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when he laid it down, in effect, that it was only, in his opinion, the nature and character of the proposals, which was fit subject of public comment, because it was that alone, which arose on the face of the plaintiff's publications. We venture, however, to think either that the Lord Chief Justice erred in allowing far too narrow a scope to the subject of comment, as disclosed in these publications, or that he confounded the question of what was fair subject of comment with the very different question, what is fair comment?
The Lord Chief Justice thus defined the limits of fair comment, on the occasion :
“ It was perfectly lawful for a public writer to say that it was an idle scheme, that it was a delusion to suppose that, by forcing the papers into circulation by free distribution, the great cause of missions would be promoted, and, in short, to denounce the whole scheme as pernicious and delusive. And if you think that this is all which has really been done in this case, then it is within the fair and legitimate scope of criticism, and then you ought to find your verdict for the defendant. But the question is whether the writer has not gone beyond these limits, and imputed to Dr. Campbell not merely that he has proposed a delusive and mischievous scheme, but that he has done so with the sordid motive of abusing the confidence of the public on subjects the most sacred, for the pitiful purpose of increasing the subscriptions to his newspaper. If you think so, then the case assumes a different character."
That is, then they are not to find for the defendant, because then the imputation would go beyond the limits which the Lord Chief Justice allowed to free discussion.
The Lord Chief Justice was no doubt right in taking it upon him to define the limits of the right of public discussion on the materials put forth, for it is always for the judge to define and declare a privileged occasion.
And of course this would be in effect to direct a verdict for the plaintiff, subject to the opinion of the jury, on the question, libel or no libel, which is always for them, and what the Lord Chief
Justice must be supposed to have laid down as matter of law, was, that there was no lawful excuse or occasion for the imputations supposed to have been made. No doubt that was for him; because lawful excuse is for the judge, while libel or no libel is for the jury. Still there is so much the air of an appeal to the jury on the question, and there is so much of observation on the fairness of the imputations, that we have some suspicion that the Lord Chief Justice may have either confounded the question, of what was the fair subject of discussion, with the question whether the imputations were fair, or may have supposed that the former question would depend on whether the imputations were fair and well founded; which we conceive was neither for the Court nor for the jury, but for the writer-assuming him to have a right for the discussion of the particular matter, and to have honestly exercised his right, because then he would, we conceive, have a privilege for any imputations not so unfair as to be malicious. The Court in banco, beyond all doubt, gave countenance to the idea that the inferences or imputations must be fair or well founded; which supports our impression that the Lord Chief Justice so meant it, though that leaves it in great doubt whether he meant that for the jury, or decided it himself. He certainly did not leave it to the jury; and if he decided it himself as matter of law, then it could only have been because he supposed that the right of discussion would depend, not only on whether the particular matters would naturally arise out of the discussion of the materials put forth, but would fairly, in his judgment, support the particular imputations; which we conceive to be quite erroneous.
The question for the judge in such cases, we submit, is simply to say whether, as matter of law, the imputations are so far connected with, and so far arise out of any of the subjects of discussion, that a writer might honestly have been led to make them in the course of discussion on those subjects, which is quite a different thing from determining whether
VOL. XV.-NO. XXX.
they are fair and well founded, an extremely anomalous issue, and very difficult to distinguish from one of actual truth. But the question in discussion is not actual but apparent truth; and that, not in the opinion of a lawyer, or even a body of laymen, considering the matter some time afterwards, but in the mind of the writer, as he might view it when honestly exercising the right of free discussion. It is for the jury to say whether, in point of fact, he was so honestly exercising his right. It is for the judge to say, whether the particular matters are so far connected with, and so far arise out of, the subjects of discussion, that a public writer might honestly, in discussing these subjects, make such imputations. All that was put forth was fit subject for public discussion : simply because the Doctor made it. It was he who made public profession of his anxiety for the safety of the heathen, and made that the very basis of his scheme. It was to enable his zeal to shape itself in earnest appeals to his fellow Christians that he asked the subscriptions of the “ friends of the heathen." He, as thirsting for the souls of the heathen, asked those friends to assist him with their money in order to urge others to save those souls. Obviously everything turned on that anxiety for the heathen's souls. All must depend on its depth, intensity, and strength. It was the consideration, so to speak, which the friends of the heathen were to have for their money; they were to have the benefit of his appeals to others. The efficacy and energy of those appeals must depend evidently on the strength of his zeal, and that upon its purity.
. To the exact extent to which it was alloyed, if at all, by any other motive or aim, to that extent it must be weakened, and the energy and tone of his appeals diminished. That, then, was the most important point of all; it was that which alone, in any point of view, made the matter worth public discussion. But that the Lord Chief Justice excluded from discussion; and he laid it down as law, that it could not be suggested that the motive of a man in putting forth public proposals to subscribe to his own paper, and thus improve his own property, was
partly to produce that effect, although it will be seen the Lord Chief Justice himself avowed his belief that it was so, and said that a public writer might naturally suppose that it
“And it is said that the circumstances were such as not only to entitle the writers of the Review to criticise in a hostile spirit the scheme of the plaintiff, but also to impute to him sordid and base motives in putting it forward, for that it is obvious that it could do good to nobody but the proprietors of the paper. I own, however,
I that my view of the law does not accord with this. A public writer is fully entitled to comment upon the conduct of a public man, and this was a public matter and a fair subject of comment. But it cannot be said that, because a man is a public man, a public writer is entitled not only to pass a judgment upon his conduct, but to ascribe to him corrupt and dishonest motives. That, in my view, is not the law, and the privilege of comment does not go to that extent."
Nor was it contended that it did. Nor is it contended. Nor has it ever been contended, that merely because a man is a public man " a public writer is entitled to ascribe to him corrupt and dishonest motives. Nor was it attempted here to impute to Dr. Campbell “corrupt and dishonest motives :" for it is neither “corrupt nor dishonest” for a man to seek to
. circulate his paper by putting what he sincerely believes to be very excellent matter into it. “Corrupt and dishonest” were epithets introduced by the Lord Chief Justice, not by the Reviewer.
What was and is contended is this, that when a man makes a public profession of his motives, and a public exposition of a scheme based upon those professed motives ; and a scheme which, obviously, as a simple matter of fact, will tend to promote his own worldly advantage; and propounds, as means for the furtherance of his professed object, pecuniary subscriptions or donations to himself; that then the whole of what he thus puts forth is fit subject for public discussion,-means, motives, and all,—the whole being so closely connected, and so put forth together as elements
of the scheme, that the real, true nature, and character of the scheme depends as much on motives as on means; and the value of the means depends almost entirely on the motives. This was what was contended; and this is what we contend and what we conceive to be clearly and beyond all doubt the law. And if we wanted confirmation of our conviction, we should find it in the singular inappositeness of the illustrations or analogies adduced by the Lord Chief Justice, himself so clear-headed and logical, in support of his view. They are obviously so utterly inapplicable, so entirely the opposite of the case in hand, that they suggest the unavoidable inference that the lucid intellect of the Lord Chief Justice has been distracted and drawn away from the real question at issue, otherwise he never could have dealt with it so inappropriately.
“ Take the case of a statesman. His public conduct is open to criticism in speeches or in writings. But has anyone a right to say that he has sold himself, or that he has been inspired by base and sordid motives, unless prepared to justify those allegations 23 true?” (That is, if there is nothing to lead thereto.]
“ Take the case of a general in command of a fortress, who has surrendered it earlier than the necessity of the case, in the opinion of others, required. His conduct in so doing would be open to the most severe criticism, but would there be a right to say that he had betrayed the fortress into the hands of the enemy for a corrupt consideration? Surely not."
“ Take the case of a treaty concluded by a statesman with a foreign power ; suppose its terms to be disastrous to the country. Its terms would be open to the most severe criticism and the most righteous condemnation ; but would there be a right to say that the statesman had sold his country? I think not."
And so, with all respect, think we. There is no possible doubt, in these cases, that the libels would be most malignant and inexcusable. Why? Because there would be, in the cases supposed,—the voluntary, arbitrary, gratuitous, utterly unwarrantable imputation of corrupt motives, for acts, done