arising out of the particular matters which are fair subjects of discussion, are protected from legal liabilities. And though there is a little confusion as to the relative province of the jury and of the judge, we think when the Lord Chief Justice spoke of leaving it to the jury whether the comments were fair, he merely meant upon the question whether the defendant wrote in the honest exercise of his rights (which would be essential to his protection), and that when he said "fair,” he meant not that they were to say whether the comments were in their opinion fair, but whether they were in their opinion so unfair as to be reckless and malicious. This is implied in the expression "fair spirit," and as in another observation made by the Lord Chief Justice, that if the observations were such as were so unreasonable and outrageous that no one could honestly have made them upon the materials before the writer they could not be protected. Some of those observations, in Campbell v. Spottiswoode, certainly seemed to imply that a public writer is to be held strictly in the exercise of his right of fair discussion to that which a jury may consider to be fair. We have given our reasons why we consider this a position not warranted by law, and one which would be fatal to freedom of discussion in the class of cases where it is of most importance, and in which public writers most require, and most deserve protection—that is, cases in which they are in opposition to popular prejudices and predilections. We may urge, further, that such a theory leaves it wholly uncertain in what sense the word “fair” is used, whether with reference to actual truth, as proved at the trial (with or without a justification), or to the truth as it might fairly appear to the writer on the materials before him, or merely with reference to the opinion of the jury. In the first view, "fair" would be the same as true, and deprive a public writer of all protection short of a justification. In the second view, it comes very near in substance to what we have been urging, only putting it more confusedly, and huddling up the province of the jury and of the judge, and confounding the question of what is fair subject of comment, with the question what is fair comment. But it falls short of the law, as we conceive, in this, that it refers to the jury something else than that which we contend is in such cases the sole question for them, viz., did the defendant honestly exercise his right, without malice? As to the third way of putting it, viz., referring it absolutely to the jury, we have altogether failed in our argument if we have not satisfied our readers that it is utterly contrary to law, and puts public opinion absolutely at the mercy of the jury. We think we have done some service to the profession in drawing attention to this matter, if the view we have taken is, as we hope we may consider it to be, the correct one, in order to prevent misapprehensions which might have prevailed as to the real effect of the decision. If we are wrong, however, in this, and the Court meant to determine that in no case is there privilege to a public writer, but that he is to be held strictly to what a jury may deem "fair," then, indeed, this decision is the heaviest blow ever yet given to freedom of discussion, and a retrogression of more than half a century in the liberty of the press. It can scarcely be so, however, as we would fain hope, because the question of fairness of comment was not left to the jury at all (as it ought to have been, had such been, the law), and the Court did not say that it ought to have been, but said that the matters of the imputation were not fair subjects of comment. If there was an error in that, it was an error not in the law, but in its application to the particular case, and we trust, therefore, that nothing can be deemed to have been decided in that case at variance with what we have ventured to lay down as the general law upon the subject. ART. II.—THE RIGHTS, DISABILITIES, AND USAGES OF THE ANCIENT ENGLISH PART VII.—The Parliamentary Regulation of Labour in the THE rural inhabitants of England-if really straitened in the time of Edward the Third, were destined to be relieved by the coming of an awful visitant— "Ther came a privee theef, men clepen Deth, Hence over a mile, within a gret village, Both man and woman, child, and hyne, and page." The plague of the years 1348 and 1349, called the Great Death, is said to have destroyed nearly two-thirds of the population. A mightier power than King Edward encountered him in the midst of his career, and forced him to utter the penitential words impressed upon some of his gold coins— Domine! Ne in furore tuo arguas me! At this time numbers of men were drawn off by the wars, while the growing manufactures attracted increasing numbers, and the pestilence was naturally followed by a lack and dearth of agricultural labour. The lack could hardly be supplied by human means, but the dearth was supposed to be within the compass of an Act of Parliament, and therefore after the following preamble: -- "Because a great part of the people, and especially of workmen and servants, late died of the pestilence, many, seeing the necessity of masters, and great scarcity of servants, will not serve unless they may receive excessive wages, and some rather willing to beg in idleness than by labour to get their living, . considering the grievous incommodities which of the lack, especially of ploughmen and such labourers, may hereafter come, It was ordained "That every man or woman in the realm of England, of whatsoever condition, whether freeborn or servile, if able-bodied and under the age of sixty years, not living by merchandise, nor having any certain craft, nor means of his own to live upon, nor land of his own, in the cultivation of which he may be employed, and not retained in any one's service, if required to labour in any service suitable to his condition, shall be bound to serve the person who chooses to engage him, for the wages, liveries, rewards, or salaries, accustomed to be offered in the districts in which he ought to serve, in the twentieth year of the King's reign-the year 1346— or in the five or six ordinary years immediately preceding." The breach of this ordinance was visited by heavy penalties, both upon the employers and the employed. No man might give alms to any person able to serve, under pain of imprisonment. At the end of two years there were complaints that the new statute of labourers had not been observed: "Forasmuch as it is given the King to understand that the said servants, having no regard to the said ordinance, but to their ease and singular covetise, do withdraw themselves to serve great men and other, unless they have livery and wages to the double or treble of that they were wont to take the said twentieth year.' And it seemed good that the wages of labourers and artificers should be definitely fixed. Another Act of this year, 1351, shook one of the bulwarks of freedom: it allowed a lord to seize his villein and allege villenage, in an action brought against him by the villien, although there might be a writ de Libertate Probanda depending. The law could no longer justly boast of its patronage of liberty.f The statutes concerning labourers were re-enacted or confirmed in the thirty-fourth and forty-second years of Edward the Third, and again in the second year of Richard the * 23 Ed. 3. † F. N. B. 177. Co. Litt. 124 b. Second. By the Act of 1360, a fugitive labourer might be outlawed, and after capture, might be imprisoned, and branded with the letter F if the person aggrieved demanded it; but this punishment of burning was deferred until the succeeding Michaelmas, and then could only be done by the advice of the magistrates, and the consent of the sheriff who kept the branding iron. The landlords were not merely unwilling to pay good wages, they tried to get agricultural service without payment; their tenants were still nominally subject to tributary labour, but in the counties around London, this labour had become almost obsolete; it was considered irksome and degrading. The attempt to enforce it seems to have been the main cause of the great rising in 1382. The Kentish men had been stirred by the preaching of John Ball; there was a general prejudice against the thrifty Flemish weavers who had settled in England, and were supposed to be taking bread out of English mouths ;; and we should say that the poll-tax had more than an accidental connexion with the rebellion; the poll-tax must have been odious, not as a tax alone, and as a tax levied in an unpleasant, oppressive manner, but as a symbol of villenage. Were English freemen to be slaves, were they to be subject to head-money—the old charge upon bondmen, to tributary labour, to every badge and burden of servitude? No sound can be more terrible than the voice of a maddened people. The disciples of John Ball came out with an uproar which had a powerful effect upon Chaucer, and Gower, and Walsingham, and all others who were conscious of it; they came out to conquer the realm with clubs, and rusty swords, and twibills; with bows ruddy by long hanging in smoky cottages, and a scanty provision of poorly trimmed King Richard bore himself well for once in his life, and Sir Robert Knollys-one of the ablest of the arrows. * * Holinshed. Walsingham's Chronicle in Camden's Collection, 248, 251. Chaucer's Tale of the Nun's Priest. Froissart, lxxv. |