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Buy the letters, and save the heathen. About twenty-five letters will be required ;' they must be circulated and read, and for this 'I am wholly dependent on the good offices of the friends of the heathen. There is no disguise in all this. Letters from correspondents, all bearing the mark of one hand,* put the matter on a very simple basis.
“There have been many dodges tried to make a losing paper "go,' but it remained for a leader in the Nonconformist body to represent the weekly subscription as an act of religious duty.t Moreover, the well-known device is resorted to of publishing lists of subscribers, the authenticity of which the public have, to say the least, no means of checking. I 'R. G.' takes 240 copies; 'A London Minister,' 120; • An Old Soldier,' 100; and so on. Few readers, we imagine, will have any doubt in their minds as to who is the ‘Old Soldier.'s
“Whatever may be the private views of the editor of the Ensign, there can be no question that his followers are sincere enough in the confidence they repose in his plan. It must be a very happy thing to be gifted with so large a stock of faith. If this temper of mind should lay its possessor open occasionally to the beguilements of an impostor,|| more than an equivalent is provided in the freedom from doubts and suspicions and the sense of security that it confers. No doubt it is deplorable to find an ignorant credulity manifested among a class of the community entitled, on many grounds, to respect; but now and then this very credulity may be turned to pretext, “a scandalous and flagitious act,” and an “imposture;" not that the imposture lay in fabricated subscriptions or fictitious letters, save only as a matter of mere inference arising from the similarity of tone or style.
* This is the only passage which at all suggests a fabrication of letters, and it is done studiously by way of critical inference from the style of the letters, not by way of independent suggestion. The distinction is all-important. Why 'may not a public writer infer from the similarity of style in different letters or articles that they are from the same hand ? There is no suggestion of a fraudulent intent in this passage.
# This is the “ dodge” or “imposture” aimed at all through; ut supra. | Here it is not at all suggested that they are not authentic, and the “device” is in publishing lists of subscriptions, equally a "device” whether real or not real.
$ This is evidently what the Lord Chief Justice called “mere banter," and meant that the Doctor was an “old soldier," i. e., an experienced hand in such matters and in the practising of such “ dodges" and "devices" as above alluded to, not that he forged the letter signed * An Old Soldier."
|| This aludes toʻthe nature of the plaintiff's “ plan,” ut supra, and has no connexion with a suggestion as to forged letters or with any other imposture than as implied in the nature of his proposal or plan.
good account.* Dr. Campbell is just now making use of it for a very practical purpose, and to-morrow some other religious speculator will cry his wares in the name of Heaven, and the mob will hasten to deck him out in purple and fine linen. When Dr. Campbell has finished his . Chinese Letters' he will be a greater simpleton than we take him for if he does not force off another 100,000 copies of his paper by launching a fresh series of thunderbolts against the powers of darkness. In the meanwhile, there can be not doubt that he is making a very good thing indeed of the spiritual wants of the Chinese." I
Now we confess we could scarcely ourselves conceive of a case more clearly within the fair limits of free discussion. And it was apparent that the plaintiff's advisers felt that if there were nothing but comments on and inferences from his own publications, the article was within these limits. For from the first they sought to fasten on the writer the responsibility of distinct and independent assertions or statements of his own, not by way of inference or observation. Thus :
“ The plaintiff's attorney wrote to the Saturday Review to desire that an 'ample apology'should be inserted, with a declaration that there was reason to believe that 'the charges’made against him were utterly unfounded, such apology to be sent to him for approval, and to appear in the next number, in the same type as the libel, and in a similar position. The defendant's attorney wrote to request that the passages charged as libellous might be specified. The plaintiff's attorney in reply wrote that there could be no difficulty in discovering what those passages were, and that if his request were not complied with in the course of the morrow, he should take proceedings, for he could not submit to the imputation of being an 'impostor,' or 'guilty of scandalous and flagitious conduct,"” and he pointed in particular at the supposed imputation of fabricating letters, &c. "The defendant's attorney, in answer, wrote, “It appears to us, from the context, that the words complained of are used
* This refers to the scandalous and flagitious act first referred to, of representing the subscription to the paper as an act of religious duty.
That is, by representing it as a religious duty.
merely as part of a criticism on a newspaper article, and are not intended to attack Dr. Campbell's character. If you will point out any statements of matter of fact which you consider erroneous, it shall be corrected in the Review.'” (This was understating the case for the defendant, for his right was not merely criticism, but free discussion.) “The plaintiff's attorney, in reply, suggested that he and the publisher should meet the defendant's attorney, with all the books and documents, and satisfy them that the supposed imputations of fraud were erroneous. The defendant's attorney, in reply, denied in effect that there were any such imputations, and said that it would be better to point out in writing what was complained of. The reply to this on the part of the plaintiff's attorney was the writ in this action, in acknowledging which the defendant's attorney declared his regret that an opportunity had not been afforded of correcting any erroneous statement of matter of fact.”
The plaintiff's case, however, at the trial was conducted on the assumption which had been made from the outset that the article made distinct and independent statements of matter of fact against the plaintiff, and his case at the trial was rested entirely on the view that the article imputed to him fabricated letters and fictitious subscription lists, and the plaintiff was himself called to disprove this, and the persons referred to were called and proved their own existence and the reality of their letters. In particular, Mr. Thompson, of Prior Park, the husband of the lady alluded to, was called as a witness, and it turned out that he was a friend of the plaintiff, and had promoted the “ letters."
Now in no view was this evidence admissible, and we are surprised that it should have been received. There was no justification, and if there were any imputations in the way of direct and independent assertions, they must be taken to be untrue in fact. And as to malice, this was an action not against the writer, but the publisher; and evidence of malice in the former would be irrelevant in an action against the latter; added to which, mere evidence that the supposed imputations were untrue would be no evidence of malice against either. And if it were meant to connect this evidence with the refusal to insert a contradiction or explanation, that was after the publication; and though it might, if brought home to the writer, have been evidence of precedent malice in him, it could not be so in an action against the publisher.
The effect of admitting this evidence was, of course, to produce the impression that there were independent statements, by the writer, of matters of fact, and not mere comments on matters arising out of the plaintiff's own propositions; and no doubt there were suggestions of inferences of fact, as well as of opinion, at all events in the construction which the Lord Chief Justice and the jury put upon the article; but on the principles we have laid down that would make no difference, because the right of free discussion would extend to the deduction of inferences of fact or the suggestion of matters of fact, provided they were within the scope of the subject matter of discussion. The great question, then, was, what was the scope and subject of discussion; and that depends on the nature of the plaintiff's publications. But some how the attention of the Lord Chief Justice was drawn off from them, and fixed upon a totally different point-the question of actual belief in the writer; of the truth and fairness of his imputations.
To understand and do justice to the direction of the Lord Chief Justice, it is necessary to mark well the course which the case took, and above all the ground on which the defence was put, or understood to be put, at the trial. He was reminded of Turnbull v. Bird; but he was asked, in a general way, to put the question to the jury whether the writer honestly believed what he wrote. Now in the first place it is plain that, as a question of actual belief, there was no evidence on which he could put that question to the jury, especially as this was an action, not as in Turnbull v. Bird against the writer, but against the publisher; and the writer was not-perhaps could not be-called to prove his belief. And next as a question of
probable or reasonable ground for belief; that would not be material except as an ingredient in the question of malice; and that would not arise until the prior question was decided ; which was, as we have seen, one of law—whether there was anything which could fairly form the subject of the discussion, and be any occasion for the imputations complained of.
The defence upheld in Turnbull v. Bird, and probably intended to be set up in Campbell v. Spottiswoode, was, that there was an occasion for the discussion of the very subjectmatter of the particular imputation; and that, therefore, there was a lawful occasion and excuse for defamatory imputations naturally arising out of the honest exercise of the right of discussion thereon; and that, in the absence of personal malice, those imputations were protected, provided they were made in the honest exercise of that right; the test of which in that case was that they were honestly believed. So it was, there, all the prior points being established, and the action being against the writer, and the question of actual belief raised by evidence. widely different thing from holding that the imputation was protected merely because honestly believed, which would not even show that they were honestly made, as they might have been made maliciously. All, however, turned on whether there was subject matter for the particular imputations.
The Lord Chief Justice, as we conceive, rightly considered it to be for him to lay down as matter of law what was fit subject for discussion or fair subject of comment; and it would have been perfectly competent to him to tell the jury that such and such matters—not fairly arising out of the Doctor's publications—were not fit or fair subject of comment at all, whether fair or unfair, because not fairly or naturally arising out of the plaintiff's publications, and so not within the proper scope of public discussion at all. For it is always for the judge to define the limits of a privileged occasion. And this, we presume, he intended to do
That was a