you so! I've been cruel and horrid. You must n't want to marry me, Bob; I belong to the moor, and you are not a part of that life. I might forget you again."

"Not again, beloved. I am one of the hidden memories now. I have wrestled with the magic. You could not shut me out if you would.”

"I would not," she whispered.

He bent his face to hers. The donkey stood still.

"Are we still on the moor?" she asked presently.

For answer he untied the bandage. They stood on the great foreland above Lynton, facing the blue, sun-sparkling

summer sea.

She gave an ecstatic gasp, then turned

to look back; but Bob took her face between his hands, and she had to look into his eyes instead.

"What is it?" he asked, after a while, for her eyes were troubled.

"I am trying to remember whether I was happier than this when the ghostmother sang me to sleep." "And?"

"I-I am afraid not."

He laughed victoriously, and kissed her eyes.

"If she has gone to her rest at last, I shall never hear her sing the lullaby again," she said. "I had not thought of that. It grieves me.'

"But you can sing it yourself to to" said Bob.

A RECENT prosecution by the People of New York, represented by Mr. Jerome, of a suit for criminal libel, attracted the attention of the entire nation. The alleged libel set forth in the complaint had appeared in Collier's Weekly, stating the connection of a certain judge with a certain unwholesome publication. The defense to this action was that the statement was true; and, somewhat to the joy of all concerned, excepting the judge, the unwholesome publication, and those who were exposed in the course of trial, as being its creatures, the jury were obliged to find that this defense was sound. From a lawyer's point of view it was surprising to find that even professional critics and editorial writers looked upon this case as involving that part of the Common Law which prescribes the limits of criticism. It only needs to be pointed out that the statement relied upon as defamation was a statement of fact, to show that the case against the Collier editors involved no

question of a critic's right to criticise or an editor's right to express his opinion. If the suit had been founded on the criticism of the contents of the unwholesome publication which had been offered to the public for those to read who would, then the law of fair comment would have controlled. No doubt, however, even the trained guides to the public taste seldom realize the presence of a law governing their freedom of comment. Such law is in force none the less, and, though the instinct to express only fair and honest opinion will generally suffice to prevent a breach of legal limits, it is ventured that the consideration of the law upon the subject is important not only to the professional critic, but to any man who has enough opinion on matters of public interest to be worth an expression.

It is public policy that the free expression of opinion on matters of public interest should be as little hampered as possible. Fair comment, says the law, is the

preventive of affectation and folly, the educator of the public taste and ethics, and the incentive to progress in the arts. Often fair comment is spoken of as privileged. But privilege in legal sense means that some statement is allowed to some particular person on some particular occasion, a statement that would be libel or slander unless it came within the realm of privilege. On the other hand, fair comment is not the right of any particular person or class, or the privilege of any particular occasion; it is not exclusively the right of the press or of one who is a critic in the sense that he is an expert. Doubtless the newspaper or professional critic is given a greater latitude by juries, who share the prevalent and not ill-advised view that opinion expressed by the public press is usually more sound than private comment. The law, however, recognizes no such distinction. Any one may be a critic.

In civil actions of defamation, truth in a general way is always a defense; whether the person against whom the suit is brought has made a statement of fact or opinion, if he can prove his words to be true, he is safe from liability. Such was the defense of the Collier editors in the criminal case mentioned above Fair comment, however, does not need to be true to be defended, for it is, if we may use the phrase, its own defense. Then what is fair comment?

The right to comment is confined to matters which are of interest to the public. To endeavor to give a list of matters answering this requirement would be an endless task; even the courts of England and this country have passed only upon a few. Instances when the attention, judgment, and taste of the public are called upon are, however, most frequent in the fields of politics and of the arts. Such are the acts of those entrusted with functions of government, the direction of public institutions and possibly church matters, published books, pictures which have been exhibited, architecture, theatres, concerts, and public entertainments.

Two reasons prohibit comment upon that which has not become the affair of the public nor has been offered to the attention of the public:- the public is not benefited by the criticism of that which it does not know, and about which it has no concern, and the act of the doer or the work of the artist against which the comment is directed cannot be said to have been submitted to open criticism. The requirement which seems right in principle, and has been laid down many times in the remarks of English judges, was perhaps overlooked in Battersby vs. Collier, a New York case. Colonel Battersby, it appeared, was a veteran of the Civil War, and for six years had been en gaged in painting a picture representing the dramatic meeting of General Lee and General Grant, at which Colonel Battersby was present. This painting was intended for exhibition at the Columbian Exposition. Unfortunately, a few days before Christmas, a young woman of a literary turn of mind had an opportunity to view this immense canvas, and was less favorably impressed with the painting than with the pathos surrounding its inception and development. Accordingly she wrote a story headed by that handiest of handy titles, The Colonel's Christmas, but she did not sufficiently conceal the identity of her principal character. Colonel Battersby sued the publishers, and for damages relied upon the aspersions cast upon his picture, which in the story was called a "daub." More than that, there occurred in the narrative these words: "What matters it if the Colonel's ideas of color, light, and shade were a trifle hazy, if his perspective was a something extraordinary, his 'breadth' and 'treatment' and 'tone' truly marvelous, the Surrender was a great, vast picture, and it was the Colonel's life." The court held that this was a fair criticism; but it does not plainly appear that Colonel Battersby had yet submitted his six-year painting to the attention of the public, or that it had at the time become an object of general public interest; and if it had

not, the decision would seem doubtful in principle.

On the other hand, in Gott vs. Pulsifer there was involved the "Cardiff Giant," whom all remember as the merriest of practical jokes in rock, who made Harvard scientists rub their eyes, and called forth from one Yale professor a magazine article to prove that the man of stone was the god Baal brought to New York State by the Phoenicians. The court said that all manner of abuse might be heaped on the Giant's adamant head. "Anything made subject of public exhibition," said they, "is open to fair and reasonable comment, no matter how severe." So you might with impunity call the Cardiff Giant, or Barnum's famous long-haired horse, a hoax; they were objects of general public interest, and any one might have passed judgment upon them.

Letters written to a newspaper may be criticised most severely, as often happens when Constant Reader enters into a warfare of communication with Old Subscriber, and so long as the contention is free from actionable personalities, and remains within the bounds of fair comment, neither will find himself in trouble. Nor is the commercial advertisement immune from caustic comment, if the comment is sincere. The rhymes in the street cars, the posters on the fences, the handbill that is thrust over the domestic threshold, and the signboard, that has now become a factor in every rural sunset or urban sunrise, must bear the comment upon their taste, their efficiency, and their ingenuity, which by their very nature they invite. In England a writer was sued by the maker of a commodity for travelers advertised as the "Bag of Bags." The writer thought the commercial catch-name was silly, vulgar, and ill-conceived, and he said so. The manufacturer in court urged that the comment injured his trade; but the judges were inclined to think that an advertisement appealing to the public was subject to the public opinion and its fair expression. What is of interest to the general public, so that comment thereon

will be a right of the public, may, however, in certain cases trouble the jury. A volume of love sonnets printed and circulated privately, and the architecture of a person's private dwelling, might furnish very delicate cases.

In a time when those who desire to be conspicuous succeed so well in becoming so, it is rather amusing to wonder just what may be the difference between the right to comment on the dancer on the stage, and on the lady who, if she has her way, will sit in a box. Both court public notice, the dancer by her penciled eyebrows, her tinted cheeks, her jewelry, her gown, and her grace, the lady in the box, perhaps, by all these things except the last; both wish favorable comment, and perhaps ought to bear ridicule, if their cheeks are too tinted, their eyebrows too penciled, their jewelry too generous, and their gowns too ornate. A more sober view, however, will show that the matter is one of proof. The dancer who exhibits herself and her dance for a consideration necessarily invites expressions of opinion, but it would be difficult to show in a court of law that the gala lady in the box meant to seek either commendation, — or disapproval.

A vastly more important and interesting query, and one which must arise from the present state and tendency of industrial conditions, is whether the acts of men in commercial activity may ever become so prominent, and so far-reaching in their effect, that it can well be said that they compel a universal public interest, and that public comment is impliedly invited by reason of their conspicuous and semipublic nature. It is ventured that at no time have private industries become of such startling interest to the community at large as at present in the United States. At least a few have had an effect more vital to citizens, perhaps, than the activities of some classes of public officials which are open to fair comment, and certainly more vital than the management of some semi-public institutions, which are also open to honest criticism.

As to corporations, it would seem that, as the public, through the chartering power of legislation, gives them a right to exist and act, an argument that the public retains the right to comment upon their management must have some force; in the case of other forms of commercial activity, whose powers are inherent and not delegated, the question must rest on the determination of the best public policy, a determination which in all classes of cases decides, and ought to decide, the right of fair comment.

When once the comment is decided to be upon a matter of public interest, there arises the consideration whether or not the comment is fair. The requirement of the law in regard to fairness is not based, as might be supposed, upon the consideration whether comment is mild or severe, serious or ridiculing, temperate or exaggerated; the critic is not hampered in the free play of his honest opinions; he is not prohibited from using the most stinging satire, the most extravagant burlesque, or the most lacerating invective. In 1808, Lord Ellenborough, in Carr vs. Hood, stated the length of leash given to the critic, and the law has not since been changed. Sir John Carr, Knight, was the author of several volumes, entitled A Stranger in France, A Northern Summer, A Stranger in Ireland, and other titles of equal connotation. Thomas Hood was rather more deserving of a lasting place in literature than his victim, because of his sense of humor, and his well-known rapid-fire satire. According to the declaration of Sir John Carr, the plaintiff, Hood had published a book of burlesque in which there was a frontispiece entitled "The Knight leaving Ireland with Regret," and "containing and representing in the said print, a certain false, scandalous, malicious and defamatory and ridiculous representation of said Sir John in the form of a man of ludicrous and ridiculous appearance holding a pocket handkerchief to his face, and appearing to be weeping," and also representing "a malicious and ridiculous man

of ludicrous and ridiculous appearance following the said Sir John," and bending under the weight of several books, and carrying a tied-up pocket handkerchief with "Wardrobe" printed thereon, "thereby falsely scandalously and maliciously meaning and intending to represent, for the purpose of rendering the said Sir John ridiculous and exposing him to laughter, ridicule and contempt, that the books of the said Sir John "were so heavy as to cause a man to bend under the weight thereof, and that his the said Sir John's wardrobe was very small and capable of being contained in a pocket handkerchief." And at the end of this declaration Sir John alleged that he was damaged because of the consequent decline in his literary reputation, and, it may be supposed, because thereafter his books did not appear in the list of the "six best-selling" in the Kingdom.

...

But no recovery was allowed him, for it was laid down that if a comment, in whatever form, only ridiculed the plaintiff as an author, there was no ground for action. Said the eminent justice, “One writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon for such a purpose. Perhaps the plaintiff's works are now unsalable, but is he to be indemnified by receiving a compensation from the person who has opened the eyes of the public to the bad taste and inanity of his compositions? . . . We must not cramp observations on authors and their works. . . . The critic does a great service to the public who writes down any vapid or useless publication, such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash. Fair and candid criticism every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider an injury; because it is a loss which the party ought to sustain. It is, in short, the loss of fame

and profits to which he was never entitled."

Criticism need not be fair and just, in the sense that it conforms to the judgment of the majority of the public, or the ideas of a judge, or the estimate of a jury; but it must remain within certain bounds circumscribed by the law.

In the first place, comment must be made honestly; in recent cases much more stress has been laid upon this point than formerly. It is urged that if criticism is not sincere, it is not valuable to the public, and the ground of public policy, upon which the doctrine of fair criticism is built, fails to give support to comment which is born of improper motives or begotten from personal hatred or malice. Yet he who seeks for cases of criticism which have been decided against the critic solely on the ground that the critic was malicious must look far. The requirement in practice seems difficult of application, since, if the critic does not depart from the work that he is criticising, to strike at the author thereof as a private individual, and does not mix into his comment false statements or imputations of bad motives, there is nothing to show legal malice, and it is almost impossible to prove actual malice. If you should conclude that your neighbor's painting which has been on exhibition is a beautiful marine, but if, because you do not like your neighbor, you pronounce it to be a dreadful mire of blue paint, it would be very hard for any other person to prove that at the moment you spoke you were not speaking honestly. Again, if the comment is within the other restrictions put by the law upon criticism, it would seem that to open the question whether or not the comment was malicious is in effect very nearly submitting to the jury the question whether or not they disagree with the critic, since the jury have no other method of reaching a conclusion that the critic was or was not impelled by malice.

Malice, in fact, is a bugaboo in the law, and the law, especially the civil

law, avoids dealing with him whenever it can. Yet it is quite certain that malice must be a consideration in determining what is fair comment; an opinion which is not honest is of no help to the public in its striving to attain high morals and unerring discernment. All the reasons of public policy that give criticism its rights fly out of the window when malice walks in at the door.

Some decisions of the courts seem to set the standard of fair comment even higher. They not only demand that the critic speak with an honest belief in his opinion, but insist also that a person taking upon himself to criticise must exercise a reasonable degree of judgment. As one English judge expressed it in charging the jury: "You must determine whether any fair man, however exaggerated or obstinate his views, would have Isaid what this criticism has said." It would seem, however, that in many cases this would result in putting the judgment of the jury against that of the critic. To ask the jury whether this comment is such as would be made by a fair man is not distinguishable from asking them whether the comment is fair, and it sometimes happens that, in spite of the opinion of the jury, in fact, the opinion of all the world, the single critic is right, and the rest of the community all wrong. Does any one doubt that the comment of Columbus upon the views of those who opposed him would have been considered unfair by a jury of his time, until this doughty navigator proved his judgment correct? What would have happened in a court of law to the man who first said that those who wrote that the earth was flat were stupidly ignorant? Often the opinion or criticism which is the most valuable to the community as a contribution to truth is the very opinion which the community as a body would call a wild inference by an unfair man; to hold the critic up to the standard of a “fair man” is to deprive the public of the benefit of the most powerful influences against the perpetuity of error.

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