the medium of a jury. Mr. Ruskin did not retract one syllable of his criticism upon Mr. Whistler's pictures. He believed he was right. For nearly all his life he had devoted himself to criticism for the sake of the art he loved, and he asked the jury not now to paralyze his hand. If they gave a verdict against him, he must cease to write. It would ́ be an evil day for the art of this country if Mr. Ruskin were prevented from indulging in proper and legitimate criticism, and pointing out what was beautiful and what was not, and if critics were all reduced to a dead level of forced and fulsome adulation. . . .

[Witnesses having been called on both sides, and] the learned counsel on each side having addressed the jury,

Baron HUDDLESTON, in summing up, said that if a man committed to paper language disparaging to another and holding him up to hatred, contumely, and contempt, he was guilty of a libel. The law presumed malice, but that might be rebutted by the author of the language proving that it was a fair and bona fide criticism. Therefore, the question in the present case for the jury was whether Mr. Ruskin's pamphlet was a fair and bona fide criticism upon the plaintiff's works; and it was for the defendant to make that out. It was of the last importance that a critic should have full latitude to express the judgments he honestly formed, and for that purpose there was no reason why he should not use ridicule as a weapon; but a critic must confine himself to criticism, and not make it the veil for personal censure, nor allow himself to run into reckless and unfair attacks merely from the love of exercising his power of denunciation.

The jury, after being absent for an hour, came into court for an explanation from the learned judge of the words "wilful imposture" in the alleged libel, and, again retiring, came back shortly afterwards and gave a verdict for the plaintiff - Damages, one farthing.

The learned Judge gave judgment for the plaintiff, but without

costs.

934. HUNT v. Star NEWSPAPER Co. (1908. L. R. 2 K. B. 309, 319.) FLETCHER MOULTON, L. J. . . . The law as to fair comment, so far as is material to the present case, stands as follows: (1) In the first place, comment in order to be justifiable as fair comment must appear as comment, and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment. Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. (2) In the next place, in order to give room for the plea of comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist, the foundation of the plea fails. This has been so frequently laid down authoritatively that I do not need to dwell further upon it. . . . (3) Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation. This is the language of KENNEDY, J., in the case to which I have just referred. It is based on the judgments in Camp

bell v. Spottiswoode [supra, No. 932], a case of the highest authority, and is, in my opinion, unquestionably a true statement of the law. . . . To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence.

935. BURT v. ADVERTISER NEWSPAPER COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1891

154 Mass. 238, 28 N. E. 1

TORT, for alleged libels, contained in articles published in January and February, 1889, in successive issues of the Boston Daily Advertiser. The declaration was in four counts. The first article, which was referred to in the first count, and was entitled "A Plague Spot," contained the following:

"It is surprising how the New York press has rallied unitedly about the frauds which, at that custom-house, cheat the government out of from ten million dollars to thirty million dollars annually. It is not surprising in the Evening Post, whose close relation with the Burts is understood. One Burt is the broker of the Havemeyer sugar people, and boasts that he makes more than fifty thousand dollars a year in that interest by his influence in securing re-appraisals in the valuations of sugar imported by that great house. The other is Naval Officer of that port, and his long-time connection with some of the most disreputable elements in the New York custom-house has been a matter of public knowledge."

The second article, which was referrred to in the second count, was entitled "The New York Scandal," and contained the following:

"The New York custom-house for years - and we say this on authorityhas been the scene of the most corrupt violations of the customs laws the country has ever seen. . . The more this matter is shown up, and especially by the defences printed by the New York Evening Post, the more evident it is that the worst nest of rascals in the federal administration has been brought to light. . . ."

Trial in the Superior Court, before DUNBAR, J., who, after a verdict for the plaintiff, allowed exceptions, which, so far as material to the points decided, appear in the opinion.

A. Hemenway & H. N. Sheldon, for the defendant.

R. M. Morse, Jr. & F. J. Stimson, for the plaintiff.

HOLMES, J. In this case there must be a new trial. We shall state the grounds on which we come to this conclusion, and shall discuss such of the rulings as dealt with questions which are likely to come up again. Some matters not likely to recur we shall pass over.

The first question which we shall consider is raised by the presiding judge's refusal to rule that the articles were privileged. The requests referred to each article as a whole. Each article contained direct and

indirect allegations of fact touching the plaintiff, and highly detrimental to him, charging him with being a party to alleged frauds in the New York custom-house. Some or all of these allegations we must take to be false. In our opinion the rulings asked were properly refused.

We agree with the defendant, that the subject was of public interest, and that in connection with the administration of the custom-house the defendant would have a right to make fair comments on the conduct of private persons affecting that administration in the way alleged. But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privilege existing in the case, for instance, of answers to inquiries about the character of a 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 damage in the two cases. In these, as in many other instances, the law has to draw a line between conflicting interests, both intrinsically meritorious. When private inquiries are made about a private person, a servant, for example, it is often impossible to answer them properly without stating facts, and those who settled the law thought it more important to preserve a reasonable freedom in giving necessary information than to insure people against occasional unintended injustice, confined as it generally is to one or two persons. But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case. If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer. Sheckell v. Jackson, 10 Cush. 25, 26.

The distinction to which we have referred has been brought out more clearly in England than it has been in our own decisions. Thus, in Davis v. Shepstone, 11 App. Cas. 187, 190, LORD HERSCHELL says:

"It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. In the present case the appellants, in the passages which were complained of as libellous, charged the respondent, as now appears without foundation, with having been guilty of

specific acts of misconduct, and then proceeded on the assumption that the charges were true, to comment upon his proceedings in language in the highest degree offensive and injurious; not only so, but they themselves vouched for the statements by asserting that though some doubt had been thrown upou the truth of the story, the closest investigation would prove it to be correct. In their Lordships' opinion there is no warrant for the doctrine that defamatory matter thus published is regarded by the law as the subject of any privilege. . .

The foregoing language is applicable to the case at bar. The defendant in all the articles makes statements of facts on its own behalf, and in the second article fairly may be understood to intimate that the private sources of information alleged by the words "we say this on authority," apply not merely to the existence of corruption in the New York custom-house, but to the plaintiff's connection with it. The articles published by the defendant, so far as they contained false statements, were not privileged. We should add, however, with reference to another trial, that there was evidence that some of the charges in the articles were true, and so far as the jury might find them to be so, inasmuch as the matter under discussion was a matter of public concern, the defendant would be justified not only in making those charges, but in free and open comment and criticism in regard to them. . . . Exceptions sustained.

ERROR to Mecosta. (JUDKINS, J.) Argued November 19, 1885. Decided February 3, 1886. Case. Plaintiff brings error. Reversed. At the general election in the year 1882, the plaintiff was a candidate for Congress. The defendant was then editor and publisher of the Big Rapids Current, a newspaper published in the city of Big Rapids, in the county of Mecosta, and circulated in that and other counties in the congressional district which was sought to be represented in Congress by the plaintiff, as well as in other counties of the State outside of said district. The defendant, through the columns of his newspaper, opposed the election of the plaintiff to the office for which he was a candidate, and supported the election of the opposing candidate. After the plaintiff was placed in nomination for the office, and before the election to be held for representative in Congress, the defendant published in his paper, and circulated throughout the district, and sent the same to exchanges in other parts of the State, certain articles concerning the plaintiff which the plaintiff claims to be libellous, and this action is brought to recover damages therefor. At the trial the

publication was not disputed. . . . . It charged him with the crime of forgery; of the theft of deposits of poor men and women; and of cheating laboring men of their hard earnings. . . . .. The judge instructed the jury relative to qualified privilege as follows: . . . “If it is made to appear that the criticism is just, is proper, is made in good faith, is made without malice and for the public good, for the purpose, as supposed by the person at the time, to prevent an incompetent and unfit and unsuitable person from receiving the majority of the votes of the electors of the district, or as the case may be, that article is prima facie privileged."

Glidden & Marsh and Frank Dumon, for appellant: . . . False and calumnious publications, concerning candidates for office, are not privileged....

Stone & Hyde, for defendant: . . . Public criticism of the actions, character and motives of persons holding official positions, which are elective, made on lawful occasion and upon probable cause, are also, prima facie, privileged. . . .

CHAMPLIN, J. [after stating the facts as above]: As was said by the Supreme Court of West Virginia in Sweeney v. Baker, 13 W. Va. 183:

"The fact that one is a candidate for office in the gift of the people affords, in many instances, a legal excuse for publishing language concerning him as such candidate for which publication there would be no legal excuse if he did not occupy the position of such candidate, whether the publication is made by the proprietors of a newspaper, or by a voter or other person having an interest in the election. The conduct and actions of such candidate may be freely commented upon, his acts may be canvassed, and his conduct boldly censured. Nor is it material that such criticism of conduct should, in the estimate of the jury, be just. . . . The only limitation to the right of criticism of the acts or conduct of a candidate for an office in the gift of the people is, that the criticism be bona fide. As this right of criticism is confined to the acts or conduct of such candidate, whenever the facts which constitute the act or conduct criticised are not admitted, they must of course be proven. . . No one has a right by a publication to impute to such candidate, falsely, crimes, or publish allegations affecting his character falsely."

The electors of a congressional district are interested in knowing the truth, not falsehoods, concerning the qualifications and character of one who offers to represent them in Congress; and it is the right and privilege of any elector, or person also having an interest to be represented, to freely criticise the act and conduct of such candidate, and show, if he can, why such person is unfit to be intrusted with the office, or why the suffrages of the electors should not be cast for him. But defamation is not a necessary and indispensable concomitant of an election contest. "Slander," says Judge Overton, "is no more justifiable when spoken of a man with a view to his election than on any other occasion." . . . To hold that false charges of a defamatory