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tions be ridiculous. Show me,' he added, 'an attack on the moral character of the plaintiff, or any attack upon his character unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him; but I cannot hear of malice on account of turning his works into ridicule.'

Particular expressions of Lord Ellenborough have been cavilled at by some of the judges who succeeded him. No one has ever impeached the principles he has laid down. In one of the cases, it will be observed, the question turned upon a caricature that put the author in a ridiculous light, and even this Lord Ellenborough held not to be libellous, because it ridiculed him as the author of his book. In the other case, the imputations amounted to the charge of one of the gravest moral offences; but they were held not to be libellous, because they rested on fair comments made upon the works which the plaintiff had published.

It was, however, reserved for our day to have pronounced from the bench the clearest and most satisfactory statement of these principles of law which is to be found in any of our reports. Upon two occasions questions of this nature were brought before the Lord Chief Justice of the Common Pleas, Sir W. Erle, a judge in many respects worthy to rank with the greatest of those who have preceded him. In one of them he clearly and distinctly enunciated the principles which we have laid down [as those of English law. In 1860 a marine-store-dealer, of the name of Paris, brought an action against the proprietors of the Daily Telegraph newspaper for a very severe comment upon a handbill he had issued, the effect of which was, that the handbill was an inducement to servants to rob their masters. Sir W. Erle, who tried the case, charged the jury in accordance with the rules which we have spoken.

I need do no more than refer you to the articles to show that they are defamatory, and tended to bring the plaintiff into ridicule and contempt; for they impute to the plaintiff that he gave great facilities to dishonest servants to bring the fruits of their dishonesty to a market, and

that he holds out temptations and encouragement to servants who are wavering on the line dividing honesty from dishonesty to step over and become dishonest. But then the plaintiff is not entitled to your verdict for defamation, unless he establishes that the defendant was actuated by malice. The law, however, does not require that the plaintiff should show personal ill-will in the sense of private hatred, but that the defamatory publications were published without any of those causes which the law considers will justify them. Such causes excuse the publication, because they show that the party was not actuated by any corrupt or malicious motive in saying that which tends to defame the character of another. There are many actions well known to the law which justify the use of defamatory words, on the ground that malice is negatived. In criticism on matters which have been published by the complaining party, Lord Ellenborough laid down, in a case where a journal had criticised books that had been published dangerous to morality, that liberty of criticism must be allowed, or we should neither have purity of taste or morals. That publication I should never consider a libel which has for its object not to injure the reputation of any one, but to correct misrepresentations of fact, or to censure what is hostile to morality.' If you find, therefore, for the defendant, it would be on the principle thus laid down.


In another and a later case, one that has attracted no little attention, in which Mr. Turnbull brought his action against the Protestant Association for imputing to him that his principles were such as would lead him to destroy the records intrusted to his care, Sir W. Erle again plainly states the rule

There is no doubt [he said to the jury] in this case that the matter complained of is libellous, and would entitle the plaintiff to your verdict, unless the defendant can establish a defence.

Now the law is, that defamatory matter is presumed to be libellous, unless it is published in the performance of any duty, legal or moral, or in the exercise of any right.

The defence on the present occasion comes under the last head, as a matter necessary to the protection of the public interests, or the exercise of a public right.

And the law is that a man may publish defamatory matter of another holding any public employment, if it is a matter in which the public have any interest within the limits which I will lay down in accordance with decided cases.

Every man has a right to comment on the acts of a public man which concern him as a subject of the realm, if he do not make his comments the vehicle of malice or slander.

The rule, then, which is applicable to every case of discussion of public conduct is this:-The question whether any comment upon such conduct is or is not a malicious libel depends upon two others: first, is that comment confined to matters within the limits of the occasion which justifies the publication of defamatory matter? and, secondly, is it a fair and honest use of that occasion? In other words, is the comment such as a fair and reasonable man might honestly make upon the transaction on which he has a right to comment? To make statements affecting the author of a work unconnected with his book is plainly to transgress the limits of the occasion; but no comments which are fairly suggested by the book itself can ever be a malicious libel within the meaning of the rule.

With this rule there is nothing in the decision in the case of Campbell and Spottiswoode to confront. There are two elements necessary to bring defamatory matter within this rule: it must be legitimately within the occasion of writing, and it must also be honest. The jury had found in that case that the publication was a libel. That finding implied that it exceeded the limits of just criticism on the book. The judges decided that if it did so, it would not be justified by the belief of the writer in the truth of

imputations which he made. Imputations on character to be justifiable must not only be made honestly, but they must be made on an occasion which legitimately calls for them. But in every case in which an action is brought for criticism on the publication of a book, or on any other transaction on which men have a right to comment, the question must be left to the jury whether, taking all the circumstances into consideration, the comment is one fairly and legitimately arising from the transaction itself. If it be so, no matter how severe or defamatory, it never can be a malicious libel if the

writer honestly believes in what he writes.

That we have exactly stated the effect of the judgment in the case of the Saturday Review, the language of the judges who pronounced it clearly proves. They all assumed that it was an established fact that the imputations cast upon Dr. Campbell had no foundation in the facts on which the Saturday Review was commenting that they therefore were not warranted by the occasion; and upon this ground they held that it was no answer to the action to say that the writer honestly believed them to be true. Assuming the facts, the rule of law is plain: no man has a right to interweave with his comments upon public conduct his own suspicions, or even his own knowledge derived from sources apart from that conduct. All inferences which may be fairly and reasonably drawn from that on which he has a right to comment he may draw; but to go beyond this is obviously to overstep the limits of the occasion, and to come within the rules which apply to ordinary cases of injuring the reputation of another.

It seems to me [said Chief Justice Cockburn] that the line must be drawn between hostile criticism upon a man's public conduct and the motives by which that conduct is supposed to be actuated; and that you have no right to impute to a man whose conduct you assail, and who may be fairly open to your attacks, base, sordid, and dishonest motives, unless there is so much ground for the imputation that a jury shall think not only that you have an honest belief in your statement, but that your belief is added) the jury could not have been asked, not without foundation. In this case (he with any hope of success, to say that there was any foundation for the imputations.

It is always a question [said Justice Crompton, following the Chief Justice], it is always a question for the jury whether the comment is fair or not, and they should not, I think, look too minutely at particular expressions, but have it left to them whether as a whole it is fair. But when a writer goes further, and imputes base motives not warranted by the occasion, it is no defence in point of law that he bonâ fide believed he was publishing what was true. first question to my mind in such cases as the present, is whether the writing is a libel or not. It is no libel if it is within the limits of fair criticism.


Where a party [said Justice Blackburne] has made public a statement bearing on public matters, and by making it public has justified comments, all the Queen's subjects have a right to comment upon it, and if they do not exceed their right they are not. guilty of libel. The question here is, whether the article exceeded fair comment on what the plaintiff had written. In this case it became quite obvious, that if the comments went the length of imputing sordid motives they exceeded fair comments; if they did not do so they were fair comments.

It is quite plain that if this had been a case in which the jury had found that there was in the plaintiff's conduct anything from which the imputation might reasonably have been inferred, all these judges must have held that there was a defence to the action. There is not a word in these judgments to shake the great principle that fair comment upon a public work or a public transaction can never be a libel, and that whenever it is desired by the defendant it must be left to the jury to say whether the comment is a fair one upon all the circumstances of the


that the alleged motive was not the true one, and that another was apparent. A motive, although not stated, may be transparent; without the statement of a false one it may be disguised. No one, we apprehend, would write a libel on Tom Paine who would say that the motive of the Age of Reason was to impeach the authority of revelation. Suppose that Paine had artfully disguised his infidelity, and endeavoured to undermine the faith of the young under the guise of defending Christianity from attack: would any man venture to say that the criticism was a libel which from internal evidence exposed the real motive of his book? Vile and lascivious publications have been given to the world under the avowed pretence of inculcating lessons virtue. The critic who unmasks hypocrisy like this does a service to the cause of honesty and morality.

In judging of the imputation of motives, there is and there can be but one test. Is that imputation honestly suggested by the occasion on which the writer is entitled to comment, or is it made under pretence of that occasion-from the evil passions or the carelessness of the writer-from any of those motives which the law designates as malicious?

Neither must it be understood that it is necessarily libellous to impute motives. No judge could lay

this down as an absolute rule of law. The true test is that laid down by the Lord Chief Justice-does the occasion commented on supply a fair foundation for such imputation? In many cases, perhaps in most, the imputation of motives is in itself sufficient to give to the criticism the character of being malicious. It is but rarely that a discussion of the author's motives forms a legitimate portion of the criticism on his book. But this, like everything else, is only one of the elements to be considered in determining whether the unfavourable comment is within the limits of fair criticism. If motives legitimately come under discussion, then motives may be imputed. An author might avow the motive of his publication. In this case no one would pretend to say that the reviewer was not at liberty to canvass and to state it. But he would be equally at liberty to say that the whole book showed

But we go further, and say that no rule can be laid down that even attacks upon what is termed private character do necessarily make a cirticism malicious. There is one class of criticism which in its very nature involves an attack upon private character. When it is written of a man that he has published an irreligious, an immoral, or a treasonable book, a heavy imputation is made upon his character, and if such an imputation were made against a private individual who had never published a book, it would entitle him to heavy damages. If the same thing is said of a book which he has published, it is still the same reflection on his private character; but it is not libellous if it be a fair comment on his book.

Let us, however, find another case, a case which has actually occurred. Suppose a man prints an autobio

graphy, in which he publishes to the world his own shame, in which he describes himself as running a career of profligacy and vice. It would be absurd to say that such a book could be honestly criticized without assailing the personal conduct of the writer, and denouncing the conduct which he attributed to himself--conduct aggravated by the effrontery of its unblushing disclosure. We have seen men write histories of their own successful impostures. No one ever called the criticism a libel which expressed indignation at the artifices which were coolly narrated by the man who had successfully practised on the credulity of the public. No libel can be a grosser one in the eye of the law than one which aims at a man's profession, and his means of bread. Yet, were a clergyman to publish a blasphemous pamphlet, no one would say that the critic would be liable to an action who would suggest, in a review of that pamphlet, that his bishop ought to take steps to deprive him of his gown.

There is, we repeat, but one rule by which every criticism can be judged:-Is it a fair and reasonable comment on the matter which the critic has a right to discuss? An author does not, by publishing a book, give license to every man who judges him in his book to pursue him in the details of his private life; but he does a public act in giving his book to the world, and on that act, and on all that is legitimately to be inferred from it, the right of free discussion attaches. No man has a right to impute to that or any other act, motives which are not fairly to be inferred from the act itself. If he choose to assign motives which he alleges to exist, independent of the evidence to be drawn from that which is open and patent to everybody, then it is plain he has done that which is beyond the limits of the discussion on which he is entitled to enter. The principle is still plainer if he alleges a fact-in assigning a motive as in the case suggested of a criticism on a decision of a judge-which asserted that the judge had been bribed to give it. It is

clear that this would be the allegation of an independent fact, and an allegation highly libellous in its character. But if Judge Jeffrey were to reappear on our Western Circuit, we apprehend no jury would ever convict a man of libel who asserted that his conduct was influenced by some other motive than a desire impartially to discharge the duties of a judge. Yet there are cases in which such an imputation would be unhesitatingly pronounced libellous, because, in the one case it would be a comment fairly arising from the transaction, in the other it would be manifestly a wanton imputation, the dictate of malice.

It is necessary to distinguish between this defence and that which is founded on the truth of the imputation. The defence of which we have been speaking is a denial of the very foundation of the action-a denial that the publication complained of is libellous at all. To sustain this defence it is not necessary to prove the truth of the imputations; it may even clearly appear that in point of fact they were unfounded. It is enough to say that they had fair foundation in the circumstances commented on; that they amounted to nothing more than a fair comment upon the public acts which were under discussion, and that the writer made them honestly and fairly. If these things are established, they refute the presumption of malice which the law derives, and justly derives, from the mere fact of a publication which injures another.

The defence to an action which is founded on the truth of the accusation rests on wholly different principles. It admits that the publication may have the malicious character imputed to it, but it sets up a bar to the recovery of any damages by the statement that the publication is true; and that no man is entitled to compensation for any injury he may suffer by having his real character exposed. This defence does not deny the wrongful act, but only denies the plaintiff's right to compensation. The difference will be at once apparent by remembering that in criminal proceedings for


libel,* the truth of the libel is no defence; it is only when the party libelled seeks redress in the shape of money compensation that the truth of the imputation can be used in a court of justice in answer to his claim. The greater the truth the greater the libel' is the maxim of the law; but no matter how great the libel, no man can obtain pecuniary compensation for a libel that in reality has done no more in the eye of the law than deprive him of a character to which he never had a right. The act which has done so may be a wrongful one, for which the party committing it is liable to punishment, but it is not an injury for which the law will award compensation. When an action of libel is defended on the ground of the privilege of free discussion, the defence admits the damage, but denies the wrongful act; when it is resisted by pleading the truth of the libel, it admits the wrongful act, but denies any damage cognizable by the law. The first is damnum absque injuriâ, the second is injuria absque damno.

It is, of course, with the first defence only that we are dealing in this paper. Imputation upon character made honestly upon a lawful occasion is not a wrongful act. Whenever this question arises it is the duty of the judge to tell the jury the occasions which the law considers lawful. If there is any dispute upon the subject, it is for the jury to say whether the imputation has been made honestly and within the occasion.

In every case of criticism upon a publication there is the lawful occasion for discussing the book, and the reputation of the writer so far as it is involved in his book. It is for the jury in each case, upon a review of all the facts, to say whether the criticism does more than honestly discuss these matters. In

all the varying and innumerable forms which written comment may assume, it is impossible to lay down rules which meet with precision the minute details of each case; it must be left to the common sense of the jury to apply the principle. But the law binds them by no other rule than this: if the criticism be a fair and reasonable criticism upon the publication on which it comments, then it is not a libel; if it be not such fair and reasonable comment, and convey imputations unwarranted by the occasion, then it is a libel, entitling the party injured by it to compensation for the wrongful act.

But this we say unhesitatingly, that no judge can ever withdraw from the jury the question of the character of the publication on which the action is brought. He can fetter their discretion in deciding it by no absolute rule of law more stringent than that which tells them that every defamatory comment not legitimately arising from the fact of the authorship of the book criticised is a libel, more than this no man commenting on public matters can justly claim; and while it is left to juries to apply this law in every case in which either civil or criminal proceedings are instituted for libel, the liberty of the press and of criticism is perfectly secure. In every case the counsel who defends the person against whom such proceedings are instituted has a right to insist upon the judge leaving that question to the jury. If he accompanies it by any positive direction of law which would compel them to find that question upon any other principle than their own view of all the circumstances, the court of appeal would beyond all question correct this error. If, for instance, any judge were to tell a jury that there was a general principle of

*The Act passed some years ago by Lord Campbell is no exception to the rule. In cases of libels upon matters relating to public matters, that Act permits the party indicted for libel to plead as a defence that the facts stated in the libel are true, and that it is for the public interest that they should be stated. This statute really expands and defends the principle we have above stated as to the discussion of matters affecting the public. It extends the privilege of that discussion by permitting a writer not merely to comment on facts which are already public property, but permits him to use his own knowledge of other facts if he is prepared to prove their truth, and to show that the public interest required him to state them.

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