his favor. Meantime the press is gradually becoming more just, liberal, and dignified in its dealings with political opponents, and vituperation is much less common, reckless, and bitter now than it was at the beginning of the century, when repression was more often resorted to as a remedy." Const. Lim. (7th Ed.) 644n. This statement of the results of Judge Cooley's observation is in full accord with our own local experience. Without speaking for other States in which the liberal rule applied in Balch's Case prevails, it may be said that here at least men of unimpeachable character from all political parties continually present themselves as candidates in sufficient numbers to fill the public offices and manage the public institutions, and the conduct of the press is as honest, clean, and free from abuse as it is in States where the narrow view of privilege obtains.. ... Since the only reason given for the rejection of the liberal rule fails, it is pertinent to inquire if the consequences of the narrow rule are so innocuous as the Hallam Case asserts. . . . Will the liberty of the press be endangered if the discussion of such matters must be confined to statements of demonstrable truth, and to what a jury may ex post facto say is "fair" criticism and comment? Will free discussion of the subjects indicated be smothered if the newspapers understand that they must respond in damages for deducing and stating a wrong conclusion of fact from strong circumstantial evidence indicating fraud, corruption, or other conduct injurious to the public welfare? The case of Atkinson v. Detroit Free Press, 46 Mich. 341, 9 N. W. 501, was decided upon a question of pleading and a question of evidence; the opinion of the Court did not treat the subject of privilege. Judge COOLEY, however, took occasion to express himself upon the point now under consideration as follows: "The beneficial ends to be subserved by public discussion would in large measure be defeated if dishonesty must be handled with delicacy and fraud spoken of with such circumspection and careful and deferential choice of words as to make it appear in the discussion a matter of indifference. . . . Who would venture to expose a swindler or a blackmailer, or to give in detail the facts of a bank failure or other corporate defalcation, if every word and sentence must be uttered with judicial calmness and impartiality as between the swindler and his victims, and every fact and every inference be justified by unquestionable legal evidence? The undoubted truth is that honesty reaps the chief advantages of free discussion; and fortunately it is honesty, also, that is least liable to suffer serious injury when the discussion incidentally affects it unjustly." .. It may be observed, further, that the distinction between comment and statements of fact cannot always be clear to the mind. Expression of opinion and judgment frequently have all the force of statements of fact and pass by insensible gradations into declarations of fact. In England fair comment includes the inference of motives if there be foundation for the inference. Hunter v. Sharpe, 4 F. & F. 983; Camp bell v. Spottiswoode [ante, No. 932]. . . . What is a charge of intoxication — an inference from conduct and appearances and therefore fair comment or the statement of a fact? What is the difference between a charge of intoxication and the following: "Having appearances which were certainly consistent with the belief that they had imbibed rather freely of the cup that inebriates. Their condition in the chapel also led one to such a conclusion"? In England this statement is fair comment. Davis v. Duncan, L. R. 9 C. P. 396. In New York, no matter how strongly appearances and conduct may justify the inference, a charge of intoxication made against a public officer must be fully proved. King v. Root, 4 Wend. 114, 21 Am. Dec. 102. In keeping plain the distinction between comment and statements of fact, the Courts of some of the States leave the law very much in the attitude of saying to the newspaper: "You have full liberty of free discussion, provided, however, you say nothing that counts.' Aside from other reasons for adhering to it, the Court is of the opinion that the rule in Balch's Case accords with the best practical results obtainable through the law of libel under existing conditions, that it holds the balance fair between public need and private right, and that it is well adapted to subserve all the high interests at stake those of the individual, the press, and the public. .2. The plaintiff argues that the defence of privilege was destroyed by the fact that copies of the defendant's newspaper circulated in other States, complains of the instructions given upon the subject, and insists that the instruction offered by him should have been given. The instruction given was correct and follows the rule announced by this Court in Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, 48 L. R. A. 236. There a matter of interest to communicants of a church was published in the church papers in Indiana, Ohio, Texas, and Nebraska. It was inevitable that they should be read by people of other denominations. The syllabus reads: "Where the publication appears to have been made in good faith and for the members of the denomination alone, the fact that it incidentally may have been brought to the attention of others than members of the church will not take away its privileged character." This accords with the general rule. . . . In the cases of State of Iowa v. Haskins, 109 Iowa, 656, 80 N. W. 1063, 47 L. R. A. 223, 77 Am. St. Rep. 560, Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 403, 59 Am. St. Rep. 853, and Sheftall v. Central Railway Co., 123 Ga. 589, 51 S. E. 646, language is used from which it might be inferred that privilege will be destroyed if the communication should reach the eyes of others than persons interested. This would be the end of privilege for all newspapers having circulation and influence. Generally the publication must be no wider than will meet the requirements of the moral or social duty to publish. If it be designedly or unnecessarily or negligently excessive, privilege is lost. But, if a State newspaper published primarily for a State constituency have a small circu lation elsewhere, it is not deprived of its privilege in the discussion of matters of State-wide concern because of that fact. The judgment of the district court is affirmed.1 Topic 3. Repetitions and Reports of Untrue Statements 939. LEWIS v. WALTER. ... (1821. 4 B. & Ald. 605.) ... Platt, arguing.. In this case, the defendant has not transgressed the bounds of truth, for he has only alleged by the supposed libel that the libellous matter had been published by the proprietors of the Hampshire Telegraph, which was in fact the case; not vouching himself for its authenticity, but citing his authority; so that his publication of it could not give any confirmation or authenticity to the slander, which still stood upon the authority of the original propagator of it. Now it is a general rule, that if A publish to B slanderous words, and B reports them as he heard them from A, A [and not B] shall be answerable for all the damage which the individual so calumniated may sustain by reason of B's having so reported it. Earl of Northampton's case, 12 Rep. 134. Upon principle, the same rule will apply to libels. . . . ... ... HOLROYD, J. I am of opinion that these pleas are bad. In actions for slander, the truth may be pleaded as a legal defence. It is, however, a very different thing to justify the repetition of slander, by alleging, as a bar, that some other person was originally the author of it. For it does not follow, that, because a defendant may justify slander if true, he may also justify the repetition of slanderous words which are not true, if he has heard them from another person. Unless we go the length of holding that such a repetition would be justifiable, even when spoken from a bad motive, we cannot support the present pleas. All the cases on this subject arise out of the case of Earl of Northampton, 12 Rep. 133. They do not, however, confirm that decision, but all go on the ground of being distinguishable from it. The book in which that case is found is not so accurate as the rest of the reports of Lord Coke, not having been published by him in his lifetime, but from his notes afterwards. The point there is stated in very general terms, and as it seems to me, may be questionable. It is put thus: "In a private action for slander of a common person, if J. S. publish that he hath heard J. W. say that J. G. was a traitor or thief, in an action on the case, if the truth be such, he may justify." It is observable, that Lord Coke does not say that it is lawful 1 [ESSAYS: Van Vechten Veeder, "Freedom of Public Discussion." (H. L. R., XXVII, 413.) NOTES: "Defamation of a public officer in a newspaper." (A. L. R., LVII, 469.) "Libel-privileged communications concerning candidates for public office." (C. L. R., X, 779.) "Fair comment: criticism of book and author." (H. L. R., XI, 53.) "Criticism of judge when candidate for office." (H. L. R., XI, 336.) "Candidate for public office: statements of fact defamatory." XV, 159; VIII, 63.) (H. L. R., "Privileged communications: comment on candidate for public office." (H. L. R., XXII, 445, 455.) "Criticism - literary criticism as libel." (M. L. R., III, 64.)] to repeat slander in all cases and at all times, but only that the party may justify under certain circumstances. ... Taking, therefore, the whole together, it seems to me, that the proper way is, to take the passage with this qualification, that if J. S. publish, on a fair and justifiable occasion, that he hath heard J. W. say that J. G. was a traitor or thief, he may, if the truth be such, justify. It must not, therefore, be taken as a general rule, even in oral slander, that the malicious repetition of it may be justified, if the name of the author be given up at the time. If it could, it would be productive of mischief; for the person slandered could bring no action against the malicious repeater, and if he did discover who the person was, and brought an action against him, he might only be able to support it by the testimony of the very person who had so maliciously repeated it. Perhaps, therefore, the rule has been laid down too largely in the Earl of Northampton's case, and ought to be qualified, by confining it to cases where there is a fair and just reason for the repetition of the slander. SUB-TOPIC A. REPORTS OF JUDICIAL PROCEEDINGS 940. JEREMY BENTHAM. Draught of a Code for the Organization of the Judicial Establishment. (1790. ch. I, Tit. I, Art. XVIII.) Principles of Judicial Procedure. (1820. ch. XX, § 4.) (Works, ed. Bowring, vol. IV, p. 316, vol. II, p. 114.) Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones hereinafter specified, be carried on with the utmost degree of publicity possible. . . . Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. Under the auspices of publicity, the cause in the court of law, and the appeal to the court of public opinion, are going on at the same time. So many bystanders as an unrighteous judge, or rather a judge who would otherwise be unrighteous, beholds attending in his court, so many witnesses he sees of his unrighteousness, so many condemning judges, so many ready executioners, and so many industrious proclaimers of his sentence. By publicity, the court of law, to which his judgment is appealed from, is secured against any want of evidence of his guilt. It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced, by the most impressive means, and into a theatre, where the sports of the imagination give place to the more interesting exhibitions of real life. Nor is publicity less auspicious to the veracity of the witness than to the probity of the judge. Environed as he sees himself by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths. Many a known face, and every unknown countenance, presents to him a possible source of detection, from whence the truth he is struggling to suppress may through some unsuspected connection burst forth to his confusion. Without publicity, all other checks are fruitless: in comparison of publicity, all other checks are of small account. It is to publicity, more than everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst. It is for want of this essential principle, more than anything else, that the well-meant labors of Frederick and Catherine in the field of justice have fallen so far short of the mark at which they aimed. . . . Of this publicity, one effectual means is liberty to all persons without excep ... tion to take notes of everything that passes in the justice-chamber; and to the report founded thereon, to give whatsoever mode and degree of publicity the person in question is able and willing to give to it. Of the instruction thus derived, the utility will depend upon and be in proportion to the clearness, correctness, and comprehensiveness, as also the exact relevancy, of the matter to which publicity is so given. The end and purpose of it will be counteracted by every lot of surplusage, that is to say, of irrelevant matter, however in other respects innoxious. But it will be counteracted in a universal degree, and evil opposite to the ends of justice produced, if in the account so published, mention be made of any matter, the effect or tendency of which is to bring down ridicule upon an injured individual, by whom, at the hands of the judge, relief from the burthen of the wrong is sought, insomuch that the injured suitor obtains in the chamber of justice, along with relief from wrong, an addition to and aggravation of it. For the prevention of evil in this shape, every judge will, in his judicatory, keep an attentive eye on whatever reports happen to be given of the proceedings in his judicatory, by the public prints. At the instance of the party wronged, or even of his own motion, he will place to the account of defamation, and consider as a species of the offence so designated, any published discourse, any part of which has for its object the producing mirth at the expense of a "person wronged, on the occasion of the application made by him for redress at the hands of the judge: calling forth mirth at his expense, and thereby inflicting on him the species of mental vexation, the production of which is among the results of ridicule. ... 941. THOMAS BABINGTON MACAULAY. Notes on the Indian Penal Code. (1837. Note (R), Miscellaneous Works, Harper's ed., vol. IV, p. 323.) . . . By Clause 473 we have allowed all persons freely to discuss in good faith the proceedings of courts of law, and the characters of parties, agents, and witnesses as connected with those proceedings. It is almost universally acknowledged that the courts of law ought to be thrown open to the public. But the advantage of throwing them open to the public will be small, indeed, if the few who are able to press their way into the court are forbidden to report what has passed there to the vast numbers who were absent, or if those who are allowed to know what has passed are not allowed to comment on what has passed. The only reason that the whole community is not admitted to hear every trial that takes place is that it is physically impossible that they should find room; and, by Clause 473, we do our best to counteract the effect of this physical impossibility. 942. CURRY v. WALTER COMMON PLEAS. 1796 1 B. & P. 525 THIS was an action for printing and publishing in the newspaper called "The Times," under the title of "Law Reports," a libel on the plaintiff. It imported to be an account of an application to the Court of King's Bench for an information against the plaintiff and a Mr. Bingham, both justices of the peace for Hampshire, for refusing to license an inn at Gosport. The ground of the application, as moved |