THE LAW OF LIBEL.

Hawke's Bay Times, 17 August 1863, Page 2 (Supplement)

THE LAW OF LIBEL.

£-2fVoj« the Tlmes.~\

Any decision which increases, or appears to increase, the stringency of the Law of J.ibel affects the interests of the public quite as nearly as t hose of the Press. There are many more readers than writers, and (lie style of the latter is for the most part governed by the taste and conscience of the former. Since the days of Erskine the latitude allowed by the law to newspaper criticism has seldom needed to be defined. A certain instinct and experience of public opinion, rather than any absolute fear of legal proceedings, restrains the editor of a respectable journal from publishing defamatory matter in its columns. It is not easy to draw the line, in theory,‘’between public and private character, between fair comments on a man’s conduct or literary works and personal attacks, between the indication of a tendency and the imputation of an intention, between a statement from which some damaging inference cannot fail to be drawn and the direct assertion of that very inference as a fact. Still, justice practically regulates the liberty of anonymous writing, and (he parties who'wince under hostile strictures seldom find it worth while to put themselves on their trial by appealing to a jury. Such an action as that of “Campbell v. Hpnttiswoode” is now very rare. It has been said that injured persons arc often deterred from coming forward by the difficulty of proving malice, but the sufficient answer to (his argument is that malice need not be proved, since the law presumes it in the case of a libel, unless attending the publication rebut that presumption. A much better reason for this reluctance to seek redress by legal means is the probability that further exposure will bo the consequence, and that increased currency will be given to stories which the aggrieved party has good reason for wishing to suppress. That the publishers of journals arc so seldom brought to account for slanderous articles is the best possible proof tiiat (he daily and weekly Press seldom oversteps the proper boundaries of free discussion, except when misled by erroneous information, in which case the wrong done may bo remedied by a retractation. It remains to be seen whether the evidence in “Campbell v. Spottiswoodo” justifies the conclusion of the jury that these bounds were transgressed, and that the plaintiff was entitled to f.oO damages. It appears that there was once a paper called the British Banner , and that there are still papers called the British Ensign and the British Standard, edited by a Rev. Dr. Campbell. This gentleman’s voice having filled him, ho established these formidable periodicals under martial titles as leading organs of British Protestantism, and devoted himself especially to two subjects, the education of the Prince of Wales and the conversion of the Chinese. With the former object in view, he wrote and published in the Ensign during 18G0-61 a series of letters to the Prince Consort, warning him emphatically against the danger of permitting the Heir Apparent to visit Home, the spiritual perils of his excursion through the Roman Catholic provinces of Canada, and the fatal error of sending him to the University of Oxford, seeing that, “ taken as a whole,” it was —not in our own time, hut “during the last and former generations” —“ the most irreligious portion of the King’s dominions.” It docs not appear what impression these letters produced upon the illustrious personage to whom they were addressed, but it is certain that they added 100,000 copies to the circulation of the paper, —a result which is truly amazing, even if it is to bo explained by the deep interest of casual, customers in the religious principles of their future Sovereign. At all events, Dr. Campbell was satisfied with his success, for he proceeded in 18G1 to indite a long letter to her Majesty relative to the discouragement of Christianity in India, and followed it up bv a new series on our duly towards “ the lost millions of the land of China.” The means by which this great evangelical work was to be accomplished were as simple as the end was glorious. If the whole nation would but give orders for conies of the Ensign, to bo distributed gratuitously among the heathen, a third part of mankind might he added to the Christian Church. This prescription “does sound odd,” as the Lord Chief Justice remarked, “and provokes the suggestion (hat it is not so much the interests of religion which the man had in his mind as the promotion of the circulation of his own paper.”

Now, this was exactly the light in which our weekly contemporary, the Saturday Review, regarded it. In the two piquant articles which were the subject of the action the writer avowed his belief that subscriptions to the Ensign, rather than the orthodoxy of the Prince of Wales and the souls of the Chinese, were the main objects of Dr. Campbell’s solicitude, lie even spoke of this system of puffing as “ scandalous and flagitious,” and suggested the possibility of its being gro.ssly abused by an “ impostor” or “religious speculator.” He alluded, moreover, to “the well-known device of publishing lists of subscribers, the authenticity of which the public have to say the least | no means of testing,” and betrayed a sceptical cuj riosity about the genuiness of certain signatures in i ii ? £ q*' subscribers to tin? IZaslcjii, T’lu? | containing these critisms, pungent and caustic 1 in themselves were set off, no doubt, by a sarcastic ! tone prevading the whole context, and may very | probably have “touched Dr. Campbell to “the I quick,” as his counsel says they did. The question, however, is not whether they were calculated ‘•o give pain, but whether they were libellous in the legal sense, and not protected by any privilege. “ That publication,” says Lord Ellenborough in a famous case, “ I shall never consider as a libel “ which has for its object not to injure the reputa- “ tion of any individual, but to correct misrepre- “ sentations of fact, to refute sophistical rescuing, “ to expose a vicious taste in literature, or to ecu“sure what is hostile to morality.” There can he little doubt that the writer of the Saturday Review imagined himself to be furthering all these objects and there was no reason to call in question his good faith, whatever might be thought of his charity. On the other hand, it is but just to admit that the plaintiff, while he necessarily failed in the hopeless task of “ refuting a sneer,” successfully rebutted the suspicion, for it did not amount to a positive charge, of having fabricated the .names of subscribers. Hr. Thompson, who must we presume, be related to “ the Hon. Charlotte Margaivttu Thompson, Prior-park, Hath,” hut whose existence haul been challenged as shadowy and mythical, came in the flesh into (he witness box, and protested indignantly against being classed with Mrs. Camp's Mrs. Harris. On this ground Dr. Campbell has a fair right ,fo his triumph, such as it is, though we cannot say that the glimpse which we get into that literary world of which the Env'yn is the luminary inspires us with any wish to know more of its secrets. Hut this is not the main point on which the Lord Chief Justice insists. He goes the length of holding that the imputation of mercenary motives to the proprietor of a newspaper is analogous to an allegation that a statesman has sold his political integrity, that a General has betrayed a iortress to the enemy for the sake of gain, or that a diplomatist has been bribed into sacrificing the interests of his country in a treaty. "With all our jealousy for the honour of the Press, we cannot admit the relevancy of such parallels. It would, indeed, be possible for a transaction between the proprietor of a journal and an unscrupulous party agent to be as base and corrupt as any of these ; but this was not the nature oft lie proceeding laid to the charge of Dr. Campbell. 11 c was not accused of violating a public duty or of prostituting a public trust, but of selecting topics for agitation on commercial principles not quite inconsistent with a sincere fanaticism. Slight as this dist inct ion may seem, it is of great practical importance, especially when viewed in connexion with the doctrine laid down bv the Chief Justice as to the degree of blame which a writer may safely attribute to a public man. He must stop short, according to this exposition of the law, of “ascribing to him corrupt and dishonest motives ” Yet it has been held by the whole Court of Common Pleas that an article headed “Encouraging Servants to Hob their Masters,” and pointing out that a particular handbill was a temptation to dishonesty, was privileged, and therefore not actionable. Nov had the reports of former cases of libel prepared ns for so strong a statement as that the imputation of sordid motives cannot bo excused by proof that it was made lona fide, but excused by proof of its truth, —a proof of which the subject-matter may not admit. We are glad to observe that this point was so reserved by the form of the verdict that it can bo raised again and argued before the full Court. Wo have no sympathy with a claim of impunity for those who malign others out of spite or revenge, but if a journalist may not honestly warn the public against an attempted fraud, without being able to demonstrate its criminality, a most useful function of the Press will be seriously impeded.