libel was in excess of a fair comment; but it cannot in itself prevent the matter being libellous" (i).

The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed (j). On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all (k). Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying there is no evidence of the comment being otherwise than fair (1).

What acts

What is open to comment, matter of law. and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of

(i) Blackburn J., Campbell v. Spottiswoode, 32 L. J. Q. B. at p. 202; cp. Bowen L. J., 20 Q. B. Div. at p. 284.

(j) See however Wason V. Walter (1868), L. R. 4 Q. B. at p. 96, 38 L. J. Q. B. 34, and Stevens v. Sampson (1879), 5 Ex. Div. 53, 49 L. J. Q. B. 120; and per Lord Esher M. R. 20 Q. B. Div. at p. 281.

(k) Lord Esher M. R., Merivale v. Carson, 20 Q. B. Div. 275, 281.

(1) On this ground the actual decision in Henwood v. Harrison, note (g), last page, may have been right; see however the dissenting judgment of Grove J.

What is open to Comment, matter of law. "It is a matter of law for the court to determine whether the occasion of writing that which would otherwise be actionable repels the inference of malice, and thus constitutes it a privileged communication." Neeb v. Hope, 111 Pa. St. 145. See Hagan v. Hendry, 68 Md. 191; Briggs v. Garrett, 111 Pa. St. 414; Locke v. Bradstreet, 22 Fed. Rep. 772; Montgomery v. Knox, 20 Fla. 380; Stewart v. Hall, 83 Ky. 382; Wharton v. Wright, 30 Ill. App. 343.

There are times when a private individual places himself in a position to invite public criticism as by publishing a book, or a musical composition, or an economic theory or an industrial enterprise, when such

technical definition. Subject-matter of this kind may be broadly classed under two types.

The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs (m),

(m) Including the conduct at a public meeting of persons who attend it as private citizens: Davis v. Duncan (1874), L. R. 9 C. P. 396, 43 L. J. C. P. 185. A clergyman is a public officer, or at any rate the conduct of public worship and

whatever is incidental thereto is matter of public interest. Kelly v. Tinling (1865), L. R. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. Kelly v. Sherlock (1866), L. R. 1 Q. B. at p. 689, 35 L. J. Q. B. 209.

productions are subject to correct public discussion and fair comment, but only after publication.

"To say that he is an author, editor or reviewer, is but saying that he is engaged in a profession which has been and may be eminently useful to mankind, and which would therefore seem to call for peculiar protection and encouragement. That the law should allow his productions to be criticised with great freedom, is not denied. If he has made himself ridiculous by his writings, he may be ridiculed; if they show him to be vicious his reviewer may say so. But the latter has no right, therefore, to violate the truth in either respect." Cooper v. Stone, 24 Wend. 441. So, when one becomes a candidate for public office he thereby deliberately places his conduct, character, and utterances before the public for their discussion and consideration, and they may be criticised according to the taste of the writer or speaker, who will be protected in so doing, if in their statement of or reference to the facts they observe an honest regard for the truth. Belknap v. Ball, 83 Mich. 583; 47 N. W. Rep. 674; Walker v. Tribune Co., 29 Fed. Rep. 827; McAllister v. Free Press Co., 76 Mich. 356; Bailey v. Publishing Co., 40 Id. 257; Crane v. Waters, 10 Fed. Rep. 619; Express Printing Co. v. Copeland, 64 Tex. 354; Upton v. Hume (Oreg.), 33 Pac. Rep. 810.

"Let his talents, his virtues, and such vices as are likely to affect his public character be freely discussed, but no falsehoods be propagated." Brewer v. Weakley, 2 Overt. 99.

"His talents and qualifications, mentally and physically for the office he asks at the hands of the people, may freely be commented on in publications in a newspaper, and, though such comment be harsh and unjust, no malice will be implied, for these are matters of opinion of which the voters are the only judges; but no one has a right by a publication to impute to such candidate falsely crimes, or allegations affecting his character, falsely." Sweeney v. Baker, 13 W. Va. 184. See Rearick v. Wilcox, 81 Ill. 77; Smith v. Burns, 106 Mo. 94; Commonwealth v. Claps, 4 Mass. 163; Wheaton v. Beecher, 79 Mich. 443; 33 N. W. Rep. 503; Harwood v. Keech, 4 Hun, 389; Burke v. Muscarich, 81 Cal. 302; Lewis v. Few, 5 Johns. 1; Bays v. Hunt, 60 Ia. 251; Mott v. Dawson, 46 Ia, 533.

of those in authority, whether imperial or local (n), in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like.

Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits.

Whether comment is fair, matter of fact (if libellous construction possible). What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense beyond the fair (that is honest) expression of an unfavourable opinion, however strong, on that which the plaintiff has submitted to the public: this is only an application of the wider principle above stated as to the construction of a supposed libel (0). In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of

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

(0) Merivale v. Carson (1887), 20 Q. B. Div. 275, 58 L. J. Q. B. 548; Jenner v.

A' Beckett (1871), L. B. 7 Q. B. 11, 41 L. J. Q. B. 14. Qu. whether the dissenting judgment of Lush J. was not right.

Whether comment is fair, for the jury to determine. After the jury have been instructed by the court that a matter submitted to them is a proper subject for public comment, or that the occasion was privleged, it is their duty to determine whether the comment made by the defendant is fair in fact. See Hyde v. McCabe, 100 Mo. 413; 13 S. W. Rep. 875; Bacon v. Mich. Cent. R. R. Co., 66 Mich. 172; Howland Blake v. Mfg. Co., 156 Mass. 543; 31 N. E. Rep. 656; Lally v. Emery, 59 Hun, 237. And see, ante, p. 320.

the subject-matter. Courts of justice have not the means of applying so fine a test and a right of criticism limited to experts would be no longer a common right but a privilege.

The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of misconduct (p), or purporting to describe the actual contents of the work being criticised (q).

Defamation is not

Justification on ground of truth. actionable if the defendant shows that the defamatory matter was true; and if it was so, the purpose or motive with

(p) Davis v. Shepstone (1886), J. C. 11 App. Ca. 187, 55 L. J. P. C. 51.

(q) Merivale v. Carson (1887), 20 Q. B Div. 275.

Justification on ground of truth. Agreeing with the text is the rule in America that the truth of the charge, when specially pleaded and proved at the trial, is a complete defense in all civil actions of libel or slander. Mundy . Wight, 26 Kan. 177, citing Castle v. Houston, 19 Id. 417. See Root v. King, 4 Wend. 114; 21 Am. Dec. 102; Eveston v. Cramer, 54 Wis. 220; Moore v. Mauk, 3 Ill. App. 114; Scott v. Fleming, 17 Id. 561; Wonderly v. Nokes, 8 Blackf. 590; Mielenz v. Quasdorf, 68 Ia. 729; Riley v. Norton, 65 Id. 306; Forshee v. Abrams, 2 Id. 571; Gillis v. Peck, 20 Conn. 228; Brown v. Massachusetts Title Ins. Co., 15 Mass. 127; 23 N. E. Rep. 733; Cameron v. Tribune Assn., 7 N. Y. S. Rep. 737; McBee v. Fulton, 47 Md. 403; Parkhurst v. Ketchum, 6 Id. 406; Watson v. Moore, 2 Cush. 133; Snow v. Witcher, 9 Ired. 346; Payne v. Taylor, 14 La. An. 407; Tuunell v. Furguson, 17 Ill. App. 76; Patterson v. State, 12 Tex. App. 458; Welch v. Jugenheimer, 56 Ia. 11; Delaware S. F. & M. Ins. Co. v. Croasdale, 6 Houst. 181; Wheaton v. Beecher, 79 Mich. 443; 44 N. W. Rep. 927; Holmes v. Jones, 121 N. Y. 461; 24 N. E. Rep. 201; Morgan v. Rice, 35 Mo. App. 591; McLean v. Warring (Miss.), 13 So. Rep. 236; Davis v. Lyon, 91 N. C. 447. But proof of the truth of the charge cannot be introduced in justification under a general plea of not guilty. The plaintiff is entitled to have notice of the kind of defense which will be made at the trial and would of course be unprepared to meet proof of facts foreign to the pleadings. Sweeney v. Baker, 13 W. Va. 205. See Foss v. Hildredth, 10 Allen, 76; Snyder v. Andrews, 6 Barb. 56; Jarnigan v. Fleming, 43 Miss. 227; Curtis v. Perkins, 66 Barb. 610; Donaghue v. Gaffy, 53 Conn. 43; Hogan v. Hendry, 68 Md. 177; Barrows v. Carpenter, 1 Cliff. 204; Frederitze v. Odenwalder, 2 Yeates, 243; Powers v. Presgroves, 38 Miss. 227; Bourland v. Edison, 8 Gratt. 27;

which it was published is irrelevant. For although in the current phrase the statement of matter "true in substance and in fact" is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth

Sheahan v. Collins, 20 Ill. 325; 71 Am. Dec. 271; Hutchinson v. Wheeler, 35 Vt. 330; Padgett v. Sweeting, 65 Md. 404; Duval v. Davey, 32 Ohio St. 604; Thompson v. Bowers, 1 Dougl. 321; Porter v. Botkins, 59 Pa. St. 484; Thomas v. Dunaway, 30 Ill. 373; Johnson v. Stebbins, 5 Ind. 364; George v. Lemon, 19 Tex. 150; Thall v. Smiley, 9 Cal. 529; Ness v. Hamilton, 19 Johns. 349; Fidler v. Delavan, 20 Wend. 57; Van Derveer v. Sutphin, 5 Ohio St. 293; Holton v. Muzzy, 30 Vt. 365; Hathorn v. Congress Spring Co., 44 Hun, 608; Jones v. Townsend, 21 Fla. 440; Tallmadge v. Press Pub. Co., 7 N. Y. S. Rep. 895; Ball v. Evening Post Co., 38 Hun, 11; Blickenstaff v. Prim, 27 Ind. 527; Petrie v. Rose, 5 Watts & S. 364; Wagner v. Holdbrinner, 7 Gill, 296; Douge v. Pierce, 13 Ala. 127.

It is the established English doctrine that where truth is pleaded in justification of the defamation, the defendant will not be allowed to prove palliating circumstances in mitigation; and this doctrine has been followed in a few American decisions. See Alderman v. French, 1 Pick. 18; Shelton v. Simmons, 12 Ala. 466. But the prevailing rule in this country is to the contrary. West v. Walker, 2 Swan, 32; Hawkins v. Globe Printing Co., 10 Mo. App. 174; Landis v. Shanklin, 1 Ind. 92; Morehead v. Jones, 2 B. Mon. 210; Pallet v. Sargent, 36 N. H. 496; Snyder v. Andrews, 6 Barb. 57; Purple v. Horton, 13 Id. 9; Cooper v. Barber. 24 Id. 105.

If a defendant maliciously and for the purpose of spreading and perpetuating the slander, pleads the truth of the words in justification and fails to prove it, it may be regarded as evidence proving or tending to prove malice in speaking the words originally, and may tend indirectly to increase the damages for speaking the slanderous words charged in the declaration by showing the degree of malice in speaking them. See Klewin v. Bauman, 53 Wis. 245; Henderson v. Fox, 83 Ga. 233; 9 S. E. Rep. 839; Bennett v. Mathews, 64 Barb. 411; Fero v. Ruscoe, 4 N. Y. 162; Beasley v. Meigs, 16 Ill. 139; Spencer v. McMasters, 16 Ill. 405; Robinson v. Drummond, 24 Ala. 174; Doss v. Jones, 5 How. (Miss.) 158; Updegrove v. Zimmerman, 13 Pa. St. 619; Pool v. Devers, 30 Ala. 672; Richardson v. Roberts, 23 Ga. 215; Lea v. Robertson, 1 Stew. 138; Sweeney v. Baker, 13 W. Va. 207; Gilman v. Lowell, 8 Wend. 575; Marks v. Baker, 28 Minn. 162; Sloan v. Petrie, 15 Ill. 425; Aird v. Fireman's Journal Co., 10 Daly, 254; Murphy v. Stout, 1 Ind. 372; Soulty v. Miller, Ib. Id. 544; Decker v. Gaylord, 35 Hun, 584; Ransome v. Christian, 49 Ga. 491; Cavanaugh v. Austin, 42 Vt. 576; Pallet v. Sargent, 36 N. H. 496; Rayner v. Kinney, 14 Ohio (N. S.), 283; Thomas v. Dunaway 30 Ill. 373.