JURIST TO TILE SPECTATOR.
Sin—I concede the point that the pain given by an alleged libel is by no means a conclusive criterion. All I meant to say was, that the pain given to an individual by an attack upon him, and the injury which might accrue to him as a consequence of such attack, were so much greater than that which can accrue to individuals from an attack upon institutions, that a wider lati- tude might be given in the latter case than in the former. The right to censure which is implied in the very phrase "the liberty of the press" is a tight to give pain. If no pain were given by the censure no good would be effected by it. Now the right to inflict pain cannot be an unrestricted right. You admit that it must have its limits—not merely moral, but legal limits. In making this admission, however, you must repudiate the alleged authority of Bentham as drawn from his Book of Fallacies, the quotation from that work having been given by the Daily News for the purpose of showing that the liberty of the press has no bounds ; a doctrine which I thought, when I came to the following sentence, you supported—" So long as the press is destined to perform services for numerous classes, we must de- fend it against any trammels to be placed upon its absolute freedom." But your subsequent qualifications, insufficient as I think they are, show that we are not to tie you down to the literal meaning of your words ; neither must you so tie down Bentham. When he wrote, the law in all prosecutions for libel, whether by indictment or criminal information, precluded the defendant from proving before the jury the truth of his allegations, and the criterion of truth or falsehood being thus obliterated, it was utterly impossible to draw any sound distinction between freedom and licentiousness. But Ben- tham, whom I knew intimately, never meant to controvert the propriety of calling on every writer who charged an individual with acts injuriously affecting his character to prove the truth of his aspersions ; character, i. e. deserved character, being a species of property which he thought had a very strong claim to be protected by law. This assertion of mine will be at once accepted by any person well acquainted with Bentham's works. For the present, I will only cite the heads of Chapter VI. in his proposed Penal Code. Title : Offences affecting reputation. Section 1. Wrongful defame.- tion. 2. Wrongful vituperation. 3. Insultive vituperation. 4. Usurpa- tion of reputation. 5. Wrongful transference of reputation. 6. Wrongful interception of reputation.* Note, Mr. Spectator, that these are and ought to be public offences according to the opinion of Bentham. Note, also, how carefully Bentham provides for the right of deserved attack even upon cha- racter. The only head of offence which is not expressly designated as wrongful, either by the use of that term, or by the employment of the word usurpation, which implies wrong, is where he designates the offence of in- sultive vituperation ; which omission was founded on his belief that, what- ever might be the desert or want of desert of the party attacked, it was an offence against public decency to use language the sole or main object of which was to insult him.
So much, then, for the opinions of Bentham : but I may further observe that the law of actions for libel was the same then as it is now • that is to say, if the defendant alleged and proved the truth of his charges, entitled himself to a verdict ; and yet never until the case of M‘Laren versus the Scotsman came under discussion did I hear any claim made on the part of the press for a right to bring false charges against individuals injuriously affecting their character.
You will observe that the present discussion in the newspapers arises out of a civil suit in which the plaintiff complained that certain misconduct had been attributed to him, and challenged his opponent to the proof. In the opinion of the Jury, the defendant failed in such proof and they as- sessed the injury at a certain sum. Now it is quite competent to the friends of the Scotsman to impugn the verdict, either on the ground that the charges were proved, or that the damages were excessive. But suppose they adopt either of these grounds and show that it forms a solid objection to that particular verdict, is the liberty of the press attacked every time a jury makes a mistake ?
Men are sometimes hanged on erroneous verdicts, yet life is considered tolerably well protected in our courts of justice, and no outcry is heard on the subject. How it would be if an editor were hanged rightfully or wrong- fully, I will not presume to say. But the opportunity has been seized of a verdict which is alleged to be erroneous, to make an attack, which, while it purports to be directed against the result of a particular case, is in truth aimed at the law. The high character of the Scotsman is insisted upon. But character is power, and when that power is exerted to inflict a wound it will be the deeper and more dangerous in proportion to the force with which the blow was dealt. Is it then gravely to be maintained that the Scotsman is to answer the com- plaint that it has wrongfully defamed BPLaren, by putting in evidence its great capacity for injuring him ? Again, it is said that IPLaren has de- famed others. But has he wrongfully defamed them ? To dispose of that question would require a multiplicity of investigations, each as onerous as that with which the Jury are charged respecting the defamation of 31`Laren himself. Who does not see that a law which admitted of such inquiries be- ing tacked on to the original suit would be a law to render actions for libel impracticable remedies ? But let us pass over this difficulty and look to the reason of the thing. A. inflicts damage on 13 by wrongful defamation ; but A demurs to paying such damage on the ground that B has wrongfully defamed C. Is not the following a parallel case—I refuse to pay my baker because he does not pay his butcher ? Common sense would appear to decide that every person in- jured should be left to seek his own remedy, and that third persons have nothing to do with the affair. Suppose C, even although he may be a little wronged, thinks upon the whole he had better remain quiet, what right can A have to thrust him into the melee ? There is another argument used which I must confess the more I reflect upon the more I am astonished. It is said a libelled man has his friends and partisans ; probably as many newspapers will defend him as attack him,. and thus in the end his merits or demerits will be ascertained without the aid of judicial investigation.
But what is the practical result? His opponents represent the facts their own way ; his partisans represent them in their way. How is the public to arrive at a just conclusion ? It cannot ; and the consequence is that it partly believes and partly disbelieves every charge. By this course, those who deserve reproach and those who are wrongfully inured by it are both put on a level. No man's character is black, no man's character is white, but all are reduced to the dingy colour which the stationers call whitey-brown ; whereas, if these conflicting statements are tested by open trial and the cross-examination of witnesses, the truth makes its way; and although, if the interests or supposed interests of a class are placed injeopardy by the verdict, an outcry will be raised against it even if dictated by the justice of Aristides and the wisdom of Solon, yet the great, calm, silent, neutral public, will accept the verdict as a settlement of the question, and leave the class-dissentients to write or talk themselves and their readers into weari- ness.
Now, it is because I hold the rightly-directed censure of the press to be an admirable instrument of punishment for many offences which no law can reach, that I should regret to find it weakened by its being used without re- sponsibility. A charge made by a journal, as the law now stands, is an offer to prove the facts which it alleges, in a court of justice, if the party attacked dares to undergo the ordeal. But make the journalist irresponsible, and his censures will be held to be mere railing, a sort of genteel Billingsgate. They may be true or they may be false, but their utterance is no guarantee of their validity. Is this a position which journalists can desire to hold ? One word as to your qualifications of the unbounded freedom of the press, which I ventured to pronounce insufficient. If I understand them aright, for they are scarcely expressed with your usual precision, you would not al- low the plaintiff to complain of any aspersions which fall short of accusing him of same offence pumshable by the criminal law. But why this restric-
• Bentham's Works, by Bowring, Vol. I. p. 164—Table. tion ? It is no offence by the criminal law for the chairman of a imbue meeting to act with partiality ; but it is a high offence against good morals, tending as it does to destroy the genuine expression of public opinion. Surely a person so aspersed has a right to such an in- vestigation as shall either clear him from the charge or fix it irrevo- cably upon him. By its responsibility the press forces the guilty man into this dilemma : he must either bear the censure without complaint, or he must repair to court, with the certainty of enabling his accuser to ratify the condemnation. This is the theory of the law as it stands ; but it must be admitted that the practice is not altogether on a par with the theory. A highminded man may not desire that his opponent should receive punishment, and there- fore may refrain from a criminal prosecution. He may shrink, too, from exposing himself to the imputation of desiring to coin his wrongs into sove- reigns, and thus may refrain from bringing an action. But if liberty were given to him, after the manner proposed by Mr. Edwin Hill in a paper ublished by the Society for the Amendment of the Law, simply to chal- lenge his opponent to the proof—and if the result of the investigation, or in other words, the verdict of the jury, were a full statement of the facts as the jury found them to exist—a much more acceptable remedy would be of- fered to the libelled man than any to which he can at present have re- course. The costs of the trial, it is reasonable, should be borne by the de- feated party ; but no other legal consequence need to follow on the verdict. Nor would it be necessary to deprive complainants of any existing remedy. Where pecuniary damage has followed upon wrongful defamation, there is no reason why the defamer should not indemnify the injured party. In all other cases, ft would soon be felt that the complainant who sought either punishment for his opponent or money for himself, was liable to the sus- picion that the defence of his character was not his main object, and indict- ments, criminal informations, and actions for libel, would become of rare occurrence.
But enough Sir, and overmuch for one bout. If, however, you desire to continue the fight which you have commenced, I am your man, though growing old and stiff in the joints, for another round or two.
JURIST.
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