JAMES ADAM v The Rev JOHN ALLAN (Court of Session)

On the 11th of March 1839, James Adam, editor of the Aberdeen Herald newspaper, raised an action of damages against the Reverend John Allan, minister of Union parish, Aberdeen, for alleged defamation. Against this action defences were lodged by Allan, and the cause having thereafter been remitted to the issue clerks, the draft issue which was prepared by them was as follows:

‘It being admitted that the pursuer is editor of a newspaper intituled the Aberdeen Herald, and that the defender is minister of the Union Parish in Aberdeen,—

When the cause came again before the Lord Ordinary, the defender objected to the issue, on the ground that he was entitled, as he said, to have the word ‘maliciously’ inserted in it. In this form, it is to be observed, the case was put in the summons, ‘malice’ having been there expressly libelled upon. Alternatively however, the defender maintained, that if the insertion of ‘maliciously’ should not be granted, he was at least entitled to an issue, qualified by having therein the words, ‘in violation of his duty as a clergyman.’

The Lord Ordinary, (9th July 1839,) after hearing counsel on the issue, ordered minutes of debate on the objection taken thereto by the defender.

It is felt to be a matter so essential to the well-being of the State, that members of the Legislature shall be entirely free and unfettered in the exercise of their legislative functions, that whatever may be the nature of the observations or remarks which they make upon individual character in Parliament, they are absolutely protected from prosecution. In like manner, Judges of the Supreme Court are free from all challenge or question on account of observations made on the Bench, though the observations made may injure individuals, and be perfectly groundless.