words or in print on the conduct of Parliament, of courts, and all the high officers of state, it equally follows, that every kind of public officer of inferior degree is also subject to a like treatment, whenever he fills some office which is maintained at the public expense, or performs duties which are essentially public even at his own expense, as for example justices of the peace and some officials in Government offices. The clergy of the Church of England in their mode of conducting public worship are also in the performance of a public duty, for by virtue of statutes the Church service is ordered and can be compelled to be rendered for the benefit of the whole people and not merely of the parishioners. And hence any comments made in the public press or otherwise on the mode of discharging this duty may be made as freely, as is the case with respect to other public officers performing their duty.' At the same time the sermons of dissenting clergy, who are under no public duty to deliver them, cannot be deemed public in the same sense, though their chapels come under the category of places to which the public are invited, and so on another ground are fairly open to a like treatment. The conduct of a parish priest in managing a charity subscribed by a few of his parishioners may be in no sense a public act, and does not lie open to public comment;2 and yet those who manage an hospital for assisting poor inhabitants fill a public situation.3 Comments on private persons who challenge or invite public notice.-Not only is the right of comment applicable to all kinds of public officials, high and low, but there are also great numbers of private persons carrying on businesses and pursuing occupations, who openly invite and challenge this public comment. Thus persons selling goods in shops, though usually avoiding publicity on a large scale, sometimes go out of their way to attract public notice by advertisements magnifying the value of their wares. In one case a marine store dealer issued a 1 Kelly Tinling, L. R., 1 Q. B. 699; Gathercole v Miall, 15 M. & W. 319. It does not follow that all things done by a clergyman are public acts, as, e.g., his acting as trustee in a private charity.- Ibid. * Gathercole v Miall, 15 M. & W. 319. 3 Cox v Feeny, 4 F. & handbill, stating the prices he gave for kitchen stuff of various kinds. A daily newspaper published an article commenting on the handbill and treating it as of a nature to encourage servants to rob their masters; but there was no imputation on the personal honesty or integrity of the individual shopkeeper. This was held not only legitimate but salutary criticism, not exceeding the limits of discussing such matters as challenge the attention of the public; and the jury rightly found their verdict for the defendant. And where comments were made on a published correspondence relative to the abuse of a parish church by the incumbent allowing books to be sold during divine service and allowing cooking operations in the vestry room, this was deemed fair subject for reprehending the incumbent's conduct.2 So it is with one who presents petitions to Parliament imputing disgraceful conduct to public men; also those who as medical men advertise a new mode of curing disease hitherto deemed incurable.* The performances at theatres and their conformity with advertisements may also fairly be criticised.5 When the Queen's printer published reports made by the Admiralty as to the merits of building turret ships for the public service, this was also deemed pre-eminently a public matter; and though the plaintiff's plans had been represented as worthless, he had no right of action against anybody. And where a public writer in commenting on the conduct of a person, at a public meeting held to promote the election of a member of Parliament, insinuated that the plaintiff persisted in interrupting the meeting as a headstrong supporter of an opponent, this was deemed fair matter of public interest, for which no liability was incurred.7 3 Comments and criticisms of books, pictures, &c.—The books published by authors, and which the public are invited to buy, have always been treated as matters of public interest; and so are pictures offered on exhibition to the public, or drawings of new architectural works. To allow criticism tends to secure purity of taste and of morals, and 1 Paris Levy, 9 C. B., N. S. 362. 2 Kelly v Tinling, L. R., 4 Hunter 6 Henwood 1 Q. B. 699. 3 Wason & Walter, L. R., 4 Q. B. 73. v Sharp, 4 F. & F. 983. 5 Dibdin Swan, 1 Esp. 28. v Harrison, L. R., 7 C. P. 606. 7 Davis v Duncan, L. R., 9 C. P. 606. a higher standard of knowledge and competency in all authors; and therefore a free handling by critics is always to be desired, and has a wholesome effect, by commending good workmanship on the one hand, and chastising dunces on the other hand for venturing to deal with matters for which they are unfitted.' It is true that some judges often draw the line at a point, where personal ridicule is resorted to, and say that that is an abuse and cannot be permitted; but others think, that ridicule is only another name for fair criticism, and much must depend on the degree and on the surrounding circumstances. As Lord Ellenborough, C. J. said, every person who publishes a book commits himself to the judgment of the public; and any one may comment on his performance. If the commentator does not step aside from the work or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right.2 In one case an author of a book on travels was caricatured in a drawing as standing in a ridiculous attitude, bending under the weight of two copies, and with all his wardrobe tied up in a pocket-handkerchief, and Lord Ellenborough ruled, that this was not unfair ridicule of the bad taste and inanity of the author; and if, as the author alleged, his book had become unsalable and he had lost a publisher for another forthcoming work of the same kind, this was deemed merely damnum absque injuria-as an unavoidable incident for which no legal remedy exists.3 No limit can therefore be set to the contempt and ridicule, that may be awarded; it is only when the critic deviates from his own strict function, and seeks without any reasonable cause to impute fraud, or immorality, or corruption, or some base motive bordering on crime, that he becomes amenable to an action of libel. And the more irrelevant the charge, the more easy is it for a jury to infer an intention to injure the author rather than a fair discharge of his own special business.* Thus rival editors may 75. Tabart v Tipper, 1 Camp. 351; Carr v Hood, 1 Camp. 358; Thompson Shackell, 4 M. & M. 187; Soane v Knight, 1 M. & M. 2 Tabart Tipper, 1 Camp. 357. 3 Carr Hood, 1 Camp. Ibid. Macleod v Wakley, 3 C. & P. 313; Strauss v Francis, 4 F. & F. 1113; Campbell v Spottiswoode, 3 B. & S. 769; Stuart v Lovell, 2 Stark. 97. 358. fairly comment on each other's performances, though one may go to excess by inserting a warning to advertisers as to the low circulation of the adversary. So one editor was held to exceed, by imputing to another editor of a religious paper who advocated missionary enterprise, that he was an impostor and was using fictitious names to draw contributors to his newspaper and fill his own pockets.2 With regard to all these comments upon those who are proper subjects of comment, it must be borne in mind that the mere honest belief in the writer that he is doing a just and spirited thing is no defence, and does not preclude a remedy to the victim of his attack. An author's character is more entitled to protection than the writer's display of his perverted talent and reckless invective before the eyes of anonymous readers.3 The reputation is a known, substantial, and clearly-defined property; the right of free speech in such circumstances is somewhat shadowy at best, and its effects are unknown and unascertainable. And examples of this will appear in a subsequent chapter. 1 Heriot v Stuart, 1 Esp. 436. Campbell Spottiswoode, 3 B. & S. 769. 3 Wason Walter, L. R., 4 Q. B. 96; Hunter Sharp, 4 F. & F. 1005; Campbell v Spottiswoode, 3 B. & S. 769. CHAPTER VIII. ABUSE OF SPEECH AND WRITING BY DEFAMATION. Libels on personal reputation.-In the preceding part of this volume those rights of thought and speech have been dealt with, which are enjoyed in their most positive form, yet the exercise of which seldom affects individuals. Those excesses only were considered, which had an effect on the public generally, and on the Government which represents the public. Blasphemy, immorality, and sedition touch only the highest representatives of order, such as the Sovereign, the ministers, the Parliament, and the judges and public officers and officials of lower degree. Those may well be called public libels. Last of all, we now come to examine more closely those excesses in the exercise of the same free thought and speech, which involve collisions between man and man, and where the result is chiefly a question between one individual and another individual. These are properly called defamatory or personal libels. The character or reputation which, as already explained,' cannot fail to be acquired by each individual in the course of life-which is often the fruit of sedulous care and long self-restraint, and which is the means of power and often the sole means of livelihood of the great majority of mankind— is liable to be assailed by imputations which detract from the weight and value of these good qualities. While the free tongue and pen of others must have scope, these, nevertheless, may impute, either designedly or accidentally, either maliciously or falsely, or even truly, something which has an immediate evil effect on the reputation of another, and 1 See ante, p. 6. |