fearlessly along the way: or, if the pitfalls are open to view, then it is to destroy all fearless writing, and make them creep and crawl about feeling their way most pitifully, afraid to denounce a delusion or expose a sham. Since writing the foregoing remarks, the case of the Earl of Cardigan, which came before the same Court, has afforded an illustration, and, in some degree, confirmation of what we have submitted. In that case there was ground for a statement that the Earl had, as a matter of fact, ridden back alone from the battery, before the rest of his brigade had charged, but there was none for an imputation of cowardice, which the Court deemed to be conveyed. There was nothing, in their opinion, to give a colour or pretence for that imputation, and so there was no protection on the score of free discussion. But the different members of the Court said not a word against the existence of such a protection within the legal limits of the right; even in the case of erroneous and injurious imputation, if honestly made in the exercise of the right. On the contrary, they again and again, in the course of the argument, drew attention to the distinction between an erroneous inference, and an imputation wholly unfounded. And in the course of his eloquent judgment, the Lord Chief Justice thus clearly and explicitly laid down the law upon the subject, evidently after some reconsideration, and with a view to avoid any inferences hostile to the due protection of public writers, or unfavourable to the free exercise of the right of public discussion : "But then it is said that, whether the imputation was true or not, this was a case in which the defendant, as a public writer, and an historian of the events of the campaign, had a right to make such comments as he pleased upon the conduct of the Earl of Cardigan, who had borne so conspicuous a part in the events of that campaign. But this doctrine must be taken with certain limitations. It is true, indeed, that the events in question were of the deepest possible importance. It is true that the conduct of all who were engaged in them is fair and legitimate subject of public observation; and, whether the observations are contained in the periodical publications of the day or in a work intended to be a record of the events to which it relates, the rule is the same-that the public conduct of public men is always properly the subject-matter of fair public dis. cussion; but with this qualification, that the discussion must be kept within fair and legitimate limits; and, according to the rule this Court laid down recently (in the case of Campbell v. Spottiswoode), it is not enough that a man who may be actuated by any of those motives which so often actuate us and produce an unconscious bias in the mind (even without our being aware of its influence)— personal dislike, political animosity, professional rivalry-all those causes which unhappily, in the infirmity of human nature, tend to create prejudice and ill impressions, too often without real foundation -it is not enough that a man influenced by motives of this nature but of which he may perhaps himself be unsconcious, takes an unfair, uncharitable, and unjustifiable view of the conduct of the public man whom he sits down to criticise-it is not enough that he has persuaded himself of the truth of the view which he thus takes; he must take care that, if he sits in judgment upon the conduct, or the character, or the honour of others, he does so in a fair spirit, and a reasonable manner, and he must be prepared to satisfy a jury, not, indeed, always that he has written what is actually true, but that he had at least fair and reasonable grounds for the censures he has cast upon the conduct of others. Here, therefore, it is not merely because Colonel Calthorpe had taken upon himself as a public writer to describe the events of the Crimean campaign that, therefore, he is entitled to deal recklessly with the character of others who may have been mixed up in the events he narrates; and the question whether these were fair comments or not is not for this Court to determine, but for a jury. The question for a jury would be-not merely whether the writer was sincere in his belief, but whether the circumstances were such as that the comments were fair and legitimate." Now here it is plainly implied that, within the legal limits of the right of free discussion-that is, on subjects which are the fair subjects of discussion, erroneous though injurious misstatement, if honestly in the exercise of that right, and fairly VOL. XV.NO. XXX. U arising out of the particular matters which are fair subjects of discussion, are protected from legal liabilities. And though there is a little confusion as to the relative province of the jury and of the judge, we think when the Lord Chief Justice spoke of leaving it to the jury whether the comments were fair, he merely meant upon the question whether the defendant wrote in the honest exercise of his rights (which would be essential to his protection), and that when he said “fair,” he meant not that they were to say whether the comments were in their opinion fair, but whether they were in their opinion so unfair as to be reckless and malicious. This is implied in the expression "fair spirit," and as in another observation made by the Lord Chief Justice, that if the observations were such as were so unreasonable and outrageous that no one could honestly have made them upon the materials before the writer they could not be protected. Some of those observations, in Campbell v. Spottiswoode, certainly seemed to imply that a public writer is to be held strictly in the exercise of his right of fair discussion to that which a jury may consider to be fair. We have given our reasons why we consider this a position not warranted by law, and one which would be fatal to freedom of discussion in the class of cases where it is of most importance, and in which public writers most require, and most deserve protection-that is, cases in which they are in opposition to popular prejudices and predilections. We may urge, further, that such a theory leaves it wholly uncertain in what sense the word "fair" is used, whether with reference to actual truth, as proved at the trial (with or without a justification), or to the truth as it might fairly appear to the writer on the materials before him, or merely with reference to the opinion of the jury. In the first view, "fair" would be the same as true, and deprive a public writer of all protection short of a justification. In the second view, it comes very near in substance to what we have been urging, only putting it more confusedly, and huddling up the province of the jury and of the judge, and confounding the question of what is fair subject of comment, with the question what is fair comment. But it falls short of the law, as we conceive, in this, that it refers to the jury something else than that which we contend is in such cases the sole question for them, viz., did the defendant honestly exercise his right, without malice? As to the third way of putting it, viz., referring it absolutely to the jury, we have altogether failed in our argument if we have not satisfied our readers that it is utterly contrary to law, and puts public opinion absolutely at the mercy of the jury. We think we have done some service to the profession in drawing attention to this matter, if the view we have taken is, as we hope we may consider it to be, the correct one, in order to prevent misapprehensions which might have prevailed as to the real effect of the decision. If we are wrong, however, in this, and the Court meant to determine that in no case is there privilege to a public writer, but that he is to be held strictly to what a jury may deem "fair," then, indeed, this decision is the heaviest blow ever yet given to freedom of discussion, and a retrogression of more than half a century in the liberty of the press. It can scarcely be so, however, as we would fain hope, because the question of fairness of comment was not left to the jury at all (as it ought to have been, had such been, the law), and the Court did not say that it ought to have been, but said that the matters of the imputation were not fair subjects of comment. If there was an error in that, it was an error not in the law, but in its application to the particular case, and we trust, therefore, that nothing can be deemed to have been decided in that case at variance with what we have ventured to lay down as the general law upon the subject. 292 ART. II.—THE RIGHTS, DISABILITIES, AND USAGES OF PART VII.-The Parliamentary Regulation of Labour in the THE rural inhabitants of England-if really straitened in the time of Edward the Third, were destined to be relieved by the coming of an awful visitant— "Ther came a privee theef, men clepen Deth, he hath slain this yere Hence over a mile, within a gret village, Both man and woman, child, and hyne, and page." The plague of the years 1348 and 1349, called the Great Death, is said to have destroyed nearly two-thirds of the population. A mightier power than King Edward encountered him in the midst of his career, and forced him to utter the penitential words impressed upon some of his gold coins— Domine! Ne in furore tuo arguas me! At this time numbers of men were drawn off by the wars, while the growing manufactures attracted increasing numbers, and the pestilence was naturally followed by a lack and dearth of agricultural labour. The lack could hardly be supplied by human means, but the dearth was supposed to be within the compass of an Act of Parliament, and therefore after the following preamble: "Because a great part of the people, and especially of workmen and servants, late died of the pestilence, many, seeing the necessity of masters, and great scarcity of servants, will not serve unless they may receive excessive wages, and some rather willing to beg in idleness than by labour to get their living, considering the grievous incommodities which of the lack, especially of ploughmen and such labourers, may hereafter come, |