EDINBURGH POLITICS: 'rah LAW OF LIBEL. 'Tim last Parliamentary election.
in:Edinburgh, it appears, infficted upon that town a storm of bad feeling, which exploded in the recent libel.casa and still continues murmuring. When Mr. Macaulay retired irom the representation, the electors looked around for a man who could sustain the high character which the Scottish capital is ambitious of maintaining. The man chosen was Mr. Adani Black, who had long been associated 4h the local politics, the institution; and it may be said the intellect of Edinburgh. He embodied the spirit of the place very. fairly ; but after he had been for some days before the public, another candidate was suddenly pushed forward. Mr. Black did not satisfy certain sections of the Edinburgh community, because he was not prepared to abolish the Maynooth grant or to encourage an agitation for closing public-houses on Sunday. The leader of this opposition was Mr. Duncan M'Laren,—a Liberal of the fust water, who had formerly been Lord Provost, and had at the last previous election stood forth as an opponent to Mr. Macaulay : nor is it improbable that some disappointment at not being now invited to stand added keenness to his opposition to Mr. Black on the sectarian grounds. Unable however, to propose himself, Mr. M'Laren put forward a Mr. Brown Douglas ; who was further supported by SirWilliam Johnston, a ci-devant Lord Provost. These three had previously figured in the party conflicts of Edinburgh as bitter enemies. They possessed sufficient influence to draw the local press into the cry against Maynooth and the public-houses ; while the Scotsman—alone—lashed. the opposition unmercifully ; a large portion of the invective which it employed, down to the very epithets, being borrowed from the attacks of Mr. M'Laren and his new friends upon each other in their former contests.
The electors did, not p-ermit ` Mr. M'Laren to appoint a representative a son. gre ; all' hie efforts proved unavailing. So he turned for vengeanceto a court of law, and brought an action against the 'Scotsman for libel. It has usually been held that much licence of speech and writing is allowable in election eontests. Although the language used by the' Scotsman was strong, it was levelled at Mr. M'Laren purely in his public character; his private character remained exempt. from censure, and was even complimented. The general allowance for the excitement of the period applied with peculiar force to.the Scotsman, which had taken an earnest part. in promoting the largest principles then at stake ; which saw a conspicuous Liberal going over to act with the enemy ; and whiekwas tempted to use the shafts of satire by the ludicrous character ofthe fellowship now sprung up. under stress of. political adversity and sectarian bitterness. Yet the Jury before whom the case was laid returned a• verdict. in favour of the prosecutor, awarding him 4001. in damages. 'At first this verdict was regarded as a heavy blow and great discouragement to free discussion ; but we•do not observe that the discussion in the Scotsman has in any degree lost its freedom or its verve. On the contrary, there is a reaction against the verdict inthe journalism of the whole kingdom, which tells us fiat discussion will continue to be free, and that it has indeed only more extensively and effectually. taken up the It'Laren question.
i It s not difficult to account for the result of the trial. The Jury was drawn from the usual sources : one half consisted of farmers—not the best class to judge of niceties in law and moral logic. Since the Scotsman has long been distinguished asan ardent political champion, it has correspondingly ardent friends, no doubt, but not. less decided enemies ; of whom, probably, some might be found in" the town half of the Jury as well as among the farmers. And to that Jury, with all its natural imperfections and prejudices, the case was handed over for judgment : but how?
The slimming-up of the Judge, • which was impartial in tone and able as a review of the evidence, is remarkable for laying down with great distinctness, though not perhaps for the first time, a negative rule in matters of libel. "It is, said the Lord JusticeClerk, "a mistake on the part of the defenders to say that anything may be said of a man's public character in any terms provided it does not interfere with his private character. There is no such distinction ilii law as that between public and private. The only distinction is this—the judgment of a jury as to what is personal abuse, intended to produce the effect stated in this issue, and what is fair invective,though it may be coarse, vulgar, and. strong."
The Scotch Judge thus removes one distinction which has been supposed to mark the line between allowable animadversion and libel and he hands over the whole case to the prejudices of an Edinburgh Jury with instructions to consider whether or not the language was too severe," too "strong," without the aid of any test or rule, by which they. might draw the line between the allowable and -the "too much." Certainly this is not a. very desirable state or exposition of the law. It is a frail basis for the freedom of cliscussion or the protection of personal character. 'And we have to ask at once whether it is really the law of the United Kingdom ? Furthermore, if such is the judicial view, we have to ask whether it ought to remain so—whether there is not some principle which may guide juries in their verdict, ptiblie writers or public speakers in their conduct ?
The old notion of" defamation."' was, that it consisted in im.puting to a.man conduct for which he might -be subjectedto action or criminal information. Thus, if you accuse a man of being a "villain," it is not defamation ; but if you accuse him of being a ,c swindler " or a "thief" it fir actio' noble. Probably the same distinction would be found to meet the requirement for the guidance of a jury, and therefore for the guidance of public writers or
akers, in matters of libel. 'The rationale of the distinction is
If a man is actually a swindler or a thief, he has done something for which he might be brought before a criminal court. In that case, the evidence would be carefully collected ; it would be laid before the judge and jury ; it would be examined ; and the court would pronounce upon the truth of the accusation, condemning or acquitting the man. Until he is actually condemned, the man has a right to be treated as an innocent person. Any ,one who asserts that he is a swindler or.a thief arrogates to himself the function of judge and jury, and defrauds the man accused • of the opportunity of proving his innocence. If the accuser knows that the accused is a swindler or a thief, he is bound to take steps for bringing him to justice in regular course. If he is not prepared with the specific evidence for that purpose, or is not ready to take the trouble, he has no right to anticipate the result and to utter a verdict without authority. The same reason exactly applies to the public speaker or writer ; and it will be observed that it affords the same protection for individual character which
been supposed to lie in the distinction between a man's public and private capacity.
But there are moral accusations which are not of a character to be brought before a court of justice, civil or criminal. If we look abroad for an instance in which it may be the duty of a public writer to show that the conduct of a man is " hateful " it will not less illustrate the principle. The man who has devoted early-life to the vindication of liberty—who sees that he has opportunity of working towards the first place in a republic by taking up the cause of slavery—who in pursuit of a merely personal object labours positively to extend the curse of slavery—who infringes the constitution of his country to carry that measure, and-who risks in that course civil conflict, much bloodshed, and many • crimes,—that man is guilty of conduct which, when described in simple terms calculated to render his aspect " hateful." Yet he could not is brought before a criminal tribunal for any part of that political career ; and he could scarcely construct a libel out of the plainest and most vigorous exposure of it. The man who 'affects to become a statesman on the success of a plan for trading in questionable railway projects, pushing his trade by a special method of "making things pleasant," might be held up to " contempt" by the simple description and he ought to be held up to • contempt, if his example and his influence are acquiring a manifest and. mischievous influence over the community. If in his false position he stumbles into behaviour that is laughable the House of Commons may adjourn to stop the scene of ridicule; but the hand of the public writer, must not be staid because, ,to point out that consequence of a vicious choice in the electors, he happens to show that the chosen man is "ridiculous." Yet ridiculous conduct is not of a kind, to bring the person in question before a criminal court. The censor would therefore have no established tribunal for his appeal ; he could only appeal to the broad tribunal of public opinion. It so happens, too, that on broad questions of morality, such as are not narrowed into statutablebffences the sole tribunal is the proper tribunal ; the sole judgment which can keep offences of, that kind in check is the general feeling of the community ana the dictate of public opinion. The very breadth of that appeal renders it liable to imperfections' perhaps to abuse. Proceeding upon generalities, the censor may frequently be mistaken in his charge, and. the multitudinous -tribunal may easily be led into a false judgment. A Minis' ter of the Crown may be charged with corruption in office : • if there is even a prima facie case, he may be impeached ; and his -acquittal -will prove that his accusers out of doors are libellers. Such things have happened. On the other hand, a Peel, charged with devotion to selfish objects in his political career— with being cold by nature, and having "a ball of cotton in his bosom'—could not have been brought before the criminal court for the offence of possessing those qualities. He had not therefore the opportunity of disproving the accusation; • but he had for years to undergo the injustice of misconstruction. Yet it is not more certain that he was unjustly treated, ' than that the public, who falsely estimated him, injured itself by keeping back a useful public servant. Here is the true check upon abuses of the appeal to public opinion. The natural instincts of society tend to control them. Let a man be wrongfully accused, and his friends, or the public at large, will sooner or later stand forward tcr defend the accused and chastise, the -accuser. In proportion, too, as public opinion asserts its power, the influence of responsibility will be enforced upon those who make the appeal. Nothing has been more conspicuous in the present --day than the enlarged freedom of the appeal, and the constant , improvement in the spirit and the language of the people and of the press. This improvement, however, will not be promoted by a strained application of the libel law. As little will-public men exalt themselves by betraying a thin-skinned querulousness under criticism, or by appealing from public discussion to the technicalities, of the law-courts.
lithe above rule of " defamation " had been applied by the Lord Justice-Clerk, he might have told the Jury, that the imputations against Mr. McLaren, not being such as would have rendered him amenable to -the law, did not come under the cognizance of the law-courts. As it is, Mr. McLaren has succeeded in winning, through a narrow issue, from an imperfect tribunal imperfectly instructed, a penalty on' the opponent, who was not more virulent but more consistent than himself. By the verdict injustice is done to the Scotsman in a mode that cannot be redressed by the court of law ; but the whole public comes forward to redress the wrong, with sympathy, with support, and with the large compensation of a genuine public success to the last.
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