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1863.

MORRISON

BELCHER.

effect an “impostor,” and charged with wilful imposture, and he hoped the jury would not be withdrawn from the real question to the question whether the beryl was a delusion.

The handwriting being admitted,

The plaintiff was called and explained how he came to get hold of this magic ball, which, he said, he had merely exhibited privately and gratuitously and never for money, nor had he, he said, in any way made money by it. He however admitted that there was in this Almanack for 1862, a notice of the “Magic Crystal :"

“For some years I have omitted to introduce this interesting subject to the notice of my readers. This has not been from intentional neglect, but in consequence of my not being able to procure able and intelligent seers to inspect the crystal. The visions seen by young children have been often highly interesting and very instructive, yet they have not in general been of a nature to offer to my numerous readers. But recently I have been so fortunate as to obtain four excellent adult seers; three of them are ladies and one a gentleman. Two of them are artists, and so I have been able to possess sketches of some of the very interesting visions granted at our request. But I may say that two seers have been favoured with several splendid scriptural scenes, among which have been visions of many of the most interesting miracles. There has been seen, for example, the miracle of the five loaves and two small fishes,' and the feeding of the multitude thereby; also the walking on the water,' and the breaking of the bread at the Last Supper,' with many other scriptural events. . . . For many years have seers of all ages and conditions given me reason to believe that the visions given in the crystal emanate from spirits of a high and holy class." . .. And he admitted that he thought this notice might possibly promote the sale of the almanack.

Ballantine, Serjt., asked that the article in the Daily Telegraph should be put in, but

Shee, Serjt., declined to put it in, and

COCKBURN, C. J., held that the defendant had no right to have it put in by the plaintiff.

The plaintiff went on to say he had heard that Lady Blessington had a curious crystal ball with wonderful properties, and he bought it in 1849 of a dealer in curiosities in

1863.

MORRISON

BELCHER.

Brompton. He then stated that, having set it before his
son, he said he saw Arctic scenery and the incidents of Sir
J. Franklin's expedition, as to wbich he wrote an account
for the Athenaum, which appeared. A young man also
looked into the ball, and said he saw various things (which
he described) in it. For himself, the plaintiff said, he never
saw anything in it, nor professed to have seen it. But in
consequence of what had been announced various persons
of distinction had desired to see it. He had never taken
any money for exhibiting the ball, nor had said he had ever
seen anything in it; nor had he ever suggested to the boy
or the young man to say so. Nor was it true, to his know-
ledge, that 5l, had been given to the boy to say he saw
anything in the ball. He never heard it before the libel,
nor did he believe it to be true. He did not always go
with the ball himself when he lent it, but generally did so;
and it was open to inspection. Persons had looked at it,
and saw something remarkable. He said he had met the
defendant at an evening party, when the ball was exhibited,
and when he certainly saw nothing to excite disgust, nor
did be at the time intimate that he had done so.

Ballantine, Serjt., elicited from the plaintiff a confession that he had so lately as last year answered the questions of persons as to their " nativities," and received money from the wealthy. He also elicited that he advertised in the Almanack that advice would be given to those who were uneasy in their minds, and that the “aspects of the stars" would be taught at Il. a head.

The evidence of the plaintiff's son (taken in America) was then read, the effect of it being that he had really seen the things he said he saw.

Various persons of rank, who happened in private society to have seen or heard of this “crystal ball," were called to show that it had been shown to them freely and without money payment; and

1863.

MORRISON

BELCHER.

Ballantine, Serjt., on the part of the defendant, contended that his client bad a perfect right to denounce all this trash as imposture, and as most mischievous and infamous imposture. Not the less so-but all the more sobecause it appeared that some poor creatures fancied them to be true.

CockBURN, C. J., in summing up the case to the jury, pointed out that the pith of the libel was that the plaintiff was an impostor and guilty of wilfully gulling the public (a). And to support the plea of justification they must be satisfied that he exhibited the ball knowing it to be an imposture, and for purposes of profit. Were they satisfied of that? There were persons who, through obliquity of mind or prejudice, or passion, or delusion, brought themselves into a state in which they were themselves imposed upon. And, if the plaintiff really believed these things, though the jury might laugh at him, could they say he was an impostor? As to the exhibition of the ball for money, certainly it had not been made out, and the reception of money for the Almanack, or the teaching of astrology, or the casting of horoscopes,—that would not support the plea of the reception of money for the exhibition of the ball. It was one thing to be an impostor and another thing to be a fraudulent impostor. The plea of justification, therefore, was not made out. Then, as to the other ground of defence-upon the plea of “ Not guilty," -- that defence was that the matter was one fit for public discussion and denunciation. Now, if the system was mischievous, and calculated to delude the unwary and the credulous, it was, no doubt, fit subject for indignant de

(a) Vide unte. It was not a pleaded to the whole (see Clark v. mere question as to the number of Taylor, 2 Bing. N. C. 654); but it times the plaintiff had done the act was rather a question as to the pith imputed; as to which vide Clurk- or gravamen of the charge, the son v. Lawson, 6 Bing. 266, 587; sting of which must always be justhough even that may be so fartified; Helsham v. Blackwood, 11 material as to make the plea bad, if C. B. 111.

1863.

RISON

BELCHER.

nunciation. But it was another thing to say that, because a man put forward such a publication or such a system, a public writer could go back into his past history and state facts which were not true, and were calculated to do him injury. His system might be described as an imposture, but facts must not be invented or misstated as to his past life, with a view to destroy the credit of it. Now, here the defendant took upon himself to say that the plaintiff, in his past life, had been guilty of imposture, and of wilful imposture, and for the purpose of profit. The law laid down in this Court, at the last sitting, in the case of Campbell v. Spottiswoode (a), was lately confirmed by the Court of Queen's Bench, and it was this:-- It was not because a public writer might not be able to prove to the letter all he had stated that, therefore, he was liable; but the jury must be of opinion that his observations and inferences were fair and legitimate under the circumstances; or (6)

(a) Vide ante, p. 421. There the right and privilege of fair dis cussion were not impeached; but it was held that the privilege did not arise merely from bona fides. That there is a privilege for a public writer within the scope of the fair subject of discussion the context clearly shows.

(6) That is, “ or rather." The gist of the sentence is in the words which follow. Those word imply, that where there is a right of fair discussion, there is, within the limit of that right--that is, within the scope of the subject matter of discussion (and what is so is matter of law for the Judge)-an immunity from liability, unless the expressions are so unreasonable as to be reckless, and therefore, in a legal sense, malicious. This, of course, implies a privilege; for when there is no privilege, actual malice is im

material, and actual malice never
necessarily implies personal ma-
lice; for, in case of defamation, as
in case of homicide, malice may
be general as well as personal or
particular; and there is a reckless-
ness which means malice to all the
world. Until it has been ruled
that there is a privileged occasion
the question of malice does not
arise (Blackburn v. Blackburn, 4
Bing. 1), except in cases of slan-
der of title, when actual malice is
essential. But when the question
of malice arises, then the question
is not what is reasonable to the
jury, but what might honestly ap-
pear to be so to the defendant ;
Pitt v. Donovan, 1 M. & S. 639;
and whether he acted honestly,
without malice, and in the honest
belief of the truth of what he wrote ;
Smith v. Thomas, 2 Bing. N.C.372;
though the mere belief of truth, with

1863.

that they were not so unfair as to be reckless, and thus, in law, malicious. Therefore, in this case, the jury must be satisfied, in order to find for the defendant on that ground, not

MORRISON

BELCHER.

malice-personal or general—will not suffice. That is, if with a belief of truth there is reckless excess. But when there is a privileged occasion, or wherever express malice is essential, there one most important element is honest belief (Kershaw v. Bailey, 1 Exch. Rep. 743), though it never is the sole question ; nor was it so held in

Turnbull v. Bird (Vol. II., p. 508), though it was supposed that it was so in Campbell v. Spottise woode (ante, p. 421), and all that was decided in the latter case was, that it was not so. That, and all the other cases on the subject are collected and reviewed and he believes reconciled-by the reporter, in an article in the Law Review for August, 1863, to which he ventures to refer. The effect of that article is to show that there is a privilege in the public discussion of the public acts or published writing of a man, and in the suggestion of any matters of fact which may not be an unreasonable inference therefrom; though not in the gratuitous imputation of motives, or the suggestion of facts, for which there is not only no foundation in point of fact, but none in the public acts or published writings of the plaintiff. And this seems the effect and result of the ruling of the Lord Chief Justice on the present occasion; for he rests bis ruling against the privilege in this case on the obvious fact, that, as to the use of the ball for the pur

pose of making money, it was wholly an invention of the writer, and did not arise out of the plaintiff's publications. In the case of the Earl of Cardigun, the LORD CHIEF JUSTICE himself thus stated the law on the subject, and especially the result of the case of Campbell v. Spottiswoode :-“ But then it is said that, whether the imputation was true or not, this was a case in which the defendant was a public writer, and, as 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 limi. tations. 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 discussion; 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

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