When a libel is published, the general rule is that prompt application, if any, should be made to the court of Queen’s Bench for a criminal information against the author, without resorting to any other remedy.
Where, on the application, the affidavits are conflicting, there is no inflexible rule that the court will not try the facts, and that it will thereupon discharge the rule for a criminal information.
Where an author in a historical work criticises the conduct of a public man, it is a question for a jury whether he either states the truth, or at least states what he had fair and reasonable grounds for believing to be the truth.
Where a libel complained of is contained in a book, of which copies continue to be sold from time to time, this is a continuing publication, each copy is a fresh libel.
This was a rule to show cause why a criminal information should not be filed against Colonel Calthorpe, for a libel on the Earl of Cardigan, published in a book entitled Letters from a Staff Officer in the Crimea. The libel consisted in an imputation of cowardice on the Earl when leading the charge of the light cavalry at the battle of Balaklava. The book was first published in December, 1856. In it, the author, when describing the charge, observed that Lord Cardigan was not present when most needed, owing to his horse taking fright, swerving and galloping to the rear. Lord Cardigan being indignant at this account, applied in immediately to the commander-in-chief for a court martial upon Colonel Calthorpe, which was refused. The Earl next asked the Earl of Carlisle, Lord Lieutenant of Ireland, to dismiss Colonel Calthorpe from his staff, which was also refused. On 5th February, 1857, on the publication of a second edition, Earl Cardigan made a speech in the House of Lords, and called on the government to bring the author to a court martial, which was declined. The second edition altered the objectionable passage by adding the following note: The author has relied on statements furnished by officers actually engaged in the charge, but as the excellence of Lord Cardigan’s horsemanship is unquestionable, the idea that his horse ran away with him is no doubt erroneous. This note was repeated in the third edition, which was published in 1858. During 1859 Colonel Calthorpe on being remonstrated with by a friend of Lord Cardigan, directed about 1,000 copies, being all that remained of the publication, to be suppressed. Owing to a new work on the Crimean war by Mr Kinglake being partly published, which had revived the public interest on the subject, Lord Cardigan made an application for the above rule.
Shee, Serjt, Coleridge, QC, and D Browne, showed cause.
Bovill QC, and Garth, in support.
COCKBURN, CJ — I can entertain no doubt that the passage in Colonel Calthorpe’s work upon which this application has been made, contains a most serious libel upon the Earl of Cardigan. It is impossible to read that passage without coming to the conclusion that it is intended to convey the imputation upon his character of having been wanting in his duty on the occasion of the charge at Balaklava, through a want of personal courage. It is true that in the first edition of the work the absence of Lord Cardigan in the place and at the time at which (as it was suggested) his presence as a general officer was desirable, was ascribed to a mere accident; and it was said that his horse swerved by reason of the discharge of a cannon close to his head, and carried the Earl away from the scene. It clearly was intended to convey (though with that explanation) that Lord Cardigan never reached the Russian battery which his detachment was directed to attack. Lord Cardigan, feeling that he had reason to complain of this statement (as of many others contained in same work), made it the subject of complaint ,and in the 2nd edition a notice was prefixed to it (which in the 3rd edition was incorporated into a footnote in the body of the work), and in this note that which was stated in the 1st edition, as the circumstance accounting for Lord Cardigan’s failure to reach the battery with the rest of the line which he led, was withdrawn, in the shape of a compliment to the excellence of Lord Cardigan’s horsemanship, but which conveyed a most bitter sarcasm and imputation disguised under that form and it was suggested that it was not the fault of his horse that he failed to reach the scene of danger which others reached, and thus it was intended to convey the imputation upon Lord Cardigan of having been wanting in personal courage on the occasion.
To say that a soldier ordered to attack an enemy, still more a general, whose duty it is to lead others into action, stopped short midway in the path which led to danger, and perhaps to death, which others went on bravely to encounter, must, to the mind not only of every military man, but to the minds of all who feel an interest in such matters, convey an imputation of personal cowardice, dishonour and disgrace. It is impossible, therefore, not to feel that this is a statement of a most libellous character. And Heaven forbid that the time should ever come when the honour, the courage, the reputation of a soldier or sailor in the service of his country, should be deemed that which the law will not protect when it is unjustly and unjustifiably assailed. There can be no doubt that if this be the true view of the libel — looking at the position of the parties, and the importance of the service, and the occasion to which the libel relates — the matter is one which is properly the subject of a criminal information, unless there is some special cause shown why a rule for a criminal information should not be granted, or should not he made absolute.
Now, three grounds or reasons have been stated why the court should not make this rule absolute. First, that in substance the statement contained in the passage complained of is true; or that, at all events, affidavits have been produced on the part of the defendant so far contradicting those on the part of the prosecutor, that the court, which does not take upon itself to try matters of fact upon affidavits, will not further interfere; secondly, it was said that, at all events. whether the statements were well or ill founded. they were written with reference to matters of public importance, and of public interest, and matters of history, and that consequently it was a privileged publication, which ought not to be the subject of any criminal proceeding; thirdly, that the conduct of the parties had been such, and that which has taken place since the publication of the work is such, that the prosecutor is precluded from applying for a criminal information.
Now, I will deal with each of these grounds of defence in their order. And, first, as to the defence that the statements contained in the passage complained of are substantially true, I must say that I cannot understand what is meant by that contention. It turns indeed upon what is the true effect and construction of the libel. If all that is conveyed by it is that the Earl, from some cause or other, which involved no reflection upon his personal character or courage, was absent when his presence was desirable, it may be said that, to a certain extent, some cause has been made out for asserting that the statement is true. But in my judgment that is not the true character of this libellous passage, the gist of which is that Lord Cardigan was absent when he ought to have been present, not from any accidental cause, but because he had not courage to face the danger which the brave men he led did face, and that being so, it is utterly incorrect to say that the substance of the charge is true, and Colonel Calthorpe, through his counsel, is constrained to admit that if that view, (which I think the only one which can be taken). is the fair one, his statement is not well founded, but is altogether unfounded.
Then with regard to the affidavits adduced, as to which it is said that they are contradictory, and that the court will not try the question upon affidavit, it appears to me that there was no real or substantial conflict between the affidavits on the part of the prosecutor and the defendant, but that the affidavits on the part of the defendant give the go-by to the real question which is at issue between the parties. The libel is, that the Earl failed to reach the battery because he turned back midway in the course which led to it. And what says the affidavits of the defendant as to that? The defendant admits that this was altogether erroneous and ill founded; and is constrained to acknowledge that the Earl did reach the battery, and did enter it and pass through it, and the defendant meets the complaint by saying that the Earl came out of the battery sooner than he ought to have done. Now, anybody must see that this is a totally different charge from that which was originally preferred, and to which the affidavits were addressed, and that there is, in truth, no conflict with the evidence adduced by the Earl, when the real nature of the charge is considered. Now I for one, should be extremely reluctant to lay down any rule as of universal application with regard to the course the court should take in such cases, when there are contradictory affidavits on the part of the defendant It is quite true that, in general, this court will not try questions of fact upon affidavit. But I am not prepared to say that this is a rule of universal application, and rather think that it must depend upon all the circumstances of the case; and certainly there I see no reason why, upon the affidavits, the court should hesitate to make this rule absolute, if looking at the other circumstances of the case, it is deemed a fit case for a criminal information.
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 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 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 a fair and legitimate subject of public observation, and whether the be observations are contained in the periodical publications of a day, or in a work intended to be a record of the events to which it relates, the rule at a 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 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 unconscious, 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 at 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 the 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 in the question whether these were fair comments or not, it 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. Therefore I do not think that on the ground of the exercise of the right of fair discussion this court should not grant the information.
I now come to the third ground of defence — the time which has elapsed and the conduct of the parties; and here I must express my great satisfaction that in regard to the question of time Colonel Calthorpe has met the case in a spirit which was to be expected from his position as an officer and a gentleman, and that he has not sought to take any advantage of the rule which requires that an application of this kind should be made with the utmost promptitude, but that his counsel have not dwelt upon the question of delay more than they fairly might do, as pointing out the difficulties which may have been thrown in his way in meeting this complaint by reason of the delay which has taken place, and with reference to the events which have taken place in the interval as grounds for discharging this rule. Now the first edition of the work was published in December, 1856; the second in the early part of 1857; and Lord Cardigan feeling himself (as he had just cause to feel himself) greatly aggrieved, applied to the commander-in-chief in January 1857, for a court martial upon Colonel Calthorpe, and did not come to this court for a criminal information. Now there is a rule, which has been long established here, that to obtain the intervention of this court by the exercise of its high jurisdiction — dispensing with the finding of a bill for libel by a grand jury — it is necessary to apply to it in the first instance, and that if the applicant has previously gone to some other tribunal, he cannot come to the court of Queen’s Bench. And therefore if the application had been founded on the publication of the first edition, the prior application to the commander-in-chief would have been a bar to this application. That, however, is not so; and indeed, as regards the first edition, in which this offensive imputation was not conveyed, there would have been no ground for the application to this court, for it would have been said that it did not convey that the absence of Lord Cardigan was owing to anything but accident. Then, as to the second edition, in which the passage in its objectionable form was first published, though the Earl did not apply for a court martial after its publication, he did not come to this court, but he discussed the matter in his place in parliament, and called upon the government to take steps for the removal of Colonel Calthorpe from the army, and also applied to the lord lieutenant to have him removed from the viceregal staff. In short, the Earl sought redress — and I am not saying this with any view of casting blame upon him for it — wherever he thought he might obtain it, but without coming to this court for redress; and the question is whether after his thus seeking redress in other quarters, we can, consistently with the rule well established, and always acted upon in this court, grant him the remedy he now applies for. I think we cannot.
But there is still a further ground upon which it appears impossible that we can make this rule absolute. I advert to that which has passed between Colonel Calthorpe and one of the friends authorized by Lord Cardigan to interfere in his behalf, and which I think altogether takes away the foundation upon which this rule was obtained. When this rule was applied for, it at once occurred to the court, when put in possession of the dates at which the publication of these editions took place, that consistently with the rules of this court as to the time at which such application should be made, it was impossible to grant the rule; but considering the difference between a periodical publication and a permanent work, copies of which may be on sale for a length of time, and of which the sale of each copy is a fresh publication, we thought that it was right that a case somewhat novel in its nature in that respect should be considered. For generally these applications are made in respect of publications in newspapers or journals; and especially, it seemed that the delay might be accounted for on the ground that the work to a certain extent had ceased to be published, or to be read as a matter of public interest, but that at the present time, owing to the appearance of a remarkable and striking work which has recently excited such an interest in the public mind, public attention has been again directed to the events of the Crimean war, and that it was likely that works written on the subject would be eagerly consulted to see if the author’s statements were correct; and that, therefore, though Lord Cardigan might have been disposed to let the matter slumber, and not to make it the subject of criminal proceedings, yet that there was a probability of his conduct being again called in question, it might be fair that he should call to account the man who had first assailed him. But, so far as I am concerned, and I think I may speak for my brethren, — we all believed that the 3rd edition was still on sale, and still in the hands of the public; and that if any additional interest was excited as to the events of the Crimean war, the work would again be resorted to and read, and we were not aware, and it would have made all the difference if we had been, that by an arrangement between the defendant and a friend of the applicant, all existing copies of the work had been destroyed, with some small exceptions. We are indeed told that this fact had not been brought to the knowledge of Lord Cardigan, and I am glad to hear it, for if it had been it ought to have been made known to us on the moving of the rule, and would have made all the difference. But though it was not made known to Lord Cardigan, it is a fact which we cannot disregard. It was the result of an arrangement with a friend sent by the Earl to remonstrate with the colonel, who said that, though he could not eat his own words, he would suppress the remaining copies of the work, and in consequence of this arrangement we find that 1,000 copies unbound were “wasted” or destroyed. Now, coupling that fact with the delay which has taken place, the ground upon which the rule was granted is removed. We could only overlook the delay which had taken place upon the ground that the work was still in course of publication, but it turns out that it has been in effect destroyed.
The ground upon which the rule was obtained therefore fails, and it follows that the rule cannot he made absolute; but at the same time, and notwithstanding that the case has taken up a considerable portion of time, I do not regret that the matter has been thus considered and discussed, for I think that it is of great importance, that with regard to an event such as this battle of Balaklava — an event so memorable in our history, and which so long as history endures will be one of those to which not only we, but our posterity to the latest period, will look back with pride and satisfaction as one of those great deeds of valour which have crowned our arms with glory, and nobly illustrated the British name — that in regard to such an event the reputation of every man who took a part in the achievements of that ever memorable day, from the highest to the lowest, shall he vindicated from any imputation of a want of that bravery, valour, and courage which all exhibited on that great occasion. It cannot be doubted by any one who reads. the passage in Colonel Calthorpe’s book with a fair, impartial mind, that it conveyed an imputation upon Lord Cardigan that he never entered the battery at all, but stopped short of it, and turned away from a want of courage to face the danger which he ought to have shared with those whom he led. Colonel Calthorpe is now constrained to acknowledge that this was altogether unfounded, and I must say that I agree with Mr Garth that the admission might have been made in a more generous spirit than it was, and that it was not enough merely to say that he was “satisfied” that he was wrong, without expressing any regret that for so many years he had persisted in a statement which imputed cowardice to an officer so much his senior in years and his senior in military service, and whose valour, certainly in an earlier part of the engagement, had been conspicuously displayed. Compelled at last to change his ground, I think he might have done so in a spirit more generous and liberal than was manifested on this occasion.
With regard to the question whether Lord Cardigan did all that a general should have done on that occasion, so long as all imputation against his personal character or conduct is withdrawn, Lord Cardigan must, like every one else who takes a part in public affairs, civil or military, be content to be subject to the censures of those who take upon themselves to sit in judgment upon public men. But those who criticise the conduct of men placed in such trying circumstances would do well to ask themselves how they would have acted in a similar state of things. And when we think what was the state of things in the scene of action on that memorable day — when we make allowance for the confusion which must have existed — when we reflect that the line which the Earl led so gallantly up to that battery was all but struck down and annihilated by that awful fire, and that a mere handful of men remained, who were at the dreadful moment in imminent peril of utter destruction — and when we consider their only chance of saving themselves and of avoiding a mere idle sacrifice of brave and valuable lives was to get away (as every man there seems to have done) as quickly as possible from a spot where it was idle and hopeless to remain, — when all the circumstances are taken into consideration, and we reflect further on the confusion which must have existed in the midst of such appalling danger, and appears to have existed even among those who have come forward to support the censures upon the conduct of Lord Cardigan, we cannot but think that though no doubt his conduct as a general is open to criticism, it ought to he a generous and liberal criticism, not one which seeks to fix a stigma on his courage, or his honour as an officer. I repeat I cannot help rejoicing, as the reputation and honour of every one who took part in that great scene ought to be dear to us all — I rejoice that this opportunity has been afforded of setting the noble Earl right in the estimation not only of his own profession, but of his countrymen in general. Having, however, said so much in expression if my own feelings, I have only to declare that consistently with the rules of this court, we cannot make this rule absolute, and therefore it must be discharged, but, under all the circumstances, without costs.
WIGHTMAN J.— I entirely concur in that opinion; but I do not consider it either necessary or expedient to occupy the valuable time of the court by repeating what has been so well stated by the Lord Chief Justice.
CROMPTON J.— I also am of the same opinion.
BLACKBURN J. — I likewise agree.
Rule discharged without costs.