The Sun.
London, England, 1850-12-07 00:00:00

those matters were all brought fore ard as resulting out
of the revolution that had taken place there, end were in
the nature of comments on the public character of a per-
son holding a high political situation, end which had
affected the public interest. The subject was introduced
entirely with reference to the revolution in the state of
Brunswick; and in reference to that revolution a great
many matters were stated highly disparaging to the
subject of them. It was for the jury to consider whether
they fell within the rule of law to which be had ad-
verted, and in the opinion of the jury at the trial of that
action they did not fall within that protection, because
the verdict was for his Highness the present plaintiff.
They did not fall within that protection, although they
might have alluded to the revolution as a matter of
puhlicopinion; but that was the question between the
editor of the Weekly Dispatch and the present plaintiff,
and that action being tried in 1849, at all events 19 years
after the publication of the original libel, and a verdict
having been given on that occasion for the present plaintiff,
the article to which the attention of the jury had been
drawn in the present action was the result of that ver-
dict. As that action had been read to them both by the
plaintiff, the officer of the court, and by the Learned
Counsel for the defendant, he (Mr. Justice Erie) did not
propose to read that article to the jury again. The paper
could bo handed to them, and if they chose it could be
examined by them. But the main spirit and drift of the
article he would state to them; and he would draw their
attention to some of those passages which had been read
by the plaintiff. Now, the general spirit of the article
had respect to the action which had been brought by the
Duke of Brunswick against the proprietor of the Weekly
Dispatch, after the lapse of so long an interval after the
publication of the original libel. There was not a word
either in the spirit of praise or blame said with respect
to any of the political exiles who had taken refuge in
this kingdom. The article written by the editor of this
journal had respect to a party holding a high public
station, and towards whom much public attention had
been drawn. Certainly, that was a question that would
deeply interest the freedom of the public press,
and the drift of the article all the way through
had reference to one particular event, that
after so long a time a journal should be made
liable for a large amount of damages for remarks that
had been made on the political character of a person
holding a high station, in which the public had an inte-
rest. That being the drift of the article, it stated that
a verdict had been obtained, and it accompanied that
statement with an expectation on the part of the editor
of this paper that that verdict would be set aside, be-
cause it had been obtained on evidence, which he thought
insufficient, and that a part of the libel had been left out.
It should be also taken into consideration that the pre-
sent defendant was in a manner united in interest with
the owner of the Weekly Dispatch. Mr. Harmer was the
proprietor of the Weekly Dispatch, and answerable for
the articles in question, and he stood in relation of mort-
gagee of this paper, the defendant being the mortgagor;
and in those respects the two papers might be identical.
But no inference would be drawn against the defendant
on that ground; it only accounted for the defendant
having a personal knowledge of what had been done in
the action which had just been tried, and stating the
grounds on which the witnesses were to be impeached, and
on which the application for a new trial was to be made.
The article was directed throughout to the defence
of journalism against the party by whom that verdict
had been obtained. The subject having been intro-
duced, the writer dwelt on the universal reception which
this country afforded to those who had been politically
unfortunate, whether unfortunate without blame to
themselves, or unfortunate in their political prospects by
reason of their misconduct. It spoke of that universal
reception, and its remarks were entirely general. It
spoke of persons taking refuge in this kingdom on the
ground of political difficulties, some of whom commanded
the public sympathy, and some against whom there was
a great deal of indignation; and then it adverted to the
Duke of Brunswick as being remarkable for having been
the first to repay that national generosity by bringing an
action against a journalist for certain comments made
upon him. The editor of the article in question drew a
marked distinction between attacks made on the cha-
racter of a private individual and observations founded
on his public conduct, in which the public had an in-
terest. At least, he said, "in such a case as that of the
ex-Duke of Brunswick, the veracity of the old axiom—
' the greater the truth the greater the libel'—becomes
more than ever and most painfully perceptible. Since
the first instant of his expulsion from the dominions of
his ancestors the public mind of England has not
hesitated as to the calendar upon which should be in-
scribed the name of this personage, whether among the
political victims, or among the political criminals."
Now, the jury would see how far the editor of this paper
had adopted all the charges contained in the articles pub-
lished by the Weekly Dispatch, by saying of the Duke
of Brunswick, " the greater the truth the greater the
libel became painfully perceptible." He (Mr. Justice
Erle) was not aware that in the article in question the
editor of The Sun had adopted all that had been con-
tained in the Weekly Dispatch ; he (Mr. Justice Erle)
was of opinion that it contained a statement by the pre-
sent editor that in his judgment there were matters that
might be alleged against the Duke of Brunswick, so far
as he knew, of a political and public nature, which
would tend to bring him into contempt, hatred, and ridi-
cule, but which might be perfectly true, though he
trusted to the contrary, and yet might render the editor
stating them liable to an action. He (lair. Justice Erle)
did not think that any person was attacked specifically
in all these charges which had been read to the jury.
The article went on to say that the public mind of Eng-
land had not hesitated as to the calendar upon which
should be inscribed the name of this personage—whe-
ther among the political victims or among the political
criminals. The jury would observe the fre-
quent use of the word " political," and that it
was the intention of the writer to describe
the plaintiff either as a political victim or a political
criminal. The article did not therefore, so far, contain
any charge beyond what was merely political. Again,
after mentioning the persons on whom journalists had
made very strong comments, it said —h Let this parson
rest assured of one thing, namely, that the judgment of
history will in no respect be favourably affected either
by the verdict of the jury in the Court of Queen's Bench
or by the 5004 damages. In his instance the decision
of history has been perceptibly anticipated by the loud
and unanimous opinion of his contemporaries." Again,
that was asserting of him that which had reference to
his political character, and that was a matter of history.
The writer said, "in his instance, the decision of
history had been perceptibly anticipated by the loud
and unanimous opinions of his contemporaries."
Then what followed was what the Duke said was beyond
a fair commentary, as charging him with an unnatural
crime, which he said was the meaning of that portion of
the article, and upon that point the jury would be called
on to give a decision :—" That opushion is dark and
damnatory—so dark and damnatorf as to defy the
purifying influence of a favourable verdict, accompanied
by*heavy damages—by damages so large as to have
created quite a sensation in the court: by their enormity.
His Highness has, consequently, but little reason to
congratulate himself upon his more than questionable
success on Tuesday—especially seeing that the verdict
is one obtained through evidence so rotten and fraudu-
lent as to promise its ultimate reversal. Unless he may be
solicitous to proceed as upon a rather profitable specula-
tion is his attacks upon the liberty of journalism, we would
suggest to the ex-Duke of Brunswick the propriety of
withdrawing into his own natural and sinister obscurity.
For two reasons this would be advisable—first, because
he will find it little short of an impossibility to vilify
still more his already sufficiently vilified reputation;
and, secondly, because the effort would be as futile as
ablutions to an Ethiopian." He (Mr. Justice Erle)
should state to the jury that the whole of the article
would be capable of application to the ex-Duke of
Brunswick in relation to his political conduct, in which
the public in a manner had an interest from the high posi-
tion which he held, unless the Duke of Brunswick was
correct in putting the meaning which ho did on the sen-
tence he (Mr. Justice Erle) had just read. His own
opinion was that, on hearing the sound of these words,
probably none of the jury would attach any particular
meaning to them more than the words would fairly
bear, viz.—Retire into your ",own natural and sinister
obscurity," and not come before the public and raise a
discussion respecting the revolution in Bruns% ick,—
that was the idea which they suggested. The meaning
of the written words would still be the same. But a
grave ‘, barge was made against the present defendant
for hismode of printing those words. It was said the
word " natural" was printed in italic type, and the
word "own" in larger type than the rest; and the Duke
of Brunswick suggested that by the words his " own
natural obscurity" to printed was meant that he should
retire into his unnatural obscurity, and that their further
meaning was that he was a person addicted to unnatural
practices, which was what the editor of the paper in-
tended to convey. He (Mr. Justice Erie) could only
say that the sound of those words was far from calling
up such ideas in his mind. The jury, however, were to
try that record on the evidence that was before them,
and they were to judge whether on that evidence they
were led to the conclusion that the defendant intended by
the italics, and that change in the size of the typo, to
charge that the Duke of Brunswick was a person ad-
dicted to unnatural practices, for that was the allega-
tion in respect to which their opinion was to be taken.
If that was the meaning, of course it would be a very
aggravated libel; but they had heard the meaning which
the Learned Counsel for the defendant had suggested
the words were capable of ; and if there was a doubt of
their meaning, unless it could be made out to their satis-
faciton that that aggravated meaning was intended, the
present defendant ought not to be made answerable for
it. It was, therefore, for the jury to decide between the
observations made in this matter. If there was an attack
on his private character, in which the public had no in-
terest, the plaintiff would be entitled to damages; but if
they thought the plaintiff had no right to put that con-
struction upon that part of the article,. and if the expla-
nation given by the counsel for the defendant was justi-
fied, they would take the rest of the article into their
consideration, and say whether it fell within the protec-
tion which he (Mr. Justice Eric) had endeavoured to de-
scribe to them, taking into mind the ground of the former
action, and into their account, also, the general drift and
specific language of this article. If they thought it was
taken, out of the protection to which it might be prima
facie entitled, either on the ground of the attack being on
the private character of the plaintiff in a very grave
matter, or of comments beyond what ought to be fairly
made, and :which were actuated by private malice, it
would be for the jury to find a verdict for the plaintiff,
with such an amount of damages as they might think
sufficient to compensate him. If, on the other hand, that
was not made out to their satisfaction, and if they
thought it fell within the protection to which ho had
alluded, they would find a verdict for the defendant.
The Learned Judge then handed the jury a copy of
the paper containing the alleged libel.
The Foreman, who had examined the paper, with the
rest of his brother jurors, for a few moments, called the
attention of his Lordship to the fact, that the word
" own," preceding the words "natural and sinister obscu-