sible). plaintiff has submitted to the public: this is only an tion posapplication of the wider principle above stated as to the construction of a supposed libel (0). In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test: and a right of criticism limited to experts would be no longer a common right but a privilege. The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of misconduct (p), or purporting to describe the actual contents of the work being criticised (2). truth. Defamation is not actionable if the defendant shows Justification on that the defamatory matter was true; and if it was so, the ground of purpose or motive with which it was published is irrelevant. For although in the current phrase the statement of matter "true in substance and in fact" is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact. being communicated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially pleaded; the cause of action was confessed, but the special matter (0) Merivale v. Carson (1887) 20 Q. B. Div. 275; Jenner v. A'Beckett (1871) L. R. 7 Q. B. 11, 41 L. J. Q. B. 14. Qu. whether the dissenting judgment of Lush J. was not right. (p) Davis v. Shepstone (1886) J. C. 11 App. Ca. 187, 55 L. J. P. C. 51. (g) Merivale v. Carson, supra. Must be substantially complete. avoided the plaintiff's right (»). "The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess "(s). This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which only complete success will be profitable, and failure will be disastrous. What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not (t). What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact (u). There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor of a journal a "felon editor" by showing that he was once convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a (r) Compare the similar doctrine in trespass, which has peculiar consequences. But of this in its place. (s) Littledale J., 10 B. & C. at P. 272. (t) Fleming v. Dollar (1889) 23 Q. B. D. 388, 58 L. J. Q. B. 548. (u) Alexander v. North Eastern R. Co. (1865) 6 B. & S. 340, 34 L. J. Q. B. 152. pardon; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a "convicted felon " imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted (x). Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the offence without those circumstances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence (y). The limits of the authority which the Court will exercise over juries in handling questions of "mixed fact and law" must be admitted to be hard to define in this and other branches of the law of defamation. dant's Apparently it would make no difference in law that the Defendefendant had made a defamatory statement without any belief imbelief in its truth, if it turned out afterwards to have been material. true when made: as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court. of mem Parlia In order that public duties may be discharged without Immunity fear, unqualified protection is given to language used in bers of the exercise of parliamentary and judicial functions. A ment and member of Parliament cannot be lawfully molested out- judges. side Parliament by civil action, or otherwise, on account of anything said by him in his place in either House (2). (x) Leyman v. Latimer (1878) 3 Ex. Div. 352, 47 L. J. Ex. 470. (y) Helsham v. Blackwood (1851) 11 C. B. 128, 20 L. J. C. P. 187, a very curious case. (Pro (z) St. 4 Hen. VIII. c. Ricardo Strode); Bill of Rights, 1 Wm. & M. sess. 2, c. 2, "That Other persons in judicial proceedings. An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice (a). It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith. Parties, advocates, and witnesses in a court of justice are under the like protection. They are subject to the authority of the Court itself, but whatever they say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner's counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be (b); nor for a witness after his crossexamination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case (c). The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. A duly constituted military court of inquiry' is for this purpose on the same footing as an ordinary court of justice (d). So is a select committee of the House of Commons (e). Statements coming within this rule are (a) Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155; the protection extends to judicial acts, see the chapter of General Exceptions above, pp. 103-105, and further illustrations ap. Blake Odgers 188. (b) Munster v. Lamb (1883) 11 Q. B. Div. 588, where authorities are collected. (c) Seaman v. Netherclift (1876) 2 C. P. Div. 53, 46 L. J. C. P. 128. (d) Dawkins V. Lord Rokeby (1873-5) Ex. Ch. and H. L., L. R. 8 Q. B. 255, 7 H. L. 744, 45 L. J. Q. B. 8, see opinion of judges 7 H. L. at p. 752; Dawkins v. Prince Edward of Saxe Weimar (1876) 1 Q. B. D. 499, 45 L. J. Q. B. 567. (e) Goffin v. Donnelly (1881) 6 Q. B. D. 307, 50 L. J. Q. B. 303. said to be "absolutely privileged." The reason for pre- As to reports made in the course of naval or military Reports of officers, duty, but not with reference to any pending judicial pro- &c. ceeding, it is doubtful whether they come under this head or that of "qualified privilege." A majority of the Court of Queen's Bench has held (against a strong dissent), not exactly that they are "absolutely privileged," but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive (f). There is an important class of cases in which a middle Qualified immunity course is taken between the common rule of unqualified of "privileged responsibility for one's statements, and the exceptional communirules which give, as we have just seen, absolute protection cations." to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent (f) Dawkins v. Lord Paulet (1869) L. R. 5 Q. B. 94, 39 L. J. Q. B. 53, see the dissenting judgment of Cockburn C. J., and the notes of Mr. Justice Stephen, Dig. Cr. L. art. 276, and Mr. Blake Odgers, op. cit. 195. The reference of the Judicial Committee to the case in Hart v. Gumpach (1872) L. R. 4 |