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part of the attorney ; a client would never be likely to suspect that his attorney, from secret motives of interest, was selecting an advocate for him whom otherwise he might not have chosen. It is conduct, therefore, promoting deception, and likely to generate suspicion where confidence should prevail. If such a practice were tolerated, it would lower the character and honour of both branches of the profession, and would be injurious to the public, not only by reason of such debasement, but also by its tendency to introduce into, or maintain in, the practice of their profession men more distinguished by the pliancy of their principles than by the gifts of nature, improved by an industrious and honest pursuit of eminence by honourable means.
Gentlemen, do not deceive yourselves-what I have now read to you is the only part of what Mr. Seymour calls the libel which gives him the smallest pain. That is the real libel. If Mr. Seymour had not thought proper to make it public, Mr. Butterworth might not perhaps strictly have had a right to print and publish it. That is the libel. Take that out of the article, and there is nothing in it that would do serious damage, or perhaps any damage, to a gentleman in Mr. Seymour's position.
Now let us see what observations have been made by Mr. Seymour's Counsel upon that libel. I cannot but regret (and I say
it with the most unaffected respect for my learned friend Mr. Lush) the sort of apology which he has made for Mr. Seymour in respect of that last charge, the charge of offering to hold briefs for an attorney in any Court in order to discharge an amount of costs due to him. My learned friend seems to think that although it was a breach of etiquette, it may be justified on a principle of honesty.
LORD CHIEF JUSTICE COCKBURN :-No-not justified-palliated. Mr. SERJEANT SHEE:-Palliated, then.
LORD CHIEF JUSTICE COCKBURN :- I should have been very sorry to hear Mr. Lush say that it was justified. Mr. Lush:
-I never said that it was. Mr. SERJEANT SHEE:-Then I beg my friend's pardon—that it was palliated by a principle of honesty. I think, gentlemen, that you will be of opinion, for the reasons given by the Masters of the Bench, that it is conduct which is wholly inexcusable. I cannot avoid adding, that even feelings of honesty need not have led Mr. Seymour to that breach of professional etiquette. Mr. Seymour was at that time, according to his own statement, a prosperous member of the Bar. Surely he might have paid the costs out of fees received from other attorneys besides Mr. Brown. There was no difficulty in his doing that I will not dwell longer upon that part of the senteuce
pronounced upon him by the Bench ; his misconduct in that respect remains entirely unexcused.
Gentlemen, my learned friend says that the rest of this libel ought to have been justified by the defendant. I apprehend that it will be quite plain to everybody who reads it, that Mr. Seymour must have known perfectly well that it was practically impossible that the defendant should justify any of the substantial parts of it. Just conceive what he must have done had he been advised to adopt that course. He would have had to take every allegation in this -sentence of the Benchers, and to have asserted the truth of all the material parts of it; for instance, he would have had to take issue upon the question, whether there was a necessity for the inquiry; whether there was much in his conduct worthy of severe condemnation ; whether there was evidence of a want of open dealing towards, and concealment from, Mr. Parker ; whether Mr. Parker's agreement with Mr. Seymour was inconsistent with the substitution of Mr. Seymour's credit for the money which Mr. Seymour undertook to add to Mr. Parker's to promote the printing scheme ; whether it was true that no solid ground presented itself on the evidence in justification of an affidavit which Mr. Seymour had made for postponing the trial of the action brought by Mr. Parker against him to recover the £500 ; whether, with respect to Captain Robertson's case, there was in Mr. Seymour's statement in relation to that case, & want of consistency which indicated some recklessness of assertion, and whether it was true that he had generously taken upon. himself very large liabilities (amounting, I believe he says now, to £40,000) not in any way belonging to him, as he asserted himself to have been totally unconnected with, and innocent of, the transaction termed “rigging the market.” All this, according to my learned friend, ought to have been put in issue. That is to say, that the defendant, Mr. Butterworth, in order to defend himself in this action, ought to have undertaken to go through all the evidence which had been heard before the Benchers of the Middle Temple, with a view to prove the truth and justice of the observations which the Benchers of the Middle Temple had made. Why, gentlemen, Mr. Seymour knew perfectly well that it was quite impossible for Mr. Butterworth to do anything of the kind. Mr. Seymour also knew that Mr. Butterworth could not be fairly called upon to do so, because in truth Mr. Seymour had himself made the whole matter the subject of public discussion, by inviting public discussion to it, and had thereby challenged those who write in
Mr. Butterworth's magazine to re-open a matter so intimately connected as this was with the honour and character of the Bar.
Gentlemen, there is one other observation which my friend Mr. Lush made, to which I venture humbly to take exception. My learned friend, Mr. Lush, without distinctly saying so, seemed to suggest that a distinction ought to have been made by the Benchers of the Middle Temple between Mr. Seymour's professional and his commercial character, and he seemed to think (though he did not distinctly say) that they had stretched a point when, looking beyond the professional character and conduct of Mr. Seymour, they inquired into his commercial transactions. Gentlemen, I apprehend that that is a great mistake. It is the duty of the Benchers of the Inns of Court to take care that the Degree which they confer shall not be used as a credential by a professional impostor to obtain the confidence of the public. If they find that a man after he has been called to the Bar has disgraced himself by conduct in other pursuits, surely they ought not to allow him to have that opportunity of doing mischief which his position as a barrister gives. Surely, when the public know or believe that no one is allowed to be a member of an Inn of Court, or a member of the profession of the Bar, who is proved to have been guilty of dishonourable conduct—and dishonourable conduct is charged against one of the members of their Inn-it is their duty to take cognizance of the charge, whether it relates to professional matters, or matters unconnected with the profession. I apprehend it was the duty of the Benchers of this Inn of Court, when these matters came before them, to inquire into all the circumstances of the case, and to ascertain, aye or no, whether Mr. Seymour had been guilty of that which had been charged against him.
Let us now, gentlemen, proceed and see what the defendant's course is. Not justifying the libel, because it would have been impossible to justify this, the material part of the libel,-namely, the judgment pronounced by the Benchers,—he defends himself on the ground that the judgment of the Benchers was a fair matter of public discussion, and that it had been made public by Mr. Seymour himself. The writer of the second article read by my learned friend, says:
“We shall place the article in question confidently in the hands of a jury, as a fair and reasonable comment on notorious facts, written with the same knowledge of the circumstances as the whole public possessed, mis-stating nothing, suppressing nothing, and consisting, in a great degree, of materials supplied by Mr. Digby Seymour himself.”
Now, if the publication of this article is within the limits which are here laid down, I apprehend that the defendant is in law justified, and that you ought to say he is not guilty upon this record. If you should think that the article is not within those limits, that it does not relate entirely to matter which in its nature is a fit subject for public discussion, or matter made public by Mr. Seymour himself, you may have to consider to what damages Mr. Seymour is entitled ; but if you are satisfied that the matters discussed are matters of public interest and importance, and that in discussing them Mr. Butterworth, or the gentleman who wrote this article, has not deviated from the fair path of public discussion to asperse Mr. Seymour's private character, then I apprehend Mr. Butterworth ie entitled to your verdict, and, subject to anything my lord may
tell you, I also submit to you, and to my lord, that if there be any matter treated of or dealt with in this article which is not in its nature public, but matter rather for a domestic forum, yet, if Mr. Seymour has made it public, if he has invited public discussion to it, the pro.. prietor of the Law MAGAZINE had a good right to discuss it, and cannot be made liable in damages for having done so.
Allow me, gentlemen, for a moment to call your attention to the general character of this magazine. It is confined entirely to matters of legal interest. You will see at a glance what the scope of the publication is. I will take the articles in the next preceding number, and the articles in the number complained of : “ Sir John Patteson,” (the late eminent Judge,) “ International General Average,” “ Ancient Irish Conveyancing," "The Rights, Disabilities,
" and Usages of the Ancient English Peasantry," " Inner Temple Benchers," “ Disbarment of Edwin J. James, Q.C.,” “ Sugden on Powers," The Affair of the Trent,” “ Practice of the Divorce Court,” “ Disunion of the United States," “Right of Secession."
, Then the articles in this number are—“ Holy Orders as Disqualifying for the House of Commons or the Bar," “ International General Average," “ The Rights, Disabilities, and Usages of the Ancient English Peasantry,” “ The Machinery of Legislation,” “ The Science of Civilization," “ On Equitable Interests in Ships," “ The Law of Judgments," “ On Charitable Trusts," “ On Insanity and Prodigality,” “ Decrees Nisi in Divorce," and then comes “ Case of W. Digby Seymour, Q.C., M.P." You see, gentlemen, it is a magazine and review, which professes (and this is the twenty-fifth number of a new series, for I think it has been in existence for thirty years,) to discuss all questions interesting to the profession of the law, connected with the law of the land, the law of foreign countries, and
the law of nations, and before this number of it appeared, the conduct of an important branch of the profession, nay, of two most important branches of the profession, the conduct of the Benchers of the Middle Temple, and of that large and important subdivision of the Bar, the Northern Circuit, had been made the subject of public discussion and condemnation by Mr. Seymour himself, insomuch that the Benchers of the Middle Temple had been arraigned before the public as persons who had either done great injustice to Mr. Seymour, or great injustice to themselves, and to the profession of which they were members; it being broadly asserted in various public newspapers, and in other publications, that if the charges on which Mr. Seymour had been censured were true, and if that censure was deserved, the Benchers of the Middle Temple had not been true to their trust, and that they ought to have disbarred him.
Next, let us see what are the public questions involved in this inquiry, that we may be enabled to form a fair opinion of the manner in which they are discussed.
I submit to you that one of the public questions raised by the conduct of Mr. Seymour, and by the documents to which he had given publicity, was this—and it is a very serious one-Are the Benchers of the Inns of Court a body to which the discipline, the professional government, the supervision and correction of the members of the Bar can, with a due regard to its honour and the protection of the public from professional imposture, be safely entrusted ? That was an important public question, raised by what had taken place in Mr. Seymour's case, and by the publicity which Mr. Seymour had given to it, and I am much afraid that there does exist a very strong opinion, that if that censure passed upon Mr. Digby Seymour deserved, the Benchers of this Inn of Court faltered in the performance of their duty, and that they ought to have disbarred him. It is plain that such a question as that was a very fit and proper question for public discussion, and I much fear that, provided their censure was sincere and honest, there is reason for saying that the Benchers were misled, by pity for Mr. Seymour, from the course which they ought to have taken—that of disbarring him. Now that that is the impression which existed in the mind of the person who wrote this article seems to be perfectly clear, and it is one which he had, as I submit to you, a right to state, and a right to enforce by all fair arguments, abstaining, as it was his duty to abstain, from any observation which did not properly belong to the question, and any observation tending to impugn the private character either of the members of the Bench or of Mr. Seymour.