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delusive, but that it was induced by the base and sordid motive of promoting his own pecuniary interest ?' The Lord Chief Justice then proceeded to tell the jury that it was for them to decide whether the insinuation as to the non-existence of Mr. Thompson was said merely in a spirit of banter, or with a view of charging the plaintiff with fraud, expressing a strong opinion that the imputation that the subscriptions were fictitious was also an accusation of fraud. He then laid down that it was admissible for the defendant to characterise the plaintiff's scheme for evangelising China as an idle one, not likely to effect its object; but he went on to say
But the question is, whether the writer has not gone beyond thesa limits, and whether he has not gone the length of imputing 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 holy and sacred, and for the pitiful purpose of increasing the subscriptions to his newspaper.
think that, then the case assumes a different character. 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, 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 writer is entitled, not only to pass 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 length. Take the case of a statesman. His public conduct is open to criticism in speeches or in writings. But has any one a right to say that he has sold himself, or that he has been inspired by base and sordid motives, unless prepared to justify these allegations as true?'
Sir Alexander Cockburn then directed the jury, that if they were of opinion that the writer, though imputing the evil motives to Dr. Campbell, did so under a full belief that he was actuated by them, they should not deliver a general verdict for the defendant, but find that matter specially in his favour; 'for,' said the Lord Chief Justice, it is a question of such great importance, that, although my own opinion upon it is clear, still as it is now for the first time raised in a court of justice, I will give the defendant leave to raise it in the full court.' The jury returned
' a verdict for the plaintiff, with 501. damages, finding specially that the writer in the · Saturday Review' believed his imputations to be well founded.
The cause came subsequently before the Court of Queen's Bench in banco, when the ruling of the Lord Chief Justice was confirmed unanimously. In giving judgment Sir Alexander Cockburn said :
“But it seems to me that a line must be drawn between hostile criticism upon a man's public conduct and the motives by which that conduct may be supposed to be influenced, and that you have no right to impute to a man in his conduct as a citizen—even though it be open to ridicule or disapprobation-base, sordid, dishonest, and wicked motives, unless there is so much ground for the imputation that a jury shall be of opinion, not only that you may have honestly entertained some mistaken belief upon the subject, BUT THAT YOUR BELIEF IS WELL FOUNDED AND NOT WITHOUT CAUSE.'
The puisne judges seem to have taken a similar view to that of their chief; but they appear to have mixed up the making of the specific charges against the plaintiff—of publishing fictitious letters and lists of subscriptions—with the question of the right to impute motives.
Of the verdict we do not think there is any reasonable ground to complain. The defendant clearly went beyond the occasion, and so lost his privilege. The circumstances justified the writer in making strong remarks, but not in stating or insinuating the fact that the letters and subscriptions were fictitious. Had he contented himself with observing that the public had no means of forming a judgment as to their genuineness, and therefore should give little weight to them, he would not have overstepped the limits of allowable criticism ; but there was nothing upon which he could fairly have founded the actual charge of falsity. Before a writer makes such an accusation he is bound to use every reasonable means of ascertaining its truth. In the present instance the name and address of the Mr. Thompson, whose non-existence was hinted, had been given, and a very little trouble would have enabled the writer to ascertain who that gentleman was.
But though we think that the verdict was justified both in fact and in law, and was therefore rightly upheld by the full Court, we conceive that the doctrine enunciated by the Chief Justice in his summing up to the Jury, and also in his judgment in banco, is open to serious question, if we correctly understand him absolutely to deny the right to impute bad motives. This is the first time that the doctrine has been so laid down, and we must be allowed to contend—with very great respect to so high an authority—that it is not the law of England; for it is certainly opposed to that liberty of discussion which is essential to rational freedom. Indeed, if writers are not allowed to impute
motives, a excited the indignation of the defendant, who was Secretary to the Protestant Alliance. Mr. Bird wrote a letter to the • Daily News,' in which he mentioned Mr. Turnbull's Ultramontane views, and his strong bias towards the Jesuits; whence he inferred that that gentleman was a most improper person to be intrusted with manuscripts belonging to a period so important in the history of the struggle between Protestantism and Romanism, as he might be tempted to destroy or mutilate documents which contained proofs of the truth of charges against his co-religionists. Mr. Bird, quoted published opinions of Mr. Turnbull to the
motives, how are they to exercise their admitted right of criticising the acts of those in authority ? Many an action is in itself indifferent; as, for instance, the appointing a person to an office for which he is not unqualified : but if this is done from a corrupt motive, the act becomes an evil one, and a subject for legitimate censure. If a writer is liable to punishment whenever he makes such an imputation, unless he can absolutely prove it to be true—a thing in most cases impossible, for who can dive into the recesses of another's heart ?—the most flagitious conduct must remain unexposed. The Chief Justice laid it down that one may not charge a public man with having sold himself, or a general who has surrendered a fortress with having corruptly betrayed his
To make such imputations recklessly or malignantly would undoubtedly be a wicked act, meriting severe punishment; but not so if the writer had grounds for his belief, although they might not be sufficient to prove the fact—or not even, in the opinion of the jury, enough to make the fact probable-provided that they were such as a fair-meaning man, after due consideration, might have thought sufficient. That, we contend, is the question which ought to have been left to the jury.
Reluctantly passing over, for want of room, the case of Morrison v. Belcher, in which the Lord Chief Justice adhered to the law thus laid down by the Court of Queen's Bench in this case of the “Saturday Review, we turn to the important cause of Turnbull v. Bird, which having a bearing upon polemical questions, attracted much attention.
The plaintiff in this action was a Roman Catholic gentleman, eminent for his archæological attainments, who had been appointed calenderer of foreign papers in the State Paper Office, at the recommendation of the Master of the Rolls, Sir John Romilly, being employed on the documents belonging to the period between the Reformation and the Revolution. Mr. Turnbull was a convert from Protestantism, and had published strong opinions in favour of Roman Catholicism, and particularly of the Jesuits, of whom he was a great admirer. This appointment
effect that Garnett, the Jesuit, who was executed on the charge of being concerned in the Gunpowder Plot, was a martyr, and that Babington's conspiracy against Elizabeth (which that conspirator, however, always declared to be merely a scheme to liberate the Queen of Scots) was a 'gallant confederacy,' with other expressions betokening a very strong party feeling. Mr. Bird went on to mention instances in which, at various times, documents bearing upon the matters in difference between Protestants and Catholics had disappeared from divers public collections, or had been mutilated under circumstances raising a probability that the mischief had been perpetrated by persons interested in suppressing testimony militating against Romanism; and he expressed a strong feeling that there was danger that Mr. Turnbull might thus deal with the State Papers. Among other statements Mr. Bird alleged that, when a deputation from the Protestant Alliance waited upon Lord Palmerston on the subject, that Minister read a letter from the Master of the Rolls justifying the appointment of Mr. Turnbull, in which he stated,' says Mr. Bird, that he (Sir J. Romilly) had appointed Protestant gentlemen, since the agitation of the subject, to examine and compare the papers prepared by Mr. Turnbull, and to see that he had done his work fairly; and also another gentleman was appointed to examine the state of the original documents, on their being given to Mr. Turnbull, and, on their being returned by him, to examine and see that they were whole and unmutilated, and to certify to that effect. I write from memory,' proceeds Mr. Bird, but I knoro that I have given the true effect of the letter. If Mr. Turnbull is perfectly qualified for his office, and his integrity be unimpeachable, what need of three gentlemen to watch him, and to put the country to the expense of employing four persons to do the work of one ?'
The actual words of Sir J. Romilly's letter were,
However, since the matter has been agitated, I have requested two very competent Protestants, members of the Record Department, to inspect the papers intended to be calendered by Mr. Turnbull, and to make a report to me upon them; and if I find that any of them have a religious tendency, I will take care that every calendar of these papers shall be tested with the original documents by a gentleman without any Roman Catholic tendencies.'
The meaning of these words is quite different from the account of them given in the libel. The Master of the Rolls evidently expressed no suspicion that Mr. Turnbull was capable of mutilating or destroying papers, but, at the most, merely took precautions against the possibility of that gentleman's opinions giving a bias to the abstract of the original documents inserted in his calendars; or, what is more probable, Sir John provided himself with a ready answer to complaints such as those of Mr. Bird.
The evidence proved that Mr. Turnbull had done his duty most satisfactorily, and that there was no ground for the imputation that persons were set to watch him, or that there was any suspicion entertained of him in the office. Indeed to those who were acquainted with Mr. Turnbull (he is now unhappily deceased) the charge is simply ridiculous, for he was candid and outspoken to a fault.
We do not maintain that Mr. Bird's expression of opinion, that Mr. Turnbull's religious views might induce him to destroy or mutilate documents, exceeded the limits of allowable discussion. To some the notion will no doubt appear unreasonable, to others well founded; but clearly it is what a man might honestly believe even after having well considered the matter. When, however, he alleged that Mr. Turnbull was watched to prevent his destroying or mutilating documents, particularly in so positive a manner,--stating that he knew he was giving the true effect of Sir John Romilly's letter,—he was certainly doing what cannot be brought within any reasonable rule of privilege. Many months elapsed between the deputation and the writing of the letter to the Daily News,' and no doubt Mr. Bird's memory misled him ; but he ought not to have trusted to memory in such a case.
Before making so serious an imputation on the moral character of a gentleman, it was his duty (as Lord Chief Justice Erle seems to intimate in his summing up) to ascertain what the Master of the Rolls had really written.
The Lord Chief Justice told the jury that,
' Defamatory matter is presumed to be malicious unless it is published in the performance of any duty, legal or moral, or in the exercise of any right. The defence on the present occasion,' said he,
comes under the last head, as a matter necessary to the protection of the public interests, or the exercise of a public right. And the law is, that a man may publish defamatory matter of another holding any publio appointment, if it is a matter in which the public have any interest, within the limits I will lay down in accordance with decided cases. Every person has a right to comment on the acts of a public man, which concern him as a subject of the realm, if he do not make his comments the vehicle of malice or slander. And for the purposes of this trial, I shall lay it down, that if you are of opinion that the defendant, in the comments that he made was guilty of any wilful misstatement of fact, either by the exaggeration of what actually existed, or by the partial suppression of what actually existed, so as to give it another colour; or if he makes his comments with any misstatement of fact, which he must have known to be a misstatement if he exercised ordinary care, then he loses his privileges, and the