§ Mr. Christierose to move the Order of the Day for the House to resolve itself into committee on the Defamation and Libel Bill. He said, in moving that the House resolve itself into committee, I believe it is right, according to an understanding, when the bill was read a second time, with the right hon. Baronet opposite (Sir J. Graham), that I should briefly state its objects and provisions. Though no discussion has yet taken place here on this bill, so much is known of it, from what has passed in the other House, that it is unnecessary for me to urge its importance on the House. I trust I may also appeal to the proceedings in the other House, for the purpose of showing that the bill is deserting of support. The subject-matter of this bill has undergone a searching investigation before a committee of the House of Lords, which has sat during the present Session, and which has examined a large number of witnesses, judges, barristers, and editors, and proprietors of newspapers. The committee presented a report, containing a number of specific recommendations, which are the basis of this bill. Though every one of those recommendations has not been imported into this bill, yet every provision which it does contain was recommended in the report of the committee; and, Sir, the bill having been introduced into the other House by Lord Campbell, having met with no opposition to its principles; having obtained the concurrence, and having had the advantage in the discussion of its details of the assistance of Lord Denman, Lord Abinger, Lord Brougham, and the Lord Chancellor, comes down to this House, backed by authority at least equal to that on which the right hon. Baronet rested, the other night, his support of the Law of Evidence Bill; and I trust that, under all the circumstances of the case, particularly the delay which has taken place in coming to the discussion in this House of a bill which has come so recommended from the other, I may anticipate no opposition to going to-night into committee on the bill, and proceeding with it in committee. I trust, too, that I may obtain for the future progress of the bill that assistance which the Government is able to render, which the course taken in the other House by the Lord Chancellor, renders it not unreasonable to expect, and 869 with which there is yet ample time for the full consideration of this important measure. This bill does not propose to deal in any way with public libels. It is confined to an alteration in the law of private libel, or injury to the character of individuals in print or writing, and of defamation, or similar injury done by word of mouth. And the first object of the bill is to make the remedy by civil action for defamation, or slanderous words spoken, co-extensive with the existing remedy by civil action for private libel, or slanderous words written. There would certainly seem to be no reason why redress should not be given to a person for the injury done to his character by defamatory words publicly spoken, when for the same words, if they are reduced to writing, he may bring an action and get damages. As the law at present stands, no action will lie for defamation, unless special damage is laid, except for words imputing an indictable offence, words tending to injure a man in his trade or profession, and words imputing to a man that he has an infectious disease, and thus tending to exclude hint from society. So that if a man speak of another in the most public place possible, in terms of abuse which do not fall within any of these special cases, calling him, for instance, a liar or scamp, or if he speak calumnies against a lady's reputation, the party injured has no remedy, unless special damage can be proved; while an action may be brought for the very same words if, when written, they have been shown only to one person. This bill proposes to remove this inconsistency, and to extend the right of action for defamation to all cases where words, if written, may form the ground of action; and to meet the danger of frivolous actions, it provides, that in all actions for defamation, except for words imputing an indictable offence, the jury may consider, under the plea of not guilty, whether the circumstances under which the words were spoken, were such as to be likely to render them injurious to character; and if they think that they were not, may find a verdict for the defendant. Another source of security against frivolous actions, is the existing regulation, by which costs are refused to the plaintiff where the damages are under 40s. The next chief object of which I will speak, is to limit the effect of truth as a justification, in answer to actions for defamation or libel. At present, any charge may be made against a person in the merest 870 malice, without any good object to be derived from it, with no other result than pain to the person's feelings, or injury to his character, if only its truth can be substantiated. Now, in some cases, the proof of the truth of a charge may be also a proof that the plaintiff has no character to lose, or feelings to wound. In some cases, also, the proof of the truth may prove that the defendant, in making the charge, has done a service to the public; and in such cases it is important that the defendant should be protected by the public. But surely there are cases, as that of an old offence or indiscretion, which has been redeemed by subsequent good conduct, and which it does not concern the public in any way to know of, or of some personal defect, or harmless but ridiculous peculiarity, where publication inflicts an injury to the character or feelings for which the law should provide redress, and to which the truth is a consideration perfectly irrelevant. This bill provides, that in actions for libel, or defamation, the truth shall be no defence in itself; but that in order to justify, it shall be necessary also to establish to the satisfaction of the jury, that it was for the public benefit that the truth should be published. A provision of this kind would seem as important for the sake of the character of the press, as for the just protection of private reputation. It deeply concerns the press, and through the press, it deeply concerns those great public interests to which in this country, the press so powerfully ministers, that the law should discourage wanton and cruel attacks on private character, and confine it to the exercise of its high and useful public functions. A libel may be proceeded against criminally, as well as by civil action; and there is, as the law at present stands, this remarkable discrepancy between an action for libel, and an indictment or information for libel, that truth is altogether a bar to the action for damages, but is not allowed to have any effect at all in the criminal proceeding. Indeed, the well known dictum of "the greater the truth the greater the libel," would put the discrepancy in even a stronger light—truth necessarily aggravating the offence, in the one case, and altogether justifying it in the other. But the offence which society interferes to punish, is clearly the same as that for which it allows the person immediately injured to obtain redress by civil action—an offence against the feelings and reputa- 871 tion of one of its individual members. The consideration of the truth or falsehood is necessary, properly to estimate the degree of this offence: sometimes it may aggravate, sometimes extenuate it. The knowlege of the falsehood will often show greater malice in the libeller, and will warrant the infliction of greater punishment. Hitherto, as is well known, the criminal branch of the law of libel has been based upon an altogether different principle—an imaginary principle—that of the tendency of libels to provoke breaches of the peace. I think public opinion has been too unequivocally pronounced upon this fundamental principle of punishment for libel, to require that the time of the House should be taken up by proving that it is no more nor less than a fiction, that it is also a very inappropriate fiction, and that it leads to much practical mischief. The man who has published a true charge against a swindler, by whose exposure society profits, is treated in the same way as the unprincipled slanderer who levels falsehoods at the peace and happiness of private families. An indictment for libel is no protection to private character. A party proceeding by indictment, is accused of fearing an investigation into his character, else he would have brought an action, when the truth might have been pleaded. It is no condemnation of an unprincipled libeller, that he should have been found guilty; he boasts, that had he been allowed to prove the truth of his charge, he would have been acquitted. The present state of the criminal law of libel is thus fitted so far to encourage the calumnious portion of the press, while it gives to the respectable portion no opportunity of vindicating its superiority; and is further marked by the gross anomaly that the punishment of an offence whose essence is an injury done to character, is placed on a footing which necessarily precludes altogether all consideration of the character which has been injured. This bill, therefore proposes to introduce into criminal proceeding for libel the consideration of the truth, subject to the same modification which it adopts in the case of an action, and provides, that on proof of the truth, and of its being for the public benefit, that the truth should have been published, the defendant shall be entitled to an acquittal; but at the same time foreseeing the possibility of a plea of truth, and of the evidence brought to support the plea only aggravating the of- 872 fence, it gives the court power to take this into consideration, and apportion punishment accordingly. The bill further makes a distinction of offences, when the libel has been published with a knowledge of its falsehood, and when no such knowledge is charged: and provides two degrees of punishment. Where a person is convicted of publishing knowingly a defamatory libel, he may be imprisoned for a term not exceeding one year, or fined, at the discretion of a court; if of a defamatory libel, knowing it to be false, with fine, at the discretion of the court, or imprisoned for a term not exceeding two years. Then the bill creates a third offence, for which a higher punishment is provided—publishing a defamatory libel after a threat with intent to extort money, for which, on conviction, three years' imprisonment, with hard labour, may be awarded. There are some other provisions of the bill, chiefly tending to protect the honest portion of the press, which I will mention very briefly. Power is given to the defendant in actions for libel to pay money into court by way of amends, and which shall entitle him to a verdict if it is proved to the satisfaction of the jury, that the libel was inserted without malice, or in gross negligence, and that an apology was inserted at the earliest opportunity. Similarly an offer of apology is to be admitted in evidence in actions for defamation in mitigation of damages. This limited power of paying money into court, is given with the design of protecting newspapers against persons who are in the habit of sending to them libellous articles upon themselves; and then, when they have been published, bringing actions for damages, and refusing to listen to all reasonable terms of compromise. There is a good deal of evidence as to this species of swindling in the report of the Lord's committee; and I will read an extract bearing upon this subject from the extremely valuable and interesting evidence given before that committee by Dr. Giffard, the editor of the Standard.
I think, that no action ought to be brought against a newspaper until a period, say fourteen days, had been suffered to pass from the notice of complaint of the libel complained of. And my motive for suggesting that is, that my own experience tells me that newspapers must fall into libels by accident. The only action that ever succeeded against the newspapers with which I have been connected for four-and-twenty years—and that is saying something—the only 873 action in which we were defeated was the result of a pure accident, merely a mechanical accident, throwing one paper into the box instead of another. We made an apology, and offered even a sum of money, 50l., and to pay costs; and the answer of the plaintiff was, that he wanted damages, and not an apology. The great hardship to which newspapers are subject is this, that we are exposed to more swindlers than your Lordships would believe, who write libels on themselves, and send them to us for the sake of founding actions. This has happened to myself repeatedly. And when your Lordships remember that an editor sometimes receives from fifty to one hundred letters a day, and that those must all pass under one eye, for a reason which I will explain presently, it will be obvious to your Lordships that accident must sometimes arise; and I confess that I think it a miracle, and no small credit to my diligence, that in four and-twenty years I have been but once entrapped. A case distinctly stated sometimes is more useful than any amount of general assertion. About twelve years ago a person named Douglas wrote a letter to the Standard, enclosing a paragraph describing a fraud committed by one Douglas (himself) stealing a gig. The paragraph was thrown aside. At that time there were a multitude of actions by swindlers against the newspapers, and before I had got this paragraph I had determined to have nothing to do with swindlers. I think I wrote a general notice, that as juries were so favourable to swindlers in libel actions the public must take care of themselves, and that we would give no further warning. However, this paragraph was thrown aside in the office; a friend came in, and saw it; he happened to know Douglas's handwriting; he stated it to me to be Douglas's handwriting. I sent a message to Douglas, whose address this person knew; Douglas confessed it was his handwriting, and said it was a good joke. Now, it is in order to protect us from that kind of persecution that I want the fourteen days between notice of complaint and the commencement of an action. For, after all, since the present judges have occupied the Queen's Bench we are very careless about criminal prosecutions. I, for my part, never suffered by a criminal prosecution, and there has been but one in the four-and-twenty years brought against us, and that was given up by the prosecutor.The bill provides also, that in criminal proceedings for libel, where a prima facie case of publication by an agent has been made, the defendant shall be allowed to show, under the plea of not guilty, that the publication was made without his knowledge or authority, and not for want of due care on his part, and giving the defendant to an indictment or information for libel, costs upon acquittal. I have thus stated the chief 874 objects of this bill. In the presence of the Attorney-general, and with the knowledge of the eminent authorities which have supported this bill, I cannot but feel that I may be thought guilty of presumption in expressing my opinion; but still, having charge of it, I think it might not unjustly be considered affectation, if I shrunk from expressing my opinion that this bill will introduce changes as beneficial as they are considerable, into one part of the law of this country which has long been universally considered to be in a state extremely unsatisfactory. In extending the right of action for defamation, the bill will take out of the hands of individuals the adjudication for themselves on offences which are the most likely to lead to broils and violence, and for which, on every principle, it is therefore most important that legal redress should be given. It will remove the glaring inconsistency that now exists between the civil and criminal branches of the law of libel; and will assimilate these two branches on principles, just alike to private individuals whom a licentious press may injure, and to the press itself, which is not less concerned, for the sake of its own influence and character, in the effectual prevention of wanton personality, than in obtaining protection for its honest and conscientious labourers in the public service. I will only say further, that I hope this bill may experience the same reception in this House which it has met with in the other, and that the Government will not allow the Session to close until we have passed into a law, changes in the law of libel which public opinion has so long demanded, and which have received the sanction of all the most eminent legal authorities in the other House of Parliament, whether sitting on the one side or the other.
The Attorney-Generalsaid, that if his hon. and learned Friend had thought proper to go into Committee, without entering into the details of the Bill, he would have reserved his observations till they had come to the discussion of the clauses separately; but as his hon. Friend had thought it right to make a general comment on the whole measure, he felt himself bound to take a rapid sketch of the clauses of the Bill, and point out those to which it would be his duty to state his objections. Some alteration in this part of the law he certainly thought was necessary, and the sooner they addressed themselves to that alteration the 875 better. But to the first clause of this Bill, which gave a right of action for verbal slander, he felt great objection. He admitted, as the law of libel now stood, that a man might bring an action against another for calling him a scoundrel. As far, however, as any professional advice went, that he had ever given, this part of the law had been a dead letter. There was a remedy by action if a man were accused of' a crime—if he was slandered in his business, or if the slander had produced any mischievous results. There he would make his stand; and, instead of passing a law to raise the law of slander to the law of libel, he would rather cut down the law of libel to the level of the law of slander. He could not consent that every time two persons exchanged offensive expressions there should be a ground for action; nor could he consent to that part of the Bill which went to enact that truth should not be a defence of an action for slander, unless it was for the public good that the matter should be published. If this were the law, a man, if he merely entered into conversation, would have to inquire not only whether what he was going to a say was true, but also whether it was for the public benefit that he should say it. He really thought that this would be to fetter speech by a very mischievous course of legislation. He would now come to the second clause, which made it competent to the jury
To consider whether the words set forth in the declaration, were spoken on an occasion when the plaintiff's character was likely to be injured thereby.Now, what a case was this to send to a jury! To twelve Gentlemen, assembled to try the truth or falsehood of words uttered perhaps in a stage coach, or passing along the streets. Although the words might have inflicted the greatest mischief upon the injured party, although they might have utterly ruined him, still a plea might be raised that they had been spoken on an occasion not likely to injure him. The jury was not to consider whether they had done injury, but whether, at the time they were spoken, they were likely to do injury, making the case turn not on fact, but on probability. He must protest against the adoption of such a principle, if the first clause was carried. It would be much better, he thought, to say that a malicious publication of the truth should 876 be no defence to an action. As to the rest of the clauses, he saw no objection. As to the 5th clause, that relating to newspapers, he certainly thought it would be better if his hon. and learned Friend would extend it to every publication of the same description, in order that there might be no class legislation. As to the 6th clause, that relative to threatening letters, he should have no objection to it, if his hon. and learned Friend would consent to some alterations, but in its present shape it seemed to exclude all appeal to public opinion, and that he (the Attorney-General) could not assent to do. The 7th and 8th clauses he believed to be wholly unnecessary. They professed to confine the punishment for libel to an imprisonment not exceeding two years. He thought this was a very bad compliment to Westminster Hall; it was not paying to the spirit of the time the tribute to which it was entitled. He did not believe his hon. Friend could state any instance in modern times, of an imprisonment of three years for libel. Such things might have happened in other days, but he (the Attorney-General) was glad that those days were gone by. With respect to the next clause, making truth a defence to any criminal information for libel, he (the Attorney-General) went cordially along with his hon. Friend. Whoever remembered the case of a bookseller in Paternoster-Row, who, returning to his shop one Monday morning, and finding that during his absence a single copy of a libellous publication had been sold by his shopman, immediately sent away all the other copies—whoever remembered that that bookseller was punished for the sale of that one copy, must blush for the law of the land. Having stated his opinion on different parts of the Bill, he was now quite ready to go into Committee.
§ Mr. Macaulaythought that the most important article in the whole Bill seemed to receive the cordial assent of the hon. and learned Attorney-General. As the law now stood, a man was liable to severe punishment for doing that by which he made himself a great public benefactor. If that alone which went to correct this state of the law were passed, a great public benefit would have been conferred. On the other clauses, he would not now make any remarks, as he was not desirous to detain the House from going into Committee.
Mr. Bernalthought, the hon. and learned Attorney-General had stated his objections in a very fair and honourable manner. He might differ with him on some points, but a small difference between them should not induce him (Mr. Bernal) to relinquish the hope of gaining a great benefit by the passing of the most important portion of the Bill.
§ House in Committee.
§ Mr. Christie, though it might be presumptuous in him to differ from the learned Attorney-general, had not yet relinquished his opinion, that this clause, if agreed to, would be found beneficial, particularly as limits were set by the next clause to frivolous actions. He did not feel that he should be justified in giving up the clause, without some further expression of opinion, particularly as he knew that the noble Lord to whom the public were indebted to this bill, attached much importance to it. There was no reason for the difference made by the law of England, between the same words written and spoken. And this difference was peculiar to the English law. When the Attorney-General objected to trusting a jury with such an issue, as whether the words were spoken under circumstances likely to render them injurious, it seemed to him (Mr. Christie) an objection to trial by jury. He did not think he would be justified in withdrawing this clause till other hon. Members had convinced him it would be impossible to carry the clause against the opposition of the hon. and learned Attorney-general.
§ Mr. Darbybelieved that the clause, if agreed to, would lead to the employment only of some of the lowest class of legal practitioners. He agreed with his hon. and learned Friend, the Attorney-general, in opposing the enactment of a law, the effect of which would be to make a man liable to action for words spoken in haste. He thought the hon. Gentleman should content himself with those parts of the bill which all were agreed in looking upon as likely to do good.
§ Mr. Macaulaythought some change in that part of the law was required, yet he must say that he should advise the hon. and learned Gentleman who had charge of the bill to accede to the suggestions of the hon. and learned Attorney-general. 878 The part of the bill now objected to might be more advantageously considered hereafter, and in the present state of the House, the hon. Gentleman (Mr. Christie) might risk the loss of the bill by pressing this clause to a division.
§ Mr. C. Bulleragreed that the law of slander required alteration; but with respect to this clause, there were difficulties thrown out which certainly required consideration. It must be admitted that there was a difference between written and oral slander. Written defamation argued more a deliberate intention than words uttered, perhaps, in haste. Under these circumstances, he would recommend his hon. Friend to confine himself to that part of the bill, respecting which both sides of the House appeared to agree.
§ Mr. Christiewould not trouble the committee with a division, after the opinions expressed by the right hon. Gentleman the Member for Edinburgh, and the hon. and learned Member for Liskeard.
First and second clauses struck out.
The third clause, "That in any action for defamation the truth of the matters charged should not amount to a defence of such action, unless the said matters charged should be published for the public good having been proposed.
§ Mr. C. Bullerwas very anxious that this clause should pass. Nothing could be more objectionable that the present law in respect of civil proceedings in cases of libel, by which the truth of the allegation was made a complete answer to an action for damages. The present clause, which left it to the jury to determine whether it was for the public benefit to make publition, would be a great improvement, and must, at all events, be considered as the least of two evils. The law of England was exceedingly defective in respect of the anomalous distinction it made between civil and criminal proceedings. If yon indicted a man for slander or libel, truth was no justification. In civil actions for libel, you let in the whole evidence of the truth, and everything turned on that. We had one form of proceeding by which truth or falsehood could be proved, and another in which no inquiry was allowed into the truth or falsehood of the charge, or the motive with which it was published. Such being the state of the law, the natural operation of public feeling was this—that a man by adopting a criminal proceeding, 879 evaded the inquiry into the truth, and if a man was not afraid, if he refused to acknowledge the justice of the imputation on his character, he must come into a civil court. There was not a man who really considered the truth of the allegation as a consideration perfectly immaterial. There was not a man, on the other hand, who thought that any slanderous paper in the country ought to be allowed to make at random assertions regarding the conduct of any person, however respectable, which might by possibility be true. Suppose a man in early life to have fallen into some deviation from the straight line of moral rectitude; was it to be allowed that another party, perhaps years afterwards, when the offending person had out-lived his fault, and made atonement by a long life of virtue, should be allowed to come forward and destroy the structure of character he had built up? The principle on which he proceeded was, that the press had nothing to do with private character, but that the fullest inquiry into the public character of men should be permitted. Take the case of a Minister or a Member of Parliament; in as far as it was for the public interest to inquire into such a man's opinions or conduct, he should wish to allow the fullest inquiry, and that no allegation made with a good intention should be considered a libel. But let private life be sacred from inquiry altogether. Great part of this branch of the subject belonged to the law of public libel, with which they had now nothing to do. They were now confining themselves to the defamation of private character. He had endeavoured to give effect to this view in the bill he had formerly introduced, but he was ready to admit that he had failed on one very difficult point—that was, in the definition of what was to be considered public and private. There were many cases in which it was not easy to separate the two. Take the conduct of a man in what might be called private matters done in public. Take the conduct of a man in a theatre—actions done in a public place, or on the highway, before numbers of people; take the conduct of a landlord towards his tenants, which was generally matter of a private or domestic character, with which the public should not interfere. But take such a case as occurred in Ireland twenty years ago, where the conduct of a landlord drove a 880 whole county into insurrection, by the atrocious abuse of the rights of property. That would be a case of the grossest public misconduct, which ought to be dragged into light. Speaking generally, all admitted it to be desirable that public character should be subjected to searching investigation, and private character shielded from injury altogether. The only way he had seen proposed for getting out of the difficulty he had stated, was that contained in the present bill—namely, that the propriety of publication should be a question for the jury to decide. He granted that this was unsatisfactory, and that juries might not always decide wisely; but he said there was no choice between that and leaving the law of libel in its present unsatisfacrory state. It would be a large question to leave to a jury, but he saw no narrower question that could be proposed to them. If a jury were to inquire whether a publication was malicious, what were the motives which had induced it, he defied them to determine the point. Sometimes it might be public feeling which induced a statement at which an individual took offence, but private revenge probably produced half the exposures which took place. What was the real question which it was of importance to determine in case of an attack on private character? He did not think it could be laid down in any other terms than those of the bill, which said that the jury should inquire whether it was for the public benefit that the matter should be brought forward. If an old offence were raked up, the jury would be able to say whether it was a matter that concerned the public, and whether any advantage would result from its publication. If it were some allusion to defects in a man's personal appearance, the jury would say, "These may be perfectly true, but no public benefit can possibly be obtained by bringing such matters forward." They would have this whole question before them, and in deciding it must look to many various considerations. One consequence, much to be regretted, of the present anomalous state of the law had been the notion very generally prevalent among members of the legal profession, that the great object of giving a remedy by action in cases of defamation was, that a man might have leave to clear his character before the public. Now, he did not believe it possible that the law could 881 give a man full protection for his private character. In half the cases where a libel was to be redressed, the libel was of such a nature that the mere necessity for the defence constituted a great injury. Take the case of a woman of character, who had to defend herself against imputations which, however successfully rebutted, would leave a stain on her character for ever. If you tried to give redress in every case where a false imputation was made on character, you must fail. You had to deal with an inquiry of so subtle a character, that laws must fail. One great object in amending the law ought to be to repress the disposition to offend by penal provisions, though he did not wish to abolish the civil action. If that was to be the object, the first thing to be done was to remove all discrepancy between civil and criminal proceedings, and enable every person libelled to avail himself of the criminal proceeding, without being subject to the imputation, that he was having recourse to the easier method, and keeping the defects of his own character out of view. So far as you allowed truth to be pleaded in one case, you must allow it to be pleaded in another. As far as you made truth an insufficient defence in one case, you must make it insufficient in another. One great encouragement to the vile and degraded portion of the press to circulate its calumnies was the necessity under which persons who made use of the remedy by action were placed to appear in court and defend themselves against the charges. The object of this bill was, by repressing personal slander generally, to raise the tone of the press of this country, and he begged of the House, as they valued the sanctity of domestic life—as they valued the preservation of a high standard of private character, which was degraded by the attacks it was now exposed to—as they valued the character of the press, which, properly organised, might become the strongest stay of the institutions of the country, to pass this bill, which by a few plain and simple enactments would place the law of libel on a sound and wholesome footing.
§ Verbal amendments made in the clause.
The Attorney Generalwould shortly state the view he took of this clause, by which it was proposed to prevent the truth from being an answer to an action for damages. His learned Friend asked why 882 the private character of an individual should be a subject for public inquiry. For this plain reason, because the plaintiff went into court to ask for damages. He objected to the test mentioned in the clause as that by which the jury were to judge of the character of the publication. It might be well to say that, as in speaking and writing you must take care to confine yourself to the truth, and as the truth might be published maliciously, the plaintiff should have the power of saying, "This may be true, but on this occasion you published it maliciously." That he could understand, but he could not understand the large issue of the public benefit. He had been trying to find out what rule any judge would lay down for the purpose of determining what was or was not for the public benefit, and his firm belief was, that the only effect would be to give a jury the means of finding which way they thought best. He did not think it desirable to put it in the power of a jury to exercise their caprice. The question of malice or no malice was one that came home to the bosom of every man, for no one could commit a crime of which he was unconscious. If you were to have the publication of the truth fettered, it would be better to leave to the jury the question, not whether it was done for the public benefit, of which no man could judge, but whether it was done honestly, with or without malice. He agreed with the hon. and learned Member, that public conduct was a fit subject for inquiry; but suppose a man to be a candidate for a seat in that House, might it not be necessary in some cases to inquire also into his previous private character, and not to confine the inquiry into his opinions on public questions only? Suppose a man a candidate for some office of a public nature—physician to a dispensary, for instance—private character was the only ground almost on which you would select one man rather than another, their abilities being supposed equal. Could not the hon. and learned Gentleman foresee very great danger, even to the press itself, if they were to fetter the publication of the truth with this extraordinary restriction, that you aver that the publication was for the public benefit, and must state the particular fact or facts which went to establish that? He believed that the public derived far more benefit from the sound and wholesome part of the public press, 883 than they sustained evil from the corrupt portion? and he would not consent, in order to get rid of those nests of slanderers who fatten on the fears of individuals to place any restraint on the wholesome publication of truth on all occasions on which it ought to be spoken; and he would rather make truth at once the criterion, than enter into the speculative inquiry, whether such or such a publication was for the public benefit? Seeing that there were other parts of the bill which would effect a considerable change in the law, he hoped the hon. Member would give up this clause for the present. Let them amend the law as far as they could: it was admitted the bill was not perfect in all its parts. If it could be amended on some future occasion in such a way as to command general assent, he should be happy to see such a change effected.
§ Mr. Macaulayfelt there was great force in the argument of his hon. and learned Friend, that the criminal law with regard to justification of the publication of a libel should be brought as nearly as possible to correspond with the civil law. That part of his hon. and learned Friend's argument seemed to be unanswerable. If to assert a thing of A was an injury which he ought not to sustain, and which could not be compensated by any public benefit, he could not see why he should not be entitled to damages. But if, on the other hand, he sustained no injury, then it was quite clear, that the only injury to the public had been through or by the defamation of his character, and he was at a loss to understand how to frame the law so that there might be a justification on the one hand as to the civil law, and on the other as to the criminal law. He wished to ask the Attorney-general whether he meant to carry the same principle throughout the bill. If he said the truth should in all cases be an answer to a criminal indictment, and that in cases of a civil prosecution truth ought to be an end to the proceedings, then he made his argument consistent, and, it was entitled to grave consideration. He must own that he thought there was a great deal to be said in favour of that view; but he most decidedly preferred the way in which the bill was drawn to what the learned Attorney-general proposed. His view was this—You charge a person with having defamed you; the d answers, "What I said was true;" but then you 884 are to reply, "But you said it with some malicious view." Now, to that view he altogether objected, because it was perfectly possible that a thing might be maliciously said which ought to be said, and which was for the public benefit. He would put a case—one that might have already occurred:—Take the case of a person coming over to this country, and being employed in the tuition of young ladies in music, a situation as delicate, perhaps, as any since the days of Abelard and Heloise could be. Suppose that man had actually been condemned to the galleys in a foreign country, and had had the very brand on his shoulder, could it be doubted that in such a case as this, the person who made public the fact as regarded this man conferred a great public benefit? Would you in such a case go into the question of malice? Would you say, "True it is that the defendant has saved some twenty or thirty, or forty, young ladies from the tuition of that scoundrel, but we had got evidence that he said at some time that he would publish something of that man in revenge—something that would injure his character?" If that was the meaning of the Attorney-general's argument in favour of the proof of malicious motive, then that argument was inconsistent, in his opinion, with all sound principles of legislation. Was there to be a kind of constructive malice? The question was not whether a man in his own heart had a good or a bad motive, but what opinion a jury would form of his motives? If he was not mistaken he had heard learned judges who were great authorities on libel law, put it to the jury, that where there was no direct evidence of bad design—where there was no peculiar malignity, the law looked at the general tendency of the libel, and thence inferred malice. Surely this question of malicious motive, then, was nothing more than a circuitous mode of getting at the question whether the published matter was for the public benefit or not? Could his learned Friend say that he would ever as a juryman find a person guilty of malice for publishing something which it was clearly for the public benefit that he should publish? If that was the general feeling, would it not be better at once to set forth in the bill what the point was on which the jury should be called upon to give a decision? Was it of so very difficult a nature? Was it so very different from other points 885 which were generally left to the jury? Looking at the question submitted to them in cases of political libel, the question whether or not a person had overstepped the fair limits of legal discussion—again, looking at the question submitted to the jury in cases where the charge was for blasphemous libelling—seeing what was left to the jury's decision in such cases as these, surely it might safely be left to them to say whether a particular private story required for the public benefit to be recorded. Those were his views on the subject. If, however, the third and ninth clause could be made to harmonize in some such way as that they should work tolerably well together, he should not be disposed to stickle for any particular form.
Mr. Bernalsaid the question was, whether they were prepared to say that truth should be an answer to an action for libel? Now, he thought that in many cases of the kind, it was quite fit that the truth should be spoken, but in other cases if certainly was highly unjust, inconsistent with public principle and morality, that the truth should be spoken. Were persons to be permitted to rake up the transactions of bygone years—the transactions of adolescence,—and bring them forward to contaminate a man's character in afterlife, when he might long since have reformed those courses, and now that he no longer trod in paths of which maturer years had shown him the folly or the shame? Was it conducive to the cause of morality and of religion, or conducive to the public benefit, thus to rake up long-forgotten errors, and for no earthly good? But the Attorney-general was of opinion, that it should not be be left to the jury to say whether the libellous matter was published for the public benefit. [The Attorney-general: "No."] Then he was prepared to say, that truth should be a sufficient defence in all actions for libel. [The Attorney-general: I am not prepared to assent to the proposed change.] At all events the hon. and learned Gentleman did not think such a change necessary. He was prepared to say, that in the present day, truth is a sufficient defence to an action for defamation; he must be prepared to maintain, that a woman should be brought before the public on account of some false step in her early life; that twenty, thirty, or forty years after you shall be entitled to state that 886 with impunity; that it is necessary for the public good that any private man should have the privilege of dragging one woman before the public gaze, and exposing her to public contumely. He well knew the difficulty of making an alteration in the law, and that all human institutions must be imperfect; what they had to do was to make the law the best that they could. He, for one, looking at the increasing intelligence of the times, and the business habits of the people, could not see any reason to fear leaving the issue to the jury, any more than there was now any reason for not leaving to a jury the extensive and delicate issues which, as his right hon. Friend (Mr. Macaulay) said, were now left to them. His right hon. Friend had alluded to the case of a convicted galley-slave; but take the case of a person opening a school for the education of children, of which person some other person says that he was during his college life guilty of every species of immorality. That man might have thoroughly reformed, and have become qualified by his present habits to educate the rising generation. Now, would it be proper or good, or would it tend to any useful purpose, to drag before the consideration of the public all the offences of his college life, or even perhaps of his school life, and hold him up as a person unfit to be intrusted with the education of the rising generation—to destroy, in fact, all his prospects in life by degrading him in the estimation of his fellow-citizens; For these reasons he should support this clause.
§ Mr. Darbydenied, that because the Attorney-general could not accede to this clause, that, therefore, he must necessarily be content with the law as it stood. He disapproved of the clause. To justify a libel on the ground of its being for the public benefit did not get rid of the injury to private character; it was only making the individual assailed a victim for the good of the public. How was the fact to be ascertained that the publication was for the good of the public? The libel might have proceeded from the most malicious motives, and as an after-thought it might be set up that it was for the public good. There was a great difficulty in the clause, for under the operation of it a person who ought to answer for his misdeeds might escape on the plea of public benefit. With respect to papers 887 that made a trade of slander; juries never allowed the plea of public good. He was anxious to see some measure by which those papers might be suppressed, but he feared this proposed enactment would only involve the question in greater difficulties, and still not provide a remedy against defamation of private character. If the hon. Member did not withdraw the clause he should divide the House upon it.
§ Mr. Christieexpressed his regret that the Attorney-general should feel it his duty to oppose the clause: he (Mr. Christie) should not be justified in yielding to the opposition. The clause rested upon the specific recommendation of Lord Abinger before a committee of the House of Lords, and was submitted by that noble and learned Lord in the draft of a bill which he prepared. It should be remarked that the clause provided that it should be necessary for the defendant not only to allege that the libel was published for the public benefit, but he must also show the particular facts which rendered the publication for the public benefit. These words were introduced in the other House by the Lord Chancellor, who, with the addition of that proviso, supported the clause. The case mentioned by the Attorney-general did not, he thought, bear out the learned Gentleman's view of the question. The cases of candidates for public offices, as the physician to a dispensary for example, were clearly cases in which public benefit might accrue from the publication of the libel, and he could not conceive any injury likely to arise from letting the decision upon that point go to the jury. The Attorney-general wished for the broad and intelligible basis of truth, and said that the man who spoke the truth should be protected; but it appeared equally broad and intelligible that a man should not only speak the truth, but show that he did so with no motive of malice, but for the purpose of doing a public good. A case was suggested, and many questions put upon it by many Lords to Mr. Fonblanque before the Lords' committee, of a lady, who being accused of having false hair, false teeth, or being, as it was termed, "made up," and having no remedy for the wanton injury done to her feelings by the publication of this stupid personality, if only it could be proved to be true. Truth in such a case would aggravate the injury to the feelings. He thought it important that newspapers should be prevented from indulging in 888 wanton personalities of that description, and that the influence of those newspapers on the public mind should be salutary, instead of being, as to a great extent it was, painful and injurious. Believing the clause to be important, he must press it to a division.
§ Mr. Escottobjected to its being left to the jury to decide whether the libel was for the public benefit. It was one of the most mischievous principles that could creep into the administration of the law to leave to juries the decision of political matters. When a jury was left to decide whether the publication of a libel was, or was not, for the public benefit, might not political matter be involved in the case? Suppose in a time of great political excitement a libel were written upon some person, involving the consideration of the question that was agitating the public mind. In the time of the Reform Bill, for example, when so many believed that the passing of that measure would be attended with great public benefit, suppose a libel had been written upon some conspicuous political character, the question for the jury to decide would have been, not whether the libel was true or false, not whether the object of the libel deserved it or not, but whether it was not for the public benefit that that person should be cried down and made cheap in public estimation. In such a case it would be making twelve men the judges of a political question. Take the case of the Corn-laws. Was it not possible in the present state of public feeling, to collect a jury of twelve men in any town, whose honest and sincere conviction was that the repeal of the Corn laws was for the benefit of the public, and therefore that those who opposed the repeal were against the public. In such a case would not those twelve men feel themselves bound to take into consideration whether the character of that man ought to be cried down, because in opposing the repeal of the Corn-laws he was setting himself in opposition to the public benefit? All these were questions which should not be be treated without due consideration, and if the present bill were not properly matured, the whole matter had better be put off to another session. He knew not if any particular advantage could accrue from passing the measure at once, but he should feel it his duty to divide against the present clause.
§ Mr. Sergeant Murphysaid, that when it 889 was hinted that the bill was ill considered, the House would remember that it had been framed by a noble and learned Lord perfectly conversant with the law of libel, as, indeed, he was with all other branches of the law. Although the words of the clause might admit of some modification—the motive of the noble framer of the bill was to throw upon the libeller, the necessity of showing that the publication of the libel was necessary for the public benefit. That was the motive of the noble framer, and he was prepared to support the clause; for why should it not lie upon the person enunciating a libel to show that he was justified in so doing by public benefit?
§ Mr. C. Bullerexplained, that he had adduced the case of a man being a candidate for a public office, as a particular instance to show how it might be necessary to involve considerations of private character, and he said it was impossible to lay down a general rule distinguishing as between public and private character in all cases. Now take the case of a man who was an admirable scholar, a literary man, estimable in all his public relations to society, but happening to labour under an infirmity of temper to such an extent that his own children had suffered from it. The publication of that fact, when the person in question had done nothing whatever to bring him in contact with the public, by one of those persons who dodged about the town in search of scandal, might show that that individual was unhappily a bad manager of his children, but it would be a libel, an abuse that ought to be put down. But suppose that individual were a candidate for a public office connected with the education of youth, would it not be right and fair to come before the public and say, "This is a man estimable indeed in his public relations, but he has an infirmity of temper which utterly disqualifies him for the post he seeks?" In the first case, the publication of the fact would be a wanton and malignant libel; in the other, it would be a great public service. Now, if the case came before a jury, the person publishing the libel might say, "True, this would have been a libel under other circumstances, but this person seeks an office in which his infirmity of temper would render him a public mischief instead of a public good."
§ The committee divided on the question 890 that the clause as amended stand part of the bill. Ayes 30; Noes 38: Majority 8.
| List of the AYES. | |
| Archbold, R. | Protheroe, E. |
| Bernal, R. | Rendlesham, Lord |
| Bodkin, W. H. | Ross, D. R. |
| Clements, Visct. | Scholefield, J, |
| Ewart, W. | Smith, B. |
| Gore, W. R. O. | Stanton, W. H. |
| Howard, hon. C. W. G. | Ward, H. G. |
| Hume, J. | Wawn, J. T. |
| Hutt, W. | Williams, W. |
| Kemble, H. | Wood, B. |
| Macauley, rt. hn. T. B. | Wood, G. W. |
| Morris, D. | Wyse, T, |
| Murphy, F. S. | Yorke, H. R. |
| Norreys, Sir D. | |
| O'Brien, W. S. | TELLERS. |
| Pechell, Capt. | Christie, W. D. |
| Plumridge, Capt. | Buller, C. |
| List of the NOES. | |
| Allix, J. P. | Hope, G. W. |
| Blackburne, J. I. | Inglis, Sir R. H. |
| Boldero, H. G. | Lincoln, Earl of |
| Borthwick, P. | Newdegate, C. N. |
| Chetwode, Sir J. | Nicholl, rt. hon. J. |
| Clerk, Sir G. | Northland, Visct. |
| Corry, rt. hon. H. | Peel, rt. hon. Sir R. |
| Cripps, W. | Pollock, Sir F. |
| Denison, E. B. | Rashleigh, W. |
| Dickinson, F. H. | Sanderson, R. |
| Escott, B. | Smith, rt. hn. T. B. C. |
| Estcourt, T. G. B. | Stanley, Lord |
| Forman, T. S. | Sutton, hon. H. M. |
| Fuller, A. E. | Trench, Sir F. W. |
| Gaskell, J. Milnes | Trotter, J. |
| Gladstone, rt. hn. W.E. | Wellesley, Lord C. |
| Graham, rt. hn. Sir J. | Young, J. |
| Hamilton, G. A. | |
| Harcourt, G. G. | TELLERS. |
| Hardinge, rt. hn. Sir H. | Pringle, A. |
| Henley, J. W. | Darby, G. |
§ Clause struck out.
§ Mr. Christiewished to ask the hon. and learned Gentleman (the Attorney-general) whether he intended to adopt the same course with respect to the 9th clause, as he had done with regard to the 3rd clause? Both clauses were framed upon the same principle.
The Attorney-Generalsaid, that it was not his intention to raise the same objection to the 9th clause, which he considered to be very distinguishable in its nature from the third clause. He denied that the allowing of the truth to be an answer to a claim for damages, was the same as allowing truth to be an answer to a charge of violating the public peace. He differed from his hon. and learned Friend (Mr. C. Buller) about there being no 891 difference between the administration of the law in civil and in criminal matters. He was quite satisfied that by the principle of the 9th clause, they would in some way or other give to the defendant the benefit of the truth. He would endeavour to work out the form of that clause, so as o answer that end.
On clause 4, "that in any such action for defamation it should be lawful for the defendant to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff,"
§ Mr. Macaulaythought that some provision should be made as to the manner in which the apology should be given. For instance, he should think a libel in the Times would be very inadequately compensated for by the insertion of an apology in any other newspaper.
§ Mr. C. Bullerthought the apology should be required to be published in the next number of the journal or publication in which the libel appeared. But if that could not be, then it should be published in such newspaper as the plaintiff should point out. Supposing the libel should appear by inadvertance in the Times newspaper, he should say that the apology should be inserted in the Times, but if the libel appeared in a book, then the apology ought to be inserted in such newspaper as the plaintiff should point out.
The Attorney-Generalwished the committee to understand precisely what would be the effect of this clause. It seemed to be supposed that this apology was to be an answer to the action. But that was not what was meant. If there had been a publication of a libel without actual malice, and without gross negligence, and the party should plead and was prepared to prove that, then if he made an apology he was to be allowed to pay money into court, and the jury were to take into consideration whether the apology with the money so paid into court were or not together a sufficient satisfaction for the plaintiff. He did not think the mere apology should be all.
§ Clause agreed to.
§ Clause 6, "Persons publishing defamatory libel, or threatening to publish them, to extort money, liable to be imprisoned.' was then read.
§ Mr. Charles Bullerwished to suggest a much greater alteration in this clause than any yet made in the bill. It seemed that 892 the clause, as it now stood, had been widened very much from its original shape. That must have been owing to suggestions coming at different times without the clause being considered as a whole; and thus too great a scope had been given to it. The clause read thus—
If any person should directly or indirectly threaten to publish any matter or thing touching any other person, with intent to induce such person to do any matter or thing which such person so threatened might lawfully leave undone.Now, suppose he were to say to some person who had published a volume of bad poems—you have a certain bad poem; if you publish any more poems, I will review your first poem. Surely there would be no harm in that. It might be a very proper threat, and, yet, according to this clause, if he were so to act, he should be liable to be imprisoned in the common gaol for a term not exceeding three years. It was desirable, when they were directing the law against a gross abuse—that of extorting money by threats of publishing any defamatory matter that they should not make the clause revolting to the common sense and feelings of the public. He thought the first words of the clause, "If any person should threaten to publish any defamatory libel" were quite sufficient of themselves; for it should be remembered that a defamatory libel was an offence of itself. No man had any right to publish or to threaten to publish a defamatory libel. It was an offence just as murder or any other term involving criminality was in itself. To advert once more to his former instance, if he knew that a person was going to publish a second volume of bad poetry, he had no right to say to that person, "I will traduce your character." It seemed, therefore, to him, that the words "threaten to publish a defamatory libel" were of themselves quite sufficient.
§ Sir James Grahamconfessed that though the amendment which the hon. and learned Gentleman proposed would as it appeared to him, improve the clause, still, in his humble judgment, the alteration of the clause must be carried further. He could conceive many cases in which a threat to publish might be very cruel and yet not illegal while, on the other hand, he could imagine cases where a threat to publish might be most salutary, and for the public good. Reading the clause as it would stand, if the amendments 893 of the hon. and learned Gentleman should be adopted, it would run thus: "If any person should publish or threaten to publish any defamatory libel, with intent to induce any person to do any matter or thing which such person so threatened might lawfully leave undone," then the party would be liable to be indicted, found guilty, and sentenced to three years imprisonment and hard labour. Now, he would put this case. A young girl shall have been seduced under a promise of marriage. The seducer shall refuse to fulfil his promise. He might lawfully leave undone that which he had promised to do. The girl so injured, so mal-treated, shall threaten, that unless the promise be fully complied with, she will appeal to public opinion, and make her wrongs known to the world. Was it be endured that because she so threatened to publish a statement of her sufferings that she should be liable to be indicted, and sentenced to three year's imprisonment? Such a threat might be conducive to good order, morality, and just and proper feeling on the part of the person so injured; and yet, as the clause stood, she would be liable to punishment. He thought the clause required further restriction, and he should be disposed to leave out the words, "or to do any matter or thing which such person so threatened might lawfully leave undone."
§ Mr. Macaulaywas understood to concur in the suggestion of the right hon. Baronet. It was very well known against whom this clause was pointed; and he thought the whole necessity of the case would be met if the clause stopped at the words "office of profit or trust."
§ Mr. Christiefelt no difficulty in assenting to the amendments suggested, as was satisfied that the object of the framer of the bill would be quite gained by the introduction of the words "defamatory libel, as proposed by the hon. and learned Member for Liskeard.
§ Sir R. Peelwas afraid that the mere words, "defamatory libel," would not protect society from the crime of attempting to extort money by threatening to publish any matter or thing; because many things might be threatened to be published which were not defamatory. A threat to publish the truth might be a very great offence.
§ Mr. Macaulaythought some words might be introduced to make the threatening to publish anything, which in itself 894 might be justifiably published, punishable if the threat was with the intent to extort money, or induce any person to confer or procure for any person any appointment, office of profit, or trust. But he thought there ought to be some distinction made as to the degree of punishment for these different offences. They recently had the case of Mr. Phelan, late a sub-commissioner of the Poor-laws in Ireland, before them. Now, suppose Mr. Phelan threatened to publish all his correspondence with the Poor-law commissioners unless he obtained an appointment, though this might be a threat to induce the persons to procure an appointment for him, still he (Mr. Macaulay) could not say that he should be liable to imprisonment for three years.
§ Sir R. Peelfeared that if they confined the offence to the publication of a "defamatory" libel, those particular publications to which this clause was directed would escape altogether. He knew of a case in which the greatest injury was inflicted on a female of the greatest delicacy by parties connected with a newspaper, by a threat that unless a sum of 100l. was paid, the newspaper would publish an account of transactions with respect to an offer of marriage. This threat was made to a young lady of the highest character for purity. There an attempt was made to extort 100l. by threatening to publish family transactions, and yet if it had been published it would not have been a defamatory libel at all. It was a threat to expose that which took place in the privacy of the society of a young lady of great delicacy and sensitiveness. In order to establish a defamatory libel, two trials would in fact be necessary—first to inquire whether the publication was a defamatory libel or not; and next, whether the threat was with the intent to extort money. The clause, as it at present stood, would not at all effect the purpose, if the threat to publish must be accompanied with the fact of its being a defamatory libel.
§ On the motion of the Attorney-general an amendment was introduced into the clause, declaring that the punishment inflicted should be "with or without hard labour."
§ Clause agreed to.
§ The remaining clauses agreed to, House resumed, bill to be reported.