lic was addressed in regard to a candidate for an office which was not elective, but was to be filled by an appointing board.1

The case of King v. Root2 is certainly a very remarkable one, when the evidence given in the case is considered. The Lieutenant-Governor was charged in the public press with intoxication in the Senate Chamber, exhibited as he was proceeding to take his seat as presiding officer of that body. When prosecuted for libel, the publishers justified the charge as true, and brought a number of witnesses who were present on the occasion, and who testified to the correctness of the statement. There was therefore abundant reason for supposing the charge to have been published in the full belief in its truth. If it was true, there was abundant reason, on public grounds, for making the publication. Nevertheless, the jury were of opinion that the preponderance of evidence was against the truth of the charge, and being instructed that the only privilege the defendants had was "simply to publish the truth and nothing more," and that the unsuccessful attempt at justification — which in fact was only the forming of such an issue and putting in such evidence as showed the defendants had reason for making the charge was in itself an aggravation of the offence, they returned a verdict for the plaintiff with large damages. Throughout his instructions to the jury by the judge presiding at the trial, no privilege of discussion whatever is conceded to the elector, springing from the relation of elector and candidate, or of citizen and representative, but the case is considered as one where the accusation was to be defended precisely as if no public considerations had in any way been involved.3

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The law of New York is not placed by these decisions on a footing very satisfactory to those who claim the utmost freedom of discussion in public affairs. The courts have considered the subject as if there were no middle ground between absolute immunity for falsehood and the application of the same strict rules which prevail in other cases. Whether they have duly considered the importance of publicity and discussion on all matters of general concern in a representative government must be left to the consideration of the courts as these questions shall come before them in the future. It is perhaps safe to say that the general public

1 Hunt v. Bennett, 4 E. D. Smith, 647; Same case, 19 N. Y. 173. 4 Wend. 113. See the same case in the Supreme Court, 7 Cow. 613. See also Onslow v. Hone, 3 Wils. 177; Harwood v. Astley, 1 New Rep. 47.

sentiment and the prevailing customs allow a greater freedom of discussion, and hold the elector less strictly to what he may be able to justify as true than is done by these decisions.

A much more reasonable rule- though still, we think, not sufficiently comprehensive was indicated by Pollock, C. B., in a case where it was urged upon the court that a sermon, preached but not published, was the subject of criticism in the enlarged style of commentary which that word seems to introduce according to the decided cases; and that the conduct of a clergyman with reference to the parish charity, and especially the rules of it, justified any bona fide remarks, whether founded in truth in point of fact, or justice in point of commentary, provided only they were an honest and bona fide comment. 'My brother Wilde," he says, " urged upon the court the importance of this question; and I own I think it is a question of very grave and deep importance. He pressed upon us that, whenever the public had an interest in such a discussion, the law ought to protect it, and work out the public good by permitting public opinion, through the medium of the public press, to operate upon such transactions. I am not sure that so extended a rule is at all necessary to the public good. I do not in any degree complain; on the contrary, I think it quite right that all matters that are entirely of a public nature conduct of ministers, conduct of judges, the proceedings of all persons who are responsible to the public at large are deemed to be public property; and that all bona fide and honest remarks upon such persons, and their conduct, may be made with perfect freedom, and without being questioned too nicely for either truth or justice." But these remarks were somewhat aside from the case then before the learned judge, and though supported by similar remarks from his associates, yet one of those associates deemed it important to draw such a distinction as to detract very much from the value of this privilege. "It seems," he says, "that there is a distinction, although I must say I really can hardly tell what the limits of it are, between the comments on a man's public conduct and on his private conduct. I can understand that you have a right to comment on the public acts of a minister, upon the public acts of a general, upon the public judgments of a judge, upon the public skill of an actor; I can understand that; but I do not know where the limit can be drawn distinctly between where the 1 Gathercole v. Miall, 15 M. & W. 331 - 333.

comment is to cease, as being applied solely to a man's public conduct, and where it is to begin as applicable to his private character; because, although it is quite competent for a person to speak of a judgment of a judge as being an extremely erroneous and foolish one, and no doubt comments of that sort have great tendency to make persons careful of what they say, and although it is perfectly competent for persons to say of an actor that he is a remarkably bad actor, and ought not to be permitted to perform such and such parts, because he performs them so ill, yet you ought not to be allowed to say of an actor that he has disgraced himself in private life, nor to say of a judge or a minister that he has committed felony, or anything of that description, which is in no way connected with his public conduct or public judgment; and therefore there must be some limits, although I do not distinctly see where those limits are to be drawn. No doubt, if there are such limits, my brother Wilde is perfectly right in saying that the only ground on which the verdict and damages can go is for the excess, and not for the lawful exercise of the criticism." 1

The narrowness of any such rule consists in its assumption, that the private character of a public officer is something aside from, and not entering into or influencing, his public conduct, and that a thoroughly dishonest man may be a just minister, and that a judge who is corrupt and debauched in private life may be pure and upright in his judgments; in other words, that an evil tree is as likely as any other to bring forth good fruits. Any such assumption is false to human nature, and the public have a right to assume that a corrupt life will influence public conduct, however plausibly it may be glossed over. They are, therefore, interested in knowing what the character of their public servants is, as well as that of persons offering themselves for their suffrages. If so, it would seem that there should be some privilege of comment; that that privilege could only be limited by good faith and just intention; and of these a jury might judge, taking into account the nature of the charges made, and the reasons which existed for making them.

Recent English cases give considerable latitude of comment to publishers of public journals, upon subjects in the discussion of which the public have an interest, and hold the discussions privi

1 Alderson, B., same case, p. 338.

leged if conducted within the bounds of moderation and reason.1 And in this country it has been held that where a charge against an officer or a candidate respects only his qualifications for the office, and does not impugn his character, it forms no basis for a recovery of damages. To address to the electors of a district letters charging that a candidate for office is of impaired understanding, and his mind weakened by disease, is presenting that subject to "the proper and legitimate tribunal to try the question." "Talents and qualifications for office are mere matters of opinion, of which the electors are the only competent judges." 2

Statements in the Course of Judicial Proceedings.

There are some cases which are so absolutely privileged on reasons of public policy, that no inquiry into motives is permitted in an action for slander or libel. Of these, the case of a party who is called upon to give evidence in the course of judicial proceedings is a familiar illustration. No action will lie against a witness at the suit of a party aggrieved by his false testimony, even though malice be charged. The remedy against a dishonest witness is confined to the criminal prosecution for perjury.3 False accusations, however, contained in the affidavits or other proceedings, by which a prosecution is commenced for supposed crime, 1 In Kelley v. Sherlock, 1 Law Rep. Q. B. 686, it was held that a sermon commenting upon public affairs-e. g. the appointment of chaplains for prisons and the election of a Jew for mayor was a proper subject for comment in the papers. And in Kelley v. Tinling, 1 Law Rep. Q. B. 699, a church-warden, having written to the plaintiff, the incumbent, accusing him of having desecrated the church by allowing books to be sold in it during service, and by turning the vestry-room into a cooking-apartment, the correspondence was published without the plaintiff's permission in the defendant's newspaper, with comments on the plaintiff's conduct. Held, that this was a matter of public interest, which might be made the subject of public discussion; and that the publication was therefore not libellous, unless the language used was stronger than, in the opinion of the jury, the occasion justified.

Mayrant v. Richardson, 1 Nott & McCord, 348.

* But a qualification of this rule is made where what is said by the witness is not pertinent or material to the cause, and he has been actuated by malice in stating it. He is not, however, to be himself the judge of what is pertinent or material when questions are put to him, and no objection or warning comes to him from court or counsel. Calkins v. Sumner, 13 Wis. 193. See also Warner v. Paine, 2 Sandf. 195; Garr v. Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358; Perkins v. Mitchell, 31 Barb. 461; Revis v. Smith, 18 C. B. 126.

or in any other papers in the course of judicial proceedings, are not so absolutely protected. They are privileged,1 but the party making them is liable to action, if actual malice be averred and proved.2 Preliminary information, furnished with a view to set on foot an inquiry into an alleged offence, or to institute a criminal prosecution, is, in like manner, privileged; 3 but the protection only extends to those communications which are in the course of the proceedings to bring the supposed offender to justice, or are designed for the purpose of originating or forwarding such proceedings; and communications not of that character are not protected, even although judicial proceedings may be pending for the investigation of the offence which the communication refers to.1 Still less would a party be justified in repeating a charge of crime, after the person charged has been examined on his complaint, and acquitted of all guilt.5

Privilege of Counsel.

One of the most important cases of privilege, in a constitutional point of view, is that of counsel employed to represent a party in 1 Astley v. Younge, Burr. 807.

'Padmore v. Lawrence, 11 Ad. & El. 380; Kine v. Sewell, 3 M. & W. 297; Burlingame v. Burlingame, 8 Cow. 141; Kidder v. Parkhurst, 3 Allen, 393; Doyle v. O'Doherty, 1 Car. & Marsh. 418; Wilson v. Collins, 5 C. & P. 373; Home v. Bentinck, 2 Brod. & Bing. 130; Jarvis v. Hatheway, 3 Johns. 180. In Goslin v. Cannon, 1 Harr. 3, it was held that where a crime had been committed, expressions of opinion founded upon facts within the knowledge of the party, or communicated to him, made prudently and in confidence, to discreet persons, and made obviously in good faith with a view only to direct their watchfulness and enlist their aid in recovering the money stolen, and detecting and bringing to justice the offender, were privileged. The cause, occasion, object, and end, it was said, was justifiable, proper, and legal, and such as should actuate every good citizen. Grimes v. Coyle, 6 B. Monr. 301.

Dancaster v. Hewson, 2 M. & Ry. 176.

Burlingame v. Burlingame, 8 Cow. 141. In Mower v. Watson, 11 Vt. 536, an action was brought for slander in saying to a witness who was giving his testimony on a material point in a cause then on trial to which defendant was a party, "That's a lie," and for repeating the same statement to counsel for the opposite party afterwards. The words were held not to be privileged. To the same effect are the cases of McClaughry v. Wetmore, 6 Johns. 82, and Kean v. McLaughlin, 2 S. & R. 469. See also Torrey v. Field, 10 Vt. 353; Gilbert v. People, 1 Denio, 41. A report made by a grand-jury upon a subject which they conceive to be within their jurisdiction, but which is not, is nevertheless privileged. Rector v. Smith, 11 Iowa, 302.