vol. viii., at p. 275, and the Statute of 1696, 7 & 8 Will. III. c. 25, usually known as Lord Somers' Act, or the "Splitting Act," which was the first legislative attempt to put an end to it, was merely declaratory of the common law.

By sec. 6 of that Act all conveyances of any messuages, lands, tenements, or hereditaments, in any county, city, borough, town corporate, port, or place in order to multiply voices or to split and divide the interest in any houses or lands among several persons to enable them to vote at elections of members to serve in Parliament, were thereby declared to be void and of no effect, and no more than one single voice was to be admitted for one and the same house or tenement.

The Elections (Fraudulent Conveyances) Act, 1711, 10 Anne, c. 31, after reciting the above section, and that notwithstanding such provision to the contrary many fraudulent and scandalous practices had been used of late to create and multiply votes at the election of knights of the shire to serve in Parliament, to the great abuse of the ancient law and custom, to the great injury of those persons who have just right to elect, and in prejudice of the freedom of such elections, for the more effectual preventing such undue practices enacted that all estates and conveyances whatsoever made to any persons in any fraudulent or collusive manner on purpose to qualify them to give their votes at such elections, subject, nevertheless, to conditions or agreements to defeat or determine such estate, or to reconvey the same, should be deemed against those persons who executed them as free and absolute, and be held and enjoyed by the persons to whom such conveyances were made freely and absolutely, discharged from all trusts, conditions, clauses of re-entry, powers of revocation, provisos of redemption, or other defeasances whatsoever, between or with the said parties or any other persons in trust for them. It was also enacted that all collateral securities for the revocation of such conveyances should be void, and that persons executing or voting upon such conveyances should be liable to a penalty of forty pounds.

The provisions of the Elections (Fraudulent Conveyances) Act, 1711, were extended to cities and towns being counties of themselves by the Parliamentary Elections (Fraudulent Conveyances) Act, 1739, 13 Geo. II. c. 20; see also the Parliamentary Elections Act, 1745, 19 Geo. II. c. 28.

In consequence of it being doubtful whether devises of land by will made for the purpose of creating votes were within the true intent and meaning of the Statute 7 & 8 Will. III. c. 25, s. 6, the Parliamentary Elections Act, 1813, 53 Geo. III. c. 49, s. 1, expressly provided that all devises by will made for such purposes were to be deemed to be conveyances within the meaning of that section.

The numerous decisions upon the construction of these statutes conclusively show that conveyances for valuable consideration are not void. under the statutes, even though they were intended to multiply votes and actually had that effect, provided that they were made bona fide and without fraud. Thus a conveyance of land by one vendor to several purchasers for a bona fide consideration is valid, although the avowed object of the vendor is to multiply, and that of the purchasers to acquire, the right of voting (Alexander v. Newman, 1846, 2 C. B. 122; see also Beswick v. Ashworth, 1846, ibid. 152; Beswick v. Aked, 1846, ibid. 156; Rawlins v. Bremner, 1846, ibid. 166). And a conveyance made to carry

into effect a real bona fide contract of sale when the purchase money is paid and the possession taken, without any secret reservation or trust whatever for the benefit of the vendor, is not within the Statute of 1696, notwithstanding it is made with a view to the multiplying of votes or the splitting of freeholds; the intention of the statute being to avoid such conveyances only made with that view as are in themselves fraudulent and collusive (Riley v. Crossley, 1846, 2 C. B. 146). It has also been decided that a conveyance made for a bona fide consideration in trust as to one-tenth for the grantor himself, and as to the other nine-tenths for certain other parties who amongst themselves contributed nine-tenths of the purchase money, is not within the statute, notwithstanding that the avowed object of the grantor was to multiply, and of the other parties to acquire, the right of voting (Thornley v. Aspland, 1846, 2 C. B. 160). So also where a father in good faith executed a deed of gift in favour of his sons, which was expressed to be in consideration of natural love and affection, it was held to be valid, although the avowed object of the father was to confer votes upon his sons (Newton v. Hargreaves, 1846, 2 C. B. 163; see also Newton v. Overseers of Mobberley, 1846, ibid. 203; Newton v. Overseers of Crowley, 1846, ibid. 207).

In order to render a conveyance void under the statute of 1696 as having been made in order to multiply votes, or to split and divide the interest in any houses or lands, it must be shown that the vendor was a party to the illegal object intended by the conveyance (Marshall v. Bown, 1845, 1 Lut. 278). So where the owners of a house in a borough contracted to sell it for a valuable consideration to A., who, after such contract, sold it bona fide to six other persons, and caused the conveyance to be made from the original owners to them, A.'s object being to increase the number of voters in the borough, but the object of the six purchasers being a bona fide investment of their money, though they expected that the possession of the property would entitle each of them to vote, it was held that, as it did not appear that the parties conveying had any knowledge of the object for which the house was purchased, the conveyance was not void under the statute (ibid.). And it has been held that a bona fide purchase of land for a valuable consideration is not rendered void under the statute, even though the purchasers bought the land with the object of splitting and dividing the interest therein among themselves, and such object was known and acquiesced in by the solicitor or agent of the vendor, the vendor himself not being cognisant of such purpose (see Hoyland v. Bremner, 1846, 2 C. B. 84).

Moreover, a fraudulent conveyance made for the mere purpose of conferring a vote is not absolutely avoided by the statutes, but is void only to the extent of preventing the right of voting from being acquired; it is, however, valid and effectual as between the parties to pass the interest (Phillpotts v. Phillpotts, 1850, 10 C. B. 85).

Protection against the creation of fraudulent and occasional votes is at the present time also afforded by the modern statutory provisions requiring the registration of voters, the actual possession of the freehold, or receipt of the rents and profits for six months previous to registration (see Representation of the People Act, 1832, 2 & 3 Will. iv. c. 45, s. 26; Parliamentary and Municipal Registration Act, 1878, 41 & 42 Vict. c. 26, s. 7; Registration Act, 1885, 48 & 49 Vict. c. 15, s. 12), and the actual occupation of freeholds for life under the yearly value of £5

(see Representation of the People Act, 1832, s. 18, and Representation of the People Act, 1867, 30 & 31 Vict. c. 102, s. 5; see also Trenfield v. Lowe, 1869, L. R. 4 C. P. 454; Druitt v. The Overseers of Christchurch, 1883, 12 Q. B. D. 365). Recent legislation tending to check the creation of faggot votes is also contained in the Representation of the People Act, 1884, 48 & 49 Vict. c. 3, by which it is provided that no one is to be entitled to be registered as a voter in respect of the ownership of any rent-charge, except the owner of the whole of the tithe rent-charge of a benefice to which an apportionment of tithe rentcharge has been made in respect of any portion of tithes (ibid. s. 4 (1)). And where two or more persons are owners, either as joint-tenants or as tenants in common of an estate in any land or tenements, one only of them, but not more than one, is, if his interest is sufficient to confer on him a qualification as a voter in respect of the ownership of such estate, entitled to be registered as a voter, provided that where such owners have derived their interest by descent, succession, marriage, marriage settlement, or will, or where they occupy the land or tenement, and are bona fide engaged as partners carrying on trade or business thereon, each of them whose interest is sufficient to confer on him a qualification as a voter is entitled to be registered and to vote, and the value of the interest of each such owner, where not otherwise legally defined, is to be ascertained by the division of the total value of the land or tenement equally among the whole of such owners (ibid. s. 4 (2); see also as to joint-tenancies created in order to confer votes, Gallagher v. Campbell, 1892, Lawson, Notes of Decisions in Registration Cases, p. 229; Torish v. Stevenson, 1893, ibid. 230; Mooney v. Chambers, [1894] 2 Ir. Rep. 374). The rights of persons registered as voters at the time of the passing of the Act are not, however, affected (Representation of the People Act, 1884, s. 10; see also M'Intyre v. Black (Keenan's Case), 1888, Lawson, Notes of Decisions in Registration Cases, p. 300).

See also FRANCHISE (ELECTORAL); REGISTRATION.

Failure of Issue.-See DIE WITHOUT ISSUE, and EXECUTORY INTERESTS, Vol. V. pp. 601, 602.

Fair Comment.-It is a defence to an action of libel or slander if the defendant can show that his words, though prima facie defamatory, are a fair comment on a matter of public interest. Such defence will, however, be destroyed if the plaintiff can show that the words were published maliciously.

Similarly it is a defence to an indictment for a seditious libel and to an indictment for a libel defamatory of a private individual, if the defendant can show that the words complained of are a fair comment on a matter of public interest; unless the prosecutor can satisfy the jury that the words were published maliciously.

The onus of proving that the words are prima facie libellous, and that the defendant published them, lies on the plaintiff or prosecutor. The onus of proving that the words relate to a matter of public interest, and that they are a comment and not the assertion of a fact, or that if they assert facts, the facts are as he has asserted them to be, lies on the defendant. As soon as the defendant has done this, the burden of proof shifts, and it is now for the plaintiff or prosecutor to prove either that the defendant's words exceed the limits of a fair comment, or that he published them maliciously. It is for the judge to decide whether

the matter to which the words relate is or is not a matter of public interest; all other questions are for the jury, if there is any evidence fit to be submitted to them thereon.

This is the law as now settled by the recent decisions of the Court of Appeal in McQuire v. Western Morning News Co., [1903] 2 K. B. 100, and Thomas v. Bradbury, Agnew & Co., Ltd., and Another, [1906] 2 K. B. 627; and by Mr. Justice Bray in his summing-up in R. v. Russell, at the Liverpool Autumn Assizes, Liverpool Daily Post, December 4, 1905.

But this view of the law is quite a recent development. The whole matter was till lately involved in much doubt and controversy; and the origin of the doctrine is obscure. At the end of the eighteenth and the beginning of the nineteenth century, malice was still regarded as "the gist of an action of defamation," and it therefore seems to have been thought that a fair comment or "a fair criticism" could not be an actionable libel, because it was not malicious. Thus in Tabart v. Tipper, 1808, 1 Camp., at p. 351; 10 R. R. 689, Lord Ellenborough, C.J., remarks: "The main question here is, quo animo the defendant published the article complained of, whether he meant to put down a nuisance to public morals, or to prejudice the plaintiff." But this quo animo was not regarded as "the main question" by later judges.

Immunity was however very sparingly allowed to comments on public affairs. In Jacobite days, and again at the time of the French Revolution, the ministers of the Crown were afraid to allow free discussion of matters of State. Englishmen, then as now, sturdily maintained their unquestionable right to freely discuss the affairs of the nation; but the result was too often the loss of their ears and an unpleasant sojourn in the pillory. Anything that tended "to subvert the Government" was regarded as a seditious libel (per Lord Holt, C.J., in R. v. Beere, 1698, 12 Mod. 221). Or, as Lord Ellenborough, C.J., said in 1804: "It is no new doctrine that if a publication be calculated to alienate the affections of the people, by bringing the Government into disesteem, whether the expedient be by ridicule or obloquy, it is a crime" (R. v. Cobbett, 29 Howell's St. Tr. 49). It is true that in 1796 Lord Kenyon had said: "The power of free discussion is the right of every subject of this country. . . . In a free country like ours, the productions of a political author should not be too hardly dealt with (R. v. Reeves, Peake, Add. C. 86). But even he would never have tolerated the kind of political writing which now passes muster as a fair

comment.

It is therefore to actions brought for criticism on books and plays written by private individuals-actions in which the Government had no concern that we must look for the earliest instances of the application of the right of fair comment. One of the first decisions reported on the point is Dibdin v. Swan and Bostock, 1793, 1 Esp. 28; 5 R. R. 717. this case "Lord Kenyon stated the law on this subject to be-That the editor of a public newspaper may fairly and candidly comment on any place or species of public entertainment, but it must be done fairly and without malice or view to injure or prejudice the proprietor in the eyes. of the public. That if so done, however severe the censure, the justice of it screens the editor from legal animadversion; but if it can be proved that the comment is unjust, is malevolent, or exceeding the bounds of fair opinion, that such is a libel, and therefore actionable (p. 29).

In Heriot v. Stuart, 1796, 1 Esp. 437, Lord Kenyon, L.C.J., held that

to write and publish of a newspaper that "it was the most vulgar, ignorant, and scurrilous journal ever published in Great Britain" was not actionable, but that to add "that it is the lowest now in circulation, and we submit the fact to the consideration of advertisers," was actionable, inasmuch as this affected the sale and the profits to be made by advertising. And the full Court of King's Bench agreed with the L.C.J.

In Tabart v. Tipper, 1808, 1 Camp. 350; 10 R. R. 689, the plaintiff complained that the defendant had libelled him in the way of his business of a bookseller by accusing him of being in the habit of publishing immoral and foolish books. The defendant was allowed to adduce evidence to show that the supposed libel was a fair stricture upon the general run of the plaintiff's publications. Lord Ellenborough, C.J., remarked (pp. 351, 352): "Liberty of criticism must be allowed, or we should neither have purity of taste nor of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication therefore I shall never consider as a libel, which has for its object, not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality." To the same effect is the judgment of the same great judge in another case decided in the same year (Carr v. Hood, ibid., 355n.; 10 R. R. 701n.), the facts of which are set out in the article on CRITICISM, contained in Vol. IV. at p. 235.

In

In all the above cases it will be observed that a fair criticism is held to be no libel, and that the word “privilege” is never used. In Stuart v. Lovell, 1817, 2 Stark. 93; 19 R. R. 688, nine years later, the term "privilege" is for the first time employed in this connection. this case the proprietor of the Statesman newspaper had described the plaintiff, who was one of the proprietors of the Courier newspaper, as "the venerable apostate of tyranny and oppression," and as a man "whose full-blown baseness and infamy held him fast to his present connections, and prevented him from forming new ones;" and the plaintiff very properly recovered £100 damages. Lord Ellenborough, in his summing-up to the jury in this case, said (pp. 96, 97): "It is certainly competent to one public writer to criticise another, exerting his talents in all the latitude of free communication belonging to a public writer; and so it appeared to Lord Kenyon in the case of Heriot v. Stuart. The opinions and principles of a controversial writer are open to criticism and ridicule in the same way as those of any other author; but the privilege does not extend to calumnious remarks on the private character of the individual. In that respect the editor of a newspaper enjoys the rights of protection in common with every other subject." The incidental-or possibly accidental-use by Lord Ellenborough of the word "privilege in place of the word "right" in this passage does not, it is submitted, indicate any change from the opinion, so clearly expressed by him in the former cases cited above, that a fair comment is no libel.

In Macleod v. Wakley, 1828, 3 C. & P., at p. 313; 33 R. R. 668, Lord Tenterden, C.J., said: "Whatever is fair and can be reasonably said of the works of authors, or of themselves as connected with their works, is not actionable, unless it appears that, under the pretext of criticising the works, the defendant takes the opportunity of attacking the character of the author; then it will be a libel." This passage was cited with approval by Bowen, L.J., in Merivale v. Carson, 1887, 20 Q. B. D., at p. 283.