LIBERTY OF CRITICISM, AND THE LAW OF LIBEL. THE subject to which we invite the attention of our readers, although in one sense a legal one, is of interest to the entire community. It is, we believe, capable of being perfectly understood by those who have had no peculiar legal education. The law of libel is, in reality, administered by juries composed of men chosen from the ordinary pursuits of life. It is also a subject of great practical importance. When we assert the right of criticising, in the fullest manner, the merits, the character, and the motives of every work which the author, by publishing, submits to the opinion of the community_at large, we are not putting forward a claim in which writers in a periodical like this have any peculiar interest. The rules which regulate literary criticism are not separate and distinct maxims of law; they are but the application of the rules which govern all questions relating to that free discussion of public matters which constitutes, in this country, that which is not so much the liberty of the press as one of the greatest of the privileges of the people. We think it of importance to direct attention to the subject, because the result of a recent trial has been by many persons supposed to lay down rules, and establish principles, restricting the liberty of criticism within limits narrower than those within which it has hitherto been enjoyed. The result of the action in which Dr. Campbell has finally succeeded in establishing his right to damages against the proprietors of the Saturday Review, is supposed to have mulcted those gentlemen for a criticism not more severe or personal than many which have been regarded as perfectly within the limits of the law; and it is therefore assumed that, in the decision of that case, some rules have been laid down less favourable to the liberty of the press than those previously acknowledged. We believe this impression to be entirely erroneous. Nothing has been decided in the case of Campbell v. Spottiswoode which in the least degree conflicts with the great principles which protect the right of free discussion. The occasion, at the same time, is one upon which it may be useful to state clearly and distinctly those principles, and assert for ourselves, and for all who discuss public conduct -whether that conduct be that of the author in publishing a book, the statesman in managing affairs, or the judge in deciding the cases that come before him-the liberty of offering upon that conduct every observation which is necessary for its fullest and its freest discussion. In this, as in most questions of English law, there is, in truth, very little difficulty in explaining it by a recurrence to a few plain general principles. Law becomes intricate when men lose sight of principles in details. There is no legal question, perhaps, which has been more perplexed by attending to details, instead of principles, than this very question of the libel law. We purpose briefly to state the general principles upon which that law is founded, and to show their application to the case of criticism upon the authors of books. Let us say in the outset that we disclaim all intention of discussing the merits of the particular case on which a verdict was given against the Saturday Review. That verdict was founded entirely on the view which the jury took of the meaning and character of the article of which Dr. Campbell complained. We do not profess to review the finding of the jury. So far as we advert to the case we will deal only with the general principles laid down. These are to be found in the decision of the Court of Queen's Bench upon the particular question which was reserved for them. That question was the narrow one-whether the finding of the jury that the writer honestly believed in the imputations he cast upon Dr. Campbell protected him from being answerable for those imputations. The court decided nothing more than this-that a criticism might be libellous, although the writer believed in it. They assumed that the jury had found that the criticism complained of had all the other elements which the law deems necessary to constitute a malicious libel. The one question was whether, in addition to these elements, there must be the ingredient of wilful falsehood. The judgment of the Queen's Bench decides therefore only thisthat criticism may be libellous even when it is not wilfully false, or when the writer honestly believes in the imputations which he makes. The right feeling of every one will, we think, agree in that opinion. No man has a right to take the opportunity of the publication of a book to publish against its author imputations which, however honestly he believes in them, are not legitimately needed for the ends and purposes of criticism. We shall see presently that in the case of Campbell v. Spottiswoode, the point upon which the case turned was this that the jury were assumed to have found that the imputations cast upon Dr. Campbell were not mere criticisms upon him as an author. In considering the rules of law applicable to literary criticism we must remember, in the first place, that there is no difference whatever between the case of criticism upon a book, and one upon any other matter of public interest. All public matters are open to a discussion, to which affairs of a private character are not. The author who gives a book to the world makes himself, so far as his book is concerned, a public man: his publication of his book is an act of public conduct. The real question is as to the limits which regulate the right to discuss the public conduct of public men, whether it be the conduct of a judge presiding at a trial, or a general commanding an army-the act of a minister, or a publication by an author, a despatch of Lord John Russell on the affairs of Denmark, or a prospectus of Dr. Campbell of a journal for the conversion of the Chinese. To each and all of these cases one rule is applicable. No writing can ever be a malicious libel which fairly discusses any matter to which the right of public discussion extends. Once it is established that the comment is upon such a matter, it is for the jury who try the case to say whether the criticism is really a fair comment, legitimately arising from the transaction which the writer professes to discuss, or a malicious imputation which that discussion is made the mere pretext for conveying. There may be cases in which this question is not easily described. Possibly that of the Saturday Review was one of them. But it is a question which, in every case, a jury must determine, upon their own conscience and responsibility, upon a review of all the circumstances connected with the publication. An examination of the very first principles of the English law of libel will show that this rule is, in fact, but the expression of a principle of universal application. Libel, by itself, means nothing more than a writing-libellus (the little book) is a short expression for the libellus famosus (the defamatory writing of the civil law). From an early period of our law the publication of any written matter injurious to the character of another, when done maliciously, has been held to be a criminal offence. This is one of the cases in which the party injured by any criminal act can punish the wrongdoer by a criminal prosecution, and also recover damages in a civil action for the injury he has sustained. Just as any person who beats his neighbour is liable both to punishment in a criminal court for his offence against the law, and also to an action in which he may be compelled to pay damages to compensate his neighbour for his broken bones; so, in the case of a malicious libel, the publisher of such a libel is amenable to the criminal justice of the country, and is also subject to an action in which he must make reparation for the injury which he has caused. It is perfectly well settled that the limits of the civil action are precisely identical with those of the criminal offence. No action can be brought to recover damages for any publication for which the publisher could not be convicted of a criminal offence. The action for damages is founded entirely on the wrongful character of the act. The writing must not only be injurious to character, but it must be maliciously published. Hence, to constitute any publication a libel, malice is an essential ingredient, and if there be not 'malice,' there is no libel. But malice does not mean, in legal language, that state of mind which we commonly designate illwill. Malice means nothing more than the state of mind which leads you wrongfully to injure another, whether from deliberate intention or from culpable carelessness as to the result. The man who recklessly fires a shot which kills a chance passer-by is said by the law to have maliciously slain that man, if he fired under circumstances which show his culpable indifference to the consequences of the act. When the act of any man injures another it is generally to be inferred that he was injured either from carelessness or design in libel, as in every other case. The mere fact of the injury raises the presumption of malice; and it is perfectly settled that, unless written for a lawful purpose, and on a lawful occasion, every writing is a malicious libel which damages the reputation of another. Scandalous matter,' says Lord Holt, 'is not necessary to make a libel: it is enough if the defendant cause an ill-opinion to be had of the plaintiff, or make him contemptible or ridiculous. Any publication is a libel which, either by printing or by signs, exposes a man to hatred, obloquy, ridicule, or contempt.' Such is unquestionably the law of libel in England at this day. It is obvious that, without the qualification we have mentioned, such a rule would convert into criminal offences some of the most meritorious actions of life. There may be occasions upon which we are imperatively called on to damage the reputation of another. The law amply recognizes these occasions by the simple principle which pervades, indeed, all criminal jurisprudence, that an injury inflicted upon a proper and a legitimate occasion cannot be malicious. If the libel be not malicious, it cannot be the subject of criminal proceeding or a civil action. In ordinary cases the mere fact that by publishing or writing you injure character implies that it is malicious; but the moment you show that the publication was not a mere wanton act, a mere reckless trifling with the reputation or the feelings of your neighbour, but was the discharge of a duty, or the exercise of a privilege upon an occasion in which the law either calls on you, or allows you to canvass the character of another, all then you have to do is to satisfy a jury that you fairly and honestly exercised your right; and however mistaken your conclusions, however unjust in the abstract your condemnation — no matter how severe or how terrible your accusations-they are not malicious, because they have been made upon an occasion which shows that they proceeded from a motive very different from any to which that designation is applicable. The law of England unquestionably regards criticism of public conduct or public matters as one of these occasions. It is assumed to be for the interest of the community that such matters should be freely and fully canvassed. If in that discussion I damage the reputation of another, this is not necessarily malicious or wrongful. If in fair discussion of his public conduct I expose a public man to ridicule, to contempt, or even hatred, it is done upon a lawful occasion, and without that wrongful disposition which constitutes malice. This is no exception grafted upon the law of libel: it is but the application of a principle which lies at the very foundation of that law. Although no man has a right gratuitously to damage the reputation of his neighbour, he has a perfect right to do so whenever that reputation becomes a matter which he is entitled to discuss. In private transactions this principle is perfectly well understood. Men answer inquiries addressed to them by those who have a right to demand information; and no matter how damaging the reply may be to the reputation of the party about whom the inquiry is made, that reply, if honestly made, can never be a libel. A parishioner may prefer the most grievous charges against his clergyman to his bishop, and even though he fails to sustain them, if he has preferred them from no improper motive, and in the honest belief of their truth, the law declares that they are not malicious. In the case we put it is not necessary that the accuser should have any special interest in the matter. He is justified by the general interest which every parishioner has in the character and conduct of his clergyman; and although in making the accusation he may, in one sense, be said to be a volunteer, his interference cannot be regarded as gratuitous. The publication of defamatory matter under such circumstances is generally described as a privileged communication. The term has become a familiar one in the law, but it was well observed by the judges, in pronouncing their opinion in the case of the Saturday Review, that the expression is an unfortunate one, and conveys an inaccurate idea. Communications of this nature have no privilege or exemption from being amenable to the law. There are indeed communications which are properly speaking privileged, that is, exempted from all inquiry into their character or motives. Such are speeches in either house of parliament-petitions to either house-allegations made in the course of judicial proceedingsconfidential communications of ministers of the Crown. In these, and some few other similar communications, the law disclaims any power of examining into the matter at all. In the case of a speech delivered in Parliament, a person against whom the speaker brought the most scandalous accusation might be prepared to show by the most conclusive evidence that the speaker had avowed he designed to bring false charges, and that he did so for the purpose of ruining a man against whom he had conceived a spite. For such a grievous wrong thus clearly proved, a court of law could give no redress. This is the true illustration of a privileged occasion an occasion upon which nothing that is said can ever be made the subject of action or inquiry before the ordinary tribunals of the land. No such privilege attaches to statements made on those occasions to which we have adverted-generally described as privileged communications. They are perfectly amenable to the law. Their character, and the motives which prompted them, are made the subjects of inquiry, and the law punishes them if they are malicious. The rule of law is this-that any man who intermeddles with his neighbour's character without being called on to do so is acting maliciously, if he inflicts injury upon that character. But if it be an occasion upon which he is fairly called on to canvass that character, and if he did so honestly, he is not malicious, although he may damage it ever so much. But the very statement of the rule implies that the statements disparaging to his character must be within the scope of the occasion, and they must be made in an honest belief of their truth. In reply to a proper inquiry as to the solvency of a trader, the person applied to may state that he has been a bankrupt, and insolvent twenty times; but if he went on to say that he knew him to be a profligate, this latter statement, unwarranted by the occasion, would be malicious. By bearing these principles in mind, we will have no difficulty in reconciling what may at first sight appear contradictory decisions, as to the limits of literary criticism. The publication of a book is a public act upon which every man in the community is entitled to comment. Every man is entitled to canvass the character of the author, so far as the occasion calls for it; but this is limited by the book itself. He has no more right to wander beyond these limits than in the case we have supposed would the referee have a right to impeach the moral character of the tradesman about whose solvency he was asked. The rule may be expressed in the most general form. No man has a right to injure the reputation, or even wound the feelings of another, except on an occasion and to the extent to which his reputation is a legitimate subject of discussion. Even on such an occasion he must confine his disparaging remarks within its scope, and he must make them in a fair and honest belief in their truth. In no case is he allowed to pervert the occasion to the indulgence of a taste for slander, or the gratification of private revenge. Let us apply these principles to the case of criticism upon a literary production. The severest criticism is not necessarily a libel, although it may hold up the author to hatred, ridicule, or contempt. The occasion is one which justifies the discussion of the character of the book, and of the author, so far as he is identified with the book. Nothing that is honestly written within the scope of that occasion is malicious. The very object of allowing criticism is, that fair discussion may expose imposture, denounce vice, reprove ignorance, and correct bad taste in publications which challenge the favour of the public. Upon these subjects every man in the community has a right to give his opinion to any one else, just as the person who is asked upon a proper occasion as to the character of another has a right to give his honest opinion of that character. So long as the critic confines himself to that which he is entitled to discuss, the character of the author as it appears in his book, and so long as he writes that which he honestly believes the demands of fair criticism require, he never can be guilty of the offence of a malicious libel. Whenever criticism is assailed in a court of law as libellous, the question resolves itself into this-Is it a fair and reasonable criticism upon the book? Lord Ellenborough long since laid down the true principle of law. In a case reported in the first volume of Lord Campbell's reports, an action was brought by a man of the name of Tabart against a journalist, in which the books he published for children were said to have an absurd, immoral, and im proper tendency. Lord Ellenborough said, and said truly, The main question here is quo animo the defendant published the article complained of, whether he meant to put down a nuisance to public morals or to prejudice the plaintiff. To ascertain this it is material to know the general nature of the plaintiff's publications to which the libel alludes. Liberty of criticism must be allowed, or we would neither have purity of taste or morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication, therefore, I shall never consider a libel which has for its object not to injure the reputation of an individual, but to correct misrepresentation of fact, refute sophistical reasoning, to expose a vicious taste, or to censure what is hostile to morality. Lord Campbell, in a note to this passage, declares that Lord Ellenborough, in another case, laid down the doctrine that it is not libellous to ridicule a literary composition or the author of it, in so far as he is embodied in his work; and that, if he is not followed into domestic life for the purpose of personal slander, he cannot maintain an action for any damage he may thus suffer in consequence of being thus rendered ridiculous.' This doctrine was asserted in an action tried before Lord Ellenborough, in which Sir John Carr, the author of Travels in Scotland and Ireland, brought an action for a criticism which ridiculed his productions, and aggravated that ridicule by the publication of a caricature. The latter circumstance was strongly relied on as a personal attack; and Lord Ellenborough said, that one writer, in exposing the follies and errors of another, may make use of ridicule, however poignant.'. . ' If,' he said, 'the book published by the defendant only ridiculed the plaintiff as an author, the action could not be maintained. If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuriâ. Where is the liberty of the press, if an action can be maintained on such principles? We really must not cramp observations on authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their composi |