Maurice v. Worden

Brent, J.,

delivered the opinion of the Court.

The libel charged in the declaration, consists of an endorsement written by the appellee upon a letter of the appellant, tendering his resignation of the position of teacher of French in the United States Fa val Academy at Annapolis. The letter, it is alleged, was addressed to the appellee, an officer in the United States ilavy, and then in command and authority over the Uaval Academy, to be by him transmitted to the Secretary of the ISTavy. Before being so transmitted, it is charged that it was falsely and maliciously endorsed with the alleged libel.

To the declaration, the appellee pleaded non cul., and limitations in two forms—1st. That the cause of action did not accrue within one year; and 2nd, that the alleged writing and publishing was not within one year before the commencement of this suit.

Issue was taken to the plea of non cul., and the appellant replied to the pleas of limitations, that he was kept in ignorance by the fraud of the defendant, of the cause of action accruing to him, and did not discover or know of the said fraud, nor could the same have been discovered *250 or known of by him, with usual and ordinary diligence on his part, before or until the third day of February, 1876, and that at the last mentioned date,- the defendant -was absent out of this State, and so remained until less than one year before this suit was brought. And the same as to the writing and publishing.

To each of these replications, the appellee filed four rejoinders, denying seriatim each one of the several facts alleged. Issues were thereupon joined by way of rebutter, and upon this state of the pleading, the case proceeded to trial.

The plaintiff put upon the witness stand Mrs. Maurice, who testified, subject to exceptions, that the defendant in 1878, in reply to a question from her, admitted that he had endorsed upon the resignation of the plaintiff, the words complained of as libellous, and also offered, subject to like exceptions, a copy furnished from the files of the Naval Academy, of said resignation and the endorsement thereon of the -defendant. Mrs. Maurice further proved that she told the defendant she had this copy in her possession, and it was to that she referred in her conversation with him. At this stage of the case, the defendant moved to exclude all this testimony, and in connection with the motion, for the purpose of showing that the endorsement in question was a communication made by him to the Navy Department in the discharge of his official duty, and was upon that ground inadmissible in evidence against him, asked leave to call a witness, and to ask him whether the book referred to .in the record as “ Defendant’s Exhibit A,” was the book of regulations for tbe government of all persons attached to the United States Naval Service, in force on the 4th of October, 1872, and applicable to persons then attached to the United States Naval Academy at Annapolis. The plaintiff objected, and insists that having commenced his proof, he had the right to proceed and finish before any evidence on the part of the defend *251 ant conld be properly offered. The Court overruled the objection, and permitted the witness to be called. This is the error alleged in the first exception.

The rule of Court proyiding that “ on trials of fact the plaintiff shall have the opening and conclusion,” does not apply to the question here presented ; nor does the rule that the plaintiff must put in the whole of his evidence upon every point or issue which he opens, before the defendant proceeds with the evidence on his part. The offer of the defendant was not for the purpose of placing before the jury his evidence in defence, before the plaintiff had closed. The testimony offered was exclusively for the Court, whose province it was to determine whether the communication in question to the Secretary of the Havy, was such a privileged paper as excluded it altogether from being properly in evidence before the jury. Hot to have decided the question when presented might have unnecessarily prolonged the trial. If the paper in question was absolutely privileged it was not admissible, and no proof, which the plaintiff could have afterwards offered, would have enabled him to recover. ■ The proof proposed was necessary for the decision of this question, and the Court acted rightly in determining to hear it.

Another reason in support of the action of the Court may also be stated. If the communication should not have been held upon the proof offered to be absolutely privileged, it may have been found to fall within the class of communications to which the doctrine of qualified privilege is applied. This being so, the order of proof would become changed, by putting upon the plaintiff the burden of showing that the paper was not written from a sense of duty, but from malice and ill-will.

But the Court has at any stage of the trial, the right and power to exclude evidence improperly admitted, or admitted subject to exceptions. If its admissibility depends upon outside or collateral facts, there can be no *252 reason why the Court should not hear them without' delay. The admissibility of evidence must not he confounded with the rule, directing the order in which the respective parties are required to offer their evidence in support of their case.

The defendant, after the objection of the plaintiff, as stated in the first bill of exceptions was overruled, proved that the bookmarked “ Defendant’s Exhibit A,” contains the regulations for the government of all persons attached to the Naval Service of the United States, which were in force on the 4th of October, 1872, and were in force during the whole of the defendant’s connection with the Naval Academy at Annapolis. These regulations purport to have been established by the Secretary of the Navy in March, 1870. Their binding effect upon the defendant cannot be questioned. The Act of Congress, Rev. Stat. U. S., sec. 1547, passed in accordance with Article 1, sec. 8, of the Constitution of the United States, by express terms, provides that the orders, regulations and instructions issued by the Secretary of the Navy, are to be recognized as the regulations of the Navy.

Number 1448 of these regulations, directs that “All officers through whom communications from inferiors are to be forwarded to the Department, one of the bureaus or any authority higher than themselves, must forward the same, if couched in respectful language, as soon after being received as practicable, and they will invariably state their opinion in writing, by endorsement or otherwise, in relation to every subject presented for decision.” The resignation of the plaintiff was placed in the hands of the defendant, then Superintendent of the Naval Academy, to he forwarded to the Secretary of the Navy for his decision. The regulation referred to plainly required the appellee to state his opinion in writing, by endorsement or otherwise, in regard to the propriety of its being accepted. This he did by making the endorse *253 ment complained of. It was therefore made in the line of his duty, and one of the questions presented by the second exception, is whether or not this endorsement is a privileged communication, and if so, to what extent ?

There -are two classes of privileged communications which form exceptions to the general law of libel. The one is absolutely privileged and cannot be sued upon, while the other may he the cause of action, and the suit upon it maintained on proof of actual malice. These privileges rest alone on the ground of public policy, and in speaking of them we have no reference to privileges which are secured by constitutional or statutory provisions.

A great number of authorities have been referred to, ■and they have been examined with care. There is but little conflict among them in relation to the class of communications which are regarded as absolutely privileged. The classification in Starkie on Libel and Slander, well states the conclusion drawn from the great bulk of the cases. Those enumerated by the author as being absolutely privileged, though false and malicious, and made without reasonable or probable cause, “ are communications made in the course of judicial proceedings, whether civil or criminal, and whether by a suitor, prosecutor, witness, counsel or juror; or by a judge, magistrate, or person presiding in a judicial capacity, of any Court or other ■tribunal, judicial or military, recognized by and. constituted according to law; and so also communications made in the course of parliamentary proceedings, whether by a member of either House of Parliament or by petition of individuals who are not members, presented to either house or to a committee thereof.” Folkhard’s Starkie, sec. 688, and authorities there cited. Beyond this enumeration we are not prepared to go. The doctrine of absolute privilege is so inconsistent with the rule that a remedy ■should exist for every wrong, that we are not disposed to *254 extend it beyond the strict line established by a concurrence of decisions.

There is a class of communications which the Courts will not require to be produced in evidence, where those having the custody of them, object to their publicity on the grounds of public policy. Such are official communications to the heads of government, and between its different departments. And under this head are most of the authorities cited by the appellee. “ And where the law is restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same in effect, namely, receiving secondary evidence of their contents.” 1 Green. Ev., sec. 251. Whether this communication, being from an officer of the Navy to the Secretary of that department, is embraced in this class, is not a question raised by this record. It appears from it, that the Secretary not only does not object to the publicity of the communication, but has furnished a certified copy of it upon the express statement of the appellant’s counsel that it was intended for use in this particular case.

We cannot, in view of the authorities or upon principle, hold the communication declared upon to be absolutely privileged. It was made in the line of duty, and this only clothes it with a privilege that is qualified. The occasion operates as a defence, unless express malice be proved. Folkhard’s Starkie, sec. 679, (M.) p. 518.

In Cook vs. Hill, 3 Sand., 349, the Court say, “We are not much inclined, after considering the authorities, to extend the doctrine of absolutely privileged communications. We shall conform to the settled rule as far as the law has carried it; but we shall go no further. * * * The doctrine has not been extended here beyond legal proceedings; and applications, memorials, and similar matters presented to the Legislature and growing out of legislative proceedings. * * The other class of privi *255 leged communications, for which there is no absolute privilege, is very numerous. In order to make the writer or publisher liable, it must appear that he acted maliciously and without probable cause. If there were no probable cause for the communication, the law implies that it was made with malice. If, however, it appear that there was probable cause, the communication is privileged, no matter how much actual malice dictated it.” In Garrett vs. Dickerson, 19 Md., 450 , the general doctrine is announced that “ The only effect of privilege on actionable words is to rebut the legal inference or presumption of malice, and to that extent constitute a good defence in an action on them.” In White vs. Nicholls, 3 How., 267 , where the question of privilege was presented, the Supreme Court refused to extend the doctrine of absolute privilege to cases where the author of the alleged slander acted in the bona fide discharge of a public or private duty; legal or moral. In speaking of it as embraced by the “exceptions ” to the general law of slander and libel, the Court say on page 281, “ But the term ‘ exceptions/ as applied to cases like those just enumerated, could never he interpreted to mean that there is a class of actions or transactions placed above the cognizance of the law, absolved from the commands of justice. It is difficult to conceive how, in society where rights and duties are relative and mutual, there can he tolerated those who are privileged to do injury legibus soluti ; and still more difficult to imagine how such a privilege could he instituted or tolerated upon the principles of social good. The privilege spoken of in the hooks should, in our opinion, he taken with strong and well defined qualifications. It signifies this and nothing more. That the excepted instances shall so far change the ordinary rule with respect to slanderous or libellous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction *256 of the spoken or written matter, or by facts and circumstances connected with that matter or with the situation of the parties, adequate to authorize the conclusion.” The doctrine announced in this case in relation to the privilege of those acting in a judicial capacity, has been modified and explained in the subsequent case of Bradley vs. Fisher, 13 Wall., 335 ; hut there is nothing in that case in any way in conflict with the doctrine announced in respect to communications or words spoken in the discharge of a duty.

The case principally relied upon hy the appellee is that of Dawkins vs. Lord Paulet, L. Reps., 5 Q. B., 94. This case is one at nisi prius, and does not carry with it the weight of decisions hy Courts of last resort. An opinion is delivered hy each of the three Judges who sat. Two of them held the communication to he absolutely privileged. But we think the entire force of their decision is taken away hy the able dissenting opinion of 0. J., Cockburn. He discusses very fully the question of public policy, which it was claimed required a communication from an officer in the army to his superior to he absolutely privileged, and in his review of the authorities, satisfactorily, in our opinion, shows that they do not support the views of the majority of the Court. The alleged libel in that case consisted of communications from an officer of the army “in the course of military duty and as an act of military duty.” It was claimed that they were absolutely, privileged. But Chief Justice Cookburjt thought differently, and was of opinion that an action would lie if the communications were made of actual malice and without reasonable and probable cause. We concur in the views taken in his opinion, and believing that they state the •true rule of law, shall adopt them rather than the conclusions reached hy the two judges who sat with him.

In Dickson vs. The Earl of Wilton, 1 Fos. & Fin., 419, where the alleged libel consisted of communications from *257 an officer of the army made in the course of duty, the question of privilege was raised by the Attorney-General. Lord Campbell, C. J., who sat in the case, seeming to think it so clear the communications were not absolutely privileged, that he did not even refer to them in that connection. “The first question,” he says, “is, whether these were what the law called privileged communications ; for if so, the defendant is not called upon to prove their truth, provided they were made in good faith. The law most reasonably says, that what is written or spoken in the course of business, or in a matter of serious interest, where a person has a duty to perform, or an interest to consult, and addresses a person who has a like interest, and a relative duty to perform, the communication is privileged. * * Whether or not the occasion gives the privilege is a question.of law for the Judges ; hut whether the party fairly and properly conducted himself in the exercise of it is a question for the jury.”

We deem it unnecessary to multiply the citation of .cases upon this question, of privilege. We are satisfied that the communication in question does- not fall within the class of communications which are absolutely privileged. We hold it, however, to be privileged, to the extent that the occasion of making it rebuts the presumption of malice, and throws upon the plaintiff the onus of proving that it was not made from duty, but from actual malice and without reasonable and probable cause.

The next question is the exclusion of the testimony of Mrs. Maurice, as to the admission of the defendant that he made a certain endorsement on the letter of resignation of the plaintiff. This evidence is not secondary, but ■comes within the class of primary evidence. The admissions of a party, freely and voluntarily made, are always ■evidence, which may be introduced by the opposite party.

In Smith vs. Palmer, 6 Cush., 520 , it is said, “The ■admissions of a party are not open to the same objection *258 which belongs to parol evidence from other sources. A party’s own statements and admissions are in all cases admissible in evidence against him, though such statements and admissions may involve what must necessarily he contained in some writing, deed, or record.”

In Loomis’ Adm’r vs. Wadhams, 8 Gray, 562 , the Court quoting from Mr. Justice Pakke in Earle vs. Picken, 5 Car. & P., 542, say, “ What a party says is evidence against himself as an admission, whether it relates to the contents of a written paper or anything else.” See also Slattery vs. Pooley, 6 M. & W., 669; 1 Green. Ev., sec. 203; 1 Taylor Ev., sec. 668.

The evidence however must he confined to the admissions of the party. We do not understand from the record that the defendant admitted the copy furnished from the files of the Naval Academy to he a true copy from the original. It does not seem to have been shown to him. The witness states she had it in her possession, and that it was to that copy that she had reference in her conversation with the defendant. As an admission of the defendant this copy was not admissible, nor was it admissible upon its own merits, as it was a copy from a copy and no sufficient ground had been stated in the proof to let it come in as secondary evidence.

The refusal to admit the copy was strictly proper, hut there was error in ruling out the testimony of Mrs. Maurice in relation to the admissions of the defendant.

The letters referred to in the third hill of exceptions, as plaintiff’s exhibits B and C, being the letter ashing for the originals of the papers involved in this suit, and the reply of the Secretary, after proof of their genuineness, are admissible for the purpose of laying a foundation for the admissibility of secondary evidence.

The certified copy from the Navy Department, signed by the Secretary, with the seal of the Department attached is claimed to he admissible under the Act of Congress. *259 U. S. Revised Statutes, sec. 882. Unon this point we shall express no opinion.

"We think, however, that the copy certified as it is by the seal of the Navy Department, is admissible in evidence under a fair construction of the very comprehensive language of the statute of this State. By sec. 36, Art. 70, Revised Code, 1878, it is provided that “ a copy of any deed or other instrument of writing lodged for safe-heeding in any office or Court agreeably to the laws of the State or country as aforesaid, and certified as aforesaid, shall be good and sufficient evidence in any Court of this State to prove such deed or instrument of writing.”

We can clearly gather from this record that the papers contained in this copy are lodged in the Navy Department for safe-keeping, “ agreeably to the laws of the ” United States. Assuming this to be so, the place of their lodgment is an office for their safe-keeping within the meaning of the statute; and a copy, under the hand of the Secretary and the seal of the Department, is within the section referred to and admissible in evidence.

The evidence offered in the fifth and sixth bills of exceptions is not admissible. That portion of it in the sixth exception relating to a search for the papers in the .Navy Department between the 5th of January, 1876, and the defendant’s return to the City of Washington in Eebruary, 1878, may be admissible under the plea of fraudulent concealment, provided it is followed up by proof tending to show that the defendant had been instrumental in fraudulently suppressing them. But in the shape in which it is presented it could not he admitted.

The evidence in the seventh bill of exceptions, in relation to what transpired between the defendant and plaintiff in their interviews about the time of the latter’s resignation, is admissible. The onus is thrown upon the plaintiff of establishing actual malice and want of probable cause, as stated in a previous part of our opinion, and *260 this evidence has some slight tendency in that direction. It should not therefore be excluded from the jury.

(Decided 30th June, 1880.)

We can see no"relevancy to the issues in this case, of the proof offered in the eighth bill of exceptions. It is wholly in regard to another matter, and can have no proper weight in determining any of the questions here involved.

The ninth exception is to the prayer granted by the Court. This is disposed of by what has been already said.

From the views we have expressed, the judgment must be reversed, and a new trial will be directed.

Judgment reversed,, and new trial ordered.

Miller, J.,

filed the following dissenting opinion:

The. Constitution of the United States declares that Congress-shall provide and maintain a Uavy, and make rules for ‘ the government and regulation thereof; and Congress has provided that the orders, regulations and instructionsdssued by the Secretary of the Davy shall be recognized.’as..the regulations of the Davy, Rev. Stat. U. S., sec. 1547. One of the regulations so issued, is that “ all officers through whom communications are to be forwarded to the Department, one of the bureaus, or any authority higher than themselves, must forward the same if couched in respectful language, as soon after being received as practicable, and they will invariably state their opinion in writing, by endorsement or otherwise, in relation to every subject presented for decision; the term ‘forwarded’ is only to be endorsed upon such papers as require no action from the Department or other authority.” The plaintiff held the position of Assistant Professor of French in the United States Fa val Academy at Annapolis, and the *261 defendant, Admiral Worden, was the Superintendent of the academy, through whom all communications to the Department by his inferiors in that service were to be forwarded. The plaintiff tendered to the Admiral his resignation in writing, and the Admiral endorsed thereon his reasons why it should be immediately accepted, and forwarded it to the Ravy Department, and this endorsement contains the alleged libel, which is made the foundation of this action. It is plain, therefore, that the endorsement containing the matter complained of, was made by the defendant in the discharge of a duty imposed upon him by law. In my opinion, the communication thus made ought to be absolutely privileged.

It is true there are to be found many dicta of eminent Judges, expressing the reluctance of Courts to extend the class of absolutely privileged communications, but in the whole range of authorities upon the subject, I have found but one in which the precise question which this case presents, has ever directly arisen for adjudication, and been decided by any Court, either in this country or in England, and in that the privilege was sustained. I refer to the case of Dawkins vs. Lord Paulet, Law Rep., 5 Queen’s Bench, 94. It was an action for libel, and the question of the absolute privilege of just such a communication respecting his inferior made by a superior officer in the British army, in discharge of his military duty, for the information of the commander-in-chief, was directly presented by demurrer to a replication which alleged that the words in the declaration mentioned, were written and published by the defendant of actual malice on his part, and without any reasonable, probable or justifiable cause, and not bona fide or in the bona fide discharge of the defendant’s duty as such superior officer. The cause was ably argued in the Court of Queen’s Bench before four Judges, was held under advisement for an unusual length of time, and elaborate opinions were delivered. The *262 Lord Chief Justice (Cockbuen) dissented, hut the other three Judges concurred in sustaining the privilege, and gave judgment for the defendant. The leading opinion of the majority was delivered hy Melloe, J., and, as it seems to me, that opinion places the privilege upon reasonable and safe grounds. ‘ ‘ The Attorney-General,” he says, “ has likened the case of the defendant to that of the Judges of Courts of law, to grand jurymen, petty jurymen, and to witnesses against whom no action lies for what they do in the course of their duty, however maliciously they may do it. He claimed the immunity of the defendant for acts done in the course of his duty on the highest grounds of policy and convenience. No Judge, nor juryman, nor witness, he said, could discharge his duty freely, if not protected by a positive rule of law, from being harassed by actions in respect of the mode in which he did the duty imposed upon him, and he contended that the position of the defendant manifestly required the like protection to be extended to him, and to all officers in the same position; and there is I think little douht that the reasons which justify the immunity in the one case, do in great measure extend-to the other. How can a commander freely communicate his real opinions to the adjutant-general, as to the conduct, qualifications or fitness for particular duty of any officer, if his opinion be prejudicial to such officer, under the dread of an action for libel, or other action, which, if he were not protected, might be brought against him, by any dissatisfied subordinate officer, who might consider himself aggrieved? To this it may be answered, that no action would lie, as his communication would be privi7 leged if made hona fide, and without malice. On the other hand, it must be observed that although his communication might be privileged, still cases might fre7 quently occur, in which the Judge on a trial at law, would have to submit to a jury the most difficult question *263 of military discipline, such as whether orders disobeyed were proper orders for a commander to give, or given maliciously and not bona fide, or whether the opinion ■expressed as to the competency of a subordinate officer for particular duties was justifiable or not. The promotion of an incompetent man may cause the greatest disaster, and yet if the person who has made his report as to the fitness or unfitness of such officer, is to do it under the idea that the opinion he expresses, may • he overruled by a jury ignorant of such matters, how can he be ■expected to do it freely ? The Attorney-G-eneral relied not only on the analogy he drew from the case of a Judge, juryman or witness, hut he cited in support of his argument, the opinion of Lord Mansfield, and Lord Lough-borough in the case of Sutton vs. Johnstone, (1 Term Rep., 544,) and there is no doubt that those eminent Judges did in the Court of Error, express an opinion in the analogous case of an action for a malicious prosecution of a naval officer, by the commander-in-chief of a naval squadron, that no such action could lie, and in the course of their observations, they said ‘ if this action he admitted, every acquittal before a court-martial will produce one. Hot knowing the law or the rules of evidence, no commander or superior officer will dare to act; their inferiors will insult and threaten them.’ And again, £ if every trial that is by court-martial is to be followed by an action, it is easy to see how endless the confusion, how infinite the mischief will he.’ These considerations appear to me to apply a fortiori to a case like the present, in which the letters and reports complained of, were written by the defendant in the performance of a positive duty, and for the purpose of obtaining an investigation of the matters therein alleged by a competent military tribunal. It is to he observed that the opinion expressed by Lords Mansfield and Loughborough, although of the greatest weight, and given after the fullest consideration, was not neces *264 sary to the judgment in that case, which actually proceeded on other grounds, and therefore does not amount to á decision binding on us, to declare that no such action will lie, and does not conclude us with reference to the present case, but the exposition of the law expressed in that opinion, has been generally accepted and referred to in other cases as a very weighty authority. It was evidently given after great consideration, and derives additional weight from the fact, that it was delivered in a Court' of Error, and after an argument displaying the greatest ability and research. It proceeds upon the principle, that the law will rather suffer a private mischief, than a public inconvenience. It was observed by Eyre,. B., in delivering the opinion of the Court of Exchequer, that the ground upon which the immunity from actions enjoyed by Judges and jurymen proceeds, is that the law gives faith and credence to what they do, and therefore there must always in what they do, be cause for it, and there never can be malice in what they do. Crompton, J., in Fray vs. Blackburn, stated that the immunity of Judges of the Superior Courts, was established to secure their independence, and to prevent them from being harassed by vexatious actions. It is manifest that the administration of justice would he paralyzed, if those wlm are engaged in it were to be liable to actions upon the imputation that they had acted maliciously, and not bona fide ; and it is to be observed that this absolute privilege is not confined to the administration of justice in the Superior Courts, hut has been also applied in its fullest extent to Judges of the County Courts, (Scott vs. Stansfield, Law Rep., 3 Ex., 220;) nor is it indeed confined to the administration of justice; for it is well established that members of Parliament cannot be called in question out of Parliament for any thing they may say in Parliament in the course of any proceedings in Parliament, and in like manner ministers of the crown cannot, from reasons of the *265 highest policy and convenience, be called to account in an action for any advice which they may think right to tender to the Sovereign, however prejudicial such advice may he to individuals. Do not these reasons of public policy and convenience strongly apply to the present case ? Can the administrative duties discharged by officers of the army in the position of the defendant he liable to he reviewed by a jury in an action at law without producing the greatest mischief and public inconvenience ? I shall presently show that a special mode of redress for all officers in the army who consider themselves wronged by their superior officers in’ relation to the discipline and government of the army is expressly provided by the articles of war, and in that view how inconsistent it would he that the judgment of a military tribunal familiar with the question, should he liable to he reversed, and a different result obtained by the verdict of a jury in an action at law upon the very same facts? It is true that a standing army was unknown to the common law, and was always looked upon with great jealousy by our ancestors, but it is now and has been for many years regulated by Acts of Parliament and by articles of war framed under them, which provide appropriate Courts and suitable machinery, and there is now a Secretary of State for War expressly appointed by the Crown, with a series of officers charged with particular duties and functions, all tending to the regulation and government of her majesty’s forces, and I cannot hut think that the analogies referred to do in principle apply to such a state of things. Upon these considerations, and supported by the opinion of Lords Mansfield and Loughborough, and that of other Judges, I come to the conclusion that the present action will .not lie.”

In the subseqent case of Dawkins vs. Lord Rokeby, Law Rep., 8 Queen’s Bench, 255, decided in the Exchequer Chamber, it was held that statements, whether oral or *266 written, made by an officer summoned to attend and give evidence before a military Court of enquiry which had no power to administer an oath, and was “ not to be considered in any light as a judicial body,” are absolutely privileged, even though made mala -fide and with actual malice, and without reasonable and probable cause. Of course the question was not identical with that decided in Dawkins vs. Lord Paulet, but that decision was referred to, and Kelly, 0. R, in delivering the unanimous judgment of the ten Judges by whom the case was heard, said: “ We think with the majority of the Judges in Dawkins vs. Lord Paulet, that the motives as well as the duty of ‘ a military officer, acting in a military capacity, are questions for a military tribunal alone, and not for a Court of law to determine/ ” and he added that “the ruling of Lord Campbell in Dickson vs. Lord Wilton, 1 F. & F., 419, that the communication charged as a libel, though held by the Secretary of War on behalf of the Crown, should be produced from his office and read in evidence was directly at variance with the judgment of the Exchequer Chamber in Home vs. Bentinck, and the decision that the communication itself was for the consideration of the jury upon the question of malice, was inconsistent with the great mass of authorities above referred to.”

These decisions have unquestionably settled the law of England on this subject, unless and until it shall he determined to he otherwise by the Court of last resort. I am unable to perceive why the principle thus settled by the English Courts should not be followed and applied to the officers of our army and navy. In my opinion the doctrine is just, wise, and salutary. To place an officer of the Navy in such a position as the defendant in this case held, where it was made by law his duty, under penalty of a court-martial and dismissal from the service if he refused or neglected to discharge it, to state in writing his opinion in relation to the subject of every commu *267 nication from a subordinate, to be forwarded through him to the Navy Department and requiring its action, and then to subject him to the expense and harassing annoyance of defending actions of libel, even though he may be eventually successful therein, by every subordinate officer ' who may think himself aggrieved by the opinions thus expressed by his superior, seems to me to be unreasonable and unjust. In my judgment all the reasons of public policy and convenience so forcibly stated by the English Judges apply to the exigencies of our military and naval service. In both countries the army and navy are governed by substantially the same laws, rules, and regulations, and the same evils, confusion and mischief will result here as there, from withholding the protection which the English Courts have thrown over such communications.' Those who seek and obtain positions and appointments in such service do so with a full knowledge of the rules and regulations to which they are to be subjected. These differ widely from the ordinary laws to which other citizens are subjected, but they are such as long experiance has demonstrated to be essential to the usefulness and efficiency, if not to the very existence of the service itself. If a subordinate in such service suffers wrong and injustice from his superior while acting in the discharge of his duty, he can seek the redress which these rules and regulations have amply provided for the vindication of his character and honor, and the punishment of the wrongdoer. It seems to me he should be confined to such remedy, and not be allowed to bring such grievances before the civil tribunals.

Entertaining, as I do very strongly, these views of the case, I cannot assent to the conclusion reached by a majority of the Court upon the main question presented, and am of opinion the judgment in favor of the defendant should he affirmed.