he was in the witness chair, but not in direct response to a question; the circumstances tended to show that the witness was actuated by improper motives, namely, to injure the plaintiff. It was held that the defendant was not liable for slander, Cockburn, C. J., saying: "If there is anything as to which the authority is overwhelming, it is that a witness is privileged to the extent of what he says in the course of his examination. Neither is that privilege affected by the relevancy or irrelevancy of what he says; for then he would be obliged to judge of what is relevant or irrelevant, and questions might be, and are, constantly asked which are not strictly relevant to the issue. But that, beyond all question, this unqualified privilege extends to a witness is established by a long series of cases, after which to contend to the contrary is hopeless. . . . But I agree that if in this case, beyond being spoken maliciously, the words had not been spoken in the character of a witness or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be considered as laying down as law that what a witness states, altogether out of the character and sphere of the witness, or what he may say outside of the matter in hand, is necessarily protected. I quite agree that what he says before he enters or after he leaves the witness box is not privileged. Or if a man when in the witness box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked: 'Were you at York on a certain day?' and he were to answer,

Vol. II-16

'yes, and A. B. picked my pocket there;' it certainly might well be said in such a case that the statement was altogether outside of the character of a witness, and not within the privilege." In the same case Bramwell, L. J., said: "I think the words 'having reference to the inquiry' ought to have a very wide and comprehensive application, and ought not to be limited to statements for which, if not true, a witness might be indicted for perjury or the exclusion of which by the judge, would give ground for a new trial; but ought to extend to that which a witness might naturally and reasonably say when giving evidence with reference to the inquiry as to which he had been called as a witness. Taking that view, I think the proposition is established that the statement of the defendant was made as witness and had reference to the inquiry."

In the United States the rule as to parties, counsel, and witnesses is usually stated more strictly, requiring all statements to be pertinent and material to the issue. In Gilbert v. People (30) the alleged libelous matter was part of a declaration in a justice's court, which was prepared and presented to the justice by the now defendant who was acting on that occasion as counsel for the then plaintiff. The court said: "Whatever may be said or written by a party to a judicial proceeding, or by his attorney, solicitor, or counsel therein, if pertinent and material to the matter in controversy, is privileged, and consequently lays no foundation for a private action or a public prosecution. But this is the extent of the privi

(30) 1 Denio, 41.

lege; for if a party or his agent will pass beyond the prescribed limits to asperse and vilify another by word or writing, he is without protection, and, as in other cases, must abide the consequences of his own misconduct."

SECTION 7. FAIR COMMENT OR CRITICISM.

§ 282. Subjects of fair comment.-Importance of motive. Anything placed before the public for public consideration-such as a book or play-and the conduct of public men may be commented upon and criticised, provided that such comment and criticism be fair and that it be made without malice. The subject of malice will be discussed in the next section; briefly, the requirement that it be without malice is that the criticism be made in good faith with the motive of setting before the public the defendant's honest opinion. The right of fair comment does not give the defendant a right to make purported statements of facts which are untrue; for example, that a certain assertion is in a book which is not there or that a public man said or did something which he did not say or do; nor is there any right to comment upon such untrue statements of fact. In Davis v. Shepstone (31) the court said: "There is no doubt that the public acts of a public man may lawfully be made the subject of comment or criticism, not only by the press but by all members of the public. But the distinction cannot too clearly be borne in mind between comment or criticism and allegation of facts, such as that disgraceful acts have

(31) 11 App. Cases, 187.

been committed, or discreditable language used. 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 falsely that he has been guilty of particular acts of misconduct."

§ 283. Reasons for allowing fair comment. In Carr v. Hood (32) the defendant had ridiculed a book which the plaintiff had written and published. Lord Ellenborough said: "Every man who publishes a book commits himself to the judgment of the public, and any one may comment upon his performance. 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 purpose of slander, that would have been libelous; but no passage of this sort has been produced, 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 be, for aught I know, 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 from wasting both their time and money upon trash. I speak of fair and candid criti

(32) 1 Campbell, 355. n.

cism; and this every one has a right to publish, although the author may suffer a 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 the 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."

§ 284. Unfair comment not allowed even though made with proper motive. In Campbell v. Spottiswood (33) the defendant in a newspaper charged the plaintiff with using a scheme for raising money for missions as a means of personal gain to himself and in using fraudulent devices to procure contributions. In holding that the defendant was not justified, though the jury found that he honestly believed what he wrote, Cockburn, C. J., said: "In the present case, the charges made against the plaintiff were unquestionably without foundation. It may be that, in addition to the motive of religious zeal, the plaintiff was not wholly insensible to the collateral object of promoting the circulation of his newspaper, but there was no evidence that he had resorted to false devices to induce persons to contribute to his scheme. That being so, the defendant's counsel is obliged to argue that because the writer of this article had a bona fide belief that the statements he made were true, he was privileged. I cannot assent to that doctrine. It was competent to the writer to have attacked the plaintiff's scheme; and per

(33) 3 Best & Smith, 369.