of reason claim the right to make defamatory statements which he has no reason to believe are true? In the course of the oral argument a decision of the United States Court of Appeal for this district was referred to as having held that a fire insurance company was not answerable in damages for having falsely, maliciously, and without probable cause, in its answer to a suit on one of its policies, charged the plaintiff with having himself set fire to the premises for the loss of which he made the claim on the policy. The case is not cited in the brief, and we have not time to look it up; but to our mind such a doctrine, however sound it may be, in so far as founded upon the common law, appears to be simply intolerable. It licenses every fire insurance company to besmirch the reputation of any one of its policy holders who may venture to bring suit on one of its policies. Under the operation of such a doctrine the policy holder might be the most honorable man in the community, and yet the insurance company boldly and openly threaten him with defamation if he dare bring suit. By such a doctrine the insurance company is armed with two defenses,-one, to be availed of before the Court, founded on the law and the facts, and addressing itself to the merits of the case; the other, to be availed of before the tribunal of public opinion, addressing itself to the good name of the policy holder, and founded on nothing at all. "If you dare bring suit against me, I will charge you with having set fire to your own premises, and, though your claim may not be defeated thereby, your reputation, at any rate, shall be wounded."

On the assumption that material allegations are not privileged, the petition of plaintiff unquestionably shows a cause of action. . . . It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the exception of no cause of action be overruled, and that the case be remanded for trial according to law; defendant to pay the costs of appeal, and the costs of the lower court to abide the result of the suit.

BREAUX, C. J., dissents.

On Rehearing. PROVOSTY, J. On application for a rehearing it is pointed out that in France, by special statute, material allegations are never actionable; and that even irrelevant defamatory allegations are not actionable, unless an order is entered, in the suit itself in which they are made, granting the right to bring suit on them. Art. 23 of Act 1819; amended in 1881. We confess frankly this statute escaped our attention. . . . But until a similar special statute is adopted in this State the rule under the Code must remain here as it was in France before the adoption of this Act of 1819.

In further support of the application for rehearing it is said that, unless the litigant is allowed this privilege of defamation, he will be hampered in the prosecution or defense of his rights. We do not so believe. It cannot be that a litigant is hampered by being debarred from relying upon statements for which there is not probable cause and

which he himself knows to be false.

A litigant should speak the truth, the whole truth, and nothing but the truth to the Court; and the least that can be required of him is that he shall not speak that which he not only knows to be false, but which he cannot show to have even the color of truth. . . . The argument that the right to bring suit for a slander committed by means of judicial allegations may be abused is a doubleedged sword. The immunity contended for may in like manner be abused. Its advocates seem to assume that the occasions when it could be abused would be of rare occurrence; but the fact is that every suit affords ample room for its abuse. It might be abused in a suit on a promissory note or on a plain loan of money. It might be made a terrible instrument in the hands of blackmailers. Because a certain rule has prevailed in England, and has been followed more or less extensively in those States whose jurisprudence is a mere continuation of that of England, is no reason why a court, administering the civil law and acting under a statute, should sanction a thing working such great hardship in individual cases, without any appreciable good to the public. . . . The application for rehearing is denied.

The Chief Justice dissents.1

1 [PROBLEMS:

The defendant's house was robbed. He called upon a neighbor, M., to see if M. could help him to detect the thief. M. asked, "Do you suspect any one?" He replied, "Yes, I have good reason to believe that E. did it." Afterwards, he caused E. to be arrested. In an action for slander, was his statement privileged? (1877, Eames v. Whittaker, 123 Mass. 342.)

The plaintiff sued the defendant for damage done to the plaintiff's corn by the defendant's hogs and bull. He won the suit. The defendant then laid a complaint of perjury against the plaintiff, and at the trial conducted the prosecution. During the trial he stated several times "Pete Boyer swore to a lie." Was this privileged? (1897, McDavitt v. Boyer, 169 Ill. 475.)

...

Mr. B. sued for divorce. Mrs. B. filed a cross-bill, in which she alleged "for further cause of divorce . . . that the said plaintiff E. C. B. has been guilty of consorting and cohabiting with other women, including Mrs. E. J." Mrs. J. sues Mrs. B. for this libel. Is it privileged? (1901, Jones v. Brownlee, 161 Mo. 258, 61 S. W. 795.)

ESSAYS:

John Bartholomew, "Want of Probable Cause in Judicial Slander." (J. R., XII, 132.)

NOTES:

"Judicial proceedings, words used in absolute or qualified privilege." (H. L. R., X, 134; XI, 346.)

"Pleadings: whether absolutely privileged." (H. L. R., XVI, 603.) "Libel, irrelevant matter in pleading not privileged." (M. L. R., II, 643.) "Libel - allegations in pleading." (Y. L. J., XX, 669.)]

SUB-TITLE (VII): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR INDEPENDENCE AND EFFICIENCY OF OFFICERS ADMINISTERING JUSTICE

Topic 1. Judge

(A. One Type of Judge.)

(Enter Lord

1005. WILLIAM SHAKESPEARE. King Henry the Fourth.1 chiefe Justice, Clarke of the Office, Jaylor, John Cobler, Dericke, and the Theefe.) Judge. Jaylor, bring the prisoner to the barre. Judge. Hold thy hand up at the barre. Theefe. Here it is, my lord.

Judge. Clearke of the office, reade his inditement.

Clearke. Why then Cutbert Cutter, I indite thee by the name of Cutbert Cutter, for robbing a poore carrier the 20 day of May last past, in the fourteen yeare of the raigne of our soueraigne Lord King Henry the fourth, for setting upon a poore Carrier upon Gad's hill in Kent, and hauing beaten and wounded the said carrier, and taken his goods from him.

Judge. Well, what sayest thou, art thou guiltie, or not guiltie?

Theefe. Not guiltie, my lord.

Judge. By whom wilt thou be tried?

Theefe. By my Lord the young Prince, or by my selfe, whether you will.

(Enter the young Prince, with Ned and Tom.)

Hen. V. Come away my lads,-ye villain, what make you heere? I must goe about my businesse my selfe, and you must stand loytering here. Theefe. Why my Lord, they haue bound me, and will not let me goe. Hen. V. Haue they bound thee, villain? Why, how now, my lord. What hath he done?

...

Judge. And it please your Majestie, he hath robbed a poore Carrier. . . . Hen. V. Well my Lord, what do you mean to do with my man? Judge. And please your grace the law must passe on him. According to justice then he must be executed.

Hen. V. Why then belike you meane to hang my man?

Judge. I am sorie that it falles out so.

Hen. V. Why my Lord, I pray ye, who am I?

Judge. And please your Grace, you are my Lord the young Prince, our King that shall be after the decease of our souereigne Lord King Henry the fourth, whom God graunt long to raigne.

Hen. V. You say true, my Lord: And you will hang my man?

Judge. An like your Grace, I must needs do justice.

1 [The passage of the first scene is taken from the Old Play (not by Shakespeare), as printed in the Appendix to Henry Morley's edition of "King Henry IV," Part I. — ED.]

Hen. V. Tell me, my Lord, shall I haue my man?

Judge. I cannot, my Lord.

Hen. V. But will you not let him go?

Judge. I am sorie that his case is so ill.

Hen. V. Tush, case me no casings. Shall I haue my man?
Judge. I cannot. Nor I may not, my Lord.

Hen. V. Nay? and I shall not? Say, & then I am answered.
Judge. No.

Hen. V. No? Then I will haue him.

eare.)

(He giveth the Judge a boxe on the

Judge. Well my Lord, I am content to take it at your hands.

Hen. V.

You! who knowes not you? Why, man, you are Lord chiefe Justice of England.

Judge. Your Grace hath said truth, therefore in striking me in this place, you greatly abuse me, and not me onely, but also your father: whose liuely person here in this place I doo represent. And therefore to teach you what perogatiues meane, I commit you to the Fleete, untill wee haue spoken with your father.

Hen. V. Why then, belike you meane to send me to the Fleete?
Judge. Aye, indeed; and therefore carry him away.

(Exeunt Henry V. with the officers.)

...

Judge. Jayler, carry the prisoner to Newgate againe, until the next Sises. Jayler. At your commandement my Lord, it shalbe done. [Henry IV dies. Young Henry becomes King, and his nobles are now to meet him for the first time since his accession. They await his arrival, in a reception hall of the palace.]

P. John. Though no man be assured what grace to find,

You stand in coldest expectation [to the Chief Justice]:

I am the sorrier; would 't were otherwise.

Ch. Just. Sweet princes, what I did, I did in honour,
Led by the impartial conduct of my soul;
And never shall you see that I will beg
A ragged and forestalled remission.

Ch. Just. King.

(Enter King Henry the Fifth, attended.) Good morrow, and God save your majesty! This new and gorgeous garment, majesty,

Sits not so easy on me as you think.

Brothers, you mix your sadness with some fear:

This is the English, not the Turkish court;

Not Amurath an Amurath succeeds,

But Harry Harry. . . .

You all look strangely on me:-(to the Chief Justice) and you most;

You are, I think, assured I love you not.

Ch. Just. I am assured, if I be measured rightly,

Your majesty hath no just cause to hate me.

King.

No? How might a prince of my great hopes forget
So great indignities you laid upon me?

What! rate, rebuke, and roughly send to prison
The immediate heir of England! Was this easy?
May this be washed in Lethe, and forgotten?
Ch. Just. I then did use the person of your father.
The image of his power lay then in me.
And, in the administration of his law,
Whiles I was busy for the Commonwealth
Your highness pleased to forget my place,
The majesty and power of law and justice,
The image of the king whom I presented,
And struck me in my very seat of judgment;
Whereon, as an offender to your father,
I gave bold way to my authority

King.

And I did commit you. If the deed were ill,
Be you contented, wearing now the garland,
To have a son set your decrees at naught,
To pluck down justice from your awful bench,
To trip the course of law, and blunt the sword
That guards the peace and safety of your person.

As you are king, speak in your state
What I have done that misbecame my place,
My person, or my liege's sovereignty.

You are right, Justice, and you weigh this well.
Therefore still bear the balance and the sword.
And I do wish your honours may increase
Till you do live to see a son of mine
Offend you, and obey you, as I did.

So shall I live to speak my father's words:-
"Happy am I, that have a man so bold
That dares do justice on my proper son;
And not less happy, having such a son,
That would deliver up his greatness so
Into the hands of justice."-You did commit me;

For which, I do commit into your hand

The unstained sword that you have use to bear;
With this remembrance,—that you use the same
With the like bold, just, and impartial spirit

As you have done 'gainst me. There is my hand.

1006. Lord MANSFIELD, C. J., in John Wilkes' Case. (1768. 19 How. St. Tr. 1075, 1111.) [After pronouncing a judgment reversing the outlawry of John Wilkes, the popular patriot, he continued.] . . . It is fit to take some notice of the various terrors hung out; the numerous crowds which have attendedand now attend in and about the hall, out of all reach of hearing what passes in Court; and the tumults which, in other places, have shamefully insulted all order and government. Audacious addresses in print dictate to us, from those they call the people, the judgment to be given now, and afterwards upon the