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