Criticism cannot be defamation, unless it strikes at personal character. It is protected therefore, not because it is privileged, but because it is not defamation. 1 However severe it may be, however unjust in the opinion of men capable of judging, so long, in England at least, as the critic confines himself to what is there called fair criticism' of another's works, the act cannot be treated as a breach of duty. But if the critic turn aside from the proper purpose of criticism, and hold up one's character to ridicule, he becomes liable. 2 The criticism of works of art, whether painting, sculpture, monument, or architecture, falls within the rule. For example: The defendant says of a picture of the plaintiff, placed on exhibition, It is a mere daub.' The defendant, if fair in his criticism, cannot be held liable to an action for defamation, however unjust the criticism. * 8 The conduct too of public men amenable to the public only, and of candidates for public office, is a matter 1 Merivale v. Carson, 20 Q. B. Div. 275; Campbell v. Spottiswood, 3 Best & S. 769, 780. This overrules Henwood v. Harrison, L. R. 7 C. P. 606, 626, where, as by some of our courts, criticism is treated as privileged. Criticism is privileged only in the improper sense that the act in itself is lawful, not that it is made upon an occasion which protects it. Football is 'privileged' in the same way. 2 Id.; Carr v. Hood, 1 Campb. 355, note; Strauss v. Francis, 4 Fost. & F. 939 and 1107. See s. c. L. R. 1 Q. B. 379. 8 See Merivale v. Carson, 20 Q. B. Div. 275, 280, 283, as to 'fair criticism.' In England, the question is directly put to the jury, whether the criticism is 'fair;' which is stated to mean whether, in their opinion, the criticism goes beyond what any fair man, however prejudiced or strong his opinion may be, might express. Merivale v. Carson, at p. 280. See also id. at p. 283. Cases, 144, 148, 149. 4 Thompson v. Shackell, Moody & M. 187. See Whistler v. Ruskin, London Times, Nov. 26, 27, 1878 (unfair criticism); Merivale v. Carson, supra; Gott v. Pulsifer, 122 Mass. 235. The recent case of Dooling v. Budget Pub. Co., 144 Mass. 258, turned upon a distinction between criticism of the plaintiff in his business of caterer and 'slander' of title. proper for public discussion. It may be made the subject of hostile criticism and animadversion, so long as the writer keeps within the bounds of an honest intention to discharge a duty to the public, and does not make the occasion a mere cover for promulgating false and defamatory allegations. The question in such cases therefore is, whether the author of the statements complained of has transgressed the bounds within which comments upon the character or conduct of a public man should be confined; whether, instead of fair comment, the occasion was made an opportunity for gratifying personal vindictiveness and hostility,1 as by making false charges of disgraceful acts. In a word, fair criticism or comment upon the real acts of a public man is one thing; it is quite another to assert that he has been guilty of particular acts of misconduct.' 8 Criticism of public men should be limited to matters touching their qualifications for the performance of the duties pertaining to the position which they hold or seek.1 If, however, an officer, or an office sought, be not subject to direct control by the public, if the same be subordinate to the authority of some one having a power of removal over the incumbent, - then (probably) there exists no right to animadvert upon the conduct of such 1 Campbell v. Spottiswoode, 3 Best & S. 769, 776; Merivale v. Carson, 20 Q. B. Div. 275, 283. 2 Davis v. Shepstone, 11 App. Cas. 187. 8 Id. at p. 190. 4 Our courts differ however, or appear to differ, as to how far criticism of public men may go. See on the one hand, Hamilton v. Eno, 81 N. Y. 116; Root v. King, 7 Cowen, 613; s. c. 4 Wend. 113; Sweeney v. Baker, 13 W. Va. 158; Curtis v. Mussey, 6 Gray, 261. On the other hand, see Palmer v. Concord, 48 N. H. 211; Mott v. Dawson, 46 Iowa, 533. See also Bailey v. Kalamazoo Pub. Co. 40 Mich. 251. But there would probably be no dispute about the proposition of the text. subordinate officer or candidate through public channels. For in such a case the question appears to be one of capacity or of fitness for a particular position. Though engaged in business of the public, the officer is not a public man' but a servant. The proper course to pursue in case of supposed incapacity or unfitness of the party for the position would be to state the case to the superior officer alone, and call upon him to act accordingly.1 It must be understood that the law of slander and libel applies only to defamation in pais; that is, to defamatory charges not prosecuted in a court of justice. If the defamation consist of an accusation prosecuted in court, the accused must seek his redress by an action for a malicious prosecution, in regard to which the right to recover depends, as has been seen, upon quite different rules of law.2 1 Comp. Odgers, 223, 224. 2 See chapter ii |