upon the subject is most unsatisfactory, and it is in effect held by the courts of that state that there is no privilege whatever possessed by the elector in canvassing the character and qualifications of a candidate for his suffrage beyond that which is possessed in any other relation. In the case of Lewis v. Few, 5 Johns. 1, the chairman of a public meeting signed an address adopted by the meeting, condemning the conduct of the governor, Morgan Lewis, then a candidate for re-election, which among other things charged him with want of fidelity to his party, pursuing a system of family aggrandizement in his appointments, signing the charter of a bank, knowing that it had been procured by fraud, attempting to destroy the freedom of the press by vexatious prosecutions, &c. In an action against the chairman for the libel contained therein, no attempt was made to prove the truth of the charges, and it was held by the Supreme Court that the publication was not privileged. Mr. Justice THOMPSON, in delivering his opinion, among other things, used this language: "That el tors should have a right to assemble and freely and openly to examine the fitness and qualifications of candidates fo lic offices, and communicate the opinion to others, is a posi tion to which I most cordially accede. But there is a wide difference between this privilege and a right irresponsibly to charge a candidate with direct, specific and unfounded crimes. It would in my judgment be a monstrous doctrine to establish that when a man becomes a candidate for an elective office, he thereby gives to others a right to accuse him of any imaginable crimes with impunity. Candidates have rights as well as electors, and these rights and privileges must be so guarded and protected as to harmonize one with another. If one hundred or one thousand men, when assembled together, undertake to charge a man with specific crimes, I see no reason why it should be less criminal than if each one

should do it individually at different times and places. All that is required, in the one case or the other, is not to transcend the bounds of truth."

A like doctrine was laid down in the case of King v. Root, 4 Wend. 113; s. c. 7 Cow. 613, which was an action by the lieutenant-governor, against the defendant for charging him with being intoxicated in the senate chamber as he was about to take his seat as presiding officer. The defendant upon the trial brought a number of witnesses who testified to the truth of the charge, which also appeared to have been published in the full belief of its truth; but the jury found against the defendant, and under an instruction that the only privilege the defendant had was simply to publish the truth and nothing more, found a large verdict for the plaintiff. The reader is referred for a full discussion of these cases to Judge Cooley's excellent work on Constitutional Limitations, page #435. See also Curtis v. Mussey, 6 Gray 261; Aldrich v. Printing Co., 9 Minn. 133; Hunt v. Bennett, 4 E. D. Smith 647; s. c. 19 N. Y. 173. Note to Munster v. Lamb, 23 Am. L. Reg. (N. S.) 19; State v. Balch, 31 Kas. 465; Briggs v. Garrett, 41 Leg. Int. 14.

Without attempting any extended criticism of these cases, it may be remarked that the rule laid down therein affords no privilege whatever to the electo. The sentence first quoted taken alone would seem to concede some privilege to the elector; but taken in connection with what follows, it is deprived of all force. "There is nothing upon the record showing the least foundation or pretence for the charges. The accusation, then, being false, the prima facie presumption of law is that the publication was malicious; and the circumstances of the defendant being associated with others does not per se rebut this presumption."

It is to be observed that this is precisely the rule laid down by the books in actions for slander and libel, in cases

where there is no question of privilege involved.

The case of Rearick v. Wilcox, 81 Ill. 77, is similar in principle, in that it substantially negatives the privilege of publication; but it also discusses the measure of damages which was not passed upon in Lewis v. Few. In Rearick v. Wilcox, the plaintiff was a candidate for the office of police magistrate in the city of Quincy, and the publication complained of in substance charged dishonesty and corruption, and that, if elected, the candidate would improve "every opportunity for peculation that might by possibility attach to the office." No attempt was made upon the trial to establish the truth of these charges; and it was held proper to prove the facts and circumstances connected with the publication to show absence of malice in fact, and that such evidence was competent upon the question of exemplary damages, but not as affecting compensatory damages; that it was error to instruct the jury that they might in mitigation of damages consider the excitement of the election leading to the publication, or the fact that the article was published for the sole purpose of defeating the plaintiff's election; that the fact that the defendant, as the proprietor of a newspaper, was actuated by what he believed to be for the public good, could not be taken into consideration in mitigation of damages. In delivering the opinion of the court, CRAIG, J., said: "While the qualification and fitness of a candidate for office might properly be discussed with freedom by the press of the country, we are aware of no case that goes so far as to hold that the private character of a person, who is a candidate for office can be destroyed by the publication of a libelous article in a newspaper, notwithstanding the election may be attended with that excitement and feeling that not unfrequently enters into our elections."

Both this case and that of Lewis v. Few, make the gratuitous and unneces

sary assumption than any other rule than that prevailing in cases where no privilege is claimed would "give to others a right to accuse him [the candidate] of any imaginable crimes, with impunity;" or that "the private character of a person who is a candidate for office can be destroyed by the publication of a libellous article," &c., which indeed would be "a monstrous doctrine.” There would seem to be no great difficulty, however, in formulat ng a rule that will effectually protect the rights both of the public as represented by the electors, and the candidate, by simply shifting the burden of proof and making the case one of conditional privilege.

Another class of cases makes a distinction between comments on a man's public conduct or qualification for office, and upon his private character, the radical defect of which rule as is well observed by Judge Cooley in his work on Constitutional Limitations (p. *440) consists in the assumption that the private character of a public officer is something aside from, and not entering into or influencing his public conduct. See Gathercole v. Miall, 15 M. & W. 331; Commonwealth v. Morris, 1 Va. Cas. 176; Commonwealth v. Odell, 3 Pitts. 449; Commonwealth v. Clap, 4 Mass. 163: Sweeney v. Baker, 13 W. Va. 158.

In the case of Sweeney v. Baker, supra, the rule is laid down as follows: "The only limitation to the right of criticism of the acts or conduct of a candidate for an office in the gift of the people is that the criticism be bona fide. As this right of criticism is confined to the acts or conduct of such candidate, whenever the facts which constitute the act or conduct criticised, are not admitted, they must of course be proven. [It is to be observed that the truth is always a defence in a civil action for libel. Where then is the privilege?] But as respects his person there is no such large privilege of criticism though he be a candidate for such office. This large privilege of crit

icism is confined to his acts. The publication of defamatory language affecting his moral character can never be justified on the ground that it was published as criticism. His talents and qualifications, mentally and physically, for the office he asks at the hands of the people may be freely commented on in publications in a newspaper, and though such comments be harsh and unjust, no malice will be implied; for these are matters of opinion of which the voters are the only judges; but no one has a right by a publication to impute to such a candidate falsely crimes, or publish allegations affecting his character falsely."

It is quite generally held that any false charge affecting the private character of a candidate for, or an incumbent of, an office is actionable. Thus, it has been held actionable falsely to charge an officer with having taken a bribe, or with corruption or want of integrity: Hamilton v. Eno, 81 N. Y. 116; Wilson v. Noonan, 35 Wis. 321; Gove v. Blethen, 21 Minn. 80; Russell v. Anthony, 21 Kan. 450; Littlejohn v. Greeley, 13 Abb. Pr. 41; Dole v. Van Rensselaer, 1 Johns. Cas. 330.

So, falsely to charge an officer with having been intoxicated while in the discharge of his duties: King v. Root, supra: Gottbehuet v. Hubachek, 36 Wis.

515.

So, falsely to charge a sealer of weights and measures with "tampering with" and "doctoring" such weights and measures, has been held actionable: Eviston v. Cramer, 47 Wis. 659.

So, falsely to charge a city physician with having caused the death of a patient by reckless treatment: Foster v. Scripps, 39 Mich. 376.

In Mayrant v. Richardson, 1 Nott & McC. 348, it was held that to address letters to the electors of a district charging a candidate for the office of member of Congress with having an impaired understanding and a mind weakened by disease was presenting the subject to the

proper and legitimate tribunal to try the question, and was not actionable. In the case of Spiering v. Andrae, 18 Am. L. Reg. (N. S.) 186, however, the Supreme Court of Wisconsin criticise this case, and express the opinion that "the great preponderance of authority is that words charging an officer with gross ignorance and incapacity are actionable per se. In this case it was held actionable per se, to say of a justice of the peace, that he, the defendant, did not want to sit as a juror before such a dd fool of a justice." It is worthy of remark that no attempt was made to prove the truth of the charge. This case as well as some of the preceding ones can be well distinguished from Mayrant v. Richardson, in that no question of privilege was raised in the case.

The case of Mott v. Dawson, 46 Ia. 533, seems to lay down a much more rational principle than any of the foregoing cases yet commented upon, excepting the principal case, and perhaps Mayrant v. Richardson, which latter so far as it goes, seems open to no criticism. In Mott v. Dawson, the court quote with approval Townshend on Slander and Libel, sect. 241, that "every one who believes himself to be possessed of knowledge which, if true, does or may affect the rights and interests of another, has the right in good faith to communicate such his belief to that other ;" and accordingly held that where one in good faith and without malice, makes a charge affecting the character of another, who is a candidate for office, to an elector, shortly before the election, he is not liable to an action therefor, his statement being in the nature of a privileged communication. The charge in this case was of having cheated upon the sale of cattle, and directly affected the moral character of the candidate.

The case of Briggs v. Garrett, Court of Common Pleas Philadelphia, 41 Leg. Int. 14, though a nisi prius case, is one of great interest in this connection, hold