify them, render himself liable to an action in a court of law, which had been barred by the act of limitation; for this is the consequence, if words spoken there are actionable. Would these words have been spoken at that time, if the plaintiff had not extorted them? And after extorting them, shall he apply to a temporal court for damages?

If the law is so, will not ecclesiastical jurisdictions prove traps for the unwary? May not the occasion of the defendant’s speaking be fairly and candidly said to Avarrant the conclusion, that he spoke not through malice, but in his OAvn defence; or at least, ought it not to form an exception from the general rule by Avhich the law implies malice? The subject suggests a multitude of reflections; but I have said enough to explain the principles on Avhich my opinion is founded.

Whether the defendant Avill derive any advantage from it I know not; for it is very possible that on a new trial there may be sufficient evidence to establish the plaintiff’s action, independent of what passed before the Presbytery. It is very possible that the verdict already given, ■ would have been the same if the court had charged on this point, according to the defendant’s wishes. But be that as it may, he is entitled to the benefit of his exception.

I am of opinion that the charge of the Circuit Court was erroneous, in the last point mentioned in the bill of exceptions; and therefore the judgment must be revers ed. Brackenridge J. concurred. Judgment reversed.