In 1808, Lord Ellenborough, in Carr vs. Hood, stated the length of leash

given to the critic, and the law has not since been changed. Sir John

Carr, Knight, was the author of several volumes, entitled _A Stranger in

France_, _A Northern Summer_, _A Stranger in Ireland_, and other titles

of equal connotation. Thomas Hood was rather more deserving of a lasting

place in literature than his victim, because of his sense of humor, and

his well-known rapid-fire satire. According to the declaration of Sir

John Carr, the plaintiff, Hood had published a book of burlesque in

which there was a frontispiece entitled “The Knight leaving Ireland with

Regret,” and “containing and representing in the said print, a certain

false, scandalous, malicious and defamatory and ridiculous

representation of said Sir John in the form of a man of ludicrous and

ridiculous appearance holding a pocket handkerchief to his face, and

appearing to be weeping,” and also representing “a malicious and

ridiculous man of ludicrous and ridiculous appearance following the said

Sir John,” and bending under the weight of several books, and carrying a

tied-up pocket handkerchief with “Wardrobe” printed thereon, “thereby

falsely scandalously and maliciously meaning and intending to represent,

for the purpose of rendering the said Sir John ridiculous and exposing

him to laughter, ridicule and contempt,” that the books of the said Sir

John “were so heavy as to cause a man to bend under the weight thereof,

and that his the said Sir John’s wardrobe was very small and capable of

being contained in a pocket handkerchief.” And at the end of this

declaration Sir John alleged that he was damaged because of the

consequent decline in his literary reputation, and, it may be supposed,

because thereafter his books did not appear in the list of the “six

bestsellers” in the Kingdom.

But no recovery was allowed him, for it was laid down that if a comment,

in whatever form, only ridiculed the plaintiff as an author, there was

no ground for action. Said the eminent justice, “One writer, in exposing

the follies and errors of another, may make use of ridicule, however

poignant. Ridicule is often the fittest weapon for such a purpose....

Perhaps the plaintiff’s works are now unsalable, but is he to be

indemnified by receiving a compensation from the person who has opened

the eyes of the public to the bad taste and inanity of his

compositions?... We must not cramp observations on authors and their

works.... The critic does a great service to the public who writes down

any vapid or useless publication, such as ought never to have appeared.

He checks the dissemination of bad taste, and prevents people from

wasting both their time and money upon trash. Fair and candid criticism

every one has a right to publish, although the author may suffer a loss

from it. Such a loss the law does not consider an injury, because it is

a loss which the party ought to sustain. It is, in short, the loss of

fame and profits to which he was never entitled.”

Criticism need not be fair and just, in the sense that it conforms to

the judgment of the majority of the public, or the ideas of a judge, or

the estimate of a jury; but it must remain within certain bounds

circumscribed by the law.

In the first place, comment must be made honestly; in recent cases much

more stress has been laid upon this point than formerly. It is urged

that, if criticism is not sincere, it is not valuable to the public, and

the ground of public policy, upon which the doctrine of fair criticism

is built, fails to give support to comment which is born of improper

motives or begotten from personal hatred or malice. Yet he who seeks for

cases of criticism which have been decided against the critic solely on

the ground that the critic was malicious must look far. The requirement

in practice seems difficult of application, since, if the critic does

not depart from the work that he is criticising, to strike at the author

thereof as a private individual, and does not mix with his comment false

statements or imputations of bad motives, there is nothing to show legal

malice, and it is almost impossible to prove actual malice. If you

should conclude that your neighbor’s painting which has been on

exhibition is a beautiful marine, but if, because you do not like your

neighbor, you pronounce it to be a dreadful mire of blue paint, it would

be very hard for any other person to prove that at the moment you spoke

you were not speaking honestly. Again, if the comment is within the

other restrictions put by the law upon criticism, it would seem that to

open the question whether or not the comment was malicious, is in effect

very nearly submitting to the jury the question whether or not they

disagree with the critic, since the jury have no other method of

reaching a conclusion that the critic was or was not impelled by malice.

Malice, in fact, is a bugaboo in the law—and the law, especially the

civil law, avoids dealing with him whenever it can. Yet it is quite

certain that malice must be a consideration in determining what is fair

comment; an opinion which is not honest is of no help to the public in

its striving to attain high morals and unerring discernment. All the

reasons of public policy that give criticism its rights fly out of the

window when malice walks in at the door.

Some decisions of the courts seem to set the standard of fair comment

even higher. They not only demand that the critic speak with an honest

belief in his opinion, but insist also that a person taking upon himself

to criticise must exercise a reasonable degree of judgment. As one

English judge expressed it in charging the jury: “You must determine

whether any fair man, however exaggerated or obstinate his views, would

have said what this criticism has said.” It would seem, however, that in

many cases this would result in putting the judgment of the jury against

that of the critic. To ask the jury whether this comment is such as

would be made by a fair man is not distinguishable from asking them

whether the comment is fair, and it sometimes happens that, in spite of

the opinion of the jury,—in fact, the opinion of all the world,—the

single critic is right, and the rest of the community all wrong. Does

any one doubt that the comment of Columbus upon the views of those who

opposed him would have been considered unfair by a jury of his time,

until this doughty navigator proved his judgment correct? What would

have happened in a court of law to the man who first said that those who

wrote that the earth was flat were stupidly ignorant? Often the opinion

or criticism which is the most valuable to the community as a

contribution to truth is the very opinion which the community as a body

would call a wild inference by an unfair man; to hold the critic up to

the standard of a “fair man” is to deprive the public of the benefit of

the most powerful influences against the perpetuity of error.

No better illustration could be found than the case of Merrivale and

Wife _vs._ Carson, in which a dramatic critic said of a play: “_The Whip

Hand_ ... gives us nothing but a hash-up of ingredients which have been

used _ad nauseam_, until one rises in protestation against the loving,

confiding, fatuous husband with the naughty wife, and her double

existence, the good male genius, the limp aristocrat, and the villainous

foreigner. And why dramatic authors will insist that in modern society

comedies the villain must be a foreigner, and the foreigner must be a

villain, is only explicable on the ground that there is more or less

romance about such gentry. It is more in consonance with accepted

notions that your continental croupier would make a much better

fictitious prince, marquis, or count, than would, say, an English

billiard-maker or stable lout. And so the Marquis Colonna in _The Whip

Hand_ is offered up by the authors upon the altar of tradition, and

sacrificed in the usual manner when he gets too troublesome to permit of

the reconciliation of husband and wife and lover and maiden, and is

proved, also much as usual, to be nothing more than a kicked-out

croupier.”

The jury found that this amounted to falsely setting out the drama as

adulterous and immoral, and was not the criticism of a fair man.

Granting that there was the general imputation of immorality, it seems,

justly considered, a matter of the critic’s opinion. Is not the critic

in effect saying, “To my mind the play is adulterous; no matter what any

one else may think, the play suggests immorality to me”? And if this is

the honest opinion of the critic, no matter how much juries may differ

from him, it would seem that to stifle this individual expression was

against public policy, the very ground on which fair criticism becomes a

universal right. It does not very clearly appear that the case of

Merrivale and Wife _vs._ Carson was decided exclusively on the question

whether the criticism was that of a fair man, but this was the leading

point of the case. The decision and the doctrine it sets forth seem open

to much doubt.

III

Criticism must never depart from a consideration of the work of the

artist or artisan, or the public acts of a person, to attack the

individual himself, apart from his connection with the particular work

or act which is being criticised. The critic is forbidden to touch upon

the domestic or private life of the individual, or upon such matters

concerning the individual as are not of general public interest, at the

peril of exceeding his right. Whereas, in Fry vs. Bennett, an article in

a newspaper purported to criticise the management of a theatrical

troupe, it was held to contain a libel, since it went beyond matters

which concerned the public, and branded the conduct of the manager

toward his singers as unjust and oppressive.

J. Fenimore Cooper was plaintiff in another suit which illustrates the

same rule of law. This author had many a gallant engagement with his

critics, and, though it has been said that a man who is his own lawyer

has a fool for a client, Mr. Cooper, conducting his own actions, won

from many publishers, including Mr. Horace Greeley and Mr. Webb. In

Cooper vs. Stone the facts reveal that the author, having completed a

voluminous _Naval History of the United States_, in which he had given

the lion’s share of credit for the Battle of Lake Erie, not to the

commanding officer, Oliver H. Perry, but to Jesse D. Elliot, who was a

subordinate, was attacked by the _New York Commercial Advertiser_, which

imputed to the author “a disregard of justice and propriety as a man,”

represented him as infatuated with vanity, mad with passion, and

publishing as true, statements and evidence which had been falsified and

encomiums which had been retracted. This was held to exceed the limits

of fair criticism, since it attacked the character of the author as well

as the book itself.

The line, however, is not very finely drawn, as may be seen by a

comparison of the above case with Browning vs. Van Rensselaer, in which

the plaintiff was the author of a genealogical treatise entitled

_Americans of Royal Descent_. A young woman, who was interested in

founding a society to be called the “Order of the Crown,” wrote to the

defendant, inviting her to join and recommending to her the book. The

latter answered this letter with a polite refusal, saying that she

thought such a society was un-American and pretentious, and that the

book gave no authority for its statements. The court said that this,

even though it implied that the author was at fault, was not a personal

attack on his private character.

An intimate relationship almost always exists between the doer of an act

which interests the public and the act itself; the architect is closely

associated with his building, the painter with his picture, the author

with his works, the inventor with his patent, the tradesman with his

advertisement, and the singer with his song; and the critic will find it

impossible not to encroach to some extent upon the personality of the

individual. It seems, however, that the privilege of comment extends to

the individual only so far as is necessary to intelligent criticism of

his particular work under discussion. To write that Mr. Palet’s latest

picture shows that some artists are only fit to paint signs is a comment

on the picture, but to write, apart from comment upon the particular

work, that Mr. Palet is only fit to paint signs is an attack upon the

artist, and if it is untrue, it is libel for which the law allows

recovery.

No case presents a more complete confusion of the individual and his

work than that of an actor. His physical characteristics, as well as his

personality, may always be said to be presented to general public

interest along with the words and movements which constitute his acting.

The critic can hardly speak of the performance without speaking of the

actor himself, who, it may be argued, presents to a certain extent his

own bodily and mental characteristics to the judgment of the public,

almost as much as do the ossified man and the fat lady of the side show.

The case of Cherry _vs._ the _Des Moines Leader_ will serve to

illustrate how far the critic who is not actuated by malice may comment

upon the actors as well as the performance, and still be held to have

remained within the limits of fair criticism. The three Cherry sisters

were performers in a variety act, which consisted in part of a burlesque

on _Trilby_, and a more serious presentation entitled, _The Gypsy’s

Warning_. The judge stated that in his opinion the evidence showed that

the performance was ridiculous. The testimony of Miss Cherry included a

statement that one of the songs was a “sort of eulogy on ourselves,” and

that the refrain consisted of these words:—

“Cherries ripe and cherries red;

The Cherry Sisters are still ahead.”

She also stated that in _The Gypsy’s Warning_ she had taken the part of

a Spaniard or a cavalier, and that she always supposed a Spaniard and a

cavalier were one and the same thing. The defendant published the

following comment on the performance: “Effie is an old jade of fifty

summers, Jessie a frisky filly of forty, and Addie, the flower of the

family, a capering monstrosity of thirty-five. Their long, skinny arms,

equipped with talons at the extremities, swung mechanically, and anon

waved frantically at the suffering audience. The mouths of their rancid

features opened like caverns, and sounds like the wailings of damned

souls issued therefrom. They pranced around the stage with a motion that

suggested a cross between the _danse du ventre_ and fox-trot—strange

creatures with painted faces and hideous mien.” This was held to be fair

criticism and not libelous; for the Misses Cherry to a certain extent

presented their personal appearance as a part of their performance.

The critic must not mix with his comment statement of facts which are

not true, since the statement of facts is not criticism at all. In

Tabbart _vs._ Tipper, the earliest case on the subject, the defendant,

in order to ridicule a book published for children, printed a verse

which purported to be an extract from the book, and it was held that

this amounted to a false accusation that the author had published

something which in fact he had never published; it was not comment, but

an untrue statement of fact. So when, as in Davis _vs._ Shepstone, the

critic, in commenting upon the acts of a government official in

Zululand, falsely stated that the officer had been guilty of an assault

upon a native chief, the critic went far beyond comment, and was liable

for defamation. Not unlike Tabbart _vs._ Tipper is a recent case,

Belknap _vs._ Ball. The defendant, during a political campaign, printed

in his newspaper a coarsely executed imitation of the handwriting of a

political candidate of the opposing party, and an imitation of his

signature appeared beneath. The writing contained this misspelled,

unrhetorical sentence: “I don’t propose to go into debate on the tariff

differences on wool, quinine, and such, because I ain’t built that way.”

Readers were led to believe that this was a signed statement by the

candidate, and the newspaper was barred from setting up the plea that

the writing was only fair criticism made through the means of a

burlesque; it was held that imputing to the plaintiff something he had

never written amounted to a false statement of fact, and was not within

fair comment.

The dividing line between opinion and statement of fact is, however,

most troublesome. Mr. Odgers, in his excellent work on _Libel and

Slander_, remarks that the rule for the distinction between the two

should be that “if facts are known to hearers or readers or made known

by the writer, and their opinion or criticism refers to these true

facts, even if it is a statement in form, it is no less an opinion. But

if the statement simply stands alone, it is not defended.” Applying this

rule, what if a critic makes this simple statement: “The latest book of

Mr. Anonymous is of interest to no intelligent man”? According to the

opinion of Mr. Odgers, it would seem that such a sentence standing alone

was a statement of fact, whereas it is manifest that no one can think

that the critic meant to say more than that in his opinion the book was

not interesting. In Merrivale and Wife _vs._ Carson, the jury found that

the words used by the critic described the play as adulterous, and the

court said that this was a misdescription of the play—a false statement

of fact; but an adulterous play may be one which is only suggestive of

adultery; and even if the critic had baldly said that the play was

adulterous, many of us would think that he was only expressing his

opinion.

Since the test of whether the statement is of opinion or of fact lies,

not in what the critic secretly intended, but rather in what the hearer

or reader understood, the question is for the jury, and, it seems,

should be presented to them by the court in the form: “Would a

reasonable man under the circumstances have understood this to be a

statement of opinion or of fact?”

One other care remains for the critic: he must not falsely impute a bad

motive to the individual when commenting upon his work. No less a critic

than Ruskin was held to have made this mistake in the instance of his

criticism of one of Mr. Whistler’s pictures. This well-known libel case

may be found reported in the _Times_ for November 26 and 27, 1878. “The

mannerisms and errors of these pictures,” wrote Mr. Ruskin, alluding to

the pictures of Mr. Burne-Jones, “whatever may be their extent, are

never affected or indolent. The work is natural to the painter, however

strange to us, and is wrought with utmost care, however far, to his own

or our desire, the result may yet be incomplete. Scarcely as much can be

said for any other picture in the modern school; their eccentricities

are almost always in some degree forced, and their imperfections

gratuitously if not impertinently indulged. For Mr. Whistler’s own sake,

no less than for the protection of the purchaser, Sir Coutts Lindsay

ought not to have admitted works into the gallery in which the

ill-educated conceit of the artist so nearly approached the aspect of

wilful imposture. I have seen and heard much of cockney impudence before

now, but never expected to hear a coxcomb ask 200 guineas for flinging a

pot of paint in the public’s face.”

Out of all this, stinging as it must have been to Mr. Whistler, unless,

since he loved enemies and hated friends, he therefore found pleasure in

the metaphorical thrashings he received, the jury could find only one

phrase, “wilful imposture,” which, because it imputed bad motives,

overstepped the bounds of fair criticism.

Mr. Odgers’s treatise states the rule to be that “When no ground is

assigned for an inference of bad motives, or when the writer states the

imputation of bad motives as a fact within his knowledge, then he is

only protected if the imputation is true. But when the facts are set

forth, together with the inference, and the reader may judge of the

right or wrong of the opinion or inference, then if the facts are true,

the writer is protected.” It is, however, difficult to see why the

imputation of bad motives in the doer of an act or the creator of a work

of art should in any case come under the right of fair comment, for, no

matter how bad the motives of the individual may be, they are of no

consequence to the public. If a book is immoral, it is immaterial to a

fair criticism whether or not the author meant it to have an immoral

effect; the public is not helped to a proper judgment of the book by any

one’s opinion of the motives of the author, and if the book is bad in

its effect, it makes it no better that the author was impelled by the

best of intentions, or it makes it no worse that the author was acting

with the most evil designs. And if, as in most of the cases that have

arisen, the imputation is one of insincerity, fraud, or deception

practiced upon the public,—where, for example, the critic, in commenting

upon a medical treatise, about which he had made known all the facts,

said that he thought the author wrote the book, not in the interest of

scientific truth, but rather to draw trade by exploiting theories which

he did not believe himself,—it would seem that this charge of fraud or

deception should not be protected as a piece of fair comment, but that

it should be put upon an equality with all other imputations against an

individual, which if untrue and damaging would be held to be libel or

slander. Under Mr. Odgers’s rule, in making a comment upon the acts of a

public officer, one could say, “In pardoning six criminals last week the

governor of the province, we think, has shown that he wishes to

encourage criminality.” No court would, we think, hold this to be within

the right of fair comment upon public matters. If the critic had said,

however, “We think that the governor of the province, in pardoning six

criminals, encouraged criminality,” all the true value of criticism

remains, and the imputation that the public officer acted from an evil

motive is stripped away. The best view seems to be that the right of

fair comment will not shield the false imputations of bad motive.

Whether or not the critic may impute to the individual certain opinions

does not seem to be settled, but logically this would be quite as much a

statement of fact, or a criticism directed at the individual, as an

imputation of bad motives. A few courts in this country have expressed a

leaning to the opposite view, but the ground upon which they place their

opinion does not appear.

From the legal point of view, then, we as critics are all held to a high

standard of fairness. We must not comment upon any but matters of public

interest. We must be honest and sincere, but we may express any view, no

matter how prejudiced or exaggerated it may be, so long as it does not

exceed the limits to which a reasonably fair man would go; we must not

attack the individual any more than is consistent with a criticism of

that which he makes or does, and we must not expect that we are within

our right of comment when we make statements of fact or impute to the

individual evil motives.

All the world asks the critic to be honest, careful, above spite and

personalities, and polite enough not to thrust upon us a consideration

in which we have no interest. The law demands no more.

HONEST LITERARY CRITICISM

BY CHARLES MINER THOMPSON

I

There are five groups interested in literary criticism: publishers of

books, authors, publishers of reviews, critics, and, finally, the

reading public.

An obvious interest of all the groups but the last is financial. For the

publisher of books, although he may have his pride, criticism is

primarily an advertisement: he hopes that his books will be so praised

as to commend them to buyers. For the publisher of book-reviews,

although he also may have his pride, criticism is primarily an

attraction for advertisements: he hopes that his reviews will lead

publishers of books to advertise in his columns. For the critic,

whatever his ideals, criticism is, in whole or in part, his livelihood.

For the author, no matter how disinterested, criticism is

reputation—perhaps a reputation that can be coined. In respect of this

financial interest, all four are opposed to the public, which wants

nothing but competent service—a guide to agreeable reading, an adviser

in selecting gifts, a herald of new knowledge, a giver of intellectual

delight.

All five groups are discontented with the present condition of American

criticism.

Publishers of books complain that reviews do not help sales. Publishers

of magazines lament that readers do not care for articles on literary

subjects. Publishers of newspapers frankly doubt the interest of

book-notices. The critic confesses that his occupation is ill-considered

and ill-paid. The author wrathfully exclaims—but what he exclaims cannot

be summarized, so various is it. Thus, the whole commercial interest is

unsatisfied. The public, on the other hand, finds book-reviews of little

service and reads them, if at all, with indifference, with distrust, or

with exasperation. That part of the public which appreciates criticism

as an art maintains an eloquent silence and reads French.

Obviously, what frets the commercial interest is the public indifference

to book-reviews. What is the cause of that?

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