of a full report of the trial. (c) Abbott, C. J., in this case said, "If in the course of a trial it become neces

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sary for the purposes of justice that matter of a "defamatory nature should be publicly read, it does "not therefore follow that it is competent to any "person under pretence of publishing that trial to "recite the defamatory matter."

The principle which appears to have been acted upon by the court in all these cases, although never expressly laid down, is, that reports of judicial proceedings are privileged in all cases where justice and public policy require that the public should be made acquainted with them, but not otherwise. (d) This, however, was probably thought to be too loose a definition of privileged reports. The recent statute, 6 & 7 Vict. c. 96. § 6., has, however, introduced this issue into criminal trials for defamatory libels, and has rendered it a question for the jury, not only whether the facts stated in the libel are true, but also whether it was for the public benefit that they should be published. The experience of every day shows us that the publication of some of the preliminary proceedings before magistrates is not only a public benefit, but even absolutely essential to the ends of justice. It remains to be seen, whether in future decisions upon the legality of police reports the courts will draw any aid from the analogy of this statute.

(c) Rex v. Carlile, 3 B. & A. 167.

(d) In the King v. Fisher, 2 Camp. 563, Lord Ellenborough, and in Rex v Fleet, 1 B. & A. 379, C. J. Abbott, argued entirely upon the public mischief of the reports in question. So in Duncan v. Thwaites, "When the publication is a

"violation of the criminal juris"prudence of the country, and "there is nothing to call for it, "the publication is not ex"cusable." So in Flint v. Pike, per Bailey, J., " For as to them "the reason of the privilege, "which is the advancement of public justice, does not apply."

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SECT. 6. Of public Criticism.

ALL criticisms are privileged. When a man becomes an author the law allows any one to say or write of him as an author, or of his book, any thing which he may please; proof of express malice in this as in other cases destroying the privilege.

The rule in this respect is usually laid down to be, that fair and honest criticism, however severe, is privileged. The decisions, however, seem to go rather beyond this.

The two leading cases upon this subject are, Sir John Carr v. Hood (e), and Tabbart v. Tipper. (ƒ) Both these cases were tried before Lord Ellenborough, and the doctrine laid down has received the sanction of subsequent judges.

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In Carr v. Hood the plaintiff, Sir John Carr, had written (it does not appear from the report that he had published) a bock, called "A Tour in Ireland." The defendant thereupon published a pamphlet, entitled My Pocket Book, or Hints for a righte merrie and "conceited Tour, to be called The Stranger in Ireland " in 1805, by a Knight errant. This pamphlet contained a frontispiece, entitled "The Knight leaving "Ireland with regret," being a caricature of Sir John Carr holding a pocket handkerchief to his face, and appearing to be weeping, and having a man following him loaded with, and bending under the weight of, three large books, and carrying in one hand a pocket handkerchief tied up at the corners, and having the word "Wardrobe" on it; thereby meaning, as the declaration averred, that one copy of the said first-mentioned book of the said Sir John, and two copies of the said book of the said Sir John secondly mentioned, were so (f) 1 Camp. 350.

(e) 1 Camp. 355. n.

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 one pocket handkerchief.

The declaration laid as special damage, that the plaintiff had been prevented from selling the copyright of the book in question to Sir Richard Phillips for 6001.

Lord Ellenborough said, "Here the supposed libel has

only attacked those works of which Sir John Carr is the "avowed author; and one writer in exposing the follies "and errors of another may make use of ridicule, how"ever poignant. Ridicule is often the fittest weapon "that can be employed for such a purpose. If the "reputation or pecuniary interests of the person "ridiculed suffer, it is damnum absque injuriâ. Where "is the liberty of the press if an action can be main"tained on such principles? Perhaps the plaintiff's "Tour through Ireland is now unsaleable; but is he "to be indemnified by receiving a compensation in damages from the person who may have opened the ' eyes of the public to the bad taste and inanity of his compositions? Who would have bought the works "of Sir Robert Filmer after he had been refuted by "Locke? But shall it be said that he might have "sustained an action for defamation against that "great philosopher, who was labouring to enlighten "and ameliorate mankind. We really must not cramp observations upon authors and their works; "they should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous "otherwise, the first who writes a book on any subject "will obtain a monopoly of sentiment and opinion "respecting it: this would tend to the perpetuity of error. Reflection on personal character is another

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"thing. Show me an attack on the moral character "of the plaintiff, or any attack upon his character "unconnected with his authorship, and I shall be as "ready as any judge who ever sat here to protect "him; but I cannot hear of malice on account of turning his works into ridicule."

The counsel for the plaintiff, however, still complaining of the unfairness of the publication, and especially of the print, the case proceeded, and in summing up his lordship said, "Every man who pub"lishes a book commits himself to the judgment of "the public, and any one may comment upon his per. "formance. If the commentator does not step aside "from the work, or introduce fiction for the purpose "of condemnation, he exercises a fair and legitimate "right. In the present case, had the party writing "the criticism followed the plaintiff into domestic life "for the purposes of slander, that would have been "libellous; but no passage of this sort has been pro"duced, and even the caricature does not affect the "plaintiff, except as the author of the book which is "ridiculed. The works of this gentleman may, for "aught I know, be very valuable; but, whatever their "merits, others have a right to pass their judgment "upon them, to censure them if they be censurable, "and to turn them into ridicule if they be ridiculous. "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 "wasting both their time and money upon trash. I "speak of fair and candid criticism, and this every "one has a right to publish, although the author may "suffer loss from it. Such a loss the law does not "consider as an injury, because it is a loss which the

"party ought to sustain. It is, in short, a loss of "fame and profits to which he was never entitled. "Nothing can be conceived more threatening to the liberty of the press than the species of action before "the court. We ought to resist an attempt against "free and liberal criticism at the threshold."

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In considering this ruling, so valuable to our literature, we must disconnect it from the facts of the case. His lordship expressly left it to the jury to determine whether the writer of the publication had travelled out of the work he criticised for the purpose of slander, and whether there was in the publication any thing personally slanderous against the plaintiff unconnected with the works he had written. If the jury in this case had returned a verdict for the plaintiff upon the ground that a caricature of a man's person is no criticism upon him as an author, or upon the ground that a criticism of a man's wardrobe is no criticism upon his works, the ruling of Lord Ellenborough would still have been untouched.

Indeed this judgment of Lord Ellenborough hardly carries the rule to the full extent in which it is now understood. When his lordship says that the critic has a right to censure works if they be censurable, and to turn them into ridicule if they be ridiculous, he appears to introduce conditions which destroy the character of privileged communications, the very essence of which is, that they need not be true if made without malice. It is submitted that the rule is, that the critic has a right to censure works whether they be really justly censurable or not, and to turn them into ridicule whether they be really ridiculous or not; otherwise it would be for the jury to determine whether the judgment of the critic be a right judgment, instead of being whether it be a bonâ fide judgment. We may infer,