Personal character likened to a species of property -The law, which so often looks upon the acquisition and retention of the power of dealing with property as the great object and business of life, and of its own primary care, is never so well satisfied with its solution of a difficulty as when it can liken all other objects of its regard to a species of property, which can be seen, and handled, and weighed. Hence it is a familiar expression, that a man has a species of property in his own body and limbs, or in the health of his constitution, or in the thoughts of his brain. In the same sense he is said also to have a species of property in his own character and reputation, and it is because this consciousness is a valuable possession that the law will encourage and protect it against attacks.1 These figures of speech assist in explaining what is unknown by some analogy to what is known and familiar. As a man in the course of his life accumulates property or a stock in trade, which is the source of his satisfaction, so in the course of his conduct he displays a certain combination of habitual qualities which give third parties the means of forming an estimate of his mind and the extent of his power. This estimate is nothing else than his character or reputation. So long as a definite character is ascribed by common observation to his name and person, it acts upon the rest of the world as a means of happiness to him, with the same certainty and regularity as a stock of material and visible property always does in increasing one's business and wealth. The consciousness of possessing, or, which is the same thing, of conducting himself in such a manner as to retain, this character, is a fund of positive social enjoyment which the law gives credit to every individual for possessing or desiring to possess a primary element of human nature incapable of being analysed into anything simpler. In short, every man as a good citizen is presumed by the law to be anxious to acquire and keep such character,

and the law deems it an object of penal animadversion."-Erskine, (arg.) R. v. Cobbett, 29 St. Tr. 63.

The individual, by the combination of opinion and the force of character, begets in his own reputation a property more valuable than the brute materials to which the crude notions of property are first applied."—L. Abinger (arg.) Mem. 284.

1 De Crespigny v. Wellesley, 5 Bing. 392.

and even the appearance of it. The constituents of a good character are various, and include every combination of virtues which a human being is capable of attaining. Integrity, veracity, generosity, charity, industry, patriotism and religious zeal may enhance the character of individuals in actual life, but these qualities are too ethereal and refined to be either created, retained, or enforced by the law. The law can neither give nor take away these and other high attainments which go to the composition of the worthiest citizens. The law sets to itself a much coarser standard. It views the character of an individual as just good enough, and no more than suffices, for acquiring or retaining property, or influence over others, and (which is generally the same thing) as a means of livelihood. It gives credit to every individual for a desire to avoid breaking its own injunctions-more especially the leading rules against treason, murder, larceny, and other indictable offences, for no well-affected citizen would associate with. those who break primary laws, and who are, or ought to be, on that account his natural enemies. In addition to this negative virtue, the law also takes notice of other virtues which are involved in ordinary social life. short, it gives credit to each individual for a desire to retain the good opinion of his fellow men, and to practise the common virtues, for in this lies the source of all his influence over others for the furtherance of his own objects, and every man must have personal objects of some kind, worthy or less worthy.

In

Security of character and reputation protected by la-Hence, if any one imputes to another the commission of an act which would amount to an indictable offence, or which implies the absence of some every-day virtue, and so tends to cause one to be shunned by good citizens in matters of business or pleasure, these are all viewed by the law as attacks on the funded reputation of the individual, and as a despoiling him of something valuable, which the law will assist in checking by its usual machinery of informations, indictments, and actions. When a man is shunned and distrusted in the leading affairs of life, he loses the means by which he acquires and retains influence, wealth, and happiness. And yet mistakes may be made on both sides. Hypocrisy and

fraud may be covered with a show of virtue, while malignity, envy, and unscrupulousness, as often as a wholesome zeal for honesty, may seek to tear off the mask and denounce the pretender. It is honourable to enjoy and defend reputation, as it is also honourable and pleasant to denounce hypocrisy and imposture. Both are honourable, but when they cannot both be had at one and the same moment, on one and the same subject matter, the law is bound to make a choice, and it naturally prefers him who defends his possession of reputation against him who at most is only indulging his freedom of speech about somebody else. The one right lies closer to one's thoughts and has more of the positive; the other is mostly only a negative deprivation. Hence, whenever reputation is attacked, the law sides with its possessor against the mere exercise of free speech. But when it can be shown that he who exercised this free speech was in reality in the pursuit of his own immediate business and interest, which to him was all in all, and as valuable as any other person's reputation, then the law again changes sides, and holds that he, who is lawfully pursuing his own immediate interests, and to whom freedom of speech is essential to enable those interests to be maintained and advanced, shall be protected in that freedom of speech, whatever be the consequence. Such are the views on which the law acts sometimes on one side and sometimes on the other. Those occasions on which the law protects freedom of speech are often called privileged occasions, and the kind of lawful business so protected is that of exchanging confidential views about one's private business and friends, and about the nation's business, which is every man's private business within certain limits.

When protection of character is preferred to free speech-As a general rule, therefore, the protection of one's character and reputation comes home to each more closely than any exercise of the right of censure, denunciation, and criticism of third parties; and hence free speech, if nothing more is involved, must give way to the desire of maintaining reputation. It is in every way more salutary, that he whose character is libelled should be protected, than that he who libels should be able to speak his mind freely. Both are good; but if they clash and

become incompatible, the better must be preferred. And hence arise all the rules and qualifications of the law of libel, which is nothing else than a summary of those instances in which the law prefers one's reputation to another's free speech, and in which the prosecution of one's personal interests, and of the public interest as part of that personal interest, will be protected in the exercise of free speech, in preference to the reputation of a third person. The details of all these distinctions, which are at first somewhat bewildering, will be shown in a later page in their natural order and mutual relations.

Chief medium of thought is speech and writing.And further, before the law can properly deal with those who attack the reputation of others, some notice must be taken of the medium through which this is done. The two leading vehicles of thought are, first and above all others, the faculty of writing or speech; and secondly, printing; but there are other less important means of the same general character, namely, painting or drawing, and any signs and symbols of thought; and even gestures may be employed with like effects. Speech is transitory, and operates only within the range of a limited audience, and perishes with the memory of those who listened.

Writing, as a vehicle of thought, is more durable in its effects, and may circulate beyond the range of the speaker and the hearers; and its influence may be communicated over a wider area. It exists in a stereotyped form, and may be referred to and comprehended by an indefinite number of individuals. Again, printing is only a higher degree of the same mode of publicity, and in its nature. owing to the perfection the art has attained, and the extension of education, tends to circulate over a still wider area-an area which can only be limited by the living generations of man, and not even by these. Painting or drawing in some respects resembles the vehicle of writing and printing, and it may be incorporated in both, or may be circulated by itself in an independent shape, and even a gesture or an attitude may in certain circumstances be as expressive as any speech. As a general rule, the wider the imputation spreads, the greater is the damage and injury to the character assailed.

All these vehicles of thought and expression, therefore,

differ from each other chiefly in degree, according as they are calculated to reach a greater or less number of individuals, and as a general rule, the greater the number of people to whom a false or unlawful accusation is communicated, the greater is the blow to one's character and reputation, and therefore the greater the punishment needed to correct it.

Double aspect of the exercise of free speech. - From all that has preceded it will be seen, how necessary it is, especially in an age when civilisation has restored to the utmost the natural freedom of thought and speech, and at the same time has carried to so high a pitch the arts of printing and publishing, that there should be some check put upon envious, passionate, or malicious representations which create a false impression of a neighbour's character, and thereby weaken its natural influence over others. Constituted as human nature is, and with tendencies of good and evil, consideration must be given to the mischief that may be done by marring the advancement of virtue and intellect, which are the dominant forces governing reasonable men, and on whose free development the happiness of the world mainly depends. To think and speak as every man inclines is indeed one of the primary tendencies which the law encourages, simply because it is natural and irrepressible. But as our conscience informs us that while there are those who seek to think and speak well, there are others who from base motives or blind passion seek for unworthy ends to thwart the legitimate influence of another's character, the latter must be restrained and punished, in order that that other might be let alone, and in order that high character may work out its own reward. The law takes for granted, that the universal conscience of mankind recognises the one course as good and the other course as evil, and that all that is necessary is merely to restrain so much of the evil as unduly checks the progress and development of the good. It is the object of the law to methodise and define the clear practical rules by which the perversion of speech or writing may be punished. Except in so far as the law, whether common law or statute law, has put some restraint, thought and speech are free, whether in public assemblies. or private conversations.