MUTILATIONS OF THE NEW LIBEL-LAW.
DEFENCES are put forth for the Attorney-General's two slashing mutilations of the most generally approved measure of the session, the Defamation and Libel Bill. The Times and Standard both un- dertake the task, though in different styles. The excision of the part that placed spoken on the footing of written slander is passed over by the Standard with the consolatory remark that it did not relate to the law of libel. The Times is amusing and jocular ; exults that the vested rights of dowagers and other old ladies in scandal, and of quizzers in the streets, are preserved ; and it sneers at the " young law " of Mr. CHRISTIE and other promoters of the bill. The " young law" happens to be old law anywhere but in England. Written slander is necessarily more deliberate, per- manent, and injurious, than spoken slander ; but, though differing in degree, it is the same thing in kind ; and the distinction in practice should be, only to make the punishment heavier for the more aggravated offence. That is just the distinction made by the French law, and by the Scotch law ; and the Lord Advocate had given evidence before the bill was brought in, that the fear of costs effectually keeps down frivolous prosecutions for words spoken in haste.
Sir FREDERICK POLLOCK'S total destruction of the clause that made the truth of an injurious publication no valid defence in civil actions for damages, unless its publication were conducive to the public benefit, is disguised by the Standard in exultation, that if the clause had been retained, Sir FREDERICK POLLOCK would have preferred the absence or presence of "malice" as a test of the justifiableness of the clause, in which he concurred with the editor of the Standard. But he struck out the clause altogether. The Times admits that the loss of the clause is an evil; but makes a show of defence by criticising the test as something pertaining to Mr. CHRISTIE, and very vague. Now the clause originated with a lawyer by no means obnoxious to the charge of not being astute in his profession, or of not being a man of thepworld—Lord ABINGER. It first came to light in the shape of the following concise and pithy sketch of a bill, submitted by that learned Judge to Lord CAMPBELL'S Committee.
" Be it enacted, that from and after the passing of this act, in all actions for libel, it shall be no justification to the defendant to prove the truth of the libellous matters complained of; but he shall be at liberty to give the truth in evidence upon the general issue in mitigation of damages, with such other facts as may excuse the publication; and if the truth of the libel is substantially proved, together with such other circumstances as shall make it appear that the publication was manifestly necessary or useful to the public, or otherwise jus- tifiable in law, the defendant shall be entitled to a verdict : provided always, that to render such evidence admissible, the defendant shall tea days before the trial give notice in writing of the facts he means to adduce in evidence. Be it also enacted, that in all indictments or informations for libel, the defendant shall in like manner be entitled to an acquittal on giving evidence that the matters contained in the libel are substantially true, with such other circum- stances as prove that he was free from all malice in the publication, and that the same was manifestly necessary or useful to the public: provided that the defendant shall give the same notice as aforesaid ten days before the trial to the prosecutor or his attorney."
The Attorney-General's plea for cutting out the clause is a pro- fessed desire not to fetter the statement of" truth" ; as if the pro- mulgation of " truth " could not in innumerable cases work flagrant wrong. Every lawyer, not to say every moralist, will tell the Attorney-General as much. No doubt, "public benefit" is not quite a perfect test of the justifiableness of a libel ; because a libel setting forth the truth might justly be resorted to for the en- forcement ofprivate rights, as in the case of a woman publishing facts to compel fulfilment of a promise of marriage. The test of " malice" is not more perfect. At present judges usually infer malice in a libel : and not without some reason ; for, prima" facie, no man has a right to assail another with blame; and if he does assail him, the onus of proving that he is justified—of disproving the malice to be presumed—lies with the assailant. Again, re- vengeful feeling may be notorious, and yet the publication of a libel be desirable : a CICERO may justly denounce, even on paper, the CATILINR whom he hates. The want seems to be, not to ascer- tain the inward motive of the libeller, nor the public or private nature of the imputation, but whether some real and just interest is promoted, and whether the libeller, in the case of private mat- ters, has any call to interfere. The effect of the injury is the ques- tion for civil redress, not the primary motives of the trespasser. The nature of the objections rather goes to the imperfection of the tribunal—they rest on the impression that a jury is not a very discriminating body of arbitrators. But juries must be taken as they are; and as it is, we are content with them in other cases of equal importance and delicacy. The rejected clause was the one in which private citizens had the greatest interest ; and if they are left without legal protection from defamation, they owe it to Sir ROBERT PEEL'S Attorney-General ; who seems to have had nothing in his head but " the press "—not " fettering the press "—as if he could think of nothing but standing well with editors and re- porterq. The subject was one of broad social interest : but the Prime Minister, instead of applying his own sagacious mind to the inquiry, seems, after the growing fashion, to have left it to " the department." Sir FREDERICK POLLOCK happened to be at the head of the Common Law department ; he did not like these parts of the bill; and his dislikes—for his reasons could hardly have pre- vailed—outweighed the authority of an unanimous House of Lords !
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