No better illustration could be found than the case of Merrivale and Wife vs. Carson, in which a dramatic critic said of a play: "The Whip Hand... gives us nothing but a hash-up of ingredients which have been used ad nauseam, until one rises in protestation against the loving, confiding, fatuous husband with the naughty wife, and her double existence, the good male genius, the limp aristocrat, and the villainous foreigner. And why dramatic authors will insist that in modern society comedies the villain must be a foreigner, and the foreigner must be a villain, is only explicable on the ground that there is more or less romance about such gentry. It is more in consonance with accepted notions that your continental croupier would make a much better fictitious prince, marquis, or count, than would, say, an English billiardmaker or stable lout. And so the Marquis Colonna in The Whip Hand is offered up by the authors upon the altar of tradition, and sacrificed in the usual manner when he gets too troublesome to permit of the reconciliation of husband and wife and lover and maiden, and is proved, also much as usual, to be nothing more than a kicked-out croupier." The jury found that this amounted to falsely setting out the drama as adulterous and immoral, and was not the criticism of a fair man. Granting that there was the general imputation of immorality, it seems, justly considered, a matter of the critic's opinion. Is not the critic in effect saying, "To my mind the play is adulterous, no matter what any one else may think, the play suggests immorality to me?" And if this is the honest opinion of the critic, no matter how much juries may differ from him, it would seem that to stifle this individual expression was against public policy, the very ground on which fair criticism becomes a universal right. It does not very clearly appear that the case of Merrivale and Wife vs. Carson was decided exclusively on the question whether the criticism was that of a fair man, but this was the leading point of the VOL. 97-NO. 5

case. The decision and the doctrine it sets forth seem open to much doubt.

Criticism must never depart from a consideration of the work of the artist or artisan, or the public acts of a person, to attack the individual himself, apart from his connection with the particular work or act which is being criticised. The critic is forbidden to touch upon the domestic or private life of the individual, or upon such matters concerning the individual as are not of general public interest, at the peril of exceeding his right. Whereas, in Fry vs. Bennett, an article in a newspaper purported to criticise the management of a theatrical troupe, it was held to contain a libel, since it went beyond matters which concerned the public, and branded the conduct of the manager toward his singers as unjust and oppressive. J. Fenimore Cooper was the plaintiff in another suit which illustrates the same rule of law. This author had many a gallant engagement with his critics, and, though it has been said that a man who is his own lawyer has a fool for a client, Mr. Cooper, conducting his own actions, won from many publishers, including Mr. Horace Greeley and Mr. Webb. In Cooper vs. Stone the facts reveal that the author, having completed a, voluminous Naval History of the United States, in which he had given the lion's share of credit for the Battle of Lake Erie, not to the commanding officer, Oliver H. Perry, but to Jesse D. Elliot, who was a subordinate, was attacked by the New York Commercial Advertiser, which imputed to the author 'a disregard of justice and propriety as a man," represented him as infatuated with vanity, mad with passion, and publishing as true statements and evidence which had been falsified and encomiums which had been retracted. This was held to exceed the limits of fair criticism, since it attacked the character of the author as well as the book itself. The line, however, is not very finely drawn, as may be seen by a comparison of the above case with Browning vs. Van Rensselaer, in which the

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plaintiff was the author of a genealogical treatise entitled Americans of Royal Descent. A young woman, who was interested in founding a society to be called the "Order of the Crown," wrote to the defendant, inviting her to join and recommending to her the book. The latter answered this letter with a polite refusal, saying that she thought such a society was un-American and pretentious, and that the book gave no authority for its statements. The court said that this, even though it imputed that the author was at fault, was not a personal attack on his private character.

An intimate relationship almost always exists between the doer of an act which interests the public and the act itself; the architect is closely associated with his building, the painter with his picture, the author with his works, the inventor with his patent, the tradesman with his advertisement, and the singer with his song; and the critic will find it impossible not to encroach to some extent upon the personality of the individual. It seems, however, that the privilege of comment extends to the individual only so far as is necessary to intelligent criticism of his particular work under discussion. To write that Mr. Palet's latest picture shows that some artists are only fit to paint signs is a comment on the picture, but to write, apart from comment upon the particular work, that Mr. Palet is only fit to paint signs is an attack upon the artist, and if it is untrue, it is libel for which the law allows recovery.

No case presents a more complete confusion of the individual and his work than that of an actor. His physical characteristics, as well as his personality, may always be said to be presented to general public interest along with the words and movements which constitute his acting. The critic can hardly speak of the performance without speaking of the actor himself, who, it can be argued, presents to a certain extent his own bodily and mental characteristics to the judgment of the public, almost as much as do the os

sified man, and the fat lady of the side show.

The case of Cherry vs. the Des Moines Leader will serve to illustrate how far the critic who is not actuated by malice may comment upon the actors as well as the performance, and still be held to have remained within the limits of fair criticism. The three Cherry sisters were performers in a variety act, which consisted in part of a burlesque on Trilby, and a more serious presentation entitled, The Gypsy's Warning. The judge stated that in his opinion the evidence showed that the performance was ridiculous. The testimony of Miss Cherry included a statement that one of the songs was a "sort of eulogy on ourselves," and that the refrain consisted of these words:

"Cherries ripe and cherries red;

The Cherry Sisters are still ahead." She also stated that in The Gypsy's Warning, she had taken the part of a Spaniard or a cavalier, and that she always supposed a Spaniard and a cavalier were one and the same thing. The defendant published the following comment on the performance: "Effie is an old jade of fifty summers, Jessie a frisky filly of forty, and Addie, the flower of the family, a capering monstrosity of thirtyfive. Their long, skinny arms, equipped with talons at the extremities, swung mechanically, and anon waved frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and fox-trot, strange creatures with painted faces and hideous mien." This was held to be fair criticism and not libelous; for the Misses Cherry to a certain extent presented their personal appearance as a part of their performance.

The critic must not mix with his comment statement of facts which are not true, since the statement of facts is not criticism at all. In Tabbart vs. Tipper, the earliest case on the subject, the de

fendant, in order to ridicule a book published for children, printed a verse which purported to be an extract from the book, and it was held that this amounted to a false accusation that the author had published something which in fact he had never published; it was not comment, but an untrue statement of fact. So when, as in Davis vs. Shepstone, the critic, in commenting upon the acts of a government official in Zululand, falsely stated that the officer had been guilty of an assault upon a native chief, the critic went far beyond comment, and was liable for defamation. Not unlike Tabbart vs. Tipper is a recent case, Belknap vs. Ball. The defendant, during a political campaign, printed in his newspaper a coarsely executed imitation of the handwriting of a political candidate of the opposing party, and an imitation of his signature appeared beneath. The writing contained this misspelled, unrhetorical sentence: "I don't propose to go into debate on the tarriff differences on wool, quinine, and such, because I aint built that way." Readers were led to believe that this was a signed statement by the candidate, and the newspaper was barred from setting up the plea that the writing was only fair criticism made through the means of a burlesque; it was held that imputing to the plaintiff something he had never written amounted to a false statement of fact, and was not within fair comment.

The dividing line between opinion and statement of fact is, however, most troublesome. Mr. Odgers, in his excellent work on Libel and Slander, remarks that the rule for the distinction between the two should be that "if facts are known to hearers or readers or made known by the writer, and their opinion or criticism refers to these true facts, even if it is a statement in form, it is no less an opinion. But if the statement simply stands alone it is not defended." Applying this rule, what if a critic makes this simple statement: "The latest book of Mr. Anonymous is of interest to no intelligent man"? According to the opinion of Mr. Odgers,

it would seem that such a sentence standing alone was a statement of fact, whereas it is ventured that no one can think that the critic meant to say more than that in his opinion the book was not interesting. In Merrivale and Wife vs. Carson, the jury found that the words used by the critic described the play as adulterous, and the court said that this was a misdescription of the play, -a false statement of fact; but an adulterous play may be one which is only suggestive of adultery; and even if the critic had baldly said that the play was adulterous, many of us would think that he was only expressing his opinion.

Since the test of whether the statement is of opinion or of fact lies, not in what the critic secretly intended, but rather in what the hearer or reader understood, the question is for the jury, and, it seems, should be presented to them by the court in the form: "Would a reasonable man under the circumstances have understood this to be a statement of opinion or of fact?"

One other care remains for the critic: he must not falsely impute a bad motive to the individual when commenting upon his work. No less a critic than Ruskin was held to have made this mistake in the instance of his criticism of one of Mr. Whistler's pictures. This well-known libel case may be found reported in the Times for November 26 and 27, 1878. "The mannerisms and errors of these pictures," wrote Mr. Ruskin, alluding to the pictures of Mr. Burne-Jones, "whatever may be their extent, are never affected or indolent. The work is natural to the painter, however strange to us, and is wrought with utmost care, however far, to his own, or our desire, the result may yet be incomplete. Scarcely as much can be said for any other picture in the modern school; their eccentricities are almost always in some degree forced, and their imperfections gratuitously if not impertinently indulged. For Mr. Whistler's own sake, no less than for the protection of the purchaser, Sir Coutts Lindsay ought not to have admitted works

into the gallery in which the ill-educated conceit of the artist so nearly approached the aspect of wilful imposture. I have seen and heard much of cockney impudence before now, but never expected to hear a coxcomb ask 200 guineas for flinging a pot of paint in the public's face."

Out of all this, stinging as it must have been to Mr. Whistler, unless, since he loved enemies and hated friends, he therefore found pleasure in the metaphorical thrashings he received, the jury could only find one phrase, “wilful imposture," which, because it imputed bad motives, overstepped the bounds of fair criticism.

Mr. Odgers's treatise states the rule to be that "when no ground is assigned for an inference of bad motives, or when the writer states the imputation of bad motives as a fact within his knowledge, then he is only protected if the imputation is true. But when the facts are set forth, together with the inference, and the reader may judge of the right or wrong of the opinion or inference, then if the facts are true, the writer is protected." It is, however, difficult to see why the imputation of bad motives in the doer of an act or the creator of a work of art should in any case come under the right of fair comment, for, no matter how bad the motives of the individual may be, they are of no consequence to the public. If a book is immoral, it is immaterial to a fair criticism whether or not the author meant it to have an immoral effect; the public is not helped to a proper judgment of the book by any one's opinion of the motives of the author, and if the book is bad in its effect, it makes it no better that the author was impelled by the best of intentions, or makes it no worse that the author was acting with the most evil designs. And if, as in most of the cases that have arisen, the imputation is one of insincerity, fraud, or deception practiced upon the public, where, for example, the critic, in commenting upon a medical treatise, about which he had made known all the facts, said that he thought the au

thor wrote the book, not in the interest of scientific truth, but rather to draw trade by exploiting theories which he did not believe himself, — it would seem that this charge of fraud or deception should not be protected as a piece of fair comment, but that it should be put upon an equality with all other imputations against an individual, which if untrue and damaging would be held to be libel or slander. Under Mr. Odgers's rule, in making a comment upon the acts of a public officer, one could say, “In pardoning six criminals last week the governor of the province, we think, has shown that he wishes to encourage criminality." No court would, we think, hold this to be within the right of fair comment upon public matters. If the critic had said, however, "We think that the governor of the province, in pardoning six criminals, encouraged criminality," all the true value of criticism remains, and the imputation that the public officer acted from an evil motive is stripped away. The best view seems to be that the right of fair comment will not shield the false imputations of bad motive.

Whether or not the critic may impute to the individual certain opinions does not seem to be settled, but logically this would be quite as much a statement of fact, or a criticism directed at the individual, as an imputation of bad motives. A few courts in this country have expressed a leaning to the opposite view, but the ground upon which they place their opinion does not appear.

From the legal point of view, then, we as critics are all held to a high standard of fairness. We must not comment upon any but matters of public interest. We must be honest and sincere, but we may express any view, no matter how prejudiced or exaggerated it may be, so long as it does not exceed the limits to which a reasonably fair man would go; we must not attack the individual any more than is consistent with a criticism of that which he makes or does, and we must not expect that we are within our right of

comment when we make statements of fact or impute to the individual evil motives.

All the world asks the critic to be hon

est, careful, above spite and personalities, and polite enough not to thrust upon us a consideration in which we have no interest. The law demands no more.

I

THREE years ago, the author called the attention of the Atlantic's readers to the remarkable concentration of banking interests in the city of New York.1 It was even then apparent that the larger life insurance companies were an important factor in the financial world, and that the money under their control was being freely utilized in the speculative enterprises of the time. The possible dangers of such relations were so manifest that the author was constrained to refer to them in his account of the general banking situation. But at that time, although rumors were abundant, evidence of actual wrong-doing was difficult to obtain; and the most that could be said was that it was unfortunate "to have life insurance and trust companies drawn so largely into the domain of speculative finance.

The shocking disclosures of the past year have proved that the alliance of insurance with speculative finance was not only improper, upon its very face, but actually productive of such abuses as the slightest knowledge of human nature. should have led one to expect. Yet the conditions had existed for many years without arousing serious criticism, and there is reason to think that even now their full significance is not generally understood. The present article, therefore, is devoted to this single phase of the life insurance situation. It proposes to show that the participation of the larger com1 Atlantic Monthly, August, 1903.

panies in Wall Street speculation explains no small part of the evils that have existed in the past, and points clearly to dangers that will be encountered in the future. It may indicate, also, some of the fundamental conditions which must be met by any plans for genuine reform.

Why the great insurance companies entered the domain of speculation is not hard to understand. For the better part of a generation, they have engaged in a mad race for business, which has been so far successful as to increase enormously the size and scope of their operations. The rapid growth of the funds which they were obliged to hold as a reserve against future liabilities, and the accumulation of large surpluses over and above reserve requirements, placed in their hands an enormous amount of capital for which they were obliged to find some kind of investment. At the present time the gross assets of legal-reserve companies of the United States exceed two and one half billion dollars; and of this amount, something less than one half belongs to the New York Life, the Equitable, and the Mutual Life of New York, the "Big Three" of the insurance world. How to invest, safely and profitably, such pro

2 These surpluses, which were supposed to be held for the benefit of holders of "deferreddividend" policies, were probably the strongest single force making for demoralized, speculative management. Practically, the companies were not accountable for the use made of such funds; and could therefore waste millions, or lose millions in speculative enterprises, without serious danger of discovery.