be attached to them: there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind (y). In scholastic language, it is not enough that the terms should be "patent" of the injurious construction; they must not only suffer it, but be fairly capable of it.

Repetition and reports may be libellous. The publication is no less the speaker's or writer's own act, and none the less makes him answerable, because he only repeats

(y) Lord Selborne, 7 App. Ca. 744; Lord Blackburn, ib. 778; Lord Bramwell, ib. 792, "I think that the defamer is he

who, of many inferences, chooses a defamatory one."

Repetition and reports may be libellous. The speaker is liable for the repetition of slanderous words although such words were a current report and generally believed by the speaker and others, to be true of the plaintiff. Knight v. Foster, 39 N. H. 576; Cade v. Redditt, 15 La. An. 492; Moberly v. Preston, 8 Mo. 462; State v. Burtman, 15 La. An. 166; Hayes v. Leland, 29 Me. 233; Stacy v. Portland Pub. Co., 68 Me. 279; Huson v. Dale, 19 Mich. 17; Clark v. Munsell, 6 Metc. 373, 389; Jones v. Chapham, 5 Blackf. 88; Mapes v. Weeks, 4 Wend. 659; Skinner v. Grant, 12 Vt. 456. See Hinkle v. Davenport, 38 Ia. 356; Thompson v. Bowers, 1 Dougl. 321; Mason v. Mason, 4 N. H. 110; Wheeler v. Shields, 3 Ill. 348; State v. Burtman, 15 La. An. 166; Beardsley v. Bridgmen, 17 Ia. 290; Haskins v. Lumsden, 10 Wis. 359; Skinner v. Powers, 1 Wend. 451; Carpenter v. Bailey, 53 N. H. 590.

But this fact may be shown in mitigation of damages. Farr v. Rasco, 9 Mich. 353.

"It is actionable to repeat in good faith slanderous words concerning another, on an occasion not privileged, though at the same time a disbelief in their truth is expressed, and the purpose of the repetition be to obtain advice as to the propriety of informing the plaintiff of the charges. Every repetition of a slander is a wilful publication of it, rendering the speaker liable to an action. Tale bearers are as bad as tale makers.'" Branstetter v. Dorrough, 81 Ind. 531. See Clarkson v. McCarty, 5 Blackf. 574; Cates v. Kellog, 9 Ind. 506.

*

The repetition of slander is not to be justified by merely naming the person who first uttered it. "Such repetition extends the slander, and gives it additional credit. It is therefore unlawful unless believed to be true, and uttered on a justifiable occasion." Stevens v. Hartwell, 11 Metc. 550. See Jarnigan v. Fleming, 43 Miss. 711; 5 Am. Rep. 514; Miller v. Kerr, 2 McCord, 285; 13 Am. Dec. 722; Skinner v. Powers, 1

what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them (*); slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth (a). "A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion," and "as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight

(z) Purcell v. Sowler (1877), 2 C. P. Div. 215, 46 L. J. C. P. 308.

(a) Watkin v. Hall (1868), L. R. 3 Q. B. 396, 37 L. J. Q. B. 125.

Wend. 451; Fowler v. Chichester, 26 Ohio St. 9; Sans v. Joerris, 14 Wis. 663, Haines v. Welling, 7 Ohio St. 253; Sexton v. Todd, Wright, 317; Larkins v. Tartar, 3 Sneed (Tenn.), 681; Clarkson v. McCarty, 5 Blatchf. 574; Carter v. Kellogg, 9 Ind. 506.

To the contrary it was held in Johnson v. St. Louis etc. Co. (65 Mo. 539), that he who repeats a slander may shield himself, if at the time of the repetition he gives the plaintiff an action against the original author. See Treat v. Browning, 4 Conn. 408; 10 Am. Dec. 156; Tatlow v. Jacket, 1 Harr. (Del.) 333; 26 Am. Dec. 399; Johnson v. Brown, 57 Barb. 118; Inman v. Foster, 8 Wend. 602; Trabue v. Mays, 3 Dana, 138; Dole v. Lyon, 10 Johns. 447; 6 Am. Dec. 346; Johnston v. Lance, 7 Ired. 448.

In the late case of Hardin v. Harshfield (Ky. App.-12 S. W. Rep. 779), it was held to be sufficient if the slanderous words were brought to the knowledge of the person influenced by them, by others, either with or without the authority of the defendant who spoke them. See Evans v. Smith, 5 T. B. Mon. 363; Kenney v. McLaughlin, 5 Gray, 3; Cole v. Perry, 8 Cow. 214; Root v. King, 7 Id. 613; Hastings v. Stetson, 126 Mass. 329; Shurtleff v. Parker, 130 Mass. 293; Cates v. Kellogg, 9 Ind. 506; Maples v. Weeks, 4 Wend. 659; Sheahan v. Collins, 20 Ill. 325; Freeman v. Price, 2 Bailey, 115; Dame v. Kenny, 25 N. H. 318; Walcott v. Hall, 6 Mass. 514; Johnson v. Stebbins, 5 Port. 364; Layton v. Harris, 3 Harr. (Del.) 406; Alderman v. French, 1 Pick. 1; Bodwell v. Swan, 3 Id. 376; Fowler v. Chickester, 26 Ohio St. 9; Sans v. Joerris, 14 Wis. 663; Fitzgerald v. Stewart, 53 Pa. St. 343. But see Terwilliger v. Wands, 17 N. Y. 61; Burt v. Advertiser Newsp. Co., 154 Mass. 238; 28 N. E. Rep. 1. If the defendant only repeats a report which originated from the plaintiff's carelessness, the plaintiff cannot recover. Fitzgerald v. Stewart, 53 Pa. St. 343.

to the slander" (b). Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all.

From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A. (c). As to the defendant's belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril.

3.-Exceptions.

Exceptions: fair comment.

We now have to mention

the conditions which exclude, if present, liability for words apparently injurious to reputation.

Nothing is a libel which is a fair comment on a subject

(b) Littledale J., McPherson v. Daniels (1829), 10 B. & C. 263, 273, adopted by Blackburn J., L. R. 3 Q. B. 400. The latter part of the 4th Resolution reported in the Earl of Northampton's case, 12 Co.

Rep. 134, is not law. See per Parke J., 10 B. & C. at p. 275.

(c) See Parkins v. Scott (1862), 1 H. & C. 153, 31 L. J. Ex. 331, p. 392, above.

Fair comment. In accord with the text it may be said that by fair comment, or "fair criticism," is meant the truthful statement of facts with such reasonable opinions thereon of the speaker or writer as are expressed with good motives and for justifiable ends. Public men, public affairs and all subjects fairly open for public discussion may be criticised, with good faith and for the public benefit.

Freedom of speech and the liberty of the press are guaranteed by the constitution, are esteemed as the most sacred of the rights inherent in the individual, and recognized as the palladium of civil liberty. The right to publicly discuss public things, either orally or by writing belongs to every person and may be indulged without restraint so long as it is not abused. See Snyder v. Tutten, 34 Md. 128; 6 Am. Rep. 814; Press Co. v. Stewart, 119 Pa. St. 584.

"There is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privi

fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situa

lege existing in the case, for instance, of the answers to inquiries about the character of servant. In the latter case, a bona fide statement not in excess of the occasion is privileged, although it turns out to be false. In the former what is privileged, if that is the proper term, is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libellous, he will not be privileged if those facts are not true. The reason for the distinction lies in the different nature and degree of the exigency and of the damages of the two cases. But what the interest of private citizens in public matters requires is freedom of discusion rather than statement. * The above distinction has been brought out more clearly

*

*

in English decisions than it has in those of the United States." Following Scheckell v. Jackson, 10 Cush. 25; Burt v. Advertiser Newsp. Co., 154 Mass. 242.

Liberty of the press. By liberty of the press is meant "the right to print and publish the truth, from good motives and justifiable ends." 3 Johns. Cas. 394. The freedom of the press is permitted by law for the public good, inasmuch as the press, properly conducted, is conceded to be the most potential means for detecting crime, exposing fraud, revealing malign influences and purifying and protecting public affairs. The right to print and publish a newspaper containing fair comment is identical with the right of the individual to liberty of speech.

"It is a right which in every free country belongs to the citizen, and the exercise of it, within lawful and proper limits, affords some protection at least against official abuse and corruption. But there is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives, by which that conduct was supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril; and must either prove the truth of what he says, or answer in damages to the party injured. The fact that one is the proprietor of a newspaper, entitles him to no privilege in this respect, not possessed by the community in general." Negley v. Farrow, 60 Md. 176. See Hamilton v. Eno, 81 N. Y. 126; Kingston v. Palmer, 18 Ia. 327; Pratt v. Pioneer Press Co., 30 Minn. 44; Bronson v. Bruce, 59 Mich. 467; Perret v. N. O. Times Newspaper, 25 La. An. 177; Detroit Daily Post Co. v. McArthur, 16 Mich. 451; Bathrick v. The Detroit Post and Tribune Co., 50 Id. 629; Barnes v. Campbell (Pa.), 14 At. Rep. 129; Mallory v. Pioneer Press Co., 34 Minn. 523; Commonwealth v. Blanding, 3 Pick. 304; 2 Kent. 17; Root v. King, 1 Cow. 928; s. c. King v. Root, 4 Wend. 113; Loutham v. Commonwealth, 79 Va. 196.

tion (d); and it is not correct to speak of utterances protected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. "The question is not whether the article is privileged, but whether it is a libel" (e). This is settled by the leading case of Campell v. Spottiswoode (f), confirmed by the Court of Appeal in Merivale v. Carson (g). On the other hand, the honesty of the critic's belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. Whatever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of

fair criticism" (h). One test very commonly applicable is the distinction between action and motive; public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. "Where a person has done or published anything which may fairly be said to have invited comment every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged

(d) See per Bowen L. J., Merivale v. Carson (1887), 20 Q. B. Div. at p. 282, 58 L. J. Q. B. 548.

(e) Lord Esher M. R., 20 Q. B. Div. at

p. 280.

(f) 3 B. & S. 769, 32 L. J. Q. B. 185 (1863).