The Sun.
London, England, 1863-04-20 00:00:00

LAW INTELLIGENCE.-April 18.

COURT OF QUEEN'S BENCH.
Sittings in Banco.—(Before Lord Chief Justice Cockburn,
Justices Crompton, Blackburn, and Mellor.)
COE V. WISE, CLERK TO THE MID-LEVEL DRAINAGE

COMMISSION.

This was an action to recover compensation in damages
for injuries received by the bursting of the sluice of the
mid-level, brought against the clerk (as representing the
commissioners) for negligence in not making and maintain-
ing the works in a proper and efficient manner. The action
was tried at Norfolk before Lord Chief Jus ice Erie, when
three out of the four issues left to the jury were found
for the plaintiff. The middle level consists of a por-
tion of the great level of the fens known as the Great Bed-
ford Level, and among the many great improvements in
that district during the past century was this drain, which
was constructed by commissioners under the provisions of a
special Act of Pariiament, and the object of the middle level
was to drain the upland waters and the sluice in question
was to prevent the influx of the tidal waters into the drain,
so as to overflow and submerge the lands which were below
the level of the sea at high water. The circumstances of
the overflow have been fully described in the particulars
published at the time, but in order to make the application
intelligible we give a narrative of the accident. In order to
get rid of the drainage that for a long time used to fall
into the river Ouse, it was resolved to cut a straight
drain eleven miles in length through the country
known as Marsh Land, from Popham's Eau to the Marsh-
land sluice, running into the Ouse, and for that purpose an
act of parliament called the Middle Level Drainage Act, 7th
and Bth Vic., c. 106, was obtained, giving the commissioners
power to enter upon the marshland and make the cut re-
quired, imposing at the same time on the commissioners
duties both onerous and difficult. By the act, full direc-

tions were given as to the mode in which the cut was to be
made, and the banks, the puddled clay walls, and the fences
were to be kept up and maintained, but a good and sub-
stantial sluice was to be made at the end of the cut next the
River Ouse, which is a tidal river. The sluice was built
between 1844 and 1846, consisting of a kind of three arch
bridge, each arch being stopped with double sluice doors
opening and shutting with the advancing and receding tide.
On each side of this bridge the banks sloped gradually down
to the bed of the river, which at the highest tide rose to
about 18 feet. Between the 22d and 26th of March, 1862,
one hole—though one witness said there were two holes—
was discovered on the west side of the banks shutting out
the waters of the Ouse 15 feet deep and folic feet wide, the
appearance of which betokened approaching danger, and to
fill up which with stones and straw sundry efforts were
made, as it appeared, in vain, for on the 4th of May the
sluice was utterly destroyed, and on the 12th of May 6,000
acres of land were submerged, the crops destroyed, and
their fertility seriously injured.
Sir Fitzroy Belly (with whom were Mr. O'Malley,
Q.C., Mr. Metcalfe, and Mr. Newton) moved by leave
reserved for a rule calling upon the plaintiff to show
cause why the verdict should not be set aside and
entered for the defendant, or, in the alternative. for a
new trial on the ground of misdirection, and that the
verdict was against evidence. The aciion was brought to
recover damages for the alleged negligence that had been
committed by the officers, agents, or servants of the com-
missioners in respect of the making and maintaining these
works. From some cause which had not even yet been dis-
covered, the accident complained of occurred, and injured
to a great extent more than 100 owners and occupiers of
land in the neighbourhood, and this was one of more than
100 actions that had been brought against the commis-
sioners, and showed the great importance of the case to
them. Before he detailed the precise charges of negligence
made against the commissioners the learned counsel con-
tended that the action was not maintainable. Secs. 137,
138, 237, and the sections immediately following of the 7
and 8 Vic. cap. 106 were the important sections relied on.
The commissioners consisted of certain proprietors of lands
within the Great Bedford Level district, and were consti•
tuted a body corporate for the purpose of executing and
maintaining those works. They were an unpaid public
body, having certain compulsory public duties to discharge,
and with limited funds at their disposal. The duties to be
performed by the commisioners could not be personally
discharged by them, and could only be performed by the
agency of engineers, contractors, &c., and he submitted
that such a body was not liable to an action for the negli-
gence of the servants, or any one acting under them. That
principle of the law would have been clear had it not been
for the recent inroads that had been made in the case that
had been supposed to have decided it. The commissioners
were taken from the landowners of the district, and at the
time of the accident they were not a corporate body, but
had been made so since. The plaintiff was suing the whole
as a body, and if any execution issued against them for
damages it would not go against their personal property,
but against the property of the board, which was exceed-
ingly small as their borrowing powers were exhausted.
The Lord Chief Justice said he thought the learned
counsel ought to have a rule on that point.
Sir Fitzroy Kelly said he hoped before the case came
on for argument that the law would be decided in the cases
now before the House of Lords. The negligence complained
of was that the commissioners had failed to do or could
have done certain things that would have prevented the
accident. In answer to that he said the works were executed
under the directions of Mr. Walker, the eminent engineer,
though the plaintiff had contended that he was incompetent,
and that the sluice and the banks had accomplished the
object for which they were intended from the time of their
construction till the accident, a period of 16 years. The
second point relied upon by the plaintiff was that before the
sluice was destroyed means might have been resorted to by
the commissioners to preserve it, which they failed to do.
Thirdly, that after the sluice was destroyed they failed to
adopt the necessary means for shutting out thetidalwaters,
and prevent the inundation; and the fourth point of negli-
gence was in not puddling the banks, &c., with clay, to pre-
vent the tidal waters from oozing through. The Lord Chief
Justice, in summing up, said it was but mere conjecture
what was the cause of the gates giving way ; but he (Sir F.
Kelly) considered the rational conjecture was that the tidal
water, by the gradual working and undermining of the
banks, had passed underneath and around the right wing of
the sluice, and by a sudden and irresistible pressure had
raised it up and destroyed it. The learned counsel then at
considerable length entered into the facts and the evidence
given at the trial on behalf of the defendants, which, he con-
tended, showed that every care and skill had been used in
constructing and maintaining the sluice, and that, after the
accident they did everything that skill and science could
devise to mitigate the evils resulting from inundation.
The Lord Chief Justice asked what issue the jury found
for the defendant ?
Sir F. Kelly said they found there was no want of skill
and care in the original construction of the sluice.
The Lord Chief Justice said the Court were of opinion
that the learned counsel must have a rule on the points of

law, but that with regard to the other points they would
consult Lord Chief Justice Erie before giving any decision.

CAMPBELL V. SPOTTISWOODE-LIBEL AGAINST THE
" SATURDAY REVIEW."

Mr. Bovill, Q.C., said this was an action brought against

the Saturday :Review for libel, and tried before the Lord
Chief Justice at Guildhall, when the jury returned a verdict
for the plaintiff, damages £5O. He iroved on behalf of the
defendant for a rule calling upon the plaintiff to show
cause why the verdict should not be set aside and entered
for the defendant, pursuant to leave reserved, or for a new
trial on the ground of misdirection. The two grounds,
however, resulted substantially to the same thing. The
plaintiff is a nonconformist minister, holding an appoint•.
ment in Moorfields, though he had ceased to officiate, and
now devoted himself to literature, and earned his living
by editing and contributing to the British Ensign and the
British Standard, and writing for other publications. The
jury in returning their verdict said specially that they be-
lieved the editor wrote the article complained of in the
honest, genuine, and bona ftle belief that what he wrote was
correct. The plaintiff was the proprietor, in partnership
with Mr. Pratt, of the two papers above named, and some
years before the subject-matter in dispute he published in

them a series of letters addressed to the late Prince Consort
with reference to H.R.U. the Prince of Wales, in which he
stated, and no doubt entertained, the sincere conviction that
great danger was to be apprehended from his royal high-
ness's visit to Canada of his becoming a Roman Catholic,
from his being placed in communication with certain parties
there, and of his becoming an infidel from his going to Ox-
f.)rd University. (Laughter.)
The Lord Chief Justice--And also from his visiting Rome.

(Laughter.)
Mr. Bovill —Yes. The plaintiff in his cross-examination
had shown that he addressed those letters to the British
public in all sincerity, and that they had the effect of in-
creasing the circulation of the paper 100,000 copies, and
the way be acted was to call upon those who entertained
similar views to subscribe for the gratuitous c'rculation of
copies. Having been so successful with the Prince Con-
sort's letters he entered on a new subject in the autumn of
1861, that of the salvation of the Chinese—(laughter)—by
the publication of a series of letters in the
.Ensign and
Standard, and he called on the public in the most solemn
manner to participate in attaining
that end by subscribing
towards the gratuitous circulation of the two papers.
Mr. Justice Mellor—Were they for circulation amongst
the Chinese F (Laughter )
Mr. Bovill—No. The letters were written in English—
but to increase the circulation.
'The Lord Chief Justice said the learned counsel had not
put it quite fair towards the plaintiff. The circulation was
to be the means by which the solemn object was to be
achieved. It struck one as absurd that these letters were
to stir up the community, and to stimulate them into active
exertion for the conversion of the Chinese, and it brought
down a fair amount of ridicule from the writer of the article
complained of. If he had stopped there no one could have
blamed him, but he had gone further.
Mr. Bovill—And, as the writer humorously observed,
" all at the low charge of one penny." (Laughter.) The
plaintiff was not in the position of a private gentleman en-
tertaining those views, but as one who, by publishing them
had called attention to them. The plaintiff in his letters
had called attention to the importance of subscribing, and
in many of them he requested that the subscriptions should
b. e forwarded to his esteemed publisher (Mr. Pratt, who was
in partnership
of truth as it is i partnership with him).
He addressed his readers as the
fn
n
Jesus, and after speaking of the

salvation of man and the glory of God, called upon them to
increase the circalatirn by five times what it was on the
publication of the Prince Consort letters. Mr. Pratt treated
it as a matter of business—of a stimulating character, and
likely to produce its effect on those reading the appeals.
The Lord Chief Justice—One looks after the spiritual
element, and the other the commercial. (Laughter.)
Mr. Bovill then referred to the letters of the subscribers,
some with names and others with initials attached to them.
One was an " Old Soldier," and some little ridicule was
thrown on the probability that plaintiff was the " old
soldier." (Laughter.)
The Lord Chief Justice said if it had been only ridicule
he should have gone along with the learned counsel.
Mr. Bovill—lt was sugges'ed that the old soldier was
fictitious.

The Lord Chief Justice said it was not only so, but it also
directly charged that the plaintiff, while putting forward to
the public the great and important object of contributing,
subscribing, and of using every possible effort to convert
the Chinese to Christianity, was guilty of gross imposture ;
that his whole object was not to effect what he professed 'to
have in view, but simply to obtain money by the circula-
tion of hie paper. and that with a view to promote that end
he pretended that ho had received communications from
individuals who were entirely fictitious and imaginary, and
had no existence but in his own brain; and that he put
down names and subscriptions which professed to be a
subscription list. He could not help thinking that it was
a charge of direct swindling and obtaining money under
false pretences.
Mr. Justice Crompton said it was not a criticism on the
work, but a direct charge of crime.
Mr. Bovill then referred to the remarks of the writer on
the subscription list, and his allusion to their existence like
Mrs. Harris and Sorey Gamp.
The Lord Chief Justice said it was a very rungent and
cleverly written article.
Mr. Justice Crompton said the writer had a perfect right
to ridicule the matter, or if he makes personal imputations
he must show that it was privileged, or that it was true)
which had not been.
The Lord Chief Justice said that, however much the
plaintiff's conduct was open to criticism, it was impossible
the moment he appeared in the witness-box to doubt his
honesty, and that he and those connected with him were
enthusiasts in the matter.

After some considerable discussion,
The Lord Chief Justice said there should ba no rule.
The article was unquestionably a libel. It imputed to the
plaintiff that he put forward the great and sacred cause of
the dissemination of religious truth amongst the heathen
to put money into his pocket, and that he was acting as an

impostor.
The other learned judges concurred.

Rule refused.
Mr. Bovill said the jury found that the article was
written under the bona fide belief that the charges was
true. Here was a subject brought before the public by Dr.
Campbell in his own newspaper, and he asked the public to
tax themselves for the purpose of supporting certain objects.
Another paper attacked them, and said that instead of doing
it for the purpose of the salvation of four hundred millions
of Chinese, he did it for the purpose cf putting money into
his pocket. The question was, had the Saturday Review a
right to make such a comment.
The Lord Chief Justice said it must not be assumed that
the jury only gave the damages on that point. He was
obliged to tell the jury that if they did not consider the
articles privileged both the charges were libello s. It must
be taken that the damages were given for both charges.
Mr. Bovill said he was entitled to a rule if he could show
that the verdict was wrong on either point. This was a
matter that had been brought before the public by the
plaintiff, and was open to public criticism.
The Lord Chief Justice—Most certainly, if fair and
proper.
Mr. Bovill contended that the moment it was shown that
an article was privileged, it became necessary to show ex-
press malice.
Mr. Justice Crompton said it was a mistake to speak of a
newspaper being privileged. The editor of a newspaper
had no different privilege from any other of her Majesty's
subjects. He certainly was not privileged to make charges
Mr. Justice Blackburn—To Make
of dishonesty. He thought the jury had very properly
found the article libellous.
privileged you must
assume it is libellous.
Mr. Bovill read that portion of the article which referred
to the subscription list and the " Old Soldier," and said
there was a great deal of banter about it.
The Lord Chief Justice said he did not know that an
imputation was the less painful or effective when put in the
shape of a banter. It was a laughing way of putting it to
say, "So many copies for the Old Soldier.' We know who
the old soldier is;" but it was none the less libellous.
Mr. Justice Mellor—You admit it is a libel.
Mr. Bovill—The jury have found it so. (Laughter.)
The Lord Chief Justice said a public man's public cha-
racter might be criticised, and the accuracy of the judgment
questioned, but his private reputation must not be attacked,
or base motives attributed to his acts.
Mr. Bovill said he should contend that it might, so long
as it was connected with the subject scatter under discussion.
Was not this such a case as would render it necessary for
the public interest that the matter should be brought for-
ward to prevent the public from being mulcted of their
money ? The learned counsel proceeded to argue that this
case stood in the same position as giving a character to a
servant, and a person stating that the servant was dishonest
was not actionable if he made the statement in the honest
bona fide belief that it was true.

Mr. Justice Crompton said that a man giving an answer
to a question was a very different thing from publishing
the charge in an advertisement.
Mr. Bovill said he could not perceive a more important
object than that of informing persons that the money was
wanted for one purpose when it was wanted for another.
The Lord Chief Justice—Why did you not justify, and
ask the jury to come to your opinion?
Mr. Bovill further urged that it was to the interest of the
public that these criticisms should be published.
The Lord Chief Justice said he believed that the great
security to public conduct was the high sense of public
honour and honesty of our public men, and he believed that
if they were to deal lightly with it, and allow them to be
attacked by persons who entertained adverse views, and to
be dragged into the mire, more mischief than good would
result from such a latitude being permitted them.
Mr. Bovil said that might be so as a matter of policy.
The Lord Chief Justice—But you say that it is to the
interests of society that it should be so.
Mr. Bovill then proceeded to quote several cases of libel
tried within the last few years in the Courts of Common
Pleas and Exchequer, especially the case of Paris v. the
Daily Telegraph, and the opinions of the learned judges on
the law of libel, which, he urged, were favourable to his
view of this case.

The Lord Chief Justice said the great question in
those cases was, whetter it was or was not a fair com-
ment. It was the first time that they had heard that in
such cases there should be proof of express malice. A fair
comment was, to use a familiar term, privileged; but if a
comment carried with it a wicked assumption that the con-
duct was
on
mturpitude, then it was a libel. The
moment
made it became libellous, and
anie o:*ugtraetaiotn was
required a justification.
Mr. Bovill said that if a man honestly believed it he had
a right to publish it, and let the great man stand upon his
character. There was no question of truth or falsehood in a
case of privilege. The observation that Dr. Campbell's in-
tention was to put money into his own pocket. was a fair

comment.
Mr. Justice Crompton said he had no wish to see the
liberty of the press diminished in the slightest degree. Per-
sons might express their opinions upon the charges of
judges, bishops, or decisions of magistrates, and they might
say they were foolish and ridiculous, but they must not say
that they acted from corrupt motives or had received a
bribe.
The Lord Chief Justice—l am of opinion that there
should be no rule. The article upon which this action is
brought is, unquestionably, libellous. It imputes that the
plaintiff, in putting forward the great and sacred oause of
the dissemination of religious truth among the heathen,
was acting as an impostor, his sole motive being to put
money into his own pocket. It charges him with publish-
ing, in his newspaper, as genuine, a fictitious correspon-
dence, addressed to him by imaginary persons, and the publi-
cation of a fictitious subscription list. it is said that inas-
much as the plaintiff put forward this public object in a pub-
lic newspaper, addressing himself to the public at large on a
matter of not only public but universal interest. he was
open to public comment, and in that proposition I en-
tirely concur. If his scheme was. fraudulent and dispro
portioned to the object he proposed to have in view, it
was fit for comment and was within the scope of fair cri-
ticism
hostile; but
eriitseteimetsna,
s to
umeetwteheen a
man's public conduct
line must be drawn be-
tweenand the motives by which he was actuated ; and you have
no right to impute base, sordid, dishonest, and wicked mo-
tives, It turns out that this imputation was most undoubt-
edly without foundation. It may have been that Dr. Camp-
bell, in addition to the religious enthusiasm and zeal that
actuated him, may not have been altogether insensible to
the collateral object of promoting the circulation of his
weekly publication, but there is no foundation for saying
that it assumed 3n his part the character of imposture,
or that he had resorted to a fraudulent and false device to
induce the public to contribute towards it. That being so,
Mr. Bovill was obliged to take his stand on narrower
ground. He says that because the writer had a belief that
it was true, then he was justified. I cannot subscribe to
that. You have a perfect right to canvass a man's public
conduct, to say that it was foolish and absurd, and that the
effect of the subscription which Dr. Campbell was asking
the public to contribute was to put money into his pocket;
but when you go beyond and state that ho is actuated by a
desire of putting
money into his own pocket, and that he
resorts to fraudulent expedients to do so, you are charging
him with positive dishonesty. The doctrine cannot be
pushed further than a full right to comment in the true
spirit of criticism. It is said that it is for the interest of
society that men's public conduct sbould be criticised ; true,
but on the other hand, it seems to me that we all have an
equal interest in the maintenance of public character,
without which public affairs never could be conducted with
a view to the public welfare, and we ought not to sanction
attacks upon publio men destructive to their character and

fhonour, unless they can be proved to be true. I therefore
think that no rule ought to be granted.
The other judges gave similar opinions. Rule refused
I accordingly.