in the discharge of public duty, which the law presumes to have been done honestly, and without the least colour of occasion, so far as appears; even for the discussion of the motive at all, much less for the imputation of bad motive.

But, to make these cases at all analogous to the present, we must abstract from them that element which entirely distinguishes them—the element of public duty-and we must also add the element which gives to the present class of cases all their distinctive character, viz., the public exposition of the man's motives, and the propounding of them as the basis of proposals, partly, (as a mere matter of fact, beyond all doubt,) for his own benefit. Suppose the minister chose to publish his correspondence, or his speeches, and that a public writer, commenting thereon, and upon expositions of the statesman's motives, and comparing them with other matters of admitted facts and dates, &c., deduced inferences conveying imputations of motives partly selfish, that would be more like the present case; and who can doubt it would be a case of privileged comment? But even that would not be this case, unless the minister's acts were not done in the discharge of public duty, but merely in the ordinary pursuit of his political vocation or career-as, making a popular speech just before an election, or proposing a particular measure at a particular conjuncture, or the like. And who will venture to say that the liberty of fair comment on public matters like this would not extend to sarcastic strictures on the minister's speeches, suggesting, with reference to time and other circumstances, that the motives for such and such measures or movements were not unalloyed patriotism, but mingled with some desire to retain office, or to regain place? Nobody knows better than the Lord Chief Justice, who himself has filled a distinguished position in Parliament, that such imputations are within the acknowledged liberty of free discussion, both in Parliament and the press. And when he puts the case of a particular imputation, that a minister has sold himself for so much hard cash, he puts a case which happily is not

likely ever to occur, even in any one's imagination, except as an illustration in reasoning. But if there were any public action by a public man which should give any kind of colour to the charge-as in the well-known case of O'Connell's celebrated letter to Raphael about the seat for Carlow-" say £2000,"— beyond all doubt, such an imputation, even of pecuniary corruption, might legally be made; and, in the instance we have mentioned, was made, by the whole press of England, and made with perfect impunity, and without a doubt of its legality. The question whether an imputation is excused by the privilege of free public discussion, depends on just the same principle as would decide whether it would be protected by the privilege of private communication, viz., whether it was within, or went beyond, the occasion-that is, whether it arose naturally out of the subject-matter of discussion, or whether it went so far out of it, and away from it, as to be malicious. It would not depend merely on its own absolute character, or the degree of the imputation conveyed; but on its nature and character, relatively to the occasion and subjectmatter of discussion, and as compared with the materials out of which it was professedly deduced. It is obvious, therefore, that it is impossible to predicate à priori what imputations may or may not be privileged. Any imputation may be, or may not be, under the circumstances.

The question would be in these cases, as in the present, whether there were any public incidents of or circumstances around the act, which would so far qualify it as to make the motive fair subject of public discussion. That would depend entirely on the circumstances of each case; and, probably, the Lord Chief Justice did not mean to lay it down broadly, that in no case could the motives of a public man be fit subject of discussion; but only that they could not be impeached where they were not so. Now, that is clear law as to every subject of imputation, whether acts or motives. In the present case, there was a question how far the plaintiff, in his character of editor, and also projector of this scheme, was a public man, so as to

make his public acts, as such, fair subjects of public discussion; and how far the public incidents of his acts, or the character of his proposals, as declared by himself, were fair subject of discussion, in so large a sense as to include the suggestion of an obvious motive, which would depend on these proposals themselves, and the letters, &c.

If we are right in our view of the scope of the Doctor's publications, then no doubt the Lord Chief Justice was wrong in telling the jury, that the probable authorship of the letters, and the probable object of the Doctor in issuing his proposals, were not fair subjects of comment. And in that view, probably he himself would not have disputed that they were fair; or, at all events, not so unfair as to be malicious, and deprived of the protection afforded by the privilege of free discussion. At all events, he did not appear to think that there was any evidence of such excess as to be express malice, assuming the imputations relevant, and arising out of the subject of comment. Nor did he say or imply, that if they were relevant, and did arise out of the subject of comment, they would not be protected, in the absence of such excess, and of any other evidence of malice.

The Lord Chief Justice laid it down, it will be seen, that there was no lawful occasion to discuss the Doctor's motives, or the genuineness of the letters; for that neither the one nor the other arose out of the Doctor's publications, and so neither of them were fair subject of comment. And, if the Lord Chief Justice were right in his views of the Doctor's publications, he was certainly correct. But then he could not be right in that view, as it seems to us, because the Doctor's motive and extreme anxiety about the heathen were made the basis of the scheme; and because there were very many circumstances on the face of his publications which did, in our opinion, raise the question of the probability of the letters not being genuine. It is, however, entirely a question of construction of those publications. Nor are we sure that the Lord Chief Justice laid down or implied any proposition of

law not perfectly correct; nor that he applied the law wrongly, except upon the assumption that he was wrong in his view of the scope of the plaintiff's publications, or confounded fair subject of comment with fair comment.

The Lord Chief Justice did not lay it down that, if these matters were fit and fair subjects of discussion, there was no privilege in the discussion of them; and that the defendant would be liable, even although he wrote honestly, and under an honest belief. But he laid it down that there was no fair occasion for discussing these matters at all, out of which the imputations arose; and that the imputations did not arise out of the matters which there was a fair occasion to discuss. And he did not lay it down that honest belief was always immaterial; but that it was not material when there was no lawful occasion to discuss the matters out of which the imputation arose; or when the imputations did not arise out of the particular matters which there was occasion to discuss. And again, on the same ground, the Lord Chief Justice did not leave the fairness of the comments to the jury.

So, when the case came into banco, unfortunately the Court appeared to understand that they were asked to affirm that the mere fact that there was a fit occasion for public discussion of a subject to which the imputations might not be utterly irrelevant coupled with honest belief in the truth of the imputation-conferred a privilege or protection. And, of course, on that view of the defence they negatived it, not only decidedly, but with some degree of natural impatience; and then, as often happens, uttered some expressions which looked like a broad denial of any privilege in public writers on public questions. These data are obviously either to be deemed obiter, or they are to be referred to and restrained by the question to be determined-which was, the existence of privilege or protection in a case of imputation upon subjects deemed not to have been fair subjects of discussion or imputation at all. Unless so construed and restrained, these data were clearly contrary to the authorities.

For the reasons we have given, we conceive that they did; that the case was one of privilege, on the ground that there was a right of free discussion, as to those particular matters. And we conceive, further, that the real question was honest belief-because everything else on which the question of the honest exercise of the right might depend was admitted, or not disputed. Personal motive was not imputed; nor was there any such violence of language as would, on the face of the article, show general malice. And the Lord Chief Justice himself told the jury, not only that the occasion was one for severe observation, but that the particular observations made were such as might very naturally have been made; and were no doubt made with no other motive or intention than to denounce the scheme which he himself described as fit subject for severe observation.

Assuming that the plaintiff's publications made the subject of the imputations complained of part of the subject of discussion, then the Lord Chief Justice expressly said that the writer had honestly exercised the right of free discussion:

"It is impossible to conceive any subject on which comment and criticism might more fairly be made, and any writer who thought that this proposal of the plaintiff could only end in disappointment to the public who might be induced to subscribe to his paper, and that they would be throwing away their money, would have a perfect right to comment upon it, with some latitude of criticism and comment. And it is to be regretted that the means proposed by the plaintiff to carry out his ends should have been of a somewhat doubtful character. It certainly does at first sight seem to be so when a man says, 'Here is a great work-a work in which all Christians should unite.' And how is it to be accomplished? 'Subscribe to my newspaper. It does sound odd, and provokes the suggestion that it is not so much the interests of religion which the man has in his mind as the promotion of the circulation of his own paper. And when a person not imbued with his religious views comments upon the case it might easily suggest itself to his mind in that point of view. You may