LAWFUL PLEASURES.1

BY GEORGE M. SMITH.

To most men few things are more disagreeable than litigation, and from litigation of the ordinary kind I am as averse as other people. Indeed, I am able to understand and sympathise with a well-known broker of Mincing Lane who, whenever threatened with litigation, is said to produce his cheque-book and ask how much there is to pay. There is only one form of litigation in which I have been engaged, and that is in the defence of actions for libel, and I must confess to looking back on my experience of the courts of law as having been interesting and even enjoyable. There is a certain pleasurable excitement in being defendant in such actions, it being granted that the libeller conscientiously believes that the libel is true in substance and in fact, and that he has done a public service by its publication.

There are other kinds of libel; for instance, the innocent libel -where there has been no intention on the part of the writer of libelling any one; and the accidental libel, arising from a slip of the pen. An example of the first kind of libel is to be found in 'Plantagenet Harrison v. Smith, Elder, & Co.,' and of the second in the peril in which I stood by the accidental insertion in the 'Pall Mall Gazette' of the name of the Crédit Foncier for that of another company. The first afforded me no pleasure: on the contrary, I wrote a cheque for the damages and costs with 'most igstreme disgust;' and the second gave me a bad quarter of an hour.

When I was proprietor of the 'Pall Mall Gazette' I had to defend in Court three actions for libel, and my publisher had once to appear before the magistrate at Great Marlborough Street Police Court as proprietor of the CORNHILL MAGAZINE I have had to defend one action. As to the number of actions with which I have been threatened, some of them being carried nearly to the doors of the law courts, my memory does not serve me. But I remember that I invariably suffered genuine disappointment when I was informed by my solicitor that a plaintiff had withdrawn from proceedings.

Copyright, 1901, by George M. Smith, in the United States of America.

The first and most important libel action which I was called upon to defend was that of Hunter v. Sharpe (Sharpe being the publisher of the 'Pall Mall Gazette') in the autumn of 1866. It is still interesting as an illustration of the functions and perils of a newspaper. There was a certain Dr. Hunter, who appended M.D. to his name though he only had an American degree-and who advertised to an enormous extent in the newspapers a 6 cure for consumption.' The advertisements were most skilfully worded, and might well impose upon the credulity of any one with a limited medical knowledge. My attention was first directed to Hunter's advertisements by the circumstance that one of my sisters had died of consumption, and that my mother, who was now aged, suffered remorse for not having taken her daughter to this quack. Nothing I could say seemed to relieve her morbid condition of mind. I asked a friend, an eminent physician, to have a talk with her; but he was not more successful than myself. Hunter's plausible statements were transparent enough to me, and I felt wrathful with him for the unhappiness he caused my mother. My anger with the man was increased by my knowledge of the case of a poor girl who lived in my mother's neighbourhood in the country, and earned a scanty living as a governess. She suffered from consumption, and had sold all her small valuables in order to pay the fees of an ignorant pretender who was Dr. Hunter's assistant or partner, and who had been sent down from London to treat her. The local practitioner, a perfectly competent man, assured me that nothing could have been done for the poor girl, and that the repeated visits and large fees of Hunter's assistant were a cruel imposition.

While I was in this frame of mind Dr. Hunter was summoned to a police-court on the charge of having grossly insulted one of his patients. This again called my attention to his proceedings, and I arranged with the editor of the Pall Mall Gazette' for a strong article about Hunter's practices. It happened, just at that time, that I was making special arrangements to ensure the paper going to press in good time. I made the manager of the printing department responsible for the appearance of the paper at a fixed hour, and instructed him to send a formal notice to the editors' room every afternoon, stating the time at which the last proof must be returned for press.

When the proof of the article concerning Dr. Hunter, which was written by Mr. J. M. Capes, came down to the editor's room, there

were present, with Mr. Greenwood (the editor) and myself, Mr. Matthew Higgins and Mr. Fitzjames Stephen. I read the article aloud. 'Well,' said Mr. Fitzjames Stephen, 'if you are going to print that article you will hear of it!' At all events,' said Mr. Higgins, let me take some of the worst of the libel out.' He was a past master in that kind of work, and was supposed to be able to write nearer libel, without actually committing it, than any other man in London.

Higgins commenced his alterations; but before he had gone through many lines down came the formal notice from the manager of the printing office. We looked at each other rather blankly; then I said, 'Hang it, let it go!' I did not quite realise what would result from my words, but I cannot say that I regret them. In the course of a few days we were served with a writ, and were in the hands of the lawyers.

We decided on a plea of justification, and had to seek our evidence. It was, of course, almost entirely medical evidence that was required, and the work of getting it together largely fell upon me. I found many of the leading doctors reluctant to appear as witnesses in a court of law, and I had a great deal of trouble in getting the evidence together. I used to spend the greater part of my mornings in the waiting-room of one doctor or another.

At length the case came on; it was tried before Lord Chief Justice Cockburn; it lasted five days and excited great interest. Nearly every newspaper in the kingdom reported it at length. My counsel were Mr. John Karslake, Q.C., Mr. Fitzjames Stephen and Mr. Quain; Mr. Coleridge, Q.C., Serjeant Parry, Mr. Hume Williams, and Mr. Cashel Hoey appeared for the plaintiff. We had a long array of distinguished doctors as witnesses: among others Dr. Charles J. B. Williams, Dr. Risdon Bennett, Dr. James Cotton, Dr. Alexander Markham, Dr. George Johnson, Dr. Quain, and Dr. William Odling, and I may offer a tribute to the generosity of the profession by stating that all my medical witnesses, with one exception, returned the fee sent to them by my solicitor. Notwithstanding this generous conduct on the part of my professional witnesses, my legal expenses were about 1,400l. The money was not entirely thrown away, for the result was a brilliant triumph for the Pall Mall Gazette.

It need hardly be said that I listened to the evidence with the most anxious interest, being aware, as I was, of our weak as well as of our strong points. A doctor of great eminence in his profes

sion had in the earlier editions of an important medical work referred to the possible advantages of a treatment for consumption which by the ingenuity of counsel might be made to seem a cognate treatment to that employed by Dr. Hunter. When Mr. Coleridge took the book in his hand in the course of his crossexamination of one of our witnesses, my heart was in my boots; and when the witness left the box without any allusion having been made to the dreaded passage which might have been used with damaging effect to our cause, I involuntarily exclaimed, 'Thank God! he has missed it!' I was sitting in the reporters' box, and beside me was a gentleman, who was evidently much interested in the trial, whom I did not recognise and whom I was afraid of addressing for fear of his being a hostile witness. When I uttered the above expression he turned to me and said, 'Oh! you are on our side.' I said, 'I am the defendant;' on which he introduced himself as one of my witnesses and shook me warmly by the hand.

Dr. Williams, who was in the forefront of our phalanx of witnesses, was the medical adviser of the Lord Chief Justice, who suffered from bronchitis, and it was amusing to watch his enjoyment in questioning his own doctor, many of the questions being somewhat irrelevant to the case. The cross-examination of Dr. Hunter's two aides-de-camp, Dr. Melville and Dr. McGregor, was very severe, and one could hardly help enjoying their torture.

Among the witnesses on our side Dr. William Odling distinguished himself by the clearness and perspicuity of his exposition of abstruse scientific facts which he made quite intelligible to the jury, and under cross-examination he was a match for all Mr. Coleridge's dexterity.

Lord Chief Justice Cockburn summed up at great length. In his charge to the jury, he said the article was unquestionably marked by great severity. Language had been used of the very strongest character. But, he added, if the facts upon which the substance of the article was based were true, and it was proved that the treatment was intentionally and distinctly put forward to delude patients, and to make them Hunter's victims in purse if not in person, the libel was justifiable. Under such circumstances no language too strong could be employed; and to describe such a man as an impostor and a scoundrel was not an improper use of the English language.' Though Lord Chief Justice Cockburn's summing-up was marked by the usual judicial impartiality, it was soon apparent to which side his opinion tended, and with the more

serious matter were introduced remarks in a lighter vein which were not calculated to give the jury a favourable impression of the plaintiff. He startled them by remarking that, according to Dr. Hunter's theory, of every four people we meet one is consumptive in either the incipient or the advanced stage; therefore three of the jury must be in that condition. But he added, in a reassuring manner, that he should have great difficulty in selecting the three, and he hoped, therefore, that the jury were an exception to the rule.

'Again, he said, quoting Dr. Hunter, "if you have a hacking cough, if you have shortness of breath, if your pulse is accelerated ten or fifteen beats beyond its normal pulsation, these are infallible signs of consumption." I do not know, gentlemen, whether some of you are, like myself, getting on in the vale of years, but I do not find that I can walk up the side of a hill as I used to do. Then there is another thing: he says that "losing flesh is a sign of consumption; so is gaining flesh." You sometimes see nice rosy plump-looking young girls, the very picture of health, but he deals with them in the same way. That is nothing to the purpose: they have consumption. Especially if you change now and then, if you add to your weight at one time and lose it at another, it is consumption-consumption.'

I think if I had had no personal interest in the case I should still have listened with the keenest pleasure to the lucid and vigorous charge of the Chief Justice, given in that musical voice for which he was famed. Fitzjames Stephen, who naturally felt a strong interest in the case, fairly beamed. He wrote on a piece of paper and passed to me the nursery rhyme:

Take him by the right leg,
Take him by the left leg,
Take him by both legs

And fling him downstairs!

The quotation was not erudite nor classical, but it adequately expressed Fitzjames Stephen's emotions. I answered him by a familiar Latin quotation, but as it is to be found in the 'Eton Latin Grammar,' I forbear to record it.

During the summing-up Hunter, who was sitting in the well of the court, was very much excited and poured indignant comments into the ears of his counsel, until Mr. Coleridge moved away in evident disgust.