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than whom no one could be more safely relied on for a fair and correct statement of the law, seems only to have relied on the allusions to private conduct, and on evidence of malice. He said:

“I shall ask whether it is a fair and legitimate comment upon a man's public career, or whether it is not a malignant and studied attack upon his professional life, dictated by private ends. I am here not to say one word against the liberty of the press ; on the contrary, I hold that, as Englishmen, we have no greater social right than the right of free discussion ; still it is necessary for its very maintenance that it should be guarded and preserved within its proper province. I admit that in the newspapers the conduct of every public man, from the highest in the realm down to the lowest, may be freely discussed. The conduct of any member of Parliament in his public capacity may be discussed; nay, the very investigation in which we are now engaged may be fully criticised.

But men must not go beyond that: if they invade the sanctity of private life, and groundlessly impute corruption in the relations of that private life, then the liberty of the press is abused, and the interference of the law may be justly claimed. If this publication had contented itself with a mere criticism upon Mr. Seymour's Parliamentary conduct, if bonâ fide, however severe it may have been, it would not be liable to an action; and the same is true of similar criticisms upon his professional career. But rumours, mere rumours of charges which had taken no fixed shape, such as these, no man had any right to embody in a published attack against any man. Nevertheless, this writer has done so, and he has chosen to embody every rumour which he found afloat in his indictment against Mr. Seymour. I ask you to consider, is it not manifest that the man who penned this article was influenced from first to last by personal motives to endeavour to crush Mr. Seymour, socially, politically, and professionally."

That is to say, (as we collect,) the learned counsel did not consider that his client could complain of the strictures, however severe, on his conduct in Parliament, but only of the embodiment of rumours as to the charges of private misconduct, the Benchers' report not having been generally published.

* Foster & Finlason.



He appears to have admitted that the act would have been fair subject of comment; and as to that, relied on evidence of motive. This was putting the question, as we conceive, quite correctly in point of law, as to the form in which it arose. The Lord Chief Justice, however, ruled, and as we conceive rightly held, that the private conduct of the plaintiff, in so far as it went to show whether he was a fit and proper man for judicial functions, was fair subject of comment; and that, for that reason, the inquiry before the Benchers, though a purely domestic forum, was also fit subject of public discussion. He said :

“No doubt the stinging part of the article was that which related to the charges which had been made the subject of inquiry by the Benchers, and he differed from the learned counsel for the plaintiff, when it was contended that under no circumstances could private conduct form a proper subject of observation for a public writer. Mr. Seymour did not occupy the position of a private individual, nor was it as a private individual that his conduct was made the matter of inquiry. Mr. Seymour was a barrister, and, as such, was subject to the domestic forum of the Benchers. It was beyond dispute that if the conduct of a member of an Inn of Court was such as to be unworthy of a gentleman, he was within the jurisdiction of the Benchers of his Inn. In the same way as officers of the army were subject to investigation when charges were made against them of conduct unbecoming officers and gentlemen, barristers were subject to the jurisdiction of the Benchers if their conduct was unbecoming the profession and unbecoming gentlemen. The Benchers exercised their jurisdiction partly for the protection of the profession and partly for the protection of the public—for the protection of the profession, that it might not be disgraced by having enrolled among its members those who dishonoured and discredited it; and for the protection of the public, that their confidence in the rank of the barrister, being a sufficient test of the trustworthiness and honour of each individual member of the Bar, might not be misled and abused."

And, upon this, the most important part of the case, the

Lord Chief Justice appears also to have held that the comments made were within the privilege ; though it is not quite so clear whether he meant to leave it to the jury to say if they were fair; or to tell them that in his opinion there was no evidence of excess or of malice-which latter we conceive would be the proper way of putting it.

“ The writer added no facts of his own, and was not responsible for the facts. A tribunal of competent authority, the writer said, had made public a sentence reflecting upon a public man, and that man, upon whom censure was passed, had taken no step, either by publishing the evidence or by appeal to a superior jurisdiction, effectually to vindicate himself from the sentence. Surely it was a fit subject for public animadversion, whether the person censured was fit to occupy the position of barrister, judge, and member of Parliament. There was no attempt to add any facts, and the writer, proceeding to make comments, said to the effect that, until Mr. Seymour took the course which was open to him, of bringing before the public the whole of the evidence which had been taken, and of which he was in possession, so long there would be nothing but his assertion to meet the sentence, and so long the writer would take the liberty to say the sentence was well founded, and the facts upon which it proceeded incontestable.”



And we

We may observe, however (as this appears to imply that public writer can draw no inferences), that the writer drew an inference, and a rather strong one! but which we conceive he was quite warranted in drawing, as to the course which the Benchers in his opinion ought to have taken. protest against the implication that a public writer can never add facts, either by way of inference from that which is fit subject of comment, or from those materials along with other public facts. It is confining the right of discussion within very narrow limits to restrict it to mere criticism or comment on what

within the four corners of a particular document or on the face of particular papers. There is the question of the time at which it is put forth ; the relation which it has to past, or present, or impending circumstances, or to past declarations or notorious obligations of the party whose acts are the subject of discussion. All this, hoowver,

may appear

. must depend, of course, upon the particular circumstances of each case.

The great point for which we contend is, that within the limits of the fair scope and subject of comment, a public writer has an immunity, so long as he is in the honest exercise of his right of public discussion. If this was not clearly asserted in the case, it seems to have been implied, and at all events was not denied.

The test is made the honest exercise of the right of free discussion as opposed to an abusive pretence of its exercise. In that sense the word was used by Lord Chief Justice Cockburn himself in the case of Seymour v. Butterworth,* where he thus laid down the law :

“ It is not disputed that the public conduct of a public man may be discussed with the fullest freedom. It may be made the subject of hostile criticism and of hostile animadversions, provided the language of the writer is kept within the limits of an honest intention to discharge a public duty, and not made a means of promulgating slanderous and malicious accusations."

That again is, it will be seen, accurately in accordance with the authorities. And the Lord Chief Justice went on in that case, speaking of our strictures on a corrupt system of parliamentary patronage :

“No doubt it may be deemed objectionable to have a number of those who should be free and independent representatives of the people always under a sense of favour and obligation to the Government of the day. Not only was this a fair matter for discussion, and within the province of a public writer ; but a public writer

; was fairly entitled, if, in his opinion, such a course of proceeding is detrimental to the independence of the Bar, to the independence of Parliament, and to the independence of the representatives of the people, to animadvert with severity upon the conduct of those who gave and of those who received such patronage.”

And though his Lordship seemed to qualify this as to the expression of opinion upon any particular instance

* 3 Foster & Finlason.


“But if he went beyond that, and asserted that a member of Parliament had bargained to sell his vote upon a corrupt contract, or that a member would not have voted or spoken as he did but for a corrupt understanding that he should receive a reward, it became a serious charge, and one which no man writing, whether in public or private, should venture to make against another;" -yet he does not say that it might not be privileged by the right of free discussion; and of course whether it were so or not must depend upon the subject-matter of comment and the materials or grounds of inference it afforded in the particular case. And we confess that in that case we think the incidents alluded to were fit subjects of comment as to the connexion between the interviews with the Government and the vote on any particular occasion. What was the case of Campbell v. Spottiswoode ?

Dr. Campbell, the plaintiff, was editor and part proprietor of a religious newspaper, the Ensign and Standard. He had published a series of letters to Prince Albert, with the avowed object and effect of raising the circulation of those papers, as he said, by 100,000. He proposed to publish in his papers a series of letters on Chinese Missions; and to invite the religious public to subscribe for at least an equal number of copies of his paper containing those letters, for the purpose of gratuitous distribution, in order, as he said, to promote the cause of Chinese Missions. To stimulate these subscriptions, he put forward announcements and appeals, of which these are specimens. Their scope is, it will be seen, simply this: to solicit public subscriptions to his paper, on the score of his own anxiety for the souls of the heathen.

Co-operation is earnestly invited to aid in sending forth on all sides arguments and appeals calculated to awaken compassion for the lost millions of the race of China.

Fathers ! friends of the heathen, I am most anxious to enlist your good offices on behalf of four hundred millions of perishing souls. What zeal, what liberality are not demanded by the claims of four hundred millions of perishing souls."

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