A much more reasonable rule though still, we think, not sufficiently comprehensive and liberal 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." 1 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 him justice. Those abuses of the freedom of speech are the excesses of liberty. They ought to be repressed; but to whom dare we commit the care of doing it? An evil magistrate, intrusted with power to punish for words, would be armed with a weapon the most destructive and terrible. Under pretence of pruning off the exuberant branches, he would be apt to destroy the tree." Franklin, Works by Sparks, Vol. II. p. 285. 1 Gathercole v. Miall, 15 M. & W. 331-333. See Commonwealth v. Clap, 4 Mass. 163, per Parsons, Ch. J.; Townsend on Libel and Slander, § 260. - 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 * comment is to cease, [* 440] 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 any thing 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 radical defect in this rule, as it seems to us, 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; 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 contradictory to general experience; and whatever the law may say, the general public will still assume that a corrupt life will influence public conduct, and that a man who deals dishonestly with his fellows as individuals will not hesitate to defraud them in their aggregate and corporate capacity, if the opportunity shall be given him. They are, therefore, interested in knowing what is the character 1 Alderson, B., same case, p. 338. of their public servants, and what sort of persons are offering themselves for their suffrages. And if this be 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 that of these it was the province of a jury to judge, in view of the nature of the charges made and the reasons which existed for making them. The English cases allow considerable latitude of comment to publishers of public journals, upon subjects in the discussion of which the public may reasonably be supposed to have an [*441] interest, and they hold the discussions to be * privileged if conducted within the bounds of moderation and reason.1 A more recent case, however, limits the range of privilege somewhat, and suggests a distinction which we are not aware has ever been judicially pointed out in this country, and which we are forced to believe the American courts would be slow to adopt. The distinction is this: That if the officer or functionary whose conduct is in question is one in whose duties 1 In Kelley v. Sherlock, Law Rep. 1 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, Law Rep. 1 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. In Wason v. Walter, L. R. 4 Q. B. 73, the proprietor of the "London Times" was prosecuted for comments in his paper upon a debate in the House of Lords. The plaintiff had presented a petition to that body, charging Sir Fitzroy Kelly with hav ing, many years before, made a statement false to his own knowledge, in order to deceive a committee of the House of Commons; and praying inquiry, and his removal from an office he held, if the charge was found true. A debate ensued, and the charge was wholly refuted. Held, that this was a subject of great public concern, on which a writer in a public newspaper had full right to comment; and the occasion was therefore so far privileged that the comments would not be actionable so long as a jury should think them honest, and made in a fair spirit, and such as were justified by the circumstances disclosed in the debate. The opinion by Chief Justice Cockburn is very clear and pointed, and reviews all the previous decisions. See further, Fairchild v. Adams, 11 Cush. 549; Terry v. Fellows, 21 La. Ann. 375. the general public, and not merely the local public, has an interest, then a discussion of his conduct is privileged; otherwise it is not. Thus the public journals are privileged to comment freely within the limits of good faith, on the manner in which a judge performs his duties, but they are not privileged in like manner in the case of an official charged with purely local duties, such, for instance, as the physician to a local public charity. We cannot believe there is any sufficient reason for allowing free discussion in the one case and not in the other; but the opinion is of sufficient importance to justify special attention being directed to it. 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 1 Purcell V. Lowler, L. R. 1 C. P. Div. 781. The plaintiff was medical officer of the Kuntsford workhouse, and the alleged libel consisted in a report of an inquiry by the board in charge into his conduct and the treatment of the poor under him, and comments thereon. The following cases are commented upon and distinguished: Davis v. Duncan, 9 C. P. 396; Kelly v. Tinling, L. R. 1 Q. B. 699; Henwood v. Harrison, L. R. 7 C. P. 606; Wason v. Walter, L. R. 3 Marsh v. Ellsworth, 50 N. Y. 309; Terry v. Fellows, 21 La. Ann. 375; Smith v. Howard, 28 Iowa, 51. a dishonest witness is confined to the criminal prosecution for perjury. So what a juror may say to his fellows in the juryroom while they are considering their verdict, concerning one of the parties to the suit who has been a witness therein, cannot be the subject of an action for slander.2 False accusations, how 1 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. White v. Carroll, 42 N. Y. 166; s. c. 1 Am. Rep. 504; Barnes v. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393. ever, contained in the affidavits or other proceedings, by [* 442] which a prosecution is commenced for supposed crime, or in any other papers in the course of judicial proceedings, are not so absolutely protected. They are privileged, but the party making them is liable to action, if actual malice be averred and proved. 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; but the 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. If a party in presenting his case to a court, wanders from what is material to libel another, the libel is not privileged. Wyatt v. Buell, 47 Cal. 624. 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; Grove v. Brandenburg, 7 Black, 234; Cunningham v. Brown, 18 Vt. 123; Dunlap v. Glidden, 31 Me. 435. 2 Dunham v. Powers, 42 Vt. Rector v. Smith, 11 Iowa, 302. 5 Grimes v. Coyle, 6 B. Monr. 301. 1; The subject of communications privi. leged on grounds of public policy will 8 Astley v. Younge, Burr. 807; be found considered, at some length Strauss v. Meyer, 48 Ill. 385. 4 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; and with much ability, in the recent case of Dawkins v. Lord Paulet, Law Rep. 5 C. B. 94. The publication complained of was by a military officer to his superior concerning the qualifications and capacity of the plaintiff as a subordinate military officer under him; and it was averred that the words were published by the |