indeed, that this was his lordship's impression from his previous declaration, " for aught I know, the works of "this gentleman may be very valuable."

The case of Tabbart v. Tipper (g) was an action by a publisher for a libel contained in a periodical work, called "The Satirist, or Monthly Meteor," imputing to the plaintiff that he had published books of an immoral tendency, and ascribing to him some silly verses, which were admitted by the defendant not to have been published by the plaintiff, but it was contended that they were a fair specimen of his publications.

Lord Ellenborough told the jury that it was certainly actionable gravely to impute to a bookseller having published a poem (h) to which he was a stranger, as the evident tendency of the unfounded imputation was to hurt him in his business.

But upon a question which arose during the trial, whether a witness ought to be cross-examined as to the defendant having published particular books, his lordship said, "The main question here is, quo animo the de"fendant published the article complained of; whether "he meant to put down a nuisance to public morals,

or to prejudice the plaintiff. To ascertain this it is "material to know the general nature of the defen"dant's publications to which the libel alludes, and I "therefore think that the evidence is receivable. "The plaintiff is bound to show that the defendant was actuated by malice, and the defendant discharges himself by proving the contrary. Liberty of "criticism must be allowed, or we should have neither "purity of taste or of morals. Fair discussion is

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(g) 1 Camp. 350.

(h) This poem" was as

follows:

"There was a little maid, "And she was afraid

"Her sweetheart would come to her,
"So she bound up her head
"When she went to bed,
"And she fastened her door with a
skewer."

"essentially necessary to the truth of history and the "advancement of science. That publication, there"fore, I shall never consider as a libel which has for "its object, not to injure the reputation of any indi"vidual, but to correct misrepresentations of fact, to re"fute sophistical reasoning, to expose a vicious taste in "literature, or to censure what is hostile to morality."

It has been held, also, to be fair criticism to write of a newspaper that it is the most vulgar, ignorant, and scurrilous journal ever published in Great Britain. (¿) But to address its advertisers, and tell them that it is low in circulation, is to state a fact which must be justified.

To say of the editor of a newspaper, that his fullblown baseness and infamy hold him fast to his present connections, and prevent him from forming new ones, is not within the scope of privileged criticism. (k)

"The name of G. is to be rendered famous in all "sorts of dirty works" is not a fair criticism. (7)

The leaning of the courts has certainly been of late to discourage gross and personal criticism, such as was upheld in Carr v. Hood. In Soane v. Knight (m), although it was expressly said that fair criticism on works of a professional artist cannot be the subject of an action, however mistaken in point of taste; yet it was left to the jury to say whether to impute to an artist that he acts on absurd principles of art was not unfair and intemperate, and intended to injure him in his profession. And the same question also was left to the jury, where it had been published of a painting, publicly exhibited, that it was a mere daub, with other

(i) Heriot v. Stuart, 1 Esp. C. 437.

(k) Stuart v. Lovell, 2 Starkie's C. 73.

(1) Green v. Chapman, 4 Bing.. N. S. 92; S. C. 3 Scott, 340. (m) 1 M. & M. 44.

strong words of censure. (n) And in a recent case Lord Denman was of opinion, that to publish of a publisher that he had inserted in his magazine a series of articles, the greater part of which were false, as well as of a gross character, exceeded the scope of fair criticism. (o)

The right of criticism applies also to players (p), public singers, painters publicly exhibiting, and probably also to architects, and to all persons who place themselves in a position from which it may be inferred that they submit themselves to the judgment of the public.

But it has been decided that presenting a petition to parliament is not an act which renders a man obnoxious to criticism. (q)

It is hardly necessary to observe, that no criticism upon a book which it is a crime to publish can be libellous. (r)

Under this title we may also class a certain licence which the law allows of discussing the public character and public acts of public men. This privilege seems to depend upon the same ground of public necessity which gave rise to the impunity of literary criticism. It is governed also by the same rules, and restrained within the same limits. (s)

(n) Thompson v. Shackell, 1 M. & M. 187.

(0) Colburn v. Whiting and another, H. T. 1843. N. P.

(p) Dibdin v. Bostock, 1 Esp. C. 29; Dibdin v. Swan, 1 Esp. 28; Thompson v. Shackell, 1 M. & M. 187; Green v. Chapman, 4 Bing. N. S. 92; 3 Scott, 340. (q) Dunne v. Anderson, 3 Bing. 88.

(r) See Stockdale v. Duncombe, 5 Jur. 236.

(s) Onslow v. Horne, 3 Wils, 177. The words were, "As to instructing cur members to "obtain redress, I am totally "against that plan, for as to "instructing Mr. Onslow, we "might as well instruct the "winds; and should he even "promise his assistance, I "should not expect him to give "it us." See also Woodard v. Dowsing, 2 M. & R. 74; Reg. v. Collins, 9 C. & P. 456.

In Parmiter v. Coupland (t), Parke, B., said, "There "is a difference between publications relating to public "and private individuals. Every subject has a right "to comment on those acts of public men which con

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cern him as a subject of the realm, if he do not "make his commentary a cloak for malice and slan"der; but any imputation of wicked and corrupt "motives is unquestionably libellous." And in the same case Alderson, B., said, "There certainly is a "material distinction between a publication relating "to a public and a private person whether they be "libels. That criticism may reasonably be applied "to a public man in a public capacity which might not "be applied to a private individual. The same thing might be no libel on me which might be a very "grievous and injurious libel on another."

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Thus much for communications which require proof of express malice in order to render them defamatory.

(t) 6 M. & W. 105.

THE distinction between the cases included under this and those included under the last chapter turns entirely upon the question of malice. The communications last mentioned lose their privilege upon proof of express malice; those of which we are now to treat depend in no respect for their protection upon their bona fides. The occasion is an absolute privilege, and the only questions are, whether the occasion existed? and, whether the matter complained of was pertinent to the occasion? The pertinency of the matter to the occasion is, it is submitted, that which is meant by "probable cause;" and "probable cause is to this class of communications what bona fides is to that which has been already discussed.

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SECT. 2.-Of Communications which are true.

As to communications which are thus absolutely privileged, the most important distinction is, that defa