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The Pamphlet Collection of Sir Robert Stout: Volume 66

The Editor of the "Times."

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The Editor of the "Times."

Sir,

Some time ago it pleased you to launch through a leading article, some thunders at my head.

As I presume that the maxim nullum tempus occurrit regi applies also tonanti you would not deny me the right of appeal—perhaps—if I were inclined to ask for space in your own columns to reply to your remarks. But when your article appeared I had placed my case implicitly in the hands of others and could not use my own hand; and the time that has since elapsed has probably driven the matter out of all recollection in days when nine minutes cannot be spared for small occurrences.

For my own part I do not deem the subject worth notice as a personal one; and my main object is the general consideration of the law of libel.

Against the spirit of your article, indeed, I should be ungrateful if I were to protest, for you were good enough to say that "Inspired by the best intentions Mr. Rusden has been unfortunate," and that I had written "a clever book in three volumes," &c. You added that "some living English statesmen must be very familiar with epithets such as Mr.—resents," but that it was "improbable that any court will carry the doctrine of privilege to the length of protecting any charge made in good faith against a public man."

The word any is so elastic that if it be taken in the widest sense of eccentricity, your doctrine of probabilities would be accepted by all. But if the word be construed reasonably, I contend that the principle of protection to which you refer is reasonable and just, and that, in practice, it has frequently been recognized.

On the matter personal to myself, as touched upon by you, I shall only remind you that the peccant paragraphs were founded on information furnished by a Bishop of scholarly Oxford reputation; and that, unwilling to rely upon a single statement, I sought further particulars; and obtained them, in writing, under the hand of the same apparently high authority.

I do not desire to contend, now, that it was sufficiently high authority, or that I construed it correctly; but putting my own case on one side, I would point out that there has been (since the date page 2 of your article) an instance in which an eminent Judge, Sir Henry Hawkins, instructed a jury that the reputable character of an informant may, and ought to, excuse a public writer, who, misled himself, writes something which may mislead others.

An action for libel was heard at Manchester in 1886 before Mr. Justice Grantham. A verdict having been given for the defendant, a new trial was moved for in a Divisional Court, before Baron Huddleston and Mr. Justice Manisty, on the ground of misdirection, &c. They directed that there should be a new trial.

The new trial was held before Mr. Justice Hawkins at Manchester in January 1887.

In his summing-up Sir Henry Hawkins said (Manchester Courier, 26 January 1887)—

"What was the position of the defendant in this matter? (The defendant, an editor, had printed a speech made in public.) Nobody questioned at all that Mr. Thompson who made the speech was a gentleman of position and standing, and a gentleman whose word was entitled to be treated with respect. It was not as though a mere unknown adventurer had come forward and made a statement derogatory to the character of any one. In that case one might very well have looked with suspicion upon his statement.

"But in this case a reporter heard an influential gentleman make this statement in terms which certainly indicated that there was no hesitation and no doubt at all about the matter . . . He could see no reason why he should not implicitly rely upon the statement; not that that would justify his putting it in the paper, unless they also came to the conclusion that it was for the public good that it should be published . . . He did not think they ought to go into the question of whether or not the story was true or false. If it was believed by Mr. Sowler, the editor of the paper, to be true, the mere fact of its being true or untrue did not, in his mind, affect the question whether it was for the public good that it should be published . . If they believed that it was for the public good that the matter should be inserted, then their verdict would be for the defendant; but if they came to the conclusion that there was malice, or a sinister motive, or that it was not for the public good that the publication should be made, they would find for the plaintiff .... It was a grave misfortune that Mr.—should have made the statement, untrue as it was. But still though an untrue statement Mr. Sowler was in no respect responsible. He knew nothing at all about it. He had before him a gentleman of position, of intelligence, and of supposed integrity, and a gentleman who occupied a position in the corporation which certainly would have disarmed him of even suspecting that he would have been guilty of inaccuracy.1 He thought they must all regret that this imputation should have been made against Dr. Pankhurst; and at the same time one could not help sympathizing with Mr. Sowler for that he should have been induced to insert a statement which turned out to have been so utterly unfounded."

I submit to you, with confidence, that these deliverances greatly enlarge the scope of probabilities which—before Sir H. Hawkins thus spoke—you seemed to apply to the claims and risks of a public writer.

Desiring to discuss the subject in its public relations, and, as much as may be, to avoid personal allusions, I say no more on

1 It is hardly necessary to remind you that the position of a Bishop, an Oxford scholar, is not inferior to that described by Mr. Justice Hawkins. My object in citing the case, however, is not to draw a comparison between my case and that of Mr. Sowler, but to invite your attention to an apparent discrepancy between some of your remarks and the dicta of Mr. Justice Hawkins.

page 3 this topic than that the position of a public writer would be intolerable, and the performance of his duty would be rendered impossible, if no such distinctions as those laid down by Mr. Justice Hawkins were sanctioned.
In your own article, indeed, I trace some sympathy with that learned Judge's utterances, for you wrote :—

"Mr. Rusden may think, and his counsel gave expression to the thought, that it is very hard that he, a painstaking historian, should be made answerable for his statements. He may with some reason, say 'How few chroniclers would prove unimpeachably accurate if their statements were sifted carefully in a court of law!' Such, however, is the penalty attached to writing contemporary history, though rarely has it been so heavily paid as yesterday."

Sir Walter Raleigh's reflections upon the contradictory statements of eye-witnesses—fresh from seeing—would have amply sufficed to warn me of the difficulty of insuring accuracy in any narrative.

Moreover in addition to the fallibility of all men—whether historians or others—there would always confront an author the hard fact that, even if his narrative were really accurate, and no informant had misled him, it might be difficult or impossible to establish his accuracy to the satisfaction of a court of law.

This hard fact it is that makes me hail with gratitude, and press upon your attention, the utterances of Mr. Justice Hawkins which I have quoted.

You will not fail to remember that the taint of fallibility is not absent even from the courts of law themselves. No ordinary person would presume to make such an assertion on his own authority: but when three Judges are found overruling the dicta of one or two other Judges, it is impossible to deny that somebody is wrong, without at all subscribing to the saying which Shakspeare puts into the mouth of distraction, that a pigmy's straw may prevail in one case, though the strong lance of justice may fail in another.

It is the sum of many cases, and not any individual one, to which I desire to call your attention.

Nevertheless, in passing, I wish to thank you for one conclusion contained in your article, which was the more gratifying to me because a few persons, who had not watched the case so closely as you had, failed to discern the fact that the jury in my case gave no opinion, and were not asked to express any opinion, as to the conduct of the New Zealand Government, or of their officers, at Parihaka or elsewhere.

To emphasize your accuracy on this point, I will cite a few brief sentences from the published short-hand report of Baron Huddleston's summing-up in my case, in 1886, merely premising that I had nothing to do with the publication.

"Something occurs" (the learned Judge said) "which ends, not in fighting, but ends in what I should say would be a massacre at Handley's Woolshed. . . . You page 4 have the fact that two boys undoubtedly were killed. . . . This seems also to be perfectly clear, that the troopers had not a clear view of them when the order was given to charge, and when they rode upon them; and whether they committed violence upon children or not, I do not know. I do not know whether that will rest much in your consideration. . . . With reference to that (Parihaka affair) I think it would be advisable as far as we can to keep clear of all that discussion. . . . No doubt some of those men were taken into custody, and that may have been a very arbitrary act. I think Sir Henry James was quite justified in saying—'I will not go into that question.'"

I merely quote these sentences to show how correct you were in your statement that the jury pronounced no opinion on the treatment of the Maoris by the local government or by its officers.

But I imagine that you would be among the first to admit that though the plaintiff's counsel declined, and the jury were not asked, to "go into that question," it was a question with which a historian was bound to deal.

You cannot be ignorant that, whether wisely or unwisely, writers and speakers in England parade their views about alleged atrocities, in Bulgaria or in these islands, with apparently little care to be accurate, whether arraigning a turbaned Turk, or a distinguished fellow-countryman.

Ille crucem sceleris pretium tulit, hic diadema. One man may steal a horse when another may not look over a hedge.

I wonder how many Judges would be required in the High Court if actions were founded on all stinging political speeches.1

Reverting, however, to the promulgation of erroneous information derived from apparently credible authority, I must guard against a supposition that my remarks would apply to any case in which any mean or malicious motive exists. Any such case is unworthy of discussion. In my own case you may perhaps remember that there was not even any personal knowledge, and that the plaintiff had declared, publicly, in the New Zealand Parliament, in 1883:

"The truth is this book has to some extent been misapprehended. The attack is not per se upon me. What does Mr. Rusden care about me individually? He cares nothing about me. . . . What he says on that matter is not, I suppose, from malice against me at all. He cannot have malice against me."

Never, I should imagine, can there have been a case in which, so far as the above words go, a plaintiff and defendant have been more thoroughly of one mind.

But, discarding all consideration of cases in which personal malice exists, the question may fairly be asked whether a historian, or public writer, ought on public grounds to be shielded from

1 The Times of 12th February, 1890, reports Sir John Gorst as saying in the House (11th February), "If you are going to have the proprietors of United Ireland brought to the bar of the House every time they bring a criminal charge of murder or falsehood against my right hon. friend, the House will have little else to do but to mete out punishment to delinquents at the bar. Even members of the (Gladstone) government to which the right hon. gentleman (Harcourt) opposite belonged were made the object of the foulest and quite unnameable charges."

page 5 harm if he can show that he exercised reasonable diligence1 to insure accuracy.

A public writer must be entitled to some protection in the discharge of his duty.

The question is—how much?

Lord Chief Justice Cockburn partly answered the question twenty years ago, in the case of Wason v. Walter (Mills and Holroyd, Q.B., vol 4).

"The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. Comments on government, on ministers and officers of state, on members of both Houses of Parliament, on judges and other functionaries, are now made every day, which half a century ago would have been the subject of actions, or ex-officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties?"

Long before he thus spoke Lord Chief Justice Cockburn had (in Hunter v. Sharpe, Q.B., Foster and Finlayson, vol. 4) drawn a broad distinction between a case containing malice, and one exhibiting vehemence, when he said :—

"And if the writer of the article was satisfied in his own mind—as you cannot doubt he was—that the plaintiff's system was delusive, and that he himself was a pretender and a quack, then we cannot wonder that in his honest indignation he should have put gall into the ink when he wrote to expose the conduct which he denounced. It was not the case of a man sitting down to gratify personal spite or professional malice, but a man writing honestly to denounce what he honestly believed to be a system of quackery and imposture, and to vindicate the honour and the character of the profession of which he was a member, and to do his duty to the public in whose interest he was writing."

Another Lord Chief Justice (Erle) had said in 1861 (Turnbull v. Bird, Foster and Finlayson, vol. 2) :—

"The law is that a man may publish defamatory matter of another holding any public employment, if it is a matter in which the public have any interest. . . . The rule in these cases is that the comments are justified provided the defendant honestly believed that they were fair and just. With that limitation the law allows the publication."

In 1872 in Laughton v. Bishop of Sodor and Man (L.R. Privy Council Appeal cases) the Privy Council decided that a statement which is by nature privileged, in which the person making it has, or honestly believes he has, a duty, "is privileged although it contains criminatory matter which without privilege would be defamatory and actionable."

In this case the Judges referred to a previous case (Spill v. Maule, 1869, L.R. Exchequer cases) heard before Lord Chief Justice Cockburn and the learned Judges Keating, Lush,

1 I cannot use the words "due diligence" after their sinister perversion in and under Mr Gladstone's and Lord Ripon's Treaty of Washington in 1871.

page 6 Hannen, Hayes, and Brett. Lord Chief Justice Cockburn in delivering the judgment, said :—

"Now, the communication being privileged, the presumption is in favour of the absence of malice in the defendant, and in order to rebut this presumption, the plaintiff must show actual malice, and he may no doubt show this by a reference to the terms of the libel as being utterly beyond and disproportionate to the facts. We must then look to see whether the circumstances are such as to rebut on the part of the plaintiff the presumption of the absence of malice in the defendant. . . . Now, the presumption of law being in favour of the absence of malice in the defendant, and the only evidence of malice being his description of acts done by the plaintiff which were capable of a two-fold construction, that presumption of innocence which attaches to the writer must also, where his act is capable of a double aspect, still attend him. Starting with the presumption of innocence in his favour, we must assume that the defendant did entertain that view of the plaintiff's acts which induced him to believe, and honestly to believe, and say, that the plaintiff's conduct was dishonest and disgraceful.

"We have not to deal with the question whether the plaintiff did or did not act dishonestly or disgracefully; all we have to examine is whether the defendant stated no more than what he believed, and might reasonably believe: if he stated no more than this he is not liable, and unless proof to the contrary is produced we must take it that he did state no more."

[Held that implied malice being negatived by the privilege, there was no evidence of actual malice, and that a verdict for the defendant was properly directed by the Judge (Baron Martin) at the trial.]

Before touching upon a case (Clark v. Molyneux) in which, on appeal, the proper construction of the words "honest belief" was laid down, it is well, perhaps, to cite in chronological order a few other cases, which seem to show that malice may not be inferred or imputed, but must be expressly proved before a public writer can be mulcted.

In Somervill v. Hawkins (L.J. 1851, vol. 20) Lord Chief Justice Wilde had decided that a communication was privileged and there was no evidence of malice. A new trial was sought on the ground of misdirection. Mr. Justice Maule, in delivering the judgment of the court, said :—

"The class of privileged communications is not so restricted as it was contended on the part of the plaintiff.

"It comprehends all cases of communications made bona fide in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the party using the words. . . .

We think therefore the communication in question was privileged, i.e. it was made under circumstances which rebut the presumption of malice which would otherwise arise from the nature of the words used. That presumption being rebutted, it was for the plaintiff to show affirmatively that the words were spoken maliciously; for the question being one the affirmation of which lies on the plaintiff, must in the absence of evidence be determined in favour of the defendant.

"On considering the evidence in this case we cannot see that the jury would have been justified in finding that the defendant had acted maliciously. It is true that the facts proved are consistent with the presence of malice as well as with its absence.

"But this is not sufficient to entitle the plaintiff to have the question of malice left to the jury; for the existence of malice is consistent with the evidence in all cases except those in which something inconsistent with malice is shown in evidence; so that to say that in all cases where the evidence was consistent with malice it ought page 7 to be left to the jury, would be in effect to say that the jury might find malice in any case in which it was not disproved, which would be inconsistent with the admitted rule, that in cases of privileged communications malice must be proved, and therefore its absence presumed till such proof is given."

In 1851 in Taylor v. Hawkins (Q B Adolphus and Ellis, vol. 16) a new trial was asked for on the ground inter alia that the presiding judge (Erle) ought to have told the jury that there was no evidence of malice.

The case is a pleasing instance of the modesty with which Mr. Justice Erle admitted that he had been wrong. He with Lord Chief Justice Campbell, and Judges Patteson and Coleridge heard the application for a new trial.

The Lord Chief Justice said (Patteson and Coleridge concurring),

"The rule is that if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then if he can give evidence of malice; if he gives no such evidence it is the office of the Judge to say that there is no question for the jury, and to direct a nonsuit or verdict for the defendant."

Mr. Justice Erle said :—

"I thought at the trial that the extent of the statement afforded some evidence of malice for the consideration of the jury, but my opinion is now altered by Somervill v. Hawkins.

"There must be a new trial on the ground that the jury ought to have been told that there was no evidence of malice for their consideration."

Of course it may be argued that the modest Judge deserved no praise for having yielded to the law as laid down by Judge Maule in Somervill v. Hawkins. But to me it seems that the man who rises superior to any evil tendency in our nature, commands the utmost respect. Philosophy should know no passion : law ought to be without prejudice. Yet there have been ill-tempered philosophers and unjust Judges.

Seymour v. Butterworth (Foster and Finlayson, vol. 3) was tried in 1862 before Lord Chief Justice Cockburn, who told the jury :—

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

"It would often happen that observations would be made upon public men which they knew from the bottom of their hearts were undeserved and unjust. Yet they must bear with them, and submit to be misunderstood for a time, because all knew that the criticism of the press was the best security for the proper discharge of public duties. It would be for the jury to say whether the writer of this article only denounced a vicious system, or whether he intended to impute. . . .

"If the jury thought that instead of a fair, reasonable, honest comment upon the circumstances this was made an opportunity of gratifying personal vindictiveness and hostility, they would have to assess the damages which the plaintiff was entitled to recover."

It may be gratifying to one occupying so onerous and responsible a position as that of the editor of the Times, to reflect that the jury in the case of Seymour v. Butterworth, though they gave page 8 a verdict for the plaintiff, and though he was a Q.C. gave it for the modest sum of forty shillings.

In 1868 in the Law Reports, vol. 18, will be found the case of Caulfield v. Whitworth, tried originally before Mr. Justice Keating. The synthesis at its head is :—

"Held that no words are actionable if spoken on a privileged occasion, unless express malice is proved, and that it is the duty of the Judge to withdraw such a case from the jury unless an active motive for spite on the defendant's part is clearly shown. Proof that the words are false, without evidence that they are false to the defendant's knowledge, will not entitle the plaintiff to have the question of malice left to the jury."

Lord Chief Justice Bovill, and Judges Willes and Byles heard the application for a new trial.

Lord Chief Justice Bovill said—

"The Judge (Keating) thought that the occasion upon which the words were spoken was privileged and that there was no evidence of malice. It would therefore here be necessary for the plaintiff to prove malice in fact, but it did not appear that the defendant knew his words were false. . ."

Mr. Justice Willes said—

"Clearly the occasion and the character of the words spoken were within the protection cast by the law around privileged communications; and if they were spoken bonâ fide they would afford no ground for action. That rule would be quite illusory if the judge left to the jury every slight circumstance suggested by the ingenuity of counsel as a reason for inferring that malice existed.

"Unless an active motive for spite be shown, it is the duty of the Judge to withdraw the case from the jury. It is not sufficient to show that what was said was untrue, but in order to complete the evidence of malice it must be shown that it was untrue to the knowledge of the defendant.1 . . . The malice (L.C.J. Jervis had said in one case) must be such as to induce the Court, or any reasonable person, to conclude that this occasion has been taken advantage of to give utterance to an unfounded charge. So in the present case the Judge would have been wrong if, without any direct evidence of malice, he had left the case for the jury to infer it."

Mr. Justice Byles said—

"I am of the same opinion, and I entirely agree with all that has been said."

[After referring to the cases of Somervill v. Hawkins, and Taylor v Hawkins, above cited, the Judge added]—

"In addition therefore to the general effect of the authorities, we have in these two cases the unanimous decisions of the Courts of Queen's Bench and Common Pleas, delivered about the same time, authorizing the course which was adopted by my brother Keating in holding that there was no evidence of malice for the jury."

Almost contemporaneous with the case of Caulfield v. Whitworth, was that of Wason v. Walter which I have already cited. In 1871-2 occurred the case of Henwood v. Harrison, in which the reporter remarks that the fair and honest discussion of, or comment upon a matter of public interest is, in point of law, privileged, and is not the subject of an action unless the plaintiff

1 These words are italicized as specially fitted to provide an answer to your suggestion that it was "improbable that any court will carry the doctrine of privilege to the length of protecting any charge made in good faith against a public man."

I do not suppose that any author would wish for more safeguards than those recognized in the case of Caulfield v. Whitworth.

page 9 can establish malice. The Judge who tried the case—assuming a letter to be primâ facie libellous, and it being conceded that the publication was without malice—nonsuited the plaintiff on the ground that it was a fair criticism upon a public matter of public and national importance, and therefore privileged.
The counsel who showed cause was Mr. Huddleston, who argued that malice was not to be inferred unless some evidence were given. The learned Judges who decided the case were Grove, Willes, Byles, and Brett. Mr. Justice Willes said, that the Judge had nonsuited the plaintiff—

"upon the principle that every man has a right to discuss freely, so long as he does it honestly and without malice, any subject in which the public are generally interested; to state his own views and to advance those of others for the consideration of all or any of those who have a common interest in the subject, and that whilst he does so he has a privilege attaching to such free discussion, of the same character which has been held to attach in numerous instances, in which liberty of speech has been allowed on grounds of public and social convenience, where the speaker or writer, and the person or persons addressed, have had a duty or interest in common, the existence of which is held to rebut the inference of malice . . . . . The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered, may be freely used by persons acting honestly, without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals." [Referring to Wason v. Walter, Judge Willes said] "That decision necessarily involves the conclusion that the fair and honest discussion of, or comments upon a matter of public interest, is in point of law privileged, and that it is not the subject of an action unless the plaintiff can establish malice. Where privilege exists the burden of proof of actual malice is upon the person who complains. If there is no evidence of such malice it is the duly of the Judge to direct a nonsuit or a verdict for the defendant. As Lord Wensleydale said (Parmiter v. Coupland), 'Every subject has a right to comment on the acts of public men, which concern him as a subject of the realm, if he does not make his commentary a cloak for malice or slander.' It would be abolishing the law of privileged discussion, and deserting the duty of the court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. . . The whole argument to prove that the case ought to have been left to the jury was based upon the primâ facie case of words printed, which a jury might find to be disparaging to the plaintiff, in stating that his plans were worthless. The answer is that the privileged occasion shifts the burden, and that in respect of relevant words, though defamatory, the plaintiff cannot recover without proving malice, which he has failed to do."

The learned Judges Byles and Brett concurred.

In 1873 it was moved to set aside the verdict in the case of Odger v. Mortimer, in which, though the use of strong language had been proved, the jury found for the defendant.

Lord Chief Justice Bovill, and Judges Grove, Denman, and Honyman heard the application.

The Lord Chief Justice said—

"Mr. Odger is essentially a public man. This being so, editors of public newspapers may comment in the strongest possible way upon what he says and does in that character. As for the ridicule complained of, that is often the strongest weapon in the hands of a public writer, and if it be used fairly the presumption of malice which would otherwise arise is rebutted, and it becomes necessary to give proof of actual malice, or of some indirect motive, or of a wish to gratify private spite."

page 10
Justices Grove, Honyman, and Denman were of the same opinion, the latter saying—

". . . The plaintiff here is emphatically a public man, and as such is primâ facie the proper subject of public comment."

In 1876-8 the case of Clark v. Molyneux (O.B. vol. 3, 1877-8), was tried, and it was ordered on appeal, that there should be a new trial; one of the grounds being that Baron Huddleston, who tried the case, had misdirected the jury as to the construction of the words "honest belief."

"Do you think" (Baron Huddleston had said to the jury) "that the defendant made these statements and wrote this letter bonâ, fide and in the honest belief that they were true, not merely that he believed them himself, but honestly believed them—which means that he had good grounds for believing them to be true? I mean to say that if he pertinaciously and obstinately perhaps persuaded himself of a matter for which perhaps he had no reasonable ground, and with respect to which persuasion you twelve gentlemen1 would say that he was perfectly unjustified, . . . then your verdict will be for the plaintiff."

The jury gave a verdict for the plaintiff for 200l.

In November, 1876, the defendant obtained an order for a new trial, alleging that the verdict was against the "weight of evidence, and on the ground of misdirection of the learned Judge, in that he misdirected the jury on the question of bona fides and malice, in telling them that if they thought the defendant published the defamatory matter complained of carelessly and recklessly, or with a disregard for the feelings of others, and in such a way as they being men of the world would not have acted, they should find that the matter was not published bonâ fide."

In the spring of 1877 the order for a new trial was discharged by Lord Chief Justice Cockburn and Mr. Justice Mellor, but the resilient defendant appealed.

In December, 1877, his appeal was heard by the learned Judges Bramwell, Brett, and Cotton.

After the arguments, Lord Justice Bramwell said—

. . ."I cannot help coming to the conclusion that the question left by the Judge to the jury was put in an inaccurate shape: . . . the proper direction to the jury would have been as follows :—These occasions are privileged, and unless you are satisfied that the defendant availed himself of them to make the statement complained of maliciously (with an explanation of what is legally comprehended in that word) then you ought to find a verdict for the defendant. By the language which the Judge used, he led the jury to the conclusion that the burden of proof is on the defendant.

"I also think that the form of the question is objectionable in this, that it may have induced the jury to suppose that they were to find affirmatively either that the alleged libel was written bonâ fide, or that the defendant in publishing it was actuated by feelings of malice, and that if they did not find the former they must find the latter. . . . The Judge asked the jury whether the defendant did what is complained of in the honest belief that what he wrote and said with reference to the plaintiff was

1 Of. Baron Huddleston's summing-up in my case in 1886. "It is not what Mr. Rusden himself might have thought as to the meaning of the words be used. . . .It is not what Mr. Rusden understood his words to mean. It is what you and I, humble individuals, possessing common knowledge, would understand the thing to mean, &c. &c."

page 11 true. At a later period of the summing up the Judge explains what he means by honest belief, and the effect of his language is that the jury must have been led to think that hottest belief means not the actual belief in the defendant's mind, but belief founded on reasonable grounds. Apart, therefore, from the question upon whom the burden of proof lay, I think there was a misdirection as to the meaning of the term honest belief, and that the verdict against the defendant cannot stand."
Lord Justice Brett said—

..."I am of opinion that there was a misdirection by the learned Judge to the jury, that the verdict was against the weight of the evidence, and that there was no evidence of malice which ought to have been left to the jury. . . .

"If the occasion is privileged, it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect or wrong motive.

"If he uses the occasion to gratify his anger or his malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect and wrong motive.

"If the indirect and wrong motive suggested to take the defamatory matter out of the privilege is malice, then there are certain tests of malice. Malice does not mean malice in law—a term in pleading—but actual malice—that which is popularly called malice. ... I think I have laid down the correct rule on which to ground the direction to the jury, and I think the learned Judge did not follow that rule, but he so expressed himself that the jury would be led into following other rules.

"I think the jury were misled into believing that the burden of proof that the defendant was not actuated by malice in the statements he had made lay upon the defendant rather than on the plaintiff. I apprehend the moment the Judge rules that the occasion is privileged, the burden of showing that the defendant did not act in respect of the reason of the privilege, but for some other and indirect reason, is thrown upon the plaintiff.

"I also think that the learned Judge was mistaken in the definition of malice he gave to the jury, and the jury might have been misled by his leading them to apply that definition to the question of what was malice in fact. . . . It has been decided that if the word 'maliciously' is omitted in a declaration for libel, and the words 'wrongfully' or 'falsely' substituted, it is sufficient; the reason being that the word 'maliciously' as used in a pleading has only a technical1 meaning; but here we are dealing with malice in fact, and then malice means a wrong feeling in a man's mind.

"I am further of opinion that the direction to the jury—that assuming that the occasions were privileged, if they thought that the defendant wrote the letter, and made the statements bonâ fide, and in the honest belief that they were true, not merely believed them himself, but honestly believed them, which means that he had good grounds for believing them to be true—left the jury to suppose that although the defendant did believe them in fact, yet that did not protect him unless his belief was reasonable, whereas the only question was whether the defendant did in fact believe what he said, and not whether a reasonable man would have believed it.

"The question of wilful blindness, or of an obstinate adherence to an opinion may be tests by which a jury may be led to consider whether the defendant did or did not believe the statements he made, whereas the learned Judge, by the way in which he directed the jury, left them to understand, as I think, that although the defendant did believe the statements, yet, if his belief was founded on a wrong reasoning, that he was not within the protection of privilege.

"In that respect, with great deference, I think the learned Judge's direction to the jury was erroneous.

"Assuming that the right question had been left to the jury, is there any evidence in support of the finding of malice? Now, the occasion being privileged, the burden

1 This, if widely known, must be some comfort to friends who are indignant when one whom they respect is the subject of a verdict for which they have no respect.

page 12 of proof to show that the defendant was not within the protection of the privilege being on the plaintiff, and it being an admitted fact that the defendant did not know the plaintiff, had never even seen him, and that he had no relations with him whatever, and no motive can be suggested why the defendant should have a vindictive feeling against the plaintiff, I think that the discrepancies which were relied upon, and the want of care in instituting inquiries, are too slight to justify a Judge in asking the jury whether the defendant was actuated by indirect motives in making the statements.1 He certainly did not make them from a want of belief in them, nor was he influenced by anger in making them, not caring whether they were true or false."
Lord Justice Cotton said :

. . ."When once the learned Judge had laid down that the occasion was privileged, the only question for the jury to consider was whether the defendant acted from a sense of duty, or was actuated by some improper motive, and the onus of proving that the defendant was influenced by some improper motive—that is, that he acted maliciously, was on the plaintiff.

"In order to show that the defendant was acting with malice, it is not enough to show a want of reasoning power, or stupidity, for those things of themselves do not constitute malice. A man may be wanting in reasoning power, or he may be very stupid, still he may be acting bonâ fide, honestly intending to discharge a duty.

"The question is not whether the defendant has done that which other men, as men of the world, would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty. . . .

"There is also another point in the summing-up in which I think there was a misdirection to the jury.

"The burden of proof lay upon the plaintiff to show that the defendant was actuated by malice; but the learned Judge told the jury that the defendant might defend himself by the fact that these communications were privileged, but that the defendant must satisfy the jury that what he did, he did bona fide, and in the honest belief that he was making statements which were true.

"It was clear that it was not for the defendant to prove that he was acting from a sense of duty, but for the plaintiff to satisfy the jury that the defendant was acting from some other motive than a sense of duty. . . .

"On the only other point in the case I think that there was no evidence of malice to be left to the jury. I am of opinion that in this case the evidence does not raise any presumption of malice on the part of the defendant, according to the law as laid down in Somervill v. Hawkins."

(Judgment reversed and new trial ordered.)

It is almost needless to say that the plaintiff ventured upon no new trial, in defiance of a deliverance by the Court of Appeal, which must have acted as a check upon all speculative actions embarked upon with the hope of filling a pocket rather than redeeming or obtaining reputation.

1 If any friend of mine should read the above sentence and feel inclined to ask why I did not, when applying for a new trial, cite this case, so analogous in details to my own, my answer is that I endeavoured to do so, but was told by the court that the terms of the rule obtained precluded my deriving any benefit from the case. "The order of the court," I was told, "is clear that it is only open to you to advert to any question for the purpose, if you can, of showing that that particular thing tends to show that the damages are excessive." . . . . The shorthand report of my application is—

"The Defendant.—But surely, my Lord, it cannot be contended that a published work on a public subject is in its nature not privileged. One may go beyond a privilege—

"Mr. Justice Field.—That we are not going to try. That has been tried and disposed of against you.

"The Defendant.—But that is one of the points in the Notice of Motion.

"Mr. Justice Field.—That is disposed of against you by the arrangement your counsel came to. . . .We must take the Rule . . . We are bound by that, and we shall not go out of it."

page 13

Thus far the cases I have cited have been selected from what some modern politicians call ancient history.

I am not sure that truth is contemptible because it is ancient, or that modern folly is respectable when it reviles old wisdom. There are, however, some recent cases which confirm the general principles which I have put before you.

I do not pretend to say that my observation has grasped all the libel cases which have occurred. Perhaps another observer might be able to adduce cases somewhat conflicting with those I have quoted. If so, he would only strengthen the common reproach of uncertainty in that which ought to be sure and unswerving.

One character complains of undue restraint by the "rusty curb of old father antic the law;"—another, created by the same master hand, reminds us of "the majesty and power of law and justice."

With becoming reverence I may refer to recent instances of the latter order.

I was a bystander at Manchester during a portion of the case of O'Brien v. Lord Salisbury.

It loomed so largely among topics of the day that it is needless to dwell upon particulars,

But I wish to remind you of your own comment (23rd December 1889) with which I heartily agree :—"Lord Salisbury was, in fact, availing himself of the right, which all his countrymen enjoy, to comment upon matters of public interest and notoriety."

Woe will be to the country in which those best fitted to form opinions may not express them.

What a miserable inversion would then exist of the saying—

"That in the captain's but a choleric word

Which in the soldier is flat blasphemy."

Imagine a wise, dauntless, and patriotic minister, condemned to be the mark of wanton calumny himself, and—infinitely worse—to see the land disgraced by abetted crimes; and forbidden to utter warnings or suggest consequences in order to awake the consciences, and the common sense, of his countrymen!

A public critic, though honourable, is fallible; but, if he be honourable, to inflict penalties upon him may be not only unjust to him, but injurious to the country.

Another recent case reported in your columns seems to present a decision at variance with the dictum that it is "improbable that any court will carry the doctrine of privilege to the length of protecting any charge made in good faith against a public man."

The Law Report in the Times (15th and 16th November 1889), in the case of Besant v. Hoskyns, ascribes the following ruling to Baron Huddleston.

"But the question was . . . what the defendant's honest belief was. . . For if the reading of her writings had created in the defendant's mind a reasonable and page 14 honest belief that she did, and he published it upon a privileged occasion, he had a complete answer to this action . . . The learned Baron finally left these questions to the jury:
(1)Did the defendant publish the alleged libel?
(2)Was the matter complained of a libel?
(3)Was it true in substance and fact?
(3a)If untrue, then did the defendant when he published it, honestly and reasonably believe it to be true, and his duty to publish it, and did he do so without malice?

The first question, the learned Baron observed, was practically admitted, the second they would doubtless answer in the affirmative.

If the libel was true there would be a verdict for the defendant; if not, then they would have to say whether or not the defendant had been guilty of mala fides in the sense he had explained. If they answered this in the negative, as he had held the occasion to be privileged, it would be a verdict for the defendant."

Nor is this the only recent occasion on which your obiter dictum as to curial probabilities has been traversed.

Another case tried before Baron Huddleston (Partridge v. the General Council of Medical Education and Registration of the United Kingdom) was reported by you on the 21st December 1889, and seems strongly to confirm the view I am pressing upon your consideration.

"Mr. Waddy (you reported) for the plaintiff argued that the defendants had gone entirely beyond the powers given them by the legislature, and were therefore liable in damages, there being in fact legal or constructive malice.1

Mr. Baron Huddleston said he might say at once that he was prepared to decide that this action would not lie unless malice were proved, and he would therefore suggest that the jury should be discharged, and it be left for his decision, in which event either party could go direct to the Court of Appeal.

Mr. Waddy said his client wished the matter to go to the jury.

Mr. Baron Huddleston. But I will not permit it. I have told you I am going to decide the matter at once.

Mr. Waddy. Then I can say no more, my Lord.

Mr. Baron Huddleston then gave judgment for the defendants, holding that there was no evidence of malice on the part of the defendants and that, therefore the action did not lie. . . .

He did not think it required authority to establish that where persons in a quasi-judicial capacity exercised their discretion Wrongly no action could be maintained against them for such a decision unless it could be shown that they had arrived at their derision maliciously.

Here there was no evidence at all of malice, and the plaintiff must therefore be nonsuited, and judgment entered for the defendants."

As I disclaim what seems to me a forced interpretation of my own language, so I shrink from authoritatively interpreting the words of another.

Yet I imagine that it may occur to you that a historian, or public writer, who is not unworthy of his calling, fills a quasi-

1 I do not aim any of my arguments at such kinds of malice. It has been boasted that law is the perfection of common sense. The kind of law which constructs malice where there is no real malice is transcendental, and requires, I hope, a very uncommon sense to understand it.

What a man says he says with his own meaning, and not with another man's. If one man's words are to be interpreted by the fancies of another—and that other a mere causidicus, who if he had been engaged on the other side would as glibly have said the contrary—of course anything, however ridiculous or false, may be constructed. No writer's mind is inhabited, while he writes, by the dark spirits of construction which may afterwards rush in to take possession of his words and wrest them to meanings of which he was not the author.

page 15 judicial position, and that in his case, at all events, the time may come when it will be "improbable that any court will (refuse to) carry the doctrine of privilege to the length of protecting any charge made in good faith against a public man."
Then will the weighty words of Lord Chief Justice Cockburn bear their full fruit:—

"The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. Comments on government, on ministers, and officers of State, on members of both Houses of Parliament, on Judges and other functionaries are now made every day, which half a century ago would have been the subject of actions, or ex officio informations, and would have brought down fine and imprisonment on publishers and authors.

Yet who can doubt that the public are gainers by the change, and that though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties."

It may be said that in the consciousness that, if his work be worthy, it will survive an ephemeral condemnation—that "socordiam eorum irridere libet qui praesenti potentia credunt extingui posse etiam sequentis ævi memoriam "—the author has compensation for all troubles of the hour. It may be so; but it does not follow that it would not have been better for the public of his own time, as well as for himself, if no vindictive penalty could have been exacted from a writer actuated by good faith, and breathing no malice.

You will, I trust, consider that what I have written, I have written calmly; and that though compelled, in answering your courteous criticism, to refer to my own case, I have alluded to it with no more feeling than the coldest commentator would have displayed.

One characteristic of libel cases—the eccentric differences in the amount of damages awarded—I have not dwelt upon. While the minds of men differ, such eccentricities are unavoidable. Nevertheless some of them are droll.

England's greatest Prime Minister, Pitt (respected by all in his own time, when no one could foresee that, in a time to come, a man who had lauded him for half a century would in old age denounce the dead man as a "blackguard") was by a verdict awarded no more damages than £250. But Pitt of course was neither sordid, nor a money-seeker.

It may seem strange that a Queen's Counsel, attacked with "most bitter language" obtained a verdict for no more than forty shillings.

Again, a medical man (in one of the cases which, like the last, I have cited) obtained a verdict for One Farthing, in a case in which Lord Chief Justice Cockburn told the jury that the defendant had written with "extreme bitterness and severity" but that he was writing "honestly to denounce what he honestly believed" to be wrong.

page 16

In the case of Bardell v. Pickwick my old friend Charles Dickens represented the plaintiff as obtaining a verdict (but not the money) for ten shillings in the pound of the amount sued for.

I have seen a report of a recent historical case in which the plaintiff's legal advisers were content with a shilling in the pound.

It would bewilder a plain mind to endeavour to find any reasonable common measure to apply to such eccentricities.

As I write these pages a cognate branch of the subject comes before me in the press. I deal only with its principle, and express no opinion on its particulars.

I hazard no statement as to what the law is, but common sense indicates what it ought to be.

An elected representative on the London School Board in the performance of his public duty, writes or says something which gives offence; an action is brought against him, and damages are obtained.

Let us assume that he was actuated by no malice or mean motive. Let us also assume that in the present state of the law the damages were properly obtained.

Then the law ought to be altered.

It is monstrous that the conscientious discharge of public duty should entail private loss.

Members of Parliament are hedged round with privilege not for their own sake, but that they may be untrammelled in doing their duty.

A member of the School Board is surely entitled in justice, if not in law, to the same safeguards.

As the School Board member is the chosen champion of thousands of ratepayers, they will probably defend him in the performance of his duty.

But the solitary historian, though he serves the public of the present and the future, has no immediate clients, and courts no special patron.

In the language of the great Judge whom I have quoted—he writes "honestly to denounce" what he honestly believes to be wrong, and it is not to be wondered at if indignation sometimes makes him vehement in vindicating the honour of his country while doing his duty to the public, in whose interest he writes.

For him, too, with the limitations above alluded to, the law, if it require alteration, should be amended, lest the saying of smooth rather than true things become the desire of a wielder of the pen, and the page of history be made a field of flattery or falsehood.

If the nobler hope of fame desert the mind, base or servile passions may enter in, and convert into a ghastly mockery that which ought to be a living picture of the times.

G. W. Rusden.

Richard Clay and Sons, Limited, London and Bungay.