I

impudent letter to the Metropolitan Society, he is too worthless to notice; if he be not the same man, it is a pity that two such beggarly souls could not be crammed into the same carcass." Nor is it within the limits of criticism to write of the publisher of a magazine, that he had inserted in his magazine a series of articles, the greater part of which were false and of a gross character; nor to write of a book publisher, that he published books of an immoral character, and ascribing to him the authorship of some silly rhymes.3 Where the plaintiff, a surgeon, had presented a petition to Parliament against empirics and irregular practitioners, and defendant, in a medical journal, had commented on the petition, reflecting on the plaintiff for ignorance generally, and particularly in chemical knowledge; and the judge had directed the jury, that if they considered the libel a fair comment on the petition, and not a malicious effusion against the plaintiff, and also if they considered that it imputed to him ignorance in chemistry only, and not in his profession as a surgeon, to find for the defendant, which they did; the court granted a new trial. Where the plaintiff,

1 Green v. Chapman, 4 Bing. N. C. 92; 5 Sc. 340. Not privileged to call plaintiff a degraded wretch. (Crotty v. McMahon, I Jones [Ir. Rep.] 465.)

Colburn v. Whiting, cited Cooke on Defam. 58, and see Cooper v. Stone, 24 Wend. 434. Where it is said not to be within the limits of criticism to impute to an author falsehood and unworthy motives in the production of a book.

3 Tabart v. Tipper, 1 Camp. 350; the rhymes were:

There was a little maid,

And she was afraid

Her sweetheart would come to her,

She bound up her head,

When she went to bed,

And she fastened her door with a skewer.

And were followed by this line :

Dixin' ego vobis Atticam quandam inesse elegantiam.

* Dunne v. Anderson, 3 Bing. 88. The reporter, erroneously as we think, puts this decision on the ground that presenting a petition to Parliament is an act not obnoxious to criticism. The error for which the new trial was granted was the direction to find for the defendant, if the imputation was of ignorance in chemistry only.

a "marine store dealer," had exhibited a placard in front of his store, offering certain prices for kitchen stuff, candle ends, pewter, plated goods, &c., and proposing to fetch them from private houses. Some observations upon this placard had been made by a magistrate officially; upon which the defendant published in a newspaper an article headed, "Encouraging servants to rob their masters, and imputing that the placard was calculated or intended to encourage servants to rob their masters. The placard was held to be a proper subject of criticism, and as the article did not go beyond the placard, or attack the plaintiff in anything not fairly arising out of that document, it was held privileged. Plaintiff, a naval architect,

1 Paris v. Levy, 9 C. B. N. S. 342 [in banc]; 2 Fos. & Fin. 71 [Nisi Prius]. It was held not to be a libel upon a dealer in coal in L., who had advertised genuine Franklin coal for sale, to publish the following advertisement: "Caution.-The subscribers, the only shippers of the true and original Franklin coal, notice that other coal dealers in L. than our agent, J. S., advertise Franklin coal. We take this method of cautioning the public against buying of other parties than J. S., if they hope to get the genuine article, as we have neither sold nor shipped any Franklin coal to any party in L., except our agent, J. S." (Boynton v. Remington, 3 Allen, 397.)

In a previous note (No. 2, p. 379) we directed attention to the views of Lord Chief Justice Cockburn on criticism; we recur to the subject to give some extracts from his charge in the case of Seymour v. Butterworth, reported at length in the Law Magazine and Law Review (London), February, 1863, and given in an abridged form in The Monthly Law Reporter (Boston), May, 1863; also reported 3 Fost. & Fin. 384. The plaintiff, a barrister, Recorder of Newcastle-upon-Tyne, and member of Parliament, sued for an alleged libel upon him, published in the Law Magazine. We find in the charge: (1.) A man's public political conduct is matter for the freest and fullest discussion on the part of a writer in a public journal. (2.) To animadvert on those who lend themselves to a system of buying and selling votes in Parliament, "is within the legitimate province of a public writer," but if he goes beyond that, and asserts that one "has bargained to sell his vote," it is a charge which no man, whether writing in public or in private, ought to dare to make. (3.) All men who occupy public positions must submit, now and then, to be a little roughly handled, and to be uncourteously and even unjustly treated, and people must not be too thin-skinned in reference to such matters. It has happened to everybody who has had anything to do with public life, to have, at one time or other, observations made upon his conduct and motives, which, in all probability, at the bottom of his heart, he has felt to be unfounded and unjust; but we submit to it, and why? because we know that, upon the whole, that bringing, by means of the public press, the conduct and motives of public men to the bar of public opinion, is

in 1867, submitted to the admiralty proposals for conversion of the old wooden line of battle ships of the navy

the best security for the discharge of public duty. (4.) It is claimed that, although the conduct of a public man is open to public discussion, his private conduct is not, and that it does not lie in the mouth of a man, who has attacked another with reference to his private conduct, to say, I did it only in the fair discharge of a public duty. But there is this distinction in this case, that, however true that proposition may be with reference to the private conduct of a private individual, the plaintiff does not occupy the position of a private individual. * *** It is impossible to say the plaintiff was not a public man, and that his conduct, if it had reference to his fitness to be a public man and to occupy a public position, was not a matter fit for discussion. (5.) I must dissent from the proposition, that where a man holds a public position in which integrity, honesty, and honor are essential and indispensable qualifications, if in his private conduct he shows he is destitute and devoid of those essential elements, that it is not a fair subject for public animadversion and hostile criticism, so long as the writer confines himself within the bounds of truth and within the limits of fair and just observation. Elsewhere in the charge his Lordship speaks of the rights and duties of a public writer, and generally speaks as if a public writer was a person with peculiar rights and duties, whereas the law recognizes no such office as that of a public writer, and gives him no privileges except as mentioned ante, note 2, p. 398. We do not consider sound the distinction between public men and private men, and public acts and private acts. To say, as is said in the fifth of the foregoing extracts, that one may criticise "so long as the writer confines himself within the bounds of truth and within the limits of fair and just observation," is merely saying one may publish the truth, and criticise where it is fair and just to do so. To limit criticism to just criticism, is in effect to toll the right of criticism, as it substitutes the judgment of the jury for the judgment of the critic. In another case, Strauss v. Francis (4 Fost. & Fin. 939), also tried before Lord Cockburn, the plaintiff was the author of a novel called “The Old Ledger," and the defendant the editor of the Athenæum. The defendant published a criticism of this novel, for which the plaintiff brought an action for libel, and on the trial withdrew a juror. The defendant then published an article under the heading "The Rights of Criticism," in which he republished the original criticism, with comments on the trial at which the plaintiff withdrew a juror. In an action for this second publication (4 Fost. & Fin. 1108), the judge charged the jury “that the action related to two separate matters of complaint, which should be kept distinct-first, the review on the work; next, the comments on the trial. The republication of the criticism on the work brought it under the notice of the jury, and it would be for them to say whether the criticism was fair and reasonable, or whether the writer of it was actuated by malice. That it was severe there could be no doubt, but the question was, was the severity warranted by the nature of the book? It was conceded that it was of vast importance to literature, and through literature, to the morals, religion, good taste, and good feelings of the public, that works which were laid before them for their perusal should be of such a character that they would improve and not demoralize. It was, therefore, right and wholesome that criticism, so long as it was fair and just, should be allowed the largest latitude. Authors courted criticism, because, if it were favorable, it would secure popularity for, and extend the circulation of, their works; but, as they challenged criticism, they should submit

into iron-clad turret ships. His proposals were rejected. In 1870, the iron-clad turret ship "Captain" capsized and

to it when it was adverse, so long as it was not prompted by recklessness or malice. It had been contended on behalf of the plaintiff that it was unfair to select isolated passages from a work and fasten on them, disparaging the spirit and character and object of the entire book; but that observation was open to this remark, that it was not because a work might, as a whole, be good, that a critic, if he found many passages of an obnoxious character, must abstain from commenting on them. That some of the passages read warranted the charge of indelicacy, some the charge of profanity, and many of them the charge of gross vulgarity, was, he thought, a matter as to which they could not fail to give an answer in the affirmative. The fair critic was a prosecutor who brought to the bar of public opinion offenders against good taste, against delicacy and propriety. The work in question was denounced as being abominable. That was, no doubt, a strong expression. It was for the jury, having the book before them, and having heard what had been said for and against it, to say whether the criticism in question was a fair representation of the character of the work. The jury found for the defendant. In another case, Campbell v. Spottiswoode (3 Fost. & F. 421, we quote from the London Quarterly Review of April, 1865, art. Libel), the plaintiff, the editor of the British Standard, had published in that newspaper a series of appeals on behalf of missions to China. The alleged libel was an article published in the Saturday Review, commenting on those appeals, and in which the plaintiff was called an "impostor," and charged "with scandalous and flagitious conduct." On a trial before Lord Cockburn, the plaintiff had a verdict, the judge charging the jury that the defendant had exceeded the limits of criticism, and added: "It cannot be said that, because a man is a public man, a writer is entitled not only to pass judgment upon his conduct, but to ascribe to him corrupt and dishonest motives." A motion for a new trial was denied; Lord Cockburn, in giving judgment (8 Law Times Rep. N. S. 201; 3 B. & S. 769; 3 Fost. & Fin. 421, note), said: "But it seems to me that a line must be drawn between hostile criticism upon a man's public conduct, and the motives by which that conduct may be supposed to be influenced, and that you have no right to impute to a man in his conduct as a citizen-even though it be open to ridicule or disapprobation-base, sordid, dishonest, or wicked motives, unless there is so much ground for the imputation that a jury shall be of opinion, not only that you may have honestly maintained some mistaken belief upon the subject, but that your belief is well founded and not without cause." We do not understand the part in italics. In our opinion, his Lordship should have said that you must not impute dishonest or wicked motives, unless you can establish the truth of the imputation. He came very near to our views in Turnbull v. Bird (2 Fost. & F. 508)—we still quote from the London Quarterly—in which he charged the jury: If you are of opinion that the defendant, in the comments that he made, was guilty of any willful misstatement of fact, either by the exaggeration of what actually existed, or by the partial suppression of what actually existed, so as to give it another color, or if he makes his comments with any misstatement of fact, which he must have known to be a misstatement, by the exercise of ordinary care, then he loses his privilege, and the occasion does not justify the publication." We should indorse this if the words in italics were omitted. (See, however, Cooper v. Lawson, 8 Adol. & El. 746.)

Publication, by reform commissioners, of a report imputing bribery to plaintiff,

sunk with all hands. This disaster caused great public excitement. To explain the matter, the defendant prepared a minute for presentation to Parliament. This minute criticised the plans of plaintiff. In a note to the board by the then controller of the navy, he said: "These plans would have no weight from the known antecedents of their author, but they derived weight from the approval of Mr. Watts," and recommended the rejection of said plans. The minute, including the above note was, by order of the admiralty, printed by the defendant, and publicly sold, before the meeting of the Parliament to which the minute was addressed. On the trial it being conceded there was no malice, the judge nonsuited plaintiff, on the ground that the publication was privileged as a fair criticism on a matter of public importance. Held by a divided court (two judges against one) that the nonsuit was right, and by the dissenting judge it was not so clearly privileged as to warrant the taking the case from the jury.'

§ 256 a. The conduct of a party to a suit, in giving his testimony as a witness in a court of justice, is a fair subject of comment. The administration of justice is a matter of public interest, and therefore a proper subject of public comment. Where the libel was a comment

giving his name as one who had been sued for bribery, was held not privileged. (Wilson v. Reed, 2 Fost. & F. 149.) The plaintiff was the publisher of Zadkiel's Almanac, an astrological publication; the defendant charged that the plaintiff, being the publisher of that silly work, had gulled the public by means of a magic ball of crystal in which future events could be seen; held that this could be justified only by proving that plaintiff, knowing it to be an imposture, took money from the public for the use of said ball. (Morrison v. Belcher, 3 Fost. & Fin. 614; see Eastwood v. Holmes, I Fost. & Fin. 347.) A publication of a report of an inspector of charities under the charitable trust act, containing a letter written several years previously, reflecting on plaintiff, held conditionally privileged. (Cox v. Feeney, 4 Fost. & Fin. 13.)

1 Henwood v. Harrison, Law Rep. 7 C. P. 606.

Kane v. Mulvany, 2 Ir. C. L. 402; and see Hedley v. Barlow, 4 Fost. & Fin.