Mr. Fraser versus Mr. Berkeley. 59 



such contributions as may be offered him for insertion in the work 

 he superintends; arid he is responsible that nothing of an objectionable 

 character be admitted into it. Should an article of a libellous nature 

 be notwithstanding published, the writer or the editor in the first 

 instance ought to be looked to, and if he be not forthcoming the onus 

 lies on the publisher to afford to the injured party satisfaction or 

 redress. But it would be extremely unjust to make the publisher 

 responsible for the contents of every work which he vends, and with 

 the contents of which he may be totally unacquainted, even after it 

 has been exposed on his counter for sale. It is not his business ; he 

 traffics in books merely as articles of commerce : but as he derives a 

 profit in their sale, he is, in the eye of the law, properly regarded as 

 a particeps criminis in any slander they may propagate. This security 

 is necessary to protect society against anonymous irresponsible writers ; 

 and therefore the publisher is held accountable for the works that he 

 sends to the world, in precisely the same way that the endorser of a 

 bill of exchange becomes liable if the manufacturers of that bill the 

 drawer and accepter allow it to be dishonoured. 



The first step then to be taken by Mr. Berkeley, ought to have 

 been, as the Chief Baron remarked in his charge to the jury, "to 

 diligently seek out the author" of the offensive article, and at his 

 hands demand reparation. But what does he ? Three days after the 

 publication of the review he goes to Mr. Fraser's shop, aided by his 

 brother and an individual whose name has not transpired, inflicts 

 on a highly respectable citizen in the peaceable exercise of his busi- 

 ness, a brutal and violent assault, from the effects of which he had 

 not at the time of the trial perfectly recovered. If we consider the 

 time that elapsed between the publication of the alleged libel and the 

 assault, it will afford pregnant proof that it was coolly premeditated. 

 And when we further contrast the physical powers of Mr. Berkeley 

 with those of Mr. Fraser, the one a large muscular man, the other a 

 person of small stature and slender frame the former assisted and 

 cheered on to his heartless work by two companions the latter alone 

 unprotected unarmed prostrate and bleeding beneath the re- 

 peated blows of his merciless antagonist, we cannot help thinking, 

 that the amount of damages awarded Mr. Fraser was disproportion- 

 ately small. They were either inadequate or absurd. Inadequate, 

 if the jury believed that Mr. Fraser had been made to pay the pe- 

 nalty of an act which the real author was prepared, if called upon 

 to avow and defend. Inadequate, if they intended the miserable 

 sum of one hundred pounds as a proper compensation for the outraged 

 feelings, and severe injuries sustained in the person of the plaintiff; 

 and absurd if they imagined, by the infliction of such a paltry fine 

 upon a man moving in the high sphere and possessing the large for- 

 tune of Mr. Berkeley, that they marked their honest and fearless 

 reprobation of a deliberate breach of the laws of honour of man- 

 kind, and of their country. 



